第7章 英美侵权法
第一节
New Mexico recognizes the doctrine of fraudulent concealment in medical malpractice actions.The doctrine is based not upon a construction of the statute，but rather upon the principle of equitable estoppel.The theory is premised on the notion that the one who has prevented the plaintiff from bringing suit within the statutory period should be estopped from asserting the statute of limitations as a defense.
Silence may sometimes constitute fraudulent concealment where a physician breaches his fiduciary duty to disclose material information concerning a patient's treatment.The statute of limitations，however，is not tolled if the patient knew，or through the exercise of reasonable diligence should have known，of his cause of action within the statutory period.If the patient is tolled by fraudulent concealment，the statute commences to run again when the patient discovers，or through the exercise of reasonable diligence should have discovered，the malpractice.
To toll the statute of limitations under the doctrine of fraudulent concealment，a patient has the burden，therefore，of showing (1) that the physician knew of the alleged wrongful act and concealed it from the patient or had material information pertinent to its discovery which he failed to disclose，and (2) that the patient did not know，or could not have known through the exercise of reasonable diligence，of his cause of action within the statutory period.
【来源：Kern v.St.Joseph's Hospital，697 P.2d 135 (N.M.1985)】
1.What does “statute of limitations” mean in Paragraph 1？( )
A.a law that bars claims after a specified period
B.a written law to limit rights of defendant
C.a law that extends a victim's rights to sue
D.a law that limit the power of legislature
2.If a doctor fraudulently concealed information from his patient,.( )
A.the patient loses the right to sue the doctor
B.the patient cannot claim damages from the doctor
C.the doctor could not use the statue of limitations as a defense
D.the doctor could not continue to conceal the information from the patient
3.According to the text，which party bears the burden of proof for tolling the statute of limitations？( )
A.the doctor
B.the patient
C.the hospital
D.the nurse
4.According to the text，which is TRUE？( )
A.The doctrine of fraudulent concealment is based upon a construction of the statute.
B.In medical malpractice，doctor's silence regarding his/her patient's treatment sometimes constitutes a fraudulent concealment.
C.The statute of limitations would be tolled after a patient knew his cause of action within the statutory period.
D.To toll the statute of limitations，the patient doesn't need to prove the doctor concealed material information on treatment.
第二节
The nature of pain and suffering is such that no legal yardstick can be fashioned to measure accurately reasonable compensation for it.No one can measure another's pain and suffering.Only the person suffering knows how much he is suffering，and even he could not accurately say what would be reasonable pecuniary compensation for it.Two persons apparently suffering the same pain from the same kind of injury might in fact be suffering respectively pains differing much in acuteness，depending on the nervous sensibility of the sufferer.
All this is merely suggestive of the practical difficulties confronting a trial judge who is about to instruct the jury as to the measure of damages for pain and suffering.Jurors may differ widely in their conception of the word “compensation.” One juror might hold that no amount of money could justly compensate one for acute pain and suffering；another might hold that even a small sum of money would be just compensation in such a case.
In the case before us，the trial judge said：“There is no fixed standard as to any amount to allow for pain and suffering.That is to be guided by your judgment.” This was in effect an instruction that there was no infallible objective standard with which to measure damages for these subjective elements but that they were to use good common sense in assessing damages for them.
In New Mexico，the measure of damages is “the enlightened conscience of impartial jurors.” This guide is the equivalent of “common sense and good judgment.” Pain and suffering has no market price.Even the most experienced and learned physician finds no method of measuring it.As a result，a verdict of the jury will not be disturbed by the judge unless it appears that it was influenced by partiality，prejudice，corruption of the jury，shocking in amount，or by some mistaken view of the evidence.
【来源：Real v.F&S Co.612 P.2d 1318 (N.M.Ct.App.1979)】
1.What can you infer from Paragraph 1？( )
A.People can tell exactly others' pain and suffering.
B.People with the same kind of injury suffer the same pain.
C.A reasonable compensation for pain and suffering is difficult to be accurately measured.
D.People could find exact pecuniary compensation for pain and suffering.
2.What does “verdict” mean in Paragraph 4？( )
A.the jury's finding on the factual issue of a case
B.the judge's decision of a case
C.one's opinion of something after considering it
D.the conclusion of the analysis
3.In New Mexico，which of the following statements is TRUE？( )
A.There is a market price on pain and suffering.
B.The verdict of the jury could be changed if the amount of damages is so high that is shock people's consciousness.
C.The experts such as physicians could exactly measure the damages of pain and suffering.
D.The judge must follow the amount of damages given by the verdict of the jury.
4.When the trial judge gives the jury an instruction for measuring damages for pain and suffering，the jurors can.( )
A.get a clear rule on how to measure damages
B.reach a uniform opinion on the amount of damages
C.measure damages on a fixed standard
D.use their common sense to measure damages
第三节
The principle that violation of a statute constitutes negligence per se is so elementary that it does not require citation of authority.In order for the doctrine of negligence per se to apply，the plaintiff must show that he is a member of the class that the statute was designed to protect and that the harm he suffered was the type of harm which the statute was intended to prevent.The plaintiff，a traveler on a Mississippi highway，was within the class of individuals the statute was designed to protect.The accident that occurred on the highway was the kind of harm that the statute was intended to prevent.
In former cases，we applied the rule of the federal regulations for interstate highways pursuant to Code of Federal Regulations，holding that “where there is a conflict in the evidence and where more than one reasonable interpretations may be given the facts，whether the driver acted with reasonable promptness under the circumstances or within a ten minute time limit must be determined by the jury under proper instructions.”
When this Court interprets a statute，and the statute is retained in subsequent codes without amendment by the Legislature，our interpretation becomes，in effect，part of the statute.Defendants contend that they did not have time to move the truck or to provide any warning that it was blocking the road.Regardless of how we construe the statute，defendants could not have complied.It is uncontroverted that the truck had no lights and was not equipped with reflectors or other warning devices.Thus，the circuit court erred in failing to grant plaintiff the negligence per se instruction she sought.
【来源：Thomas v.McDonald,667 So.2d 594 (Supreme Court of Mississipi）,1995】
1.What does “statute” mean in Paragraph 1？( )
A.A judgment decided by the Supreme Court of United States.
B.A charter adopted by a business association.
C.An international treaty related to traffic rules.
D.A law passed by a legislative body.
2.According to Paragraph 1，if a plaintiff intends to apply the doctrine of negligence per se，he should prove the following conditions except.( )
A.he is not required to cite the authority to support his claim
B.he is among those that the statute protects
C.the defendant violates the statute
D.he suffers the harm the statute was designed to prevent
3.If there are conflicts in evidence and several reasonable interpretations in relation to facts，who will decide the rule applied to the driver？( )
A.The drafter of federal regulations.
B.The federal court judge.
C.The jury of the trail court.
D.The state court's judge.
4.What can we infer from Paragraph 3?( )
A.If the Legislature amends the statute，the court's interpretation of that statute is still part of the statute.
B.In the light of the facts that the truck had no lights and no other warning devices，the defendants violated the statute.
C.The circuit court was right in refusing to give the instruction of negligence per se to the plaintiff.
D.The decision of the circuit court was upheld by this court.
第四节
Evidence of industry standards，customs，and practices is often highly probative when defining a standard of care.The safety code such as the Consumer Products Safety Commission's (CPSC) guidelines and the American Society for Testing and Materials' (ASTM) standards for playground safety ordinarily represents a consensus of opinion carrying the approval of a significant segment of an industry，and is not introduced as substantive law but most often as illustrative evidence of safety practices or rules generally prevailing in the industry that provides support for expert testimony concerning the proper standard of care.
In the present case，the trial court precluded plaintiff's evidence of the CPSC guidelines and the ASTM standards based on the mistaken belief that the defendant must have adopted these national protocols before such evidence was admissible.This was error.The defendant cites no cases，and we are aware of none，mandating promulgation or implementation of national industry standards prior to their admission in a negligence case.To the contrary，while such proof might be necessary in attempting to establish negligence per se，it is not required when the evidence is offered to demonstrate an applicable standard of care.In Sawyer v.Dreis & Krump Mfg.Co.，the rule is that national standards were properly admitted and could be considered by the jury as some evidence of negligence but they were not conclusive on the subject of negligence and the jury should have been so instructed.
Plaintiff proffered substantial video deposition testimony from Steven Bernheim，an expert in playground safety and equipment，concerning industry standards as outlined in the CPSC and ASTM.Specifically，Bernheim would have testified to the defendant's deviation from the accepted standard of care in the field.Moreover，the plaintiff intended to offer evidences that the defendant had notice of these standards，and that they were fully enforced regarding the defendant's purchases of new play ground equipment.
【来源：Elledge v.Richland/Lexington Sch.Dist.Five，341 S.C.473(Court of Appeals of South Carolina，2001)】
1.What does “care” mean in Paragraph 1？( )
A.providing treatment for or attending to someone or something
B.an anxious feeling
C.preference or wish to do something
D.the conduct demanded of a person in a given situation
2.According to the text，what is NOT TRUE about a “safety code”？( )
A.A safety code is industry standards or practices.
B.A safety code is a statute passed by a legislative body.
C.A safety code is probative in defining a standard of care.
D.A safety code is the prevailing rule or practice in the industry.
3.In Paragraph 3，the word “they” refers to.( )
A.industry standards
B.the defendant
C.evidences
D.the plaintiff
4.Which of the following best reflects the main opinion of the judge？( )
A.The trial court is right in precluding plaintiff's evidence of the CPSC guidelines and the ASTM standards.
B.The industry standards could be considered as illustrative evidence on standard of care by jury.
C.The industry standards，customs and practices are inadmissible to the court as the evidence of negligence.
D.The defendant did not notice the safety code of the play ground equipment based on the expert testimony.
第五节
Tort law is “private” law.Regulation by statute is “public” law.How should the two relate to each other in a regulatory state where statutory intervention in private markets is widespread？Both tort and statutory law have regulatory effects.Thus economic policymakers should examine the links between these legal regimes in substantive areas where both systems operate.
The fundamental differences between tort law and regulation center not on substantive standards，or on the distribution of benefits and harms，but on procedures.Statutory regulation，unlike tort law，uses agency officials to decide individual cases instead of judges and juries；resolves some generic issues in rulemakings not linked to individual cases；uses non-judicialized procedures to evaluate technocratic information；affects behavior ex ante without waiting for harm to occur，and minimizes the inconsistent and unequal coverage arising from individual adjudication.In short，the differences involve who decides，at what time，with what information，under what procedures，and with what scope.
Steven Shavell has developed a useful four-category schema to organize a discussion of alternatives (1987，pp.277-90).He distinguishes between ex post (backward-looking) and ex ante (forward-looking) options，and between privately initiated and state-initiated systems.This framework produces four alternatives：Tort liability (ex post，privately initiated)；court injunctions (ex ante，privately initiated)；command-and-control regulation or corrective taxes (ex ante，state initiated)；and fines for harm done (ex post，state initiated).For our purposes，the most important comparisons are between tort liability and ex ante，state-initiated approaches.
Five factors，according to Shavell，should influence the choice between ex ante，state-initiated and ex post，privately initiated approaches.First，state action is desirable when the harm is so diffuse that individuals have little incentive to sue on their own and cannot cheaply organize to sue as a group.Second，if injurers are too poor to pay for the harm they cause，a system based on ex post payments will not effectively deter them.Third，when harm can be demonstrated on a statistical，but not an individual，basis，regulations or taxes applied ex ante can shape behavior without a showing of causal links between particular parties.Fourth，an ex ante regulatory system will be preferable when the same information about costs and benefits is relevant to many instances of harm.Fifth，administrative costs are an important consideration.If the probability of harm is low，ex post systems may be preferable since they only need come into play when the harm occurs and the damages are required.
Ironically，tort law may be most ineffective in precisely those areas where judicial doctrine has been most innovative-toxic torts，products liability，and medical mal-practice.These are all areas where ex ante regulation enjoys distinct advantages.Some critics，such as Peter Huber (1988) and W.Kip Viscusi (1984)，point to the courts' incompetence concerning technical issues of health and safety-incompetence arising from lack of expertise，inadequate staff，and procedures ill-suited to the discovery of scientific truth.
Nevertheless，widespread support for the tort system persists even when the logic of efficient risk control demands ex ante regulation.
【来源：The American Economic Review，Vol.81，No.2，Papers and Proceedings of the Hundred and Third Annual Meeting of the American Economic Association (May，1991)，pp.54-58】
1.What does “damages” mean according to the text?（ ）
A.The act of injuring someone physically with an intention.
B.The act of doing emotional harm to someone.
C.The results coming from the harm done to someone.
D.The money ordered to be paid as compensation for loss or injury.
2.The most important difference between tort law and regulations lies in.（ ）
A.the different and substantive standards
B.the whole process of dealing with a case
C.the distribution of benefits and harms
D.the methods to judge the cases
3.Which of the following statements can best describe Shavell's four-category schema?（ ）
A.He elaborated about the differences between ex ante and ex post options and the private and state initiated systems.
B.The four alternatives produced by this schema include tort liability，court injunctions，court procedures，and fines.
C.This schema does not help to resolve the differences between tort laws and statutory regulations.
D.There are no strict lines between the use of ex ante，state-initiated and ex post，privately initiated approaches.
4.Which of the following statements is TRUE according to the text?（ ）
A.The tort law often resolves some generic issues in rulemakings which are not connected to individual cases.
B.If the individuals have little motivation to sue on their own due to the diffuse harm，the state should help and initiate.
C.If the injurers have no money to pay the harm they cause，an ex post system can effectively deter them.
D.From the author's point of view，the current tort system should be abolished.
第六节
The foregoing chapter explains that tort law，as a law for the redress of wrongs，conditions the imposition of liability on conduct that is wrongful toward，and injurious to，the victim.The third feature that marks tort law as a distinctive department of the law derives from the core idea of redress.Tort law is a law for the redress of private wrongs because it empowers victims in particular ways.Most importantly，the decision to complain about an alleged wrong lies uniquely with the victim.
In Blackstone's phrase，the victim is the one who decides whether to set the law in motion.In this respect，tort stands in contrast to criminal prosecutions and administrative proceedings that are conducted at the behest of，and formally controlled by，government officials.A right to redress is，as Zipursky has emphasized，a legal power conferred on a victim to pursue an action against the alleged wrongdoer if she chooses.If she sees no value in obtaining redress，concludes that its costs outweigh its benefits，or prefers to deal with her injuries by channeling her energies into social activism，the law takes no interest in the matter.
The idea of redress，like the idea of a private wrong，is also relational.As Ernest Weinrib has emphasized，an action for redress in tort is a suit that seeks to assign responsibility to a wrongdoer for having wronged the victim.It might well be desirable from a public policy perspective to have victims of wrongs sue someone other than the alleged wrongdoer(s).That such a justification generally has not carried weight within our tort law demonstrates that tort law aims to provide redress for wrongs (as opposed，say，to achieving efficient deterrence).Tort redress is not to be confused with vengeance.
Vengeance is an unregulated response by which a victim seeks satisfaction directly and by the means of her choice.For good reasons，Anglo-American law allows almost no room for it.Because it is unmediated，vengeance runs high risks of error，overkill，additional violence，and ongoing feuds，which tend to work against the resolution of disputes and to undermine civil order.Even when the law permits self-help—e.g.，recapture of chattels—it limits the privilege by requiring that it be done peaceably.Redress through law，as Locke and Blackstone understood，is a substitute for vengeance.
【来源：John C.P.Goldberg，“The Constitutional Status of Tort Law：Due Process and the Right to a Law for the Redress of Wrongs，”Yale Law Journal，Vol.115，p.524，2005】
1.What does “chattels” mean according to the text?（ ）
A.a slave
B.the movable property
C.the immovable property
D.a certificate
2.According to Blackstone's understanding，the reason for tort standing in contrast to criminal prosecutions and administrative proceedings lies into set the law in motion.（ ）
A.the government officials
B.the alleged wrongdoer
C.the victim
D.the people related with the victim
3.The justification that the victims of wrongs can sue someone other than the alleged wrongdoer does not show any significance for the following reason.（ ）
A.The idea of redress is relational，which aims to assign responsibility to a wrongdoer for his wrong acts upon the victim.
B.tort law aims to provide redress for wrongs
C.tort law aims to achieve efficient deterrence
D.Tort redress is different from vengeance.
4.Which of the following statements is TRUE according to the text?（ ）
A.The decision to sue the wrongdoer lies in the victim not any other people.
B.If the victim chooses not to sue the wrongdoer because the costs exceed the benefits，the law will provide relief for him/her.
C.The Anglo-American law allows the victim to seek punishment on the wrongdoer directly and arbitrarily.
D.The redress of tort shares certain similarity with vengeance because they try to resolve the dispute peaceably.
第七节
The torts mentioned in the preceding chapter all have very broad applicability.There are also many more specific duties，arising under more narrowly defined circumstances，which are enforced by tort law.One especially important group of such duties are referred to generically as Fiduciary Duties.A person subject to these duties is called a Fiduciary.Broadly speaking，a fiduciary relationship is one in which the fiduciary is charged with putting the interests of the other party to the relationship ahead of his own in certain respects.The fiduciary is not only precluded from acting in a self-interested manner：he is required to act in the interests of the other party.Physicians are fiduciaries for their patients.Members of a board of directors are fiduciaries for their corporations.Trustees are fiduciaries for those whose assets they hold in trust.
Fiduciary duties highlight another aspect of the relationship of torts to contracts.There are some duties enforced by tort law which we owe to everybody we encounter in life，such as the duty to use the public ways in a manner that doesn't endanger the safety of others.However，many of the more refined duties enforced by tort law arise only in certain relationships which are first established by contract.For example，you do not simply find yourself to be a director of a corporation，or，as a doctor，find yourself to have a patient.These relationships are typically contractual in origin；the parties involved agree to form the relationship and，to some extent，agree upon its terms.However，insofar as the law imposes fiduciary duties (or other tort duties)，it is generally not left to the parties to negotiate the terms of these duties.They are imposed by law.In fact，a fiduciary who tried to negotiate out of his fiduciary duties would typically by that act alone be deemed to be in breach of his fiduciary duty.For example，it would be wrong for a doctor to seek a patient's agreement to the provision of sub-standard care，or for the directors of a corporation to seek the corporation's agreement to unreasonably high compensation for directors.
Tort law thus has more pronounced moral overtones than contract law.To violate a contractual obligation，especially in a purely commercial setting between parties of equal bargaining power，may be a matter of moral indifference.To violate a duty enforced by tort law is wrong，and，with respect to some torts (especially fiduciary duties)，a very serious moral matter.
Tort law is extremely complex，and distinctive bodies of doctrines have grown up around different tort interests.For example，there is a complex interplay between the tort of defamation and the constitutionally protected right of freedom of expression，especially as to public figures.The law of trespass blends into the complex law of real property and its dense collection of rights and relationships，with tenants，mortgages，sub-leases，condominiums，etc.However，there are certain themes that run through much of tort law.
【来源：John L.Akula，Tort Law In a Peanut，
1.What does “fiduciary” mean according to Paragraph 1?（ ）
A.the sum of money paid to the other party
B.the sum of money provided by the party who is faulty
C.a person who has control over some other people
D.a person holding the character of a trustee，or a character analogous to that of a trustee
2.The fiduciary duties can only be imposed by.（ ）
A.the parties to the contract
B.the law
C.the negotiations between parties
D.any third party
3.Which of the following relationships CANNOT be deemed a fiduciary duty?（ ）
A.Physicians and their patients
B.Members of a board of directors and their corporations
C.Lawyers and their clients
D.Shop owners and their customers
4.Which of the following statements is TRUE according to the text?（ ）
A.If someone is a fiduciary，he should also act for his own interests.
B.It would be reasonable for a doctor to seek a patient's agreement to the provision of sub-standard care.
C.Tort law has more moral significance than contract law.
D.The tort of defamation and the constitutionally protected right of freedom of expression is inherently contradicted with each other from the author's perspective.
第八节
Contributory negligence refers to the plaintiff's own want of care which directly and materially contributed to his injury.This means that the plaintiff was a co-author of his own misfortune.Thus，where a passenger in the front seat of a car does not wear his seat belt，or a motorcyclist or a pillion rider does not wear a crash helmet or does not fasten it securely，or a passenger in a vehicle keeps his arm protruding from the vehicle，or a pedestrian crosses the road when the danger signal is on，and suffers injury as a result of an accident occurring，he may be considered to have contributed to his own injury.Further，where the plaintiff，knowing that he will be travelling in a car driven by another person，heavily drinks with that other person until the latter's ability to drive safely is impaired，he will be held to be contributorily negligence if an accident occurs resulting in injury to himself.
To determine the existence of contributory negligence on the part of the plaintiff，it must be established that the plaintiff's injury belonged to that category of risk to which he exposed himself.This point is well illustrated by the case of Stapley v Gypsum Mines Ltd.The deceased was a miner.The roof of the mine was in a dangerous state.The defendant advised the deceased and a fellow employee，Dale，to bring the roof down.The deceased and the other employee，however，were unsuccessful in doing so.Despite the potential danger of the roof collapsing，they agreed to commence work.The deceased was killed when the roof of the mine fell on him.The plaintiff (the deceased's wife) brought an action against the defendant alleging vicarious responsibility.The question was，was Dale's fault so much mixed up with the state of things brought about by the deceased that in the ordinary plain common sense of this business，it must be regarded as having contributed to the accident？Lord Reid said:
“I can only say that I think it was and there was no‘sufficient separation of time，place or circumstance' between them to justify its being excluded.Dale's fault was one of omission rather than commission and it may often be impossible to say that，if a man had done what he omitted to do，the accident would certainly have been prevented.It is enough，in my judgment，if there is sufficiently high degree of probability that the accident would have been prevented.”
【来源：DK Srivastava，The Law of Tort in Hong Kong，Lexis Nexis，2005，pp.327-328】
1.According to the first paragraph，which of the following is not regarded as a contributory negligence？( )
A.A passenger in a bus keeps the arm outside the bus.
B.A pillion rider does not wear his/her crash helmet.
C.A pedestrian crosses the road when the light turns green.
D.A passenger sitting in the front seat of a car forgets to wear the seat belt.
2.In a contributory negligence dispute，according to the passage，the standard of proof is to show that.( )
A.the defendant's acts contributed to the plaintiff's injury
B.the plaintiff's own exposure to the risk which caused his injury
C.the plaintiff himself made the mistakes in the accident
D.the defendant acted reasonably in the accident
3.What does “vicarious responsibility” mean in Paragraph 2？( )
A.entire responsibility
B.direct responsibility
C.partial responsibility
D.substitute responsibility
4.What can we infer from Lord Reid's judgment in the last paragraph？( )
A.Dale's fault ought to be regarded as having contributed to the accident.
B.Defendant in the Stapley case is not responsible for the death of the deceased.
C.Dale's fault can be excluded due to lack of sufficient separation of time，place or circumstance.
D.The deceased should take the whole liability on his own.
第九节
Negligence is the most important cause of action，used in many civil actions and in many different situations.To prove negligence，a claimant “must prove...the following elements：‘(1) a duty of care owed by the defendant to the plaintiff；(2) conduct by the defendant falling below the standard of care amounting to a breach of that duty；(3) an injury or loss；(4) cause-in-fact；and (5) proximate or legal cause.' ” While the cause of action is called negligence，some courts refer to duty and breach of duty as negligence，thereby causing some confusion.
Only those that owe a duty to another can be used under negligence.Generally this means that a person must act，but in some cases failing to act might implicate the duty owed to another.The question of whether someone owes a duty to another is a question of law，therefore a judge can dismiss a case when no duty is owed.There has been some debate as to how often a judge should exercise this dismissal authority，especially in cases when there arguably is a question as to whether the defendant owed the plaintiff any duty.
In one of the most celebrated cases of the early twentieth century,Palsgraf v.Long Island Railroad，two men were running to catch a moving train.When a conductor tried to help one of the men get on the train he dislodged a package in that passenger's hands.Unknown to the conductor the small package contained fireworks，which caused an explosion and injured the plaintiff，Mrs.Helen Palsgraf.New York's highest court held that Mrs.Palsgraf was an unforeseeable plaintiff and thus ruled that the railroad did not owe her a duty of care，even though the jury had awarded her damages.Concerned with overly sympathetic juries many courts in the first half of the twentieth century analysed unforeseeable plaintiffs under the duty element，thereby keeping cases from the jury.Today，most courts analyse foreseeability under proximate cause，thereby allowing the jury to decide any disputed questions.But，courts are free to exercise their discretion and determine duty questions，though today they are likely to exercise that discretion only when it is obvious that a defendant did not owe any duty to plaintiff.
【来源：Beau Baez III，Tort Law in the USA，Kluwer Law International，2010，pp.82-83】
1.According to the first paragraph，which of the following is NOT an element of negligence？( )
A.a loss suffered by the plaintiff
B.proximate cause
C.defendant's conduct complying with the standard of care
D.a duty of care owned by the defendant
2.What does “dismiss” in Paragraph 2 mean？( )
A.accepting an action and putting it into a trial
B.sending a suit out of the court without trial
C.transferring a case to another court
D.holding a trial for a suit
3.Which of the following statements concerning the duty of care is NOT CORRECT according to the text？( )
A.An omission in a doing certain act can constitute a duty of care
B.The issue of the existence of a duty of care is a question of fact
C.There are arguments over the judge's dismissal on cases concerning the question of whether a duty of care is owned by the defendant to the plaintiff
D.A duty of care usually refers to an act somebody must complete
4.What can we infer from Palsgraf v.Long Island Railroad in the last paragraph？( )
A.The court of that case decided that the defendant owed a duty of care to the plaintiff.
B.In the first half of the 20th century，it is the jury that decided the foreseeability issue.
C.At present，the foreseeability issue is regarded as a question of fact，and thus within the analysis scope of the jury.
D.The courts own no discretion on questions of duty of care.
第十节
Recovery in Pennsylvania in a products liability case can be based on any of three bases：negligence of the manufacturer，the manufacturer's breach of a UCC warranty，or strict liability in tort.The negligence theory has long been present in our law，but the plaintiff is faced with the almost insuperable obstacle of the burden of proof.To avoid this problem，a “warranty” or “contract” theory of recovery was developed.However，such a “warranty” theory also contained many obstacles to recovery by an injured party.Among these were the requirements of “vertical” and “horizontal” privity.At the time the UCC was drafted，the only encroachments on privity were in the food and drink in the household cases.Consequently，the draftsmen incorporated this contemporaneous state of the case law in Section 2-318 with but one exception：the Code contained a comment indicating that further judicial extensions of the products liability law could be incorporated into the Code theory.
In Kassab v.Central Soya1 the Supreme Court of Pennsylvania held that the requirement of vertical privity no longer reflected the balance between the consumer's ability to protect himself against the actual defect-producing manufacturer and the precedential weight of decisions requiring vertical privity.Such a view of the consumer's real standing in society was mandated by the Court's adoption of 402A of the Restatement Second of Torts three years earlier.Now that 402A allowed a direct action to be brought by an injured party directly against the manufacturer，the Court was for ced，if it wished to provide any symmetry in Pennsylvania's products liability law，to grant the coextensive right to an injured party to proceed directly against the manufacturer under a warranty theory.With Kassab so holding，vertical privity was abolished in Pennsylvania.
Although Kassab was hailed as a progressive step by Pennsylvania products liability watchers，they were concerned by a footnote in the opinion which explicitly left intact Hochgertel's limitation of the extent of the class of product liability users entitled to warranty protection.Salvador brushed this aside on the ground that Kassab's facts had concerned vertical privity and had not touched upon a horizontal privity problem.In Salvador，then，the Court had a case with a textbook horizontal privity problem.Just as Kassab had intimated，the theoretical foundation which had supported horizontal privity was also undermined.
【来源：Stuart Wells Benson III，Products Liability：Abandonment of Horizontal Privity；36 U.Pitt.L.Rev.1974-1975，pp.478-479】
1.According to the passage，the three bases for claiming a recovery in product liability cases in Pennsylvania are.( )
A.negligence of manufacturer，the manufacturer's breach of the merchantable clause under UCC，and strict liability
B.absolute liability，manufacturer's negligence，and violation of a warranty clause in UCC
C.strict liability，intentional violation of manufacturer，and the manufacturer's breach of a UCC warranty
D.manufacturer's negligence，liability with fault，and violation of a warranty clause in UCC
2.What does “privity” in Paragraph 1 mean？( )
A.wrongdoing in tort
B.breach of contract
C.mutual relationship
D.causation
3.Which of the following statements about the Kassab case in extensive Paragraph 2 is NOT TRUE？( )
A.The Court has the discretion to grant the co-extentive right to the victim to proceed directly against the manufacturer under a warranty theory.
B.The 402A provides that the requirement of vertical privity no longer reflected the balance between the consumer's ability to combat the defect-producing manufacturer and the precedents on vertical privity.
C.The vertical privity，following the outcome of Kassab case，has been repealed in Pennsylvania.
D.402A allows the injured party to file a lawsuit directly against the manufacturer of the defective products.
4.According to the last paragraph，in Salva dor,.( )
A.the Kassab case was used since the facts of the two cases are similar
B.the case set a sample for dealing with the issue of vertical privity
C.the judgement in Kassab was reversed by the case
D.the theory for horizontal privity was weakened either