3rd Test Flashcards
Torte
A civil wrong not arising from a breach of contract (all about money compensation)
Intentional Torte
A wrongful act committed knowingly & committed with the intent to commit the act (Meant to throw the dart but did not mean to hit a person)
Assault
An intentional, unexcused act that creates in another person a reasonable apprehension or fear of immediate harmful or offensive contact (fear of contact creates the assault- MUST be immediate, threat)
Battery
Intentional, unexcused and harmful or offensive contact (the completion of the assault)
False Imprisonment
The intentional confinement of another person or restraint of another person’s activities without justification. The restraint may occur through physical barriers, restraint, or threats of physical force. (if one can’t feel like they can leave, physically confined & aware, one does not consent to restraint, must not be a reasonable way out)
Defenses by businesses regarding detention of shiplifters:
Restraint was in a reasonable manner
Restraint was in a reasonable time
Basis for the detention was valid
Infliction of Emotional Distress
An intentional act that amounts to extreme and outrageous conduct resulting in sever emotional distress to another (lawsuit for Jet Blue for playing joke on employee who ended probationary period)
Consent
can be used as defense where a person voluntarily consented to a defendant’s particular act- can be given verbally or in writing
Self Defense
An individual may be able to use reasonable force against a reasonably apparent threat in order to avoid the infliction of immediate bodily harm (need to use matching force to defend yourself)
Defending Property
A defendant is permitted to use reasonable force to prevent damages to property- the use of deadly force is however not typically allowed for defending property
Defending or assisting others
A person may also be able to use self-defense on behalf of another individual’s legitimate right to self-defense and use force in defense of that person
Necessity
Allows one to act in a wrongful way because doing so prevents a greater harm to you, your property of the community (shoving someone so they don’t get hit by a car)
Defamation
Any false statement of fact published or publicly spoken that injures another’s character, reputation or good name (must be able to prove injury)
Slander
Oral form of defamation
Libel
Written form of defamation
The Publication Requirement
A third party must overhear the defamation
Defamation Per Se (Plaintiff’s Doctrine)
Loathsome Communicable Disease (knowingly spreading diseases)
Professional Trade (accountant stole money, lawyer committed malpractice)
Serious Crime
Unchaste (“woman sleeps her way to the top”)
Defenses to Defamation
Truth
Absence of Malice (wreck less disregard for the truth)
Privacy Torts
Appropriation - use of a person’s name or picture without permission
Intrusion on solitude (wiretap)
Placing a person in a false light (publishing false story)
Public exposure of private facts (debts, drug use)
False light
similar to defamation claim in that it allows an individual to sue for public disclosure of information that is misleading, putting someone in a “false light”
Attractive Nuisance
Anything on a land that is enticing to a child
Defenses to Trespass
Necessity
Licenses (permission to be there)
Trespass to personal property
Borrowing someone’s belongings without their permission
Conversion
Civil Theft- taking, using, selling or retaining possession
Negligence
Failing to exercise the standard of care that a reasonable person would exercise in similar circumstances
4 parts of Negligence
Duty- responsibility in the given situation
Breach of Duty- if a person does not live up to their responsibility
Causation- link between the person not fulfilling their responsibility and the person’s injury
Damages- must be legally recognizable damages to a person
Duty of Care
The duty of all persons to exercise reasonable care in their dealings with others
Reasonable Care
Don’t take unnecessary risks that has a likelihood to harm other individuals
Reasonable person
Careful, conscientious, aware of their environment, honest, even tempered
Duty of Landowners
Expected to exercise reasonable care to protect harm from those persons coming onto their property
Duty to warn
Must warn of foreseeable & some hidden risks
Duty of prefessionals
If an individual has knowledge, skill or expertise superior to that of an ordinary person, the individual is held to that standard of care expected of a reasonable person with the same or similar knowledge, skill or expertise (A 20 year doctor will be compared to 20 year doctors not a new one)
Breach of Duty
Is the warning enough?
Did it satisfy the duty?
Damages or Injury in Nelgligence
Compensatory Damages (compensate to make a person whole, not to put you in a better position) Punitive Damages (punish & deter future similar conduct)
Res Ipsa Loquitur
Doctrine about circumstantial evidence the helps plaintiff establish elements of prima facie case (duty, breach, causation, damages) that allow the jury to draw an inference of negligence by virtue of the occurrence itself
Negligence Per Se
An act or omission in violation of a statutory duty or obligation
Statute replaces reasonable care
Proximate Cause
Examines foreseeability- was this action foreseeable when they did what they did?
Comparative Negligence
Damages are reduces by the % of injuries caused by plaintiff’s own negligence
Contributory Negligence
Plaintiff’s action contributed to the injuries and case is completely barred
Danger Invites Rescue
If a tortfeasor creates a circumstance that places the tort victim in danger, the tortfeasor is liable not only for the harm caused to the victim, but also the harm caused to any person injured in an effort to rescue that victim
Good Samaritan Statute
If a person undertakes an effort to help someone, they would really have to do something wrong in order for you to get in trouble and you must see the entire thing through- you cannot leave them in a worse off situation
Dram Shop Liability
You cannot serve a person alcohol that is already intoxicated (Wisconsin is the only state that does not abide by this)
Strict Liability
Liability without fault- the fact that someone was injured, we are going to hold you responsible
- Abnormally Dangerous Activity (spray crops on a windy day)
- Animals (keeping a wild animal in a domestic space and it attacks)
- Unreasonably dangerous consumer products (if a consumer product is being used correctly and it injures someone)
Things you cannot be terminated for
- a protected reason
- refusing to commit an illegal act
- important public duty (jury duty)
- public right (filing for workers compensation
- whistle blowing (reporting illegal things to appropriate people)
Business Extension Exception
Allows employer to monitor device furnished by employer or employees own device with consent
EEOC Equal Employment Opportunity Commission
Federal agency charged with enforcing Title VII of the Civil Rights Act of 1964 & other federal statutes & regulations prohibiting prohibiting employment discrimination
Title IX
levels the field for men and women’s college sports
Title VII
Employment discrimination; need to exhaust administrative remedies in order to file a lawsuit
Disparate Treatment
Intentional discrimination by an employer against employees or applicants who are members of a protected class
To prevail on a disparate treatment a plaintiff must prove that:
- They are a member of a protected class
- They applied and were qualified for, or were employed in the position in question
- They were rejected, demoted or terminated by the employer
- The employer then filled the position with a person not qualified
Prima Facie Case
Once Disparate Treatment has been established, it shifts to the employer to explain
Disparate Impact
Unintentional Discrimination (must be 6 ft tall in order to work someplace where everything is high up- discriminate against disabled and women)
Quid Pro Quo
This for that- granting or denying employment for sexual favors or refusal of
Statutory Defenses Under Title VII
Business Necessity was job related (physical requirements)
Seniority or Merit System
BFOQ (only women for women prisons)
