bases of legal liability Flashcards
statutory law
body of law created by a federal, state, county, city, etc legislative body
it’s written
common law
based on custom and court decisions
think precedence
stare decisis
once a court has rendered a decision, other courts should follow the same reasoning
legal wrong def
the failure to perform a legal duty owed to another party (individual/entity)
types of legal wrongs
breaches of contract
crimes
torts
tort def
a legal wrong for which the law allows a remedy in the form of monetary damages
types of torts
intentional
absolute/strict
negligence
intentional torts
includes slander, libel, false imprisonment
all about intent
absolute/strict liability torts
responsiblity regardless of fault
negligence torts
failure to exercise the standard of care required by law to protect others from harm
largest area
subjective
three elements of negligence
legal duty to exercise due care
failure to perform that duty
damages to the other party
three types of damages to the other party
special, general, and punitive
requires a proximate causal relationship between the negligent act and damages
special damages
actual tangible damages
lost wages, medical bills, etc
general damages
intangible
pain, suffering, mental anguish, loss of consortion/companionship
punitive damages
designed to punish the wrong doer
four defenses against negligence
contributory, comparative, the last clear chance doctrine, assumption of risk
contributory negligence
if the other party contributed in any way to the negligence, they are prohibited from recovering damages
comparative negligence
compares the negligence of both parties involved through percentages
pure, 49%, 50%
the last clear chance doctrine
if someone has the reasonable ability to avoid the harm, they have a duty to do so
assumption of risk
someone else assumes the risk
imputed negligence/vicarious liability
the negligence of one party becomes imputed, or transferred, to another
types of imputed negligence
employer/employee relationships
joint ventures
dram shop liability
rea ipsa loquitur
flips the burden of proof to the defendant, they must prove that they did nothing wrong
four elements for rea ipsa loquitur
the event must be one that would not have occurred but for the negligence of another party
the other party has superior knowledge or control over the cause of the harm
the cause of the harm must have been in the exclusive control of the other party
the injured party must not have meaningfully contributed to the harm or injury
degree of care required for trespassers
no duty to warn of potential risks and no duty to fix them
cannot set traps
degree of care required for licensee
licensee: someone you don’t know but may come on to property (delivery drivers)
duty to warn of a problem but no duty to fix it
degree of care required for invitee
invitee: someone you ask to come on to your property
duty to inspect property, warn them, and to either fix it or barricade the harm
attractive nuisance doctrine
you can be held liable if you have somehting on your property that attracts people with diminished capacity (mainly kids)
the negligent owner and operator of a vehicle can be…
liable for injury and damage caused to another party
Where the owner is not the operator, the general rule is that the owner…
is not liable for the damage caused to another party
Government entities can be sued if:
it involves a proprietary function
you can sue the government for gov functions when
a statute says you can
employer/employee relations require
must be an: actual employee
mus be acting: in the course and scope of employment
parents and children common law
parents are not responsible for their children’s negligence
parents and children today’s pov
you can sue for failure to supervise their children
wild animal liability
strictly/absolutely liable regardless of fault
domestic animal libality
one bite rule
types of product liability exposure
defective product manufacturing
defective product design
defective notice/warning to consumers
principal defenses to product liability claims
state of the art
compliance with applicable laws and regulations
alteration of product
ten steps to dealing with hazards
Prevent the creation of the Hazard — e.g. avoid sending trucks out in inclement weather – icy roads, etc.
Reduce the Hazard – e.g. forklift cage.
Prevent the release of an existing Hazard – e.g. pollution barriers, contained ventilation systems, encrypted data and limited access (cyber risk).
Modify rate of release of existing Hazard – e.g. back-up / redundancy systems for chemical process to avoid release.
Separate the Hazard from what you are protecting by time or space. – e.g. the movement of equipment over an active pipeline example.
Separate the Hazard from what you are protecting by physical barrier – e.g. pollution barriers.
Modify Hazard – e.g. use less toxic components.
Modify what you are protecting – e.g. add separate ventilation process, sprinkler system.
Initiate countermeasures – e.g. digging fire lines, toxic counteragents – EPI pens.
Stabilize and Repair – i.e. Post Loss Control – minimizes future damage
issues with tort liability system
rising tort costs system is inefficient in compensating injured parties uncertainty of legal outcomes higher jury rewards long delays in processing
solutions to tort liablity system
alternative dispute resolutions (arbitration)
limitations on rewrds
expanded use of “state of the art” defense
five steps to improve corporate governance
increase diversity
appoint competent directors
ensure timely information and appropriate distribution
prioritize risk management activities within the organization
evaluate the board
basic requirements of an enforceable (legally binding) contract
offer and acceptance consideration (payment, not always money) competent parties legal purpose writing required four corners rule
parol evidence rule
certain contracts will be enforced without writing if the contract is less than 1000 dollars and can be completed in a year
four corners rule
only the contents contained in the four corners of the contract matter when looking at enforcability
