CH. 4 Flashcards
Four main elements of negligence:
- Existence of a duty of care
- Breach of the duty
- Injury resulting from the breach
- Proximate cause of the injury by the breach
2 types of negligence
Intentional & Unintentional
when you make up stories regarding your previous job’s sanitation practices, resulting in loss of patrons
injurious falsehood
two kinds of liability
Conditional & Strict
Negligence per se
Negligence in & of itself- If you are not conforming to some law/ regulation you are guilty of negligence even though no injury has occured yet
Reasonable person test
1 needs to consider what a careful, thoughtful person in the same circumstance would have done
Where did we get the word “tort”
Old French legal term- “wrongs”. (can be the same root word as distort or torture)
Easier to find someone guilty in a civil case vs. a criminal case?
Burden of proof in a criminal case- 98%(beyond a reasonable doubt), & burden of proof in civil case= 52%
Main premise of tort law
to restore the injured party to the position he/ she was in before the injury
Do you owe any duty of care to a trespasser?
Yes, not to willfully create a danger/ wantonly injure trespasser
8 intentional torts
Assault, Battery, Trespass, Conversion False Imprisonment, Intentional Infliction of Mental Suffering, Deceit, Intentional Interference w. a Contract
To prevent potential legal action against your business, you need:
standard operating procedures, staff training, regulatory adherence, record keeping, waivers, disclaimers, releases & insurance
res ipso loquitur
The thing speaks for itself
5 things defendant must establish to benefit from the doctrine of voluntarily assumed risk:
the plaintiff
- knew about the risk
- understood risk
- had a choice to avoid the risk
- voluntarily assumed the risk
- & the defendant was not in breach of a statutory duty from which the injury followed
6 primary purposes of tort law
regulation, deterrence, compensation, dispute resolution, education & prevention
“Last Clear Chance” exemption?
plaintiff’s negligence causes him/ her self danger, the defendant has the last clear chance of averting injury- If defendant fails to exercise care he/ she is negligent
Do disclaimers & signed waivers guarantee a business from being sued?
No- Duress print too small, & client is not fully informed
“Thin skull rule”?
A tortfeasor who can reasonably foresee some injury as a consequence of his/ her conduct may be liable for more serious consequences than he/ she anticipated
7 defenses to intentional torts
Consent self defence lack of intention necessity legal authority defense of property & defense of third person
Strict liability
Defendant is automatically liable even though no injury has occurred- not following gov/t codes & regulations will result in strict liability
Conditional liability
Person is liable for negligence only if the consequences of the act were reasonably foreseeable
When no contractual rtnship exists b/w 2 parties, & 1 party relies upon advice provided by the other party, but advice provided was in a negligent manner, can 1st party sue?
Yes- negligent misrepresentation
Diff b/w slander libel
Slander- spoken defamations
Libels- written ones
Contributory negligence
A plaintiff is partly/ solely the cause of his/ her own injury
