Chapter 11 - Operational Liabilities and Insurance

Question 0

What is duty?

Answer 0

a person required to act reasonably under the circumstances to avoid harming the other person

Question 1

What is negligence and its requirements?

Answer 1

conduct that creates an unreasonable risk.
1. defendant owed a duty to the plaintiff to act reasonably under the circumstances. 2. defendant breached duty by failing to use the care that a reasonably prudent person would have used. 3. there is a reasonably close casual connection between the defendant’s breach and the plaintiff’s injury. 4. plaintiff suffered an actual loss or injury

Question 2

What is the duty of the landowner or tenant?

Answer 2

legal duty to keep real property reasonably safe and may be liable for injury that occurs outside or on premises they own or control.
landowners are not liable for harm caused by natural conditions on their property unless they have altered the natural sate of the land

Question 3

What is the duty of employer to 3rd parties?

Answer 3

an employer is liable for any torts committed by employees acting within the scope of their employment

Question 4

What is the difference between contributory negligence and comparative negligence?

Answer 4

contributory negligence - if plaintiff was also negligent in any manner, they cannot recover any damages from defendant.
comparative negligence - allows plaintiff to recover the proportion of their loss attributable to defendant’s negligence

Question 5

What is an intentional tort?

Answer 5

intent to harm plaintiff, plaintiff’s proprty, or certain economic interests and business relationships.
person subjectively wants or knows that it is substantially certain to occur as a result of their actions.
defendant is held automatically liable without regard to duty

Question 6

what is battery?

Answer 6

harmful or offensive contact with the plaintiff’s body or something touching it

Question 7

what is false imprisonment?

Answer 7

intentional restraint of movement, imposed against someone’s will by physical barriers, physical force, or threats of force.
also if plaintiff’s freedom of movement is restricted because of force applied to their property

Question 8

what is intentional infliction of emotional distress?

Answer 8

foreseeable acts that are outrageous or intolerable

1. defendant’s conduct was outrageous
2. defendant intended to cause emotional distress
3. defendant’s actions caused severe emotional suffering

Question 9

what is defamation

Answer 9

the communication to a 3rd party of an untrue statement of fact that injures the plaintiff’s reputation.
libel - written
slander - spoken

Question 10

what is invasion of privacy?

Answer 10

unauthorized disclosure of private information.
intrusion is objectionably prying.
plaintiff must have a reasonable expectation of privacy in whatever has experienced the intrusion in order for the intrusion to be tortious

Question 11

What is trespass to land?

Answer 11

intentional invasion of real property without consent of owner.
requires intent to enter property, not intent to trespass.
may occur below land’s surface and in airspace above it.
refusing to move something that at one time plaintiff permitted on land may also constitute trespass

Question 12

what is nuisance

Answer 12

non-trespassory interference with use & enjoyment of real property.
public nuisance - unreasonable and substantial interference with public health, safety, peace, comfort, convenience or utilization of land
private nuisance - unreasonable and substantial interference with an individual’s use and enjoyment of their land
to determine what is unreasonable, courts balance the utility of the activity and the burden preventing it against the nature and gravity of the harm

Question 13

what is coversion

Answer 13

the exercise of dominion and control over the personal property of another.
protects the right to have one’s personal property left alone.
recover value of property stolen, destroyed, or substantially altered.
requires intent to exercise dominion or control over goods, defendant need not know that goods belonged to plaintiff

Question 14

what is trespass to personal property?

Answer 14

when personal property is interfered with but not converted.
no wrongful motive needs to be shown.
intent to exercise control over plaintiff’s property required

Question 15

what is fraudulent misrepresentation?

Answer 15

protects economic interests and the right to be treated fairly and honestly.
requires proof that the defendant knowingly and intentionally misled the plaintiff by making a material misrepresentation of fact on which the plaintiff justifiably relied.
plaintiff must suffer injury as a result of the reliance.
can also be based on defendant’s omission of a material fact when they have a duty to speak because of a fiduciary duty

Question 16

what is interference with contractual relations?

Answer 16

protects the right to enjoy the benefits of legally binding agreements.
defendant must intentionally induce another person to breach a contract with plaintiff.
requires defendant know that there is a contract.
if good grounds exist for the interference, the defendant may not be held liable

Question 17

what is interference with prospective business advantage?

Answer 17

plaintiff must prove that the defendant unjustifiably intefered with a relationship the plaintiff sought to develop and that the interference caused the plaintiff’s loss
interference must be intentional

Question 18

what is unfair competition?

Answer 18

anticompetitive behavior

Question 19

what is strict liability?

Answer 19

liability without fault, negligence, or intent.
high standard of care is irrelevant.
ultrahazardous activities - so dangerous that no amount of care could protect others from the risk of harm.
toxic torts - wrongful act that causes injury by exposure to a harmful, hazardous, or poisonous substance

Question 20

what is respondeat superior?

Answer 20

an employer is vicariously liable for the torts of an employee acting within the scope of their employment
even if the employer had no knowledge of the actions or had instructed the employee not to do the wrongful act

Question 21

what is scope of employment?

Answer 21

activities closely connected to what the employee is employed to do or reasonably incidental to it
1. in the nature 2. within time and space limitations 3. furthers purpose of employer.

Question 22

what is the difference between frolic and detour? Which one is an employer held responsible for?

Answer 22

frolic - employee does something for themself unrelated to employer’s business
detour - employee temporarily inturrupts work to do something for themself
employer is responsible for a detour, but not a frolic

Question 23

what is the aided-in-the-agency-relation doctrine?

Answer 23

an employer can be vicariously liable for a tort committed by an employee acting outside the scope of employment if the authority of the employer or an instrumentality provided by the employer made it possible for the employee to commit the tort

Question 24

What are actual damages (compensatory damages)?

Answer 24

based on the cost to repair or replace an item, or the decrease in market value caused by the tortious conduct.
may include compensation for medical expenses, lost wages, and pain and suffering

Question 25

what are punitive damages (exemplary damages)?

Answer 25

awarded to punish defendant and deter others from engaging in similar conduct.
damages may be based on defendant’s wealth and must be reasonably proportional to the actual damages or proportionate to the wrong

Question 26

what is equitable relief?

what is an injunction?

Answer 26

granted when a money award cannot adequately compensate for the plaintiff’s loss
injunction - court order prohibiting defendant from continuing an activity or ordering the defendant to do something

Question 27

what is joint and several liability?

Answer 27

jointly - collectively
severally - individually
plaintiff may collect entire judgement from any one of the defendants, regardless of that defendant’s degree of fault

Question 28

What is the comprehensive environmental response, compensation and liability act (CERCLA)?

Answer 28

certain responsible parties are strictly liable for the cleanup of hazardous waste and are liable to the government for response costs.

Question 29

what are defenses to the CERCLA liability?

Answer 29

1. act of God 2. act of war 3. act of a third party
   third party defense - defendant must have taken precautions and used due care. may be relieved of liability if 1. acquired property after disposal occurred 2. had no actual knowledge of the contamination when it acquired property 3. had no reason to know of contamination after conducting appropriate inquiries

Question 30

What is 1st party insurance?

Answer 30

protects the policyholder in the case of damage or loss to the insured or its property.
business interruption insurance insures against lost revenues and profits resulting from an event that interferes with the normal conduct of business

Question 31

what is 3rd party insurance?

Answer 31

insures against liabilities arising out of conduct of business.
ie: product liability, premises liability, defamation, tort litigation
punitive damages are uninsurable.

Question 32

what is the difference between claims-based and occurrence based policies?

Answer 32

claims-based: insured must report the claim to the insurance carrier while the policy is still ineffect
occurrence-based: covers claims arising out of events that occurred during the policy period even if a claim is not asserted until after the policy expired