Chapter 11 - Operational Liabilities and Insurance Flashcards
What is duty?
a person required to act reasonably under the circumstances to avoid harming the other person
What is negligence and its requirements?
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
What is the duty of the landowner or tenant?
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
What is the duty of employer to 3rd parties?
an employer is liable for any torts committed by employees acting within the scope of their employment
What is the difference between contributory negligence and comparative negligence?
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
What is an intentional tort?
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
what is battery?
harmful or offensive contact with the plaintiff’s body or something touching it
what is false imprisonment?
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
what is intentional infliction of emotional distress?
foreseeable acts that are outrageous or intolerable
- defendant’s conduct was outrageous
- defendant intended to cause emotional distress
- defendant’s actions caused severe emotional suffering
what is defamation
the communication to a 3rd party of an untrue statement of fact that injures the plaintiff’s reputation.
libel - written
slander - spoken
what is invasion of privacy?
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
What is trespass to land?
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
what is nuisance
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
what is coversion
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
what is trespass to personal property?
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
what is fraudulent misrepresentation?
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
what is interference with contractual relations?
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
what is interference with prospective business advantage?
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
what is unfair competition?
anticompetitive behavior
what is strict liability?
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
what is respondeat superior?
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
what is scope of employment?
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.
what is the difference between frolic and detour? Which one is an employer held responsible for?
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
what is the aided-in-the-agency-relation doctrine?
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
What are actual damages (compensatory damages)?
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
what are punitive damages (exemplary damages)?
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
what is equitable relief?
what is an injunction?
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
what is joint and several liability?
jointly - collectively
severally - individually
plaintiff may collect entire judgement from any one of the defendants, regardless of that defendant’s degree of fault
What is the comprehensive environmental response, compensation and liability act (CERCLA)?
certain responsible parties are strictly liable for the cleanup of hazardous waste and are liable to the government for response costs.
what are defenses to the CERCLA liability?
- 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
What is 1st party insurance?
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
what is 3rd party insurance?
insures against liabilities arising out of conduct of business.
ie: product liability, premises liability, defamation, tort litigation
punitive damages are uninsurable.
what is the difference between claims-based and occurrence based policies?
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
