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CPCU 530 > Chapter 6 > Flashcards

Chapter 6 Flashcards

1
Q

What are the four elements of negligence?

A

(breached duty caused damage)

  1. a legal duty to use reasonable care,
  2. a breach of that duty–either negligent performance or failure to act,
  3. a direct chain of causation from the breach to the injury, and
  4. monetary damages to the plaintiff as a result of his injury or damage to his property.
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2
Q

What 3 ways are legal duties created?

A
  1. statute–‘hit and run’ laws require drivers in accidents to give assistance to anyone injured,
  2. contract–a surgeon’s contract to perform an operation imposes a legal duty to perform it properly, and/or
  3. common law–judicial case law requires innkeepers to provide safe premises for guests.
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3
Q

What is the required standard of care based on?

A

Reasonable person test making allowances for

  1. physical disabilities–but not insanity or intoxication and
  2. individual experience–urban surgical specialist vs. rural GP vs. me.
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4
Q

What are the four rules for determining proximate cause?

A
  1. the ‘but for’ rule–no injury ‘but for’ the defendant’s act,
  2. the substantial factor rule–if the acts of two or more parties were substantial factors in causing the plaintiff’s injury, then each is fully liable (A, speeding through a yellow light collides with B, drunk, going through a red light: Both A and B were proximate causes for pedestrian’s injury.),
  3. the foreseeability rule–if hindsight shows that the plaintiff’s injury was a reasonably probable consequence of the defendant’s act, then the defendant is liable, and
  4. the proof of defendant’s responsibility rule–the defendant was the person who caused the harm.
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5
Q

When does the burden of proof shift to the defendant?

A

1) Negligence per se: defendant violates statute. (ex. contractor violates building code, building collapses)
2) res ipsa loquitur (ex: leaving surgical instrument in patient)
a) Whatever caused injury was in defendant’s control
b) Such injuries only normally occur as a result of negligence

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6
Q

Besides proving non existence of one of the four elements of neglilgence, which other defenses does a defendant have?

A

1) Contributory negligence
2) Comparative negligence
3) Last clear chance doctrine
4) Assumption-of-risk
5) Release of liability
6) Exculpatory agreement

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7
Q

What are the four comp neg rules?

A

a. ‘pure type’: cannot recover t proportion of damages equal to proportion of negligence.
b. ‘50% type: cannot recover any damages if his proportion of negligence was greater than the other party’s.
c. ‘49% type: cannot recover any damages if his proportion of negligence was at least equal to the other party’s.
d. ‘slight versus gross: cannot recover any damages unless the plaintiff’s negligence is slight compared to the other party’s (relatively gross) negligence.

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8
Q

When is an exculpatory agreement void?

A

If they involve the public interest or exclude willful or wanton misconduct.

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9
Q

When is an exculpatory agreement upheld?

A

a. the clause is not adverse to a public interest,
b. the excused party is not under a duty to perform, or
c. the parties had equal bargaining power and the contract is conscionable.

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10
Q

What are the four areas tort immunities may apply?

A

1) Sovereign or governmental immunity
2) Public official immunity
3) Charitable immunity
4) Intra-familial immunity

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11
Q

This type of immunity is based on the axiom that ‘the king can do no wrong’, excuses the government from tort liability.

A

Sovereign or governmental immunity

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12
Q

This type of immunity provides a limited waiver of sovereign immunity for claims against the US in cases in which the US, if a private person, would be liable.

A

The Federal Tort Claims Act (FTCA)

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13
Q

What are municipal bodies immune for?

A

They are immune for their governmental functions (what only the government can do)

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14
Q

What are municipal bodies not immune for?

A

They are not immune for their proprietary functions (what could be done by private business). Ex. Norwood Light

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15
Q

What type of immunity do judges and legislators have?

A

Absolute immunity for acts done in their official capacities.

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16
Q

What type of acts do public officials other than judges and legislators have immunity for?

A

administrative or discretionary acts (which they can choose to do or not to do)

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17
Q

What type of acts do public officials other than judges and legislators NOT have immunity for?

A

ministerial acts (which they are required to do) that are done improperly.

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18
Q

This type of immunity was granted to promote family peace, preserve family funds, and avoid collusion among family litigants. It applied between spouses and between parents and their unemancipated children–but NOT others (such as siblings). Most states have abrogated this type of immunity.

A

Intra-familial immunity

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19
Q

What is a statute of limitation?

A

Bars tort suits initiated more than a stated period after the cause of action accrued. Example: Toyota with defective brakes … vehicle manufactured in 2005 but cause of action doesn’t accrue until the brakes fail and injuries result.

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20
Q

What is a statute of respose?

A

bar tort suits initiated more than a stated period–often ten to twelve years–after the date of the breach of the duty to exercise reasonable care, regardless of when the injury occurred or was discovered. The statute of repose may expire before the cause of action accrues. Ex. Vehicle was manufactured defectively in 2005 but not discovered until 2014. Suit isn’t allowable because there was a 8-year statute of repose.

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21
Q

When is the only time a landowner may be liable for natural conditions?

A

If a tree falls and causes damage (in urban areas).

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22
Q

When is a landowner may be liable for artifical conditions?

A

Interfering with another’s rights.
Not warning others of hidden dangers resulting from an artificial condition.
Attractive nuisance

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23
Q

What level of care does a landowner owe invitees?

A

Reasonable care to maintain premises, warn of hidden dangers, inspect the premises, and remedy any dangerous condition.

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24
Q

What level of care does a landowner owe licensees?

A

The owner must warn of known hidden dangers that licensees are unlikely to discover.

25
Q

What level of care does a landowner owe trespassers?

A

No duty but cannot intentionally injury, except in self-defense.

26
Q

What is the definition of battery?

A
  1. intentional
  2. hostile or offensive
  3. touching of another
  4. without his consent.
27
Q

Does battery require fear of bodily harm?

A

No. Just requires the touch. Ex. Dr. Knifehappy

28
Q

How would one defend against battery?

A

1) consent was given
2) defense of self or others
3) discipline

29
Q

What is the definition of assault?

A
  1. intentionally making someone
  2. reasonably apprehensive of
  3. imminent bodily contact.
30
Q

What do defenses for false imprisonment and arrest relate to?

A

whether the acts occurred in connection to a crime, the type of crime, and the authority of the individual.

31
Q

A private citizen can detain or restrain another person to prevent a felony or when a felony was committed in their presence but cannot do so in regard to misdemeanors except … ?

A

for breach of the peace

32
Q

What does intentional infliction of emotional distress require?

A

An intentional act that causes the plaintiff emotional distress and resulting physical injury or physical manifestation of the distress.

33
Q

What does negligent infliction of emotional distress result from?

A

A negligent act.

34
Q

What is the impact rule (regarding emotional distress)?

A

It permits recovery for emotional distress only if the injury resulted from actual physical contact.

35
Q

What is slander?

A

Oral defamation. Can be making the original statement or repeating it.

36
Q

What is libel?

A

Written defamation.

37
Q

When is malice required when proving libel?

A

When the defendant is the media making a statement about a public figure.

38
Q

What are four defenses to libel and slander?

A

1) truth
2) retraction
3) absolute privilege
4) qualified privilege

39
Q

What are 6 types of invasion of privacy?

A

1) intrusion on solitude
2) physical invasion
3) public disclosure of private facts
4) publicity placing plaintiff in false light
5) unauthorized release of confidential information
6) appropriation of the plaintiffs name or likeness for the defendant’s profit.

40
Q

What are the 7 defenses for invasion of privacy?

A

1) plaintiff’s consent
2) plaintiff’s previous publication of the information
3) plaintiff is a public person or facts are public knowledge
4) newsworthy event
5) publication would not offend a person of ‘ordinary sensibilities’.
6) judicial proceedings have disclosed the facts
7) public interest (public’s right to know)

41
Q

What are the elements of fraud?

A

1) reasonable reliance on a
2) false representation of
3) a material fact
4) knowingly made
5) with intent to deceive or influence
6) resulting detriment

42
Q

What is an injurious falsehood?

A

Disparaging statement that damages intangible property rights

43
Q

How does an injurious falsehood differ from defamation?

A

Injurious falsehood requires plaintiff to prove statement’s falsehood and actual damages.

44
Q

What are the essential elements of injurious falsehood?

A 
Defendants statement
Made with intent to cause physical injury 
Publicized to a third party 
With malice and 
Resulted damage
45
Q

What does malicious interference with prospective economic advantage require?

A

Fraud, intimidation, or spreading false reports about another’s honesty or solvency.

46
Q

What are the defenses to malicious interference with prospective economic advantage ?

A

Lack of malice (no intentional wrongful or justification/excuse

47
Q

Intentional imitation that fools the public into buying one party’s goods in the mistaken belief they are another’s product.

A

Unfair competition

48
Q

What are the three types of interference with family relationships?

A

1) injuring spouse
2) persuade spouse to leave
3) causes loss of consortium or services

49
Q

Why has to be proven to prove malicious prosecution?

A

1) initiation of a suit (or hearing etc)
2) termination in the plaintiff’s favor
3) lack of probable cause
4) malice

50
Q

What are the defenses got misuse of legal process?

A

1) plaintiff can’t prove all 4 elements
2) defendant acted on advice of counsel
3) defendant had probable cause
4) plaintiff was guilty

51
Q

This involves use of criminal process for a use other than which it was intended.

A

Malicious abuse of process.

52
Q

What are the two essential elements of malicious abuse of process?

A

1) perverted use of process

2) ulterior motive

53
Q

improper institution (initiation) of criminal proceedings, with malice, and without probable cause (grounds that would lead a reasonable person to believe the plaintiff committed the act that is the basis of the proceedings).

A

Malicious prosecution

54
Q

What does a plaintiff have to prove to prove malicious prosecution?

A
  1. initiation of a suit–either in a court of law or a quasi-judicial proceeding, such as a licenserevocation hearing;
  2. termination in the plaintiff’s favor–acquittal, grand jury’s refusal to indict, quashing of an indictment, or voluntary withdrawal;
  3. lack of probable cause–ie, no factual basis to support a reasonable belief that the plaintiff committed the act; and
  4. malice.
55
Q

What are the defenses to misuse of legal process?

A
  1. the plaintiff’s inability to prove all four preceding elements,
  2. the defendant acted on the advice of counsel,
  3. the defendant had probable cause, and
  4. the plaintiff was guilty.
56
Q

This involves use of civil or criminal process for a use other than which it was intended (eg, instituting a criminal case to get a person to pay a debt).

A

malicious abuse of process

57
Q

What are the two elements of malicious abuse of process?

A
  1. a perverted use of process and

2. the existence of an ulterior motive.

58
Q

Are actual damages and intent necessary to file suit for trespass?

A

No

59
Q

the unreasonable and unlawful interference with another’s right to quiet enjoyment of his real property. The interference must be substantial.

A

private nuisance

CPCU 530 (10 decks)

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