Chapter 6 - Tort Law

Question 1

tort

Answer 1

a civil wrong for which a court will determine liability

Question 2

liability

Answer 2

a legal obligation or responsibility that one party in a civil lawsuit has to another party, as determined by a court of law

Question 3

tortfeasor

Answer 3

the party who has committed a tort

Question 4

three categories of tort law

Answer 4

(1) a wrong involving the person or individual rights
(2) a wrong involving the rights to personal property
(3) a wrong involving the rights to real property

Question 5

real property

Answer 5

fixed property, principally land and buildings

Question 6

conversion (law)

Answer 6

the action of wrongfully dealing with goods in a manner inconsistent with the owner’s rights

Question 7

intentional torts

Answer 7

torts that involve a deliberate or intentional act

Question 8

negligence

Answer 8

harm that results as a foreseeable consequence of the defendant’s conduct; careless conduct

Question 9

battery (traditional legal definition)

Answer 9

intentional and nonconsensual contact; it can either cause physical harm or just be offensive or insulting

Question 10

assault (traditional legal definition)

Answer 10

conduct that causes fear that a harmful or offensive contact will occur; it does not require actual contact

Question 11

false imprisonment

Answer 11

the intentional confinement of a person against that person’s will; it includes the absence of a reasonable means of escape and a lack of legal authority on the part of the person who is confining the other person

Question 12

intentional infliction of emotional distress

Answer 12

a common law tort for intentional conduct that results in extreme emotional distress; the elements are:

(a) an intentional or reckless act (negligence)
(b) extreme and outrageous conduct that is beyond the standards of civilized society
(c) the act of the defendant must have actually caused the emotional distress
(d) emotional distress suffered by the plaintiff must be severe

Question 13

emotional distress

Answer 13

severe emotional disturbance, including such things as sleeplessness, anxiety, irritability, or the emotional inability to perform activities or go places the plaintiff was capable of prior to the harmful event

Question 14

standard of care

Answer 14

what an individual is expected to do or not do in a particular situation

Question 15

trier of fact

Answer 15

also called finder of fact; a person, or group of persons, who determines what facts are available and how relevant they are in a legal proceeding, usually a trial; sometimes used as a synonym for judge or jury

Question 16

reasonably prudent person

Answer 16

An individual who uses good judgment or common sense in handling practical matters. The actions of a person exercising common sense in a similar situation are the guide in determining whether an individual’s actions were reasonable.

Question 17

malpractice

Answer 17

misconduct of professional persons such as healthcare providers, attorneys, accountants, and others

Question 18

medical malpractice

Answer 18

misconduct by a healthcare provider against a patient

Question 19

res ipsa loquitur

Answer 19

Latin for: “the thing speaks for itself”; A doctrine in the Anglo-American common law and Roman Dutch law that says in a tort or civil lawsuit a court can infer negligence from the very nature of an accident or injury in the absence of direct evidence on how any defendant behaved

Question 20

nonfeasance

Answer 20

failure to perform an act that a person is under a duty to do and that a person of ordinary prudence would have done under the same or similar circumstances (e.g. a patient presents with signs of a fracture but the physician does not order an x-ray)

Question 21

misfeasance

Answer 21

improper performance of an act that a person might lawfully do (e.g. a surgeon inadvertently nicks a patient’s bladder while performing abdominal surgery)

Question 22

malfeasance

Answer 22

wrongdoing or legal misconduct, especially by a public official (e.g. a judge taking bribes from the prosecution)

Question 23

ordinary negligence

Answer 23

failure to exercise ordinary care

Question 24

gross negligence

Answer 24

very great or excessive negligence that implies an extreme departure from the ordinary standard of care and shows a reckless disregard for the rights of others

Question 25

ordinary care

Answer 25

also called reasonable care; it is what is expected of most people in most cases

Question 26

duty of care

Answer 26

a legal obligation which is imposed on an individual, requiring adherence to a standard of reasonable care while performing any acts that could foreseeably harm others

Question 27

breach of duty

Answer 27

a term for what occurs when a person's conduct fails to meet an applicable standard of care

Question 28

actual causation

Answer 28

a factor without which the result in question (harm) could not happen (e.g. but for the defendant's action, the result would not have happened)

Question 29

proximate causation

Answer 29

a term for what occurs when an event is sufficiently related to an injury that the courts deem the event to be the cause of that injury; it involves foreseeability on the part of the perpetrator

Question 30

but-for test

Answer 30

but for the existence of X, would Y have occurred?

Question 31

foreseeability

Answer 31

how likely it was that a person could have anticipated the potential or actual results of their actions

Question 32

perpetrator

Answer 32

a person who carries out a harmful, illegal, or immoral act

Question 33

four elements of negligence

Answer 33

duty of care, breach of duty, causation (either actual or proximate) and negligence (harm)

Question 34

nominal damages

Answer 34

a punishment limited to a recognition of wrongdoing by the defendant; these are awarded when no substantial injury is suffered or the plaintiff fails to demonstrate a valid dollar amount

Question 35

compensatory damages

Answer 35

the most common type of damages, divided into economic damages and noneconomic damages

Question 36

punitive damages

Answer 36

damages that exceed mere compensation and that are intended to punish the party and deter certain types of conduct

Question 37

economic damages

Answer 37

also called special damages; compensation for objectively verifiable monetary losses such as past and future medical expenses or loss of past and future earnings

Question 38

noneconomic damages

Answer 38

compensation for subjective, non-monetary losses such as pain, suffering, inconvenience, emotional distress, loss of society and companionship, loss of consortium, and loss of enjoyment of life

Question 39

damages

Answer 39

a remedy in the form of a monetary award to be paid to a claimant as compensation for loss or injury

Question 40

claimant

Answer 40

a person making a claim, especially in a lawsuit or for a government-sponsored benefit

Question 41

negligent infliction of emotional distress

Answer 41

a personal injury law concept that arises when one person (the defendant) acts so carelessly that he or she must compensate the injured person (the plaintiff) for resulting mental or emotional injury; it is difficult to prove

Question 42

affirmative defense

Answer 42

a defense in which the defendant introduces evidence, which, if found to be credible, will negate criminal liability or civil liability, even if it is proven that the defendant committed the alleged acts

Question 43

contributory negligence

Answer 43

A defense to a tort claim based on negligence. If it is available, the defense completely bars plaintiffs from any recovery if they contribute to their own injury through their own negligence

Question 44

comparative negligence

Answer 44

A tort rule for allocating damages when both parties are at least somewhat at fault. In a situation where both the plaintiff and the defendant were negligent, the jury allocates fault, usually as a percentage (for example, a jury might find that the plaintiff was 30% at fault and the defendant was 70% at fault). Then each pays their share of the other's damages (in the above example, the plaintiff pays 30% of defendant's damages, and defendant pays 70% of plaintiff's damages).

Question 45

pure comparative negligence

Answer 45

a tort rule where each defendant is only liable for his or her percentage of fault in a comparative negligence case

Question 46

partial comparative negligence

Answer 46

also called modified comparative negligence; a plaintiff is only allowed to recover damages if the plaintiff's negligence is "not greater than" or "not as great as" the defendant's negligence

Question 47

assumption of risk

Answer 47

an affirmative defense that bars a plaintiff from recovering on his or her negligence claim if the defendant proves that the plaintiff had actual knowledge of a danger, understood and appreciated the risks associated with the danger, and voluntarily exposed himself or herself to those risks

Question 48

sudden emergency doctrine

Answer 48

a doctrine of tort law: a person who is confronted with a sudden and unexpected perilous situation not of his or her own making and who acts as would a reasonably prudent person under the circumstances will not be held liable even if later reflection shows that the wisest course was not chosen

Question 49

unavoidable accident

Answer 49

an occurrence that could not have been foreseen or anticipated in the exercise of ordinary care and that results without the fault or negligence of either the defendant or the plaintiff

Question 50

recovery

Answer 50

the amount of money and any other right or property received by a plaintiff in a lawsuit

Question 51

Act of God

Answer 51

disasters that are not human related and not reasonably foreseeable

Question 52

rescue doctrine

Answer 52

a doctrine which states that if a tortfeasor creates a circumstance that places a victim in danger, the tortfeasor is liable for the harm caused not only to the victim but also to any person injured in an effort to rescue the victim

Question 53

charitable immunity

Answer 53

a legal doctrine which holds that a charitable organization is not liable under tort law; this immunity has been dramatically reduced since its inception in the 19th century

Question 54

corporate negligence

Answer 54

a doctrine under which a hospital is liable if it fails to uphold the proper standard of care owed a patient

Question 55

respondeat superior

Answer 55

Latin for: "let the master answer"; also called vicarious liability or secondary liability; a doctrine that holds an organization responsible for the actions of its employees, provided that those individuals were acting within the scope of their employment or within the organization's direction at the time they conducted the tortious activity in question

Question 56

tortious

Answer 56

(adjective) constituting a tort; wrongful

Question 57

agency

Answer 57

A consensual relationship created by contract or by law where one party, the principal, grants authority for another party, the agent, to act on behalf of and under the control of the principal to deal with a third party. An agency relationship is fiduciary in nature, and the actions and words of an agent exchanged with a third party bind the principal.

Question 58

fiduciary

Answer 58

A person or organization that acts on behalf of another person or persons, putting their clients' interests ahead of their own, with a duty to preserve good faith and trust. Being a fiduciary thus requires being bound both legally and ethically to act in the other's best interests.

Question 59

strict liability

Answer 59

a standard of liability under which a person is legally responsible for the consequences flowing from an activity even in the absence of fault or criminal intent on the part of the defendant

Question 60

defamation

Answer 60

a false statement about another that unjustly harms their reputation

Question 61

slander

Answer 61

the spoken form of defamation

Question 62

libel

Answer 62

the written form of defamation

Question 63

invasion of privacy

Answer 63

the tort of unjustifiably intruding upon another's right to privacy by appropriating his or her name or likeness for personal gain, by unreasonably interfering with his or her seclusion, by publicizing information about his or her private affairs that a reasonable person would find objectionable and in which there is no legitimate public interest, or by publicizing information that unreasonably places him or her in a false light

Question 64

"play hooky"

Answer 64

[slang] also hooky, hookey, or "play hookey"; a phrase which means to be away from school without permission

Question 65

breach of confidentiality

Answer 65

also called violation of confidentiality; it is the unauthorized disclosure of confidential information

Question 66

elements of the breach of confidentiality claim

Answer 66

(1) existence of duty to not disclose health information (2) a breach of the duty (3) harm to the plaintiff and a request for damages

Question 67

immunity (law)

Answer 67

also called immunity from prosecution; it is a legal status wherein an individual or entity cannot be held liable for a violation of the law, in order to facilitate societal aims that outweigh the value of imposing liability in such cases

Question 68

facilitate

Answer 68

make (an action or process) easy or easier

Question 69

Good Samaritan laws

Answer 69

laws that offer legal protection to people who give reasonable assistance to those who are, or whom they believe to be injured, ill, in peril, or otherwise incapacitated. The protection is intended to reduce bystanders' hesitation to assist, for fear of being sued or prosecuted for unintentional injury or wrongful death

Question 70

duty to rescue laws

Answer 70

a law that requires people to offer assistance to people who are in danger and holds those who fail to do so liable

Question 71

statute of limitations

Answer 71

a statutory enactment that places time limits on certain claims; its purpose is to give people a reasonable amount of time to bring a claim but also to ensure that a claim is brought when the evidence is fresh

Question 72

enactment

Answer 72

(1) the process of passing legislation (2) a process of acting something out (3) something (such as a law) that has been enacted (made into law)

Question 73

toll (law)

Answer 73

1. To stop the running of a time period, especially a time period set by a statute of limitations. 2. To bar or take away. (e.g. Tolling a right of entry takes away the right to be present on the land.) 3. Money paid in exchange for using something, especially a road or bridge.

Question 74

wrongful death claim

Answer 74

a civil claim against a person who can be held liable for a death

Question 75

statute of repose

Answer 75

a law that cuts off the right to file a claim after a specified time period has elapsed; enforced more strictly than a statute of limitations

Question 76

contract law

Answer 76

the body of civil law relating to agreements between parties, most often in the context of business or commercial relationships

Question 77

civil law

Answer 77

the system of law concerned with private relations between members of a community rather than criminal, military, or religious affairs

Question 78

criminal law

Answer 78

a system of laws concerned with punishment of individuals who commit crimes

Question 79

medical malpractice insurance

Answer 79

a type of professional liability insurance intended to cover healthcare professionals

Question 80

affidavit of merit

Answer 80

a requirement in some jurisdictions, primarily in medical malpractice claims, to have an expert file an affidavit stating the claim has merit. It is a measure enacted to deter frivolous lawsuits. When a plaintiff in a medical liability lawsuit does not file an affidavit of merit with the complaint, the case may be dismissed.

Question 81

affidavit

Answer 81

a written statement confirmed by oath or affirmation, for use as evidence in court

Question 82

dilatory

Answer 82

(adjective) tending or intended to cause delay

Question 83

sham

Answer 83

(1) a trick that deludes (2) hypocrisy (3) an ornamental covering for a pillow (4) an imitation or counterfeit purporting to be genuine (5) a dishonest person or a person who commits a fraud

Question 84

contingency fee

Answer 84

the amount of money a plaintiff's lawyer receives based on a percentage of money awarded to the plaintiff; it allows plaintiffs who cannot afford a lawyer to seek redress in court without any financial investment

Question 85

redress

Answer 85

remedy or compensation for a wrong or grievance

Question 86

collateral source payment

Answer 86

income a plaintiff in a tort case receives from a source other than the defendant (e.g. a plaintiff is injured, receives money from Medicare to pay for the injury, and then sues for the amount that they were already paid; the money Medicare gave them is the collateral source payment)

Question 87

structured settlement

Answer 87

an arrangement in which damages for a claim are paid in installments rather than in one lump sum

Question 88

annuity

Answer 88

a fixed sum of money paid to someone each year, typically for the rest of their life

Question 89

joint and several liability

Answer 89

a rule that says that any one of two or more codefendants in a case may be held liable for the entire amount of a judgment if the other defendants do not pay their portion (e.g. Defendant A will be required to pay 100%, even if A is only responsible for 60%, because Defendant B did not pay their 40%)

Question 90

proportionate liability

Answer 90

each codefendant in a case is only responsible to pay their own share of the damages in a judgment

Question 91

no-fault insurance

Answer 91

any type of insurance contract under which the insured party is indemnified by their own insurance company for losses, regardless of the source of the cause of loss

Question 92

indemnity

Answer 92

a contractual obligation of one party to compensate the loss incurred to the other party due to the acts of the indemnitor or any other party

Question 93

indemnitor

Answer 93

a person or organization (usually an insurance company) that provides indemnity

Question 94

consortium

Answer 94

(1) an association, typically of several business companies | (2) the right of association and companionship with one's husband or wife

Question 95

elapse (verb)

Answer 95

(of time) pass or go by