CPCU 530 Ch. 6 Flashcards
A wrongful act or an omission, other than a crime or a breach of contract, that invades a legally protected right
Tort
A person or an organization that has committed a tort
Tortfeaser
The person or entity who files a lawsuit and is named as a party
Plaintiff
The party in a lawsuit against whom a complaint is filed
Defendant
An obligation imposed by law for the preservation of the legally protected rights of others
Legal duty
A written law passed by a legislative body at either the federal or state level
Statue
Laws that develop out of court decisions in particular cases and establish precedents for future cases
Common law (case law)
A standard for the degree of care exercised in a situation that is measured by what a reasonably cautious person would not do under similar circumstances
Reasonable person test
Airline, railroads, or trucking companies that furnish transportation to any member of the public seeking their offered services
Common carries
A cause that, in a natural and continuous sequence unbroken by any new and independent cause, produces an event and without which the event would not have happened
Proximate cause
A rule used to determine whether a defendant’s act was the proximate cause of a plaintiff’s harm based on the determination that the plaintiff’s harm based on the determination that the plaintiff’s harm could not have occurred but for the defendant’s act
‘But for’ rule
A rule used to determine proximate cause of a loss by determining which of the acts are significant factors in causing the harm
Substantial factor rule
A rule used to determine proximate cause when a plaintiff’s harm is the natural and probable consequence of the defendant’s wrongful act and when an ordinarily reasonable person would have foreseen the harm
Foresee-ability rule
An act, independent of an original act and not readily foreseeable, that breaks the chain of causation and sets a new chain of events in motion that causes harm
Intervening act
A legal doctrine stating that if a loss can be attributed to two or more independent concurrent causes - one or more excluded by the policy and one covered - then the policy covers the loss
Concurrent causation (concurrent causation doctrine)
An act that is considered inherently negligent because of a violation of a law or an ordinance
Negligence per se
A legal doctrine that provides that provides that, in some circumstances, negligence is inferred simply by an accident occurring
Res ipsa loquitur
The control of only one person or entity; in tort law the control by the defendant alone of an instrument that caused harm
Exclusive control
A common-law principle that requires both parties to a loss to share the financial burden of the bodily injury or property damage according to their respective degrees of fault
Comparative negligence
A common-law principle that prevents a person who has been harmed from recovering damages if that person’s own negligence contributed in any way to the harm
Contributory Negligence
A defense of negligence that holds the party who has the last clear chance to avoid harm and fails to do so solely responsible for the harm
Last clear chance doctrine
A defense to negligence that bars a plaintiff’s recovery for harm caused by the defendant’s negligence if the plaintiff voluntarily incurred the risk of harm
Assumption-of-risk defense
A comparative negligence rule that permits a plaintiff to recover damages discounted by his or her own percentage of negligence, as long as the plaintiff is not 100 percent at fault
Pure comparative negligence rule
A comparative negligence rule that permits a plaintiff to recover reduced damages so long as the plaintiff’s negligence is not greater than 50 percent of the total negligence leading to harm
50 percent comparative negligence rule
A comparative negligence rule that permits a plaintiff to recover reduced damages so long as the plaintiff’s negligence is less than the other party’s negligence
49 percent comparative negligence rule
A rule of comparative negligence that permits the plaintiff to recover only when the plaintiff’s negligence is slight in comparison with the gross negligence of the other party
Slight versus gross rule
A legally binding contract between the parties to a dispute that embodies their agreement, obligates each to fulfill the agreement, and releases both parties from further obligation to one another that relates to the dispute
Release
An act or omission that completely disregards the safety or rights of others and is exaggerated or aggravated in nature
Gross negligence
A defense that, in certain instances, shields organizations or persons from liability
Immunity
A defense to negligence that protects the government against lawsuits for tort without its consent
Sovereign Immunity (governmental immunity)
A local government’s act that is not considered part of the business of government and that could be performed by a private enterprise
Proprietary function
An act that can be performed only by the government
Governmental function
An act, decision, a recommendation, or an omission made by a government official or agency within the authority of that office or agency
Administrative act (discretionary act)
An act that is directed by law or other authority and that requires no individual judgement or discretion about whether or how to perform it
Ministerial act
A defense that shields charitable organizations from liability
Charitable immunity
A defense to negligence that grants immunity to one spouse from the other spouse’s lawsuit for torts committed before, during, and after the marriage
Inter spousal immunity
A defense to negligence that grants immunity to parents from their children’s lawsuits for torts
Parent-child immunity
A statue that requires a plaintiff to file a lawsuit within a specific time period after the cause of action has accrued, which is often when the injury occurred or was discovered
Statue of limitations
A statue that requires a plaintiff to file a lawsuit within a specific time period after a wrongful act by a defendant, such as improper construction of a building, regardless of when the injury occurred or was discovered
Status of repose
A person who intentionally enters onto the property of another without permission or any legal right to do so
Trespasser
Anything interfering with another person’s use or enjoyment of property
Nuisance
A doctrine treating a child as a license, or guest, rather than a trespasser on land containing an artificial and harmful condition that is certain to attract children
Attractive nuisance doctrine
A person who has permission to enter onto another’s property for his or her own purposes
Licensee
Person who enters a premises for the financial benefit of the owner or occupant
Invitee
The oral or written permission to enter onto another’s land to do a certain act, but not granting of any interest in the land itself
Express license
The permission to enter onto another’s land arising out of a relationship between the party who enters the land and the owner
Implied license
A person invited to enter onto premises as a member of the general public for a purpose for which the land is open to the public
Public invitee
An individual who has express or implied permission to be on the premises of another for the purpose of doing business
Business invitee
A tort committed by a person who foresees (or should be able to foresee) that his or her act will harm another person
Intentional tort
Intentional harmful or offensive physical contact with another person without legal justification
Battery
The threat of force against another person that creates a well-founded fear of imminent harmful or offensive contact
Assault
The restraint or confinement of a person without consent or legal authority
False imprisonment
The seizure or forcible restraint of a person without legal authority
False arrest
An intentional act causing mental anguish that results in physical injury
Intentional infliction of emotional distress
An unintentional act causing mental anguish that results in physical injury
Negligent infliction of emotional distress
A false written or oral statement that harms another’s reputation
Defamation
A defamatory statement expressed by speech
Slander
A defamatory statement expressed in wirting
Libel
In tort law, the communication of a defamatory statement to another person
Publication
An intentional false and misleading statement about a characteristic of a plaintiff’s product, resulting in financial damage to the plaintiff
Product disparagement, or trade libel
An encroachment on another person’s right to be left alone
Invasion of privacy
A breach of duty of good faith and fair dealing
Bad faith (outrage)
A group of torts involving disparagement that causes harm to any kind of legally protected intangible properties
Injurious falsehood
A tort involving intentional interference with another’s business, or with another’s expected economic advantage
Malicious interference with prospective economic advantage
The intent to do a wrongful act without justification or excuse
Malice
Use of wrongful or fraudulent practices by a business to gain an unfair advantage over competitors
Unfair competition
An unjustified intentional act that interferes with another’s valid or expected business relationship
Interference with employment
A lawsuit by or on behalf of a child with birth defects, alleging that, but for the doctor-defendant’s negligent advice, the parents would not have conceived the child or would have terminated the pregnancy so as to avoid the pain and suffering resulting from the child’s defects
Wrongful-life action
A lawsuit by a parent for damages resulting from a pregnancy following a failed sterilization
Wrongful-pregnancy action (wrongful conception action)
The improper institution of legal proceedings against another
Malicious prosecution
The grounds that would lead a reasonable person to believe that the plaintiff committed the act for which the defendant is suing
Probable cause
The use of civil or criminal procedures for a purpose for which they were not designed
Malicious abuse or process
Unauthorized entry to an other person’s real property or forcible interference with another person’s personal property
Trespass
All tangible or intangible property that is not real property
Personal property
An unreasonable and unlawful interference with another’s use or enjoyment of his or her real property
Private nuisance
An act, occupation, or structure that affects the public at large or a substantial segment of the public, interfering with public enjoyment or rights regarding property
Public nuisance
Purposefully interference with another party’s enjoyment of his or her property
Intentional nuisance
An act, occupation, or structure that is a nuisance at all times and under any conditions, regardless of location of surroundings
Nuisance per se
The unlawful exercise of control over another person’s personal property to the detriment of the owner
Conversion
Liability imposed by a court or by a statue in the absence of fault when harm results from activities or conditions that are extremely dangerous, unnatural, ultra hazardous, extraordinary, abnormal, or inappropriate
Strict liability (absolute liability)
An activity that is inherently dangerous; if harm results, the performer may be held strictly liabile
Ultrahazardous activity (abnormally dangerous activity)
A civil wrong arising from exposure to toxic substance
Toxic tort
The body of law that deals with the environment’s maintenance and protection
Environmental law
A manufacturer’s seller’s liability for harm suffered by a buyer, user, or bystander as a result of a product that has a dangerous manufacturing defect or design defect or that is not accompanied by a warning of an inherent hidden danger
Products liability
An explicit statement about a product by the seller that the buyer or other user may rely on and that provides a remedy in the event the product does not perform as claimed
Express warranty
An obligation that the courts impose on a seller to warrant certain facts about a product even though not expressly stated by the seller
Implied warranty
A plaintiff’s voluntary use of defective product with knowledge of the potential danger resulting from the defect
Active negligence
A defense to negligence that bars a plaintiff’s recovery for harm caused by the defendant’s negligence if the plaintiff voluntarily incurred the risk of harm
Assumption of risk
A plaintiff’s failure to discover a product defect or to guard against a possible defect
Passive negligence
A form of compensatory damages that awards a sum of money for specific, identifiable expenses associated with the injured person’s loss, such as medical expense or lost wages
Special damages
The compensatory damages to compensate a plaintiff for any loss of income directly related to a tort
Loss of wages and earning
A monetary award to compensate a victim for losses, such as pain and suffering, that does not involve a specific, measurable expense
General damages
Compensable injuries that are difficult to measure such as physical and mental distress and inconveniences associated with a physical injury
Pain and suffering
A highly unpleasant mental reaction resulting from another person’s conduct, for which a court can award damages
Emotional distress
A legal cause of action that exists for the survivor of the deceased
Wrongful death action
A statue that preserves the right of a person’s estate to recover damages that person sustained between the time of the injury and death
Survival statue
Two or more parties who act together to commit a tort or who commit separate torts that combine to cause an injury or loss
Joint tortfeasors
The right of a tortfeasor who has paid more than his or her proportionate share of the damages to collect from other tortfeasors responsible for the same tort
Contribution
An expanded liability concept requiring each member of an industry responsible for manufacturing a harmful or defective product to share liability, when a manufacturer at fault can not be identified
Enterprise liability (industry-wide liability)
An expanded liability concept that shifts the burden of proof to each of several defendants in a tort case when there is uncertainty regarding which defendant’s action was the proximate cause of the harm
Alternative liability
An expanded liability concept that applies when a product that has harmed a consumer cannot be traced to a single manufacturer; all manufacturers responsible for substantial share of the market are named in the lawsuit and are liable for their proportional share of the judgement
Market share liability
An expanded liability concept that applies when all defendants acted together or cooperatively
Concert of action
An expanded liability concept that applies when two or more parties worked together to commit an unlawful act
Conspiracy
A business association formed by an express or implied agreement of two or more business persons (including cooperation) to accomplish a particular project, such as the construction of a building
Joint venture
A legal responsibility that occurs when one party is held liable for the actions of a subordinate or an associate because of a relationship between two parties
Vicarious liability
The act of leaving a dangerous article with a person who the lender knows, or should know, is likely to use it in an unreasonable risky manner
Negligent entrustment
A parent’s failure to exercise reasonable control and supervision over his or her child to prevent harm from others
Negligent supervision
A liability concept that holds the owner of an automobile kept from the family’s use vicariously liable for damages incurred by a family member while using an automobile
Family purpose doctrine
A statue providing that a person will not be liable for damages as a result of rendering aid to an injured person, without compensation, at the scene of the accident
Good Samaritan law
A lawsuit in which one person or small group of people represent the interests of an entire class of people in litigation
Class action (class action lawsuit)
A class action suit based on tort law rather than on contract law
Mass tort litiagation
