Exam 1 Flashcards
Study
What are 3 places to look for Cause of Action?
Statutes, Court Decisions , Constitutions
What are 3 ways to file civilly in Fed Court?
- Diversity Cases - People from diff states AND $75K in controversy
- Federal Question Case
- Required by Law to be heard federally - Bankruptcy, Maritime, IRS, Mail
What is the Policy Reason behind tort law?
To protect the public against excessive risk - fairness, compensation and prevention.
What is the one and only Unintentional Tort?
Negligence
What are the 4 elements of Negligence?
DBCD -
Duty - Due Care reasonable under circumstances
Breach - Of Duty
Causation - Prox. cause of injury (foreseeable)
“but for”
Damages - $$
Injury must have occurred to victim - compensation given for med bills, pain & suffering, lost wages, lost enjoyment of life, destruction of property or land
What is a tort feasor?
The wrongdoer in a tort
What are the 6 Intentional Torts?
ABFIDI Assault Battery False Imprisonment Int'l Inflict of Emotional Distress Defamation Invasion of Privacy
Define Assault & Battery
Assault - Intentional Immediate threat putting someone in fear of harm - No physical touch or injury needed
Battery - Physical unwanted offensive touching or causing bodily injury - one to one contact not necessary w/ this tort either.
Name two types of Defamation
Slander - verbal lie
Libel - written lie
What are the 4 rights under Invasion of Privacy?
- The right to be left alone
- The excl. right to name & image
- Right to not be placed in a false light in pub eye
- Right against unreasonable publicity of private facts.
What are the 3 DEFENSES to Negiligence?
- Comparative - Biggest Defense - Plaintiff can still recover even if partially negligent too
- Contributory - Only 5 states have this - If plaintiff is any part responsible or negligent they recover nothing.
- Assumption of Risk - The person assumes the risk of activity or event.
What are the Major Torts against property?
Trespass to Land Trespass to Chattels Conversion Fraud Nuisance
What are the 8 Defenses to Intentional Torts?
- Consent - of injured - becomes privileged
- Self Defense - protect self from immed harm
- Necessity - emergency reasons
- Authority Law - shop owner can detain shopliftr
- Vicarious Liability - Employer takes resp.
- Indemnity - Insurance coverage
- Contributory - Injured caused harm as well
- Workers Comp - damage covered automatically no litigation needed
Under the Rules of Civil Procedure what are the first two rules?
- Must be REAL PARTY in INTEREST - Person suing must be the injured party or parent of minor injured.
- CAPACITY - Must be 18 for civil lit, Mentally competent, Cannot sue deceased.
What is an exception to rule 1 (Real Party)?
The interest can be assigned to an Assignee (mostly in contracts) i.e. selling of debt or interest is Subrogated to Subrogee - i.e. Insurance
What is Joinder of Parties?
Parties who have the same interest in the same set of facts MUST join together in lawsuits (Mandatory). Legal rights arise from same event. Rules 19 & 20 of Fed Rules of civ proc
What is Permissive Joinder?
Cast a wide net - Gather as many people involved with the cause of action - OR put all causes of action in one.
What is Jurisdiction and what are the 2 requirements?
The power of the court to hear certain cases
Must have Subject Matter Jurisdiction (Fed or State) & Personal Jurisdiction
What is the state the lawsuit is filed in called?
The Forum State
What is a long arm statute?
State laws that enable the court to extend jurisdiction over their geo borders to make non residents subject to suit within the state.
