Exam 2 Flashcards
Administrative Agencies
Congressional power delegated to specialists in the related field
Admin agency structure
Executive(Administrator)
Quasi-Legislative(Regulation Creation)
Quasi-Judicial (Regulatory Hearings)
Administrator
Appointed by the president
Administrative Hearings
Heard by:
-Hearing Officer
-Administrative Law Judge
-Trial Examiner
Result is not binding on the Agency
Ways to Appeal Decisions of Administrative Agencies
1) On the Basis of Fraud
2) The Agency abused their discretion
3) The decision was made in bad faith
4) No substantial evidence supports the decision
5) The Agency engaged in intentional wrong doing
6) Decision was arbitrary or capricious
7) Decision was based on malice, bribery, or prejudice
8) Unreasonableness
9) Unconstitutionality (Enabling Act or Regulation itself)
Reasons you won’t win an appeal against an admin agency
1-7 are basically impossible to prove. 8: the courts defer to the agency in their area of ‘expertise’. Only on constitutional grounds do you have a chance of winning.
Types of Torts
1) Intentional Torts
2) Negligence
3) Strict Liability
Intentional Torts to Person
1) Assault
2) Battery
3) False Imprisonment
Assault
Intentionally placing someone in fear or apprehension of immediate physical harm.
-Not related to the actual physical injury
-Must have the capacity to carry out the act
Battery
An intentional touching that results in injury
-Doesn’t need to be violent
False Imprisionment
Intentionally detaining someone against their will
Intentional Torts to Property
1) Trespass to Land
2) Conversion
3) Trespass to personal property
4) Waste
Trespass to Land
Voluntary unpermitted intrusion onto someone’s land
-either a person or object
-“land” extends above and below the surface.
-Easement is a defense to trespass.
-‘Voluntary’ refers to any act that causes intrusion, regardless of intent
Conversion
Intentionally depriving someone of their personal property
-Personal Property: Anything movable, either tangible or intangible. Anything that isn’t Real Property.
Relation of Crimes to Torts
Crimes are more sever than their associated Torts. In order to commit Larceny, one would have committed conversion in the process.
Remedy for Conversion
Damages = value of item at the time of the deprivation. cannot receive an equitable remedy for conversion.
Courts of Equity
Standard: Clear and Convincing Evidence (~75%)
Jury: No Jury
Available Remedies: The Equitable Remedies
Equitable Remedies
1) Injunction: Order to stop doing something
2) Recession
3) Specific Performance
4) Mandamus: Order to do something (mandate)
Trespass to Personal Property
“Unpermitted intrusion onto personal property”
-Measure of damages: Loss of use for the time after the loss of use has been discovered.
-Can receive both loss of use and an injunction.
Waste
Intentionally Injuring someone’s future interest in Real Property
-Direct ownership of a plot: owned in fee simple
-Life Estate (The poor mans’ trust): property goes from A to B. B can use the property for life. At B’s death, property passes to C (remainder man) as per A’s will. C can sue B for waste for destroying the property value during the tome in which they are in Life Estate,
Intentional Torts to Economic Relations
1) Interference
2) Unfair Competition
3) Disparagement
Interference
Interfering with the operations of a business
Unfair Competition
Usually related to the theft of trade secrets
Disparagement
Intentionally discrediting the quality of someone’s product or their title to property.
Other Intentional Torts
1) Intentional infliction of mental or emotional distress
2) Fraud and Deceit
3) Invasion of Privacy
4) Abuse of Process
5) Malicious Prosecution
Intentional infliction of mental or emotional distress
1) Intentional infliction of mental or emotional distress
2) Reckless infliction of mental or emotional distress
3) Negligent infliction of mental or emotional distress
Fraud and Deceit
To be fraud there must be:
1) Misrepresentation/ act of concealment
2) of a material fact
3) Knowledge or reckless indifference to the truth (on the part of the fraudster)
4) Intent to deceive
1-4 make you a liar. TO be fraud you also need:
5) Reliance: the lie is believable and the other party made a decision based on the lie
6) Injury
Abuse of Process
Malicious use of the CIVIL justice system
Malicious Prosecution
Malicious use of the CRIMINAL justice system
Defenses to Intentional Torts
1) Lack of Intent (Except reckless/ negligent emotional injury and trespass to land)
2) Consent (express or implied)
3) Privilege
Negligence
Always Unintentional, has no overlap with the intentional torts. Measured by the standard of the “Reasonable Man”
Elements of Negligence
1) A duty of care exists
2) the duty of care is violated
3) The breach of the duty of care is the proximate cause of
4) Substantial Injury
Proximate Cause
Tested by foreseeability:
- Something is foreseeable if it is possible for it to happen under the given circumstance. “The event in question could happen”.
-Where so much of our legal paranoia comes from: any act has far reaching ripples.
Breaking the Chain of Causation
An event breaks the chain of causation if it is:
1) Intervening (between the act in question and the injury)
2) Unforeseeable
3) Independent (not caused by the original event)
Defenses to Negligence
1) Contributory Negligence (if the plaintiff was in any way negligent themselves, no damages)
2) Comparative Negligence (Plaintiff receives damages equal to 100 - their own negligence % of the award, up to 50% their own negligence, where they get nothing)
3) Assumption of the Risk (Plaintiff knew of the specific danger)
4) Unavoidable Accident (Defendant not at fault, Must only act reasonably)
5) Doctrine of Last Clear Change (Plaintiff’s defense against contributory Negligence: ‘Who had the last clear chance to avoid the injury in question?’)
Strict Liability
No fault assigned; liable anyway.
Things listed here are not the name of torts, just examples of Strict Liability.
SL: Cases involving Animals
Owner is liable for damaged caused by their animals, regardless of precautions taken to stop them.
SL: Extra hazardous activities or things
The blasting company is always liable for damage to surrounding community caused by blasting.
Whether something is “Extra Hazardous” is a question of fact.
Attractive Nuisance: Something dangerous that attracts children: (Pool etc). Regardless of precautions taken, if the child is hurt because of an attractive nuisance, the owner is liable.
Nuisance
Name of both the Tort and Crime
Tort of Nuisance: Interfering with someone else’s rights.
- Either public or private.
Defamation
1) false or creates false impression
2) Published
3) Causes Injury to reputation.
Doesn’t need to be intentional to be a Tort.
Worker’s Compensation
Must be paid out to employees if they are injured on the job.
-What is on the job is a question of fact.
-Significant reason people want you as an Independent contractor rather than an employee.
Employer’s Defenses to Negligence (What will become Worker’s Comp)
1) Contributory Negligence
2) Assumption of the Risk
3) Fellow Servant Rule: If they were injured by an fellow employee, they can’t sue the employer, must sue the coworker.
Defenses done away with under Worker’s Comp rules. WC now Strict Liability.
Common Carriers / Inn Keepers
People that have your stuff have to get your stuff back to you.
Products Liability
Goods: Tangible Personal Property
Sale: Transfer of Title to goods
Title: Ownership
Products Liability exists when:
1) A defective product is sold where
2) The defect originated with the manufacturer and
3) The defect caused the injury.
Vicarious Liability
Doctrine of Respondeat Superior:
-If the employee injures someone in the course of their job, the employer may be sued.
-If an agent causes injury in the course of their job, the principal can be held liable
Principal - Agent Relationship
Principal directs the agent to make business transaction on their behalf.
Dram Shop Act
Bars have to cut people off when they are at their limit (can be impacted by previous drinking) or they can be held liable.
-Has been extended to hosts of private parties.
Defenses to Strict Liability
Assumption of the Risk (If plaintiff knows of the danger, and does the thing anyway, resulting in injury, the defendant is not liable)
Defamation Only:
1) Consent
2) Privilege
(legislative debate)
