Exam 2

Question 1

Administrative Agencies

Answer 1

Congressional power delegated to specialists in the related field

Question 2

Admin agency structure

Answer 2

Executive(Administrator)
Quasi-Legislative(Regulation Creation)
Quasi-Judicial (Regulatory Hearings)

Question 3

Administrator

Answer 3

Appointed by the president

Question 4

Administrative Hearings

Answer 4

Heard by:
-Hearing Officer
-Administrative Law Judge
-Trial Examiner

Result is not binding on the Agency

Question 5

Ways to Appeal Decisions of Administrative Agencies

Answer 5

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)

Question 6

Reasons you won’t win an appeal against an admin agency

Answer 6

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.

Question 7

Types of Torts

Answer 7

1) Intentional Torts
2) Negligence
3) Strict Liability

Question 8

Intentional Torts to Person

Answer 8

1) Assault
2) Battery
3) False Imprisonment

Question 9

Assault

Answer 9

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

Question 10

Battery

Answer 10

An intentional touching that results in injury
-Doesn’t need to be violent

Question 11

False Imprisionment

Answer 11

Intentionally detaining someone against their will

Question 12

Intentional Torts to Property

Answer 12

1) Trespass to Land
2) Conversion
3) Trespass to personal property
4) Waste

Question 13

Trespass to Land

Answer 13

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

Question 14

Conversion

Answer 14

Intentionally depriving someone of their personal property
-Personal Property: Anything movable, either tangible or intangible. Anything that isn’t Real Property.

Question 15

Relation of Crimes to Torts

Answer 15

Crimes are more sever than their associated Torts. In order to commit Larceny, one would have committed conversion in the process.

Question 16

Remedy for Conversion

Answer 16

Damages = value of item at the time of the deprivation. cannot receive an equitable remedy for conversion.

Question 17

Courts of Equity

Answer 17

Standard: Clear and Convincing Evidence (~75%)
Jury: No Jury
Available Remedies: The Equitable Remedies

Question 18

Equitable Remedies

Answer 18

1) Injunction: Order to stop doing something
2) Recession
3) Specific Performance
4) Mandamus: Order to do something (mandate)

Question 19

Trespass to Personal Property

Answer 19

“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.

Question 20

Waste

Answer 20

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,

Question 21

Intentional Torts to Economic Relations

Answer 21

1) Interference
2) Unfair Competition
3) Disparagement

Question 22

Interference

Answer 22

Interfering with the operations of a business

Question 23

Unfair Competition

Answer 23

Usually related to the theft of trade secrets

Question 24

Disparagement

Answer 24

Intentionally discrediting the quality of someone’s product or their title to property.

Question 25

Other Intentional Torts

Answer 25

1) Intentional infliction of mental or emotional distress
2) Fraud and Deceit
3) Invasion of Privacy
4) Abuse of Process
5) Malicious Prosecution

Question 26

Intentional infliction of mental or emotional distress

Answer 26

1) Intentional infliction of mental or emotional distress
2) Reckless infliction of mental or emotional distress
3) Negligent infliction of mental or emotional distress

Question 27

Fraud and Deceit

Answer 27

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

Question 28

Abuse of Process

Answer 28

Malicious use of the CIVIL justice system

Question 29

Malicious Prosecution

Answer 29

Malicious use of the CRIMINAL justice system

Question 30

Defenses to Intentional Torts

Answer 30

1) Lack of Intent (Except reckless/ negligent emotional injury and trespass to land)
2) Consent (express or implied)
3) Privilege

Question 31

Negligence

Answer 31

Always Unintentional, has no overlap with the intentional torts. Measured by the standard of the “Reasonable Man”

Question 32

Elements of Negligence

Answer 32

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

Question 33

Proximate Cause

Answer 33

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.

Question 34

Breaking the Chain of Causation

Answer 34

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)

Question 35

Defenses to Negligence

Answer 35

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?’)

Question 36

Strict Liability

Answer 36

No fault assigned; liable anyway.

Things listed here are not the name of torts, just examples of Strict Liability.

Question 37

SL: Cases involving Animals

Answer 37

Owner is liable for damaged caused by their animals, regardless of precautions taken to stop them.

Question 38

SL: Extra hazardous activities or things

Answer 38

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.

Question 39

Nuisance

Answer 39

Name of both the Tort and Crime
Tort of Nuisance: Interfering with someone else’s rights.
- Either public or private.

Question 40

Defamation

Answer 40

1) false or creates false impression
2) Published
3) Causes Injury to reputation.
Doesn’t need to be intentional to be a Tort.

Question 41

Worker’s Compensation

Answer 41

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.

Question 42

Employer’s Defenses to Negligence (What will become Worker’s Comp)

Answer 42

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.

Question 43

Common Carriers / Inn Keepers

Answer 43

People that have your stuff have to get your stuff back to you.

Question 44

Products Liability

Answer 44

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.

Question 45

Vicarious Liability

Answer 45

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

Question 46

Principal - Agent Relationship

Answer 46

Principal directs the agent to make business transaction on their behalf.

Question 47

Dram Shop Act

Answer 47

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.

Question 48

Defenses to Strict Liability

Answer 48

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)