Exam 2 Flashcards
All forms of civil liability are either _____ or ______
voluntary assumed, by contract
or
involuntarily assumed, as imposed by law (tort)
Tort Law
Gives a person relief from civil wrongs or injuries to their persons, property, and economic interests.
3 principle objectives of tort law
- to compensate persons who sustain harm or loss resulting from another’s conduct
- to place the cost of that compensation only on those parties who should bear it
- to prevent future harms and losses, thus the law of torts reallocates losses caused by human misconduct
tort is committed when…
- a duty owned by one person to another
- is breached
- proximately causing
- injury or damage to the owner of a legally protected interest
Purpose of a tort law
is to compensate the injured party, not to punish the wrongdoer
Tort Law is primarily….
Common Law
Intent
desire to cause the consequences of an act or knowledge that the consequences are substantially certain to result from the act
Does intent require a evil motive?
No
Examples of intent…
- If Mark fires a gun in the middle of the Mojave Desert, he intends to fire the gun, but when the bullet hits Steven, who is in the desert without Mark’s knowledge, Mark does not intend that result.
- Mark throws a bomb into Steven’s office in order to kill Steven. Mark knows that Carol is in Steven’s office and that the bomb is substantially certain to injure Carol, although Mark has no desire to harm her.
Mark is, nonetheless, liable to Carol for any injury caused Carol. Mark’s intent to injure Steven is transferred to Carol.
Infants are held liable for…
their intentional torts
Even if a defendant has intentionally invaded the interest of the plaintiff, the defendant will __________ if the conduct was privileged
not be liable
Examples of privilege…
self defense, defense of property, and defense of others
Battery
intentional infliction of harmful or offensive bodily contact
Assault
intentional conduct by one person directed at another that places the other in FEAR of bodily harm
Battery is more ____ while assault is more ____
physical; mental
false imprisonment
act of intentionally confining a person against her will within fixed boundaries if the person is conscious of the confinement or harmed by it
infliction of emotional stress
when a person is liable by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another
Recklessness
is a conduct that evidences a conscious disregard of or an indifference to the consequences of the act committed
Defamation
is a false communication that injuries a person’s reputation by disgracing them and diminishing the respect in which they held
Element of defamation…
- a false and defamatory statement concerning another
- an unprivileged publication to a third party
- depending on the status of the defendant, negligence or recklessness on her part in knowing or failing to ascertain the falsity of the statement
- in some cases, proof of special harm caused by the publication
Defamatory communication that is handwritten is designated as
libel
Defamatory communication that is oral is designated as
slander
the defense of privilege is…
immunity from tort liability granted when the defendant’s conduct furthers a societal interest of greater importance than the injury inflicted upon the plaintiff
What are the three kinds of privilege
absolute, conditional/qualified, and constitutional
Absolute privilege
protects the defendant regardless of his motive or intent, has been confined to those few situations in which public policy clearly favors complete freedom of speech
Conditional/qualified privilege
A person has a conditional privilege to publish defamatory matter to protect her own legitimate interest or, in some cases, the interest of another
Constitutional privilege
defamatory statements about public officials or public figures so long as it is done WITHOUT MALICE
Communications Decency Act of 1996
grants immunity to internet service providers from liability for defamation when publishing information originating from a third party
Invasion of a person’s right to privacy consists of four distinct torts…
- appropriation of a person’s name or likeness
- unreasonable intrusion on the seclusion of another
- unreasonable public disclosure of private facts
- unreasonable publicity that places another in a false light in the public eye
Appropriation
is the unauthorized use of another person’s name or likeness for one’s own benefit
unauthorized use of a person’s identity
Intrusion
the unreasonable and highly offensive interference with the solitude or seclusion of another
Public disclosure of private facts
liability is imposed for publicity given to private information about another, if the matter made public would be highly offensive and objectionable to a reasonable person
False light
imposes liability for highly offensive publicity placing another in false light if the defendant knew that the matter publicized was false or acted in reckless disregard of the truth
Three torts comprise the misuse of legal procedure that include…
malicious prosecution, wrongful civil proceedings, and abuse of process
malicious prosecution and wrongful civil proceedings impose…
liability for damages caused by improperly brought proceedings, including harm to reputation, credit, or standing
Abuse of process
consists of using a legal proceeding (criminal or civil) to accomplish a purpose for which the proceeding is not designed
Harm to property include torts of…
- trespass to real property
- nuisance
- trespass to personal property
- conversion
real property…
is land and anything attached to it
trespass or nuisance
A person is liable for trespass to real property if…
- enters or remain on land in possession of another
- causes a thing or a third person to so enter or remain
- fails to remove from the land a thing that he is under duty to remove
liability exists even though no actual damage is done to the land
Nuisance
Is a nontrespassory invasion of another’s interest in the private use and enjoyment of land
example would be air pollution
personal property
is any type of property other than an interest in land
trespass or conversion
Tort of trespass to personal property liability is when…
- dispossess the other of the property
- substantially impairs the condition, quality, or value of the property
- deprives the prossessor of use of the property for a substantial time
Tort of conversion
is an intentional exercise of dominion or control over another’s personal property that so seriously interferes with the other’s right of control as justly to require the payment of full value for the property
Interference with contractual relations
intentionally causing one of the parties to a contract not to perform the contract
The tort of disparagement
publication of false statements resulting in harm to another’s monetary interest
Fraudulent misrepresentation
false statement made with knowledge of its falsity and with intent to induce another to act
A misrepresentation is fraudulent if the maker of it
- knows or believes that the matter is not as he represents it to be
- knows that he does not have the confidence in the accuracy of his representation that he states or implies
- knows that he does not have the basis for the representation that he states or implies
A person acts negligently if…
the person does not exercise reasonable care under all the circumstances
An action for negligence consists of these five elements…
- duty of care
- breach of duty
- factual cause
- harm
- scope of liability
duty of care
that a legal duty required the defendant to conform to the standard of conduct established for the protection of others
breach of duty
that the defendant failed to exercise reasonable care
factual cause
that the defendant’s failure to exercise reasonable care in fact caused the harm the plaintiff sustained
Harm
that the harm sustained is of a type protected against negligent conduct
Scope of liability
that the harm sustained is within the “scope of liability,” which historically has been referred to as a “proximate cause”
breach of duty of care determine whether a given risk of harm was unreasonable…
- the foreseeable probability that the person’s conduct will result in harm
- the foreseeable gravity or severity of any harm that may follow
- the burden of taking precautions to eliminate or reduce the risk of harm
Reasonable person
is a fictitious individual who is always careful and prudent and never negligent
A child is…
is a person below the age of majority, which is almost all states has been lowered from 21 to 18
Physical disability
a disabled person’s conduct must conform to that of a reasonable person under the same disability
Mental disability
a person who is held to the standard of conduct of a reasonable person who is not mentally deficient
Duty to act
a person is under a duty to all others at all time to exercise reasonable care for the safety of the others’ person and property
Licensee
person privileged to enter or remain on land by virtue of the consent of the lawful possessor
invitee
person invited upon land as a member of the public or for a business purpose
Res ipsa loquitur
“the think speaks for itself,” permits the jury to infer both negligent conduct and causation
but for test
the defendant’s conduct is a factual cause of the harm when the harm would not have occurred absent the conduct
Superseding cause
intervening event that occurs after the defendant’s negligent conduct and relieves her of liability
Harm to a legally protected interest
courts determine which interest are protected from negligent interference
Contribuitory negligence
failure of a plaintiff to exercise reasonable care such that her failure is a legal cause of the plaintiff’s harm
last clear chance
final opportunity to avoid an injury
Comparative negligence
doctrine dividing damages between the plaintiff and defendant where the negligent of each has caused the harm
express assumption of the risk
plaintiff’s express consent to encounter a known danger
Strict liability
liability for non-intentional and non-negligent conduct
What gives rise to strict liability?
- performing abnormally dangerous activities
- keeping animals
What is not a defense to strict liability?
Contributory negligence
Agency
is a consensual relationship authorizing one party to act on behalf of the other party subject to the principal’s control
Principal
person who authorizes another to act on her behalf
Scope of agency purposes
whatever business activity a person may accomplish personally he generally may do through an agent
Employment relationship
one in which the employer has the right to control the manner and means of the employee’s performance of work
Independent contractors
person who contracts woth another to do a particular job and is not subject to the other’s control over the manner and means of conducting the work
Gratuitous agency
an agency created without consideration
Formalities
usually no particular formality is required in a contract of agency, although appointments of agents for a period of more than one year must be in writing
Power of attorney
written, formal appointment of an agent who is know as an attorney in fact
states an agent’s authority
Capacity of the principal
if the principal is a minor or an incompetent not under a guardianship, his appointment of another to act as an agent is voidable, as are any results contracts with third parties
Durable power of attorney
is a written instrument that expresses the principal’s intention that the agent’s authority will not be affected by the principal’s subsequent incapacity
Capacity to be an agent
any person able to act may act as an agent since the act of the agent is considered the act of the principal
Duty of obedience
an agent must act in the principal’s affairs only as authorized by the principal and must obey all lawful instructions and directions of the principal
Duty of good contract
within the scope of the agency relationship, an agent must act reasonably and refrain from conduct that is likely to damage the principal’s enterprise
Duty of diligence
an agent must act with reasonable care, competence, and diligence in performing the work which he is employed
Duty to inform
an agent must use reasonable efforts to give the principal information material to the affairs entrusted to her
Fiduciary duty
an agent owes a duty of utmost loyalty and good faith to the principal
Compensation
a principal mist compensate the agent as specified in the contract, or for the reasonable value of the services provided, if no amount is specified
Indemnify
duty owed by principal to pay for losses agent incurred while acting as directed by principal
Reimburse
duty owed by principal to pay agent for authorized payments made on principal’s behalf
Tort duties
include the duty to provide an employee with reasonably safe conditions of employment
Power given as security
such a power - including an agency coupled with an interest - is irrevocable
Power
ability of an agent to change the legal status of his principal
Disclosed principal
one whose existence and identity are known
the agent usually has no rights under the contract against the third party
Unidentified principal
one whose existence is known but whose identity is not known
Undisclosed principal
one whose existence and identity are not known
Actual authority
power conferred upon agent by actual consent manifested by principal to the agent
Apparent authority
power conferred upon agent by act or conduct of principal that reasonably lead a third party to believe that agent has such power
Express authority
actual authority derived from written or spoken words of principal communicated to the agent
Implied authority
actual authority inferred from words or conduct manifested to agent by principal
Subagent
person appointed by agent to perform agent’s duties
Actual notice
knowledge actually and expressly communicated
Constructive notice
knowledge imputed by law
Ratification
affirmation by one person of a prior unauthorized act that another has done as her agent or as her purported agent
Direct liability of principal
a principal is liable for his own tortious conduct involving the use of agents
Authorized acts of agent
a principal is liable for torts that she authorizes another to commit or that she ratifies
Unauthorized acts of agent
a principal is liable for failing to exercise reasonable care in employing agents whose unauthorized acts cause harm
Vicarious liability
indirect legal responsibility for the act of another
Respondeat superior
let the superior respond; and employer is liable for unauthorized torts committed by an employee in the scope of his employment
Agent acts with apparent authority
a principal is liable for torts committed by an agent in dealing with third parties while acting within the agent’s apparent authority
Torts of independent contractor
a principal is usually not liable for the unauthorized torts of an independent contractor
Authorized criminal acts
the principal is liable if he directed, participated in, or approved the criminal acts of his agents
Unauthorized criminal acts
the principal may be liable either for a criminal act of a managerial person or under liability without fault statutes
Disclosed principal
the agent is not normally a party to the contract she makes with a third person if she authorized or if the principal ratifies an unauthorized contract
Authorized contracts
the agent is not normally a party to the contract she makes with a third party if she has actual or apparent authority or if the principal ratifies an unauthorized contract
Unauthorized contracts
if an agent exceeds her actual and apparent authority, the disclosed principal is not bound but the agent may be liable to the third party for breach of warranty or for misrepresentation
Agent assumes liability
an agent may agree to become liable on a contract between the disclosed principal and the third party
Unidentified principal
an agent who acts for a partially disclosed principal is a party to the contract with the third party unless otherwise agreed
Undisclosed principal
an agent who acts for an undisclosed principal is personally liable on the contract to the third party
Non existent or incompetent principal
a person who purports to act as agent for a principal whom that agent knows to be nonexistent or completely incompetent is personally liable on a contract entered into with a third person on behalf of such a principal
Tort liability of agent
the agent is liable to the third party for his own torts
Labor law
provides the general framework in which management and labor negotiate terms of employment
Norris La Guardia Act
established as U.S. policy the full freedom of labor to form labor unions without employer interference and withdrew from the federal courts the power to issue injunctions in nonviolent labor disputes
Labor disputes
any controversy concerning terms or conditions of employment or union representation
Unfair labor practices
conduct on which an employer or union is prohibited from engaging
Unfair employer practices
conduct in which an employer is prohibited from engaging
Labor management relations act
the act (1) prohibits unfair labor practices by a union, (2) prohibits closed shops, and (3) allows union shops
Unfair union practices
conduct in which a union is prohibited from engaging
Closed shop
employer can hire only union members
Union shop
employer can hire nonunion members, but the employee must join the union
Right to work law
state statute that prohibits union shop contracts
Labor management reporting and disclosure act
aimed at eliminating corruption in labor unions
Equal employment opportunity commission
EEOC
enforcement agency for federal laws that make it illegal to discriminate against a job applicant or an employee because of the person’s race, color, religion, sex, national origin, age, disability, or genetic information
Equal pay act
prohibits an employer from discriminating between employees on the basis of gender by paying unequal wages for the same work
Civil rights act of 1964
prohibits employment discrimination on the basis of race, color, gender, religion, or national origin
Employment discrimination
hiring, firing, compensating, promoting, or training of employees based on race, color, gender, religion, or national origin
Affirmative action
active recruitment of a designated group of applicants
Reverse discrimination
employment decisions taking into account race or gender to remedy past discrimination
Comparable worth
equal pay for jobs of equal value to the employer
Executive order
prohibits discrimination by federal contractors on the basis of race, color, gender, religion, or national origin on any work the contractors perform during the period of the federal contract
Age discrimination in employment act
prohibits discrimination on the basis of age in hiring, firing, or compensating
Disability law
provide assistance to the disabled in obtaining rehabilitation training, access to public facilities, and employment
Genetic information nondiscrimination act
forbids discrimination on the basis of genetic information with respect to any aspect of employment
Employee termination at Will
under the common law, a contract of employment for other than a definite term is terminable at will by either party
Statutory limitations
have been enacted by the federal government and some states
Judicial limitations
based on contract law, tort law, and public policy
Occupational safety and health act
enacted to ensure workers a safe and healthful work environment
Workers’ compensation
compensation awarded to an injured employee whose injury arose out of and in the course of his employment
Social security
measures by which the government provides economic assistance to disabled or retired employees and their dependents
Unemployment compensation
compensation awarded to workers who have lost their jobs and cannot find other employment
Fair labor standards act
regulates the employment of child labor outside of agriculture
Works adjustment and retraining notification act
WARN
federal statute that requires an employer to provide sixty days’ advance notice of a plant closing or mass layoff
Family and medical leave act
requires some employers to grant employees leave for serious health conditions or certain other events
