exam 2 Flashcards
1
Q
contract
A
agreement between parties enforceable under law (legally) binding promise
2
Q
steps involved in formation of a contract
A
mutual agreement offer: starting point of a contract acceptance consideration legality capacity/competence
3
Q
interpretations used by the courts
A
contracts are interpreted as integrated whole
in event of ambiguity, contract will be interpreted mostly strictly against party drafting documents
worst case scenario
4
Q
parol evidence rule
A
once parties have agreed to a complete written understanding, no prior or written evidence may be introduced.
5
Q
ways that contracts can be rendered unenforceable
A
misrepresentation
under influence
duress
mutual mistake
6
Q
misrepresentation
A
a false assertion of facts which induces another party to enter into a contract
7
Q
unduer influence
A
when a dominant party unfaily persuades the weaker party to enter into a contract
8
Q
duress
A
any wrongful act or threat which coerces a party to enter into a contract
9
Q
mutual mistake
A
when both parties share a common mistaken assumption about a vital existing fact upon which they based their contract
10
Q
remedies for a breach of contract
A
monetary
liquidated and compensatory
11
Q
monetary
A
compensate non-breaching party in a comparable manner as if contract has been performed as promise
12
Q
liquidated
A
allows parties to establish a reasonable approximation of damages. used in employee contract-cannont be punitive. (don’t know the exact amount of damages)
13
Q
compensatory
A
arise directly from the loss of the bargain-used when exact amount of damages is known (reduced damages)
14
Q
specific performance
A
courts generally relucant to require specific performance (rarely occurs)
requires that the performance of the contract be carried out in the specific form in which it was made-used when damages would be inadequage compensation for the breach an agreement
15
Q
rescission
A
If one party is in breach of the contract, the other party may rescind the contract without being in breach
Restores parties to pre-contract position
16
Q
restitution
A
Restitution - Return goods, property, etc. transferred under contract
Equivalent amount of $$
Used when fraud, misrepresentation, or mistakes have occurred
17
Q
provisions found in contracts
A
duties and responsibilities terms of employment reassignment clause compensation clause provision for outside and/or supplemental income termination clause buy out provision arbitration agreement
18
Q
reassignment clause
A
should place termination burden on coach if he/she chooses not to take assignment
19
Q
compensation clause
A
fringe benefits, bonuses, incentives
20
Q
termination clause
A
death, disability, just cause
21
Q
fee simple absolute:
A
owner with complete control
purchases, gifts, dedication, emincent, domain/condemnation
22
Q
less than fee simple
A
property based upon a contract
rental agreements, leases, cooperative/ joint use agreements
23
Q
public trust doctrine
A
the principle that certain resources are preserved for public use and the government is required to maintain them from public’s reasonable use
24
Q
invitee
A
individual who paid for the use of premises
HIGHEST STANDARD OF CARE
25
licensee
person who uses premises with constent of owner; provides no economic benefit: warn of hazards not able to discover on own
26
trespasser
person who enters premises without permission of operator; retain from intentional conduct causing injury
27
types of users
invitee
licensee
trespasser
28
actual notice
the notice has been delivered in a way that there is sufficient reassurance that the recipient has knowledge
29
constructive
not positive recipient has seen notice
| ex: posted on the door
30
6 legal obligations of a premises operator
1. inspect premises to discover obvious or hidden hazards
2. maintenance and repair
3. warn of concealed dangers
4. advise of participatory risk
5. hire competent personnel
6. design safe facilities
31
open and obvious dangers
a premises owner is to protect the invitee from an unreasonable risk of harm caused by dangerous condition on land generally does not encompass a duty to protect from open and obvious dangers but they are obligated ti undertake reasonable precautions to protect invitees from the danger
32
distractions factor into premises liability
a distraction is something that would keep a person from noticing an open and obvious danger and because of this distraction, fail to take reasonable precautions to avoid the risk of danger
33
responsibility of a landowner 3rd party criminal attack on participants using their premises
the "totality of the circumstances" test requires landowners to take reasonable precaution to prevent forseeable criminal actions against invitee
34
recreational user statue
is to protect landowners from liability when their lands are open to public for free recreational use.
35
recreational user statue characteristics
```
types of owners: public and private
fees
umiproved and undeveloped rural lands retained innatrual conditions (not obligated to remedy natural condition and cant be held liable to alternations made
obligations
2 pronged test
```
36
fees
admission and any type of consideration
37
obligation
warn of concealed and knows danger
38
2 pronged test
is it recreational activity?
| is the land suitable for activity?
39
nuisance
deals with activity or use of ones property that endangers life and health, gives offense to the senses, violates law of decency, or obstructs reasonable use of property
40
facts for private nuisance
gravity of harm to the plaintiff
value of the defendant's activity to the community
burden placed upon defendant if a particular remedy is granted
whether the defendants activity was in progress when the plaintiff arrived at the locality.
41
attractive nuisance doctrine to apply, what must the landowner know?
that children are likely to trespass the premises
that the condition will involve an unreasonable risk to trespassing children and the children because of their youth and inexperience will not realize this danger
minimal burden of eliminating the condition to the landowner.
42
strict liability
product shouldnt exist-manufacturer
43
determining defectiveness
design defects
manufacturing defects
marketing defects
44
design defects
products that cause harm as a result of design defects
45
manufacturing defects
production error that result in flaws to an otherwise defect free product, design and manufacturing process
46
marketing defects
warnings of instructions accompanying a product are inadequate-making the product not reasonably safe
47
negligent cause of action for products liability-claim
negligence
strict liability
breach of warranty
48
negligence cause of action
unintentional tort that injures another
49
strict liability cause of action
a defendant can be held liable without fault-the product us hyst tii dangerous to exist
50
breach of warranty cause of action
a product fails to fulfill either the expressed or implied warranty
51
defenses to products liability claims
negligence
strict liability
breach of warranty
52
negligence- product liability claim
product defect is unproven
product defect is not the cause of harm
evidence that an adequate warning of non obvious risk was provided and assumed
the danger/risk was open and obvious
the failure to warn was not the cause of harm
the actions of the plaintiff contributed to the harm
reasonable care was used by the supplier
53
strict liability- products liability claims
product was altered following purchase in an unforseeable manner
an adequate warning was provided
wear and tear of the product due to age was appropriate and predictable
the action of the plaintiff contributed to the harm
54
breach of warranty- products liability claim
the product was altered
the product was misued
the product was not properly installed
the user failed to properly maintain the product
action of the plaintiff contributed to the harm
adequate warning was provided
55
battery
intentional and wrongful physical contact without consent
56
elements of battery
intentional conduct by defendant-causing harmful or offensive contact to plaintiff-without consent
57
assult
an attempt to inflict harm on another individual, whether successful or not, which the intended victim is aware-putting someone in fear of receiving battery-can be committed without actually touching someone.
58
elements of assult
an intentional act by the defendant- that causes reasonable apprehension on the part of the plaintiff-of imminent harmful or offensive contact- VICTIM MUST BE AWARE THAT THE ASSULT IS ABOUT TO HAPPEN
59
appropriate defenses to these intentional torts
self defense
expressed or implied consent
privilege
immunity
60
self defense
an alleged assult/battery was justifiable in order to protect oneself or a third party from harm
61
expressed or implied consent
karate-boxing-consent to risks involved
62
priviledge
the defendant acted in furtherance of an interest of such social importance that is entitled to legal protection, even though the plaintiff suffered
ex: a coach or trainer may be entitled to such privilege in demonstrating a skill or technique to a participant
63
immunity
prevents the initiation of a lawsuit or prosecution- a cop gets physical with a criminal in the performance of their duties
64
3 standards of care that participants may choose
intentional torts
reckless disregard
negligence
65
defamation
the communication of false statements that injure a persons reputation
66
slander
defamatory comments made orally
67
libel
defamatory comments, photographs, or cartoons made in point
68
courts view defamation claims
private figure
public figure
public official
69
private figure
individual citizen who is not involved in public issues
| only need to prove that an alleged defamatory statement was negligently made
70
public figure
an individual who has commanded sufficient public interest
| must prove actual malice to recover damage
71
public officials
works for government agency and draws salary from public payroll
plaintiff must prove that the statement was made with actual malice.
72
defenses of defamation claim
truth
privilege
absolute
qualified privilege
73
truth- defamation claim
absolute defense to all claims in defamation
74
privledge- defamation claim
enjoyed by a person, company or class beyond the common advantages of others
75
absolute- defamation claim
enjoyed by executives and legislative and judicial forum-no liability for statement regardless of there falsity
76
qualified privilege- defamation claim
made statements without knowing falsity, had reason to communicate it, and communicated it to a person with a justifiable interest in knowing
77
invasion of privacy
the right to be left alone, to live one's life as one chooses free from assult, intrusion, or invasion except as they can be justified by the clear needs of the community under a government of law.
78
privacy claim
unreasonable intrusion on the seclusion of another
appropriate of anothers name or likeness
unreasonable disclosure of private facts
false light intrusion
79
unreasonable intrusion on the seclusion of another
invasion of ones home or illegally searching someones personal belongings or documents. was the intrusion offensive or objectifiable to a reasonable person? easedropping, excessive survillance or constant annoyance.
80
appropriation of anothers name of likeness
unauthorized use of a persons name or likeliness for commercial purposes such as advertising or trade
81
unreasonable disclosure of private facts
was the informationan truly private or publi?
| was the disclosed information highly offensive to an ordinary person?
82
false light intrusion
publicity places the plaintiff in a false light in the public eye
83
right privacy
an unauthorized photo being used to promote subscription sales violated a right to privacy- mental duress resulting from not being left alone
84
right to publicity
compensation for the use of ones name and likeness for commercial reasons
85
agreement to participate
a stand alone document, it improves the rapport and understanding between the provider and the participant and increases the understanding of the rewards and activity risks of the particpant- prepares them psychologically for any discomforts, making legal actions less likely. it also allows particpants to make more informed decisions to participate and provides a much broader range of protect.
86
waiver designed
designed to protect the service provider form liability for injuries resulting from negligence
87
4 primary requirements for valid waiver
clear and unambiguous language
legality
consideration
parties of contract
88
waiver involving minors
a waiver is a contract and in mist states a minor cannot be bound by a contract whether is is signed by the minor or signed by a parent or guardian on behalf of a minor
89
exception of waiver involving minors
are parents waivers started in california
90
loss of consortium- relate to waiver
the loss of material services and intangible such as companionship and sexual relations- the non signing spouse of a participant suffering serious injury often seeks damages for loss of consortium
91
purpose do waivers on tickets serve
they are called a disclaimer and it assets that the provider is not liable, however is ineffective
92
duration of a waiver
when the contract does not specify a duratio, the agreement may be terminated at the will of either aprty-- use specific dates to avoid ambiguity
93
indiana waiver
they are strict/rigourous meaning that theya llow waivers but have strict requirements for them to be upheld.
94
administration of waiver
1. a sepreate form should be used for each activity
2. explain content and let participant ask questions
3. particpants and professional sign and dated
4. copy given to participant
5. signed and dated form placed in participants file
95
general elements that an agreement to participate should contain
material that informs the nature of the activity assumption of inherent risks
a waiver to protect against ordinary negligence
idemnification agreement to provide further protection
five selected clauses calling for severability, mediation, arbitration, venue, and integration claues
authorization and agreements regarding health, safety and rules
a final acknowlegdement of release and assumption of risk
