Exam 2 - Terms Flashcards
What is a tort?
the French word for a “wrong”
What can a person do under tort law?
Under tort law, an injured party can bring a civil lawsuit to seek compensation for a wrong done to the party or the party’s property
What are Compensatory damages?
Puts the victim in the original position and includes compensation for all injuries (personal and property)
What are Nominal damages?
Nominal amount to recognize that the plaintiff has been wronged
What are Punitive damages?
Money awards to punish the Defendant
What are the 3 categories of Torts?
1) Intentional Torts
2) Unintentional Torts (Negligence)
3) Strict Liability Torts
What does the law protect under Intentional Torts Against Persons?
1) protects a person from unauthorized touching, restraint, or other contact
2) Also protects a person’s reputation and privacy
What are the elements of Assault?
1) Intentional Tort
2) The threat of immediate harm or offensive contact or
3) any action that arouses reasonable apprehension of imminent harm
Is actual physical contact necessary for assault?
No
What are the elements of Battery?
1) Intentional Tort
2) Unauthorized and harmful or offensive physical contact with another person,
3) actual physical contact is unnecessary between victim and perpetrator
4) May accompany assault
What are the elements of the Doctrine of Transferred Intent?
1) Party A intends to harm Party B, but actually injures Party C
2) Law transfers perpetrator’s intent from target to actual victim
3) Victim can then sue perpetrator
What is False Imprisonment?
The intentional confinement or restraint of another person without authority or justification and without that person’s consent
What are some methods that quantify as False Imprisonment?
1) Physical force
2) Barriers
3) Threats of physical violence
4) False arrest
What is required to qualify as False Imprisonment?
1) Threat of future harm or moral pressure is not enough
2) Must be complete imprisonment
What is the exception to False Imprisonment?
the Merchant Protection Statute
What is the Merchant Protection Statute?
merchants may stop, detain, and investigate suspected shoplifters without being held liable for false imprisonment
What are the 3 elements/requirements to the Merchant Protection Statute?
1) There must be reasonable grounds for the suspicion
2) Suspects are detained for only a reasonable time (15 min)
3) Investigations are conducted in a reasonable manner
What is a Misappropriation of the Right to Publicity?
1) An intentional tort
2) An attempt by another person to appropriate a living person’s name or identity for commercial purposes
What is a Misappropriation of the Right to Publicity also known as?
A Tort of Appropriation
What is Defamation of Character?
1) Intentional Tort
2) False statement made by one person about another
What must the plaintiff prove to have a successful Defamation case?
1) The defendant made an untrue statement of fact about the plaintiff and,
2) the statement was intentionally or accidentally published to a third party
What are the elements of Invasion of the Right to Privacy?
1) Intentional Tort
2) Tort that constitutes the violation of a person’s right to live his or her life without being subjected to unwanted and undesired publicity
3) Placing one in a “false light”
What is considered published, in regards to Defamation?
Communicated to a third party unintentional or not
What is Slander Defamation of Character?
oral defamation of character
What is Libel Defamation of Character?
a false statement that appears in a letter, newspaper, magazine, book, etc.
What is different about Defamation of Character with public officials?
Public officials cannot recover for defamation unless they can prove that the defendant acted with actual malice
What are the elements of Disparagement?
1) Intentional Tort
2) Untrue statement made about products, services, property, or reputation of a business
3) Also called product disparagement, trade libel, or slander of title
What is Intentional Misrepresentation (Fraud)?
1) Wrongdoer deceives another person out of money, property, or something of value
2) Injured party can recover damages
What are the elements of Intentional Misrepresentation (Fraud)?
1) Wrongdoer made a false representation
2) Wrongdoer knew representation was false and intended to deceive other party
3) Party must justifiably rely on misrepresentation
4) must have actual injury
What is Intentional Infliction of Emotional Distress?
- Tort that says a person whose extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another person is liable for that emotional distress
- Also known as the tort of outrage
What is Malicious Prosecution?
- Losing plaintiffs that have brought a frivolous lawsuit may be sued by the prevailing defendant
- Civil action for damages
- Must have suffered injury
What is real property?
- land and anything permanently attached to that land
What is personal property?
- things that are movable
- automobiles, books, clothes, pets
What is Trespass to Land?
- A tort that interferes with an owner’s right to exclusive possession of land
- Unauthorized use of another person’s property
When does a Trespass to Personal Property occur?
- whenever one person injures another person’s personal property
- when one interferes with a person’s enjoyment of his or her personal property
When does a Trespass to Conversion occur?
a severe (permanent) deprivation of property ex: burn someone's car
What is an Unintentional Tort?
A doctrine that says a person is liable for harm that is the foreseeable consequence of his or her actions
What is Negligence?
the omission to do something which a reasonable man would do, or something which a prudent and reasonable man would not do
To be a successful in a negligence lawsuit, what must the plaintiff prove?
1) The defendant owed a duty of care to the plaintiff
2) The defendant breached the duty of care
3) The plaintiff suffered injury
4) The defendant’s negligent act caused the plaintiff’s injury
What is Duty of Care?
the obligation we all owe each other not to cause any unreasonable harm or risk of harm
What is Breach of Duty?
a failure to exercise care or to act as a reasonable person would act
What is Causation?
a person who commits a negligent act is not liable unless his or her act was the cause of the plaintiff’s injuries
What are the two requirements of Causation?
1) Causation in Fact: the actual cause
2) Proximate Cause : legal cause - foreseeable
What is Injury to Plaintiff?
the plaintiff must suffer personal injury or damage to his or her property to recover monetary damages for the defendant’s negligence
What is Causation in Fact (Actual Cause)?
- Defendant’s negligent act must be causation in fact
- The actual cause of negligence
- Must have cause and effect relationship
What is Proximate Cause?
1) A negligent party is not necessarily liable for all damages set in motion by his or her negligent act
2) The law establishes a point along the damage chain after which the negligent party is no longer legally responsible for the consequences of his or her actions
3) General test is foreseeability
What is Negligent Infliction of Emotional Distress?
- A tort that permits a person to recover for emotional distress caused by the defendant’s negligent conduct
What is Negligence Per Se?
- Violation of a statute that proximately causes an injury
- Plaintiff must be within class intended to be protected
- Statute enacted to prevent the type of injury suffered
What is Res Ipsa Loquitur?
- “The thing speaks for itself”
- Defendant had exclusive control of a situation that caused plaintiff’s injury
- Injury would not have ordinarily occurred but for someone’s negligence
What are Good Samaritan Laws?
- Protects medical professionals that stop and render emergency first aid
- Relieves them from liability for ordinary negligence
- No Relief for gross negligence or intentional or reckless conduct
- Laypersons not trained in CPR not covered
What are Dram Shop Acts?
Taverns and bartenders can be held civilly liable for injuries caused to or by patrons who were served too much alcohol
What are Guest Statutes?
- Driver voluntarily gives ride to another
- No compensation paid
- Driver not held liable for injuries caused by driver’s ordinary negligence
- Driver still liable for gross negligence
What is the “Danger Invites Rescue” Doctrine?
Persons who are injured going to the rescue of another can sue the person who caused the dangerous situation
What is Social Host Liability?
- Social host liable for injuries caused by guests who are served alcohol at a social function
- injure themselves or another due to intoxication
What is the Liability of Landowners?
1) Duty of ordinary care owed to invitees and licensees
- invitees on premises for mutual benefit of both parties with consent
- Licensee on premises for own benefit, but with consent
2) Duty not to willfully or wantonly injure trespassers
- Person has no invitation or right to be on property
What is the Liability of Common Carriers and Innkeepers?
Duty of utmost care to passengers and guests
What is Strict Liability?
1) Liability without fault
2) A participant in a covered activity will be held liable for any injuries caused by the activity even if he or she was not negligent
3) Applies to explosives, hazardous materials, and wild animals
What are defenses against negligence?
1) Superseding or intervening event
2) Assumption of the Risk
3) Contributory Negligence
4) Comparative Negligence
What is Contributory Negligence?
Does not allow plaintiffs to recover damages if they have contributed to their own injuries regardless of the degree of their fault
What is Pure Comparative Negligence?
You will get the amount damages that you are not at fault
ex: sue for 10k while 10% at fault, you would get 9k
What is Modified Comparative Negligence?
You must be less than 50% at fault to collect damages
What is Products Liability?
The liability of manufacturers, sellers, and others for the injuries caused by defective products
What are the elements to Negligence in Products Liability?
- A person injured by a defective product may sue
- The plaintiff must prove that the defendant breached a duty of due care to the plaintiff that caused the plaintiff’s injuries
- In a negligence lawsuit, only a party who was actually negligent is liable to the plaintiff
Can a consumer recover negligence damages from the manufacturer of the product even though he or she was only in privity of contract with the retailer?
Yes
What does Failure to exercise due care include in Negligence Products Liability cases?
- Failing to assemble to product carefully
- Negligent product design
- Negligent inspection or testing of the product
- Negligent packaging
- Failure to warn of the dangerous propensities of the product
What is Misrepresentation in Products Liability cases?
- Seller or lessor fraudulently misrepresents the quality of a product, or conceals a defect in it
- Recovery limited to persons injured because they relied on the misrepresentation
What is the Chain of Distribution?
- All parties in the chain of distribution of a defective product are strictly liable for the injuries caused by that product (does not apply to services)
- All manufacturers, distributors, wholesalers, retailers, lessors, and subcomponent manufacturers may be sued under the doctrine of strict liability in tort
Is privity of contract required for a plaintiff to sue under strict liability?
no
Does the doctrine of strict liability apply if the injured party had no contractural relations with the defendant?
yes
Is economic loss recoverable under strict liability?
rarely
When are Punitive damages often awarded under strict liability?
If the plaintiff proves that the defendant either:
- Intentionally injured him or her; or
- Acted with reckless disregard for his or her safety
Can a plaintiff allege multiple product defects in one lawsuit?
yes
What are the 4 most common types of defective products?
1) Failure to warn
2) Manufacture
3) Design
4) Packaging
When does a Defect in Manufacture occur?
when a manufacture fails to:
1) Property assemble a product
2) Property test a product, or
3) Adequately check the quality of a product
What is a Defect in Design?
- Defect that occurs when a product is improperly designed
defects include:
1) Toys designed with removable parts that could be swallowed by children
2) Machines and appliances designed without proper safeguards
3) Trucks designed without a backup warning device
How do courts evaluate the adequacy of a product’s design?
The courts apply a risk-utility analysis
- Gravity of the danger posed by the design
- Likelihood that injury will occur
- Availability and cost of producing a safer design
- Social utility of the product
What is Failure to Warn?
- Defect that occurs when a manufacturer does not place a warning on the packaging of products that could cause injury if the danger is unknown
- Proper and conspicuous warnings insulates all in chain of distribution
What is a Defect in Packaging?
Defect that occurs when a product has been placed in packaging that is insufficiently tamperproof
- Manufacturers owe a duty of design and provide safe packages for their products
- Failure to meet this duty subjects the manufacturer and others in the chain of distribution of the product to strict liability
What are the defenses to Product Liability?
1) Supervening Event
2) Generally Known Dangers
3) Assumption of the Risk
4) Government Contractor Defense
5) Misuse of the Product
6) Statute of Limitations
7) Contributory and Comparative Negligence
What is the Generally Known Dangers defense to Products Liability?
- Certain Products are inherently dangerous
- Products are known to the general population to be so
- Sellers are not strictly liable for failing to warn of generally known dangers
What is the Government Contractor Defense to Products Liability?
- Contractor who was provided specifications by the government is not liable for any defect in the product that occurs as a result of those specifications
- Product must conform to specifications
- Contractor must have warned of known defects or dangers
What is the Assumption of Risk defense to Products Liability?
- Defendant must prove that the plaintiff knew and appreciated the risk
- the plaintiff voluntarily assumed the risk
What is the Misuse of the Product defense to Products Liability?
- Relieves the seller of product liability if the user abnormally misused the product
- Products must be designed to protect against foreseeable misuse
What the Correction of a Product Defect defense to Product Liability?
- Manufacturer must notify purchasers and users
- Must correct defect
- Usually achieved through recall and repair or replacement
What is the Supervening Event defense to Product Liability?
- Alteration or modification of a product by a party that absolves seller from strict liability
- Modification must be made after it leaves seller’s possession
- Alteration must cause injury
What is a Statute of Repose?
Limits the seller’s liability to a certain number of years from the date when the product was first sold and varies from state to state
What is a warranty?
a collateral assurance or guarantee that certain facets of a product sold are as factually stated or legally implied by the seller, and it often provides for a specific remedy such as repair or replacement in the event the product fails to meet the warranty
What is an express warranty?
a guarantee or a binding promise clearly stated by the seller or manufacturer of a product
What is an implied warranty?
a guarantee or a binding promise that automatically arises from a transaction, rather than from the express representations of the seller or manufacturer
What are the defenses to breach of warranty?
(1) that no warranties are made (as is),
(2) that the manufacturer or seller warrants only against certain against consequences or defects, or
(3) that liability is limited to repair, replacement, or refund.
What is the Social Responsibility of Business?
Social responsibility of business is a duty owed by businesses to act socially responsible in producing and selling goods and services
What are Business Ethics?
- A set of moral principles or values that governs the conduct of an individual or group
- What is lawful conduct is not always ethical conduct, (the law may permit something that would be ethically wrong)
What is the Profit Maximization Moral Theory?
When a decision maker looks to maximize a business’s long run profits within the limits of the law
What is a criticism of Profit Maximization Moral Theory?
Critics argue that equating ethical behavior with legal compliance is a tautology in the US where business distort the lawmaking process by lobbying legislators and making political contributions