Exam 3 Flashcards
Amendment 13
Civil war amendment
- Abolished slavery
15th amendment
Civil war amendment
- Prohibits government from denying a citizens right to vote based on race
- Poll tax was instituted in the south as a reaction to this
20th Amendment
- Presidential term begins January 20-Inauguration Day
- Terms of Congress begin on January 3
Amendment 23
Washington D.C. given representation in Congress.(3 electoral votes) Some argue this is why D.C. cannot be a state
Amendment 24 (1964)
elimination of poll taxes (were being used against colored people in the south)
- big for civil rights movement (civil rights act passed same year)
Mcdonald’s case
They found the Liebeck at 20% fault
- She got 160,000 (80%) of her $200,000 in compensatory damages
- She got $2.7 million in punitive damages (trial court reduced this to $480,000)
- Mcdonalds lowered their coffee temperature from 185 degrees to 158.
- Liebeck had third degree burns on 6% of her body and was hospitalized for 8 days
Duty to Warn
Companies have the “duty to warn” as stated by ANSI (American National Standards Institute) of their products dangers
- Remaining hazards on a product must be addressed by a warning label
Safety alert symbols
Pictorial symbols established by ANSI. 3 kinds
- Danger
- Warning
- Caution
- Ex. lightning bolt is electrical danger
To be compensated for an injury or wrongdoing by the doer, the doer must have what
Money or insurance
Premium
monthly payment made to purchase an insurance policy and coverage. This payment buys you the coverage you decided on and pays for your defense attorney if you are sued for causing an accident.
Coverage
the maximum dollar amount of insurance that the policy will cover for a claim
Trucking companies
Always have high coverage for accidents because lots of people sue them when their drivers get in wrecks
- 18 wheelers and large trucks can cause more damage/injury
Nuclear verdicts
Large payments for lawsuits (typically trucking accidents).
- increase insurance costs and the cost of transporting goods
Comprehensive General Liability Insurance (CGL)
basic insurance all businesses have to protect from common claims against their company for negligence
- key question is “how much coverage do they have?”
Excess or “umbrella” coverage
Coverage that can cover what your CGL insurance doesn’t
Auto Insurance Liability Coverage
Amount of coverage you would have for an accident where you are liable/at fault
Basic auto liability coverage required in LA
15/30/25
- Any significant injury would exhaust this quickly
- $15,000 max coverage for injury of one person
- $30,000 max coverage of all persons injured
- $25,000 max coverage for property damage caused
Collision insurance
Covers repairing your car whether at fault or not
- Not included in Liability insurance
Comprehensive auto insurance
Covers theft, fire, cracks in windshield
Test question: In analyzing an auto liability policy with limits of 15/30/25
a. The 15 refers to how much the company will pay for any one person that is injured
b. The 25 means how much the insurance company will pay all persons that are injured
c. a and b above
Answer A–you are welcome!
Uninsured Motorist Coverage (UM insurance)
Helps you in a hit & run situation or if the other people don’t have money/insurance
- Make claim with own insurance through this so that they can’t raise their rates on you
Statistics show that 1 in 7 drivers have NO liability insurance coverage. Why?
Influx of migrants
Tortfeasor
The one being held liable
- also called defendant
remedy for another citizen violating their duty and harming another citizen
Money
Tort
civil wrong that causes harm to another person or their property.
What is protected in tort law?
- Your physical safety
- Real estate or personal property
- Intangible Interests (privacy, reputation)
Two types of damages
Compensatory and Pinutive
Compensatory damages two types:
Special damages
and general damages
Special damages
- Quantifiable, measurable and economic
- Lost wages, future lost wages, medical expenses
General damages
Noneconomic
- Emotional pain, suffering, loss of consortium
- How much it costs that I can’t hold my mom anymore
- Loss of sexual relations
Pinutive damages
Punish a wrongdoing, so that others take note
- Glaring defect in businesses (Mcdonald’s coffee too hot)
- Hotels not doing anything about bed bugs
- Erin andrews hotel stalker settlement
Erin Andrews hotel stalker settlement
Found the guy 51% liable and the hotel 49% liable for letting the guy have the room next to her
- Damages reached $55 milllion in closed settlement
- Guy claimed bankruptcy so hotel had to pay all of it
Three types of civil damage actions
- Personal injury suit
- Survivor’s actions
-Wrongful death suit
Personal injury suit
Client survives but is hurt
Survivor’s actions
Allows to collect money for pain that victim goes through before they die
- claimed by loved ones
- Ex. victim was burned badly for 48 hours before dying
Wrongful death suit
Kids and spouse making claim for their loss
Civil damage actions
tragic events
Tort reform
legislation need to deter frivolous lawsuits and reform state tort laws that are out of control
- Medical malpractice
Most common lawsuits for businesses
Slip and falls
- Has created more debt reform rules
- Makes companies get higher insurance policies to protect themselves
Negligence
Unintentional torts
- accidents
Someone suffers injury because of another’s failure to live up to a societal…
duty of care
Things that tort laws base themselves on when outside of specified laws
- duty of care
- Standard of care
- reasonable person
Reasonable person
What would a reasonable person do in this situation?
Standard of care
duty of care + more because of certain situations
- situation that would raise more standard of care would be in NOLA during the super bowl: hotels and security will raise their standards of care
Tortfeasor’s conduct
Creates risk of injury to another
FOUR ELEMENTS OF NEGLIGENCE
- Defendant owed a duty of care to a plaintiff
- Defendant breached that duty
- Defendant’s breach caused the plaintiff’s injury (PLUS proximate cause)
- Plaintiff suffered a legally recognized injury
Proximate cause
the connection between the act and the injury strong enough to justify imposing liability
Duty of Care
- People must exercise a reasonable amount of care with others
- Failure to exercise to exercise duty of care as determined by reasonable person standard
Failure to exercise to exercise duty of care as determined by reasonable person standard =
negligence
Failure to exercise duty of care can be two things:
- Act of commission
- Act of omission
Acts of commission examples
More intentional
- Setting a building on fire
- Running a red light
Acts of omission
Less intentional
- Failure to warn of the danger
- Not putting a wet floor sign on a spill
Duty to warn
Was the risk of injury foreseeable? If it was, then they had a duty to warn
Society’s judgement on how people should act
Basis
Duty to business invitees
Important because businesses is inviting society into their premises
- law requires businesses have to be reasonably safe, but can’t 100% guarantee they’ll always be safe
Why can’t businesses guarantee 100% safety
Unforeseeable acts of outside of the businesses control can occur
- A car could drive into the building
- A meteor could hit the building
Classic example of pervasive concept in BLAW
Slip and Fall in business premises
Businesses have the duty to clean up spillings or atleast
put up a warning! slippery floor sign
Duty to discover and remove hidden dangers
Public can’t see that on the second floor of your building, the floor is weak and could collapse. But, it’s your duty to fix it or at least address and warn of it
OBGYN
Obstretican Gynecoligst doctors
- Female doctors
Obvious risks not required to warn of
- open door
- Caved in area properly marked
Duty of professionals
Held to higher standard b/c they have special knowledge and ability
When professionals commit negligence in their profession
Malpractice
Examples of malpractice
legal malpractice. medical malpractice, accounting malpractice
If no injury or damage occurs
there can be no tort
Causation
If there is a breach, this determines if liability is imposed
- What caused it?
Two aspects of causation
Cause in fact and proximate cause
Cause in fact
Would the accident have occurred but for the defendant’s act
Proximate cause in question
IS the conncetion between the act and the injury strong enough to justify imposing liability
- Ex. caused house fire that burns chemical plant that spreads to river that flows to tourist town that kills fish in tourist town that kills tourism and th ehotels in the tourist town wanna sue? ehhhhhhhh
Defense of negligence
- assumption of risk
- Superseding cause
- Contributory/comparative negligence
Assumption of risk
Plaintiff had knowledge of risk and voluntarily assumed the risk
- Ex. skiing at ski resort
MLB rule
Assumption of risk falls on spectator when they buy the ticket
- But some lawyers got a lawsuit succesful by saying the nets should be higher than they are
Superseding cause
Stretching the consequences of an act beyond what was reasonably forseeable
Superceding cause Example
Knock juliee off bike, while on ground a ball hits her in the head gives her a concussion
- Can claim superceding cause to not pay for the ball hitting her head giving her the concussino
Special negligence
Laws passed by states address certain special circumstances
Res Ipsa Loquitor
Facts speak for themselves
- Doesn’t have to prove negligence because its so obvioous
Negligence per se
Violation of a statute
Statute
Ex. Don’t go through a redlight
Good samaritan statutes
If you try to give someone CPR who is dying, without medical certification, you cannot be held liable for negligence
Dram
Shot of wiskey
Dram Shop Acts
Acts that try to pin liability on bar owners for serving people they shouldn’t
- Rarely ever used in LA
Contributory negligence
Plaintiff also negligent
- used to mean plaintiff cannot recover at all
- now most states have something called comparative negligence
Comparative negligence
Giving a % of fault to the plaintiff and defendant
Pure Comparative negligence
Plaintiff recovers something even if his fault is greater than the defendant
- Ex. drunk driver hits guy but claims that the other guy was textin while driving, the drunk’s sentence will be reduced by x%
Sttrict liabilty-liability without fault
some activites are dangerous, so it doesn’t matter what precautions you take, if damages occur, you will be held liable
- Ex. “blasting” or owning dangerous animals like a pitbull
In products liability, manufactureers are often held liable because of
INadequate warnings
PRoving defective condition
just have to prove that it was defective or unreasonably dangerous at the time it left the manufacturers
Other defects include
Manufacturin defect and design defect
Inadequate warnings
proven if
- risks of harm could’ve been reduced byb warnings
- AND the omission of the instructions/warnings render the product safe, when it’s not
Mesothelioma
Rare and dangerous types of cancer
- I guess people have gotten them from defective products?
Who does product liability apply to?
Manufacturers, Sellers, and stores
who is the manufacterer of the product liable to?
Consumers, users or bystanders
Punitive damages can occur on product liability IF
they knew of the defect and did not take corrective action or warn the public
Tylenol seal case
tylenol didn’t have seals, guy put fent in a bunch of tylenol in walgreens
- killed a bunch of people
- Tylenol added the seal and a WARNING to not take if seal was broken
- Standard of care was raised
Statute of limitations
Time limits to file a suit can vary b/c it is suspended until party discovers it
Defenses to product liability
- Assumption of risk
- Product misuses
- Comparative negligence
- Commonly known dangers (knives, guns)
A lawyers standard rate on contract is x% of the settlement
40%
A personal injury award is
TAX FREE
Who pays for court fees if a lawsuit geos to trial
Plaintiff
If settlement occurs in private or before trial
The details outside of the amount of the settlment are confidential
- “I didn’t do anything wrong, but here’s 250k”
Creditor/Obligee/Mortgagee
Party that is owed money
Debtor/Obligor/Mortgager
Party who owes money
Creditor’s main concern is the
Debtor’s default (failure to pay as promised on a promissory note)
In event of debtor’s default
creditor will pursue legal remedies
“Underwater”
When a debtor owes moe on his house mortgage than the house/property is worth itself
“Upside Down”
When a debtor owes more on his vehicle than the vehicle is worth
- Car dealers will lend you money for up to 84 months (7 yrs)
Liens
to secure repayment of indebtedness
- Collateral, as like a secuirty interst for creditors
- filed at courthouse
Lien gives waht to creditor over debtor
Position over property that the lien is placed on
If debtor default’s and his lien collateral wa his mortgage, what happens?
the creditor gets the house
Mechanic’s Lien
protects a person who provides labor or materials for improvements on real estate
- if they are not paid for supplies or work, they have this lien
- non-possessory lien
Artisan’s lien
- Possessory lien
Creditor keeps the repaired vehicle or diamond ring as collateral until bill is paid
Judicial lien
When results form court have someone pay and they can’t, JUDGEMENT recognizes that they still owe them that money
once the debtor acquires something, that falls under that judgement
Execuution and seizure and sale
Court order directing sherriff to seize and sell debtor’s property to satisy debt
Garnishment
Creditors collects debt by hands of a third person
- Creditor can contact debtor’s employer and GARNISH 25% of net weekly wages to collect money to apply to their debt
Suretyship
Where creditors requires co-signer who is jointly liable with debtor.
- Co-signer is liable whtether the debtor deefaults or not
Guaranty
Guarantor will be liable to debtor’s debt if the debtor defaults
Mortgagor
Part who grants the mortage (debtor)
Mortgagee
Party in whose favor mortage is granted (creditor)
IN the case of mortgage foreclosure, due process requires
that the homeowner receives notice
