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Hospitality Business Law > Exam 3 > Flashcards

Exam 3 Flashcards

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0
Q

TORT LAW | objectives

A

Aims of tort law: holding people responsible for wrongs they commit

  1. Loss distribution/adjustment- shifting losses from victims to perpetrators
    —societal component, cost of problem will always be borne by someone and we try to ensure that victims will share in burden with perpetrator
  2. Compensation- thought the award of (pecuniary) damages
    —object of compensation is to place victim in position they were in before tort was committed, which is difficult so we compensate
  3. Deterrence- secondary aim
    —can deter through exemplary or punitive damages, esp. true in cases of products like cars or pharmaceuticals
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1
Q

TORT | definition

A

A “civil wrong” - includes both criminal and non-criminal wrongs

Torts refer to a general classification covering civil causes of action providing private remedy for injury to one party caused by tortious conduct of another party

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2
Q

Difference between tort law and contract law

A

Contract law- plaintiff generally limited to economic damages

Tort law- plaintiff can generally recover economic AND non economic damages

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3
Q

Types of torts

A
  1. Intentional torts
  2. Negligent torts
  3. Strict liability torts
  • Types of torts based on the intent/mindset of wrongdoer
  • Direct result on what must be established by plaintiff
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4
Q

Spectrum of fault for 3 types of torts

A

Intentional torts | intentional or reckless behavior

Negligent tort | unreasonable behavior

Strict liability tort | liability without fault

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5
Q

Intentional Torts | definition

A

Torts in which defendant possessed the intent or purpose to inflict the resultant injury

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6
Q

Intentional Torts

A

•defendant possessed the intent or purpose to inflict resultant injury
•most similar to criminal acts
–but objective is $ not punishment
•reckless or intentional behavior
•DONT need to establish objective evidence of harm

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7
Q

Most common types of intentional torts

A 
Assault
Battery
False imprisonment
Intentional infliction of emotional distress
Invasion of privacy
Defamation of character
Fraud
Trespass to land
Trespass to personal property
Conversion
Nuisance
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8
Q

Assault

A
  • intentional fraud

* occurs when one person intentionally put another in reasonable fear of an imminent offensive or harmful bodily contact

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9
Q

Battery

A

•intentional tort

•harmful or offensive touching
—includes pushing, punching, spitting, or shooting

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10
Q

False imprisonment

A

•intentional tort

•the intentional confinement of a person against their will and without lawful privilege
—can include being handcuffed or locked in a room or a car

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11
Q

Defamation

A

Intentional Tort

•false statements that injure a person’s good name or reputation

  • slander= spoken defamation
  • libel= written/printed defamation

To be defamatory the statement must be:

  1. False
  2. Communicated to a third party
  3. The victim’s reputation is ruined or he/she faces ridicule
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12
Q

Trespass to Chattels

A

Intentional Tort

  • Defendant intentionally interferes through physical contact or dispossession
  • intent to act, not motive, is required with actual damages shown

•dispossession involves taking chattel from plaintiff’s possession without consent, blocking plaintiff’s access to chattel, or destroying chattel while in plaintiff’s possession

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13
Q

Trespass to Land

A

Intentional Tort

  • Defendant enters plaintiff’s land or causes a person or thing to do so
  • Defendant remains on plaintiff’s land after privilege to remain expires
  • Intent only is needed; manner may be direct or indirect
  • boundaries of land extend above and below he surface
  • damage is not required, though plaintiff may recover damages
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14
Q

Negligent Torts

A
  • most common tort
  • intent is NOT required for negligence
  • must establish objective evidence of harm
  • unreasonable behavior
  • extent of damage doesn’t have to be foreseeable, still responsible for extent of harm cause by negligence
    • doesn’t matter of results couldn’t be reasonably expected

Like other torts, involves 4 elements that MUST BE present

  1. Duty
  2. Breach of duty (of care)
  3. Causation (and proximate cause)
  4. Injury
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15
Q

Special negligence doctrines

A 
Res ipsa loquitor
Negligence per se
Dram shop acts
Social host liability
Guest statutes
Good Samaritan laws
Fireman's rule
"Danger invites rescue" doctrine
Liability of common carriers and innkeepers
Liability of landowners
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16
Q

Characteristics of Negligent Torts

A
  • conduct which falls below the legal standard for protection of others against unreasonable risk of harm
  • objective test of defendant’s actions compared to that which a reasonable person would do in the same situation
  • anticipating what others may reasonably do should regulate conduct
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17
Q

Elements of Torts - Negligent Torts

A

1) duty - defendant’s duty to act or refrain from acting
2) breach of duty
3) causation - casual connection between negligent conduct and plaintiff’s injury
4) damage - actual harm

18
Q

Elements of Torts | DUTY

A
  • general duty imposed by negligence law is the reasonable-man standard
    • reasonable-mans standard= requires that we act with the care and good judgment of a reasonable person as not to cause injury to others
  • most difficult item to determine for a case

-zone of danger: reasonable to expect that negligent conduct would harm this person?

  • children under 7 are incapable of negligence
  • professionals and skilled tradespersons are held to a higher degree of care in their work
19
Q

Elements of a Tort | BREACH OF DUTY

A

Defendant’s conduct is compared to reasonable-man standard to see if a violation of the duty occurred

20
Q

Elements of a Tort | CAUSATION

A

The violation of the duty must be the cause of injury (damage)

21
Q

Elements of a Tort | INJURY (damage)

A
  • requires actual harm
  • clear and convincing proof of physical or emotional injury
    • most than just hurt feelings/upset

DAMAGES

  • compensatory: pain and suffering, economic loss, loss of consortium, wrongful death
  • punitive: meant to punish defendant
22
Q

Defenses to Negligence

A

1) contributory negligence
2) comparative negligence
3) assumption of risk

23
Q

Contributory negligence

A

Defendant may not have to pay, his negligence may only have been part of the problem
—only used in some states

24
Q

Comparative negligence

A
  • Applies when a plaintiff is partially at fault
  • defendant’s payment is therefore reduced
  • used in most states

Doctrine of Comparative Negligence

  • how we apportion fault
  • likelihood is that neither party is 100%responsible
  • we ask juries to decide an appropriate remedy, based on what portion plaintiff/defendant is responsible

*in Michigan, plaintiff can be up to 50% responsible, in some states its up to 80%

25
Q

Assumption of Risk

A

If plaintiff is aware of the danger and decide to subject themselves to the risk anyway
—ex: walking on wet floor when there’s a warning sign

26
Q

Negligence per se

A

Definition: violation of a standard of care set by statute

  • when we assume negligence unless defendant proves otherwise
  • very unusual
  • ex: rear-end collision
27
Q

Res ipsa loquitor

A

“The thing speaks for itself”

28
Q

Dram Shop Laws

A

Established by statute that we owe a duty to ANYONE harmed by our serving alcohol to a minor or a visibly intoxicated person

  • expands the zone of danger/who duty is owed to when it comes to selling alcohol
  • generally a very short statute of limitations, 100 days
29
Q

Good Samaritan Laws

A

Provides immunity from liability for those who go to the aid of others

  • should help people who try to help but may unintentionally make situation wore
  • ie: doctor who tries to save someone in a car accident
30
Q

Zone of Danger

A

part of Duty element

—reasonable to expect that negligent conduct would harm this person?

31
Q

Strict Liability Torts

A

Does not involve fault
—liability for inherently dangerous activities where harm results or where products liability is involved

Generally: products, animals, unusually dangerous activities

32
Q

Exceptions to Fault Based Systems)

A

1) no-fault statutes (car insurance)

2) workers compensation laws

33
Q

No Fault

A
  • 12 states have no fault car insurance requirements
  • limits ability to seek recover from other drivers/vehicle owners involved in accident

Basic premise: each person in the accident will turn to their own insurance for compensation, both for their person and their car

34
Q

3 parts of no fault policy

A

1) Personal Injury Protection (PIP)
* most important

2) Property Protection (PPI)
—property damage to another’s building (Michigan)

3) Residual Liability Insurance Coverage
—property damage in another state

ALL RELATING TO ECONOMIC DAMAGES ONLY

35
Q

No Fault Threshold

A

Policyholders can sue for non-economic damages if certain criteria are met:

1) permanent scarring
2) disfigurement
3) death

36
Q

Non-mandatory Parts of No-Fault Insurance

A

1) collision and comprehensive insurance- to pay for damage to your car
2) mini tort rider (to cover the $1000)

*good if person you were in accident with doesn’t have sufficient insurance coverage to pay for all your damages, can help bridge gap

37
Q

Workers Compensation

A

Employers subject to act must provide som way of assuring it can pay benefits to its workers should they become injured in the workplace/doing work activities
—in Michigan, most buy insurance policy

  • Employee is entitled to workers comp benefits without having to go to court/prove stuff
  • but they’re limited to these economic damages provided by the workers comp insurance
  • if an employer doesn’t have insurance coverage, employee may sue for civil damages
  • can result in large payment if employer was at fault
38
Q

Foreseeability

A

Extent of damage caused by negligent act doesn’t have to be foreseeable

—still responsible for extent of harm caused by negligence
—doesn’t matter if results could be reasonably expected

39
Q

Vicarious liability

A

Holding one person responsible for the acts of another

•ex: giving someone your keys and then they drive negligently, accident is result of both your negligence

40
Q

Compensatory damages

A

What is tort remedy intended to fix?

Remedy is intended to compensate injured party and put them back into position they were in before tort was committed
—this is often difficult, so we compensate with money

41
Q

Economic Damages

A

Money provided to compensate for money lost based on some objective standard
—ie, wages lost, hospital bills, etc.

42
Q

Non-economic damages

A

Money paid to compensate for damages that can’t be objectively quantified
—ie, pain and suffering
—much harder to judge, so amounts tend to be varied

Hospitality Business Law (4 decks)

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