EXAM III

Question 1

Chapter 7 vs. Chapter 11 Bankruptcy

Answer 1

Chapter 7 - Liquidation (gather up assets, sell them, use them to pay debts owed to creditors)

Chapter 11 - Reorganization (get a court-endorsed plan for how much and when creditors will be paid by a debtor business going forward)

Question 2

Automatic Stay in Bankruptcy

Answer 2

Filing a bankruptcy petition operates as an automatic stay, halting creditor action against a debtor or property.

Once the bankruptcy has been filed, the creditors are required by law to leave the debtor alone and let the bankruptcy process take its course.

Must Not

1. Begin or continue judicial proceedings against debtor
2. Act to repossess the debtors property
3. Act to create, eprfect or enforce a lien
4. Make phone calls, send emails, bills or invoices.

If violated can be held in contempt of court.

Question 3

Non-dischargeable Debts in Bankruptcy

Answer 3

1. Tax debts
2. Debts resulted from fraud
3. Large purchases of luxury goods from a single retailer on the eve of bankruptcy
4. Cash more than $925 on eve of bankruptcy
5. Domestic support
6. Willful or malicious injury to a person or property
7. Educational loans
8. DUI-related debt
9. Property settlements from divorce

• debts that aren’t dischargeable have a layer of moral culpability

Question 4

What is the purpose of the constitution?

Answer 4

1. To set up the STRUCTURE of the government
2. Limit the government’s power (federalism - balance federal government power versus state government power & limit federal government power of individuals)

Question 5

What are the 2 main STRUCTURAL decisions in the constitution?

Answer 5

1. Checks and Balances - 3 branches (executive, legislative, judicial) to check power which slows and weakens the government
2. Federalism - a distinction between the federal government and separate state governments. (Supremacy clause, 10th amendment meaning the federal government is limited to what is authorized in the constitution but is supreme over state law in any area that the federal government controls)

Question 6

Fundamental question for constitutional law

Answer 6

Can the GOVERNMENT do that?

*not can private individuals/businesses to that

Question 7

Commerce Clause - It’s 2 Branches & Cases

Answer 7

• Constitutional Law*
• Commerce Clause = Congress has the power “To regulate Commerce with foreign nations, and among the several states.”
  1. Foreign Commerce
• The federal government has the exclusive power to regulate foreign commerce (trade embargoes, tariffs)
  2. Interstate Commerce
• states governments cannot pass regulations that interfere with commerce that crosses state lines.
• The federal government can regulate commerce that passes between states
• Affectation doctrine = The federal government can regulate any activity that affects interstate commerce, not just those persons engaged in commerce.

CASES
1. Wickard v. Filburn
Facts: Federal regulation of wheat production to stabilize wheat prices during WWII. Small farmer challenged it on grounds his crop was not placed in interstate commerce at all (consumed on the farm)

Question: Is the regulation a permissible exercise of federal legislative power?

Rule/Result: Regulation is permissible under the Commerce Clause as regulating commerce among the states. Regulation upheld.

Analysis: Rationale was that the farmer’s use of part of his own crop as feed then freed another part of the crop to be used in interstate commerce.

2. Katzenbach v. McClung
   Facts: Civil Rights Act of 1964 outlawed segregation in schools and public places. Ollie’s BBQ was a restaurant that served white customers but provided only take-out service to black customers. Restaurant owner argued that it was a small local restaurant, so the amount of food from Ollie’s that crossed state lines was too minuscule to have an effect on interstate commerce.

Question: Was the Civil Rights Act of 1964 a Constitutional exercise of federal power under the Commerce Clause?

Rule: The Civil Rights Act is a constitutional exercise of power under the Commerce Clause.

Analysis: Although Ollie’s itself has very little effect on interstate commerce, racial discrimination in restaurants has a large impact on interstate commerce. African Americans spent significantly less time in areas with segregated restaurants. Segregation creates an artificial limitation on the flow of commerce between the states. Since Congress has a rational basis for the regulation that is based on interstate commerce, the regulation is proper.

Question 8

Bill of Rights

Answer 8

Constitutional Law

The first 10 amendments. The Bill of Rights gives protection for individual rights, against governmental action.

Bill of Rights does not prohibit private action.

Example: Theater kicks out a patron for talking during a movie…not a freedom of speech problem because the theater is not the government.

It is my Constitutional right” is often the beginning of the argument, but not the end.

4 Points

1. Basic constitutional rights are not absolute - competing rights
2. Limitation tends to depend on the nature of the competing right
3. Part of the point is protection from tyranny by the majority
4. Constitutional rights are interpreted over and over in court cases to apply in various contexts

Question 9

First Amendment 5 Freedoms

Answer 9

Constitutional Law

1. Speech
2. Press
3. Assembly
4. Religion
5. Petition

• Think in concurrent circles with religion at the core, then freedom of exercising religion, then freedom of speech, then freedom of the press, then the freedom to assemble and then petition

Question 10

First Amendment - Freedom of Speech Political & Non-Commercial - 6 Limitations - Strict Scrutiny Test.

Answer 10

• Constitutional Law*
• Includes protection of expressive conduct or actions – symbolic speech Expression in art is protected!
• Often protects minority viewpoint from being silenced by the majority

Limitations

• Protection has never been afforded to certain classes of speech

1. False
2. Lewd
3. Obscene - judged by an average person applying community standards
4. Profane - FCC limits times when indecent or profane language can be aired
5. Libelous
6. Fighting words - words that inflict injury or tend to incite an immediate breach of the peace

• The level of protection depends on the kind of speech!!
• Freedom of speech = strong protection but not absolute

Protection

• Political speech gets the highest degree of protection
• Nonpolitical, noncommercial speech is also heavily protected (eg - literary speech, scientific speech)

Strict Judicial Scrutiny
- The court will apply STRICT JUDICIAL SCRUTINY of any law that tries to limit these

• Strict Scrutiny Test (applicable to political speech): Unless the government can show the speech restriction is
  necessary to the fulfillment of a

1. compelling government purpose and is the
2. least restrictive means available to achieve that purpose
3. the restriction trying to limit the speech will be struck down on First Amendment grounds.

Question 11

First Amendment - Commercial Speech

Answer 11

Commercial speech – law restricting speech that proposes a legal commercial transaction (e.g. an ad) in a way that is not misleading is subject to a lower level of scrutiny

Regulation is ok if it advances a substantial government interest, and is no more restrictive than necessary.

If commercial speech is misleading or seeks to promote illegal activity, then it gets no First Amendment protection.

UPSHOT: The government can regulate deceptive advertising.

Question - Is it permissible for a news outlet to publish “leaked” top secret information? Yes - Pentagon Papers

Question 12

The Second Amendment

Answer 12

Constitutional Law

“A well regulated Militia, being necessary to the security for a free State, the right of the people to keep and bear Arms, shall not be infringed.”

• Private business allowing or prohibiting guns is not a constitutional question

Question 13

The Fifth Amendment

Answer 13

• Constitutional Law*
• A laundry list
• “nor shall private property be taken for public use, without just compensation.”*
• But…Eminent Domain: the government can take private property for public use if it pays “just compensation”
  …railroads, power lines, highways…

Question 14

The 14th Amendment

Answer 14

• Constitutional Law*
• Due process & Equal Protection

Due Process - protects people from being deprived of life, liberty or property without due process of law

Equal Protection - everyone is entitled to equal protection of the laws. This doesn’t mean that all laws must treat all people exactly the same (21 to buy alcohol)

2 aspects

1. Restricts government (including state) from infringing those rights
2. Authorizes congress to create legislation to enforce those rights.

3 levels of scrutiny - depending on the issue

1. Rational Basis (lowest level) - Use if the law does not make distinctions based on a suspect class or affecting a fundamental right (e.g. marriage, voting, privacy are generally considered fundamental rights). A law is Constitutional so long as the differential treatment is reasonable and related to a legitimate government purpose.
2. Quasi Strict Scrutiny Test (in-between level) - ” (in-between) – Use for cases involving geography, age, or sex. Under quasi strict scrutiny test, law must be substantially related to achieving an important government goal (not the strict scrutiny, but more than merely a rational basis is required).
3. Strict Scrutiny (highest level) - Use for cases where the distinction is based on racial, religious, or nationality minority or involves fundamental right. Under a strict scrutiny test, differential treatment must be as narrow as possible and necessary to achieve a compelling government interest.

Question 15

What is a crime?

Answer 15

Criminal Law

A public wrong; conduct prohibited by state or federal government through statutes.

Question 16

Criminal vs. Civil Litigation - Parties, Proceedings, Responses, Burden of Proof, Standard of Proof, Defendant loses the case.

Answer 16

Criminal Law

Criminal

Parties: government (the people or the united states or the state of X) v. Defendant (private person/business).

Proceedings: Prosecutor (DA, US Attorney)

Responses: entering a plea (not guilty, guilty, nolo contendere)

• nolo contrende - accept punishment like speeding tickets
• no innocent plea because innocent until proven guilty is the assumption

The burden of Proof: On the government to prove the guilt of the defendant

Standard of Proof: “beyond a reasonable doubt”. The defendant is entitled to the presumption of innocence

Lost: Jail/Prison and/or Fine paid to the government

Civil

Parties: Plaintiff (person or business) v. defendant (person of business)

Proceedings: Plaintiff brings suit through their attorney

Responses: Filing an answer or motion to dismiss

The burden of Proof: Plaintiff must prove the defendant is liable

Standard of Proof: by a “preponderance of the evidence.”

Lost: Damages (pay $ to the plaintiff) or (less often) injunction (court order)

Question 17

Types of Crimes

Answer 17

• Criminal Law*
  1. Felony
• Serious crimes (murder, arson, sexual assault)
• Consequences: long prison sentences, fines, disenfranchisement
  2. Misdemeanor
• Less serious crimes (disorderly conduct, battery)
• Consequences: fines, shorter jail terms

Question 18

3 Elements the Government must Prove to Convict

Answer 18

Criminal Law

1. Show that the alleged acts violate a criminal statute
   - There has to be a statute prohibiting the conduct
   - No “ex post facto” enforcement
   - A statute that is too vague can be declared “void for vagueness”
2. Prove beyond a reasonable doubt that the defendant committed those acts (must overcome the presumption of innocence)
3. Prove that the defendant had the required criminal intent for the crime (e.g. committed the act willfully, or knowingly, or in some cases recklessly).

Question 19

Fourth Amendment Safeguards

Answer 19

• Criminal Law - Constitutional Safeguards*
• Protection against unreasonable search and seizure. Protects the public’s legitimate expectation of privacy

2 Questions

• Was there a government search/seizure? (What did the government search/seize? Did the person searched have a reasonable expectation of privacy related to that)
• What is unreasonable? (is there some reason this particular search/seizure is allowed?)
• Mr. Swerve example - no warrant, breathalyzer & blood test*

Exclusionary rule

• If police find evidence in an unlawful search/seizure, that evidence is admissible at triable, nor is any evidence they found as a result (fruit of the poisonous tree doctrine)
• Lots of exceptions now
• Only person whose privacy rights were violated can invoke the exclusionary rule
• cocaine example*

Question 20

Fifth Amendment Safeguards

Answer 20

Criminal Law - Constitutional Safeguards

Privilege against Self-Incrimination (5th Amendment) – cannot be compelled to testify against yourself

• Miranda warning – can refuse to answer questions & have the right to remain silent
• Prosecutors generally not allowed to comment on that silence at trial – usually.
• If you are going to invoke it – must say so.
• Privilege is focused on testimony – people must not be required to testify against themselves.
• Privilege usually does NOT apply when police seek identification.
• 5th A does NOT prohibit police Line-ups, Speaking for voice identification, fingerprints, blood test
• And the 5th Amendment does not extend to corporations, partnerships, or other “collective entities” because the privilege is “personal.”

Double Jeopardy

• No “person [shall] be subject for the same offense to be twice put in jeopardy of life or limb.”
• Same individual cannot be tried twice by the same governmental entity for the same crime.
  But…Civil/Criminal trials ok; State/Federal criminal trials ok.

Question 21

Sixth Amendment Safeguards &

Answer 21

• Criminal Law - Constitutional Safeguards*
• A criminal defendant has the right to
  1. A speedy and public trial
  2. Trial by jury
  3. Informed of the charge against you
  4. Confront your accuser
  5. Subpeona witnesses in your favor
  6. Have the assistance of an attorney

Question 22

Eighth Amendment Safeguards

Answer 22

• Criminal Law - Constitutional Safeguards*
• “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

4 Principles to determine whether punishment is “cruel and unusual”:

1. So severe it degrades human dignity
2. Inflicted in an arbitrary manner
3. The form of punishment is largely rejected by society
4. The punishment is patently unnecessary.

Question 23

Can a company be liable for a crime?

Answer 23

• Criminal Law - White Collar Crimes*

Yes.

Under modern rule, a company may be liable for criminal offenses committed by employees who acted within the scope of their employment and for the benefit of the corporation.

Punishment = fines

Question 24

Fraud

Answer 24

• Criminal Law - White Collar Crimes*
• Umbrella term used to describe lots of different kinds of deceit, tricks, schemes.
• Fraud happens when a person
  1. knowingly and willfully (or in some cases with reckless indifference to the truth or falsity)
  2. Falsifies, conceals, covers up any trick, scheme, material fact; or
  3. Makes a materially false statement or representation; or
  4. Uses a false writing or document knowing it contains false information.

Kinds of Fraud

1. Mail and Wire Fraud – any other kind of fraud done through mail or by electronic means across state lines. Makes the fraud punishable by up to 20 years in prison.
2. Securities Fraud – Often based on false financial statements provided to the public.
3. Health Care Fraud – e.g. billing for services not actually performed, “upcoding,” accepting kickbacks for patient referrals
4. Bankruptcy Fraud – Falsify information in bankruptcy proceedings by either the debtor or a creditor
5. Tax Fraud – willful evasion of taxes, e.g. by willfully filing false tax returns

Question 25

Conspiracy

Answer 25

• Criminal Law - White Collar Crimes*
• A “derivative” crime – has to be a conspiracy to do something illegal.
• Essentially a criminal partnership.
  2. Elements to prove a conspiracy:
  1. two or more persons came to a mutual understanding to try to accomplish an unlawful plan
  2. Defendant willfully became a member of the conspiracy
• Transferred intent - drug and cop murder example
  3. During the existence of the conspiracy, one of the conspirators knowingly committed at least one overt act to try to carry out the goal of the conspiracy
• This doesn’t have to be illegal activity - like buying Sudafed to make meth

Makes ALL the conspirators liable for all the acts of the conspiracy – even those the defendant did not personally commit.

Question 26

Obstruction of Justice

Answer 26

• Criminal Law - White Collar Crimes*
• An act with intent to obstruct the judicial process.
• Very broad
  1. false testimony (purgery)
  2. destruction of evidence
  3. threatening witnesses
  4. falsification of evidence

Question 27

False Statement to a Bank

Answer 27

• Criminal Law - White Collar Crimes*
• The fraudulent indictment, inflating assets for a loan
• Bank may let you out of the loan for illegal activity but the feds won’t
• Fine and PRISON

Question 28

False Statement to Federal Agency

Answer 28

• Criminal Law - White Collar Crimes*
• Crime to willfully and knowingly make a false or fraudulent statement to a department or agency of the United States.
• Bank robbery story
• Most time = person who lied
• Fine and PRISON
• Applies even indirectly – when defendant makes false statement to someone who is not a government agent, knowing that other person will pass the false statement on to a government agency.

Question 29

Larceny

Answer 29

• Criminal Law - White Collar Crimes*
• unlawful taking of personal property with the intent to deprive the owner of it permanently (i.e. theft)

3 Types

1. Robbery - by violence or threat with a gun
2. Burglary - Breaking into a building
3. Embezzlement - By an employee taking funds

Question 30

Can regulatory offenses be crimes?

Answer 30

• Criminal Law - White Collar Crimes*

Yes. Violating the Clean Water Act

Sarbanes-Oxley Act violations
Example: Knowingly altering documents or business records with the intent to impede a government investigation

Question 31

Foreign Corrupt Practices Act (FCPA)

Answer 31

• Criminal Law - White Collar Crimes*

Bribery and Illegal Gratuities
Example: violating Foreign Corrupt Practices Act (FCPA)

Prohibits US citizens and companies from making payments to foreign officials for the purpose of obtaining business, except in some limited circumstances.

FCPA includes accounting requirements re keeping records that accurately reflect how transactions and dispositions of assets.

Fines may be imposed on business and/or on individuals.

Fines imposed on individuals MAY NOT be paid by their employers

Question 32

Computer Fraud and Abuse Act

Answer 32

• Criminal Law - White Collar Crimes*
• imposes criminal and civil liability on a person who
  1. knowingly, and with intent to defraud,
  2. accesses a protected computer without authorization and
  3. obtains anything of value
• Mens rea = knowingly and with intent
• Hacking & trade secrets

Question 33

What is a tort?

Answer 33

Torts

A civil wrong that is not a breach of contract.

Question 34

2 Types of Torts

Answer 34

• Torts*
  1. Intentional Torts – defendant intended to commit an act, that act caused harm to another, and the harm that resulted from that act was reasonably forseeable.
  2. Negligence – Defendant breached a duty to the plaintiff (usually either the duty to act with reasonable care, or some professional duty), and the plaintiff suffered harm that was the a natural and foreseeable result of defendant’s conduct.

Question 35

Burden and Standard of Proof in Tort Cases

Answer 35

Torts

The Plaintiff bears the Burden of Proof.

The Standard of Proof is to be proved by a preponderance of the evidence

Question 36

The remedy in Tort Case

Answer 36

• Torts*
• Plaintiff recovers compensatory damages – to compensate plaintiff for the harms she suffered as a result of defendant‘s wrongful acts (e.g. medical bills, lost wages, harm to reputation, sometimes emotional distress)
• In a bad enough case, when the defendant’s conduct was “willful and wanton” injured party may recover punitive damages. Recovery beyond the harm suffered. Intended to punish and deter.
• difference in contract law - cannot win punitive damages*

Question 37

13 Types of Intentional Torts

Answer 37

1. Battery
2. Assault
3. False Imprisonment
4. Intentional Infliction of Emotional Distress (IIED)
5. Conversion (theft)
6. Defamation - slander & libel
7. Injurious Falsehood (Trade Disparagement)
8. Intentional Interference with Contractual Relations
9. Misuse of Legal Proceedings - Malicious prosecution & wrongful use of civil proceedings
10. Trespass
11. Nuisance
12. Invasion of Privacy - Public disclosure of private facts, intrusion upon solitude, unauthorized appropriation of name or likeness for commercial purposes.
13. Fraud

Question 38

Battery

Answer 38

Torts

the intentional and harmful or offensive touching of another without consent.

• Harmful: Produced bodily injury
• Offensive: Calculated to offend a reasonable sense of personal decency
• Intentional: Either intent to cause the harmful/offensive conduct OR intent to cause apprehension that such contact is imminent (and then the harmful/offensive contact occurs).
• Doctrine of transferred intent: if you mean to hit Arthur, but miss Arthur but instead miss and hit Bobby, you are still liable for Bobby’s injury even though you did not intend to hit Bobby.
• Defense: Consent of the person who suffered the harm (e.g. boxers)
• If there is consent you cannot sue

Question 39

False Imprisonment

Answer 39

Torts

intentional, unjustified confinement of a nonconsenting person.

• “Unjustified”…most states have statutes that allow merchants to detain suspected shoplifters for a reasonable period of time in a reasonable way. (So, in that case, the detention is justified.)

Question 40

Intentional Infliction of Emotional Distress (IIED)

Answer 40

Torts

Outrageous, intentional conduct that carries a strong probability of causing mental distress to the person at whom it is directed.

• Battery to the emotions
• All courts require the wrongdoer’s conduct to be outrageous before liability for IIED is imposed
• Most courts apply reasonable person test to figure out what is “outrageous”
• Most courts allow recovery for emotional distress even if no other tort is proven
• Some courts require proof of physical symptoms of emotional distress (e.g. headaches, sleeplessness).

Question 41

Conversion

Answer 41

Torts

Essentially – theft.

Book definition: Wrongful exercise of dominion (power) and control over personal (nonland) resources that belong to another.

In essence: Stealing, withholding, destroying, transferring to some one else something that is not yours.

Question 42

Defamation

Answer 42

Torts

Publication of untrue statements about another that holds that person’s character in contempt or ridicule. Publication just means made known to third parties.

2 kinds

1. Slander - oral defamation
2. Libel - written defamation (or defamation published over radio or tv)

Defenses to Defamation:

• Truth is an absolute defense to libel and slander. (But it is the defendant’s burden to prove the truth of the statement in a libel/slander case.)
• News media are not liable for defamatory untruths printed about public officials and public figures. Unless the plaintiff can show the untruths were published with malice (deliberate intent to injure) or reckless disregard for the truth.
• A Public Figure is anyone who has consciously brought themselves to public attention.
• Most suits are employee vs. employers, so won’t give recommendation just confirm dates at the company.

Question 43

Injurious Falsehood (Trade Disparagement)

Answer 43

Torts

Elements:

1. Publication
2. Of untrue statements
3. That disparage the plaintiff’s business, product, or quality

Differences from defamation:

• Deals with business/product rather than a person
• Plaintiff must establish the falsity of the disparaging statements
• Poncho case example

Question 44

Intentional Interference with Contractual Relations

Answer 44

torts

3 Elements

1. defendant intentionally
2. interferes with an existing contract
3. between the plaintiff and third party

Most often happens when trying to steal employees who have agreed to work for a certain period

Question 45

2 Types of Misuse of Legal Proceedings

Answer 45

torts

Don’t use the court system for purposes other than resolving actual legal disputes and prosecuting actual crimes.

1. Malicious Prosecution:

The defendant is liable when he:

• causes criminal proceedings to be initiated against the plaintiff;
• without probable cause to believe an offense has been committed;
• for an improper purpose; and
• criminal proceedings eventually terminate in the plaintiff’s favor.

2. Wrongful use of Civil Proceedings
   - Same as malicious prosecution, but instead of causing a criminal prosecution, the defendant files a baseless civil suit for an improper purpose.

Question 46

Trespass

Answer 46

torts

Any unauthorized intentional intrusion upon another’s real property.

• only minimal intent is required. You can be liable for trespass resulted from a mistake

Lots of versions of it:

• physically entering the plaintiff’s land; or
• causing another person to physically enter the plaintiff‘s land; or
• Remaining on the land after one’s right to remain has ceased; or
• Failing to remove from the land anything one has a duty to remove; or
• Causing an object or other thing to enter the land; or
• Invading the airspace above the land or the subsurface beneath it (provided that property law does not give the plaintiff rights to be there).

Question 47

Nuisance

Answer 47

torts

Interference with the plaintiff’s use and enjoyment of her land that is substantial and unreasonable.

Excessive smoke, odors, light, vibration.
Unlike trespass, nuisance does not have to involve physical invasion of the property

Question 48

Invasion of Privacy & its 3 kinds

Answer 48

torts

Interference with a person’s right to be left alone.

3 Kinds

1. Public disclosure of private facts
   - where the disclosure is highly offensive to a reasonable person

BUT:
- Matters of legitimate public interest may be disclosed, and

• Public figures/officials have no right of privacy for information related to their public lives.
• The truth is no defense (unlike defamation)
  2. Intrusion upon solitude
• Intentionally intruding on a person’s private life – e.g. illegal searches, wiretapping, continual telephoning…
• New frontier…social media
• Does not apply to searching matters of public record
  3. Unauthorized appropriation of name or likeness for commercial purposes.
• Commercial use of someone’s name or likeness, without consent, to imply endorsement of a product or service

Question 49

Fraud

Answer 49

torts

fraud is a tort, and crime, and a defense to contract enforcement

5 Elements for tort claim based on fraud

1. False, material misrepresentation of fact that;
2. the defendant either knows to be false or recklessly makes knowing that the information is incomplete;
3. when the defendant intends that plaintiff rely on the misrepresentation
4. the plaintiff does in fact justifiably rely on the representation
5. the plaintiff is damaged as a result.

Question 50

Negligence

Answer 50

1. Defendant owed a duty of care to plaintiff, and
2. Defendant breached that duty, and
3. Breach was actual and proximate cause of the injury experienced by plaintiff

Question 51

Duty in Negligence

Answer 51

“Duty” sometimes arises from the relationship between the plaintiff and the defendant or the defendant’s profession.

Accountants, lawyers, doctors, etc.

Duty to perform their professional obligations with the knowledge, skill, and care ordinarily possessed and employed by members of the profession.

More generally, courts often find that a person has a duty of reasonable care toward others when the person is performing some activity or conduct.

Must act as a reasonable person would act under the same or similar circumstances.

Drive as a reasonable person would drive. Manufacture as a reasonable manufacturer would manufacture. Etc.
General idea: your conduct must not create unreasonable risk of harm to others.

BUT: generally there is usually no duty to rescue (no duty that does not arise from your conduct).

Question 52

Foreseeability in Negligence

Answer 52

Generally, the defendant is only liable for harms that were reasonably foreseeable as risks of the defendant’s conduct.

The defendant is liable if his conduct created an unreasonable risk of foreseeable harm.

Context matters…

Question 53

How might a business be negligent?

Answer 53

Wet floor – customer slips and is injured

Forklift in one of those warehouses runs into customer

Box stacked precariously on a high shelf falls onto a customer

Company gathers customer identification info, and fails to protect it from hackers

No handrails on the stairway and an employee falls down them

Shopping carts flying around the parking lot hit a parked car

Products liability is a form of negligence

Question 54

3 types of injuries in negligence

Answer 54

1. Personal injury – physical or bodily injury
2. Property damage – harm to real estate or personal property
3. Emotional harms – Emotional damages are sometimes permitted, but are easier to recover if connected with a physical injury

Plaintiff can recover for only those injuries that were caused by the breach of duty are compensable.

Question 55

The breach of duty in a negligence case must cause the injury in two ways

Answer 55

1. actual cause - the injury would not have occurred but for breach. (If the breach had not have occurred, there would not have been an injury.)

AND

2. Proximate cause - The injury is a “natural and probable consequence” of the breach.

Question 56

4 Defenses to negligence

Answer 56

1. Intervening cause - If a later act, force, or event that contributes to the plaintiff’s injury was not foreseeable to the defendant, then most courts will say that the defendant is not liable for the harms that result directly from that intervening cause
2. Contributory negligence - The plaintiff’s own conduct caused some of the harm the plaintiff suffered, the Plaintiff has any fault in causing the harm, the defendant is NOT liable at all.
3. Comparative negligence - The plaintiff’s own conduct caused some of the harm the plaintiff suffered, the jury assigns % of the fault to the plaintiff and each defendant. The defendant is liable only for % of damages assigned to him.
4. Assumption of the risk - Voluntary consent to a known danger. If the plaintiff knew of the risk and went ahead anyway, the plaintiff may have “assumed the risk” of harm. In such cases, the defendant is not liable for the harm.
   (Exculpatory clauses: Contract clause in which the plaintiff expressly assumes the risk of harm. )