FI 341 Chapter 19: Liability Flashcards
Legal Wrong
A violation of a person’s legal rights, or a failure to perform a legal duty owed to a certain person or to society as a whole
Contract
An agreement between two or more parties that is legally enforceable
Tort
A legal wrong for which the court allows a remedy in the form of money damages OR a civil wrong arising out of contract
Plaintiff
The person who claims injury due to the action or inaction of another; can sue for damage
Tortfeasor or Defendant
Person who allegedly damages plaintiff
Intentional Tort
Intentional act resulting in harm (e.g., fraud, assault, slander, libel)
Strict Liability Tort
Liability is imposed without regard to fault or negligence
Negligence
The failure to exercise the standard of care required by law to protect others from an unreasonable risk of harm
Proximate Cause Relationship
A relationship/connection that requires an unbroken chain of events
Compensatory Damages
Compensating the victim for losses actually incurred
Special Damages (Economic)
Example: Medical expenses
General Damages (Non-economic)
Example: Pain and Suffering
Punitive Damages
Designed to punish people and organizations so that others are deterred from committing the same wrongful act
Assumption of Risk
A person who understands and recognizes the danger inherent in a particular activity can’t recover damages for an injury
Contributory Negligence (Common Law Doctrine)
The plaintiff can’t collect damages if his/her negligence contributed in any way to the loss
Comparative Negligence
Modifies common law doctrine of contributory negligence; Financial burden of injury is shared by both parties according to their respective degrees of fault.
Pure Rule (Comparative Negligence)
Plaintiff can collect damages even if negligent, but the award reward is reduced in proportion to the plaintiff’s fault
49 Percent Rule (Comparative Negligence)
Plaintiff can collect (reduced) damages only if his/her negligence is less than the defendant’s negligence
50 Percent Rule (Comparative Negligence)
Plaintiff can collect (reduced) damages only if his/her negligence is not greater than defendant’s negligence
Fellow Servant Rule (Antiquated)
The ability to collect damages for negligence may depend on state law, which sometimes modifies common law rules
Last Clear Chance Rule
Modifies contributory negligence doctrine; A plaintiff who is endangered by his/her own negligence can still recover damages from the defendant if the defendant has a last clear chance to avoid the accident but fails to do so
Fellow Servant Rule
Injuries by a fellow employee are not the responsibility of the employer (antiquated)
Imputed Negligence
The negligence of one person can be attributed to another person (Example: agent/principal relationships)
Vicarious Liability Law (Imputed Negligence)
A motorist’s negligence is imputed to the vehicle’s owner
Family Purpose Doctrine
The owner of an auto can be held liable for negligent acts committed by family members
Dram Shop Law
A business that sells liquor can be held liable for damages that may result from the sale of liquor
Res Ipsa Loquitur
“The thing speaks for itself”; The very fact that the injury or damage occurs establishes a presumption of negligence on behalf of the defendant (Example: A dentist extracts the wrong tooth)
Res Ipsa Loquitur (Three Requirements)
The event is one that normally does not occur in the absence of negligence; The defendant has exclusive control over the instrumentality causing the accident; The injured party has not contributed to the accident in any way
Trespasser
A person who enters or remains on the owner’s (or occupant’s) property without the owner’s consent; Duty: Refrain from injuring a trespasser (sometimes referred to as The Duty of Slight Care)
Licensee
A person who enters the premises with the occupant’s expressed or implied permission (Example: A door-to-door salesperson, a guest at a party); Duty: Owner must warn the licensee of unsafe conditions or activities which are apparent
Invitee
A person who is invited onto the premises for the benefit of the occupant (Example: Customer in a store); Duty: To inspect the premises and eliminate any dangerous conditions
Attractive Nuisance
A hazardous condition that can attract and injure children; Owners/occupants of land are liable for injuries to children who may be attracted by some dangerous condition, feature, or article; (Example: A contractor leaves keys in ignition, child drives vehicle and gets injured)
Sovereign Immunity
Historically, some entities were granted immunity from suit
Governmental Entities
Today, can be sued in almost every aspect of governmental activity
Proprietary Function
A governmental unit can be held liable if it is negligent in the performance of a proprietary function (Example: The operation of water plants)
Governmental Function
Immunity from lawsuits for governmental functions, such as the planning of a sewer system, has been eroded
Charitable Institutions
No longer immune from lawsuits, especially with respect to commercial activities
Respondeat Superior
An employer can be held liable for the negligent acts of employees while they are acting on the employer’s behalf, as long as the worker is an employee and is acting within the scope of employment when the negligent act occurred
Collateral Source Rule
Under the collateral source rule, the defendant cannot introduce any evidence that shows the injured party has received compensation from other collateral sources
Joint and Several Liability Rule
Under this rule, several people may be responsible for injury, but a defendant who is only slightly responsible may be required to pay the full amount of damages
Alternative Dispute Resolution (ADR)
A technique for resolving a legal dispute without litigation
Arbitration (ADR)
Parties to a dispute agree to be bound by the decision of an independent third party
Mediation (ADR)
A neutral third party tries to arrange a settlement without resorting to litigation
