Intro Tort Liability_pg9-16 Flashcards
Redress
The receiving satisfaction for an injury sustained.
Aggrieved party
one whose pecuniary interest is directly Affected by the adjudication
A complaint is usually filed after what action? What is included in a complaint?
Pre-suit settlement; what occurred and the relief sought
Q of law are tried in?
judge- trial
Q of fact are tried by?
jury or judge (bench trial)
In the early stages of proceedings, what action does a defendant usually take if they think the complaint is based on a novel, or unsound, legal theory?
a motion to dismiss
demurrer
a motion to dismiss
If a defendant files a motion to dismiss and the plaintiff responds by arguing that the legal theory is sound, what happens?
The issue will be posed before the judge
If the judge grants the defendants motion to dismiss, the litigation will come to an end, unless?
the plaintiff appeals
What does it mean when the judge dismisses the plaintiff’s complaint “without prejudice”?
the plaintiff will then have the opportunity to amend their complaint to add essential facts, creating a sound legal theory where one did not exist before
if a judge denies a defendants motion to dismiss he is saying?
the complaint holds a good legal theory and that the plaintiff will be entitled to recover damages IF the essential facts alleged in the complaint are true
If the judge denies the defendants motion to dismiss the complaint, what can the defendant do in some states?
appeal the judges ruling immediately- interlocutory appeal
If the judge denies the defendants motion to dismiss the complaint and the defendant cannot make an interlocutory appeal, so the case will go to trial, what action the defendant take? What is the term for this?
the defendant can meet the plaintiff’s fact allegations by filing an “answer” in which the defendant denies some or all of the plaintiff’s allegations of fact and possibly adds some new ones of his own; “affirmative defenses”
After the initial motions phase of a case, and before it goes to trial what do both parties usually engage in?
discovery
what is a deposition?
It occurs during the discovery phase; its when opponents or expert witnesses are questioned under oath
During discovery what are some actions the parties can take to inquire about matters relevant to the case?
interrogatories and requests for admission
what are interrogatories?
a written question which is formally put to one party in a case by another party
what are requests for admission?
where the court asks for the permission to introduce some certain evidence
although most fact disputes are resolved at trial, many cases can resolve them prior to trial after discovery. What are these called?
Settlement or summary judgement
what is a summary judgement?
A quick decision of a court based on briefings and affidavits where material facts are not disputed or where the court’s opinion is used for judgment
when resolving motions for summary judgement, the judge must view the evidence in the light most favorable to who?
the party resisting the summary judgement motion- the non-moving party
prima facie element
Sufficient to establish a fact or raise a presumption unless disproved or rebutted
sometimes, a trial may not reach the jury stage because the plaintiff will have failed to carry the burden of production, which is?
if a prima facie element is ruled inadmissible
If the plaintiff failed to carry the burden of production the defendant may make what motion?
a directed verdict
what is a directed verdict?
“judgement as a matter of law”; asks the judge to rule that the plaintiffs evidence is so lacking and that no jury could reasonably find in the plaintiffs favor and thus it is pointless to continue the trial
What happens after a judge grants a directed verdict?
the case will be terminated unless the plaintiff appeals successfully
prima facie case
the plaintiff has presented sufficient evidence such that a jury could (but is not compelled to) find in the plaintiff’s favor
What happens if the judge denies a defendants directed verdict motion?
it will go to closing arguments –> jury will be charged by judge (judge gives instructions on how the jury must apply the law to the facts) –> deliberation –> verdict
What are 3 action options for the losing party and what would happen in response?
- judgement notwithstanding the verdict- the jury reached a verdict that no jury could reasonably have reached on the evidence before it; grant the losing party’s motion for judgement as a matter of law (loser becomes winner) or judge may grant a new trial
- either party can file post-trial motions complaining that the damages awarded were either insufficient or excessive; judge may add to or reduce the damages awarded (additur or remittitur)
When an appeal is lodged, the appealing party will seek to persuade the appellate court of which two things?
- the trial judge erred in the admission or exclusion of evidence
- the error(s) were prejudicial- the judges mistake affected the outcome of the case
What is a tangible loss?
pecuniary loss ($)
What is an intangible loss?
pain & suffering, can be translated into $
What are punitive damages?
used to punish the defendant
single judgement rule
a plaintiff can sue only once for all injuries sustained as the result of a single tort, and they must sue within a specified time
executing on a judgement
collecting damages by seizing the defendants property or garnishing a portion of his wages
