Legal and Liability Flashcards
Our current legal system
Criminal Law
Civil Law
Claims fall under…
Civil (tort of negligence)
Tort
civil wrong
Types of Tort
Intentional Tort
Strict Liability
Negligence
Strict Liability
The claimant only has to prove that a tort occurred and the defendant was responsible. This usually involves situations the law considers inherently dangerous
responsibility imposed on a party by virtue of a statute or case law,
in the absence of intentional or negligence conduct
Negligence
failure to use due care by one person to another that a reasonably prudent person would exercise under the same circumstance
Duty (negligence)
Triggered through law or contract, it is an obligation of one upon another. Someone must either do or not do something. Example: a driver has a duty to stop at a red light.
Breach of Duty (negligence)
The violation or omission of a duty. Example: a driver runs a red light.
Proximate Causation (negligence)
The result of a direct action that sets in motion a chain of events that is unbroken.
It is based upon foreseeability. Example: would it be expected that someone who drives through a red light would impact someone who is driving through the intersection on a green light?
Damages (negligence)
Injury or loss of value.
4 Requirements for Negligence
Duty - Breach of Duty - Proximate Causation - Damages
Prudent person
a personification of an ideal of reasonable behavior in every circumstance
The claimant has the responsibility to prove that the insured breach caused an injury
The claimant has the responsibility to prove that the insured breach caused an injury
Modified Comparative Neg (50%)
*affects claimant
Over 50% negligent - no payment
If you are under 50%, you will receive the % you did not contribute
Ex. 49% neg - receive 51%
Modified Comparative Neg (49%)
*affects claimant
Over 49% negligent - no payment
Pure Comparative
*affects claimant
If you are 90% negligent - you can receive 10% of loss, etc.
Contributory Negligence
*affects claimant
Any contribution - no pay
Plaintiff is barred from recovery if negligence is 1% or greater
There are two forms of Assumption of risk:
Express and Implied
Express
Each party entered into an agreement. written
Implied
There is NO WRITTEN agreement between the parties but there may be a verbal agreement.
Last Clear Chance Doctrine
*negligence defense for insured
The claimant/tortfeasor can each assert that despite their negligence, the other party had the last clear chance to avoid the accident and did not take evasive action and therefore should be held fully responsible.
Act of God or Nature
*negligence defense for insured
This is an event which could not be predicted and is outside of human control.
An example of this would be a tornado. A tornado may unexpectedly throw a vehicle into another vehicle.
Sudden Emergency Doctrine
*negligence defense for insured
heart attack, seizure, etc.
A driver, although driving in a reasonable and prudent manner, is confronted with a situation beyond their control (heart attack, seizure) and may not be held to the same standard of care even the evidence suggests the wisest course of action was not taken.
Assumption of Risk
*negligence defense for insured
The claimant voluntarily and knowingly assumed the risk of the conduct involved. An example of this would be a passenger who gets into a vehicle with a driver who has been drinking
