Liability Risk Flashcards
Stare decisis definition
“rule of law established for the first time by a court for a particular type of case and thereafter referred to in deciding similar cases.” - PRECEDENT
Legal wrong definition
The failure to perform a legal duty owned to another.
Tort definition
a wrongful act or an infringement of a right (other than under contract) leading to civil legal liability OR legal wrong for which the remedy is in the form of money.
Intentional tort definition
a category of torts that describes a civil wrong resulting from an intentional act on the part of the tortfeasor (alleged wrongdoer).
Types of Torts
♦ Intentional
♦ Absolute
♦ Negligence
Absolute liability definition
Offences in which it is not open to a person to avoid liability on the ground that she or he acted under a reasonable mistake of fact which, if the facts had been as the accused believed them to be, would have made his act innocent.
Negligence definition
the failure to exercise the standard of care required by law to protect others from harm.
Elements of Negligence
- Exercise due care
- Failure to exercise due care
- Damages to the injured party
3 types of damages to an injured party
♦ Special damages - actual damages/costs, things you can measure
♦ General damages - pain and suffering, its subjective. Another example would be mental damage You cannot measure them.
♦ Punitive damages - monetary compensation awarded to an injured party that goes beyond that which is necessary to compensate the individual for losses and that is intended to punish the wrongdoer.
Defences against Negligence
Contributory negligence:
- 49 percent rule
- 50 percent rule
- Last clear chance rule
Contributory negligence definition
The plaintiff most likely would have avoided injuries had he or she not also been negligent.
3 types of contributory negligence
- Pure rule
- 49 percent rule
- 50 percent rule
Pure rule (contributory negligence)
reduces the plaintiff’s damages by the amount that he contributed to his own injury. Thus, if a plaintiff has been judged to be 30% at fault, then his reward will be reduced by 30%.
49 percent rule (contributory negligence)
requires that the defendant be less than 50% responsible in order to collect any damages, and any damages awarded will be reduced by the plaintiff’s contribution. Under this rule, only 1 party can collect where both parties are suing each other.
50 percent rule (contributory negligence)
permits the plaintiff to collect damages only if his share of the negligence is not greater than 50%. In contrast to the 49 percent rule, both parties can collect 50% of their damages from each other if both are judged to be 50% at fault. However, if the degree of fault is anything but 50%, then only 1 party will be able to collect damages, just as under the 49 percent rule.
Last clear chance rule
modifies comparative negligence by allowing the plaintiff to collect damages from the defendant, even if the plaintiff contributed to his injury, if the defendant had a last clear chance to prevent the injury. In other words, could the defendant have prevented the injury regardless of the plaintiff’s negligence? If the answer is yes, then the plaintiff will still be able to collect regardless of comparative negligence.
Assumption of risk
one assumes risk by engaging in an activity that is inherently risky, and, therefore, should not be allowed to collect damages if an injury results by engaging in the activity. Thus, if one plays racquetball without wearing goggles, and her opponent hits the ball and injures her eye, she will be prevented from collecting damages from her opponent, because by playing racquetball without wearing goggles, she assumed the risk that she will suffer an eye injury or even lose an eye while playing.
Imputed negligence
a negligence of another party is imputed on you. For example, a parent can be held responsible for some acts of a child or an employer can be made liable for negligence of his/her employee.
Res lpsa Loquitur
a doctrine that infers negligence from the very nature of an accident or injury in the absence of direct evidence on how any defendant behaved. The act speaks for itself. The standard burdens of proof shits to the plaintiff.
3 elements for Res lpsa Loquitur to apply
- The event must not have occurred but for the negligence of another party - coke can
- The other party has superior knowledge or control over the cause of the harm - producer - the cause of the harm must be in exclusive control of the other party
- The other party must have not contributed to the harm in a meaningful way - no alteration to the product
Specific Applications of the Law of Negligence
♦ Ownership of Property ♦ Ownership and Operation of Automobiles, Trucks, Commercial Liveries, etc. ♦ Government Liability ♦ Charitable Institutions ♦ Employer and Employee Relationships ♦ Parents and Children ♦ Animals
Degree of care required for trespasser (application of law of negligence)
You owe no duty to the trespasser BUT no traps.
Degree of care required for licensee (application of law of negligence)
Licensee - the post man. You must warn of problems on your property. But you have no duty to inspect your property
Degree of care required for invitee (application of law of negligence)
With regard to invitees you must inspect your property, you must warn, you must must make it obvious to avoid.
Attractive nuisance doctrine
States that a landowner may be held liable for injuries to children trespassing on the land if the injury is caused by an object on the land that is likely to attract children.
Proprietary functions (with respect to government functions)
Municipal corporations have a proprietary function, a term describing the duty or capacity of a city to enter into business ventures or to perform discretionary acts in the best interests of the citizens.
One bite rule (domestic pets and negligence)
A rule that says that the owner of a domesticated animal (e.g., a dog) will be held strictly liable for injuries caused by the animal only if the owner knew or should have known about the animal’s dangerous or vicious propensities, which have been manifested in the past.
Respondeat superior
(Latin: “let the master answer”; plural: respondeant superiores) is a US legal doctrine which states that, in many circumstances, an employer is responsible for the actions of employees performed within the course of their employment
