Module 6 Tort Law Flashcards
Tort
breach of a private duty imposed by the law
intentional tort
intend wrongful purpose
negligence
failure to exercise due care under the circumstances of which harm is proximately caused to one to whom the defendant owed a duty to exercise care
strict liability
civil wrong fir which there is absolute liability because of inherent danger in the underlying activity for example, the use of explosives
Defenses of Negligence
- contributory negligence
- comparative negligence
- assumption of the risk
- sovereign immunity
Assault
• fear and apprehension of battery
o typically assault leads to battery
False imprisonment
• any wrongful detainment where you are not free to leave (without that person’s consent)
Shopkeeper’s privilege
• right of a store owner to detain a suspected shoplifter based on reasonable cause and for a reasonable time without resulting liability for false imprisonment
Intentional emotional distress
created mental anguish caused by conduct that exceeds all bounds of decency
Invasion of Privacy
• intentional intrusion into the private affairs of another
Defamation
untrue statement by one party about another party
Slander
• defamation of character by spoken words or gestures
Libel
written or visual defamation without legal jurisdiction
Product displacement
false statements made about a product
Contract interference
• when a third party interferes with other’s freedom to contract
Trespass
• unauthorized action with respect to person or property
Malpractice
• when services are not properly rendered in accordance with commonly accepted standards
Prima Facia cause of action
- voluntary act
- breach of duty of care
- proximate cause
- damage/injury
Reasonable man of ordinary prudence
standard that you are held to
Proximate Causation
law of who is responsible for an act
Remote Causality
causation of an event alone is insufficient to create legal liability
Damages
• general:
o pain/suffering
• special: o dollar amount attached o property damage o loss of wage o medical bills etc.
Strict Liability
• 3 areas:
o maintenance of hazardous conditions
o harboring wild animals
o product liability
Declaration of Independence
1776;written mainly by Thomas Jefferson, it is in the form of a criminal indictment(charges brought against King George)
The US Constitution
1789-adoptedd from James Madison’s Virginia Plan. Federalists (John Jay, James Madison, Alexander Hamilton) all wrote in favor of its adoption
Constitution 4 powers
delegated powers, shared powers, police power, prohibited power
Delegated powers
powers expressly granted to the national government. Equal to the government
Shared powers
powers delegated to national government that may be excised by the state
Police power
power to govern; power to adopt laws for the protection of the public health, welfare, and safety
Prohibited powers
prohibits state and federal government from doing certain things. Ex: post facto
Articulated powers
article one section 8 lays out 18 articulated powers for which congress has to follow
Preemption
federal government’s superior over state law on the same subject area
Wickard vs. Filburn(1941)
filburn lost even though his goods did not cross state lines, leading to the affection doctrine (Filburn’s behavior affected commerce);Affection Doctrine-expanded authority of federal government in regulating interstate commerce.
Due Process
power of the government is limited by the 5th and 14th amendments. Government cant deprive you of “life liberty or property without due process of law.” 14th amendment also guarantees equal protection under the law.
Due process: Substantive
the what; in the case, decides the nature of penalty, signify attitude to particular judicial review
Due process: Procedural
the how; notice and hearing. How the charges will be brought about generally laid out in constitution in form of trial by jury
Due process: imminent domain
government has to pay you if they take your land
Due process: privilege and immunities
entitles a person going into another state to make contracts, own property, to the same extent as citizens of that state
14th Amendment
have to have a basis to treat people, but can still treat people differently
rational relations(14th)
the law is constitutional so long as it is “reasonably related” to a “legitimate” government interest
Heightened scrutiny(14th)
basis of sex. The law is unconstitutional; unless it is substantially related to an “important” government interest
Strict scrutiny(14th)
-(basis of race color religion age)law is unconstitutional unless it is “narrowly tailored” to serve a “compelling” government interest
4th amendment
protects against unreasonable search and seizures. The highest level of protection is home, then person, then curtilage (area in fence.) Lowered expectation of privacy in business than in home
Exigent Circumstances (4th amendment)
• means you can enter a structure without a warrant if, imminent danger, evidence faces imminent destruction, or a suspect will escape
