unit four test review Flashcards
tort
in civil law, when someone commits a wrongdoing
plaintiff
person bringing the charge to court
defendant
person on trial
damages
defendant is ordered to compensate the plaintiff by paying monetary damages (injuries/losses by one person/money asked for/paid by court order for injuries/losses)
remedy
something to make up for the harm done (there isn’t always a remedy)
liability
legal responsibility for harm
settlement
agreement reached by both parties to compensate the injured person, made before the trial that settles/ends dispute
common law
system in which court decisions establish legal principles and rule of law
precedent
appellate decisions used to decide future cases
civil law
deals with dispute between individuals/groups of individuals
preponderance of the evidence
standard of proof, more than 50% of the weight of the evidence must be in the plaintiff’s favor, in order to wi, for civil cases
deep pockets
plaintiffs try to sue a defendant who has enough money to pay for the damages
class action
hundreds of people can be injured by an action, and these people can form a “class” and bring their lawsuit together
premium
insured person agrees to make payments to the insurance company and the insurance company agrees to pay for the damages caused by the insured persons for the length of the contract
malpractice
lawsuits brought against doctors, lawyers, etc., by clients/patients who claim that a professional acted in a negligent manner
deductible
an amount you agree to pay towards repairs before the insurance company pays anything
intentional wrong (tort)
someone intents to cause harm against a person/property, most common tort
negligence (tort)
failure to exercise someone’s care (physical, emotional, financial)
strict liability (tort)
legal responsibility without fault (least common)
can minors be sued
yes, but must prove that the child acted unreasonably for their age
what is a contingency fee and the pros/cons for the plaintiff?
how much attorney gets IF they win, (30-50%) pro: allows those with limited finances to have an access to an attorney
con: some cases can be settled without a trial or filing a case in court
under what conditions is worker’s compensation usually denied to an injured employee?
if the accident was due to employee’s failure to follow safety rules
what is the purpose of having insurance?
protection against unexpected financial losses, and is a way to manage your risk
compensatory damages
money the defendant pays to the plaintiff for harm (physical, emotional, financial)
nominal damages
token amount of money awarded to the plaintiff to show that the claim was justified(wasn’t really any damage to the plaintiff)
punitive damages
meant to punish, can be combined with nominal damages, money paid to to the plaintiff to by the defendant, to punish them and warn others to not engage in such conduct
infliction of emotional distress
intentionally using words or actions that are meant to cause someone extreme anxiety or stress
false imprisonment
being held against your will
real property
land and all items attached to it (houses crops, immobile items)
personal property
property/belongings that can be moved such as clothes, cars, furniture, appliances
injunction
a court order requiring a person to do/refrain from doing a particular act
conversion
taking another’s property without consent
two types of intentional torts
injuries to a person, injuries to a property
name and describe the 5 most common intentional torts
battery (harm to another w/o consent )
assault(threat)
false imprisonment (being held against your will)
trespass (intrusion on another’s property
infliction of emotional distress (using words/actions meant to cause someone anxiety/distress)
nuisance
unreasonable inference with use and enjoyment of ones property, repeated/continued
legal defenses used against a claim of infliction of emotional distress
conduct wasn’t outrageous
plaintiff is overly sensitive
a reasonable person would not have suffered extreme distress as a result
what is defamation (and best defense against it)
slander (verbal) and libel (written)
if what is being said is true, it is not defamation
two most common defenses to intentional torts
consent:plaintiff consented willingly
privilege: conduct was justified
(legal authority, self defense, defense of property)
intellectual property
person’s idea/invention that is given special ownership protections
patent
serves inventors, grants exclusive right to exploit an invention, medical devices, goes for 20 years
copyright
serves authors, protects original creative works, music, art, photography, 70-170 years time limit
trademarks
serves brands, distinguishes product/service from competitors, words, logos, signs, colors, indefinite time limit
infringement
illegal use of someone’s property, such as a copyright, patent or trademark
derivative works
works that are very similar to but slightly different from a copyrighted work
negligence
failure to exercise reasonable care
elements of a negligence case
!!ALL MUST BE PROVEN!!
duty-was it the defendant’s duty?
breach of duty-did they fail to perform this care?
causation-was it their conduct that caused the harm?
(cause in fact, would the harm have occurred without it)
proximate cause (must be a close connection between wrongful act and harm caused)
(foreseeable harm, was the damage foreseeable)
damages-did the plaintiff suffer harm/damages
contributory negligence
plaintiff cannot recover damages if their own negligence contributed to their own harm
comparative negligence
divides losses according to degree to which each person is at fault. variation of contributory negligence
counterclaim
claim made by the defendant against the plaintiff in a civil case
assumption of the risk
when a person voluntarily accepts the risk in a known danger
what is the “reasonable person standard”
imaginary/idealized, how we as a society expect people to act in a reasonable situation not the average, everyday person
what is the attractive nuisance doctrine
must take reasonable care to protect children if landowners have something that may attract children on their property (pools, trampolines)
what is the basic idea behind the awarding of damages in a negligence lawsuit
belief that the plaintiff should be restored to their pre-injury condition (make up for it via money)
what are some examples of economic harm
medical expenses, lost wages, damages to property, reduced earnings
what are some examples of non-economic harm
pain and suffering, mental distress, permanent physical loss
what is the standard used in negligence cases involving minors as defendants
compares their conduct with others of the same age, intelligence, and experience. minors who engage in adult crimes/activities are often held to the same standard as adults
strict liability
legal responsibility or liability without fault
toxic torts
address harm resulting from the use of toxic chemicals and other hazardous materials
product liability
legal responsibility of manufacturers or sellers for injuries caused by defective products
examples of strict liability
construction/demolition jobs, storing and transporting dangerous goods, dog attacks, product liability, dram shop (over sell alcohol with a bad result)
what two elements must be proven in order to prove strict liability
causation (was it their actions that caused your harm)
damages (was there real harm done)
don’t have to prove breach of duty
how does the law define dangerous activities
unreasonably dangerous activities where risk cannot be eliminated even with reasonable care
under what conditions can pet owners be held strictly liable for their pet’s actions?
pet owners can be held liable if they knew or should have known of viciousness of pets
what are some possible defenses to strict liability?
prove negligence by the plaintiff
-prove that plaintiff misused to product leading to their harm
prove no causation and damages
what goals should the tort law system achieve?
compensate harmed persons in prompt/efficient way
fairly allocate benefits to victim and costs to wrongdoers
deter conduct that is unreasonably risky and dangerous
what are some criticisms of the tort law system?
unreasonably high amounts of money awarded to plaintiff
going to court is expensive, lawyers get too much money
resolving disputes takes too long
difficult to determine who’s at fault in tort cases
injured should sometimes receive compensation for a loss, regardless of whether the other party was at fault
what is the main focus of tort reformers?
change the process of settling claims(no fault:Indiana’s auto insurance)
(require parties to attempt to settle dispute before court)
limit amount of time to file a lawsuit (statute of limitations)
limit damages/settlements
(90% of civil cases settled outside of court) (media cases creates perception of large awards for damages)
explain how the cost of safety can affect prices of products
tort law provides a strong incentive to produce safe products and deliver safe services. Knowing that harmful products or practices will be costly encourages careful product development and testing as well as proper training and supervision of service providers
