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Blaw Exam #2
Pomeroy Gaga
| Question | Answer |
|---|---|
| What is a tort? | The french word for a "wrong" |
| Often the same act will be both a... | crime AND a tort |
| The primary objectives of CRIMINAL law are to: (two things) | PUNISH wrongdoers and DETER future criminal conduct / preserve order in society |
| The primary objective of TORT Law is to compensate injured parties.. | Although, there is ALSO an element of "punishment" and deterrence, esp. when punitive damages are awarded. |
| In a criminal proceeding the VICTIM is NOT a what? | a party |
| Criminal | Beyond a reasonable doubt |
| Civil | by a preponderance of the evidence |
| Tortfeasor | Person committing a tort (used interchangeably with defendant (D) |
| Actionable | Certain acts or behavior can serve as the basis for a viable lawsuit ad are therefore "actionable" --that is, Plaintiff has a "cause of action" (COA) and can file a legal action based on the act or behavior. |
| TARP | The Average Reasonable Person |
| Intentional Torts | require intent. The tortfeasor must intend to commit an act (although does not have to intend "harm"), the consequences of which interfere with the protected interests of another person in a way which causes them harm. |
| "Unintentional" Torts (Negligence) | No intent required. D acts or fails to act as TARP |
| "Strict Liability" Torts | Liability without fault when someone engages in "inherently dangerous" or "ultra-hazardous" activities. |
| The 3 categories of torts: | Intentional Torts "Unintentional" Torts (Negligence) "Strict Liability" Torts |
| Defamation includes: | both libel (written "permanent") and slander (oral speech "non-permanent") It is not defamation if the statement is true |
| Elements of defamation (what P has to prove for a defamation case) | The D made an untrue statement The statement was "published" to a 3rd person (can be just one) The defamatory statement must harm the P's reputation |
| Defenses to Defamation: | Truth Privelege |
| Truth is normally an | absolute defense. The alleged defamatory words cannot be a statement of opinion, whether true or false |
| Privileges are either | Absolute or Qualified/ Conditional |
| Qualified or Conditional Privilege: | as long as certain statements are made in good faith and made only to those who have a legitimate interest in the statement, the statements are privileged. |
| the other qualified privilege is in relation to public figures: | generally speaking otherwise false and defamatory statements made about public figures are privileged unless they are made with actual malice. |
| Actual malice | statements made with either 1: knowledge that the statements are false, or 2: reckless disregard for whether they are true or false |
| assault | the threat of immediate harm or offensive contact, or any action that cases reasonable apprehension of imminent harm. Actual physical contact is NOT necessary to an assault. NOR is actual fear, |
| false imprisonment | the intentional confinement or restraint of another person, without authority or justification, and without that person's consent. --involves interference with the freedom to move without restriction |
| merchant protection statutes | most states have enacted merchant protection statutes. The statutes allow merchants to stop, detain, and investigate suspected shoplifter without being liable for false imprisonment. |
| BATTERY | The intentional, unauthorized, and harmful OR offensive physical CONTACT with another person.--there does NOT have to be actual harm or injury to the person IFit is offensive. If not offensive, THEN there must be harm. |
| merchant protection statutes allow merchants to stop, detain, and investigate suspected shoplifer without being liable for false imprisonment IF: | 1. there are reasonable grounds for the suspicion (or "probable cause") 2. suspects are detained only for a reasonable time, and 3. investigations are conducted in a reasonable manner. |
| TRESPASS TO REAL PROPERTY (LAND) | Definition: Trespass to land is when a person intentionally: |
| TRESPASSING INCLUDES | 1. Enters surface of land without the owner’s permission 2. causes object to be placed on the land of another without the owner’s permission. 3. stays on land of another after the owner tells him to leave 4. won't remove something placed on the proper |
| Trespass to Personal Property: | Taking or using another’s personal property, without permission, in such a way as to interfere with the other person’s right to exclusive use and possession of his personal property, without the owner’s permission or legal authorization. |
| TRESPASSING IN GENERAL | --Like in trespass to land, the focus of trespass to personal property is injury to the owner’s use and enjoyment of his personal property, not injury to the property itself.--There does not have to be any intention to retain the propert |
| Conversion: | Civil theft. Theft is a crime. If it is a civil “taking,” it is conversion. Taking, selling, or retaining possession of personal property that belongs to another without the other’s permission or legal authorization. |
| PRIVACY TORTS | These torts generally infringe on a person’s privacy. |
| TWO TYPES OF PRIVACY TORTS | 1. Commercial Exploitation: the use of a person’s name, picture, or other likeness for commercial gain, without their permission. Intrusion: intruding into an individual’s affairs or seclusion in an area that needs privacy. |
| 1. Commercial Exploitation: | the use of a person’s name, picture, or other likeness for commercial gain, without their permission. |
| 2. Intrusion: | intruding into an individual’s affairs or seclusion in an area in which the person has a reasonable expectation of privacy. |
| “Business Torts” include: | TORTIOUS INTERFERENCE WITH A CONTRACT and TORTIOUS INTERFERENCE WITH A PROSPECTIVE ADVANTAGE |
| In addition, the Lanham Act, | a federal statute, provides broad protection to business for false statements made with intent to harm another’s business. |
| TYPES OF TORT DAMAGES: | compensatory and punitive |
| 1. Compensatory: | PURPOSE: to compensate the P. To make the P whole again. Amount = an amount equivalent to all losses caused by the tort, including compensation for medical expenses, lost wages, and pain and suffering. |
| 2. Punitive: | PURPOSE: To punish the D and deter future wrongdoers. |
| Punitive damages are sometimes allowed when | the conduct of a D falls so below the ethical expectation that one might characterize the conduct as “evil” or intending harm; however, punitive damages are NOT generally awarded when D’s conduct is merely simple negligence. |
| Punitives are based on 2 factors: | --the severity of the wrongful conduct and --the wealth of the D (to deter, it has to “hurt.”) |
| --Many groups and individuals, especially consumer advocates or consumer protection groups, believe that punitive damages are the only way to | keep dangerous products off the market. |
| --the theory of compensatory damages is that they are not enough deterrence and that companies are | willing to pay a certain amount to damaged consumers in return for the much higher profits that result from putting products that cause damage on the market. |
| The contrary argument of the theory of compensatory damages, usually by businesses or free market advocates, is that businesses have an obligation to stockholders to | maximize profits and they should not be punished for making these “bottom line” decisions. |
| Beginning in the mid-90s the U.S. Supreme Court in some landmark rulings held that.. | punitive damages can be a violation of the Constitution—of the 14th Am. Due Process rights of companies—and, in subsequent decisions, steadily diminished the amount of punitive damages allowed. |
| “CYBER” TORTS Online Defamation: | What would be libel or slander in another medium might not be in an online message, even if it attacks another person or entity in harsh, often personal, and possibly defamatory, terms. |
| the Communications Decency Act of 1996 absolves Internet service providers (“ISPs”) from | liability for disseminating defamatory material created by 3rd parties; |
| the Internet affords a high degree of anonymity to the person who | posted the defamatory message, so if cannot sue the “provider,” who do you sue? |
| Negligence | --Failing to exercise the standard of care that a reasonable person would exercise in similar circumstances.”--Negligence does not require intent, |
| Actionable negligence requires following elements: | (1) D owes P a duty of care (2) breach by D of the duty of care;(3) actual causation(4) foreseeable harm (proximate cause) (5) actual harm, injuries |
| The 1st ELEMENT of actionable negligence is: | DUTY OF CARE |
| As we learned, there is NO DUTY TO RESCUE others from harm, even if a person is able. | An individual may feel a moral obligation to do so, but there is no legal obligation. |
| Q: What is the “duty of care” people owe each other? | A: The duty to exercise reasonable care in their dealings with others. |
| Q: What is reasonable care? : | A: The degree of care a reasonable person (TARP = The Average, Reasonable Person) would exercise in the circumstances. |
| --If a person, through his/her negligence puts another in a dangerous situation, then (s)he has a duty to remove the person from that situation to prevent further harm. | EX: if you negligently run someone down in the street with your automobile, you have a duty to remove them from the street where they may be run over again by another vehicle and further harmed. |
| In addition, certain people have a special duty to certain others because of the circumstances or nature of the relationship, including employers, landowners, landlords, and businesses that invite others onto the premises. | For example, landowners owe a duty of care to protect others from harm on their land, although they are liable to trespassers only if their acts or failure to act constitute GROSS MISCONDUCT. |
| 2. BREACH OF DUTY OF CARE: | Once P establishes that D owed a duty of care, then (s)he must prove that D BREACHED the duty of care. |
| --D breaches the duty of care if | he or she acted or failed to act the way a reasonable person would under the circumstances |
| 3. ACTUAL CAUSE | D’s act or omission is a DIRECT cause of P’s damages and, without said act or omission, P’s injury would not have occurred.--Determined by the “but for” test: the damages P suffered would not have occurred “but for” the actions of D. |
| 4. FORESEEABLE HARM (also called Proximate Cause/Legal Cause). | Exists when the connection between an act and an injury is direct enough to impose liability. For D to be liable, the plaintiff and the type of harm must be foreseeable |
| --“Foreseeable harm” (“proximate cause”) is extent to which, as a matter of POLICY, | a D may be held liable for the consequences of his or her actions. |
| Palsgraf v. Long Island Railroad Company (New York Court of Appeals, 1928) Opinion: Benjamin Cardozo Established the Rule of Foreseeability which is still in effect: | one who is negligent is liable only for the harm or the injury that is foreseeable and not for every injury, no matter how remote and unforeseeable, that follows from his or her negligence. |
| 5. INJURY | The purpose of tort law is to compensate those who suffer legally recognizable injuries. |
| -- INJURY/HARM is a required element of a tort cause of action, | whether intentional tort or negligence, and if no such harm or injury occurs, there is no tort COA and there is nothing to compensate. |
| The P, of course, has the burden of proving all four elements of a negligence case. | --However, there are circumstances in which direct evidence of negligence by the D may not be available. |
| There are two doctrines which have been adopted by the Courts to aid Ps in establishing negligence in these situations: | res ipsa loquitur and negligence per se. |
| 1. Res Ipsa Loquitur: Literally means | “the thing speaks for itself.” A doctrine which allows the judge or jury to infer that more likely than not, the D’s negligence was the cause of P’s harm, even though there is no direct evidence of D’s lack of due care. |
| RES IPSA is a rule of evidence which ALLOWS, but does NOT REQUIRE | the factfinder (judge or jury) to INFER that D’s negligence was the cause of P’s injury even though there is no direct evidence of D’s negligence. |
| To establish res ipsa and allow the judge/jury to make the inference, the P must show: | 1. The event was a kind that ordinarily doesn’t occur unless someone was negligent. 2. D had exclusive control of the “instrumentality” of P’s harm. 3. Other responsible causes (such as conduct of P or 3rd parties) have been sufficiently ruled out. |
| The other of these doctrines that helps Ps succeed in negligence cases is | 2. Negligence Per Se—which means “negligence in or of itself.” |
| Negligence Per Se | Exists when the state’s legislature has passed a statute which defines certain conduct as a breach of the duty of care in certain specific circumstances. |
| The statute must have been passed to prevent | a certain type of harm to a certain group of people. |
| The statute CREATES | the duty of care and VIOLATION of the statute constitutes “per se” BREACH of the duty. |
| --If that is the case, P does not have to prove that a duty of care existed or | that D did not exercise the degree of care that a reasonable person would have in the circumstances. |
| --INSTEAD, P only has to show that: | --D violated the statute,--P belongs to the specific group protected by the statute, and --P suffered the type of harm the statute was passed to prevent. |
| DEFENSES TO NEGLIGENCE | There are a couple of “Defendant’s Doctrine’s” that can give Ds a defense to negligence, even when D has been negligent. |
| Contributory Negligence: | No matter how insignificant the P’s own negligence is when compared to that of the D, in a tiny minority of jurisdictions any negligence on the part of the P that contributed to the injury of which P complains will bar P from recovering any damages from D |
| Comparative Negligence: | --Majority (nearly all) of states use this today rather than contributory negligence. Under this doctrine, even if P is partially negligent, P can recover for the percentage of injury attributable to D’s negligence. |
| TWO TYPES of Comparative Negligence: | pure comparative and modified comparative |
| --Pure Comparative | In a very few jrd, D is liable for the percentage of negligence caused by D, no matter how small the percentage. --EX: If D is 40% negligent and P is 60% negligent, then D is liable for 40% of the P’s damages, representing D’s percentage of negligence. |
| --Modified Comparative (“50% Caps”) | Nearly all states use Comparative Negligence rather than Contributory, and nearly all of those use “Modified Comparative Negligence,” which means: |
| --If D is 50% or more negligent, then D | pays the percentage of P’s damages representing D’s negligence. (If D is 60% negligence and P is 40% negligent, P recovers 60% of his/her damages.) |
| --HOWEVER, if P is found to be 50% or more negligent, then | P does not recover any damages from D. (If P is 60% negligent and D is 40% negligent, P receives nothing). |
| ASSUMPTION OF RISK | D must prove that P voluntarily and unreasonably encountered the risk of the harm that the D caused. |
| A P who voluntarily enters a risky situation, knowing the type of risk inherent in the situation, and is injured by those inherent risks, may not recover from D. | --P does not assume risks other than those inherent in the situation. |
| Usually the most difficult part of establishing this defense is to show that the P assumed the | PARTICULAR RISK of the ACTUAL HARM suffered. |
| “Good Samaritan” Statutes: | In situations in which a person stops and renders aid to another, many states have passed legislation preventing those who are aided from then suing the person who rendered the assistance. |
| Strict Liability: | Liability regardless of fault. |
| “Ultrahazardous”Activities: | Some activities are so inherently or abnormally dangerous that they give rise to liability without regard to fault. |
| --Instead of banning the activities outright when there is social utility to the activity (such as dynamite used for construction), the law allows the activity, but | holds anyone engaging in the activities strictly liable for any harm caused. |
| Some activities which are considered “abnormally” or “inherently” dangerous and are therefore defined as “ultrahazardous” are . | 1. Animals: 2. Dynamite blasting, especially in a populated area.3. Use or disposal of hazardous chemicals or hazardous wastes. |
| DEFINITION OF CONTRACT/PARTIES | --Ks are voluntarily entered into by the parties. In essence, the terms of the K become “private law” between the parties, which Cts are obliged to interpret and enforce. |
| What is a K? | Promise = A person’s declaration that they will do or not do something. |
| A K is simply | a legally binding promise. |
| Contract = | --A promise or set of promises for the breach of which the law gives a remedy OR--the performance of which the law in some way recognizes a duty. |
| Another Definition for a K: | A legally enforceable agreement, with a legal purpose, between two or more competent parties, for valuable consideration (C/S), to perform or to refrain from performing some act. |
| IF a valid K is breached by one of the parties, then | the breaching party (BP) will be LIABLE for damages to the non-breaching party (NBP).OR, in some limited circumstances (as we learned in equitable remedies) the BP may be required to specifically perform the K. |
| 1. COMMON LAW: | --based on Ct decisions over time.--because each jrd has its own CL (in this country each state and the federal govt.), after a number of centuries the CL began to vary more and more from jrd to jrd, |
| --in 1932, the American Law Institute (ALI) prepared the | 1st RESTATEMENT OF CONTRACTS. |
| Then, in 1979, the ALI issued the | RESTATEMENT (2ND) OF CONTRACTS: (RS2-K) [There is also a Restatement 2nd of Torts (RS2-T) |
| ALI is a | group of lawyers, scholars, and judges (not unlike the NCCUSL, but for different purpose), which got together and codified what the group believed were the BEST of the CL decisions regarding K law. |
| Although the RS2-K is NOT authoritative law, it has a great deal of influence on | CTs in making decisions re K cases. |
| The NCCUSL, a group similar to ALI but which drafts | UNIFORM LAWS rather than “restatements, --One of the most important of the uniform laws is the UCC, which has now been adopted in whole by ALL STATES except LA. |
| --Uniform laws are adopted by | the state legislatures and have the force of statutory law (they ARE statutory law). |
| The UCC represents U.S. law regarding | --sale and lease of goods,--negotiable instruments,--bank deposits, letters of credit, investment securities, secured transactions, and a few other commercial transactions. |
| The UCC governs Ks for the sale of goods worth more than | $500. |
| --“GOODS” are “moveables” w/the exception of | money and securities. |
| CL governs Ks for | services, employment, real estate, and other matters not involving the “sale of goods.” |
| --If the K is a MIX of goods and services or other items governed by CL, the source of law is based on | the primary purpose of the K. |
| CONTRACT ELEMENTS | AGREEMENT, OFFER, AND ACCEPTANCE |
| 1. Agreement | (Offer + Acceptance): |
| Offeror (O-or): | The person proposing an agreement. |
| Offeree: (O-ee): | The person to whom the offeror proposes the agreement. |
| 1) OFFER: | The O-or must offer to enter into an agreement, |
| 2) ACCEPTANCE: | O-ee must accept the terms of the O-or’s offer. |
| 2. Consideration (C/S): | Every K must be supported by bargained-for C/S that is legally sufficient—i.e., cannot be illusory or w/o a real value. |
| 3. Contractual Capacity: | Both parties must be legally competent to enter into the agreement. |
| 4. Legal Purpose (Legality): | The K’s purpose must be to accomplish some goal that is legal and not against public policy. |
| Objective facts (as interpreted by a reasonable person) include: | 1) what the parties said when entering into the K 2) how the parties acted or appeared (conduct as well as words may manifest intent). 3) the circumstances surrounding the transaction. |
| Bilateral Contract: | “Promise for a Promise” |
| --A BILATERAL contract arises when the | O-or gives her promise in exchange for the O-ee’s return promise. |
| --As soon as the promises are exchanged, | a K is formed and the parties’ legal obligations arise. |
| --No performance is necessary for the | K to be formed. |
| --IF all the O-ee has to do to accept the offer, is to promise to perform, the K is | bilaterial. |
| Unilateral Contract: | “Promise for an Act” |
| You can usually DISTINGUISH a unilateral K from a bilateral by use of the word | “IF”. |
| Express Contract: | A K in which the terms of the agreement are explicitly stated, orally OR in writing. |
| Implied-in-FACT Contract: | A K formed in whole or in part by the conduct (as opposed to the words) of the parties. |
| Requirements for implied in fact k: | the P must have furnished service or property to the D, the P reasonably expected to be paid and person in the D’s position would have expected to pay for property or service. the D must have had the opportunity to reject the service/property and failed. |
| Quasi Contracts or “Implied in LAW” K: | Equitable doctrine whereby a court creates a K between parties under circumstances when no actual K existed. |
| “Quantum meruit” (Latin for “as much as he deserves”) = | Whatever amount the court decides is appropriate compensation for the unjust benefit conferred. |
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