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Business Law Exam 2
Tort law, punitive damages, insurance policies, damages
58
Business
Undergraduate 2
03/30/2011

Additional Business Flashcards

 


 

Cards

Term
Purpose of punitive damages:
Definition
To set an example of the guilty party.
Term
If lawyer get punitive damages, they will also try to get...
Definition
Compensatories (such as pain and suffering).
Term
Nominal damages:
Definition

Plaintiff has been wronged, da,age is minimal. Can get punitive damages.

$1 award, court decides who is guilty.

Term
Compensatories:
Definition
Liquidated damages- parties agree to damage amount ( $250/day, $500/day, etc.) in case there is a breach of contract (often found in construction).
Term
Fiduciary duties:
Definition
Officers or board members have fiduciary duties. Duties you owe to the company you serve.
Term
COAL
Definition
Care (reasonable)
Obey (carry out duties)
Accountability (you have towards company)
Loyalty (towards company)
Term
Business Judgement Rule:
Definition
Provides protection to officers.
Term
Red penciling:
Definition
modify/change an agreement, throw it out, tighten it down to less time, closer distance.
Example: Meagan wants to start a pizza chain. For the first 5 years she can only have it in one county. Then surrounding counties for another 5 years, then entire state.
Term
Shareholders can sue, t/f.
Definition
True. Shareholders appoint the board, which appoints the office.
Term
Product liability
Definition
Any product that causes harm to your body (only if product was purchased from a retailer).
Term
Punitive damages: Insurable in MT?
Definition
Yes, if it is written into the contract.
Term
Punitive damages: plaintiff will more likely go after...
Definition
DEEPER POCKETS! (i.e. insured companies rather than noninsured. but it is not worth it to go without insurance.
Term
Punitive damages example: $1 million insurance limit, fire starts, kills 6 people. what will insurance do?
Definition
Write the check immediately because 6 deaths will likely run up the limits. Do this to avoid lawyers fees.
Term
Vicarious liability
Definition
To take responsibility for someone else's negligence.
Term
Low-end claims on punitive damages:
Definition
Malice: reckless indifference
Term
Higher-end claims on punitive damages:
Definition
involve intentional, or reckless intent.
Term
Tort-negligence: defendant owes who what, defendant breached what, what connection exists?
Definition
defendant owes duty of care to plaintiff, defendant breached duty, a causal connection exists between the plaintiff’s injury and the defendant’s breach of duty.
Term
Actual causation: what? how many? 
Definition

Courts use a “But for” or “substantial factor” test. “But for” test: “but for the pet owner’s failure to clean up the mess, the plaintiff would not have fallen.”

 

Plaintiff must show 2 elements of causation.

Term
Contributory negligence:
Definition
When the plaintiff contributes to the injury. This is a form of defense for the defendant.
Term
Comparative negligence:
Definition
Replaced contributory negligence. Jury determines what percentage each party should be held accountable. Plaintiff: 30%, defendant: 70%, plaintiff will take 70% rewards.
Term
Dirty Hands Doctrine:
Definition
Defense: the defendant argues that the plaintiff is not entitled to obtain an equitable remedy on account of the fact that the plaintiff is acting unethically or has acted in bad faith
Term
Intentional misuse/abuse
Definition
Defense: a plaintiff purposefully hurts themselves using a product (only when you’re using negligence in a products liability case).
Term
Assumption of risk:
Definition
Voluntarily entering into a risk. Knowing the risk was present. Example: lawnmower is broken, back flap broke off, rocks fly through.
Term
To prove negligence, what must be proved?
Definition
there is a breach in duty of care. Must prove causation (but for)(actual cause), must prove legal cause (approx. cause), must prove damages.
Term
Punitive damages: limit?
Definition
$10 million or 3% of person's net-worth.
Term
Punitive damages award may not exceed:
Definition
9 times the compensatories award. 9:1 ratio.
Term
Strict liability:
Definition

Focuses more on the proof that a product is harmful, less that there was negligence while making it. Takes the focus from the manufacturer to the actual product.

Liability without regarding fault.

Term
Example: Plaintiff gets hurt, within reasonably foreseeable zone of danger..
Definition
You have proximal cause then prove damages then you win for pay and suffering. Unless defense can prove otherwise.
Term
Torts: what kind of law? But modified by what?
Definition
Common law, statutes. (is when strict liability can be used)
Term
Counterclaim
Definition
If the plaintiff is not the one being sued!
Term
Malice:
Definition

 

Knowledge of fact or intentionally disregard fact creates a high probability (didn’t warn anyone or pull off shelf).
Reckless disregard of safety and exposing public to high probability of injury.

 

Term
Pure economic harm:
Definition
Not physical, someone losing part of a bargain (not sufficient for product liability).
Term
Intentional tort:
Definition

 

Substantial certainty, purpose, or knowledge.
Willful offenses, defendant must intend to do to certain act that results in harm to the plaintiff.

 

Term
Assault:
Definition
The threat of bodily harm that reasonably causes fear of harm in the victim.
Term
Battery:
Definition
the actual physical impact on another person. If the victim has been touched in a painful, harmful, violent, or offensive way by the person committing the crime, this might be battery.
Term
Consent is a defense, t/f
Definition
True, if two people fight and later say it was ok, case will likely be dismissed.
Term

Respondent Superior:

Definition

Let the superior be held accountable (vicariously) b/c even though didn’t do the accident themselves they can be held liable for problem (vicarious accountability: living through own life. EX: parent live through kids)

Term
Employer can sue employees for breach of fiduciary duties?
Definition
Yes
Term

What kind of force can you use to protect your property?

 

Definition
Not deadly force!  Can only use force to recover property only that minimal amount of force that is needed but has to be immediate pursuit. NEVER USE DEADLY FORCE. IF immediate defense of life then can do that to protect you and others around you.
Term
Fraud:
Definition

Intentional making of a (material or not material) statement that is false & other party suffers damages.
If you know of a defect in something you’re selling and you sell it and it’s a hidden defect then you have committed fraud.

Term

Defense Skull rule:

Definition

Responsible for the plaintiff when you find them. Legally responsible. (I intentionally did _______ and I’m reliable for ____ ) if you intentionally/negligence and cause more damage than you thought then your responsible.

Term
Compensatory helps to:
Definition
Make an injured party whole
Term
What items can be recovored in compensatories?
Definition

 

pain & suffering, medical bills, lost wages, lost future earnings

 

Term
What items can be recovored in punitive damages?
Definition

damages determined by jury.

Term
Net worth:
Definition
Difference between your assets and liabilities.
Term
Patent defect:
Definition
Obvious defect
Term
Latent defect:
Definition

Not obvious defect

More likely to win the case because plaintiff did not know and their statement is more likely true.

Term
Intentional tort:
Definition
Intentional act that poses harm to another person or another person’s property.
Term

Which states follow the old  comparative contributory negligence rule?

Definition
None
Term
Intentional tort: t/f, a defendant must intend to inflict harm..
Definition
False!
Term
Defenses/damages to battery: 
Definition
Self-defense, consent; compensatories. To make the plaintiff whole.
Term
In tort cases, do damages include fees, loss of time etc?
Definition
No!
Term
Defemation/types:
Definition

False communication that hold others up to ridicule.

Libel: written

SLander: spoken

Term
Defenses to defemation:
Definition

Truth (but not if the defendant just thinks it is true).

Privilage (if the damage done is outweighed by the benefits of debate)

Term
Can punitive damages be awarded alone?
Definition
No, they must go alongside nominal or compensatory.
Term
Private torts/types/defenses/damages
Definition

Person that has had private life exposed.

Appropriation: using a name for commercial gain.

Invasion: invasion of solitude (eavesdropping).

Public disclosure: making private facts public.

Defenses: waived rights.

Damages: compensatory, economic, pain and suffering.

Term
Proximate cause/foreseeability:
Definition

Proximate cause exists if the type of injury is foreseeable.

A party might be the cause, but won't be liable because it was not foreseeable that actions would result in an accident.

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