Term
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Definition
| In order to prove negligence, the following elements must be shown: that MC was foreseeable plaintiff, 2) that GC owed MC a duty or duties of care, 3) that GC breached that duty, 4) that the breach was the actual and proximate cause of MC’s 5) damages, and 6) there are no defenses. |
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Term
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Definition
| Negligence per se is a two prong test: If a statute has a penalty for its violation and proscribes the conduct expected, and the statute is designed to prevent the type of harm caused by defendant and protect the class of plaintiff harmed by defendant, the statutory duty will be substituted for the common law duty. Its breach is negligence per se. |
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Term
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Definition
| A duty is owed if there is some relationship that requires a duty (such as parent to child or between spouses) or by contract, or by statute or, if there is an assumption of care or a creation of peril. This is especially true in an act of omission. |
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Term
TORTS
PERFORMANCE OF SERVICES
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Definition
A professional owes a higher standard of care comparable to other professionals with similar experience and education in the same localities.
(2008 june fylsx Q1 A) |
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Term
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Definition
A passenger is one who provides economic benefit. The driver must inspect vehicle and make safe.
A guest is one who provides no economic benefit. A driver is only responsible for gross negligence or misconduct.
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Term
TORTS
ATTRACTIVE NUISANCE DOCTRINE
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Definition
| Under the attractive nuisance doctrine, a landowner is liable for the injury of a person on his land if 1) a dangerous condition was present, 2) the landowner was aware of the dangerous condition, 3) the landowner was aware of the frequency of children on his property, 4) landowner was aware that the children on the property would not appreciate the danger because of their incapacity. |
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Term
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Definition
Breach is the failure to act as a reasonable person under same or similar circumstances. Breach can be established if the probability and likelihood of harm is greater than the burden to mitigate and the utility of the defendant’s actions.
(2007 oct fylsx Q4)
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Term
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Definition
| Under res ipsa loquitir an inference of negligence is raised when 1) the injury would not have occurred absent negligence, 2) the defendant was in exclusive control over the instrumentality causing the injury, and 3) the plaintiff did not contribute to his own injury. |
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Term
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Definition
Is a policy limiting liability to those injuries which are foreseeable at the time of the
defendant’s negligent conduct. We look to see if there are any intervening acts and if so
if are they foreseeable (2005 June fylsx Q3 A)
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Term
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Definition
| In negligence actions, the P may recover harm for actual damage in the form of personal injury and/or property damage, as long as that harm is quantifiable and reasonably ascertainable. Pure economic loss is not recoverable unless parasitic to personal injury/property damage. |
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Term
TORTS
CONTRIBUTORY NEGLIGENCE
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Definition
| Conduct of the plaintiff falling below the standard of care for which she is required to conform for her own protection which will bar the plaintiff’s recovery. |
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Term
TORTS
CONTRIBUTORY NEGLIGENCE
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Definition
Under comparative negligence a plaintiff’s recovery will be diminished the amount which his own negligence contributed to the injury.
In a pure comparative negligence state, a plaintiff’s claim for damage is proportionately reduced by his own negligence. In a modified comparative negligence state if the plaintiff is established to be more than 50% negligent, he collects nothing.
(2007 fylsx Q1)
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Term
TORTS
ASSUMPTION OF THE RISK
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Definition
| When a defendant knows of and appreciates a risk and voluntarily encounters it he may be barred from a recovery. |
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Term
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Definition
| This doctrine imposes vicarious liability in several relationships, particularly employer-employee. When an employee is acting with the scope and course of employment, his employer can be held vicariously liable for all tortuous acts committed furtherance of the employment. |
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Term
TORTS
JOINT AND SEVERAL LIABILITY
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Definition
When there exists several negligent persons contributing to the injury sustained by plaintiff, each defendant will be held jointly and severally liable for the total amount of plaintiff’s injuries.
(2008 oct fylsx Q2 A)
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Term
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Definition
| In order to recover damages under product liability, the plaintiff must show that there was a defective product. Although a defective product may be shown by a design defect, or manufacturing defect, a defective product may also be shown as a result of a manufacturer’s failure to adequately warn as to the risks involved with the product and any danger must not be apparent to the users. |
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Term
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Definition
| A product is defective if it is unreasonably dangerous, i.e. dangerous beyond the expectation of an ordinary consumer. Generally, the type of defects of a product include: i) design defect, where the product is defective in its design and where a less dangerous design is commercially feasible; ii) manufacturing defect, where the defect arises from the manufacturing process and the product failed to conform to its specifications; and iii) failure to give adequate warning. (2008 june fylsx Q1 ans A) |
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Term
TORTS
FORESEEABLE PLAINTIFF
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Definition
| Although historically privities had to exist for a plaintiff to take a cause of action under negligence, modernly one who negligently manufactures a product is liable for any personal injuries proximately caused by his negligence, this would extend the forseeability into the chain of commerce. |
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Term
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Definition
Slander-per-Se is DUMB:
1) Disease: loathsome disease, historically limited to VD & Leprosy
2) Un-chaste behavior: calling a woman a 'whore', a 'hooker' etc...
3) Moral Turpitude: Crimes of Moral Turpitude; baseness & vile
4) Business Conduct: it affects the Plaintiff's business, trade or profession... |
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Term
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Definition
| BATTERY IS HARMFUL OR OFFENSIVE TOUCHING OF ANOTHER WITHOUT CONSENT OR PRIVILGE |
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Term
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Definition
| THE INTENTIONAL PLACING OF ANOTHER IN REASONABLE APPREHESION OF IMMEDIATELY RECEIVING A BATTERY WITH OUT CONSENT OR PRIVILEGE |
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Term
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Definition
CONVERSION IS THE INTENTION EXERCISE OF DOMINION AND CONTROL OVER THE PERSONAL PROPERTY OF ANOTHER
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Term
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Definition
| INTERFEERENCE WITH PLAINTIFF’S POSSESSORY INTEREST IN THEIR CHATTEL |
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Term
TORTS
SPECIAL DUTY PREFATORY PARAGRAPH |
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Definition
| ALTHOUGH THE GENERAL DUTY OF CARE IS OWED TO ALL PERSONS, HERE THE SPECIAL DUTY BY LANDOWNERS IS PRESENTED. TRADITIONALLY, THE STATUS OF THE PLAINTIFF AS A TRESPASSER, INVITEE, OR LICENSEE GOVERNS THE STANDARD OF CARE TO DISCOVER KNOWN OR REASONABLY DISCOVERABLE UNSAFE ARTIFICIAL CONDITIONS. MODERNLY, ONLY THE REASONABLE FORESEEABILITY OF DISCOVERING A DANGEROUS ARTIFICIAL CONDITION IS IMPORTANT. |
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Term
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Definition
| ALTHOUGH THERE IS NO DUTY TO GENERALLY PREVENT A THIRD PARTY FROM INJURING ANOTHER, IN SOME CASES AN AFFIRMATIVE DUTY MAY BE IMPOSED WHERE THE DEFENDNAT HAD THE ACTUAL ABILITY AND AUTHORITY DO SO, SUCH AS THE SPECIAL RELATIONSHIP BETWEEN PARENTS AND MINOR CHILDREN. |
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Term
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Definition
| IN AN INDIRECT CAUSATION CASE, AN AFFIRMATIVE INTERVENING FORCE SUCH AS AN ACT BY A THIRD-PARTY COMBINES WITH THE PLAINTIFF'S NEGLIGENT ACT CAUSING THE PLAINTIFF'S INJURY. AS A DEPENDENT INTERVENING ACT IT IS FORESEEABLE AND WILL NOT SUPERCEDE THE DEFENDANT'S LIABILITY. IF IT IS A INDEPENDENT INTERVENING ACT IT WOULD BE UNFORESEEABLE AND WORK TO CUT OFF THE DEFENDANT'S NEGLIGENCE. |
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Term
| STRICT LIABILITY IN TORTS |
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Definition
| Strict liabiiity is imputed if an activity (i) cannot be performed with complete safety even while exercising due care, (2) involves a high risk of harm to persons or property, and (3) is not commonly engaged in the community. |
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Term
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Definition
RESPONDEAT SUPERIOR
Under the doctrine of respondeat superior, an employer may be held liable for the torts committed by his employee in the course and scope of his duties. |
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Term
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Definition
STRICT LIABILITY (PRODUCT LIABILITY)
One is strictly liable when he or she puts a defective product into the market which causes an unreasonable risk of harm to others. Defendant must be in the business of buying or selling of that product, and the product must have left the defendant's hand with the defect, and reach the plaintiff without substantial changes. |
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Term
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Definition
Defect will be established when it is a:
1. design defect,
2. manufacturing defect,
3. supervising defect,
4. improper warning. |
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Term
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Definition
| Nuisance-a private nuisance is a substantial and unreasonable interference with the plaintiff's possessory rights in the use and enjoyment of his land. |
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Term
| NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS (NIED) |
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Definition
Negligent infliction of emotional distress is conduct which exposes plaintiff to an impact or threat of impact which results in the plaintiff suffering severe emotional
distress. |
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Term
| IMPLIED WARRANTY - FITNESS FOR USE |
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Definition
| A commercial supplier or a product like farmer here sells his products to retailer with the implied/express warranty of merchantability. |
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Term
| STRICT PRODUCTS LIABILITY |
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Definition
A commercial supplier is strictly liable for defective products that reaches all foreseeable plaintiffs in a defective state. Everybody in the chain from manufacturer to suppliers will be
liable. |
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Term
| IMPIED WARRANTY - FITNESS FOR USE |
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Definition
| A commercial supplier warrants his products to be fit for the purpose it is intended. |
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Term
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Definition
| Parties to a contract are awarded expectation damages—damages to make them whole so that they receive the benefit of their bargain. Under the UCC, when a seller breaches, by not providing the goods to buyer, buyer can cover, that is purchase an identical or equivalent good and the seller owes the buyer expectation damages equal to the difference in prices. |
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Term
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Definition
| Consequential Damages may be awarded to the non-breaching party if at the time of contract formation (in this case the merchant firm offer) the nonbreaching party makes clear to the breaching party that there are special circumstances that would not be obvious that would cause harm if the contract were breached. |
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Term
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Definition
Defamation is a defamatory statement concerning the plaintiff, published to a third party,
causing reputational harm. |
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Term
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Definition
Defamatory Statement. A defamatory statement is a false statement adversely
affecting the reputation of the plaintiff in the eyes of a respectable minority of the
community. |
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Term
| DEFAMATION - OF OR CONCERNING P |
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Definition
Of and concerning plaintiff. The Plaintiff must be understood to be the subject of the
defamatory statement, either by intrinsic or extrinsic evidence. |
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Term
| DEFAMATION - PUBLISHED TO 3RD PARTY |
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Definition
Published to a third party. The defamatory statement must have been communicated
to a third party, either intentionally or negligently, and it must have been understood by
the third party. |
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Term
| DEFAMATION - CONSTITUTIONAL ISSUES |
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Definition
Constitutional Limitations. The level of fault needed to establish defamation depends
on the status of the plaintiff and the defendant. |
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Term
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Definition
Malice. Malice is knowledge of the falsity of the statement or reckless disregard to the
truth. |
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Term
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Definition
| Slander. Slander is a defamatory statement which is spoken. |
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Term
| DEFAMATION - ABSOLUTE PRIVILEGE |
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Definition
Absolute privilege. One who makes a defamatory statement during the course of a
political campaign is privileged as long as they did not act with intent. |
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Term
| INVASION OF PRIVACY - FALSE LIGHT |
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Definition
False light. False light is the intentional falsifying of a plaintiff’s beliefs or actions,
which would be highly offensive to a reasonable person, and which is widely published. |
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Term
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Definition
MALICIOUS MISCHIEF
The malicious infliction of injury to the property of another. |
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Term
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Definition
Detrimental Reliance on Offer (Rest. 2d sec. 87(2)
Where an offeror makes an offer which he should reasonably foresee to induce the
offeree’s detrimental reliance, resulting in action or forbearance to act, the offer will be
held open for a reasonable length of time to avoid injustice. |
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Term
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Definition
Public nuisance
Unreasonable interference with the health and safety and property rights of the public.
Plaintiff must show that he suffered special damages not suffered by the public at large
to be able to recover under this theory. |
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Term
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Definition
TRANSFERRED INTENT
When Defendant intends to commit one tort on a same person but instead commits
another tort to the same person or a different person, transferred intent doctrine will
apply. |
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Term
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Definition
A private nuisance occurs where an action undertaken or continuing activity by a
defendant causes a plaintiff to suffer damages which result from the use and enjoyment
of land which he owns, leases, or otherwise possesses and occupies. |
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Term
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Definition
| Intoxication can be defense to criminal conduct if it negates a required mental state. |
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Term
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Definition
Defense of Others
Where one fears an unlawful, imminent and harmful battery on another, that person is privileged to use whatever reasonable force is necessary to protect the interests of the
other person. |
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Term
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Definition
Detrimental Reliance on offer rule This rule provides that where the offeror should reasonably foresee that her offer would result in reliance on the part of the offeree, resulting in action or forbearance to act, the
offer will be held open for a reasonable time to avoid injustice. |
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Term
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Definition
Assurances under the UCC:
When a party indicates that it might not perform under a contract, the other party has grounds to demand assurances. The assurances can be in any manner generally accepted
in that industry, but must provide a sense of confidence that performance will be
forthcoming. |
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