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Definition
| A private or civil wrong or injury, other than a breach of contract, for which the court will provide a remedy in the form of an action for damages |
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| A person who commits a tort |
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Definition
| a person's conduct is intentional if she desires to cause the consequences of her act or believes that the consequences are substantially certain to result from it |
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| Punitive (exemplary) damages |
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Definition
| damages that are designed to punish the conduct of the defendant and to deter similar future conduct by the defendant or others |
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Definition
| A harmful or offensive contact with a person that is intended by the actor to cause such a contract |
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Definition
| a person, intending to cause a harmful or offensive contact, acts in a manner that places another in imminent apprehension of such a contact |
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| An intentional tort in which liability is imposed upon a person who intentially confines another within fixed boundaries |
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| a tort action that protects a person's interest in her reputation and good name. Liability is imposed if a false and defamatory statement is made and communicated to a third party, and the defendant was at fault in disseminating the statement |
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Term
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Definition
| In a sales contract, any affirmation of fact or promise made by the sellor to the buyer that relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods will conform to the affirmation or promise |
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Term
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Definition
| Generally, a statement or other representation made by a seller of goods about the quality, character, or capabilities of the good sold |
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Definition
| contract terms that limits, modifies, or excludes warranty liability |
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Term
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Definition
| Actually drawn from the bulk of goods involved in the sale |
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Definition
| Unlike a sample, not drawn from the bulk of goods, but is offered for inspection when the goods themselves are not at hand |
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Term
| Describe the relationship between fraud and express warranty |
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Definition
The seller's affirmations of fact concerning the goods is the basis of both express warranty, and fraud and misrepresentation liability.
A seller acting in good faith belief in the accuracy of his statements concerning the goods may nevertheless be held liable for breach of express warranty if the goods subsequently fail to conform to the seller's statements.
If the sellers respresentations were made with actual knowledge of their falsity, fraud liability also may ensue. |
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| T/F Warranty liability is not strict liability |
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Definition
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Term
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Definition
| The publication of a defamatory statement by written or printed words, by its embodiment in other physical form, or by radio or television communication |
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| involves communication of the defamatory statement by spoken words or gestures, such as the nod of the head, a wink, or hand gesture |
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Term
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Definition
| The Right to be left alone. Interference with this right is compensable in a tort action |
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Definition
| intentional interference with another's right to exclusive possession of real property, for which the trespasser may be held liable in tort to the property owner |
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Definition
| A human activity conducted on land or a physical condition of land that is harmful or annoying to neighboring landowners or members of the public generally |
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Definition
| Criminal offense proscribing various activities or physical conditions as offensive to the public health, safety morals, peace, or comfort |
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Definition
| Occurs when one person intentionally exercises control over a chattel belonging to another which so seriously interferes with the owner's right to control it that the possessor "may justly be required to pay the other full value of the chattel" |
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| In conversion, is intent to interfere with another's rights required? |
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Definition
| No - (Example) Someone who purchases stoel goods is still liable to their owner for conversion |
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| A legally enforcable promise or set of promises |
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| Occurs when a person does something that a reasonable person would not do or fails to do something that a reasonable person would do under the circumstances |
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| A hypothetical, fictitious person who possesses characteristics of attentiveness, knowledge, intelligence, and judgement required by society for the protection of others |
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Definition
In negligence law: the various legal issues that collectively limit the defendant's liability for the consequences of his or her negligent acts.
Generally, to recover the plaintiff must prove that the defendant's negligent conduct was a substantial factor in producing the plaintiff's injury (causation in fact), and that the defendant owed a duty to the particular injured pl;aintiff to protect him or her against the event that in fact caused the injury (foreseeability of harm) |
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Definition
| Negligence on the plaintiff's part which, combining with the defendent's negligence causes the plaintiff harm. |
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Definition
| A defence to liability based on the plaintiff's consent (expressed or implied) to encounter a known unreasonable danger created by the defendant's conduct |
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Term
| Comparative Fault (negligence) |
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Definition
| Rule of negligence law in which a negligent plaintiff is awarded damages reduced in proportion to his or her fault (negligence) in causing the injury |
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Term
| Comparative Fault (products liability) |
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Definition
| In products liability cases based on strict liability, the assignment of responsibility and liability for damage in direct proportion to the degree of fault of each of the parties |
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Term
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Definition
| A person who enters or remains upon another's property without a privilege to do so |
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Term
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Definition
| A person privileged to enter or remain upon the land only because the pocessor consents |
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Term
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Definition
One of two types:
(1) Public invitee - a member of the public invited to enter or remain on the property for the purpose for which it is held open to the public (such as a person entering a museum or library to examine the exhibits or read a book)
(2) Business Invitee - a person invited to enter or remain on the premises to conduct business with the possessor of the property (a patron of a retail store) |
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Term
| Turntable (attractive Nuisance) doctrine |
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Definition
| Rule of tort law stating the conditions under which a possessor of land is liable for injury to trespassing children (also called the attractive nuisance doctrine) |
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Term
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Definition
| Liability that is imposed without fault; liability that is imposed upon a defendant in the absence of both negligence and an intent to interfere with the plaintiff's legally protected interests |
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Term
| When (2 situations) does inconsistency between warranty and disclaimer primarily occur? |
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Definition
(1) When both the warranty and the disclaimer are contained in the parties' written contract
(2) When the warranty is made orally before the parties reduce the contract to a writing which contains the disclaimer |
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Term
| Disclaimer of Express Warranties (2-316[1]) is designed to prevent... |
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Definition
| express warranties, resting upon the negotiated aspects of the bargain and incorporated into the written agreement, from being disclaimed by boiler-plate language in a form contract such as "the seller hereby disclaims all warranties, express or implied" |
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Term
| With regard to Oral warranty and written diclaimer, what should a buy always make sure of? |
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Definition
| That the seller's oral representations are incorporated into any subsequent written contract. |
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Term
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Definition
| Arise by operation of law |
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Term
| Warranty of Merchantability |
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Definition
| Imposed upon a merchant seller, requires that the goods sold meet certain minimum quality standards |
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Term
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Definition
| Given by a seller who has reason to know of a particular purpose for which the buyer requires the goods and that the buyer is relying upon the seller's skill and judgement to choose suitable goods |
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Term
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Definition
| A warranty that the goods will be MERCHANTABLE is implied if the seller is a merchant with respect to goods of that kind |
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Term
| What are the 6 criteria to dermine whether or not goods are merchantable? |
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Definition
(1) Goods must be of a quality comparable to that generally acceptable in that line of trade under the description or other designation of the goods used in the agreement
(2) Goods must be fair average quality within the description
(3) The goods must be fit for the ordinary purposes for which such goods are used
(4)The goods must run, within variations permitted by the agreement or trade usage, of even kind, quality, and quantity, within each unit and among all units involved
(5) The goods must be adequately contained, packaged, and labeled as the agreement may require
(6) If any promises or affirmations of fact are made on the container or label, the goods must conform to the affirmation or promise |
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Term
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Definition
| There is no liability for negligance to the unforeseeable plaintiff |
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Term
| Modern law of Foreseeability |
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Definition
The Fact that the negligent defendant "neither foresaw nor should have forseen the extent of the harm or the manner in which it occured does not prevent him from being liable"
Futher, the foreseeability is a matter of hindsight, measured from the court's point of view looking back upon events which in fact occurred, not from what the defendant should have foreseen at the time of the accident.
Defendent relieved of liability only if "looking back from the harm to the actor's negligent conduct, it appears to the court HIGHLY EXTRAORDINARY that it should have brought about the harm
(Follows Judge Andrews's dissent from the Palsgraf case) |
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Term
| The warranty of merchantability is only imposed on... |
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Definition
| A seller who, in a professional status, sells or deals in the particular kind of goods that are the subject matter of the sale |
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Term
| Dickerson v. Mountain View Equipment Co |
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Definition
| Merchantable goods are not necessarily of the best or highest quality, but instead are "measured by the generally acceptable quality under the description used in the contract." |
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Term
| T/F "Merchantable" is synonymous with "perfect" |
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Definition
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Term
| The implied warranty of fitness most commonly arises between... |
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Definition
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Term
| Does the seller need to be a merchant for fitness or merchantability warranty? |
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Definition
(1) Fitness - no
(2) Merchantability - yes |
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Term
| 2-317 States rules governing priority among conflicting warranties: |
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Definition
(1) Exact or technical specifications displace an inconsistent (a) sample or model or (b) general language of description
(2) A sample from an existing bulk, such as a storage bin of grain, diplaces inconsistent general language of description
(3) Express warranties displace inconsistent implied warranties other than an implied warranty of fitness for a particular purpose |
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Term
| In warranty actions, the buyer has/hasn't (?) accepted the goods, but seeks to recover damages from the seller becaue the goods are not as warranted |
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Definition
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Term
| Whenever the buyer asserts breach AFTER acceptance 2-607(3)(a) requires.. |
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Definition
| that the buyer notify the seller within a reasonable time after he discovers (or should have discovered) the breach |
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Term
| To recover from personal injury and property damage due to a defective (or such good) must the incident be foreseeable? |
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Definition
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Term
| Is a breach of contract tort law? |
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Definition
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Term
| T/F All common law cause of action less contracts is tort law. |
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Definition
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Term
| When the probability of harm drops, the number of cases (incr/decr?) |
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Definition
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Term
| What percentage probability of harm equals recklessness? |
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Definition
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Term
| What percentage probability of harm equals recklessness? |
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Definition
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Term
| Punitive damages are only awarded given what criteria regarding intent? |
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Definition
| Only in cases involving defendant's INTENTIONAL and DELIBERATE disregard for other's rights |
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Term
| What is always a complete defense for defamation? |
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Definition
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Term
| What is the objective test for a "Reasonable Person"? |
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Definition
Comparing the defendent's conduct to that of a reasonable person.
[Note that the word "reason" implies an objective test"] |
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Term
| What is the Subjective test for a "reasonable person"? |
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Definition
State of mind of the defendant we're looking at
The words "intent" and "knowledge" tell us that the test was subjective
"Know or should know" uses both subjective and objective case |
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Term
| What is the source of the reasonable person standard? |
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Definition
*William Prosser - Personification of a community view of ideal person as perceived by the jury
-Statute or admin regulation setting a standard in providing for tort liability for violation
-Statute has no provision for tort liability, but court adopts a statutory standard as the standard of neglegence
-Line of appellate court cases outlining the standard of negligence in a variety of fact situations
-Instruct jury in the law and let them decide if defendent was reasonable
-Reasonable person standard provides flexibility, allowing the jyry to consider the particular circumstances and individuals of the case, while furnishing, as far as possible, a uniform standard of conduct |
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Term
| 3 Elements of the Plaintiff's proof |
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Definition
(1) Def. has a duty not to be negligent
(2) Def. breached the duty by failing to act as a reasonable person
(3) Breach of duty caused an injury, proximately caused by defendant's negligent act. |
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Term
| Two common tests for causation of fact |
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Definition
(1) But-For Test - take out defendant, does the injury still happen
(2)Substantial cause test - Occurs when two or more acts bring about the negligence. Liability is imposed upon any defendant whose negligence is a substantial factor in causing a plaintiff's injury |
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Term
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Definition
| breaks the chain of causation from the original defendant |
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Term
| What determines the superseding of negligence? |
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Definition
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Term
| Most intervening causes are what? |
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Definition
| conduct by a 3rd party, usually not a superseding cause |
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Term
| Intentional/Criminal conduct by a 3rd party with regards to intervening cause may be what... |
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Definition
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Term
| Contributory Negligence uses what test (subjective or objective)? |
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Definition
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Term
| Contributory Negligence is what kind of test (objective or subjective)? |
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Definition
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Term
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Definition
| The defendant has the burden to introduce evidence which shows that the defendant was not liable |
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Term
| Both contributory negligence and assumption of risk favor which side (Plaintiff or defendant?) |
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Definition
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Term
| Assumption of risk is determined by what type of standard? (Objective or subjective) |
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Definition
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Term
| During assumption of risk, if the plaintiffis acting unreasonably, the conduct constitutes... |
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Definition
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Term
| Pure Comparative Negligence Approach |
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Definition
| Compare in all cases, stick by a jury's percentages |
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Term
| Modified Comparative Negligence Approach |
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Definition
Plaintiff recovers ONLY if the plaintiff is less than 50% negligent
If this is true plaintiff recovers only the percentage of negligence that he or she is not responsible for |
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Term
| T/F The "but-for" test is adequate for acts involving single as well as multiple acts of negligence |
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Definition
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Term
| The "but-for" test focuses on the (plaintiff/defendant's?) conduct |
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Definition
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Term
| What are the 3 defenses to negligence |
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Definition
(1) Contributory
(2) Assumption of Risk
(3) Comparative Negligence |
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Term
| Negligence alone cannot create a tort case. The negligance MUST... |
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Definition
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Term
| What two conditions must be met for the same rules as an invitee to be applied to a tresspasser |
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Definition
(1) artifical conditions on land
(2) child trespassers (for plaintiff) usually 12 and under |
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Term
| In Products Liability, what type of law are each of the follow: Negligence, breach of warranty, strict liability in tort |
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Definition
(1) Negligence - Tort
(2) Breach of warranty - Contracts law
(3) Strict Liability in tort - tort (primary basis for recovery today) |
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Term
| Implied warranty of title |
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Definition
| straight forward promise by seller that it has good title (not selling stolen goods) |
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Term
| T/F Breach of Warranty is a strict liability theory |
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Definition
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