Term
| Negligence/Unintentional Tort Elements |
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Definition
1.Duty of Care- Reasonable Person Standard
2.Breach of Care
3.Causation 2 Types
a. Actual Cause- the act must have caused the harm
b.Proximate Cause- the harm was foreseeable
4. Harm/Injury
(Do Babies Cry and Cry Hourly) |
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Term
| Palsgraf v. Long Island Railroad(1928) |
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Definition
| Man with bag of fireworks barley makes it onto train and while getting on train drops the bag. the fire works go off and the explosion knocked over a scale which injured Palsgraf. She sued the railroad and lost due to the injury not being foreseeable to the railroad company. This case is important because it set the standard for the proximate cause element in negligence. |
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Term
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Definition
(Negligent Infliction of Emotional Stress)- people have a legal duty to avoid causing emotional distress to another individual.
Elements
1.Death or serious injury of close relative caused by defendant's negligence
2.Plaintiff must experience serious emotional stress as a result.
3.Mental distress must stem from a sensory or contemporaneous observation of the event.(Must have seen it and been there.) |
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Term
| Pizarro v. Port Associates (2002) |
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Definition
| Pizarro got heel stuck in crack between elevator and floor. Bike messenger stops to help her and the elevator malfunctioned and lurched up decapitating the bike messenger. Pizarro had to ride the elevator up with the decapitated head. she sued for (NIED) and lost because she wasn't related to the messenger. point of case- the (NIED) elements are meant to limit these types of cases. |
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Term
| Three Categories of Torts are |
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Definition
1. Intentional
2.Unintentional
3.Strict Liability |
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Term
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Definition
1. “An act intended to create”: The defendant must act with the intent to create the state of fear or danger in the victim
2.“a reasonable apprehension of imminent harm”: This means that the victim had a reasonable belief that they would be harmed by the defendant.
*no contact necessary for this tort. |
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Term
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Definition
Harmful or offensive physical contact with another person that causes injury.
1.intent
2.contact and harm |
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Term
| Transfered Intent Doctrine |
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Definition
| Sometimes a person acts with intent to injure one person but accidentally injures another. The doctrine transfers the intent from the target to the injured person |
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Term
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Definition
The intentional confinement or restraint of another person without authority. The victim may be restrained or confined by physical force, barriers, threats of physical harm, or a perpetrators false assertion of legal authority.
Elements
1. Intent
2. the plaintiff was aware of the detainment
3. no concent
4. It was unlawful |
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Term
| Merchant Protection Statutes/ shopkeeper’s privilege |
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Definition
allows merchants to stop detain and investigate suspected shoplifters without being held liable for false imprisonment.
Elements for this clause to to be used.
1.There are reasonable grounds for the suspicion.
2.Suspects are only detained for a reasonable amount of time.
3.Investigations are conducted in a reasonable manner. |
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Term
| Walmart Stores v. cockrell (2001) |
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Definition
| Cockrell was detained by Walmart security in suspicion of stealing. He was asked to remove his pant's, shirt, then the security Guard (Raymond Navarro) saw a large bandage from cockrells liver transplant. Navarro asked him to remove this as well. Cockrell sued for False Imprisonment. Walmart attempted to use shopkeepers privilege. Privilege was denied due to unreasonable investigation. Cockrell won the case. |
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Term
| Misappropriation of the Right to Publicity |
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Definition
| every person has the right to control and profit from the commercial use of their name and identity. Any attempt by another person to appropriate a living person's name or identity for commercial purposes is actionable. |
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Term
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Definition
| everyone has the right to live their lives without being subjected to unwanted and undesired publicity. Examples include secretly taking photos of someone in the locker room, reading someone else's mail or email, and tapping someone's phone line. |
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Term
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Definition
Protection from false statements made by others during their lifetime. This protection ends upon a person's death.
Plaintiff must prove
1.The defendant made an untrue statement of fact about the plaintiff.
2.The statement was intentionally published to a third party. Meaning the third person heard or saw the untrue statement. |
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Term
| Defamation of character types |
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Definition
Libel-- written statements
Slander-- oral statements |
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Term
| Disparagement/ trade libel,/ product disparagement, /and slander of title |
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Definition
A Disparaging statement is an untrue statement made by a person or business about the product’s, services, or reputation of another business.
Plaintiff must prove
1.defendant made an untrue statement about the plaintiff's products, services, property, or reputation
2.Defendant published that untrue statement to a third party.
3.they knew the statement was not true.
4.made the statement maliciously |
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Term
| Intentional Misrepresentation (Fraud) |
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Definition
when a wrongdoer deceives another person out of money, property, or something of value.
Plaintiff must prove
1.The wrongdoer made false representation of a material fact
2.The wrongdoer had knowledge that the representation was false and intended to deceive the innocent party.
3.The innocent party justifiably relied on the misrepresentation.
4.The innocent party was harmed. |
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Term
| Intentional Infliction of Emotional Distress |
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Definition
A person whose extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is liable for that emotional distress
Plaintiff must prove
1.defendant's conduct was so outrageous in character and extreme in degree that it went beyond all possible bounds of decency. |
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Term
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Definition
When a losing plaintiff is sued by the defendant in a new lawsuit following the original
Plaintiff must prove
1.The plaintiff from the original lawsuit now the (defendant) instituted or was responsible for instituting the original lawsuit.
2.There was no probable cause for the first lawsuit.
3.The plaintiff from the original action brought it with malice
4.The original lawsuit was terminated in favor of the original defendant now the plaintiff
5.The current plaintiff suffered injury as a result of the original lawsuit. |
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Term
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Definition
| If the plaintiff is found any percent at fault the case will be thrown out. this is a harsh rule not many states follow. |
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Term
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Definition
| If the plaintiff is found any amount liable for the negligent act. they that percent of fault will be deducted from the plaintiffs award. |
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Term
| Contract Agreement Elements |
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Definition
1.Offer-Proposal of deal
2. Acceptance- accepting the deal
3.Consideration-bargained for exchange, each party must give something
4.Contractual capacity-- the people making the contract must be adults, sound mind, fully functioning.
5.Lawful object/legality-- must be of legal subject matter. Legal duties.
6.Genuineness of assent-- no trickery or force for assent.
7.7/6.5 writing-- not always necessary. Certain kinds of contracts need writing. Some oral contracts are enforceable depending on the matter. |
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Term
1.Offer
2.Acceptance
3.Consideration
4.capacity
5.legality
6.genuineness of accent
7.writing
Define the 7 elements of contracts |
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Definition
1. Offer--Proposal of a deal
2.accept the deal
3.bargained for exchange, each party must give something
4.the people making the contract must be adults, sound mind, fully functioning.
5. must be of legal subject matter. Legal duties.
6.no trickery or force for assent.
7.Statute of frauds |
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Term
| Statute of Frauds. the Contracts that must be in writing? (6) |
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Definition
1.Any contract that is an agreement for an interest in land
2.Any Contract that by its terms can not be performed in 1 year.
3.Any guarantee contract/ a contract to pay the debt of someone else.
4.Any promise made by an executor of an estate.
5.Any promise made in consideration of marriage.
6.Any contract between merchants for the sale of goods greater than 500 dollars. |
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Term
| How are contracts structured? |
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Definition
1. Title relevant title to the contract matter
2.Intro Paragraph. Includes dates, parties, Nature of contract,
3.Covenants. Promises that the parties make. Mutual exchanges of promises
4.Representations and warranties. Statements of fact related to the contract.
5.Boilerplate. |
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Term
| Define Covenants and Statement of facts and examples. |
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Definition
Covenants:Promises that the parties make. Mutual exchanges of promises. Ex) I will paint your house You will give me $3000
Statement of facts/Representations and warranties: related to the contract.EX) They have insurance, they have experiance. Car purchase contract examples proof the seller owns the car with no debt. The odometer has not been changed. |
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Term
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Definition
| A remedy is the means by which the courts compensate an injured party for breach. In deciding upon a remedy there are 4 kinds of interest the court can protect 4 rationals to determine what the injured party should get. |
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Term
| The four different kinds of remedy courts give |
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Definition
1.Expectation interest- gives injured party benefit of the bargain put the injured party in a position they would be in if both parties performed the duty. Nick was given 3000 to paint harmon's house. Nick breached contract and harmon was only able to get bill to paint his house for 5000. Nick would owe 5000
2.Reliance interest-To put the injured party in the position they would be in if they never entered the contract. Nick buys all the necessary materials to paint the house reliant on the contract. Harmon breaches and said nevermind. Nick should now get paid for what he spent on the reliant materials.
3.Restitution interest- Designed to return to an injured party a benefit that was conferred upon breaching party that would be unjust to leave with breaching party. Nick paints half the house. Deal is pay half now half later. He will be paid for half the job.
4.Equitable interest- When money is not sufficient to compensate the injured party. The court will not award money but will award specific performance(an order that the breaching party perform. (287)the court will award specific performance only when the asset is unique. Something money can't replace. |
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Term
| Expectation Interest has three different types of damages. what are they? |
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Definition
1.Compensatory Damages-Sometimes called direct damages. Damages that follow directly from the contracts breach.
2.Consequential Damages-Sometimes called special damages. Damages that flow from the parties unique situation.
3.Nominal or incidental Damages- These are damages that are minor costs that flow from the breach of contract. Had to stay home from work to find a new painter. Paid for new add in paper to find new |
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Term
| Hadley v. Baxendale(1854) out of england- |
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Definition
| this case establishes the rule for when you can get consequential damages. Hadleys operate a flourmill. The flour mill had a broken crankshaft. They hired baxendale to transport the broken crank shaft to a repair shop a few towns away. Baxendale said transport would take one day to get there and one day back. This ended up taking him 7 days instead. Hadleys sue for breach of contract because it took 7 days instead of 2. They asked for 5 days worth of lost profits. Lower court hadley won. Baxendale appealed, they said I didn't know this was your only crank he was never told he would be on the hook for the lost days of profit. He didn’t know his liability of breach would include this. Appeal found that defendant is not liable on these facts for lost profits because those lost profits were not known or foreseeable to defendant/baxendale. Rule that came from this case is that a defendant is only liable for consequential or special damages if its foreseeable or he knew what the consequences of his breach would be. |
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Term
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Definition
| if a second party breaches a contract I still have to do my best to mitigate damages. Renter breaches lease. Landlord has to do their best to get the apartment re-renter. Landlord could rent the apartment for cheaper then Renter would be on the hook for the remainder rent 2,000 1 year lease leaves after 3 months. 25,000 expected for the year. 6,000 paid before breach. Land is always unique. Classic car, original painting. |
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Term
| Misappropriation of the Right of Publicity/Appropriation |
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Definition
Defendants use of plaintiff's identity or likeness
To the defendant’s commercial advantage
No consent
In a way that injures the plaintiff
Activisions use of noriega in a video game-- Judge dismissed the case maybe because he was a bad plaintiff. |
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Term
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Definition
A statement
The statement is false
It was communicated to a third person
Injury was a result |
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Term
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Definition
Exception to these elements Slander per se-- in some cases the plaintiff doesn't have to prove injury. Only the first three things need to be proved. Injury can be assumed in these cases.
Lie about sexual behavior
Lie about criminal past
Lie about someone’s contagious disease
Lie about someone's professional abilities. |
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Term
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Definition
the intentional injuring by subterfuge or deliberate deception. This tort has 4 elements
False representation of a material fact or deliberate concealment of a deliberate fact
There is knowledge that the representation was false/ intent to deceive (scienter)
Reliance by the victim on the misrepresentation / concealment
There is injury to the victim |
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Term
| Intentional Infliction of emotional distress/(IIDE) |
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Definition
Example deb has a car with a loan. Deb isnt paying on the loan and not responding so the creditor wants to repossess the car. Creditor does not know where deb lives. Creditor finds debs father and calls and said his kids are dieing at the hospital and he needs to know where his son works to inform them. This caused severe emotional distress.
Elements intent, extreme conduct
Four Elements to the tort of IIDE
Intent/ recklessness
Extreme or outrageous conduct
This conduct is the cause of the distress
Severe emotional distress was the injury. |
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Term
| Tortious interference with a contract: |
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Definition
when a defendant harms an existing business relationship. This tort has 4 elements
There is an existing contract between a plaintiff and a third party
The defendant knew about the contract
The defendant improperly induced 3rd party to breach contract with plaintiff
Injury to the plaintiff |
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Term
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Definition
Statues often establish duties owed by one another. Negligence per se only has to prove causation and damages because duties and breach are already proved by the statute.
Elements:
A statute exists
A statute was enacted to prevent the type of injury suffered
Plaintiff was in the class of persons meant to be protected by the statute. |
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Term
| Res Ipsa Loquitur(Latin Phrase the thing speaks for itself) |
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Definition
air conditioner fell from building while owner was not home. This doesn't happen unless someone negligently installed it.
Elements
The defendant has exclusive control over the thing that caused the harm
The harm would not ordinarily occur without negligence.
Plaintiff had no role in causing harm. |
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Term
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Definition
| willful recklessness. (ex) drunk driving. Didn’t intend to hit them kids but the conduct was so reckless that it has a special category. The person should have known the act would cause harm even know they didn’t intend to harm any one. Gross negligence can result in punitive damages because they are punishment damages. |
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Term
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Definition
Make Defendant prove elements.
Superseding or intervening event-- (ex) a golfer hits a spectator then the spectator gets struck by lightning. Their response is they are responsible for the golf ball but not the lightning strike because the lightning is not foreseeable. Like can’t prove proximate cause.
Assumption of the risk.-- the plaintiff knowingly participated in risky activity that resulted in injury. It’s obvious that tackle football is dangerous so if you get hurt playing football you assumed the risk.
***$$$Contributory negligence or comparative negligence-- contributory negligence means if the plaintiff is partially at fault they can not sue for anything. Comparative negligence means that if plaintiff is 20 percent to blame for their injury they can only get 80 percent of their damages. Different states use contributory and comparative. |
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Term
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Definition
contract including an exchange of promises by the parties.
Performance terms- paint colors, primar used, what happens if it rains, payment terms, arbitration, |
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Term
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Definition
| One party makes a promise that the other party can accept only by performance. -- example missing cat poster which says reward 100 dollars. This will be enforceable if the person brings the cat. That will be the acceptance. Performance is the acceptance. You can restrict who is able to accept an offer by specifying. |
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