Term
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Definition
| civil wrongs; the injured party seeks to recover for the injury directly from the party or parties responsible for causing the injury |
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| Intentional or Strict Liability |
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Definition
| Torts also are classified as either |
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| based upon the willful conduct of the defendant |
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•involving dangerous certain activities
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| did the defendant willfully engage in the conduct which resulted in the injury; or did the defendant’s liability result from unreasonable conduct or from the conduct of inherently dangerous activities? |
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Definition
| Liability is predicted upon two premises |
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Definition
| Torts are compensable by what? |
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| either compensatory or punitive |
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| Damages intended to make the plaintiff “whole”; the plaintiff is to be put into as good a position as she would have occupied had she not suffered the injury |
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| not easily calculated; subject to expert testimony |
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Definition
May be available in the case of egregious conduct: could be intentional or “gross” or “willful or wanton” negligent conduct
•Traditionally called “smart” money, as in a sharp pain; may be applied if the defendant (tortfeasor) acted with malice, out of fraudulent or with evil intent
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Term
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Definition
| the defendant in a tort action was called a tortfeasor; each tortfeasor is responsible for her own torts |
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Definition
one who directs or controls the tortfeasor may be liable under...
requires the tortfeasor to be acting within the scope of his employment; based upon the master-servant theory of employment
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Term
| jointly and severally liable |
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Definition
| Multiple defendants may be |
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Definition
| A child may be not liable at this age |
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Definition
| presumptively unable to commit a tort at what age |
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Definition
| presumptivley liable for a tort at this age |
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Definition
| a child driving a car or flying an airplane is treated the same as an adult |
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Definition
•Generally, parents are liable for the torts of their children unless the child is an agent for the parent
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Definition
require willful, volitional action on the part of the alleged tortfeasor or defendant
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interference with the personal freedom of individuals
interference with property rights
interference with economic relations
and/or wrongful communications |
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Definition
| intentional torts involve... |
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Definition
| all intentional torts involve what |
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Term
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Definition
| occurs when one acts so as to cause another to experience an apprehension of a harmful or offensive contact (facts that have to be proven by the plaintiff) |
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Definition
| occurs when an alleged tortfeasorcauses a harmful or offensive contact |
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Definition
| Battery doesnt require this |
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Term
| Mental distress/intentional distress |
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Definition
| results from insults, outrageous conduct or other indignities which intentionally or recklessly cause the plaintiff to experience severe emotional distress with bodily harm resulting from that distress |
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Term
| Interference with Property Rights |
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Definition
| trespass, conversion and nuisance deal with the right of a plaintiff to exclusive use and enjoyment of his/her property |
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Definition
| can affect one’s exercise of dominion over one’s personal or real property |
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Term
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Definition
| may be innocent or willful. The tort involves another’s presence or causing some foreign object or matter to be present on another’s land |
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Definition
| The trespass is innocentif the tortfeasor is on plaintiff’s land by mistake or under the belief the tortfeasor has a right or permission to be there |
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Term
| Trespass to personal property |
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Definition
| is an unlawful interference with the control and possession of another’s property; mistake is not a defense to trespass |
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Definition
| is a serious and substantial interference with another’s right to exclusive use and enjoyment of the other’s property |
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Definition
results from unreasonable use of a person of his/her own property causing harm to another or another’s property
Gentlemans club has natural gas extraction poisioning water
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Term
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Definition
| a falsecommunication about the quality of another’s property, product or conduct in business to a third party resulting in specific pecuniary (monetary) (money) loss |
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| Interference with Contract |
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Definition
| conduct intended to induce one party to breach a contract |
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Definition
•There must be a direct causal relation to the breach and an improper motive by the alleged tortfeasor
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Definition
•Courts do not allow recovery for wrongful interference with the rights of others
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| Interference with Prospective Advantage |
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Definition
| an interference with one’s expectation of future contractual relations, including the prospect of employment, employees or customers |
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Definition
| a false communication to a third person which results in damage to the plaintiff’s reputation; encompasses slander and libel |
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Definition
| an oral defamatory statement which injures the reputation of another |
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Definition
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Definition
| plaintiff must prove special damages unless the slander is per se |
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Definition
| a defamatory statement in fixed form which causes injury to another’s reputation |
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Definition
| Libel can only be in written form or in books |
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Term
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Definition
| medial plaintiffs must prove constitutional malice against media defendants |
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Definition
•a common law interest; encompasses four distinct torts; involves a wrongful intrusion into the plaintiff’s private life resulting in outrage, mental suffering, shame, or humiliation to a person of ordinary sensibilities
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Term
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Definition
•Most law suits today are based in tort
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Term
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Definition
•Businesses may not be negligent in the maintenance of their premises or in the products they make
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Term
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Definition
| doing of something a reasonable person of ordinary prudence would not do or the failure to do something a reasonable person of ordinary prudence would do |
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Term
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Definition
a legal requirement imposed upon the alleged tortfeasor by society or by agreement
represents a standard of conduct expected of all persons |
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Term
age
status or relationship of the parties
the training and experience of the tortfeasor |
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Definition
| duty owed may be affected by factors such as |
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Term
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Definition
| the default duty imposed on a tortfeasor; persons must exercise due care to avoid causing avoidable injury to others |
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Definition
| there is no liability for injuries received as a result of an unavoidable event |
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Definition
standard is one of skill, knowledge and judgment common to others in the (local) profession
not a guarantee of mistake-free service; generally turns upon the testimony of experts
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| The thing speaks for itself |
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| Special Negligence doctrines |
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Definition
| applies when an event could not have happened without negligence and the defendant is the only logical person to be responsible |
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Term
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Definition
| the tortfeasor is the cause-in-fact (actual cause) if the injury would not have occurred but for the defendant’s conduct |
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Term
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Definition
| did the defendant cause a foreseeable injury to a foreseeable plaintiff |
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Term
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Definition
| how strong is the connection in time and space between the defendant’s conduct and the injury suffered by the plaintiff |
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Term
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Definition
•Proximate cause is decided on a case-by-case basis
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Definition
| a defendant may be the actual cause of an injury; but not the proximate cause and, therefore, not liable to the plaintiff |
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Definition
| if shown plaintiff’s conduct was a contributing factor in bringing about plaintiff’s injury, the plaintiff cannot recover |
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Term
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Definition
| if shown plaintiff’s conduct was a contributing factor in bringing about plaintiff’s injury, the plaintiff cannot recover for the portion of her injury resulting from her own conduct |
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Term
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Definition
| if shown plaintiff voluntarily assumed a known risk of harm plaintiff cannot recover |
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Term
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Definition
| results from conduct which causes harm without the need to establish intent or negligence |
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Term
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Definition
| keeping wild or dangerous animals, or engaging in abnormally dangerous activities, such as manufacturing explosives or toxic chemicals, may lead to this |
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Definition
•Recovery is limited to personal injury
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Definition
property damage is not compensable |
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Term
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Definition
| when a product departs from its design specifications |
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Term
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Definition
| when the foreseeable risk of harm could have been reduced or avoided by a reasonable design alternative |
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Term
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Definition
| when a failure to give adequate warnings results in a foreseeable injury to a foreseeable plaintiff |
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Term
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Definition
| did plaintiff alter the product or was plaintiff negligent in using the product |
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Definition
failure to discover a defect is not a defense |
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Term
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Definition
| foreseeable misuse of a product is a defense |
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Definition
| a product is purported to be manufactured according to the best and latest technology available |
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Term
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Definition
•state of the art may not be a defense in some jurisdictions
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Term
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Definition
| wrongs in and of themselves; e.g. murder, arson, rape |
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Term
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Definition
•Some crimes are wrongs by public policy, usually a government body wants to discourage behavior; e.g. gambling, prostitution
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Term
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Definition
| In a criminal prosecution, the burden of proof is guilt beyond a reasonable doubt |
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Definition
| The prosecution gets more than one opportunity to try a defendant for a given crime and must include all crimes which are based on the same or similar facts (lesser included offenses |
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Term
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Definition
| punishable by death or imprisonment for more than a year plus a fine |
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Term
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Definition
| a crime punishable by incarceration in jail up to a year and/or a fine |
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Term
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Definition
| exists when a US citizen levies war against the US or gives aid and comfort to an enemy |
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Term
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Definition
| violations of agency rules or regulations (such as rules or regulations of the EPA or FDA) which may be declared to be criminal |
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Definition
| Adminstative crimes are usually malum prohibitum |
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Term
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Definition
•Business people may commit new crimes by guile, deceit and/or concealment;
•Usually involve attempts to obtain money, property and/or services without paying for them
May seek to secure some undeserved business advantage by graft or kickbacks, etc |
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Term
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Definition
| the fraudulent appropriation by one person, acting in a fiduciary capacity, of the money or property of another |
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Term
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Definition
| a misrepresentation of a material fact, made with the intent to deceive the innocent party, upon which the innocent party relies leading to injury by various means; forgery |
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Term
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Definition
| the alteration or making of a document in order to affect the legal rights of another or obtain an unwarranted advantage |
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Definition
•The victim of an economic crime may seek redress through a civil suit
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Term
| RICO (Racketeer Influenced and Corrupt Organizations Act) |
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Definition
| Enacted in 1970 to combat organized crime organizations; private litigants may file suit for triple damages for various state and federal fraudulent crimes committed by |
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Term
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Definition
•A business is designated a RICO business if, within a ten-month period, the business commits three of 26 federal crimes, such as mail fraud or wire fraud, or 10 state crimes of fraud
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Term
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Definition
| using the mails, including courier services such as UPS, as part of a calculated scheme to defraud |
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Term
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Definition
| exists when one uses the wires (telephone, telegraph, computers, etc.) as part of a calculated scheme to defraud |
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Term
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Definition
•RICO has led to suits against businesses not related to organized crime; more than 75% involve securities fraud;
•RICO targets: 1. use of income from racketeering to purchase an interest in a legitimate business; 2. acquiring or maintaining an interest in an enterprise through racketeering; 3. conducting or participating in the affairs of an enterprise through racketeering; and/or 4. conspire to do any of the above
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Term
| the intent to commit a crime (mens rea) and the affirmative act (actus rea) |
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Definition
| Criminal liability requires two elements |
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Term
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Definition
the intent to commit a crime
•the state of mind, which the law requires to be present, directed to commission of criminal conduct
•Example: I want to rob a bank; I want to kill Frank, etc.
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Term
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Definition
Participating with another in committing a crime
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Term
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Definition
| participants take actions which will assist the other in accomplishing the target crime, but there is no need for direct communication of either’s intent. |
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Term
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Definition
| the attempt to commit a specific crime may transfer to the crime committed |
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Definition
| children under 7 years old were presumed to be incapable of forming the intent to commit a crime |
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Definition
| those over 14 were presumed to be incapable of forming criminal intent |
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Definition
between 7 and 14 there was a rebuttable presumption a child could form criminal intent
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Term
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Definition
| criminal intent originated with law enforcement; the defendant would not have committed the crime but for encouragement or instigation of the police |
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Term
| immunity from prosecution |
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Definition
| a grant of protection from prosecution in return for testimony against another at trial |
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Definition
was the defendant, at the time of commission of the crime, able to conform his/her conduct to the requirements of the law
is the defendant competent to stand trial
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Term
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Definition
| requires the State to have legally obtained probable cause to search and/or seize persons and/or personal effects |
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Definition
| protects citizens from self-incrimination, requires due process and requires indictment by a grand jury; prohibits double jeopardy |
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Definition
| guarantees a right to a jury trial; to the assistance of counsel; and the right to confront adverse witnesses |
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Definition
| provides protections against excessive bail and against “cruel and unusual punishment |
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Definition
| a promise which is enforceable in court; a legally binding promise imposes on the promissor (p’or) a duty to perform the promise at some point in time |
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Term
an agreement in the form of a valid offer and an effective acceptance
bargained-for consideration
legal capacity to contract
a legal purpose consistent with law and public policy |
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Definition
| To be legally valid (sufficient to be called a contract) must have four elements of formation |
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Term
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Definition
| contracts are bilateral (promise for a promise) or unilateral (promise for a completed act) |
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Definition
| (oral or written), implied-in-fact or implied-in-law |
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Definition
| involve an exchange of mutually binding promises |
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Definition
| each party owes a duty the other and has a right against the other |
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Definition
involve a promise for a completed act; one party bargains for an act by the other party, not a promise
Paul promises Peter “if you paint my house Saturday, I will pay you $3,000.” On Saturday Peter paints Paul’s house. Upon completion of Peter’s performance, a contract is formed.
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Term
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Definition
involve a promise for a completed act; one party bargains for an act by the other party, not a promise
Paul promises Peter “if you paint my house Saturday, I will pay you $3,000.” On Saturday Peter paints Paul’s house. Upon completion of Peter’s performance, a contract is formed.
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Term
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Definition
| state all of the material terms either orally or in writing (preferable) |
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| implied-in-fact contracts |
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Definition
| arise from the parties’ conduct; one party expects to be paid for goods or services and the other party expects to pay for the goods or services |
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Term
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Definition
| not true contracts; they are a legal fiction intended to prevent unjust enrichment of a party who has received a benefit from another in the absence of an enforceable contract; this is an equitable remedy |
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Term
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Definition
| the vitcim of an economic(white-collar) crime may seek redress through a civil suit |
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Term
| valuable services were rendered or materials furnished; to the party to be charged; which were accepted, used or enjoyed; reasonable to expect to pay; without payment recipient would be unjustly enriched |
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Definition
| To claim relief under quantum meruita party must claim |
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Term
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Definition
| one party is entitled to a money judgment (damages) as a result of the other’s failure to perform |
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Term
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Definition
| a party may not recover for another’s failure to perform where a defense to performance exists |
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Term
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Definition
| an agreement which lacks one of the four elements; actually was never a contract |
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Term
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Definition
| one or more parties has the power to end an otherwise valid contract |
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Definition
| a contract is executory as to a particular party if the party is performing or is capable of performing her obligation |
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Definition
| a contract is executed when performance is completed |
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Term
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Definition
| the non-breaching party suffers no loss, sometimes as little as $1 |
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Term
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Definition
| designed to compensate for the loss of the aggrieved party’s bargain; must be direct and foreseeable; the non-breaching party has a duty to mitigate (lessen or limit) losses flowing from the breach |
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Definition
| not normally foreseeable; must be proved by submission of evidence breachor knew of the special circumstances |
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Term
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Definition
| : it is generally not a “wrong” to breach a contract; punitives not available at common law; however, if the breach constitutes a tort, punitive damages may be available |
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Term
| liquidated damages clauses |
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Definition
| a clause which sets, at formation, the damages to be paid inthe event of a breach; enforceable unless found to be a penalty; damages must be a reasonable estimate to the probable damage suffered upon breach (only type of damages that has to be specified before a breach occurs, rest are after it occurs) |
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Definition
| damages would not be an adequate remedy; rests in discretion of the court: contract must be clear, definite and free from suspicion of fraud or unfairness |
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Definition
| one or both parties seek to undo or unwind a contract; in cases of fraud or mistake or substantial breach of a contract such that the injured party should not be required to perform its obligations |
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