Shared Flashcard Set

Details

MGMT 200 Final Part 2
Introduction to Law
82
Law
Undergraduate 2
03/16/2010

Additional Law Flashcards

 


 

Cards

Term
TYPES OF TORTS
Definition
THREE TYPES OF TORTS

Intentional Torts
Where one person intentionally injures another (occasionally, but not always, a crime).

Torts based upon Negligence
Most torts occur when one person acts in a negligent manner, i.e., a careless manner, inadvertently causing an injury to another person.

Strict Liability Torts:
Includes product liability. The fact of injury means that somebody has done something wrong. Toyota.
Term

Tortfeasor/Multiple Tortfeasors

Definition

Tortfeasor:  Person being sued for tort, can be different reasons for multiple tortfeasors in one case (joint tortfeasors):

 

Example: Plaintiff-victim can file a case against multiple defendants.

Example: Plaintiff-victim files a case against one defendant, and then that defendant joins/sues other defendants, claiming they contributed to the problem.

Term

MULTIPLE VICTIMS IN A TORT CASE

Definition

CLASS ACTIONS  

Large groups of injured persons, who are similarly situated, can obtain redress in a single lawsuit, rather than filing hundreds or even thousands of separate suits.

-Many small problems (long distance companies that round up cell phone minutes, resulting in maybe a 50 dollar loss per person, not worth investing in time and attorney fees).

Term

TORTS BY INTENTIONAL CONDUCT

Definition

Deliberate conduct by one person, that injures another person, is an intentional tort.  This differs from either negligence or strict liability torts.  The people being sued did something on purpose, no accidents involved.

-Assault

-Theft

-False Imprisonment / Wrongful Arrest

-Intentional Infliction of mental Distress

-Defamation

-Invasion of privacy

-FRAUD

-BAD FAITH

Term

TORTS BY NEGLIGENCE

Definition

TORTS BY NEGLIGENCE (majority of torts)

 

1. Violation of a statute / criminal or civil / is proof of negligence.

Example: Car accidents, tickets, and a judicial finding of liability.

Only question is damages.

2. What happens when there’s no statute…

THE ELEMENTS OF A LAWSUIT BASED UPON NEGLIGENCE:

The Plaintiff must prove, by a preponderance of evidence:

1. That the Defendant owed a duty of care to the person injured (plaintiff).

2. That the Defendant breached the duty of care through his or her unreasonable conduct, e.g., an act or omission.

3. That the Defendant's breach of duty of care was both the ACTUAL AND PROXIMATE CAUSE of the victim’s injury.

4. That the injury justifies an award of damages (in other words, the victim has demonstrated some real economic loss, or damage, that might include pain and suffering),  and that there is no social policy that should result in the defendant not being liable.

Term

THE DUTY OF CARE

Definition

(Can not go around doing this a reasonable person would not do)

1. Every person must operate as a “reasonable person”, and use ordinary care in how we interact with others.

Term

FORESEEABILITY

Definition

Limit on the Duty of Care.

Without foreseeability, there is no duty of care, and thus no tort

Term

DID THE DEFENDANT BREACH THE DUTY OF CARE?

Definition

Test: Did the defendant either 

(1) do the act that was unreasonable,

under the circumstances; or

 

(2) not do an act which a reasonable

person should have done under the circumstances.

Term

CAUSATION

Definition

The defendant's conduct must be both the actual and proximate cause of the victim's injuries.

Actual Cause Test: 

Would the injury have occurred “BUT FOR” the defendant’s conduct. 

Proximate Cause Test: 

Did the act actually cause the injury?

Proximate cause = the true cause which, in a natural and continuous sequence, caused the injuries.  Proximate cause will be found if there is the ability to see or know, in advance, that the harm or injury is a likely result of the acts or omissions.

Term

THE INJURY REQUIREMENT: 

Definition

No injury = no tort = no recovery.

To recover damages, the person injured must have suffered some loss, harm, or invasion of a protected interest. 

Term

DEFENSES TO NEGLIGENCE

Definition

ASSUMPTION OF RISK.

If you voluntarily put yourself in a dangerous situation, and are injured, you can’t sue to recover damages.  

Example: 

A boxer who is injured.

A fan is hit by a Barry Bonds, steroid-fueled home run.

But conduct that it outside ordinary play, especially if intentional, may

Give rise to liability.  Ask Mike Tyson. 

COMPARATIVE AND CONTRIBUTORY NEGLIGENCE

This rule provides that a plaintiff, who was himself negligent, may nonetheless collect damages from the defendant, in proportion to the damage inflicted by the defendant.  This rule requires that the defendant be MORE negligent than the plaintiff.  $100,000 worth of damages, jury determines plaintiff 51% fault, defendant 49%, no money is awarded.  OR, Jury determines defendant 51%, plaintiff is awarded $51,000 or whatever % of fault is applied.

Term

EXAMPLES OF SPECIFIC TORTS BASED UPON NEGLIGENCE.

Definition

PROFESSIONAL LIABILITY.

“The failure to use that degree of care, learning, and skill ordinarily possessed and applied by the average prudent member of the profession in the same locality.”

 

2. PREMISES LIABILITY

The duty of care we owe, as landowners, renters, and merchants, is determined by how our guests are classified:

Trespassers (uninvited, unwanted)

no spring guns

no duty to warn of dangerous natural conditions

if you know trespassers come, duty to warn of man-made risks

Guests of home / apartment occupants.

  

People who are present at your invitation, or with your permission are known as licensees. The home or apartment owner owes these people a DUTY OF REASONABLE CARE, e.g. such things as cleaning the snow off the steps to the front porch, if you're having people over.  However, it doesn't include an obligation to check for dangerous hidden problems.

Customers in Business Premises.

The people are known as INVITEES.  Owner owes these people a high degree of care: owners must inspect for any dangerous conditions, even if they are not obvious, and correct them or warn patrons.

Term

STRICT LIABILITY TORTS

Definition

In some circumstances, as a matter of public policy, certain people and businesses MUST compensate persons who are injured by their products, services or activities.  The victim need not prove an intentional tort, or even a tort based upon negligence.

 

THE CALIFORNIA RULE

“A manufacturer is strictly liable in tort when an article he places on the market,

knowing that it will be used without inspection for defects, proves to have a 

defect that causes injury to a human being…”

Term

DAMAGES:

Definition

COMPENSATORY DAMAGES are also called ACTUAL DAMAGES because they consist of money damages awarded to the plaintiff for real (actual) loss or injury.  They may be broken down to:

SPECIAL DAMAGES = Out of pocket damages that can be specified: Lost wages, medical bills, lost income, cost of repairing a car.  Cost of future lost wages  (w/discount rate).

GENERAL DAMAGES = Other than out-of-pocket expenses.  These include PAIN AND SUFFERING, MENTAL DISTRESS, LOSS OF CONSORTIUM (not available unless married).

PUNITIVE DAMAGES 

This is the case where the civil law PUNISHES the tortfeasor by allowing extra damages where the tortfeasor is particularly blameworthy. The purpose is not to enrich the plaintiff, but punish the defendant.  Can’t get punitive damages w/out first getting some general damages. 


Term

SURVIVOR STATUTE

Definition

allow the decedent’s claim to flow to his estate, and

the estate to sue, then distribute the money to the heirs. 

Term

BARRIERS TO THE COLLECTION OF DAMAGES:

Definition

Statute of limitations.

Judgment Proof Creditors.

Bankrupcy.

Term

THE US CONSTITUTION AND FAMILY LAW


Definition

The U.S. Constitution, via the “Right to Privacy” and other implied rights, seems to give people/family the right to

 

Marry (Supreme Court had to strike down state laws…)

 

B. Birth Control: Griswald v. Connecticut.

Term

Full Faith and Credit Rule (From US Constitution)

Definition

EX. Art. IV, section 1 “Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every state”. 

 

Intent: If a contract is legally created in State A, pursuant to State A’s law, then State B must also recognize the same contract even if the contract could not have been legally created in State B.

Term
Same sex marriage law
Definition

Washington Legislature has passed the Defense of Marriage Act, outlawing same sex marriages in this state

US Congress has passed “Defense of Marriage Legislation”, saying that no State need recognize a same sex marriage created in another State.

Some people argue that because the Full Faith and Credit Clause is a Constitutional Rule, which trumps both State laws, as well as State Constitutions, the Supreme Court will require other states to recognize same-sex marriages lawfully created in (currently) Massachusetts

Term

WHAT IS A MARRIAGE

Definition

A “status”, the legal union of husband and wife entered into by means of a contract, which is enforceable by a court

Term

COMMON LAW MARRIAGE 

Definition

14 States allow common law marriage: when man and woman must be legally qualified to be married, must cohabitate, + create impression of marriage, and must intend that it exist.

Term

DOMESTIC PARTNERSHIPS

Definition

Several cities, including Seattle, give domestic partners the same benefits that are available to married couples. This is done by ordinance.

Term

LEGAL CONSEQUENCES OF BEING MARRIED

Definition

Obligation of support.

Continuing and mutual support is required;

A crime to abandon children

Term

PROPERTY RIGHTS IN MARRIAGES

Definition

COMMUNITY PROPERTY STATES (WASHINGTON)

All property acquired during marriage, other than by GIFT of inheritance, is community property, owned equally when received.

EX.LOTTER WINNER

  

Upon dissolution, accumulated earnings are divided equally;

EX. STOCK OPTIONS

 

Separate property retains its separate character, even if acquired during marriage (gifts, inheritances)

 

Commingling: this occurs if separate property cannot be reasonably traced back to its origin.

EX: Craig McCaw Divorce Suit

 

Gifts of Community Property: Not allowed

Term

CREDITORS OF THE FAMILY

Definition

Unpaid creditors can reach all community property.

Example:Husband punches mailman: community property at stake.

 

Either spouse’s earning during marriage may be taken to satisfy

Pre-marriage debts.

Term

DIVORCE

-What it means/doesn't mean

-What is required

Definition

Divorce ends the marriage BUT it does not necessarily terminate spousal responsibilities that arose during the marriage, including (1) spousal maintenance and (2) child support.

Washington is a NO FAULT divorce state: the only things that need to be established in court are:

 

a breakdown of the marriage  (established by testimony) and

 

the objective fact of physical separation (for a period of time)


Term

ALIMONY

Definition

Spousal Maintenance, or Spousal Support)

Intended to get the “other” party of his/her feet:

 

1. (Rarely) May be indefinite and permanent;

2. Normally, rehabilitative alimony ends at specific term; (EDUCATION)

3. It always ends w/death of either party, or remarriage of party receiving the benefits;

 

Amount depends upon (States have formulas and tables for this)

 

Financial condition of spouse needing support;

Length of marriage;

Age, job, education of the parties

Tax consequences


Term

DIVISION OF COMMUNITY PROPERTY

Definition

(WASHINGTON RULE)

All property acquired during the marriage, other than by gift or inheritance,

must be distributed equally to both parties, since each “owns” half. If the 

Property cannot be divided, it can be sold and the assets divided.

 

Court may divide the property in ANY manner that is “just and equitable”, 

Even though it is not split 50-50. (The difference may act as a substitute 

For alimony.)

 

Professional Degrees: May be community property.

Term
What is Child custody based upon
Definition
What is in the best interest of the CHILD
Term
Criteria considered in Child Custody
Definition

1. Wishes of parents and child (depending upon age, etc.)

2. Child’s adjustment to home, school, community

3. Mental and physical health of all individuals

Term

Guardian ad litem

Definition
-Volunteer position where someone advocated for a child in a child custody case
Term

CHILD SUPPORT

Definition

Court has power to order this distribution, enforce it:

 

Statutory Guidelines Used:

1. Child’s necessities

2. Parent’s standard of living

3. Financial status of parents

4. Earning capacity of parents **** (stop lawyering/teach)

5. Future educational plans of child (up to 18, once over 18 parents have no obligation to contribute towards your higher education whether they are married or not)

6. Duty of each parent to support people (new spouse).

Term

 

COLLECTION OF CHILD SUPPORT

Definition

May be enforced by the courts – even in other states.

Non-paying spouse may be ordered to jail for contempt.

Prosecutor can get involved (WE DO) Uniform Interstate

Family Support Act

Term

WHAT IS Domestic Violence:

Definition

It’s not just assault, it can be any number of crimes WHEN COMMITTED by people having a specific relationship: spouses, former spouses, people who previously dated or are dating; relatives by blood or marriage; adults who previously or presently reside together (college roommates qualify).

 

-Dont get convicted of domestic violence, rather it is a postscript that is added to charges of other crimes such as assault

Term

MORE RESOURCES TO VICTIMS POLICE AND PROSECUTORS INVESTIGATING DOMESTIC VIOLENCE

Definition

1. POLICE: MANDATORY ARREST RULE (4 hours)

To de-escalate the situation. (Adopted in 22 states and D.C.)

2. VICTIMS: ORDERS FOR PROTECTION

RESTRAINING ORDERS

ANTI-HARASSMENT ORDERS (Non DV

3. PROSECUTORS:   NO CONTACT ORDERS (PRE / POST TRIAL)

Vigorous pros. of VNCO’s – Standard range.

The guy doing 3,200 days.

 

Find them together, arrest them.

 

PROSECUTION W/OUT VICTIMS

Term

CONTRACTS

Definition

An agreement that can be enforced by a court, the breach of which gives may give rise to money damages.  Private law, people agree that this will be the law that governs their relationship 

Term

THE UCC

Definition

The Uniform Commercial Code.  Adopted, in all or part, by all 50 states.

The idea behind the UCC is to make things more consistent among the 50 states. Where people are engaged in INTERSTATE COMMERCE, you don’t want 50 different sets of rules.  Consider how difficult it would be for Boeing, which may buy parts from 30-40 states, to have to be familiar w/30-40 different state laws concerning contracts.  Boeing would pay huge sums just to employ lawyers in these state to make sure it was acting within the law, thus making it less competitive.  Uniformity gives rise to greater certainty among contracting parties, for far less money. 


The UCC covers a variety of topics.


The UCC covers SALES (the transfer of ownership of goods in exchange for $)

Leases

Commercial Paper

Securities

Term
Forms Contracts can take
Definition
oral, written, implied, express, implied in fact, formal contracts, quasi-contracts
Term
Oral Contract
Definition
Spoken contracts except for those required by law to be in writing
Term
Written Contract
Definition

certain contracts must always be in writing pursuant to the Statute of Frauds: Examples include: employment contracts that cannot be completed within a year; the sales or real property (land).)

Term
Implied Contract
Definition

from conduct, tradition, and customs: Ex. The delivery of grains, eastern Washington apple production, etc

Term
Express in a Contract
Definition
Spoken or written words to acknowledge a contract
Term
Implied in fact contract
Definition
Raising your hand for peanuts at a ball game; peanut man throws them
Term
Formal Contracts
Definition

 How a check must be filled out, pursuant to law. Other areas that fall within the ambit of “formal contracts” include letters of credit (an agreement to pay a sum of $ upon the receipt of a bill of lading).

Term
Quasi-Contract
Definition

Contracts Implied in Law). This is an equitable doctrine whereby a court may award monetary damages to a plaintiff for providing work or services to a defendant even though no actual contract existed.  The doctrine is intended to avoid “unjust enrichment” or “unjust detriment”.  

Term

Parties to a contract

 

 

Definition


Every contract involves at least two parties: the offeror and the offeree.


OFFEROR (The person making the offer: “I’ll pay you $1,000 to paint my garage”.)


2. OFFEREE (The person receiving the offer).

Term
Bilateral V Unilateral Contract
Definition

BILATERAL CONTRACT: Both parties exchange legally binding promises to the other.

EX. I agree to help you find your dog for 4 hours, in exchange for $20.  If we 

agree to this, and I help you look for the dog, you owe me the money. Note that no act of performance is necessary to create a bilateral contract.


UNILATERAL CONTRACT: A contract is unilateral if the offeror’s offer can be accepted only by the performance of an act by the offeree.  There is no contact until the offeree performs the requested act.  It is, in essence, a “promise for an act”.  .  EX. “Ill give $20 to whoever finds my dog in the next 4 hours.”  I only have to pay if somebody finds my dog in the next 4 hours. (Unilateral contracts cannot be revoked once the offeree has undertaken “substantial performance” of the contract.  Ex:  If I promise you $1,000 if you “complete” the Boston marathon, I cannot revoke the offer when you are halfway through the race.)


Term
Six requirements for valid contract
Definition

Competent parties

Mutual Agreement

Genuine Assent

Reciprocal consideration

In form prescribed by law

Legal formation and execution

Term
Competent Parties
Definition

 One of six requirements for valid contract

-Each party must have the legal capacity to enter a contract.  

If an incompetent person enters into a contract, the contract is VOIDABLE at the discretion of that person, or that person’s guardian

-Minors, Mentally incompetent, Drunk/High

Term

Mutual Agreement

 

Definition

-One of six requirements for valid contract

The parties must come to a mutual agreement by OFFER and ACCEPTANCE (they must

Agree to THE SAME THING – and come to a MEETING OF THE MINDS

-Consists of definite or reasonably certain offer, communicated to offeree, accepted by a positive of a mirror image of the offer

Term
Limitations to an offer for a contract
Definition

TIME.  Offers are generally open for a reasonable amount of time, but the offeror may indicate that the offer terminates at a set time.


EX. OPTION CONTRACTS

A separate “contract” to keep the “option” to buy, open for a set period

of time.  The death of either offeror or offeree will not terminate the

subject of the option during the time period.


OFFER MAY BE REVOKED ANY TIME PRIOR TO ACCEPTANCE. This is true even if the offeror initially promised to keep the offer open for a set period of time, and decides to revoke it prior to the time running.  Revocation may be accomplished by either telling the other party “the offer is revoked.”


REJECTION of the offer terminates the offer.  Ex.  If I offer you my car for $5,000, and you decline it, then change your mind a week later, and call me to say you will accept the deal, it’s too late.  There is no offer on the table at this point.


COUNTEROFFERS  terminate the initial offer.

DESTRUCTION of the item, through no fault of the offeror, terminates the offer. Ex. If the building, which is the subject of the sales contract, burns down, the offer to sell it ends.


DEATH of either offeror or offeree terminates the offer.


SUPERVENING ILLEGALITY will also terminate offer. Ex. If legislature bars interest rates of more than 18% (called “usury”) any outstanding “offers” to loan money for 21% would be terminated.

Term
Genuine Assent
Definition

-Both parties have to voluntarily enter into the contract

-No undue influence (taking advantage of relationships), duress, fraud, mutual mistake (both parties wrong about a central assumption)

 

Term
Reciprocal Consideration
Definition

-One of six requirements for valid contract

that which induces both parties to contract.


Each party gives something, and each party receives something / or / 


OR


a contract is considered supported by legal value if 


(1) the promisee suffers a legal detriment, or 

(2) the promisor receives a legal benefit.


Term
Legal Formation and Execution
Definition

-One of six requirements for valid contract

-The contract must be LEGAL in its form and proposed execution.

Illegally formed contracts WILL NOT BE ENFORCED BY COURTS.

-Not contrary to a statute or public policy

-Exceptions include non-compete clauses and goodwill sales

Term

IN FORM PRESCRIBED BY LAW

Definition

One of 6 requirements for valid contract

-Not all contracts need to be in writing, but Certain statues and laws require that certain types of contracts be in a specific form.  Unless the contract is in this form, the contract is not valid.  The major rule is the

STATUTE OF FRAUDS – Requires that contracts for SALE OF LAND; LEASE OF MORE THAN ONE YEAR; SALE OF TANGIBLE GOODS WORTH $500; CONTRACT THAT CANNOT BE PERFORMED W/IN ONE YEAR

Term
4 statuses of a contract
Definition
Enforceable, void agreement or contract, voidable agreement, unenforceable
Term
Enforceable Contract(
Definition

(or a “valid contract”). This is a contract that meets all of the essential elements to establish a contract. 


Term
VOID AGREEMENT OR CONTRACT
Definition

A failed attempt to make a contract. A void agreement has no legal effect.  It is as if no contract had ever been created.  For example, a “contract” to commit a crime is void; neither party is obligated to perform.

Term

VOIDABLE AGREEMENT

Definition

A voidable contract is one where at least one party has the option to avoid his or her contractual obligations.  If the contract is avoided, both sides are released from their obligations under the contract. 

 

Ex.  A minor, under 18, may void a contract even if the contract is otherwise valid, because minors are not allowed to contract. However, if the minor voids the contract, then the other side is also released from it, but the minor will have to pay restitution.

Term

UNENFORCEABLE AGREEMENT

Definition

UNENFORCEABLE AGREEMENT – Occurs where there is some legal defense to the enforcement of the contract.  Ex. The statute of limitations may forbid enforcement: Most states allow merchants to sue to enforce a credit agreement only w/in 4 years.  If I don’t pay my credit card bill for 5 years, and VISA hasn’t sued me yet, they may not be able to, because too much time has passed.

Term
Privity of Contract
Definition

refers to the relationship of those parties within a contract.

There may be “third party” beneficiaries to contracts – life insurance proceeds, for instance.

Term

HOW DO YOU CLASSIFY OR DEFINE WHETHER A CONTRACT HAS BEEN PERFORMED

Definition

EXECUTED – After a contract has been performed, it is said to have been EXECUTED.


EXECUTORY CONTRACT – If something remains to be done by one of the parties, the

Contract is said to be an executory contract. 


Term

DISCHARGING A CONTRACT

Definition

A contract is discharged when it is PERFORMED.  The rights and duties of each party to the

Contract are terminated upon discharge.

Term

 discharged by ACCORD AND SATISFACTION

Definition

If a contract isn’t fulfilled as originally promised, the details may be changed and the

Contract still discharged by ACCORD AND SATISFACTION.  This means that there

Is another agreement between the parties, which satisfies both.


Term

OTHER MEANS OF ENDING A CONTRACT INCLUDE

Definition

Subsequent illegality

Bankruptcy

Impossibility (personal service contract where one party dies)

Commercial impracticability: Finding solid granite where you need to pour the foundation for your new home

Term

BREACH OF CONTRACT 

Definition

occurs when one party cannot/does not perform, in which case a 

LAWSUIT may be filed; the victim may then CANCEL the contract w/no liability.

Breach of contract is not a crime, and USUALLY not a tort.


Term

COMPENSATION 

Definition

Defaulting party usually required to pay COMPENSATORY DAMAGES to

Put the other party in THE SAME POSITION THAT HE WOULD HAVE BEEN IN HAD THE CONTRACT BEEN PERFORMED.

 

2. Punitive damages if a TORT corrupted the contract..

 

ATTORNEY FEES generally not awarded for breach of contract, but the 

Contract itself may make provision for these to be paid.

 

4. LIQUIDATED DAMAGE CLAUSE.  Some contracts will contain a clause

that sets for the damages.  If I promise to build your home by Dec. 1, fine; if I go 

beyond that date, I owe you $75/day (for hotel expenses.)

Term

EQUITABLE RELIEF. 

Definition

The Court may order a party to fulfill a contract, or

Deliver something unique that was the subject of a bargain (Picasso painting).

Term

ADHESION CONTRACTS

Definition

“UNCONSCIONABLE CONTRACTS

Clauses which SHOCK THE CONSCIENCE WILL NOT BE ENFORCED.

EX.  Contract which requires 50% down, plus monthly payments at the highest interest rate

Allowed by law AND states that any single payment received 1 day past due allows the 

Seller to seize the property back, and the buyer to get nothing… UNCONSCIENABLE.

Term

DURING SALE LAWS

Definition

These laws regulation TRUTH IN ADVERTISING, EXTENSION OF CREDIT & CONTRACT TERMS.


FEDERAL TRADE COMMISSION – Regulates Advertising

May seeks fines, injunctive relief for false advertising.


CONSUMER CREDIT EXTENSION ACT

Full disclosure of the comparative costs of obtaining credit, and total finance charges.

EX.  You buy a car on credit, they must tell you what the total payments will be, and what

Portion of these payments are due to interest.


CREDIT CARD ACT OF 1970

Limits your damages, if your credit card is stolen, to $50.


FAIR CREDIT REPORTING ACT

Allows YOU to see your credit rating, and then fix problems with it.


EQUAL CREDIT OPPORTUNITY ACT

Lenders can’t discriminate based upon sex, race, etc. in granting credit.

EX.  Many lawsuits brought against banks for RED-LINING (drawing a 

Red line around geographic areas and NOT lending money on houses in 

That area – these areas are invariably minority areas.

Term

 3 broad ways to characterize employment

Definition

1. Principal – Agent

2. Employer – Employee

3. Contractor – Contractee

Term

Why is it important to know what the relationship is between an employer/employee?

Definition

1. Liability (in case the “employee” does something wrong).

2. Employment Security.

3. Benefits.

Term
Employer-Ordinary Employee Relationship
Definition

 

Ordinary employees are AT WILL, meaning that they can quit, or be fired, at any time, for any legal reason.  (Employers cannot, for instance, fire an employee because of race or sex, but the employer may fire the employee if she/he doesn’t shower, or come to work too tired to do the job.)

An ordinary employee is a person hired to perform services for another, an employer.  The employee’s physical conduct is controlled by the employer.

Employees usually do not have independent business discretion. However, some

employees who transact business with a third-party are also agents.

Ordinary employers are also liable, via Respondeat Superior, for the negligent, or reckless conduct of employees.  

There are some limitations, and the ultimate question

Usually is: WAS THE EMPLOYEE ACTING WITHIN THE SCOPE OF

EMPLOYMENT.

 

Term

THE PRINCIPAL – AGENT RELATIONSHIP

Definition

The principal hires the agent to work on his/her behalf.

The relationship is often contractual.

The agent must always work in the best interest of the principal; this is often referred to  as the “fiduciary obligation”.  The agent must place the principal’s interest above his own.

Example: Real Estate sales. 

Agents may bind the principal, provided that the agent is acting within his authority.

If an agent acts outside his authority, he is said to be acting “untra vires”, and cannot bind the principal (though 3rd parties can sue the agent, not the principal).

The principal is liable for the actions (torts) of the agent if the agent was acting within the scope of employment AND in the course of employment.  This important doctrine is known as RESPONDEAT SUPERIOR.

Term
Untra Vires
Definition
When an agent acts outside of his authority in a principal-agent employment relationship
Term

 RESPONDEAT SUPERIOR

Definition

The principal is liable for the actions (torts) of the agent if the agent was acting within the scope of employment AND in the course of employment.  This important doctrine is known as RESPONDEAT SUPERIOR.

Term

CONTRACTING EMPLOYER – INDEPENDENT CONTRACTOR


Definition


Independent contractors are not ordinary employees; they are engaged to accomplish a task/job.  The party who contracts for their services usually has little control over how the job is performed. (You hire somebody to do a specific job for you, e.g., paint your house, etc.  This is an independent contractor).

A person who employs an independent contractor is relieved from having to:

1. Keep time records;

2. Withhold taxes, and remit taxes to government.

3. Pay workers compensation insurance.

4. Fringe benefits, including medical, vacation, stock options.

Respondeat superior does not apply.

Term

QUESTION: INDEPENDENT CONTRACTOR OR EMPLOYEE?

Definition

1. What control does employer have over details of work?

2. Does the employed person work in a distinct business?

3. Is the work usually supervised, or independent?

4. Does the employer supply tools or equipment?

5. How long is the period of employment?

6. What is the method of payment: hourly / by the job?

7. What degree of skill is required?

Term

BASIC DUTIES OF EMPLOYEES

Definition

Must do work that is reasonable and customary for the job.

If under an employment contract, don’t have to do work outside the contract.

Must use reasonable skill in performing job…(can’t loaf or spend all your time Facebooking your girlfriend/boyfriend).

Can quit at any time (AT WILL), except if quitting breaches an employment contract.  Can be fired at any time, for any reason which is not illegal.

 

S.Ct.: Workers may refuse to do jobs that appear “unreasonably dangerous”.  

Mr. Burns: "Homer, could you climb into the core of that nuclear reactor and check it out?”   

Employees cannot be FORCED to work if they quit an employment contract, BUT the Court may ENJOIN them from working elsewhere(for a competitor, for instance)  Easier to say stop, don’t do it elsewhere, than to say do it here and do it well. 

Supporting users have an ad free experience!