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Tort Law
n/a
85
Business
Undergraduate 2
12/11/2011

Additional Business Flashcards

 


 

Cards

Term

Negligence

Definition

someones disregard to do something a reasonable person would do.

Term

Elements of Negligence

Definition

Duty

Breach

Causation

Damages

Term

Duty

Definition
legal duty under all circumstances that a reasonable persons standard of care
Term

General Rule for Duty

Definition
a person/business has the duty to exercise the same degree of care which would be exercised by a reasonable person/business under all the same circumstances.
Term

Circumstances for Duty

Definition

Mental Shortcomings - not taken into account

Physical Shortcomings - taken into account

Age - lower standard of care [exception: adult activity doctrine]

Superior Knowledge - raises standard of care

Emergencies - taken into account and lower standard of care

Term

Duty of Owners/Occupiers of Land

Definition

Undiscovered Trespasser - limited/no duty to protect P

Discovered Trespasser - duty of reasonable care conducting  activities and duty to warn of known hidden conditions. No duty to search for hidden conditions or to repair.

Licensee -  duty of reasonable care conducting  activities and duty to warn of known hidden conditions. No duty to search for hiddenconditions or to repair.

Business Invitee - Full duty of care. 

Term

Attractive Nuisance Doctrine

Definition
turns children into business invitees because of attractiveness of items on the property.
Term

Breach

Definition

D failed to fulfill the required legal duty

 

1. D's actions (obj)

2. D's behavior (subj)

Term

Failure to act by a Defendent...

Definition
there is no legal duty to rescue, render aid, assist or otherwise intervene to protect others and D will not be held liable for failing to act, help or assist P.
Term

Exceptions to failure to act by D

Definition

1. D caused P's predicament

2. Rescue Doctrine - once you begin to rescue someone you must continue unless termination won't worsen the P's position or others can rescue the P

3. Special Relationship - D is liable if they have a special relationship with P [ex: employer/employee] 

 

Term

Causation

Definition
Was the D's breach of duty both actual and proximate cause for P's injuries?
Term

Types of Inuries

Definition

Personal - physical/bodily

Property - real estate/personal property

Economic - business/professional

Emotional - distress

Term
"But For" Test
Definition

would the P's injuries have occurred "but for" the D's breach of duty? 

 

 

Hypo: would construction have been delayed "but for" the flood?    NO

Term

General Rule for Proximate Cuasation

Definition
D is liable only for forseeable results of D's lack of reasonable care
Term
Damages
Definition
Determined with specificity
Term

Defenses to Negligence

Definition
Even if P establishes all of the elements of negligenge, D may avoid liability if either contributory/comparative negligence or assumption of risk apply to the situation.
Term
Strict liability
Definition
automatic liability for ht eseller of defective and unreasonably dangerous product
Term
Elements of Strict Liability
Definition

1. Actual Damages
2. Caused Injury
3. In the Business of Selling Liable Product
4. Reached P without any substantial changes

5. Defective

6. Unreasonably Dangerous

Term
Tort 
Definition
a civil wrong that is not a breach of a contract
Term
Elements of Tort
Definition

Intent (Substantial Certainity)

Recklessness

Negligence

Strict Liability

 

Term
Intentional Torts
Definition

Personal : Assault, Battery, False Imprisonment and Intentional Infliction of Emotional Distress

Property : Trespass to Land, Trespass to Chattels (non real estate) and conversion

Term
Assault
Definition

When one person causes another person to suffer a reasonable apprehension of imminent harmful or offensive bodily contact

- Intent (Substantial Certainity)

- Reasonable Apprehension (Fear or Range of Emotional Responses)

- Imminent (D has present ability to perform)

Term
Battery
Definition

Intentional infliction of harmful or offensive bodily contact

- Intent (substantial certainity)

- Harmful (physical) or Offensive (personal dignity)

- Contact (phsyically or via extension)

Term
Transferred Intent Doctrine
Definition

1. Different Person is the object of intent

2. Different Tort is intended

Term
False Imprisonment
Definition

Intentional infliction of a confinement

- Intent (substantial certainity)

- Confinement (means of boundaries, force used, reasonable means of escape)

 

Term
Shopkeepers Privilege
Definition

Shopkeepers detention will not constitute false imprisonment if:

1. Reasonable Suspician

2. Reasonable Means

3. Reasonable Time

Term
Intentional Infliction of Emotional Distress
Definition

Intentional infliction, by extreme and outrageous conduct of severe emotional distress.

- Intent (substantial certainity)

- Extreme and Outrageous Conduct (would reasonable person judge conduct extreme or outrageous)

- Severe Emotional Distress (evidence of distress or compacted in unreasonable time)

Term
Trespass to Land
Definition

When D intentionally causes physical invasion of land possessed by another

- Intent (substantial certainity)

- Phsyical Invasion

- Land Possessed by Another

Term
Trespass to Chattels
Definition

Intentional interference with a person's use or posession of a personal property

- Intent (substantial certainity)

- Interference with Use or Posession

- Personal Property (Non Real Estate)

Term
Conversion
Definition
Destruction of Personal Property
Term
Self Defense
Definition
A person is privileged to use reasonable force to defend themself when they reasonable believe it to be necessary to protect themself. 
Term
Issues of Self Defense
Definition

1. Did privilege exist?

- necessary

- immenence of danger

2. Scope of Force

- Deadly force only when in fear of physical injury or life is in danger

Term
Retreat Rule
Definition

D must retreat if safe to do so before using deadly force

- doesnt apply in your own residence

Term
Defense to Others
Definition

Majority Rule - D is privileged to use reasonable force to defend a 3rd party when the 3rd party reasonably appears to be privileged to defend themselves.

 

Minority Rule - D is privileged to defend 3rd parties only if the 3rd party is IN FACT actually privileged to defend themself. 

Term
Defense of Property 
Definition
A person is privileged to use reasonable force to prevent a tortious interference with real property
Term
Issues to Defense of Property
Definition

1. Privilege exists

-reasonable belief immenence of danger

2. Scope of Force

-necessary enough to protect property

Term
General Rule to Defense of Property
Definition
Permitted only to protect against the B&E of a home ; not  business, abandoned dwellings, etc.
Term
Verbal Demand Rule
Definition

verbal warning is required before using deadly force to defend property.

- not required when unsafe

Term
Recovery of a personal property
Definition
a person is priveleged to use reasonable force to recover their personal property if wrongful dispossession of the property has occurred, prompt delivery has occurred, prompt delivery has occurred and fresh pursuit ensues to recover the property
Term
Issues for Recovery of Personal Property
Definition

1. Privilege

- wrongful taking

- prompt discovery of wrongful taking

- fresh pursuit to recover

2. Scope of Force

- Reasonable force : only what is needed to recover the stolen property

- NEVER DEADLY FORCE

Term
Defamation
Definition

publication

falsity

defamatory

statement

concerning the plaintiff

required degree of fault

damages 

Term
Falsity
Definition
P claims the burden of proof to show, by clear and convincing evidence, the D's statements were false
Term
Publication
Definition
communication of the statement to third parties
Term
Defamatory
Definition
lowers rep
Term
Statement
Definition
not an opinion; utterances implied by the D who obtains knowledge of ultimate fact; "of and concerning"
Term
Concerning the Plaintiff
Definition
P is specifically named or is in an unnamed member of a small group to directly affect the P's reputation
Term
required degree of fault
Definition
actual malice
Term
Two tort causes of defamation for causes of action
Definition

Libel - defamatory statement in some permanent form 

*higher damages

 

Slander - a defamatory statement in some temporary form

Term
Explain the difference between Public Official, Public Figure and Private Figure
Definition

Public Official is appointed or elected, Public Figure chose to be part of the public eye and Private Figure chooses to be Private. 

 

Public Official/Figure - Actual Malice Standard and Reckless Disregard

 

Private Figure - Negligence Standard

Term
Actual Malice Standard
Definition
P must prove that D made the false and defamatory statement either a. with knowledge of falsity b. with reckless disregard to the truth
Term
Reckless Disregard
Definition
D had serious doubts as to the truth and supports 1st amendment and freedom of the press
Term
Negligence Standard
Definition
P must prove only that the D acted with a lack of reasonable care in making the false statement
Term
Causes of Action for Trespassing
Definition

1. Intrusion upon a person's solitude 

2. Public disclosure of private facts about a person

3. Publicity placing a person in a false light to the public

4. Misappropriation of name/likeness for commercial purposes [Right of Publicity]

 

Term
Intrusion upon a person's solitude
Definition

- Intrusion upon zone of privacy

- Highly Offensive to a reasonable person

Term
General Rule to Intrusion
Definition
There is no liability for examining public records concerning a person, or for observing or photographing them in the public 
Term
Public disclosure of private facts about a person
Definition

- Highly offensive

- Not a matter of legitimate concern to the public

- No liability attaches to publicity concerning matters of public record or interest.

- Public Officials/Figures have no right of privacy concerning information that is reasonably related to their public lives

Term
Publicity placing a person in a false light to the public
Definition
Attributes to a person's characteristics they dont have or beliefs he doesnt hold
Term
Misappropriation of likeness/name for commercial purposes
Definition

use of name/image/info for commercial purposes to imply some non-existent connection or to imply product endorsement

 

Exception: transforming name/image/infor and Freedom of the Press "Hot News"

Term
Williams v. Cingular Wireless
Definition

*Negligence - Duty

 

Care accident because of texting

 

D holds no duty of care because the relationship and foregoing public policy considerations substantially outweigh any forseability of the harm at issue.

 

 

Term
Hopkins v. Fox and Lazo Realtors
Definition

*Business Invitee

 

Sprained ankle in home

 

 duty doesnt replicate comprehensive duty owed by homeowners towards invitees

Term
Delgado v. Trax Bar and Grill
Definition

*Business Invitee

 

Beaten outside of bar

 

D owes duty of reasonable care to P to protect them from danger 

Term
Culli v. Marathon Petroleum
Definition

*Business Invitee

 

Gas Station

 

maintenance was unreasonable and must owe duty of reasonable care to known hazards.

Term
Kelly v. Gwinnell
Definition

*Special Relationship

 

Druk Driving

 

3rd parties can be liable for injuries that occur in the ordinary course of events from their negligence if negligence was a substantial factor in bringing about the injuries

Term
Scully v. Fitzgerald
Definition

*Violation of Statute and Negligence Per Se

 

Fire and business

 

trial erred

Term
Stahlecker v. Ford Motor Company
Definition

*Proximate Causation

 

flat tire murder

 

neither ford nor firestone had a legal duty to anticipate and guard against criminal acts at the location of another party. 

 

 

Term
Rowe v. State Baker of Lombard
Definition

*Proximate Causation

 

Shot by intruder at work

 

erred

Term
Walz v. City of Hudson
Definition

*Proximate Causation

 

Drunk and buying liqour

 

standard of care, a breach of which is negligence as a matter of law. 

Term
Klien v. Pyrodyne Corp
Definition

*Strict Liability

 

Misfire of fireworks

 

satisfies six conditions, therefore abnormally dangerous activity justifying the imposition of strict liability

Term
Carson v. Here's Johnny Portable Toilets
Definition

*Misappropriation of name/likeness for commercial purposes

 

catchphrase

 

because of their awareness of the familiarity with the catchphrase then they have invaded the P's privacy and violated their publicity rights.

Term
Burnett v. National Enquirer
Definition

*Public Figure and Actual Malice

 

False Article

 

Protection of publications engaged in the immediate dissemination of news and arent generally in a position to guard adequately against the publication of material which is untrue. 

Term
Barger v. Playboy Enterprise
Definition

*Concerning the Plaintiff

 

Article on Hell's Angels

 

Far too numerous to show "of and concerning"

Term
Lake and WalMart Stores
Definition

*Intrusion, Public Disclosure and False Light

 

Naked Photos

 

Right to privacy under intrusion and public disclosure; false light declined

Term
Bilney v. Evening Star Newspapers
Definition

*Disclosure of Private Facts

 

Basketball Players and Grades

 

They are Public Figures, therefore article does not invade privacy

Term
Comedy III Productions v. Saderup
Definition

*Misappropriation of name/likeness

 

Three Stooges

 

May not use publicity of deceased celebrities without consent of successors

Term
Manning v. Grimsley
Definition

*Battery - Harmful/Offensive

 

Baseball player and hecklers

 

Employer is liable for damages resulting from an assualt by an employee when the assault was in response to a bystanders interference of the employees duties. 

Term
England v. S&M Foods
Definition

*Battery - Contact

 

Upset Manager

 

Battery involves the act of a person or extension of their actions

Term
Wishnatsky v. Huey
Definition

*Battery - Harmful/Offensive

 

Paralegal

 

Bodily contact was not offensive to a reasonable person

Term
JH Harvey v. Speight
Definition

*Shopkeepers Privilege

 

Stolen Items

 

There must be restraint by force/fear

Term
Peterson v. Sorlein
Definition

*False Imprisonment - Confinement

 

Cult and Parents

 

a parents/agents actions to revert their adult child is justifiable

Term
KMart v. Perdue
Definition

*Shopkeepers Privilege

 

Scam and Reciepts

 

When merchant has reasonable cause to believe that goods held for sale have been unlawfully take by a person, the means of detaining the suspect are reasonable along with the time period of detention.

Term
Banks v. Fritsch
Definition

*Intentional Infliction of Emotional Distress - Severe

 

Skipping class

 

the acts were willful nor malicious or performed in such a way to indicate a gross neglect/disregard for rights of wronged. 

Term
White v. Monsanto
Definition

*Intentional Infliction of Emotional Distress - Conduct

 

Church and Yelling

 

Outburst does not give rise for any recovery of intentional infliction of emotional distress

Term
Chuy v. Philedelphia Eagles
Definition

Intentional Infliction of Emotional Distress - Distress

 

Football and Medical Issues

 

mental distress was unreasonable

Term
Lourcey v. Estate of Scarlett
Definition

*Intentional Infliction of Emotional Distress - conduct

 

Mail Carrier and Suicide

 

Outrageous conduct existed

Term
Katco v. Briney
Definition

*Defense of Property - Scope of Force

 

Trespassing unoccupied farmhouse

 

not permissible to use a spring gun to protect uninhabited property.

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