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FIL EXAM 2 TEST ?'s
Terms in this set (18)
If it's a lie it is not protected by free speech.
if you defame(lie) someone in writing
Offend someone by word- oral
The USSC has referred to only some of the Bill of Rights and made them applicable to State actions
Concept of Ordered Liberty
if a particular clause is clearly implied the Courts follow it
if a right is clearly implied and is fundamental to notions of liberty and justice.
The more serious the deprivation (damage, ruin) of life, liberty or property,
the more formal and fair the procedures are required to be.
to be used when procedural due process is required is Fundamental Fairness:
1. Right to a hearing
2. Notice of that hearing
3. Right to present evidence
4. Right to cross-examine
Reasonable Basis Test
used by the Courts to determine whether or not a legislature had a reasonable basis or justifiable reason for classifying people a certain way.
-Can treat food carts differently , legal and reasonable
Strict Scrutiny Test
used by the Courts if a classification involves fundamental liberties protected by the Bill of Rights
court order a contract to be CANCELLED. Usually happens when contracts are VOIDABLE.
You can sue for DAMAGES and EQUITABLE REMEDIES at the same time so long as they are:
Can never sue for:
Damages AND Restitution- NOT OK, because you can never get restitution unless the contract does not exist.
PALSGRAF v. LONG ISLAND R.R
--N.Y. Ct. of Appeals must determine whether the railroad had a duty of care to protect plaintiff from harm AND whether the negligence of the railroad was the proximate cause of injuries.
-- "most famous tort case"
- train is boarding, there's a conductor that sees a lady trying to get on the train while its moving. He grabs her hand and she drops her package. The package had fireworks in it and they hit the ground. Fireworks went of and the lady dies.
- The fireworks made the pile of scales fell and injured Mrs. Palsgraf.
- 2 issues
o did this railroad have a duty of care to protect her from harm?
o Did the negligence of the railroad be a probably cause of the injury?
- She lost the case.
- Wasn't foreseeable
RES IPSA LOQUITUR
Literally means "the thing speaks for itself". If this rule is applied, the burden of proof in a tort case shifts to the tortfeasor. But the plaintiff must still prove 3 things:
1. the event that occurred usually does not happen without someone being negligent
2. the event was caused by something in the EXCLUSIVE control of the tortfeasor, and
3. the event was not caused by the voluntary act of the plaintiff.
Examples: airplane crashes after flames were seen coming from the right engine; ammunition plant explosion; nuclear reactor waste spills.
- the negligence(carelessness) of the plaintiff contributed to his/her injury. If proven by the tortfeasor - plaintiff loses!
damages are given out based upon the relative FAULT of all parties of the lawsuit.
-Damages are a portion based upon the other stuff at fault.
-Example- plaintiff is suing for 1,000,000 dollars in compensatory damages. Defendant says the plaintiff had time to move out of the way making 50% her fault. She wins half the money she sued for.
Assumption of Risk
means the plaintiff knowingly and voluntarily accepts a risk, and any negligence(carelessness) by the tortfeasor is waived and the plaintiff loses. (ex. baseball and hockey games)
No mental element required.
No duty has to be proven.
Need only prove proximate cause.
Can be found in: Animal Acts, Fires, Abnormally Dangerous Activities
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