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Legal Environment Exam #1
Terms in this set (122)
Rules enforced in court and rules that require people to meet certain standards.
Law consists of...
Supreme law of US
Federal, state, local - written by US congress and state legislature
Legal rules that evolved in England from decisions of judges and from customs and practices that were intended to be common or uniform for the entire English Kingdom.
A basis for deciding future cases
laws that determine power limitations and procedures of administrative agencies
Judge must follow precedent, means "the matter stands decided"
a governmental subdivision charged with administering legislation that applies to a particular industry ex. departments, commissions, bureaus etc. Food and Drug administration, Federal Communications commission
a wrong is usually done to an individual. suits between private individuals: torts, contract law, remedies etc. where compensation for the injury is the outcome
the wrong is considered to be inflicted on society as a whole and involved violation of a criminal statue. examples: penalties and remedies where the defendant may go to jail. These cases are not always awarded damages but rather to punish the wrongdoer
Letter summoning someone to court
Parties in a lawsuit
individual who initiates the lawsuit
Person being sued
cover letter on top of demand letter, document ordering defendant to appear and defend allegations
document containing allegations, jurisdiction subject matter and in person, relief sought
1. A statement showing the jurisdiction of the court
2. Details about why the plaintiff is suing the defendant
3. A claim for relief (usually a request for money)
What are the 3 parts of a complaint?
request of the judge for relief which lawsuit is going on
defendants response to a complaint (must be filed with 20 days of receiving complaint-unless motion for more time or other motion-if not filed, default judgement is entered); may also contain counterclaims
The only time you can place counterclaims is when you are submitting your...
plaintiffs response to defendants counterclaims
Complaint, Answer, Reply
request (by motion) for the judge to issue a judgement early in the case without a trial because no issue of material fact:
demand for remedy, usually money, to compensate for a perceived wrong
a complaint made by a litigant to a superior court that a trial judge committed an error, and a request that the higher court correct the mistake
Have no juries, but may have up to 9 judges
discovery: each side finds out about face known by the other side
informal hearing with a binding decision by an arbitrator, an objective third party who may or may not be a lawyer. An informal hearing is held at which evidence is presented. After the hearing, is completed, the arbitrator decides who should win the case.
assists with settlement; not binding. Tries to settle the case
the process by which each side obtains evidence known to the other side
used in Federal Courts; informal jury: not binding.
Resolution of a dispute without a trial
unproven statements that, when combined, constitute one or more claim(s) against the defendant.
written argument that attempts to convince the appellate court that the trial judge was right or wrong
a court order summarily declaring the plaintiff the winner of the lawsuit due to the defendant's failure to defend
Motion for summary judgement
a motion that asks the judge to decide the case in favor of the moving party without the need for a trial
the authority of a court to hear a case
Civil Rights Laws
those personal rights denied from the Constitution. Outlawed discrimination based on race, color, religion or natural origin (gender was not in original)
Race, Color, Religion, and National Origin
What are the four types of things that are covered under the Civil Rights Act?
disabled, marital status, and sexual orientation
What classes are still not protected?
hotels, restaurants, places of entertainment, and gas stations
What are the 4 Places of Public Accommodation covered in the Act
business affecting more than one state, as opposed to business done between two parties in the same state.
Discrimination must have taken place in 1 of the 4 places of public accommodations and business must participate in interstate commerce
To make a discrimination case covered under the Act what two characteristics must be there?
Not awarded any damages, it is a court order that requires a defendant to refrain from doing something.
Injunctive relief (no damages), Reasonable attorney fees
What is the relief Under the Act
National Origin Discrimination
discrimination based on where a person's ancestors are from
If a non-covered business under the Act is located within a covered business with the Act then the non-covered business will be considered a "place of public accommodation" under the Act. Ex. Barber shop inside of a hotel
Bed and Breakfasts and Private Clubs
What are the exempt establishments from discrimination?
American Disability Act
Commitment to the rights of the disabled
Applies to public accommodations: much broader than the civil rights act so as to include other places not covered ie. bars
a physical or mental impairment that substantially limits one or more of the major life activities of the disabled person
Major life activity
any activity of control importance to most person's daily lives ex. walking, seeing, hearing
no money awarded: attorney fees and court costs
will take cases where there is a frequent violator or general importance: can receive damages (not punitive)
not under the original act but may have a claim under the 14th amendment right to equal protection.
Breach of Contract
contract is valid, but one party doesn't follow through with it
an agreement between 2 or more parties for which the law provides a remedy ie. that is enforceable in court
Capacity and Voidable contracts
may be cancelled by one party. applies to: minors, mentally disabled, intoxicated. Not voidable if for necessities (food, water).
a definite proposal to do or give something of value by offer or in exchange for something else from the oferee.
acceptance of offer or make a counter offer
What are the 2 choices of the offeree?
to have a valid contract, the contract must have a legal purpose. If illegal, then it is a VOID contract
is illegal and the contract does not count ex. price fixing
agreeing to not do something
Statue of Frauds
contracts that must be in writing
Sale of Real Property
require over one year to complete, to answer for the debts of another, the sale of goods are over $500 (must be tangible!)
when seller has delivered goods and the buyer accepted them, the buyer paid for good and seller accepted payment
What are the two exceptions of sale of real property?
Nature of Writing
not formal, but must identify the parties, the subject matter of agreement, its essential terms and must be signed by the person defending themselves in the lawsuit claiming that the contract exists (defendant)
Another exception to the writing requirement. States that the party asserting the absence of a writing as a defense has partly performed the contact, the court may construe therefrom both the existence of the contract and its terms.
fraud and misrepresentation - can be innocent or non-innocent
judges/the court will interpret these
practices generally adhered to in a particular industry
performance of contract is conditioned on something happening first
1. Damages - money to compensate for losses
2. specific performance - performance of the contract terms
What are the non-breaching parties remedies?
refers to the sum of money necessary to cover loss incurred by the non-breaching party as a result of the beach
Plaintiff must make a reasonable effort the reduce the loss caused bu the breach
will only be awarded for unique one of a kind items or performance of the contact terms
A sum of money sometimes awarded to a plaintiff in excess of compensatory damages, the purpose of which is to punish the defendant.
contractual capacity, mutuality, legality, consideration, proper form and genuine consent
What are the 6 elements that must be satisfied for a contract between an innkeeper and guest to be valid?
Capacity to contract
the ability both to understand the terms of the contract and to appreciate that failure to perform its terms can lead to legal liability
all parties to the contract are interested in its terms and intend to enter an agreement to which they will be legally bound
an expression of agreement by the offeree to the terms of the offer
something of value exchanged for something else of value.
Pain and suffering and usually punitive damages
In breach of contract what can you not get awarded for?
refers to a favorable reputation producing an expectation of future business
Agreements not to Compete
Agreement or clause banning a seller from competing, are enforceable as long as reasonable to time and territory
Breach by Guest
Hotel must try to mitigate the losses, but if they cannot the hotel is entitled to Damages
Which mistake are you about to get out of: unilateral or mutual?
A hotel may not recover twice, meaning if the room is re-let, then they cannot charge the guest who initially breached the contract
What may a hotel not do when there is a breach in contract with guests
if an apparent commitment is so indefinite that the party has not in fact promised to do anything.
an error made by only one party to the contract as to the terms or performance expected
an error shared by both parties
a civil wrong done by one person that causes injury or financial loss to another
1. valid contract exists
2. 3rd party must be aware of contract
3. 3rd party intentionally cause of induce the party to break contract and do business with 3rd party
What are the three elements of a tort?
is the breach of a legal duty to act reasonably that is the direct (proximate) cause of injury to another
1. Duty by defendant to act reasonably to Plaintiff
2. Breach of that duty
3. Breach of duty is the proximate cause of injury
4. Injury to Plaintiff
What are the four requirements of negligence?
owed by Defendant to act reasonable to those people who would be foreseeable injured by the action (or inaction) of Defendant
the defendants breach of his duty was the direct cause of the plaintiffs injury
Defendants should look for: a preexisting condition by plaintiff or an intervening or super-ceding event, which breaks the chain of causation
What are some things a Defendant should look for to protect themselves from losing a Negligence lawsuit?
someone who comes into the establishment for the purpose of which the business is open to the public
1. Inspect for dangerous conditions and
2. exercise reasonable care to eliminate condition or warn the invitee or condition
What is the duty owed by the business to prevent negligence?
the one who is appealing, lost at trial level
the one who won the trial level
person who has been given permission to enter or remain on premises, presence does not further the defendant's business
1. Refrain from willfully injuring the licensee and 2. warn of danger must defendant has knowledge of (no duty to inspect)
someone on the premises without permission by owner
Res Ipsa Loquitur
"the thing that speaks for itself" - the inference of negligence
Attractive Nuisance Doctrine
arises when a potentially dangerous object or condition of exceptional interest to young people, such as a pool, snow pile, or construction equipment exists on business owner's property
1. the plaintiff's injury was caused by an accident that would not normally have happened without negligence
2. the thing causing the injury was within the exclusive control of the defendant
3. the plaintiff did not provoke the accident
What are the 3 elements the plaintiff must prove for res ipsa loquitur?
1. a condition exists that is attractive to children and is likely to cause them injury
2. the owner or occupier of the land knows or should know of the condition
3. Due to the child's immaturity, he does not appreciate the danger
What are the 3 elements of an attractive nuisance?
Negligence Per Se
conduct that violates a law or ordinance
imposes liability without proof of negligence for engaging in an ultra-hazardous activity ex. dynamite
Strict Products Liability
imposes liability on the seller of a defective product without proof of negligence
reasons for rules: provides damages party an opportunity for compensation (defendant with deep pockets) and encourages care in selection of employees
means "lets the master answer" this is founded on the theory that an employee is an agent of the employer; whenever an employee is performing the duties of his job, he is acting on behalf of the employee.
someone who contracts to do one or more specific projects for someone else and maintains control of how the work is done .
Corporations are generally not liable for the negligent acts done by these.
1. length of time
2. method of payment
3. intention or belief of parties
What are the factors to determine employee or IC status?
A duty that cannot be assigned (or delegated) to another. Regardless of status, certain responsibilities cannot be transferred
No duty to help those in distress but one they act to help, they can be held negligent
Does a normal person hold duty to aid a person in distress?
Yes, but there are limitations to this duty
Does a business hold duty to aid invitees in danger?
if the plaintiff's carelessness contributed to the injury, the plaintiff cannot successfully sue a negligent defendant
a plaintiff's negligence will not totally defeat the lawsuit. As long as the negligence percentage is higher on the plaintiff's side, they will win and they will be awarded the percentage the defendant was negligent. ex. if plaintiff was 30% at fault, but defendant was 70%, plaintiff would be awarded 70% of damages
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