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Terms in this set (65)
A tort is an act or omission (failure to act when required to do so) which causes injury to another's protected interest(s)
What does a tort involve?
A tort involves wrongful conduct: conduct which violates one party's duty to another
What is an intentional tort based upon?
An intentional tort is based upon the willful conduct of the defendant
What is a negligent tort based on?
A negligent tort is when the action is flowing from unreasonable conduct
When is a tort classified as strict liability?
When involving dangerous certain activities
What 2 premises are liabilities predicated on?
1. did the defendant willfully engage in the conduct which resulted in the injury?
2. did the defendant's liability result from unreasonable conduct or from the conduct of inherently dangerous activities?
How are torts compensated?
What do compensatory damages intend to do?
Compensatory damages are intended to make the plaintiff "whole" (as if they had not suffered the injury)
When are punitive damages applied?
In the case of egregious behavior: could be intentional or "gross" or "willful or wanton" intentional behavior
the defendant in a tort action
one who directs or controls the tortfeasor who may be liable for the tortfeasor
What does respondeat tortfeasor require?
Respondeat superior requires the tortfeasor to be acting within the scope of his employment; based upon the master-servant theory of employment
Are parents generally liable for the torts of their children?
parents are not liable for the torts of their children unless the child is an agent for the parent
What is an intentional tort?
Intentional torts require willful, volitional action on the part of the alleged tortfeasor
What do intentional torts involve?
1. interference with the personal freedom of individuals
2. interference with property rights
3. interference with economic relations
4. wrongful communications
What do all intentional torts involve?
What is an assault?
assault is an unprivileged act which causes another to experience an apprehension of a harmful or offensive contact
What does apprehension mean?
Apprehension means Plaintiff experiences an anticipation of a force being applied to his/her person
Under what circumstances is a contact "harmful?"
A contact is harmful if it results or is likely to result in injury, paid, disfigurement or interference with a bodily organ or function
Whether a contact or touching is harmful is determined by a _______ standard
What is battery?
A battery is an unprivileged act which results in a harmful or offensive touching
What is offensive touching?
A contact or touching is offensive if a reasonable person in the community would be offended by the touching
What does trespass affect?
Trespass can affect one's exercise of dominion over one's personal or real property
What is disparagement?
Disparagement: a false communication about the quality of another's property, product or conduct in business to a third party resulting in specific pecuniary (monetary) loss
What is defamation?
a false communication to a third person which results in damage to the plaintiff's reputation; encompasses slander and libel
oral defamatory statement
What is negligence?
Negligence is the 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
What is the key question of negligence?
at the time of the plaintiff's injury was the alleged tortfeasor acting reasonably?
How does the plantiff establish prima facie for negligence? (5 steps)
(1) the alleged tortfeasor owed a duty of care to the plaintiff;
(2) the alleged tortfeasor, through act or omission, breached that duty
the breach of duty was both
(3) the actual cause
(4)the proximate cause of the plaintiff's injury
(5) the plaintiff suffered a personal injury or property damage as a result of the breach
What is a duty?
duty is a legal requirement imposed upon the alleged tortfeasor by society or by agreement
What is due care?
the default duty imposed on a tortfeasor
What is professional negligence?
standard is one of skill, knowledge and judgment common to others in the (local) profession
Causation in fact
the tortfeasor is the cause-in-fact (actual cause) if the injury would not have occurred but for the defendant's conduct
did the defendant cause a foreseeable injury to a foreseeable plaintiff?
if, at trial, it is proved plaintiff's conduct was a contributing factor in bringing about plaintiff's injury, the plaintiff cannot recover
if, at trial, it is proved 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
Assumption of the risk
if, at trial, it is proved plaintiff voluntarily assumed a known risk of harm plaintiff cannot recover
Liability results from conduct which causes harm without the need to establish intent or negligence
Examples of strict liability
Certain activities, such as keeping wild or dangerous animals, or engaging in abnormally dangerous activities, such as manufacturing explosives or toxic chemicals, may lead to strict liability owing to the abnormal danger of the activities
when a product departs from its design specifications
when the foreseeable risk of harm could have been reduced or avoided by a reasonable design alternative
when a failure to give adequate warnings results in a foreseeable injury to a foreseeable plaintiff
comparative fault defense for defects
did plaintiff alter the product or was plaintiff negligent in using the product; failure to discover a defect is not a defense; foreseeable misuse of a product is not a defense
state of the art defense for defects
a product is purported to be manufactured according to the best and latest technology available; may not be a defense in some jurisdictions
malum in se
wrongs in and of themselves
crimes are wrongs by public policy
In a criminal prosecution, the burden of proof is
guilt beyond a reasonable doubt
The prosecution gets only one opportunity to try a defendant for a given crime
all crimes (lesser included offenses) which are based on the same or similar facts (goes with double jeopardy)
A felony is punishable by death or imprisonment for more than a year plus a fine
A misdemeanor is a crime punishable by incarceration in jail up to a year and/or a fine
Treason exists when a US citizen levies war against the US or gives aid and comfort to an enemy
Administrative Crimes are violations of agency rules or regulations (such as rules or regulations of the EPA, FDA or SEC) violations of which may be declared to be criminal
Business people may commit new crimes by guile, deceit and/or concealment (often for money, property, services, etc.)
RICO (Racketeer Influenced and Corrupt Organizations Act)
private litigants may file suit for triple damages for various state and federal fraudulent crimes committed by a RICO entity (against organized crime)
Wire fraud exists when one uses the wires (telephone, telegraph, computers, etc.) as part of a calculated scheme to defraud
Criminal liability requires two elements
the intent to commit a crime (mens rea) and the affirmative act or omission (actus rea)
state of mind
Capacity: children under 7
were presumed to be incapable of forming the intent to commit a crime
Capacity: Those over 14
presumed to be capable of forming criminal intent
between 7 and 14 there was a rebuttable presumption a child could form criminal intent
criminal intent originated with law enforcement; the defendant would not have committed the crime but for encouragement or instigation of the police; often raised in drug crimes
immunity from prosecution
a grant of protection from prosecution in return for testimony against another at trial; generally a complete defense to prosecution, protection from self-incrimination
insanity as a defense
was the defendant, at the time of commission of the crime, able to conform his/her conduct to the requirements of the law; covers mental disease or defects
Voluntary intoxication is generally not a defense; for a specific intent crime, if intoxication prevents defendant from forming the requisite intent, can be a defense
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