Business Law 315
Definition of Law -
"a rule of civil conduct prescribed by the supreme power in a state, commanding what is right, and prohibiting what is wrong" (Blackstone).
CASE 3-2: World-Wide Volkswagen Corp. v. Woodson (1980).
-Harry and Kay purchased new Audi from Seaway Volkswagon in NY -Robinsons were residents of NY, but on way to new residence in Arizona, another car struck their vehicle, causing a fire that severely burned Kay and her two children -The Robinsons claimed that a product defect in the car led to the injuries -They brought suit in Oklahoma district court against the automobile's manufacturer (Audi), its importer (Volkswagen of America), its regional distributor (World-Wide Volkswagen Corp.), and its retailer dealer (Seaway Volkswagen) ISSUE: Whether Seaway Volkswagen and Worldwide Volkswagen had sufficient minimum contacts with Oklahoma to be under jurisdiction -The United States Supreme Court reversed the decision of the federal appeals court and agreed with World-Wide and Seaway that Oklahoma did not have jurisdiction over them.
CASE 5-1 American Airlines, Incorporated v. Department of Transportation (2000). Adjudication.
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CASE 5-2 Summers v. Earth Island Institute (2009). Judicial Review: Standing.
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CASE 7-2 Ferrell v. Mikula (2008). False Imprisonment/Infliction of Emotional Distress.
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White v. FCI USA, Inc.
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admin law
Administrative Law - rules, regulations, orders, and decisions made by administrative agencies.
Intentional Torts
All forms of civil liberty are either (1) voluntarily assumed, as by contract, or (2) involuntarily assumed, as imposed by law.
Alternative Dispute Resolution -
Arbitration - a nonjudicial proceeding in which a neutral party selected by the disputants renders a binding decision (award). Conciliation - a nonbinding process in which a third party acts as an intermediary between the disputing parties. Mediation - a nonbinding process in which a third party acts as an intermediary between the disputing parties and proposes solutions for them to consider. Mini-Trial - a nonbinding process in which attorneys for the disputing parties (typically corporations) present evidence to managers of the disputing parties and a neutral third party, after which the managers attempt to negotiate a settlement in consultation with the third party. Summary Jury Trial - mock trial followed by negotiations. Negotiation - consensual bargaining process in which the parties attempt to reach an agreement resolving their dispute without the involvement of third parties.
CASE 8-2 Love v. Hardee's Food Systems, Inc. (2000). Duty to Invitees.
At 3:15 PM on November 15, 1995, Jason Love and his mother went to the Hardee's restaurant for a meal. No other customers were there between 3-4 PM, but two or three workers were doing construction in the back (who did not use the restroom). Jason went and used the restroom, he slipped on water and was severely hurt. The supervisor filled out an accident report form which said the accident happened at 3:50 PM. Hardee's had a policy requiring that the restroom be checked and cleaned every hour by a maintenance person who was scheduled to work until 3 PM but left at 1 PM. Employees were also supposed to check the bathroom every time they cleaned tables. Jason Love won the case and received $125,000 dollars. It was reasonable that water comes from the restroom so the restaurant owner was under a duty to use due care to guard against damage from water on the floor. Overall, the restaurant owner was missing many forms of documentation about cleaning the restroom and he couldn't prove it had been checked in a timely fashion on that day. Interpretation: The owner or possessor of property is liable to an invitee if the owner knew or, by using ordinary care, could have known of the dangerous condition and failed to use ordinary care to remove it, barricade it, or warn of it, and the invitee sustained damage as a direct result of such failure
CASE 8-4 Moore v. Kitsmiller (2006). Contributory Negligence.
B & H company installed a septic tank in Kitsmiller's backyard that was two or three feet from the stoop at the back door of the garage. B & H mounded dirt over the septic tank and the lateral lines going out upon its completion. Later, Kitsmiller smoothed out those mounds of dirt. Then, Kitmiller leased his property to the Moores, at which point, Kitsmiller says the dirt looked firm. Moores moved in on august 7, and on august 11 the Moores went into the backyard for the first time. When Mr. Moore stepped off the stoop, he says he could not see the ground (and could only see his wife and the trash bag he was holding). His legs sank into the ground, causing him to fall back onto his head and neck, which would require surgery and affect his ability to earn a living. Moore sues Kitsmiller and B & H. Kitsmiller and B & H pleaded for contributory negligence. Moore says Kitsmiller should have notified him where the septic tank was and with the mounds of dirt still present. They found that Moore was 49% negligent and Kitsmiller was 51% negligent, but B & H 0%. Moore gets $210,000 and then gets reduced $107,000. Kitsmiller was negligent because he failed to inform Moore of the septic tank and did not have mounds of dirt to cover it. Moore had some negligence since he failed to look where he was going. Interpretation: Where both the plaintiff and defendant are negligent, under comparative negligence the law apportions damages between the parties in proportion to the degree of fault or negligence found against them
Harm to the person
Battery - intentional infliction of harmful or offensive bodily contact. Assault - intentional infliction of apprehension of immediate bodily harm or offensive contact. False Imprisonment - intentional confining of a person against her will. Infliction of Emotional Distress - extreme and outrageous conduct intentionally or recklessly causing severe emotional distress.
CASE 7-3 Frank B. Hall & Co., Inc. v. Buck (1984). Defamation.
Buck works for the Frank B. Hall insurance company. Buck brought in several major accounts and produced substantial commission income. Buck was then fired because they said he failed to generate substantial income for the firm. Buck hired a private investigator, Barber, to find out the real reason that he was fired. Barber contacted employee's from the firm and tape recorded their conversations about Buck's dismissal. They said things such as "Buck was disruptive, untrustworthy, paranoid, hostile, ruthless, irrational, ... a classical sociopath, ... a thief, etc." Buck then sued Hall & Co for damages for defamation. Buck was awarded $1.9 million ($605,000 in actual damages, $1.3 million in punitive damages). Interpretation: The key elements of defamation are that the statements made are false, injure the plaintiff's reputation, and are published.
Civil and Criminal Law
Civil - law dealing with rights and duties the violation of which constitutes a wrong against an individual or other legal entity Criminal - law establishing duties which, if violated, constitute a wrong against the entire community.
civil dispute resolution civil procedure
Civil Procedure - civil disputes that enter the judicial system must follow the rules of civil procedure. These rules are designed to resolve the dispute justly, promptly, and inexpensively. The Pleadings - a series of statements that give notice and establish the issues of fact and law presented and disputed. Complaint - initial pleading by the plaintiff stating his case. Summons - notice given to inform a person of a lawsuit against her. Answer - defendant's pleading in response to the plaintiff's complaint. Reply - plaintiff's pleading in response to the defendant's answer. Pretrial Procedure - process requiring the parties to disclose what evidence is available to prove the disputed facts; designed to encourage settlement of cases or to make the trial more efficient. Pretrial Procedure (cont'd) - Judgment on Pleadings - a final ruling in favor of one party by the judge based on the pleadings. Discovery - right of each party to obtain evidence from the other party. Pretrial Conference - a conference between the judge and the attorneys to simplify the issues in dispute and to attempt to settle the dispute without trial. Summary Judgment - final ruling by the judge in favor of one party based on the evidence disclosed by discovery. Trial - determines the facts and outcome of the case. Jury Selection - each party has an unlimited number of challenges for cause and a limited number of peremptory challenges. Conduct of Trial - consists of opening statements by attorneys, direct and cross-examination of witnesses, and closing arguments. Directed Verdict - final ruling by the judge in favor of one party based on the evidence introduced at trial. Jury Instructions - judge gives the jury the particular rules of law that apply to the case. Verdict - the jury's decision based on those facts the jury determines the evidence proves. Motions Challenging the Verdict - include motions for a new trial and a motion for judgment notwithstanding the verdict. Appeal - determines whether the trial court committed prejudicial error. Enforcement - plaintiff with an unpaid judgment may resort to a writ of execution to have the sheriff seize property of the defendants and to garnishment to collect money owed to the defendant by a third party.
sources of law: constitutional
Constitutional Law - fundamental law of a government establishing its powers and limitations.
defenses to negligence:
Contributory Negligence - failure of a plaintiff to exercise reasonable care for his own protection, which in a few States prevents the plaintiff from recovering anything. Comparative Negligence - damages are divided between the parties in proportion to their degree of negligence; applies in almost all States. Assumption of Risk - plaintiff's express consent to encounter a known danger; some States still apply implied assumption of the risk.
defenses to strict liability
Contributory Negligence - is not a defense to strict liability. Comparative Negligence - some States apply this doctrine to some strict liability cases. Assumption of Risk - express assumption of risk is a defense to an action based upon strict liability; some States apply implied assumption of risk to strict liability cases.
legal analysis:
Decisions in State trial courts are generally not reported or published. Reports - Decisions of State courts of appeals are published in consecutively numbered volumes. Court decisions are found in the official State reports of most States.
harm to dignity
Defamation - false communication that injures a person's reputation. Libel - written or electronically transmitted defamation. Slander - spoken defamation. Defamation (cont'd) - Defenses - truth, absolute privilege, conditional privilege, and constitutional privilege are defenses to a defamation action. Invasion of Privacy - Appropriation - unauthorized use of a person's identity. Intrusion - unreasonable and highly offensive interference with the seclusion of another. Public Disclosure of Private Facts - highly offensive publicity of private information. Invasion of Privacy (cont'd) - False Light - highly offensive and false publicity about another. Misuse of Legal Procedure - torts that protect an individual from unjustifiable litigation.
tort definition
Definition - as used in tort law, does not require a hostile or evil motive; rather, the term denotes either that the actor desire to cause the consequences of his act or that he believes that those consequences are substantially certain to result from it.
Harm to property
Definition - intentional harm to property includes the torts of (1) trespass to real property, (2) nuisance, (3) trespass to personal property, & (4) conversion. Real Property - land and anything attached to it. Trespass - wrongfully entering on land of another. Nuisance - a nontrespassory interference with another's use and enjoyment of land. Personal Property - any property other than land. Trespass - an intentional taking or use of another's personal property. Conversion - intentional exercise of control over another's personal property.
CASE 3-4: Vaden v. Discover Bank (2009). Arbitration
Discover Bank filed this suit in the United States District Court for the District of Maryland in order to compel arbitration on certain counterclaims brought by Betty Vaden, a card member, in a state court suit against her. Discover had originally brought the state suit to recover on Vaden's outstanding credit card balance, but Vaden counterclaimed that certain fees and interest rates had been charged in violation of state law. The district court held that Vaden's usury claims were preempted by federal law and that the agreement clearly contained a provision compelling arbitration in such cases The U.S. Court of Appeals for the Fourth Circuit agreed with the district court, holding that Discover was the "real party in interest" and that Vaden's claims were therefore preempted by the Federal Deposit Insurance Act. Furthermore, Vaden had failed to overcome the presumption that she received the properly mailed arbitration agreement. Based on these conclusions, the Ninth Circuit granted Discover's motion to compel arbitration. Question 1) Does a suit seeking to enforce a state-law arbitration obligation brought under Section 4 of the Federal Arbitration Act establish federal subject matter jurisdiction when the petition to compel raises no federal question, but the dispute itself does raise a federal question? 2) If not, can a preempted state-law counterclaim supply federal subject matter jurisdiction? No and No. The Supreme Court held that a federal court may "look through" a Section 4 petition to determine whether the claim establishes federal subject matter jurisdiction. However in this case, the Court recognized the dispute did not bring itself under federal subject matter jurisdiction. With Justice Ruth Bader Ginsburg writing for the majority and joined by Justice Antonin G. Scalia, Justice Anthony M. Kennedy, Justice David H. Souter, and Justice Clarence Thomas, the Court reasoned that Discover's claim against Mr. Vaden did not "arise under" federal law nor did Mr. Vaden's "preempted" counterclaims create federal subject matter jurisdiction. Chief Justice John G. Roberts concurred in part and dissented in part, and was joined by Justice John Paul Stevens, Justice Stephen G. Breyer, and Justice Samuel A. Alito. He agreed with the majority in that a federal court asked to compel arbitration should "look through" the dispute to determine whether it has subject matter jurisdiction. However, he disagreed that federal subject matter jurisdiction was not found in this case, as the controversy between the parties was controlled by the Federal Deposit Insurance Act.
Chapter 3: federal courts district courts
District Courts - trial courts of general jurisdiction that can hear and decide most legal controversies in the Federal system.
duites of possessors of land
Duty to Trespassers - not to injure intentionally. Duty to Licensees - to warn of known dangerous conditions licensees are unlikely to discover for themselves. Duty to Invitees - to exercise reasonable care to protect invitees against dangerous conditions possessor should know of but invitees are unlikely to discover.
Harm to economic interests
Economic or pecuniary interests include a person's existing and prospective contractual relations, a person's business reputation, a person's name and likeness, and a person's freedom from deception. Interference with Contractual Relations - intentionally causing one of the parties to a contract not to perform. Disparagement - publication of false statements about another's property or products. Fraudulent Misrepresentation - a false statement, made with knowledge of its falsity, intended to induce another act.
defenses to intentional torts:
Even though the defendant has intentionally invaded the interests of the plaintiff, the defendant will not be liable if such conduct was privileged. A defendant's conduct is privileged if it furthers an interest of such social importance that the law confers immunity from tort liability for the damage the conduct causes to others. Consent - a person may not recover for injury to which he willingly and knowingly consents. Self-Defense - a person may take appropriate action to prevent harm to himself where time does not allow resort to the law.
factual cause
Factual Cause - the defendant's conduct is a factual cause of the harm when the harm would not have occurred absent the conduct.
CASE 5-3 FCC v. Fox Television Stations (2009). Judicial Review: Questions of Fact.
Fox Television Stations broadcast the Billboard Music Awards -Bono used an explicative in his acceptance speech --The Federal Communications Commission (FCC), although it had previously taken the position that such fleeting and isolated expletives did not violate its indecency regime, issued notices of liability to Fox for broadcasting the profane language. --The Supreme Court held that the FCC's order was neither "arbitrary" nor "capricious." ---Not random or unpredictable
harm
Harm to Legally Protected Interest - courts determine which interests are protected from negligent interference. Burden of Proof - plaintiff must prove that defendant's negligent conduct caused harm to a legally protected interest.
Tort happens when
In general, a tort is committed when: 1. a duty owed by one person to another 2. is breached and 3. proximately causes 4. injury or damage to the owner of a legally protected interest.
State Courts:
Inferior Trial Courts - hear minor criminal cases, such as traffic offenses, and civil cases involving small amounts of money; conduct preliminary hearings in more serious criminal cases. Trial Courts - have general jurisdiction over civil and criminal cases. Special Courts - trial courts, such as probate courts and family courts, having jurisdiction over a particular area of State law. Appellate Courts - include one or two levels; the highest court's decisions are final except in those cases reviewed by the U.S. Supreme Court.
sources of law: judicial: 2 types
Judicial Law - Common Law - body of law developed by the courts and Equity based upon principles distinct from common law and providing remedies not available at law. Equity Law - body of law based upon principles distinct from common law and providing remedies not available at law.
limits on admin agencies
Judicial Review - acts as a control or check by a court on a particular rule or order of an administrative agency. Legislative Control - includes control over the agency's budget and enabling statute. Control by Executive Branch -includes the President's power to appoint members of the agency. Disclosure of Information - congressionally required public disclosure enhances oversight of agency activities.
jurisdiction over the parties:
Jurisdiction Over the Parties - the power of a court to bind the parties to a suit. In Personam Jurisdiction - jurisdiction based upon claims against a person, in contract to jurisdiction over the person's property. In Rem Jurisdiction - jurisdiction based on claims against property. Attachment Jurisdiction - jurisdiction over a defendant's property to obtain payments not related to the property. Venue - geographical area in which a lawsuit should be brought.
legislative law
Legislative Law - statutes adopted by legislative bodies; includes Treaties and Executive Orders.
CASE 3-3: Parker v. Twentieth Century-Fox Corp. (1970). Pretrial Procedure: Summary Judgment
Plaintiff contracted with Defendant to play the female lead in the movie "Bloomer Girl" for a salary of $750,000. However, Defendant decided not to produce the film and offered instead for Plaintiff to play the lead in another film, "Big Country, Big Man." Unlike "Bloomer Girl," which was to be a musical filmed in California, "Big Country, Big Man" was to be a dramatic western filmed in Australia. Also, the contract for "Big Country, Big Man" did not grant Plaintiff the same control over the choice of directors and screenplay that her "Bloomer Girl" contract did. Plaintiff declined to act in "Big Country, Big Man" and sued to recover her guaranteed salary. Issue. Should Plaintiff's recovery be limited by her failure to accept substitute work in mitigation of damages? Held. No. A wrongfully discharged employee's recovery of her full salary must be reduced by the amount the breaching employer can prove she earned or with reasonable effort might have earned. Importantly, the employer must show that the other employment was comparable or substantially similar to that employment of which the employee was deprived. The employee's rejection of or failure to seek a different or inferior kind of employment may not be considered. For the factual differences stated above, acting in "Big Country, Big Man" constituted inferior employment. Thus, Plaintiff's refusal to accept the female lead in "Big Country, Big Man" will not reduce her recovery. Dissent. The majority incorrectly distinguishes between two films, but in fact, the female lead in any movie should qualify as substitute performance. Discussion. A wrongfully discharged employee is entitled to his lost salary, but he must mitigate damages by seeking alternative employment. However, he does not need to accept different or inferior employment.
Public and Private Law
Public - law dealing with the relationship between government and individuals. Private - law governing the relationships among individuals and legal entities.
CASE 8-5 Klein v. Pyrodyne Corporation (1991). Abnormally Dangerous Activities.
Pyrodyne Corporation contracted to display fireworks on the Western Washington State Fairgrounds. During the fireworks, one of the shells flew 500 ft horizontally into the crowd and exploded. Danny and Marion Klein were injured by the explosion. Mr. Klein suffered facial burns and serious damage to his eyes. There was no means for proving the cause of the misfire since all of the evidence had exploded. The Kleins brought suit against Pyrodyne for strict liability. The judgement was in favor of the Kleins. Setting off fireworks near a crowd is an inherently dangerous activity, thus strict liability applies to Pyrodyne. Interpretation: The courts impose strict liability for harm resulting from an abnormally dangerous activity, as determined in light of the place, time, and manner in which the activity was conducted.
CASE 8-3 Palsgraf v. Long Island Railroad Co. (1928). Scope of Liability (Proximate Cause).
Ridiculous case. Palsgraf was on a railroad station platform buying a ticket. A train stopped at the station and as it was leaving, two men ran to catch it. One made it safely aboard and the other jumped onto a moving car, but started falling. A guard on the train and another on the platform helped the second guy get onto the train, but in the process, they knocked a package out of his arm. The package contained fireworks, fell onto the track and exploded. The explosion knocked a scale on the other end of the platform which landed on Palsgraf. Palsgraf tried to recover for damages. Court ruled in favor of Long Island Railroad Co. If it was negligence, it must be shown that the charged party owed a duty to the complaining individual and if they avoided it, that's what caused the negligence. Palsgraf can't recover because the railroad may have been negligent to the man but not to her. The harm to her was not forseeable. Interpretation: Even if the defendant's negligent conduct in fact caused harm to the plaintiff, the defendant is not liable if the defendant could not have forseen injuring the plaintiff or a class of persons to which the plaintiff belonged.
CASE 7-4 White v. Samsung Electronics America, Inc. (1992). Appropriation.
Samsung used a robotic representation of Vanna White (it was clearly her) to advertise videocassettes. White did not consent to this, nor was she paid for the ads. White sued Samsung. The court granted summary judgement against white on this claim. Judgement was reversed. Interpretation: The tort of appropriation protects a person's exclusive rights to exploit the value of her identity.
special courts:
Special Courts - have jurisdiction over cases in a particular area of Federal Law and include the U.S. Court of Federal Claims, the U.S. Tax Court, the U.S. Bankruptcy Courts, and the U.S. Court of Appeals for the Federal Circuit.
strict liability
Strict Liability - liability for nonintentional and nonnegligent conduct. Activities Giving Rise to Strict Liability - Abnormally Dangerous Activity - strict liability is imposed for any activity that (1) creates a foreseeable and highly significant risk of harm and (2) is not one of common usage. Keeping of Animals - strict liability is imposed for wild animals and usually for trespassing domestic animals.
CASE 7-1 Philip Morris USA v. Williams (2007). Punitive Damages.
Synopsis of Rule of Law. Taking into account third parties, not parties to a lawsuit, when assessing damages is a violation of procedural due process, since the defendant does not have an opportunity to defend against the non parties. Facts. The widow of Jesse Williams, a heavy cigarette smoker, brought a claim for negligence and deceit against Philip Morris, the manufacturer of Marlboro, the brand that Williams smoked. The jury found that his death was caused by smoking, and that Williams smoked in significant part because he felt it was safe to do so, and that Philip Morris knowingly and falsely led him to believe that this was a correct assumption. Therefore, the jury found them guilty of deceit, and awarded 79.5 million in punitive damages (in addition to the economic and non economic compensatory damages). The jury was given instructions as follows: "punitive damages are awarded against a defendant to punish misconduct and deter other misconduct' and "are not intended to compensate the plaintiff or anyone else for damages caused by the defendant's conduct". Issue. Does the Due Process Clause permit a jury to base an award in part upon its desire to punish the defendant for harming persons not before the court.
federal courts: supreme court
The Supreme Court - the nation's highest court, whose principal function is to review decisions of the Federal Courts of Appeals and the highest State courts.
Tort Objectives
The law of tort has three principal objectives: (1) to compensate persons who sustain harm or loss resulting from another's conduct, (2) to place the cost of that compensation only on those parties who should bear it, and (3) to prevent future harms and losses.
CASE 8-1 Soldano v. O'Daniels (1983). Duty to Act.
The plaintiff's father, Darrell Soldano was shot and killed at the Happy Jack Saloon. The defendant in this case owns and operates the Circle Inn, which is a restaurant directly across the street from Happy Jack Saloon. Before the shooting occurred, a customer at Happy Jack Saloon came into Circle Inn and told the bartender that a man was threatened at Happy Jack's. The bartender refused to let the Happy Jack customer use the phone to call the police or do it himself. The court ruled in favor of Soldano. Defendant points to the established rule that one who has not created peril ordinarily does not have a duty to take affirmative action to assist an imperiled person. Also, in this case, there was no special relationship between the defendant and the deceased. The court concluded that the Circle Inn employee's actions displayed a disregard for human life and the burden on him was minimal. Interpretation: Although a person may not have a duty to help another, in a case such as this, a person has a duty not to hinder others who are trying to help
CASE 1-1 Ryan v. Friesenhahn (1995). Decision: In favor of the Ryans. Summary judgment reversed and case remanded to the trial court.
Todd Friesenhahn held an open invitation BYOB party at his parent's house. A girl, Sabrina Ryan, attended the party, got drunk, and was killed in an accident after she left the party. Her parents sued the Friesenhahns for negligence, saying that Todd's parents were aware that underage drinking was occurring. Court ruled in favor of the Ryans because the Texas Alcoholic Beverage Code provides that a person commits an offense if, with criminal negligence, that person "makes available an alcoholic beverage to a minor." A previous case Graff v. Board ruled that no third party liability should be imposed on social hosts who provide alcohol to guests, but it didn't apply in this case because Sabrina was a minor and thus part of the group protected by the TABC. Interpretation: A violation of a statute constitutes negligence per se if the injured party is a member of the class protected by the statute
duty to act
a person is under a duty to all others at all times to exercise reasonable care for the safety of the others' person and property; however, except in special circumstances, no one is required to aid another in peril.
Law and Morals -
are different but overlapping; law provides sanctions, while morals do not.
Administrative agencies
are government entities - other than courts and legislatures - having authority to affect the rights of private parties through their operations. Most administrative agencies perform three basic functions: (1) rulemaking, (2) enforcement, and (3) adjudication. Rulemaking - process by which an administrative agency promulgates rules of law. Legislative Rules - substantive rules issued by an administrative agency under the authority delegated to it by the legislature. Interpretative Rules - statements issued by an administrative agency indicating how it construes its governing statute. Procedural Rules - rules issued by an administrative agency establishing its organization, method of operation, and rules of conduct for practice before the agency. Enforcement - process by which agencies determine whether their rules have been violated. Adjudication - formal methods by which an agency resolves disputes.
Legal Sanctions -
are means by which the law enforces the decisions of the courts.
Law and Justice -
are separate and distinct concepts; justice is the fair, equitable, and impartial treatment of competing interests with due regard for the common good.
Subject Matter Jurisdiction -
authority of a court to decide a particular kind of case. Subject Matter Jurisdiction (cont'd) Federal Jurisdiction - Exclusive Federal Jurisdiction - Federal courts have sole jurisdiction over Federal crimes, bankruptcy, antitrust, patent, trademark, copyright, and other specified cases. State Jurisdiction - State courts have exclusive jurisdiction over all matters to which the Federal judicial power does not reach.
definition of negligence
conduct that falls below the standard established by law for the protection of others against unreasonable risk of harm. An action for negligence consists of five elements, each of which the plaintiff must prove: 1. Duty of care, 2. Breach of duty, 3. Factual case, 4. Harm, and 5. Scope of liability. Breach of Duty of Care - Reasonable Person Standard - degree of care that a reasonable person would exercise under all the circumstances. Children - must conform to conduct of a reasonable person of the same age, intelligence, and experience under all the circumstances. Physical Disability - a disabled person's conduct must conform to that of a reasonable person under the same disability. Reasonable Person Standard (cont'd)- Mental Disability - a mentally disabled person is held to the reasonable person standard. Superior Skill or Knowledge - if a person has skills or knowledge beyond those possessed by most others, these skills or knowledge are circumstances to be taken into account in determining whether the person has acted with reasonable care. Emergencies - the reasonable person standard applies, but an unexpected emergency is considered part of the circumstances. Violation of Statute - if the statute applies, the violation is negligence per se in most States.
Courts of Appeals -
hear appeals from the district courts and review orders of certain administrative agencies. Examine the record of a case on appeal and to determine whether the trial court committed prejudicial error. If so, the appellate court will reverse or modify the judgment and if necessary remand it (send it back) to the lower court for further proceeding. If no prejudicial error exists, the appellate court will affirm the decision of the lower court.
Administrative law
is the branch of public law that is created by administrative agencies in the form of rules, regulations, orders, and decisions to carry out the regulatory powers and duties of those agencies.
Classifications: Substantive -
law creating rights and duties.
Scope of Liability (Proximate Cause) -
liability is limited to those harms that result from the risks that made the defendant's conduct tortious. Forseeability - excludes liability for harms that were sufficiently unforeseeable at the time of the defendant's tortuous conduct that they were not among the risks that made the defendant negligent Superseding Cause - an intervening act that relieves the defendant of liability
Jurisdiction :
means the power or authority of a court to hear and decide a given case.
Res Ipsa Loquitur -
permits the jury to infer both negligent conduct and causation.
classfications: Procedural law
rules for enforcing substantive law.
Functions of Law -
to maintain stability in the social, political, and economic system through dispute resolution, protection of property, and the preservation of the state, while simultaneously permitting ordered change.
