Legal Aspects in HWD - Midterm

Factors affecting the enforceability of a contract: Misrepresentation

a false assertion of facts that induces another party to enter into a contract.

Damage

actual loss or damage as a result of breach of duty Economic loss Physical pain & suffering Emotional distress Physical impairment Compensatory damages (i.e. special & general) - consequence of being found liable

punitive

also called exemplary, to reform or deter defendant; intended to punish for willful behavior

ordinary negligence

failure to exercise care as would be expected by the majority of people under similar circumstances.

Legal Obligations of Operator: design safe facilities

follow facility safety codes

Law can be kind

land that can be used for recreation

Settlement

parties can conclude the dispute by a contract of settlement at any time. Compromise to avoid unwanted outcomes Most civil cases are settled before they reach the courtroom Many include non-disclosure clauses Arbitration as a solution

Acceptance of the Offer

Can only be made by the party to whom the offer is made Should mirror the offer Different terms can be implemented unless terms materially alter, or result in surprise or hardship

Defenses to Negligence

Common Law Statutory Law Contract Law

Legal Obligations of Operator: Maintenance & Repair

Corrective v. Regular Corrective: fixing broken facilities & equipment Regular: cleaning & re-filling useable supplies

Tort law

Derived from Latine "tortus" meaning twisted A private or civil wrong or injury other than breach of contract, for which the court will provide a remedy in the form of an action for damages

Two-prong test for gross negligence

Did the actor's conduct involve an extreme degree of risk? Objective element Did the actor have accrual, subjective awareness of the extreme degree of risk, but nevertheless proceed in conscious indifference to the rights, safety and welfare of others? Subjective element

Legal Obligations of Operator: Warn of Concealed Dangers

warning must be reasonably sufficient, dangers must be known

Breach/Act

what service provider did, or did not do to protect individual; AKA breach of duty. The Big 3 Inherent Ordinary Aggravated

Factors affecting the enforceability of a contract: Undue Influence

when a dominant party unfairly persuades the weaker party to enter into a contract.

Factors affecting the enforceability of a contract: Mutual Mistake

when both parties share a common mistaken assumption about a vital existing fact upon which they based their contract.

Real Property Rights

Fee Simple Absolute Owner with complete control\ Less than fee simple Use of property based upon a contract More emphasis upon use rather than acquisition

Two-Prong for statute application

Two-prong analysis for determining if the law applies: Recreational activity? Majority of states use phrase "included, but not limited to" in providing list of recreational activities Land suitable for activity? Landowners intent rather than user's intent

Contract Breach: Was it a Breach?

Valid contract Plaintiff held up their end of contract Defendant failed (minor or material) Resulting economic loss

Private Nuisance

A non-trespassory invasion of another's interest in the use or enjoyment of his or her property To be actionable, invasion must be: Intentional and unreasonable, or Unintentional but caused by negligent, reckless, or abnormally dangerous conduct.

Appeal

A re-do Can't just not have liked the outcome Must be based on matters of law Incorrect use or interpretation

Precedent

A rule or example established in an earlier case to be followed by a court of the same or lower rank in a subsequent case presenting the same legal problem

Recreational User Statute

AKA Recreation Land Use Statute purpose is to protect landowners from liability when their lands are open to public for free recreation use

Nuisance

Activity or use of one's property endangering life an health; gived offense to the senses, violates lws of decency, or obstructs resonable use of property

Contract Offer

An offer remains open for a reasonable amount of time depending upon the nature, purpose, and circumstances. Important to distinguish preliminary negotiations from an offer that creates a power of acceptance

Characteristics of statues

Applies to owner Private land owners Public entities Type of land: unimproved v. developed Fees cannot be charged Exchange for admission only Indirect fees Land uses for recreational purpose Obligations of the landowner Warn of concealed and known dangers

What is the limited duty rule (pg 133)?

As long as you do the best you can to be kind, you will get a pass.

Defenses of Negligence based upon Common Law

Assumption of Risk When an individual consents to an activity, or voluntarily exposes oneself to known and appreciated risks inherent to activity. Individual cannot recover from injuries resulting from those risks Service provider cannot do anything to increase the risks inherent to the activity Primary Assumption of Risk Implied: consents by virtue of participation Risks must be inherent to activity Participant must voluntarily consent Participation must know, understand and appreciate the risks (the reasonable person) Express: written form; agreement to participate Secondary Assumption of Risk D owes a duty of care and may have breached that duty, yet P knowingly and by voluntary choice encounters the risks. AKA: contributory negligence Voluntary participation by P when substantial risk is evident Weaker defense; attempting to share liability with P Sharing is caring? Ultra vires - A defense that can be very helpful to the corporate entity is the defense that the act by the employee is not within the authority or scope of responsibility of the employee. Respondeat superior - the employer is liable for the negligent acts of the employee.

Distractions

Prevents user from noticing danger & taking necessary precautions; exception to O & O

Elements of Negligence

1. Duty 2. Breach/Act 3. Proximate Cause 4. Damages *All 4 need to be present in order to have a case of negligence

Property Acquisitions

Fee Simple Absolute purchase/gifts Dedication for public use purposes Mandates by statute or voluntary Intention of owner and acceprance by public Eminent domain/condemnation For public use; public interests require it; condemnation necessary to achieve public purpose Owner compensated justly and fairly Government could come take your property for the good of society (EX: building highway where someones home is) Adverse possession

Attractive Nuisance

Focused upon children entering property because they are attracted by a unique artificial condition Swimming pools Trampolines Rope swings Haunted houses

Capacity and Competence

Individuals who lack the legal authority, ability, competence, to enter unto binding contracts Minors Only people who at age of majority can enter into contracts If a minor enters into a contract, it is unenforceable against the minor, but remains enforceable against the other party Diminished Mental Capacity Only people who are mentally competent have the capacity to enter into a contract

Legal Obligations of Operator: Inspection

Inspection: contructive v. actual notice should be based on: frequency of use of area, type of facility or equipment, industry standards

Users of Premises Liability

Invitee - individual who paid for use of premises, or was invited; business & public Highest standard of case within area of invitation Licensee - person who uses premises with bare consent of operator Owner should warn of known hazards P has no standing to sue for dangerous conditions not actually known by owner Trespasser - person who enters premises without permission of operator Refrain from intention conduct causing injury

Option Contract

Involves an offer by one party to keep an offer open exclusively to that party

Promissory Estoppel

It is not a contract but is often used in a contractual way. You promised me something but your actions stopped me from receiving it.

Attractive Nuisance: to apply of the artificial condition should:

Know that children are likely to trespass the premises Know that the condition will involve an unreasonable risk to trespassing children, and the children, b/c of their youth and inexperience, will not realize this danger. The burden of eliminating the condition is minimal to the landowner.

Contract Breach: Defenses

Lacking an element Mutual/Unilateral Mistake Fraud

Common Law

Law that the judicial branch has vetted over and over again to where we just say that it is the standard.

Zoning

Legislative function

Factors affecting the enforceability of a contract: contract voidable if...

Mistake goes to a basic assumption on which contract was made; Mistake has a material effect on the contract.

Essential Elements of the Contract

Mutual Assent (agreement) Offer: starting point of a contract Acceptance Consideration (?) Capacity/Competence Legality **all 6 MUST be there in order to have a contract**

Included in Tort Law

Negligence Strict liability Nuisance Intentional torts Property

Types of Breach of Duty

Nonfeasance - nonperformance, omission or total neglect of duty Misfeasance - improper performance

Degrees of Negligence

Ordinary, Gross, Willful/Wanton

Essential terms of an offer

Parties: Who are the parties to the contract Subject Matter: what is the subject matter of the contract time/place: time and place of the contract is to be performed "Price": Consideration to be paid, something is given up for another thing; not always money, can be goods (like a year's supply of something)

Defenses of Negligence based on Statutory Law

Recreational Land Use Purpose is to protect landowners from liability when their lands are open to the public for free recreational use AKA Recreational User Statute Volunteer Protection Act Ordinary negligence Unpaid volunteers Acting within the scope of duties Acting in good faith Must attend appropriate training Harm not caused by operation of a motor vehicle Good Samaritan Act Provides immunity from liability for ordinary negligence for those who voluntarily and gratuitously come to the aid of injured persons. Implements the "reasonable person doctrine" No protection for those with legal duty AED Statutes Protect users CASA provides federal protection where states do not Charitable Immunity Statutes Orgs qualify for charitable immunity when: Formed for non-profit purposes Organized for religious, charitable, or educational purposes P is viewed as beneficiary of charitable works Statute of Limitations Restriction on the length of time an injured party has in which to file suit. Waivers Waive service provider of liability for ordinary negligence Usually only applicable to adults

Public Trust Doctrine

Submerged and submersible lands preserved for public use in navigation, fishing, and recreation Certain natural resources belong to the public; preserved for good of society

Related to Proximate Cause

Superseding cause - multiple factors contributing to cause; single factor emerges as primary cause. Substantial factor test - negligent act not the only causal factor, but a substantial one. Probable consequences rule - D liable for natural & probable consequential injuries. Intervening act - separate act or omission breaking the direct connection between the D's actions & injury to another person; may relieve D of liability.

Premises Liability

The body of law that holds a landowner and/or possessor of property liable for injuries sustained by others upon their property i.e., both land areas and facilities.

Negligence

The omission to do something which a reasonable person, guided by those ordinary considerations... would do, or the doing of something which a reasonable & prudent person would not do.

Adverse Possession

Transfer of property ownership over time Discourages landowners from "sleeping on their rights" Claiming title by AP does not simply stretch "one's boundaries to include property beyond one's deed." Must provide clear evidence of actual, continuous, exclusive, visible, and distinct possession usually over a specified period of time.

Factors affecting the enforceability of a contract: Duress

any wrongful act or threat which coerces a party to enter into a contract

gross negligence

appreciably higher in magnitude; indifference to present legal duty and to utter forgetfulness of persons may be affected.

Public Nuisance

dangerous conditions obstructing the enjoyment or use of common property, or cause inconvenience or damage to the public

willful and wanton negligence

deemed equivalent to an evil intent, oer recklessness indicative of malice. Know situation required due care Had ability to avoid resulting harm Failed to use such care knowing that to not do so would likely prove disastrous to another

Proximate Cause

direct connection between damages & actions (or lack thereof). Demonstrating elements of duty & breach of duty does not automatically lead to causation Act not sole cause, but substantial factor

Legal Obligations of Operator: Advise of Participatory Risks

risks inherent to activity, know understand & appreciate risks, warning based upon experience & skill level

Duty

special relationship between service provider & individual with obligation to protect from unreasonable risk of harm. Societal-based Origin of duty: Relationship inherent in situation Voluntary assumption Mandates by statue

Compensatory

to replace losses Special damages: economic damages such as wages, medical, property, etc. General damages: non-economic damages such as pain and suffering

Legal Obligations of Operator: Hire Competent Personnel

train employees appropriately, duty to supervise, provide emergency care

Civil Litigation Team

two layers, one or more paralegals, secretarial assistants, and consultants.