Exam 2 - Short Answer/Fill-in-the-Blank

Proximate Cause

Legal cause; exists when the connection between an act and an injury is strong enough to justify imposing liability. - law establishes a point along the damage chain after which the negligent party is no longer responsible for the consequences of his or her actions - "limitation on liability"

Force Majeure Clause

A clause in a contract in which the parties specify certain events that will excuse nonperformance. Ex: A [] clause usually excuses nonperformance caused by natural disasters such as floods, tornadoes, and earthquakes. Modern clauses also often excuse performance due to labor strikes, shortages of raw materials, and the like.

negligence: five elements that a plaintiff must prove

1. Duty of Care 2. Breach of the Duty of Care 3. Injury to Plaintiff 4. Actual Cause 5. Proximate Cause

Exculpatory Clause

A contractual provision that relieves one (or both) of the parties to a contract from tort liability for ordinary negligence. - relieves a party of liability for ordinary negligence - release of liability clause Ex: Jim voluntarily enrolls in a parachute jump course and signs a contract containing an exculpatory clause that relieves the parachute center of liability for ordinary negligence. After receiving proper instruction, he jumps from an air-plane. Unfortunately, Jim is injured when he could not steer his parachute toward the target area. He sues the parachute center for damages. Here, the court would usually enforce the exculpatory clause, reasoning that parachute jumping was a voluntary choice and did not involve an essential service.

Cybersquatting

A party registers a domain name of another party's trademarked name or a famous person's name - domain name owner has registered the domain name with the hope of obtaining payment for the name from the trademark holder or the famous person

Injury to Plaintiff

A plaintiff's personal injury or damage to his or her property that enables him or her to recover monetary damages for the defendant's negligence. Ex: Suppose that a man injures his hand when a train door malfunctions. The train company is found negligent. If the injured man is a star professional basketball player who makes $5 million per year, with an expected 7 years of good playing time left, this plaintiff can recover multiple millions of dollars because he can no longer play professional basketball. If the injured man is a college professor with 15 years until retirement who is making only one-fortieth per year of what the basketball player makes, he can recover some money for his injuries. However, because he makes a lot less per year than the professional basketball player and because he can continue working, albeit with more difficulty, the professor can recover much less for the same injury.

Attractive Nuisance Doctrine

A tort rule that imposes liability on a landowner to children who have been attracted onto the landowner's property by an attractive nuisance and who are killed or injured on the property. Ex: Attractive nuisances include machinery, abandoned refrigerators and freezers, junk yards, open pits, and unguarded pools. - The landowner owes a duty to remove the dangerous condition or take steps to prevent children from reaching the dangerous object. Ex: Homeowners owe a duty to place a fence and locked gate around a swim-ming pool in their yard.

Contractual capacity

Certain persons do not have this capacity, however, including minors, insane persons, and persons under the influence of alcohol or drugs.

contract: four elements/ requirements for any contract

Contract: agreement that is enforceable by a court of law or equity Elements of a Contract: 1. Agreement 2. Consideration 3. Contractual capacity 4. Lawful object

Punitive Damages

Monetary damages that may be awarded to a plaintiff to punish the defendant and deter similar conduct in the future. - Damages exceeding simple compensation and awarded to punish the defendant. - Not technically meant to compensate the plaintiff for a specific loss, although the plaintiff is the one who ends up receiving punitive damages from the defendant.

Consideration

Money, personal property, real property, provision of services, and the like qualify as consideration.

Lawful object

Object of a contract must be lawful; cannot agree to do/achieve illegal goals.

Actual Cause

The determination that the defendant's breach of duty resulted directly in the plaintiff's injury. - If the defendant's act caused the plaintiff's injuries, there is causation in fact. Ex: Suppose a corporation negligently pollutes the plaintiff's drinking water. The plaintiff dies of a heart attack unrelated to the polluted water. Although the corporation has acted negligently, it is not liable for the plaintiff's death. There was a negligent act and an injury, but there was no cause-and-effect relationship between them. If, instead, the plaintiff had died from the polluted drinking water, there would have been causation in fact and the polluting corporation would have been liable.

Breach of the Duty of Care

The failure to act as a reasonable person would act. Ex: Throwing a lit match on the ground in the forest and causing a fire.

Duty of Care

The obligation people (defendant) owe each other (plaintiff) not to cause any unreasonable harm or risk of harm Ex: Each person owes a duty to drive his or her car carefully, not to push or shove on escalators, not to leave skateboards on the sidewalk, and the like. Busi-nesses owe a duty to make safe products, not to cause accidents, and so on.

Assignment

Transfer of contractual rights by an obligee to another party. - no formalities are required for a valid assignment of rights - words like: sell, transfer, convey, and give, are sufficient to indicate intent to transfer a contract right

Agreement

offer by the offeror and an acceptance of the offer by the offeree