OC2 - Ch14 and 15

negligence: actual injury/damage

-plaintiff must have actual injury/damage/quantifiable harm --can be BI or financial loss

bad faith/outrage -definition, similar to what, what it does to damages -damages possible -bad faith in insurance (what insured can allege, insurer duty to insured) -defenses

A breach of the duty of good faith and fair dealing. -similar to emotional distress but separate cause of action mostly for suits involving breach of insurance contract -if extreme conduct or defendant breach of implied duty of good faith/fair dealings, plaintiff entitled to damages above those typically awarded for breach of contract damages: usually only contractual damages (compensatory, foreseeable damages, no mental anguish/punitive) for breach of contract -plaintiff can seek to recover punitive damage by alleging bad faith resulting in additional injury insurance cases: bad faith tort based on insurer implied duty to act fairly/in good faith in discharging duties under insurance contract -insured usually alleges negligent/intentional denial of claim w/o reasonable cause --could include failure/delay in pursuing claim investigation/settlement, delay in claim payment to coerce insureds into settling for less than full amount due, retaliatory cancellation of policy, unfair increase in premium after filing of claim --If defendant has reasonable cause to delay payment, no bad faith -insurer duty to insured: must act in good faith and w/o negligence bc insured has relinquished right to settle/defend. --some courts: failure to do so makes insurer liable for full amount of loss, even if loss > limit -not all courts recognize bad faith torts, may have laws/penalties for failure to settle insurance claims properly to preempt private lawsuits like this defenses: -No intent or recklessness was involved. -No outrageous or extreme conduct occurred. -The defendant did not breach any implied duty of good faith and fair dealings. -If contract damages are involved, the defendant owed no contractual duty to the plaintiff. -In an insurance case, no valid insurance contract existed; therefore, the defendant owed the plaintiff no duty to act fairly and in good faith.

(defense) contributory negligence -last clear chance -assumption of risk

A common-law principle that prevents a person who has been harmed from recovering damages if that person's own negligence contributed in any way to the harm. -applies in Canada if plaintiff doesn't wear seatbelt in auto accident rule, US mostly uses comparative negligence to alleviate harsh results of pure contributory negligence: -last clear chance: place responsibility for harm on party who had 'last clear chance' to avoid harm but failed to do so (bar plaintiff recovery of damages caused by defendant negligence if plaintiff voluntarily assumed risk of harm) -assumption of risk: used for hazardous activities

products liability -definition -legal principles

A manufacturer's or seller's liability for harm suffered by a buyer, user, or bystander as a result of a product that has a dangerous manufacturing defect or design defect or that is not accompanied by a warning of an inherent hidden danger. suits based 1+ of the following legal principles: -misrepresentation -breach of warranty -strict liability and negligence

intentional torts -definition -intent and motive -types

A tort committed by a person who foresees (or should be able to foresee) that his or her act will harm another person. - require tortfeasor intent to harm/act to cause harm intent and motive have no relationship but motive can influence damages -self defense might lower damages, malice could mean higher damages types: -Battery -Assault -False imprisonment and false arrest -Intentional infliction of emotional distress -Defamation (libel and slander) -Invasion of the right of privacy

Malicious Interference With Prospective Economic Advantage tort

A tort involving intentional interference with another's business, or with another's expected economic advantage (commercial dealings) -expanded to cases involving interference w/ expected gift/legacy under will and economic advantage other than arising out of business defense: defendant was making lawful effort w/o malice (wrongful act w/o justification/excuse) to promote own welfare and not injure plaintiff

Tort -definition -where it results from -jurisdiction

A wrongful act or an omission, other than a crime or a breach of contract, that invades a legally protected right. -result from tortfeasor's breach of duty causing injury or loss -courts must consider laws from multiple jurisdiction to decide which laws to apply before considering facts of case --jurisdiction: particular court's power or authority to decide lawsuit of certain type/in a territory

exclusive control

The control of only one person or entity; in tort law the control by the defendant alone of an instrument that caused harm.

probable cause

The grounds that would lead a reasonable person to believe that the plaintiff committed the act for which the defendant is suing

trespass tort -definition (what it applies to, condition for plaintiff) -real property vs personal property trespass -defenses

Unauthorized entry to another person's real property or forcible interference with another person's personal property. -for real OR personal property -plaintiff must be IN POSSESSION of property (if not, no right to sue) --tenant in possession can sue only for injury to his/her interest -real property: presume at least nominal damages since unauthorized entry onto someone else's land has happened (liable even if entry accidental and entry isn't even required) -personal property: someone kills your dog/forcible interference defenses: -plaintiff didn't own/possess property -plaintiff consented to defendant entry -defendant didn't enter onto/take control of the property

charitable immunity

common law: charitable orgs had immunity from suit in tort -largely been abolished and cases treated under general rules of negligence (especially for vicarious liability)

when liability imposed even when defendant has acted reasonably/ordinarily would not be at fault

if activity exposes others/their property to risk of substantial damage, person conducting activity may still be held liable if harm results even if not negligent -strict liability -liability from statute when liable party is performing ultra hazardous activity -owning/possessing animal -allows escape of toxic substance

liability concepts applying to tort claims

injured person has to prove damage suffered and choose whom to sue/develop theory of liability to present to court Joint tortfeasors Expanded liability concepts Vicarious liability Good Samaritan issues Class actions

negligence and 2 important aspects o fit

negligence: broad term for unintentional tort (all other torts are intentional) important aspects are: 1. elements of negligence (that plaintiff must establish): -defendant owed legal duty of care to plaintiff -defendant breached duty of care owed to plaintiff -negligent act was proximate cause of plaintiff injury/damage -plaintiff suffered actual injury/damage 2. required proof of negligence -negligence per se -res ipsa loquitur

tort damages -purpose -what damages plaintiff is entitled to -2 types

purpose: recompense injured party (not to punish tortfeasor) damages are usually monetary, amount based on facts of cases -entitle to damages that injury proximately caused (whether or not defendant could reasonably have foreseen damage) -contract damages: limited to damages parties could reasonably forsee (doesn't apply to tort) 2 types: compensatory damages and punitive damages

restitutio in integrum -what it means -if principle applied, what damages plaintiff should get

restore to original position (if tort hadn't happened); one of the fundamental siding principles courts use when deciding how much to award in damages for NEGLIGENCE if principle applied, means that: -plaintiff is clearly entitled to special damages (past/future medical bills, property repair, lost wages) -general damages may also be paid to compensate for decrease in standard of living and for pain/suffering

interference with relationships between others (list of torts)

-Injurious falsehood -Malicious interference with prospective economic advantage -Unfair competition -Interference with employment -Interference with copyright, patent, or trademark -Interference with right to use one's own name in business -Interference with family relationships Canadian 'business torts': -inducing breach of contract -slander of title/goods -conspiracy -passing off -intimidation

battery -definition -classification as tort condition -possible defenses

-Intentional harmful or offensive physical contact with another person without legal justification. --person does not need to be in fear of bodily harm/aware of contact --can be crime as well as tort -to be classified as tort: act must be intentional and hostile/offensive -possible defenses: --plaintiff consented to act (actual or implied) --act in self defense or defense of others (reasonable force allowed to repel attach) --act was one of physical discipline (pare-child relationship/contact with persons who have legal authority to discipline others0: successful only if force used is reasonable/use of force must be in good faith

tortfeasor capacity

-all people liable for tortious acts regardless of mental capacity (apply to minors, insane, intoxicated persons) --if a tort requires intent, defendant can establish lack of capacity to form intent as a defense --common law: minor liable for tort of older than 7

expanded liability concepts(4)

-enterprise liability -alternative liability -market share liability -concert of action

joint venture -what plaintiff must prove

A business association formed by an express or implied agreement of two or more persons (including corporations) to accomplish a particular project, such as the construction of a building. to establish, plaintiff must prove: 1. agreement by parties to associate for business activity 2. profits/losses shared by each party 3. joint control of venture by the parties 4. contribution the venture's assets by each party

injunction -definition -failure to comply -what the court considers when deciding to grant this

A court-ordered equitable remedy requiring a party to act or refrain from acting. -can be granted before damage has occurred (unique) failure to comply could result in criminal/civil penalty -eg. stop infringement of property rights, stop neighbors from trespassing NOT The same thing as temporary restraining order (used when immediate court action needed to prevent harm from event currently/about to happen) court considers the following when deciding to grant injunction: -Economic impact on all parties if the injunction is or is not granted -The parties' willingness to resolve the dispute in good faith -Either party's intentional misconduct -The interest of or benefit to the general public in allowing the activity being complained of to continue

wrongful death action -what it is -how damages vary -common law (vs now) -survival statutes (what it permits recovery of, when it won't apply)

A legal cause of action that exists for the survivor of the deceased. damages vary on relationship of deceased to claimant -lost earnings/mental anguish, or they can be punitive common law: right to sue ends on person death for injured person or tortfeasor -now there are survival statutes, so cause of action for injury can survive after injured person's death survival statute: A statute that preserves the right of a person's estate to recover damages that person sustained between the time of injury and death. -permit recovery of compensatory damages (including general) but not damages for shortening person's life -survival damages not awarded if death instantaneous --if person lives a second after injury, estate can allege sufficient pain/suffering to support suit

vicarious liability -definition -where it can come from

A legal responsibility that occurs when one party is held liable for the actions of a subordinate or an associate because of the relationship between the two parties. this liability can arise from: -contractual relationships/partnerships -principal/agent: principal authorizes agent to act on principal behalf --vicariously liable for agent tort in course of agent engagement/within scope of their actual/apparent authority -employer/employee: while employee acting in scope of employment -parent/child: generally parent isn't liable for minor child's torts, but exceptions include: --child acting as parent's agent/employee --tort involves dangerous instrument parent should expect child to cause harm --negligent entrustment/supervision: giving someone something lender (should) know is likely to use in unreasonably risky manner, failure to exercise reasonable control/supervision --family purpose doctrine: A liability concept that holds the owner of an automobile kept for the family's use vicariously liable for damages incurred by a family member while using the automobile (no need for proof of negligence to be liable) --theft/vandalism

ultra hazardous activity -definition/criteria -why strict liability applies

An activity that is inherently dangerous; if harm results, the performer may be held strictly liable. -why strict liability applies: defendant has created an unusual risk in community and if activity causes injury/damage, another person/animal's action/force of nature is immaterial to defendant liability ultra hazardous activities: -It has a high degree of risk of serious harm. -It cannot be performed without the high degree of risk. -It does not normally occur in the area in which it is conducted.

enterprise liability

An expanded liability concept requiring each member of an industry responsible for manufacturing a harmful or defective product to share liability, when a manufacturer at fault cannot be identified. -can be held liable based on market share

market share liability

An expanded liability concept that applies when a product that has harmed a consumer cannot be traced to a single manufacturer; all manufacturers responsible for a substantial share of the market are named in the lawsuit and are liable for their proportional share of the judgment.

conspiracy -what plaintiff must prove

An expanded liability concept that applies when two or more parties worked together to commit an unlawful act. plaintiff must establish responsibility of defendants by proving all defendants agreed to commit wrongful act/carry out legal act by illegal means leading to plaintiff harm

interference w/ employment tort

An unjustified intentional act that interferes with another's valid or expected business relationship. -may overlap w/ other torts (defamation if info false) -eg. negative info about person applying for job defense includes defendant allegation they didn't do any of the following: -Interfere with or prevent employment -Induce a breach of contract -Harm the plaintiff -Act in furtherance of an unlawful object -Use unlawful means to procure discharge -Blacklist (inappropriately recommend rejection of a potential candidate for employment)

strict (absolute) liability

Liability imposed by a court or by a statute in the absence of fault when harm results from activities or conditions that are extremely dangerous, unnatural, ultrahazardous, extraordinary, abnormal, or inappropriate.

punitive damage trends -how trend has changed over time

US courts began awarding punitive damages in cases not involving intentional injury caused by defendant -developments in products liability/mass tort litigation imposed punitive damages for repeated instances of liability due to single product/decision to reverse this trend, jurisdictions: -place caps on noneconomic damages -require a more stringent burden of proof to support imposition of punitive damages -created defense for injuries resulting from specific types of products (pharmaceutical)

UCAJTFA -what it provides -release

Uniform Contribution Among Joint Tortfeasors Act provide that if 2+ persons are jointly/severally liable in tort for same injury/damage/wrongful death, they have right of contribution among them even though plaintiff has not recovered judgement against all/any of them -tortfeasors who paid more than pro rata share of joint liability entitled to reimbursement from other tortfeasors up to amount of excess over pro rata share -(relative degree of fault not considered) plaintiff can release 1+ defendants w/o releasing others if good faith release indicating intent only to release part not all of liability and if the payment is full compensation

structured settlements/judgements -what it is/how it works -advantages for plaintiff -advantage for insurer -factors considered in determining amount/term

alternative to lump-sum settlement for plaintiff -used when insurer involved in payment of substantial claim on behalf of defendant gives plaintiff some payment immediately but defers much of payment not future (periodic payments over time) -insurer will arrange this by purchasing annuity from life insurance company and name plaintiff as beneficiary advantage to plaintiff: interest on annuities tax free, where if they invest lump-sum they pay tax on investments -can help ensure steady of flow and stop plaintiffs from blowing it prematurely -also addresses: --Ongoing medical treatments --Income to replace wages that can no longer be earned --Ongoing household help --Occupational therapy and rehabilitation --Educational needs for children --Medical equipment replacement --Payment of legal fees on a lump-sum or an extended basis --Trusts, endowments, or annuities to take care of dependents or contingencies that may arise advantage to insurer: additional tax-free income may make settlement more attractive to plaintiff -can resolve impasse since plaintiff gets more money overall factors considered in determining amount/terms of structured settlement: -Plaintiff's life expectancy -Future medical expenses -Reasonable monthly living expenses, including mortgages, taxes, maintenance, food, clothing, and similar items -Costs of dependents' needs -Legal fees -Special contingencies

(products liability) defenses -which ones are incomplete, what defendant or plaintiff must prove

apply for both negligence, strict liability 1. state of the art: defendant claims product was safe according to state of the art @ time product was made -state of art: highest level of pertinent product 'scientific knowability'(technological feasibility of producing safer product based on existing science)/development/technical knowledge existing @ time of manufacturer -if no indication of danger/no technique to obtain knowledge of such, manufacturer has no reason to prevent manufacture of product -INCOMPLETE DEFENSE: must introduce evidence to justify placing product in market 2. compliance w/ statutes and regulations: defendant complied w/ these -INCOMPLETE DEFENSE: not conclusive against negligence/product defect --plaintiff could introduce evidence showing reasonable manufacturer could have taken more precaution 3. compliance w/ product specifications: manufacturers make products to conform to specifications established by buyers/others -negligence: manufacturer won't be liable for product built to someone's specification UNLESS defect is sufficiently obvious to alert manufacturer to potential for harm (plaintiff could sue specification preparer instead) 4. open/obvious danger: no duty to warn/take precaution for common/open/obvious propensity of product -knives, guns, gasoline etc. 5. plaintiff knowledge: person using product has knowledge equal to manufacturer knowledge (no duty to warn) 6. comparative negligence vs. assumption of risk -if state allows comparative negligence defense in strict liability suits, assumption of risk defense no longer applies -if not, active negligence (voluntary use of defective product with knowledge of danger from defect)/assumption of risk defense can apply to strict liability suit --passive negligence (A plaintiff's failure to discover a product defect or to guard against a possible defect.) does not bar recovery --defendant must prove plaintiff knew of defect/danger 7. misuse of product: similar to active negligence, this is product misuse/abnormal use -plaintiff must prove product used in appropriate/foreseeable manner to establish defect 8. alteration of product defense: manufacturers not liable for modifications made after sold

defendant defenses against negligence claims -what these defense can do for defendant -5 defenses

can prevent recovery of damages, reduce amount of damages even when defendant found negligent -Comparative negligence -Releases and exculpatory clauses -Immunity -Statutes of limitations and repose -Tortfeasor's capacity

punitive damages (tort) -purpose -when it's awarded -what amount of damages is based on

can result from bad faith punish/make example of defendant and deter defendant/others from committing similar acts only awarded in certain situations (outrageous conduct): -defendant intended to cause harm -defendant acted oppressively, maliciously, fraudulently --employers/principals liable for punitive damages if they directed/ratified acts of employees/agents w/ knowledge of malice, fraud, oppression amount of damages depends on: -nature of defendant action -size of defendant assets (richer means larger, probably) -purpose of punitive damages

assault -definition in noncriminal law

defined in noncriminal law does not involve physical contact -person at whom action is directed must anticipate/expect contact and fear harm (pointing a knife, swinging first close to person)

good samaritan issues

if person owes no duty to another person, refusal to act does not create grounds for a suit -if help and does so negligently, can incur liability good samaritan law: A statute providing that a person will not be liable for damages as a result of rendering aid to an injured person, without compensation, at the scene of an accident. -apply to gratuitous services performed at scene of emergency, exempt from ordinary negligence (not gross)

tort reform: collateral source rule reform -collateral source rule -how it has changed -pros/cons

injured people commonly have health insurance covering medical bills/disability insurance covering wage loss -this doesn't relieve defendants of responsibility to pay these expenses collateral source rule: bar introduction of evidence that plaintiff has other source of recovery (defendant remains responsible for all damages even those covered by insurance) -many states now allow evidence of these other sources of income/allow offset to reduce award by amount plaintiff gets from other sources -reduces amount of damages a defendant owes/potential liability opponents: defendant shouldn't benefit from plaintiff diligence in obtaining insurance paying some of the damages

tort reform -purposes -reforms list

laws/legislative proposals intended to rein in personal injury litigation, seek to serve at least one of these purposes: -Decrease the number of circumstances under which a plaintiff may file a lawsuit -Make it harder for a tort plaintiff to have a case heard by a jury -Decrease the amount of damages a plaintiff will receive reforms include: -revise statutes of limitations and repose -requiring pretrial screening panels -setting caps on damages -mandating collateral-source rules -addressing issues such as joint and several liability and periodic payments.

tort reform: caps on damages -what it does -purpose -pros/cons in medical malpractice

limit jury ability to award noneconomic damages (general damages) purpose: allow fair compensation to victims while simultaneously preventing excessive/emotionally driven jury awards common in medical malpractice but controversial: pro: -lower premium for med malpractice insurance - indirectly encouraging affordable healthcare - eliminating need for doctors to abandon practices/practice defensive medicine con: -high med malpractice rates from UW cycle, lack of competition, mismanagement of insurers reserve and insurer investment income -can result in severely injured plaintiffs receiving less than complete compensation

litigation funding trends -contingent fee approach (how it works, why it's controversial)

litigation is expensive: plaintiffs must pay attorney fees, and plaintiffs who lose may also have to pay defendant attorney fees to reduce barrier: attorney may develop contingent fee approach (plaintiff/attorney agree attorney is paid % of money awarded to plaintiff) -if plaintiff gets nothing attorney does not get paid -risk of lawsuit goes to attorney --controversial if used in case that plaintiff has high probability of winning/cases with high damage (especially if attorney gets high % for little work) --might require sliding scale % for contingent fees (decrease as amount awarded increases)

class action lawsuit -what this is/when it is allowed -mass tort litigation -4 features court must consider to certify as class action -other things court will consider

permit one person (or group) to file suit on behalf of all harmed members of groups -allow when individual cases present common questions/amount of damages in each claim is relatively small and may not warrant individual suits -for torts, might be for dissimilar tort victim members of a group (mass tort litigation) mass tort litigation: involves claims related to tobacco, birth control, devices, insurance -numerous plaintiffs present identical liability questions as class action, each party submits separate proof of damages court must consider 4 features to certify suit as class action: -numerosity: must impractical to bring all plaintiffs separately to court -commonality: ascertainable class w/ well defined common interest in questions of law/fact affecting parties -typicality: representative parties claims/defenses must be typical of all class members -adequacy of representation: named parties must fairly/adequately protect interests of unnamed class members court will also consider extent to which: - individual class members would have interests in controlling the prosecution of claims in separate suit - extent/nature of any litigation already started - desirability of concentrating litigation in one forum - difficulties of managing class proceedings

tort reform: joint/several liability reforms -process -pro to keep approach

plaintiff can pursue collection of award against any of defendants -> once liability clear, defendants determine among themselves their relative proportions of liability/payment -plaintif can select 1+ defendants @ fault and receive full payment of amount awarded (then defendants take action against other defendants for contribution based on share of liability) pros: abolish/limit rule would under comopensate plaintiffs injured by more than one defendant (if a defendant lacks financial capability to pay share of award) -a ton of jurisdictions have limited this

tort reform: statutes of limitations/repose -what it's meant to encourage and why -competing objective

reduce time period within which plaintiff can sue -shorten statute of limitation/repose meant to encourage plaintiffs to sue while evidence is still available -more time passes after tort means harder it may become to identify/locate witnesses and for witnesses to rememberers incident -phyiscal evidence also tends to disappear competing objective: statutes give plaintiffs sufficient time the tort/act in response to it

tort reform: pretrial screening panel -what it is and what happens -purpose -complaint

review certain tort cases to encourage settlement of meritorious cases/discourage frivolous claims -considered alternative dispute resolution w/ several mediators (judge, doctor, layperson, attorney) -informal and panel decision nonbonding -normally mandatory purpose: speed up resolution of cases competing objective: (some people complain this delays case progress to jury/final resolution)

Interference With Copyright, Patent, or Trademark tort -who governs these rights -defenses

since copyright/patent/trademarks are property right, interference with these is a tort -legislation usually preempts common law and governs most matters concerning these rights defenses: didn't interfere or plaintiff doesn't own intellectual property in question

tort reform: periodic payments (structured settlements) -how plaintiff benefitted -how defendant benefits

structured settlements benefit plaintiff because interest earned by settlement annuity is not subject to income tax -as interest rates decline, tax advantage also declines also prevents plaintiff from spending entire award prematurely (funds available for long term) defendant benefits by being able to avoid selling critical assets to pay large lump sum (especially if award isn't covered by insurance) number of jurisdictions requiring periodic payment is not expected to increase quickly

class action litigation trends -why trend is -forum shopping -role of actuaries

until recently only a few countries allowed class action lawsuits (aggregate litigation) -now more European/South american countries have it can be from: -globalization of economy -shift in cultural attitudes towards protecting consumers -influence of US legal system beyond its borders expansion of class action litigation opened attorneys who practice personal injury law to 'forum shop' beyond country borders to find most favorable venue to try a case -not the U.S due to several class action reforms (restrictions on approval settlements/attorney fees) management of organization involved in class action: may call on actuaries to help estimate potential damages that could be awarded (as part of litigation of strategy) and can testify to policymakers relating to costs/effects lawsuits have on issues (like product innovation)

liability of landowners/occupiers of land -how a tort lawsuit can come about -who plaintiff sues, why they can sue and nature of landowner occupier duty

-landowner/occupier of land owes certain duties to public/adjoining landowners and breach fo duties can result in tort lawsuit for damages -plaintiff usually sues party in possession of land (though ownership may also determine liability) -plaintiff can sue for harm caused by natural/artifical conditions on land --nature of landowner/occupier duty can vary depending on injured party status

Interference With Family Relationships tort - other family -common law actions historically and what they are now -wrongful life and pregnancy

common law: -parents could sue 3rd persons for injury to children based on loss of services --now: not necessary to show loss of services, so kidnapping/seducing/negligently injuring gives right to sue regardless of economic deprivation -children had no right to sue parents for injuries/failure to provide support --now: they can allege force used was unreasonable/in bad faith -children had no right to sue 3rd party who injured parents --now: child can now recover for injuries 3rd persons cause to parents wrongful life actions: A lawsuit by or on behalf of a child with birth defects, alleging that, but for the doctor-defendant's negligent advice, the parents would not have conceived the child or would have terminated the pregnancy so as to avoid the pain and suffering resulting from the child's defects. wrongful pregnancy: A lawsuit by a parent for damages resulting from a pregnancy following a failed sterilization/if child has disabilities after misdiagnosis or failure to detect -recovery limited to special damages aka the expenses of taking care of a disabled child (not pain/suffering or other general damages) --may require limit recovery to period before child reaches majority

(liability of landowners) hotel guests and tenants -common law rules and how they've changed -reasonable precautions

common law: 1. landlord/hotel operator has no duty to protect tenants from intruders -many courts now impose duties on landlords/hotel operators/public entities to take reasonable precaution to secure premises against foreseeable risks of harm by intruders 2. hotel operators/inkeepers must furnish lodgings to anyone who could pay (as long as not objectionable for valid reason like intoxication): refusal means person could sue innkeeper -anti-discrimination laws enacted to apply these standards to other public places (theaters) 3. property owner/landlord leasing property to another is not liable for injuries resulting from disrepair/other dangerous conditions, whether condition resulted in injury to tenant or 3rd person -now evolved so landlord more responsible for dangerous conditions (liable if injury results from negligently made repairs/concealed danger owner knows about but tenant doesn't or can't easily discover) 'reasonable' precautions depend on: -prevailing practices in type of occupancy -extent of crime in the area -kinds of security that are reasonable to provide under the circumstances --can apply to motels, parking garages, college campuses, unlighted parking lot

aggravated damages -intent -what it will cover

intended to compensate plaintiff for certain types of injuries caused by egregious conduct of defendant -if defendant has a pattern of committing torts like this, conduct may be determined to be even more egregious will cover conduct that could also be subject of punitive damages but role remains compensatory -take into account of intangible injuries/suffering

(products liability) damages

plaintiff can recover damages for BI in product liability -jurisdictions can permit recovery to property for fires/explosions from product defects -some jurisdictions allow plaintiff to recover consequential damages (indemnify indirect losses) for commercial loss of product use for business purposes/loss of profits

compensatory damages (tort) -special damages and what it can include -general damages and what it can include

special damages (particular damages/out of pocket losses): A form of compensatory damages that awards a sum of money for specific, identifiable expenses associated with the injured person's loss, such as medical expenses or lost wages. -can include amount expended to restore lost property -BI: include hospital/doctor bills/related expense -loss of wages/earnings general damages (direct/necessary damages): A monetary award to compensate a victim for losses, such as pain and suffering, that does not involve specific, measurable expenses. -presumes when special damages proven -can include pain and suffering, disfigurement, loss of limb/sight/hearing, emotional distress, noneconomic intangible loss -injured person entitled to have future effect of permanent injuries considered in eval damages -have grown so large that legislatures may place dollar limit on some types

(products liability) potentially liable parties in strict liability

strict liability generally applies to entities engaging in business of selling products -manufacturers, distributors, wholesalers, retailers, often times bailors/lessors -also extends to builders/contractors in many jurisdictions -probably won't apply to people occasionally selling product outside regular course of business

(products liability) types of product defects in strict liability -defect manufacture/assembly: definition, what it includes, why it's easy to prove -defect in design: definition, when defendant/is liable and when it might not be, what the unreasonably dangerous requirement can be replaced, what courts also consider in these cases, common cases -failure to warn: definition, what manufacturer must consider, standard for liability

1. Defect in manufacture or assembly—The product does not correspond to the original design. -include use of poor quality materials, poor assembly work -easiest type of strict liability to prove (improper manufacture/assembly is in itself a defect, no need to prove unreasonable danger because injury proves it) 2. Defect in design—The product corresponds to the design, and the manufacturer built the product exactly as intended, but the design itself is faulty, and the injury has resulted from the design-defect. -defendant liable only if design flaw affects all products of same kind, not just the one that injured plaintiff -sellers are liable for injuries caused by product if (@ time of sale) it is not fit/safe for intended/reasonbly forseeable use and is unreasonably dangerous --(may not be liable if defect not open and obvious, making it not unreasonably dangerous and strict liability doesn't apply) --unreasonably dangerous requirement can be removed/replaced with different rule determining product defectiveness: if it does not meet consumer reasonable expectations OR lacks any element that would make it safe -many courts will also consider practicality of selling product w/ certain level of safety features vs. magnitude of risk associate w/ that level of safety features -many cases arise from defective safety devices/failure to install safety devices (liable if defects/failure made product unreasonable dangerous in normal use) --lack of guards/defective guards on machines 3. Failure to warn—The product is defective in neither design nor manufacture, but it poses some inherent danger about which the manufacturer has failed to provide adequate warning. -manufacturer can consider the following when deciding to market product w/o warning: degree of danger, knowledge of danger, foreseeability of dangerous use -standard same for negligence and strict liability: manufacturer must provide warning on all danger associated w/ product about which manufacturer knows/should know

concert of action -what plaintiff must prove

An expanded liability concept that applies when all defendants acted together or cooperatively. plaintiff must prove EITHER: -defendants consciously parallel each other (as result of agreement or implied understanding) -defendants acted independently but effect of acts was to encourage/assist others' wrongful conduct plaintiff doesn't have to sue all potential defendants

(professional liability) duties of care and loyalty

D&O must exercise same degree of care a reasonable D&O would ordinarily exercise -does not require them to guarantee profitability of enterprise/have special business skills decisions made within range of reasonable business judgement satisfies this duty of care and is a defense -may not be liable for loss even if decision not reasonable UNLESS it resulted from lack of good faith in business judgment director duties: -minimum: attend director meetings (can't defend against liability by asserting ignorance arising from not having attended meetings) -should ask questions, seek out information, not rely on management unsupported statements -absolute right to inspect corporate books/records (can rely on reports presented by employees if director believes them reasonably reliable)

(product liability) breach of warranty -what a breach of warranty lawsuit can involve -implied warranty -implied warranty of merchantability -UCC definition and what it does, who it applies to

breach of warranty lawsuit can involve either express or implied warranty -implied warranty: An obligation that the courts impose on a seller to warrant certain facts about a product even though not expressly stated by the seller. -implied warranty of merchantability: An implied warranty that a product is fit for the ordinary purpose for which it is used. Uniform Commercial Code: A model code that has been adopted in whole or in part by each state and whose purpose is to provide a consistent legal basis for business transactions throughout the United States and its territories. -UCC applies implied warranty of merchantability to merchant-seller's sales of goods: merchant-seller warrants that goods meet stand of trade, fit for ordinary purposes for which goods are used, conform to representations made on container/label -applies to suppliers or those who supply products for value --consideration: Something of value or bargained for and exchanged by the parties to a contract.

application of law in tort cases -kinds of laws that can be applied -local vs. transitory cause of action (definitions, examples) and what this determines -forum jurisdiction, what it determines and what happens if it's not where the wrong occurred -alternative to forum jurisdiction

court has choice of laws from various jurisdictions to apply to tort case: -common law (case law): Laws that develop out of court decisions in particular cases and establish precedents for future cases. -legislatively enacted law (federal or state) local vs. transitory cause of action determines plaintiff's standing to sue for tort in 1+ jurisdiction: -local: can be brought only where subject matter of controversy is located --eg. real property -transitory: arises from offense that could happen anywhere --driver accident determination of law to apply depends on forum jurisdiction (the place party sues): -if forum jurisdiction isn't where wrong occurred, court decides either to: --apply law of forum jurisdiction (lex fori), usually governs procedure (eg application of evidentiary rules, measure of damages in Canada) --apply law of jurisdiction where wrong occurred (lex loci), usually governs *substantive* matters relating to lawsuit (eg party rights, validity of defense, measure of damages in US) alternative to forum jurisdiction is significant contacts rule: -specify substantive law of state/province having more significant contacts to parties may apply even if the tort occurred elsewhere --ensures law of jurisdiction w/ greater interest in protecting citizens has law applied --w/ equal interest, court chooses rule of law with higher authority

(defense) comparative negligence: -definition -variations

definition: A common-law principle that requires both parties to a loss to share the financial burden of the bodily injury or property damage according to their respective degrees of fault. 4 variations on rule (depending on state, comparison applies to combined fault of those against whom recovery is sought): -The pure comparative negligence rule -The 50 percent rule -The 49 percent rule -The slight versus gross rule

environmental law -what it includes -who's involved -what lawsuits come from, how guilt is determined

environmental law: include measures to prevent environmental damage (environmental impact statements, measures to assign liability, cleanup for incidents resulting in environmental damage) -goverment agencies are often enforcers so environmental law related to administrative law -lawsuits arise from laws imposing strict liability designed to protect general public: --administrative agency determines if party liable for damages under statute/regulation --findings relate more to if defendant violated law than whether defendant actually caused damage to someone

false imprisonment and false arrest -definitions -police officers (felonies, misdemeanors) -citizens (felonies, misdemeanors)

false imprisonment: The restraint or confinement of a person without consent or legal authority. -unlawful nonphysical restraint (blocking door out of room) false arrest: The seizure or forcible restraint of a person without legal authority. -unlawful physical restraint/threat of physical restraint possible defenses: -whether acts occurred in connection with w/ crime, nature of crime, capacity of individual involved police officers: -for felonies, have almost complete immunity from these charges while making arrest under warrant issued by competent judicial authority -for arrest w/o warrant for felony committed in presence, felony committed outside presence if reasonable ground to believe those arrested committed felony -> policy officer still not liable even if no felony committed/arrested person didn't commit -misdemeanor: --can make arrest w/ or w/o warrant for forcible breaches of peace (riots) /peace disturbing activities (public drunkenness) (arguments/impudence don't count) -- warrantless arrest justifiable only when misdemeanor committed in presence of the officer making arrest citizen's arrests: -w/o warrant to prevent commission of felony in presence can usually successfully defend against these charges IF felony committed out of presence and they have reasonable grounds to suspect the arrest person committed a felony -can be liable of felony was not actually committed or no reasonable -no misdemeanor arrests detained by store personnel for shoplifting: laws permit detention for reasonable time to investigate (~ 1 hr)

invasion of privacy -definition -canada -types -defenses

invasion of privacy: An encroachment on another person's right to be left alone/be protected from unauthorized publicity in essentially private matters Canada: no tort for invasion of privacy but evolving/have protected privacy in cases involving other torts/enacted privacy legislation types: -intrusion on solitude/seclusion: invasion of something personal/secluded/private pertaining to plaintiff, not confined to physical invasion (includes surveillance) -physical invasion: searching a bag, unauthorized blood sample, photograph of embarrassing/compromising position -torts involving use/disclosure of info: --public disclosure of private facts (ie gossip, right to see depends on plaintiff public prominence) --publicity placing plaintiff in false light (statement taken out of context/based on info that's not true and presented in a way that plaintiff has good cause to be offended) --unauthorized release of confidential info --appropriation of plaintiff name/likeness (based on defendant's commercial benefit using someone else's name/likeness) defenses: -The plaintiff previously published the information. -The plaintiff consented to publication. -The plaintiff is a public figure, or the information is public knowledge. -The information was part of a news event. -The publication would not offend an individual of ordinary sensibility. -Matters were disclosed in judicial proceedings. -The information is of public interest, such as the public's right to know.

sovereign/government immunity -definition -Canada -US -Municipal corporations

judicial doctrines that prevent one from filing suit against the government -In Canada, legislation passed allowing government to sue in Tort and Contract -In US: Federal Tort Claims Act (FTCA) provides limited waiver of governmental immunity for claims against federal government --is the only means for suing for damages/collecting them from fed. govt in any cause in which the govt (if it were a private person) would be liable -Municipal corporations: unusual status (should have same immunity as state/province as a political subdivision, but also perform many functions performed by private enterprise) --usually governmental immunity only applies when functioning in government capacity --if performing proprietary functions (functions that could be performed by private entity), still subject to suit just like any other private entity (though immunity for some of these can be conferred by statute)

negligence: legal duty -what are legal duties and how they are established -what legal duties are created by -legal duty in negligence lawsuit -moral obligation to act vs. legal duty

legal duties: An obligation imposed by law for the preservation of the legally protected rights of others. -to establish, courts ask if plaintiff's interests are entitled to legal protection against defendant conduct. legal duties created by: -statutes: laws -contracts: failure to perform contract/performing improperly can violate legal duty -common law (most legal duties) -for negligence lawsuit to be successful, defendant must owe duty to plaintiff: --BUT duty does not need to be owed to specific person (sufficient if defendant could foresee harm would occur to someone bc of negligent act/omission) --duty extends to all persons/property in zone of hazard moral obligation to act <> legal duty BUT person voluntarily undertaking moral obligation has legal duty to exercise reasonable care in carrying it out

nuisance tort -how it's decided -private nuisance definition -public nuisance definition (who can recover for damages and remedies) -defense

nuisance decided by considering discomfort act would inflict on normal person under normal conditions -private nuisance: An unreasonable and unlawful interference with another's use or enjoyment of his or her real property. --eg. noise, dust falling on adjoining property, blasting etc -public nuisance: An act, occupation, or structure that affects the public at large or a substantial segment of the public, interfering with public enjoyment or rights regarding property. --only people with personal damage (particular to individual plaintiff) can recover damages for injury resulting from public nuisance --remedies for public nuisance include civil tort suit for damages, criminal charges, court order demanding curtailment of nuisance -nuisance per se: act/occupation/structure that is nuisance at all times and under any conditions regardless of location/surroundings intentional vs unintentional nuisance: -intentional (absolute) -nonintentional: conduct is negligent, reckless, ultrahazardous defense: act complained of was reasonable/legal use of property by defendant

professional liability insurance -parties in normal liability insurance -why malpractice is unique --consent to settle clause and what insurer will do if they think case should be settled

parties in liability insurance: insured (first party), insurer (second party), claimant (third party) -claimant makes claim against insured and insurer provides insured w/ legal defense/claim settlement malpractice claims unique dynamic: insured's professional reputation may be at stake, payment of claim can affect reputation adversely -most professional liability policies include consent-to-settle clause (insured has to agree) --if insurer thinks case should be settled, claim rep will provide insured with realistic appraisal of evidence/of insured's chances of winning at trial

Interference With Right to Use One's Own Name in Business tort -what the right is -who it applies to -original user protection

person has right to use own name in business even if similar business conducted under same/similar name -apply to individual AND corporation (but corporation can be rejected if name too similar to already registered name) -original user of personal name protected and require other users give notice that no connection with original

D&O liablity: -what plaintiff must prove -when corporation/D&O is liable for tort

plaintiff must prove directors/officers performed their duties improperly, with resulting damage to the organization corporations directors/officers/corporation itself/employees: can be liable under tort, contract, criminal -under tort: corporation liable as a principal/employer under doctrine of respondeat superior for all torts committed by agents/employees within scope of agency or employment --D&O not liable for employee/agent tort unless they authorized/participated in the tort corporation may purchase/maintain D&O liability insurance for officer, director, agent, employee against potentially liability from exercise of corporate powers -entity coverage for corporation itself -increasing lawsuits trend, insurers have reduced coverage limits/increased premiums -prospective board members often demand this insurance

(products liability) protected parties in strict liability -how standing to sue is determined

protection generally apples to: -ultimate user/consumer (can include ultimate buyer) -nonusers (bystanders) to determine who has legal standing to sue, most courts use traditional foreseeability test (for strict liability and negligence) -anyone who could foreseeably have been injured by product has standing -this is so individual consumers are protected and loss allocated to party best able to bear the loss

(professional liability) standards of performance -what is defensible -what recent actions against professionals based on -how standard of care for professionals determined -'specialist' standard of care -inexperienced standard of care

reasonable errors in judgement by professional are defensible recent actions against professionals are based on contracts between professionals/parties who sue them for malpractice (claimants) -contracts control terms between the professional/claimant and might set high standard of performance carrying with it a high standard of care standard of care for professionals is shown by reasonable professionals practicing in similar circumstances -'locality rule' holds professionals to the standard of care of professionals in given geographical area professionals known to public as specialists are held to higher standard of care based on their specialized knowledge inexperienced professionals held to same standard of care as experienced practitioners

(defense) releases and exculpatory clauses: -release (definition, when it can be a defense, when it is voided) -exculpatory clause (definition, when it can be a defense, when it is voided, how parties make it legally acceptable, when courts generally uphold these clauses)

release: A legally binding contract between the parties to a dispute that embodies their agreement, obligates each to fulfill the agreement, and releases both parties from further obligation to one another that relates to the dispute. -if agreed to by both parties, can be defense to tort lawsuit if court recognizes release as valid release in settlement of claim -voided by mutual mistake (misunderstanding by all parties to release) relating to past/present fact (not opinion on future condition based on present fact) exculpatory clause: A contractual provision purporting to excuse a party from liability resulting from negligence or an otherwise wrongful act. -can excuse/limit liability for negligent contract performance (including gross negligence) but void if exclude willful/wanton misconduct -courts generally viewed these unfavorably, to make more legally acceptable, parties may set these up as liquidated damages provisions --(A reasonable estimation of actual damages, agreed to by contracting parties and included in the contract, to be paid in the event of a breach or for negligence) --if liquidated damages too low (considered nominal), court will probably find the clause to be exculpatory and not uphold -court will uphold exculpatory clause if: --exculpatory clause is not adverse to a public interest/not against public policy --If the party excused from liability is not under a duty to perform (eg public utility or common carrier) --If the contract does not arise from the parties' unequal bargaining power/not otherwise unconscionable

(liability of landowners) invitees -public vs business -duty land occupier owes

special type of licensee -public: A person invited to enter onto premises as a member of the general public for a purpose for which the land is open to the public. --public meetings, visitors to national parks, amusement parks on free passes -business: An individual who has express or implied permission to be on the premises of another for the purpose of doing business. --converted from licensee through business benefit (shoppers, guests, theater patrons) land occupier owes duty to exercise reasonable care to keep premises reasonably safe/warn of concealed dangerous conditions -need not warn of dangers of which invitee is aware

statues of limitations and repose -statute of limitation (definition, examples of time periods) -statute of repose (definition, examples of time periods) -how statutory time periods vary, when it starts (and exception) -the right to sue for different torts -Canada

statute of limitations: A statute that requires a plaintiff to file a lawsuit within a specific time period after the cause of action has accrued, which is often when the injury occurred or was discovered. -medical malpractice: 1-3 yrs -real/personal property damage: up to 10 years -breach of warranty; 4-6 yr (but still can recover under breach of warranty suit) statute of repose: A statute that requires a plaintiff to file a lawsuit within a specific time period after a wrongful act by a defendant, such as improper construction of a building, regardless of when the injury occurred or was discovered. -can bar lawsuit even before cause of action has happened -medical malpractice: 3-10 yrs -architects/engineers: 4-15 years after building completion statutory time periods vary by jurisdiction and kind of tort -statute starts @ time the cause of action accrues (but may be difficult to establish when all elements of causation of action exist or when material facts have been discovered to determine when period starts) -for children/minors: statutory time period starts day they come of age/date incompetence removed (as long as incpometence existed before statue began to run) right to sue: -fixed time of accident/cause of action easy to determine and right to sue based on that -some torts allow right to sue on commission of the wrongful act regardless of consequences (injury, damage, trespass) and statute begins to run when wrongful act committed -some torts allow right to sue only if harm results (cause of action accrues/statute runs from date plaintiff sustains injury/damage) Canada: limitation acts and discoverability rules (statues of limitation and repose respectively) and periods start running until material facts that cause of action based on have been discovered/should have been discovered by reasonable diligence) -if plaintiff dies before expiration of time suit can be filed, legal rep has 1 year after death to sue -if defendant not in jurisdiction and plaintiff can't serve complaint, running of statute tolled (stopped) until service of complaint possible

tort vs. other offenses -criminal case -breach of contract -moral wrong

tort is a civil (private), legal wrong : person injured as result of tort can file lawsuit against tortfeasor (accused wrongdoer) criminal case: a public wrong, government prosecutor brings action against accused on behalf of people breach of contract : binding agreement not honored by a party to the contract moral wrong: laws do not judge acts by moral standards

toxic tort -how liability determined -who is commonly involved -what goal of lawsuit is

toxic tort -refers to several types of tort suits arising from use of toxic substances -liability established by statue instead of common law most of the time -many times, a government agency is party and private party plaintiff may be involved -usually seek compensation or damages to individuals caused by toxic substances: plaintiff must prove all usual tort case things

defamation in commercial speech -what commercial speech involves -2 most common defamatory commercial speech and when someone is liable

-can involve libel, much less protection than speech concerning public issues -commercial speech: solely in speaker's individual interest and concerns speaker's specific business activity -may involve injurious falsehoods that are not personally defamatory -comparative advertising: Product A marketers mention Product B by name --if truthful, advertisers not liable. --claims of superiority must be specific/described objective tests and be false/misleading/incomplete to be considered libelous -product disparagement/trade libel: intentionally false/misleading statements about characteristic of plaintiff's product resulting in financial damage to plaintiff --(prove publication slayed material part in loss of customers/prospective customers), eg quality of plaintiff property/conduct of business

misuse of legal process tort -malicious prosecution: definition, main element of tort, defense/acts that bar lawsuit for malicious prosecution -malicious abuse of process: definition, defense

-courts discourage lawsuits alleging these torts because of public policy, which favors use of courts to resolve disputes malicious prosecution: The improper institution of legal proceedings against another. -historically for criminal case but now apply to civil proceedings (bankruptcy, incompetency declaration) -basically need a lack of probable cause for plaintiff to sue defendant defense: inability of plaintiff (former defendant) to prove any of the elements of the tort some acts bar lawsuit for malicious prosecution (here, the plaintiff is the former defendant and defendant is the former plaintiff) : -defendant action on advice of counsel: defendant disclosed all facts to impartial attorney and genuinely believe in plaintiff guilt and act on attorney advice indicates presence of probable cause -plaintiff guilt of crime: if defendant proves plaintiff guilty and plaintiff convicted. Acquittal doesn't count as evidence of lack of probably cause. -probable cause (proof of this for arrest prevents malicious prosecution action) malicious abuse of process: The use of civil or criminal procedures for a purpose for which they were not designed. -bring person into jurisdiction supposedly as witness but actually to serve process in form of complaint in connection w/ another action -defense: plaintiff inability to prove ulterior motive

public official immunity -who this extends to -extent of immunity for different acts

-extends to local government officials/judges, absolute immunity for acts performed in official capacity -other officials might have qualified immunity in limited situations extent of immunity depends on act: -administrative/discretionary: An act, a decision, a recommendation, or an omission made by a government official or agency within the authority of that office or agency. --usually full immunity as long as acts in scope of authority/performed with no malice/bad faith -ministerial: An act that is directed by law or other authority and that requires no individual judgment or discretion about whether or how to perform it. --liable for damages for these acts performed improperly, even if performed in good faith/without malice -no immunity for things like operation of cars, assault/battery, malicious/fraudulent acts

(defense) immunity -definition -why this immunity has happened -classes of immunities

-immunity: defense shielding people/org from liablity -for reasons of public policy, common law has granted immunity from liability or torts to certain classes of people under certain conditions -classes: --Sovereign, or governmental, immunity --Public official immunity --Charitable immunity --Intrafamilial immunity

natural conditions (landowner liability) -in general (and alternative rule) -in case of trespasser -exception (in rural and urban areas)

-in general, landowner not liable for natural conditions on the land causing injury either on/off land --this rule may be rejected in favor of reasonableness standard (eg land has frequent landslides and owner didn't do anything to correct) -land possessor of land under no duty to correct natural conditions on land even if it creates a danger to trespasser -exception: trees! if a tree falls and causes damage on adjacent premise/highway landowner may be liable for negligence if he/she knew tree might fall and failed to take reasonable steps to remove --in rural areas, landowner has no affirmative duty to inspect trees to determine if prone to collapse/dropping branches --in urban areas, landowner with trees does have duty to use reasonable care and inspect trees

Canadian business torts

-inducing breach of contract: defendant, without justification, intentionally and knowingly brings about a breach of contract between the plaintiff and a third party. -slander of title/goods: A defendant knowingly and intentionally makes a spoken statement, affecting the plaintiff's property and causing plaintiff a financial loss. -conspiracy: A defendant agrees to commit an unlawful act, a lawful act by unlawful means, or a lawful act by lawful means to injure the plaintiff or the plaintiff's interests. -passing off: A defendant knowingly makes a false representation that the defendant's goods or services are actually the plaintiff's in order to induce the public to buy the defendant's goods or services in the belief that they are the plaintiff's. -intimidation: A defendant threatens to commit an unlawful act with the intent to make the plaintiff obey the defendant's wishes and thereby causes harm to the plaintiff.

(liability of landowners) trespassers

-landowner owes trespasser minimal duty of care not to cause intentional harm (except where appropriate force might be necessary) --riggin shotgun to go off if door opened by trespasser can cause liability

ownership/possession of animals -domestic animals -wild animals

-liability for animals differentiates between domestic and wild animals common law: owner strictly liable for damages caused by trespass of domestic animal --exception is dogs/cats since they seldom cause serious damage (unless owner knows animal has vicious propensity to cause injury) owners of wild animals are strictly liable for all acts of/damage caused by animals -considered wild if by local custom animal is not devoted to people's use

duties to those who enter land or premise

-license: permission to use/enter another's land (can be revoked even if paid for) --express: The oral or written permission to enter onto another's land to do a certain act, but not the granting of any interest in the land itself. --implied: The permission to enter onto another's land arising out of a relationship between the party who enters the land and the owner. -licensee: A person who has permission to enter onto another's property for his or her own purposes. -invitee: Person who enters a premises for the financial benefit of the owner or occupant. --both must conform to conditions on which it enters or risk becoming a trespasser -owner/occupier of land owes specific but different duties of care to licensees and minimal duty to care to trespassers --licensees --invitees --trespassers --hotel guests and tenants

artificial conditions -what owner liability is from altering land -nuisance -attractive nuisance doctrine -sidewalk/street legal duties

-owner altering land in any manner can be liable for negligence or creating a nuisance (Anything interfering with another person's use or enjoyment of property) --if owner creates artificial condition on land that could cause severe injury/death has duty to warn of hazard if trespasser wouldn't discover without warning nuisances include: -Concentrating the flow of water discharges on adjoining land -Permitting artificial devices, such as downspouts, to discharge over public ways -Creating any other artificial condition that discharges water or snow on adjoining premises or roads -trespassing rules apply to children and adults --exception: attractive nuisance doctrine (A doctrine treating a child as a licensee (guest) rather than a trespasser on land containing an artificial and harmful condition that is certain to attract children) so possessor must keep premises in a suitable/safe condition and use ordinary care to protect trespassing children from harm -occupier of land abutting sidewalk/street has duty to avoid placing unguarded excavation/ditch on land that might endanger travel using premises (distance from sidewalk/street isn't crucial but could be relevant to determine owner foresight) --doesn't apply to trespassers --landowners generally not liable for defects in adjoining sidewalks/streets (some jurisdictions have duty to keep adjoining sidewalks/streets in repair because they benefit from throughfares)

(defense) comparative negligence: 50% rule

-permits a plaintiff to recover reduced damages (up to/including 50%) so long as the plaintiff's negligence is not greater than 50 percent of the total negligence leading to harm. -@ 51%, no recovery for plaintiff -<=50%, plaintiff gets damage reduced by x % at fault

(defense) comparative negligence: 49% rule

-permits a plaintiff to recover reduced damages so long as the plaintiff's negligence is less than the other party's negligence. --basically same as 50% but proportion of total negligence the plaintiff gets no recovery at is 50% instead of 51%.

(defense) comparative negligence: slight vs gross

-permits the plaintiff to recover only when the plaintiff's negligence is slight in comparison with the gross negligence of the other party. --court reduces plaintiff damage by amount proportion to contribution but leaves decision on assigning proportional damage with the court

(defense) comparative negligence: pure rule -definition -principal objection

-rule that permits a plaintiff to recover damages discounted by his or her own percentage of negligence, as long as the plaintiff is not 100 percent at fault. --if claimant x % at fault, recover 100-x% from defendant -all common law jurisdiction in Canada implements this rule -principal objection: does not base recovery on apportionment of fault but on relative amount of loss --allows party whose negligence was major factor to recover damages from a party who was less at fault

concurrent causation -definition -when it happens

A legal doctrine stating that if a loss can be attributed to two or more independent concurrent causes—one or more excluded by the policy and one covered—then the policy covers the loss. -arises when 2+ defendants is liable for entire harm, even though act of either wouldn't have produced the harm

specific performance remedy -definition -when this is appropriate and when it's not

A court-ordered equitable remedy requiring a party to perform a certain act, often—but not always—as a result of breach of a contract. courts unlikely to order performance of personal services/acts relying on personal judgement of performer -(doctor to perform surgery, contractor to make building) -this is because performance under compulsion may fall below performer usual standards and court doesn't want to supervise to ensure adequate performance appropriate remedy when court can readily determine whet er party being compelled has clearly complied with court's order -eg. require release of specific confidential info

injurious falsehood tort -definition -what relationship this tort interferes with/examples -difference from defamation -defenses

A group of torts involving disparagement that causes harm to any kind of legally protected intangible property right -similar to defamation, differs primarily that plaintiff must prove both falsity of statement AND actual damage/loss -this tort interferes with economically advantageous relationship resulting in monetary loss (damage to property right NOT reputation) --eg. allegations of improper business conduct/poor quality of goods defenses: -truth -retraction made (not complete/reduce damage) -absolute privilege (judicial, consent given) -conditional/qualiifed privilege (made w/o malice as matter of public interest)

alternative liability -what defendant has to prove

An expanded liability concept that shifts the burden of proof to each of several defendants in a tort case when there is uncertainty regarding which defendant's action was the proximate cause of the harm. -defendants have burden of proof of causation (prove that they didn't cause the harm or someone else did) -plaintiff can sue 1+ defendants but not necessarily all of them

intentional/negligent infliction of emotional distress -definition -possible defense -common law and how it's changed

An intentional act causing mental anguish that results in physical injury. -defense: act was not intentional, no actual physical injury/manifestation (if pure emotional doesn't count) negligent infliction: An unintentional act causing mental anguish that results in physical injury. -defense: act was not negligent common law: prove physical injury results from emotional distress (no recovery for emotional distress alone) -now: rule no longer prevalent --some courts: physical injury can be any condition or illness capable of objective determination --some courts: no physical injury requirement/permit pure emotional injury since that can be as severe as physical harm

fraud -definition -proof of fraud -defenses

An intentional misrepresentation resulting in harm to a person or an organization. -aka deceit, misrepresentation proof of fraud requires 6 elements: -A false representation has been made. -The misrepresentation is material and concerns a past or an existing fact. -The misrepresentation was knowingly made (made with the knowledge of its falsity, in reckless disregard of the truth or without knowledge or concern as to whether it was true or false) -The misrepresentation was made with intent to influence or deceive. -The party to which the misrepresentation was made places reasonable reliance on its truth (reliance requires proof/must be justified, if party would have acted regardless of representation NO FRAUD OCCURRED) -complaining party must suffer detriment/actual damage defenses: -The statement was not false. -The statement did not relate to a material fact. -The defendant did not know the statement was false. -The defendant did not intend to deceive. -The plaintiff did not rely on the statement. -The plaintiff suffered no harm or loss because of relying on the statement.

conversion tort -definition and what it applies to -who can sue -defense

The unlawful exercise of control over another person's personal property to the detriment of the owner. -applies only to chattel (Tangible, movable personal property) NOT land party must be deprived of possession of chattel by wrongful taking/disposal/detention or severe damage/destruction -anyone with a right to possession (including finder/bailee) can sue for conversion defense: -A plaintiff's failure to establish the right to possession of the property -A plaintiff's refusal to demand return, followed by the defendant's consequent refusal to deliver -bailee: property was not in possession because it was lost/destroyed w/o bailee fault

unfair competition tort -definition -common law (what causes injury) -defense

Use of wrongful or fraudulent practices by a business to gain an unfair advantage over competitors. -one party deceives public into buying its product in mistaken belief it is another party's product -applies to literary/artistic properties common law: prohibit people/org from pretending goods are someone else's by using similar trademark/label/wrapper and competitor could sue if deprived of value of goodwill in business -no injury unless 2 parties competing directly w/ same product service -legally one party can't make/label goods in any manner leading public to believe goods are product of another manufacturer in another field (doesn't matter if not in direct competition) defense - assertion defendant didn't do 1+ of these acts: -Compete -Compete directly -Harm the plaintiff -Mislead the public -Deceive anyone

intrafamilial immunity -what common law says -2 categories of immunities

common law: one family member can't sue another in tort -this is because: belief suits would disrupt family peace/harmony, deplete family financial resources, lead to collusion/fraud immunities: -interspousal: A defense to negligence that grants immunity to one spouse from the other spouse's lawsuit for torts committed before, during, and after the marriage. --mostly abolished -other family relationship: --parent child: A defense to negligence that grants immunity to parents from their children's lawsuits for torts (also mostly abolished, may still be immune if child is emancipated or child is injured in parent's business activity) --some insurers insert interfamilial exclusion but courts vary on if exclusion is void since it violates public policy

defamation -definition -slander: definition -libel: definition, news media status -defenses

defamation: A false written or oral statement that harms another's reputation and concerns complaining party personally -slander: defamation expressed by speech --usually heard only once and chance large audience will hear is remote -> law requires substantial proof of injury to plaintiff's reputation and oral publication (communication) to 3rd person must occur -libel: defamation expressed in writing --wider circulation/more permanent than slander so higher potential for damage to person's reputation --publication must occur to 3rd person --news media: US holds public officials/figures suing news media for libel have to prove statement is false and that defendant made it knowing it was false or w/ reckless disregard (high degree of certainty of probable falsity)/malice defenses for slander/libel: -The statement was the truth. -The defendant made or printed a retraction (not complete defense but can reduce damage) -(absolute privilege) The statement was made in judicial or legislative proceedings, executive officers' communications, or spousal communications, or in situations when consent was given by the injured party. -(conditional/qualified privilege) The statement was made without malice as a matter of public interest, in petitions concerning appointments, in common interest communications, as fair comment on matters of public concern, or by credit-reporting agencies.

negligence: breach of duty -what defendant fails to do -reasonable person test (characteristics, circumstances affecting test, degree of care) -professional negligence standard, legal standard -when high degree of care is necessary

defendant must fail to conform to standard of care required in situation -to establish, courts ask if defendant conduct would be conduct of reasonable person under the circumstances reasonable person test: A standard for the degree of care exercised in a situation that is measured by what a reasonably cautious person would or would not do under similar circumstances. -external and objective (defendant individual judgement NOT considered), based only on how jury perceives reasonable person would have acted -circumstances change this test (disability, mental) -degree of care also varies according to possibility of harm involved (greater possibility of harm = greater caution) professional negligence: -standard applied is skill/knowledge of reasonably competent members of that profession applied with reasonable care --professionals not liable for errors in judgement provided they used reasonable care in reaching/judgement -legal standard applied is standard of professionals in own, local community (general community in same geographic area) high degree of care needed for: -common carriers (companies furnishing transportation to any member of public seeking offered services) must exercise utmost caution characteristic of very careful person (highest possible care) -people who handle/store dangerou materials must exercise care commensurate with risk associated with materials' dangerous character

(liability of landowners) duty to licensees -examples -duties of landowners to licensees

examples: social guest, volunteer helper, firefighters/police when entering property to perform duties licensees take property in condition in which it exists -landowner owes affirmative duty to licensee to refrain from willfully/wantonly injuring person/acting in a way that would increase that persons peril -duty to warn of hidden defects occupier of land (tenant) not liable for acts of another person on premises

joint tortfeasors -joint liability (how one becomes active contributor, when joint liability happens) -common law: damages and release (and what they are like now) -alternative treatments of joint liability (and when it still applies)

if act of negligence involves more than one person, all persons participating in act of committing a tort are jointly AND severally (individually) liable -participates by being active contributor if: (in person or by agent/employee) they acted, ratified/permitted act or advised the act -occurs if 2+ person owes common duty to 3rd party and by common neglect causes injury, or separate negligent acts of 2+ persons come together to produce one indivisible injury -some relationships create joint tort: employers liable for employee torts and vice versa, partnerships are jointly liable for torts of all other partners common law: -joint tortfeasors have joint/several liability for full amount of damages; plaintiff can proceed against al tortfeasors jointly or against any # of them (each tortfeasor responsible for whole tort regardless of degree of participation) --now: rule mostly abolished due to increased litigation against 'deep pocket' defendants who had little role in injury but had to pay entire damage -release of one joint tortfeasor releases all joint tortfeasors, even if release specifically prohibits release of everyone else --now: not really... if plaintiff settles w/ one joint tortfeasor, pro rata credit goes to other joint tortfeasor if intent of agreement was to release only 1 tortfeasor and not to operate as full release several jurisdictions now abolish concept of joint liability (several liability only), OR apply joint liability only when plaintiff fault < respective defendant's OR if defendant is @ certain % at fault -still used in product liability, taxic tort, auto liability

remedies -definition -2 types of remedies -2 types of equitable remedy

if party injured/about to injured by another party's tort, can see monetary damage OR other remedies remedy: seeks to enforce a right/prevent or correct a wrong -legal: award monetary damages -equitable: used when monetary damages cannot adequately compensate an injured party --specific performance: used to compel party to act --injunction: used to compel party not to act

Interference With Family Relationships tort - spouses -common law and how it's changed -spouse rights against 3rd persons

individuals have rights as members of family common law: neither spouse could sue a 3rd party for personal injury against other spouse, most rights were for husband's benefit only -this isn't true anymore for most places -spouses can now sue for assault/battery/false imprisonment -rights favoring husbands have been eliminated/apply equally to wives spouses rights against 3rd persons now: -alienation of affection: interference w/ husband/wife relationship (persuade other spouse to leave marriage) -personal physical injury to one spouse -loss of consortium (services, companionship, comfort): other spouse can sue 3rd party and amount of damages based on spouses' existing relationship

classifications of torts -intentional vs. unintentional -physical vs. nonphysical

intentional vs. unintentional: -intentional: tort committed by a person who foresees (or should be able to foresee) that his or her act will harm another person. --eg. defamation, invasion of privacy, trespass, interference w/ contractual rights, fraudulent misrepresentation -unintentional (negligence): failure to exercise the degree of care that a reasonable person in a similar situation would exercise to avoid harming others. --result in legal wrong, but did not intend to cause harm physical vs. nonphysical: -physical: involve physical act on person/person's property --eg. battery (causing harm to another by touching), assault (threat of physical harm, criminal definition includes tort definition + act of using intentional physical force on someone w/o their consent), false imprisonment, false arrest -nonphysical: invade a legal right --eg. defamation, malicious prosecution, fraud

(product liability) misrepresentation -when this happens -express warranty -what recovery is based on

manufacturers making representation to public through ad, brochure, labels, instructions: -extend beyond sales promotion if providing safety information on which consumers rely express warranty: An explicit statement about a product by the seller that the buyer or other user may rely on and that provides a remedy in the event the product does not perform as claimed. recovery from suit may be based on misrepresentation/ad statement about quality/safety of product constituting an express warranty

required proof of negligence -burden on plaintiff and defendant -if facts are undisputed vs. disputed -negligence per se (definition, what it usually involves) -res ipsa loquitur (definition, 2 factors, what it usually involves)

plaintiff has burden to prove all the elements of negligence and defendant has burden of proving any defense -defendant presumed at outset to lawsuit to have used due care until plaintiff proves otherwise -if facts undisputed/point to one presumption, court must decide whether as matter of law negligence occurred -if facts are disputed/uncertain or undisputed/multiple reasonable conclusions, court makes findings of fact (supported by evidence) and may also have to make findings of law (applicability of rule of law to facts of case) to determine negligence negligence per se: An act that is considered inherently negligent because of a violation of a law or an ordinance. -usually involves failure to comply with statutory standard since proof defendant violated statute is sufficient to establish liability res ipsa loquitur: permits inference of negligence if acton or event causing injury was under defendant's exclusive control AND accident ordinarily wouldn't have happened if defendant exercised appropriate care -in absence of proof of contrary, the accident probably would have arisen from lack of due care -2 factors: --probability that under given circumstances the defendant was negligent --defendant's duty to rebut the inference of negligence as party who had exclusive control/superior knowledge of causative circumstances -frequently applied in lawsuits against common carriers, bricks falling off buildings, poisonous drugs sold as medicine, instruments left in surgical patients

plaintiff, defendant, cause of action, standing to sue definitions

plaintiff:The person or entity who files a lawsuit and is named as a party. defendant: The party in a lawsuit against whom a complaint is filed. cause of action: facts that form basis for valid lawsuit standing to sue: A party's right to sue, as one who has suffered or will suffer a legal wrong or an adverse effect from an action.

mitigation of damages -duty of plaintiff -if they fail duty -when it applies -defendant burden

plaintiffs have duty to mitigate/contain their own damages -if fail to make these reasonable efforts, may be barred from recovering related damages -applies to plaintiff's conduct after accident occurred (possibly before if plaintiff failed to take obvious safety precautions) defendant has burden of proving damages were preventable/avoidable

(products liability) strict liability and negligence -when case is based on strict liability vs negligence -definition of product -what plaintiff must prove for strict liability, negligence

products liability cases can be based on strict liability/negligence/both -if harm results from only service/process: suit based on negligence -if harm results from product or combo of product/service or process: suit based on either strict liability or negligence products are products including ad materials, labels, computer software, instruction manuals, aircraft instrument landing charts what plaintiff must prove: -general negligence: prove manufacturer failed to use reasonable care in designing/manufacturing product causing injury (focuses on reasonableness of manufacturer conduct) -strict liability: focus on product itself and how it breaches absolute duty of safety (manufacturer conduct is irrelevant). --manufacturer can be guilty even if they used utmost care in making product --Must prove 5 elements --1. The seller was in the business of selling products. --2. The product had a defect that made it unreasonably dangerous (to an extent beyond that which would be contemplated by the ordinary user who has common knowledge about the product, Not all courts require this element.) --3. The product was dangerously defective when it left the manufacturer's or seller's custody or control. --4. The defect was the proximate cause of the plaintiff's injury. --5. The product was expected to and did reach the consumer without substantial change in condition.

professional liability (tort) -what it comes from -why liability might not be clear -win rate

professional malpractice: failure to practice profession properly -liability may not be clear cut, might not be able to be proved w/o expert witness testimony w/o professional who isn't the defendant, who explains to court how defendant failed to meet standard of care -professional liability have higher than average pro-defendant verdict favoring professional) --medical malpractice is especially hard to win for plaintiff

negligence: proximate cause -what is proximate cause -what a person committing wrongful act is and isn't responsible for -4 rules to determine proximate cause -if harm from independent/intervening act

proximate cause: A cause that, in a natural and continuous sequence unbroken by any new and independent cause, produces an event and without which the event would not have happened. -wrongful act must be the proximate (direct) cause of harm (possibly causing ALL or substantial part of injury on its own) to determine tort liability, courts attempt to place burden of loss on person responsible, but also recognize limit of liability should exist when act was so remote as not to be chargeable to the actor: -someone who commits wrongful act is responsible for ordinary consequences that can foreseeably flow from an act but is not liable for results that couldn't have been reasonably foreseen/independent intervening cause breaks chain of causation rules for determining proximate cause: -but for rule: determine whether defendant act was proximate cause of plaintiff's harm based on determination that plaintiff's harm couldn't have occurred but for the defendant's act -substantial factor rule: determine which of the acts are significant factors in causing harm --if two parties' acts coincide to cause loss but 'but for' rule doesn't get a satisfactory result -proof of defendant responsibility: prove by preponderance of the evidence that defendant caused the harm (will fail if it's at least probable a 3rd person could have caused the act) -foreseeability: determine if plaintiff harm is the natural/probably consequence of the defendant's wrongful act and when an ordinarily reasonable person would have foreseen the harm --defendant need not have foreseen the particular result that followed defendant not liable if harm caused by independent, intervening act (must be independent of original act/not readily foreseeable as one arising from original act) -(if then, the intervening agency becomes the proximate cause)