BLAW 3430 Exam 2

Can the same action be both a tort and a crime?

Yes

Default Judgement

a judgement entered by a court against a defendant who has failed to appear in court to answer or defend against the plaintiff's claim IF NO ANSWER => PLAINTIFF WINS TRIAL

Summons

a notice directing someone to appear in court to answer a complaint or a charge (federal court)

Trespasser

a person on another's property without consent

Citation

notice from clerk (state court)

Intent

the acter desires to cause the consequences of their actions and the consequences were substantially certain to occur as a result of those actions

But-for Test

the defendant's conduct is a factual cause of the harm when the harm would not have occurred absent the conduct

Invasion of Privacy

1. Appropriation of name or likeness 2. Unreasonable intrusion on seclusion 3. Unreasonable public disclosure of private facts 4. Unreasonable publicity that places false light (photoshop, etc. => visual)

3 Defenses to Negligence

1. Assumption of Risk 2. Contributory <50% 3. Comparative >50% => $0

Reasons for Discovery

1. Avoid surprise/ambush at trial 2. Preserve testimony 3. Encourage settlement between parties

Discovery

1. Interrogatories - list of questions 2. Depositions - sworn testimony outside of court 3. Request for admissions - facts, etc. 4. Request for production - physical objects 5. Request for phys/mental examination

5 Way to Collect Damages

1. Property Damage 2. Injury 3. Medical Bills 4. Loss of Wages 5. Pain and Suffering

3 Defenses to Defamation

1. Truth 2. Free Speech 3. Legislative/Judicial Privilege Injury to reputation or mental

Strict Liability in Tort

1. Wrongdoer was selling a product such as defective one 2. Sold products in defective condition 3. Unreasonably dangerous 4. Defect existed when left defendant's hand 5. Sustained physical harm or property damage 6. Condition was proximate cause to injury

Jury Deliberation

5th Step

Fraudulent Misrepresentation

A false statement, made with knowledge of its falsity, intended to induce another to act

Licensee

A person on another's land for her own purposes but with the owner's permission

Invitee

A person who has a right to enter another's property because it is a public place or a business open to the public

Defamation

False communication that injures a person's reputation Libel - Written Slander - Oral

Trespass

Going or remaining on the land of another without permission

6th Amendment

Guarantees the right to a trial by jury in criminal cases

7th Amendment

Guarantees the right to trial by jury in civil cases

Strict Liability

Held liable for injuries caused even though not acting intentionally or negligently Absolute liability if: Performing abnormally dangerous activities - 1 Keeping wild animals 2 Impound/Retention of Water 3 Mining, Blasting Explosives 4 Spraying Pesticides/Insecticides *SAME DEFENSES AS NEGLIGENCE*

Voir Dire

Jury selection process of questioning prospective jurors, to ascertain their qualifications and determine any basis for challenge. 1st Step

Proximate Cause

Legal cause; exists when the connection between an act and an injury is strong enough to justify imposing liability.

Pre-Trial Conference

Mediation - neutral non-binding third-party Arbitration - binding third-party

Defenses to Strict Liability

Misuse/abuse of Product* Contributory Comparative Assumption of Risk

Motions at Trial

Motion for Directed Verdict - judge makes decision instead of jury Motion for Judgement N.O.V. - judge disregards jury's verdict and uses own judgement Motion for New Trial - losing party

Pre-Trial Motions

Motion to Compel - documents, etc. not given Motion for Protective Order Motion for Summary Judgement - court makes decision Motion in Limine - keeps out irrelevant/prejudicial facts

Palsgraf v. Long Island Railroad

Negligence Proximate Cause held. The Cause of the Injury had to be closely related to the actions of the Tortfeasor. Even if the ultimate Cause, if it is too remote from the Injury, then it the Tortfeasor is not Liable

Intentional Interference with Business Relationship

No contract but loss of business

Negligence

Omission from exercising reasonable care A (legal) duty Breach of duty Cause (Cause-in Fact and Proximate Clause) Damages/Injury

Opening Statement

Plaintiff first then defendant 2nd Step

Present the Case

Plaintiff first then defendant Direct and Cross-Examination 3rd Step

Closing Statements

Plaintiff then defendant 4th Step

Burden of Proof in Civil Case

Preponderance of the evidence

Answer

Procedurally, a defendant's response to the plaintiff's complaint. Affirmative - defenses to negligence Counterclaim - countersue Crossclaim - sue another person who might be responsible

Disparagement of Property

Publication (communication) of untrue statements that ridicule the business, product, or its quality Real Property - land and anything attached to it

Cause-in Fact

The actual cause of an event; the instrument that is the responsible force for the occurrence of a certain event. A required element of a tort. USES "BUT-FOR" TEST

Service of Process

The delivery of the complaint and summons to a defendant.

False Imprisonment

The intentional confinement or restraint of another person's activities without justification

Appeal

Affirm the decision - uphold Reverse the decision - overturn Reverse and remand - overturn and send back to court Reverse and render - overturn and substitute new judgement

Superseding Cause

An intervening cause that was either itself criminal or was legally unforeseeable, such that defendant's liability for the ultimate harm is superseded

Jury Verdict

Decision of Jury 6th Step

Infliction of Emotional Distress

Extreme and outrageous conduct intentionally or recklessly causing severe emotional distress

Judgement

Court either adopts/approves jury verdict or judgement notwithstanding (Motion of Judgement N.O.V.) 7th Step

Burden of Proof in Criminal Case

Beyond a reasonable doubt

Tort

Civil wrong or personal injury

Contributory Negligence

Conduct on the part of the plaintiff that is a contributing cause of injuries; a complete bar to recovery of damages.

Defenses to Battery

Consent Self-defense Defense of Others Defense of Property Excuse *CAN USE DEADLY FORCE TO DETER DEADLY FORCE WITH DEFENSE OF OTHERS/SELF*

Conversion

Intentional exercise of control over another's personal property

Battery

Intentional infliction of harmful or offensive bodily contact 1. Intentional 2. act/action/conduct 3. harmful/offensive contact 4. injury

Interference with Contractual Relations

Intentionally causing one of the parties to a contract not to perform

Duty

To act the same or similar to another in similar circumstances

Assault

Unlawful attempted battery; intentional infliction of apprehension of immediate harm MENTAL RATHER THAN PHYSICAL, KNOWLEDGE OF THREAT (REASONABLE FEAR) 1. Intentional 2. act/action/conduct 3. produces a fear 4. immediate/imminent 5. harmful/offensive contact 6. injury