Business Law Chapter 7

Negligence per se

"In or of itself". May occur if an individual violates a statute or an ordinance providing for a criminal penalty and that violation causes another to be injured. Statute must be designed to prevent the type of injury the plaintiff suffered, and it must clearly set out what standard of conduct is expected.

Modified comparative fault

50% rule. Plaintiff recovers nothing if he or she was more than 50% at fault. Can only recover if <49%.

Assumption of Risk

A plaintiff who voluntarily enters into a risky situation, knowing the risk involved, will not be allowed to recover. Requirements: knowledge of the risk, voluntary assumption of the risk

Contributory negligence

A plaintiff who was also negligent could not recover anything from the defendant. (only a few jurisdictions hold to this doctrine)

Dram shop acts

A tavern owner or bartender may be held liable for injuries caused by a person who became intoxicated while drinking at the bar or who was already intoxicated when served by the bartender.

Superseding Cause

An unforeseeable event may break the casual connection between a wrongful act and an injury to another. Relives a defendant of liability for injuries caused by the intervening event (a plane crash, debris falls on a person you hit by a car. You aren't usually responsible for the debris)

Prima Facie

At first sight. A fact that is presumed to be true unless contradicted by evidence

To succeed in a negligence action, the plaintiff must prove each of the following (4)

Duty, breach, causation, and damages

Comparative negligence

Enables both the plaintiff's and the defendant's negligence to be computed and the liability for damages distributed accordingly. Recovery may be reduced or prohibited.

Malpractice

If a professional violates his or her duty of care towards a client, the client may bring a suit against the professional, essentially professional negligence

Reasonable person standard

In determining whether a duty of care has been breached, the courts ask how a reasonable person would have acted in the same circumstances. It is not necessarily how a specific person WOULD act, it is society's judgment of how an ordinary person should act

Proximate Cause

Legal cause. Exists when the connection between an act and an injury is strong enough to justify imposing liability. Asks whether the injuries sustained were foreseeable or too remotely connected to the incident to trigger liability. Must determine that the defendant's actions had proximate cause to the plaintiff's injury or there is no causation.

Strict Liability

Liability without fault. A person who engages in certain activities can be held responsible for any harm that results to others even if the person used the utmost care. Extremely dangerous activities (blowing up a building) or owning dangerous animals.

Business invitees

Retailers and other firms that explicitly or implicitly invite persons to come onto their premises are usually charged with a duty to exercise reasonable care to protect these invitees

Duty of care

The notion that if we are to live in a society with other people, some actions can be tolerated and some cannot, and some actions are reasonable and some are not

Res Ipsa Loquitur

The presumption of the defendant's negligence is known as res ipsa loquitor. Defendant must prove he or she wasn't negligent.

Negligence

Tort occurs when someone suffers an injury because of another's failure to live up to a required duty of care. The tortfeasor doesn't want to bring the consequences of the tort, nor believes that they will occur.

Pure comparative negligence

Allows a plaintiff to recover damages even if his or her fault is greater than that of a defendant.

Causation in fact

Can be determined by use of the "but for" test: "but for" the wrongful act, the injury would not have occurred. Determines whether there was actual cause-and-effect.

Good Samaritan Statutes

Someone who is aided voluntarily by another cannot turn around and sue the "Good Samaritan" for negligence. (Doctor performs emergency surgery on the street, life-saving, can't sue for negligence)

"Danger invites rescue" doctrine

Someone who is trying to avoid harm (swerving to avoid a drunk driver) may end up causing harm to another (hitting a cyclist). Extends the same protection to the person who is trying to rescue another from harm - original wrongdoer is liable for injuries to the individual attempting a rescue.

Breach

That the defendant breached that duty

Duty

That the defendant owed a duty of care to the plaintiff

Causation

That the defendant's breach caused the plaintiff's injury

Damages

That the plaintiff suffered a legally recognized injury