IBT Unit 4/5
Assumption of the risk
- if plaintiffs are aware of a danger, but decide to subject themselves to that risk, that is a defense Cannot recover damages
Steps in a civil trial
1. Filing complaint 2. Answer 3. Research by attorneys 4. Call to order by bailiff and naming the case 5. Jury selection 6. Swearing in of jury 7. Opening statement by Plaintiff 8. Opening statement by Defendant 9. Swearing in of witness 10. Direct examination of Plaintiff Witness #1 11. Cross examination of Plaintiff Witness #1 12. Direct examination of Plaintiff Witness #2 13. Cross examination of Plaintiff Witness #2 14. Direct examination of Plaintiff Witness #3 15. Cross examination of Plaintiff Witness #3 16. Direct examination of Defense Witness #1 17. Cross examination of Defense Witness #1 18. Direct examination of Defense Witness #2 19. Cross examination of Defense Witness #2 20. Direct examination of Defense Witness #3 21. Cross examination of Defense Witness #3 22. Closing argument by Plaintiff 23. Closing argument by Defendant 24. Rebuttal by plaintiff 25. Judge's instructions to jury 26. Choosing jury foreperson 27. Jury deliberations 28. Jury announces decision 29. If verdict is responsible, damages are to be decided later. This is a bifurcated trial. 30. If verdict is not responsible, case dismissed
Becky borrowed some movies from Maurice and forgot to return them. Two months later, Becky's mom cleaned house and had a yard sale and sold those movies. Does Maurice have any legal recourse in this matter? Is Becky or her mom considered the offender?
21. No. Becky and her mother were not negligent.
A threat with an apparent ability to do immediate injury is referred to as (a) an assault, (b) battery, (c) defamation, (d) an invasion of privacy
A
A tort is (a) an offense against an individual, (b) an offense against society, (c) both a and b, (d) none of these
A
The most common example of vicarious liability is (a) an employer for the acts of employees, (b) a parent for the acts of the child, (c) both a and b, (d) none of these
A
Which of the following would probably not be considered strict liability? (a) raising tulips, (b) raising tigers, (c) selling defective car seats, (d) storing several 100 gallon tanks of propane gas in your garage
A
What is the difference between the elements of a crime and the elements of a tort?
Crime - duty, breach of duty, intent. Tort - Duty, Breach, Injury, Causation
How Do Crimes and Torts Differ?
Crime is an offense against society-a public wrong Tort is against individual
16. Some constitutional rights to due process are (a) the right to cross examine, (b) the right not to testify against oneself, (c) the right to be represented by a lawyer, (d) all of these
D
20. Consequences based reasoning first looks for alternative ways to alter the current situation and then (a) describes the consequences flowing from each alternative, (b) selects the standard for judging the alternatives' consequences as right or wrong, (c) counts the number of persons affected by the possible alternatives, (d) all of these
D
A written accusation declaring that there is sufficient evidence to try the identified individual for a specified crime is called a(n) (a) subpoena, (b) citation, (c) Miranda warning, (d) indictment
D
Civil juries have (a) to crossȬexamine witnesses, (b) to unanimously make a decision, (c) to be subpoenaed, (d) to review evidence
D
Ethics is making a decision (a) that is reasoned, (b) that is impartial, (c) about a right or wrong action, (d) all of these
D
Which of the following is not a defense to the tort of negligence? (a) assumption of the risk, (b) contributory negligence, (c) comparative negligence, (d) fraud
D
Which of the following is not an example of a business related crime? (a) arson, (b) conspiracy, (c) extortion, (d) murder
D
Remedy for torts
Damages Seeks to make wrong-doer absorb the loss Aims to deter anti-social behavior - Emphasis is on personal responsibility
Sale of Dangerous Goods
Defective goods that cause an injury can lead to strict liability for seller and manufacturer. Strict liability ensures that the injured party will receive damages because negligence may be hard to prove.
Ownership of Dangerous Animals
Domesticated animals (dogs, cats, cows, horses) are not considered dangerous unless owner knows this is true Fighting Dogs Dangerous animals include (bears, tigers, snakes, elephants, other exotic/dangerous animals) If there is an injury resulting from a dangerous animal, then the owner is held strictly liable.
Elements of a Tort
Duty Breach Injury Causation
Trespass to Land
Entry onto the property of another without the owner's consent Dumping trash/rubbish on the land of another Breaking the windows of a neighbor's house Intent is required to commit the tort of trespass Thrown into someone's yard = no trespass Climb a fence = trespass
3. Often a mediator is brought in to negotiate a binding settlement between parties (T/F)
F
5.In a criminal proceeding, the accused may elect to plead guilty to the charges at any time (T/F)
F
6.If a jury is to be used in a civil trial, it is selected in almost the same way as in a criminal trial. (T/F)
F
8. If someone is killed during a felony, the accomplices are not guilty of the homicide (T/F)
F
A causal connection between the duty and the breach of the duty is called causation (T/F)
F
A violation of the duty need not be proved before the injured party can collect damages (T/F)
F
All torts require that the breach of duty be intentional (T/F)
F
All torts require that the defendant intended to injure the plaintiff (T/F)
F
An arbitrator's decision, unlike that of a mediator, is not binding on the parties
F
Answers are typically filed in order to call defendants to court. (T/F)
F
Battery and negligence are intentional torts (T/F)
F
Helping someone to commit a crime, but not actually taking an active part in the crime itself, relieves the person from all responsibility
F
Obscenity is determined by applying a nationwide standard.
F
Respondeat superior is the first person to respond to a lawsuit (T/F)
F
Small claims courts deal with children under the age of 16
F
The four elements of a tort are duty, breach, injury, and criminal intent. (T/F)
F
Under tort law, the duty not to injure another includes bodily harm, but not the harming of someone's reputation. (T/F)
F
When the state has proved beyond a reasonable doubt that the defendant is guilty, there is no possible defense to escape liability.
F
When there is a jury, the judge decides the issues of both law and fact (T/F)
F
in civil cases there is always a right to a trial by jury.
F
Common Intentional Torts
Assault Battery False Imprisonment Defamation Invasion of privacy Trespass to Land Conversion Interference with Contractual Relations Fraud
18. SelfȬdefense, criminal insanity, and immunity are all examples of (a) procedural defenses, (b) substantive defenses, (c) both a and b, (d) none of these
B
An unlawful or harmful touching is called (a) an assault, (b) battery, (c) defamation, (d) an invasion of privacy
B
Which of the following compels a witness to appear in court and testify? (a) the complaint, (b) the subpoena, (c) the tort, (d) the verdict
B
Which of the following is not an element of most torts? (a) causation, (b) conspiracy, (c) injury, (d) violation of a duty
B
17.Criminal liability may be avoided by producing evidence to support a (a) procedural defense, (b) substantive defense, (c) either a or b, (d) none of these
C
A complete defense for slander and libel must show that the statement is (a) false, (b) injurious to one's reputation, (c) true, (d) none of these
C
A converter may be (a) a thief, (b) the innocent buyer of stolen goods, (c) both a and b, (d) none of these
C
A duty to do or not to do a certain thing, an act or omission in violation of that duty, and criminal intent are elements of a (a) trial, (b) tort, (c) crime, (d) none of these
C
Elements of a tort are (a) duty and breach, (b) injury and causation, (c) both a and b, (d) none of these
C
In a jury trial, who decides issues of fact? (a) the defendant, (b) the judges of the appellate court, (c) the jury, (d) the trial judge
C
19. Monetary awards to the injured party to compensate for loss are often called (a) actual damages, (b) compensatory damages, (c) both a and b, (d) none of these
CV
Defenses to Negligence (types)
Contributory negligence Comparative negligence Assumption of the risk In several states the plaintiff cannot recover for loss caused by another's negligence if they too were negligent
Assault
Occurs when one person intentionally puts another in reasonable fear of an offensive or harmful bodily contact Biggest thing to remember it is only the presence of a threat...not the action itself (word or gestures, physical threat, offensive threat) Words or gestures Must be believable Person must have ability to carry out threat Can be physical Raising a fist and threatening to strike someone Can be offensive Person can threaten unwanted sexual touching by attempting to kiss you
Battery
Occurs when someone engages in harmful or offensive touching Shooting, pushing in anger, spitting on, punching Usually follows directly behind an assault - Raising a fist (assault) and hitting somebody (battery) - No assault if they cannot see the threat coming - No battery if it is unintentional or agreed to (boxing)
Conversion
Property is stolen, destroyed, or used in a manner inconsistent with the owner's rights Thief is always a converter Even occurs when the converter does not know there is a conversion Innocent buyer of stolen goods Reward for conversion is usually damages or repayment for goods
Different levels of causation
Proximate cause - when the amount of causation is great enough for it to be recognized by the law - Exists when it is obvious that a breach of duty will result in an injury
10. All persons, including minors, are liable for their torts. (T/F)
T
7.Crimes can be classified as felonies or misdemeanors. (T/F)
T
A person who commits a tort may be sued for money damage (T/F)
T
An employer can be held liable for the actions of an employee. (T/F)
T
An individual who commits a reckless act without causing injury will probably not be convicted of a tort. (T/F)
T
Children and insane persons can be held liable for injuring others. (T/F)
T
Conspiracy is a crime separate from the crime the parties planned to commit.
T
Contributory negligence is a defense to the tort of negligence (T/F)
T
Crimes are offenses against society and torts are offenses against individuals
T
Money damages received as a result of a tort is intended to compensate for the injury (T/F)
T
Most tort duties are defined by state law (T/F)
T
Punitive damages are always available where an intentional tort has been committed. (T/F)
T
The longȬarm statutes require a nonȬresident to come to court in the state in which the case is filed
T
Torts based on carelessness are classified as negligence. (T/F)
T
Torts that are not based on intent or carelessness are classified as strict liabilities. (T/F)
T
With fundamental ethical rules, the acts themselves are judged as right or wrong.
T
Engaging in Abnormally Dangerous Activities
Target practice, blasting, crop dusting w/dangerous chemicals, storing flammable liquids in large quantities all give rise to strict liability cases If you engage in activities like this and someone is injured, then you will be held strictly liable.
Phyllis was charged with running a red light and colliding with Adam's vehicle, which was in the intersection. Phyllis argued that the light was green, and she produced her best friend who was in the car with her to testify on her behalf. Phyllis also argued that the law should not find her responsible for the accident because Adam had a chance to avoid the accident, but failed to slow down when he saw her in the intersection. Which argument will the judge decide and which will the jury decide?
The judge will decide whether Phyllis is liable because that is an issue of law. The jury will decide whether the light was red, because that is an issue of fact.
28. When a party claims an error was made during the previous proceedings, the lower court decision is reviewed by ___________________
an appellate court
Comparative negligence
applies when a plaintiff in a negligent action is partially at fault Plaintiff is awarded damages, but they are reduced in proportion to the plaintiff's negligence If plaintiff's negligence is determined to be higher, they receive nothing
4. Tort where a threat to harm or offend is made
assault
An intentional tort where one person threatens to physically or offensively injure another
assault
8. Type of negligence defense where the plaintiff knows of the danger
assumption of risk
A type of negligence where the plaintiff knowingly subjects himself to danger
assumption of the risk
6. Tort that involves harmful or offensive touching of another person
battery
An intentional tort that involves harmful or offensive touching of another
battery
Contributory negligence
both people were at fault Ex: Car wreck where one person is speeding and the other person did not put on their turn signal Both made a mistake and were negligent of their driving duties, so neither could recover damages
Negligence
breach of duty occurs because of carelessness
A violation of duty is called a(n) _________
breach,
The proof that a breach of duty caused an injury is called______________
causation,
5. Type of negligence where damages are proportionately awarded to the plaintiff
comparative
10. Type of negligence where the plaintiff partially caused the injury
contributory
9. Tort that involves theft or destruction of another's property
conversion
A tort that occurs when personal property is stolen
conversion
A monetary award given to the injured party to compensate for loss
damages
A monetary award intended to compensate the injured party for harm done to him or her
damages
Remedies available in civil lawsuits (2)
damages (monetary payments made by the defendant for the purpose of compensating the victim for their injuries, losses, and pain/suffering) Restitutionary Remedies- allows the victim to recover personal property that they may have lost. Property Lien. Ejectment. Equitable Remedies - These are available where monetary damages will not adequately restore the victim to wholeness. These can include: Temporary Restraining Order
11. False statement that injures another's reputation
defamation
A false statement about a person that injures their reputation
defamation
Involves taking depositions from parties and witnesses
discovery
One of the most significant amendments, the Fifth amendment, states "No persons shall be ... deprived of life, liberty, or property, without ______________.
due process of law
What is a legal obligation to do or not do something?
duty,
Any object a judge allows to be presented to the jury that helps prove or disprove a case
evidence
A tort in which a person is deprived of freedom of movement
false imprisonment
3. Crime of intentionally misrepresenting an existing fact
fraud
An intentional misrepresentation of an existing fact
fraud
29. Crimes that are based upon the victim's race, sexual orientation, race, or religion are referred to as__________________
hate crimes
A court order for a person to do or not do a particular act
injunction
What is a harm that is recognized by the law?
injury,
32. The capacity to do what is right even in the face of temptation or pressure to do otherwise is called
integrity
Malice-
intention or desire to cause harm or pain to somebody
Intentional Torts
intentional breach of duty
Courts require the breach in intentional torts to be ___________
intentional,
The final result of a trial
judgment
Strict Liability
liability imposed simply because a duty was violated and this caused injury
Damages
monetary award intended to compensate the injured party for the harm done to her/him Meant to restrain injured person from exacting revenge
What kind of tort is based on carelessness?
negligence
A brief outline of what the defendant and the plaintiff will try to prove
opening statements
31. In deciding a civil case, jurors use the Standard oF
preponderance of the evidence
Deals with the methods of enforcing legal rights and duties
procedural law
Causation
proof that the breach caused injury Means that the breach of the duty caused the injury
What term means that the amount of causation is great enough for it to be recognized by law?
proximate cause
A monetary award that is set high enough to punish the defendant
punitiveȱȱ damages
The duty to act with care and good judgment
reasonableȬ person standard
1. Another name for spoken defamation
slander
Cut off consumers' right to sue for defects in design of products after a certain time
statutes of repose
7. Type of liability that holds the defendant liable for engaging in an activity that resulted in an injury
strict
A type of liability that makes the defendant liable if he or she engaged in an activity that resulted in injury
strict
What kind of tort involves neither intent nor carelessness?
strict liability,
A court order issued to a defendant to appear in court and answer the complaint
subpoena
A court order issued to a defendant to appear in court to answer a complaint
summons
Statements made by witnesses under oath
testimony
Breach, Causation, and Injury
the act that brakes the reasonable person standard Violation of the duty must be the proximate cause of the injury What is proximate cause? When the amount of causation is great enough for it to be recognized by the law
Slander
the defamation is spoken Must show that you have suffered an actual physical loss or damages as a result of the slanderous remark Exceptions occur in cases where the oral statements are to the effect that the plaintiff committed a serious crime, has a loathsome disease, or injures someone in their profession or business
Libel
the defamation is written You are presumed to have suffered a loss and so these damages do not have to be shown in court
Respondeat superior
the principal/ employer accountable for the acts of its agent/employee
What is a private or civil wrong?
tort,
Intentional Torts
torts in which defendant possessed the intent or purpose to inflict the resultant injury
2. Tort in which property is entered without the owner's consent
trespass to land
A tort in which another's property is entered without their consent
trespass to land
The decision of a jury
verdict
What kind of liability occurs when one person is liable for the torts of another?
vicarious,
Vicarious liability
when one person is liable for the torts of another Ex: Parents can be liable for children's torts if they do not stop dangerous behavior or if they provide children with "dangerous instrumentalities"
A person who has personal knowledge of the facts of a case
witness
Interference with Contractual Relations
When a third party encourages the breach of a contract resulting in losses by one or both of the contracting parties Third party can be held liable for the tort
Fraud
When there is an intentional misrepresentation of an existing important fact Misrepresentation must be relied on and cause the victim to part with a legal right or something valuable
Can one act can be a tort and a crime?
Yes. Must commit a crime against society as a whole and cause harm to an individual
Regardless of whether or not she tries to resolve the problem within the school's administration, has Chanelle received a personal injury for which she could bring suit in court?
Yes. In the various incidents, she has been the victim of civil assault and batteries. These are intentional torts for which she can bring suit and recover actual and punitive damages.
Injury
a harm that is recognized by the law must be proved If you act recklessly, but nobody is injured then there is no tort "No harm, no foul"
Duty
a legal obligation to act or not to act You have certain duties related to respecting the right of others 1. The duty not to injure another (includes bodily injury, injury to reputation, or invasion of privacy) 2. The duty not to interfere with the property rights of others (ex: by trespassing on their land) 3. The duty not to interfere with the economic rights of others, such as the right to contract
tort
a private or civil wrong - offense against an individual
30. Duty, breach, injury, and causation are all elements of
a tort
Breach
a violation of that duty must be proved before the injured party can collect damages Almost always for a jury to decide
Responsibility for Torts
All persons, including minors, are personally responsible for their conduct and are therefore liable for their torts Children Insane People Notice the difference between criminal liability and tort liability....children and insane people might get off for crimes, but can still be held liable for any civil damages
11. Josh is a 16 year old lifeguard at Sunset County Golf Course. He gives swimming lessons to children while their parents are golfing. Josh is to make sure that no one dives into the pool from the side. Josh failed to warn a new girl named Juanita about this danger. Juanita sustained a serious neck injury when she hit her head on the concrete bottom of the pool. Who is liable for Juanita's injury? Explain your answer.
Josh is liable even though he is only 16. Josh's employer can also be held liable for his negligence
Strict Liability
Liability that exists even though the defendant was not negligent Makes the defendant liable if he or she engaged in a particular activity that resulted in an injury Proof of both the activity and the injury substitutes for proof of a violation of duty
What parties would not be held to criminal intent?
Insane persons are not held responsible for their criminal acts Minors
Torts classified in three ways:
Intentional Torts - Negligence - Strict Liability
False Imprisonment
Intentional confinement of a person against the person's will and without lawful privilege Must have probable cause to arrest someone, without it you are falsely imprisoning someone
What Constitutes Negligence?
Most common tort No intent is needed, just carelessness
Elements of Defamation
Must be three things to be defamatory - Be false - Be communicated to a third person - Bring the victim into disrepute, contempt, or ridicule by others Exceptions: Legislator's statements, judges, lawyers, jurors, witnesses, and other people in judicial proceedings Defamatory comments against public officials are allowed as long as there is no malice Truth is a complete defense Your reputation is not harmed if no other person hears or reads the lie
What is the most common tort?
Negligence No intent is needed, just carelessness
Carol, 14 year old daughter of Frank, let her friend Pat, who is also 14, drive her father's car without his knowledge. Pat swerved to avoid a dog and hit another vehicle head on, causing three fatalities. Can criminal charges be brought against Frank? Are Pat's parents liable in any way? If so, how?
No. The girls undertook an adult activity without permission or knowledge of either one's parents and they shall be held to the adult standard
Suppose Josh from Exercise 11 did not warn Juanita about diving from the side of the pool and she was not injured. Would Josh likely be guilty of a tort if Juanita's parents found out that she had not received this warning? Why or why not?
No. There is usually no tort unless an injury occurs.
Defamation
Occurs when a false statement injures a person's reputation or good name
Duty Imposed by Negligence
Reasonable-Person Standard Requires that you act with care, prudence, and good judgment of a reasonable person so as not to cause injury to others In court, jury or judge is asked how the reasonable person would have behaved under the same circumstances Children under the ages of seven are incapable of negligent conduct Older children are required to act with the care that a reasonable child of like age, intelligence, and experience would act If child partakes in adult activities (driving) they can be held to the adult standard Professionals and skilled tradespersons are held to a higher degree in their work Must work with the care of other professionals in their trade Held to the standard of your peers in the workplace and profession
Yoko's car slid on an icy interstate overpass. She lost control of her car and ran into a utility pole. She was uninjured, but her car sustained $4,000 in damages. Yoko intends to sue the state department of transportation for improperly maintaining the road. The transportation department did have a sign affixed to the overpass warning of its tendency to freeze before other road surfaces. Is the state department liable?
The state should claim the defense of assumption of the risk. Yoko was warned of the danger of crossing the overpass, but she subjected herself to the risk in spite of the warning sign.
Dr. Williams is a family dentist who is required to wear latex surgical gloves and a mask while working on her patients. These measures are taken to prevent the transmittal of communicable diseases. Recently, Dr. Williams purchased several cases of these gloves and masks from a large medical supplier. The administrators of the medical company are aware that they have sold some defective gloves. If Dr. Williams or any of her assistants contract a disease from their patients, what type of damages should they seek?
They could seek both compensatory and punitive damages against the medical supply company. It will be difficult for the court to determine the amount of compensatory damage because pain and suffering are hard to measure. The punitive damages should be high enough to punish the medical company for an intentional tort
Invasion of Privacy
Uninvited intrusion into an individual's personal relationships and activities Can cause outrage, mental suffering, and humiliation Includes freedom from unnecessary publicity regarding personal matters - True defamatory comments might defy right of privacy - Should be protected when you have a reasonable expectation of privacy Could be held liable for invasion of privacy if you told a true statement about someone's medical condition Includes freedom from commercial exploitation of one's name, picture, or endorsement w/out permission Bans illegal eavesdropping by any listening device, interference w/telephone calls, and unauthorized opening of letters/telegrams What is allowed? Police are permitted to tap telephone line secretly if they have a warrant Public figures give up much of their right to privacy when they take center stage or celebrity status
