MGMT 200 Quiz 3 Shit

Tort

an injury or wrong committed with or without force against another person or a person’s property; a civil wrong that is a breach of a legal duty

3 Groups of Torts

Negligence, intentional, strict liability

Tort Action

party whose interests have been injured sues the party allegedly responsible

Punitive Damages

awarded in addition to compensation; punish defendant

Negligence

the failure to do something that a reasonable person, guided by the ordinary considerations that regulate human affairs, would do or the doing of something that a reasonable person would not do.

Due/ordinary care

the degree of care that a reasonable person can be expected to exercise to avoid harm reasonably foreseeable if such care is not taken.

Omission

a failure to do something, especially a neglect of duty; leaving something out that may be critical to a decision.

Gross negligence

a conscious and voluntary disregard for the need to use reasonable care, likely to cause foreseeable injury or harm to person, property, or both.

Reasonable person

the standard which one must observe to avoid liability for negligence; often includes the duty to foresee harm that could result from certain actions.

Causation

the causing or producing of an effect; in law, something that may be related to legal consequences.

Res Ipsa Loquitur

“the thing speaks for itself;” given the facts presented, it is clear that the defendant’s actions were negligent and were the proximate cause of the injury incurred.

Squish La Fish v Thomco

Adopted the negligent misrepresentation exception; reversed and remanded the decision; held that Thomco could be liable for negligent misrepresentation

Cause in Fact

an act or omission without which an event would not have occurred. Courts express this in the form of a rule commonly referred to as the “but for” rule: the injury to a person would not have happened but for the conduct of the wrongdoer.

Sine Qua Non

“without which not;” an indispensable thing; something on which something else relies upon.

Proximate cause

in tort law, the action of the defendant that produces the plaintiff’s injuries, without which the injury or damage in question would not have existed.

Palsgraf v Long Island Railroad Company

Reversed judgment; no negligence; no proximate cause

substantial factor test

a standard adopted in several states in place of proximate cause; a jury may hold a defendant liable in tort if it finds that defendant’s conduct was a major cause of the injury in question.

Mitchell v Gonzales

substantial factor test

intervening conduct

in tort, an independent cause that comes between the original wrongful act and the injury that relieves liability that would otherwise exist for the original act; a legal break in the causal connection.

superseding cause

the act of a third party, or an outside force, that intervenes to prevent a defendant from being liable for harm to another due to negligence.

danger invites rescue doctrine

the principle that a tortfeasor who is liable for endangering a person is also liable for injuries to someone who reasonably attempted to rescue the person in danger.

assumption of risk

common-law doctrine under which a plaintiff may not recover for the injuries or damages that result from an activity in which the plaintiff willingly participated. A defense used by the defendant in a negligence case, when the plaintiff had knowledge of the danger, was voluntarily exposed to the danger, and was injured.

liability waiver

in that a party contracts to waive certain tort rights that may otherwise exist against another party; these can be valid if limited in scope and the risks involved are clearly understood by the party who agrees to the waiver, which is found to be reasonable by the court.

exculpatory clause

a part of a contract that releases one of the parties from liability for their wrongdoings; not favored at laws

contributory negligence

as a complete defense to negligence, an act or a failure to act that produces a lack of reasonable care on the part of the plaintiff that is the proximate cause of the injury incurred.

Schuemann v Menard

affirmed the decision that Menards was not negligent

comparative negligence

a defense to negligence whereby the plaintiff’s damages are reduced by the proportion the plaintiff’s fault bears to the total injury suffered.

intentional torts

a wrong committed upon the person or property of another, where the actor is expressly or impliedly judged to have intended to commit the act that led to the injury.

tortfeasors

person who commits torts

major categories of intentional torts

Assault, Battery, False Imprisonment or False Arrest, Emotional or Mental Distress, Invasion of Privacy, Defamation: Libel and Slander

assault

intentional conduct directed at a person that places the person in fear of immediate bodily harm or offensive contact

battery

unlawful touching, which is intentional physical contact without consent

Fuerschbach v SW Airlines

Reversed summary judgment for defendants; held that she could sue them for assault and battery

consent

when the injured party gave permission to the alleged wrongdoer to interfere with a personal right.

privilege

the ability to act contrary to another’s legal right without that party having legal redress for the consequences of that act; usually raised as a defense.

self defense

a privilege based on the need to allow people who are attacked to take steps to protect themselves. The force allowed is that which a reasonable person may have used under the circumstances

false imprisonment

also called false arrest; the intentional detention or restraint of an individual by another.

harder v edwards

counterfeit checks; reversed decision; remanded court and established that probable cause was evident

mental distress

a tort action for damages to compensate a person for mental injury suffered due to another’s actions.

lawler v montblanc

decision affirmed; montblanc won and lawler was not under sufficient emotional distress

invasion of privacy

a person’s right to solitude and to be free from unwarranted public exposure

is invasion of privacy tort available to business entities?

no; only persons

brown v showtime

violation of privacy; motion to dismiss by the company

defamation

intentional false communication that injures a person’s reputation or good name

absolute privilege

an immunity applied in those situations where public policy favors complete freedom of speech

conditional privilege

a defense in defamation cases affirming that the defendant published in good faith or as part of a duty to publish; it protects the defendant in a case that may otherwise be actionable.

constitutional privilege

speech that is protected by the First Amendment; generally applies to members of the media attempting to protect news sources; also applies to comments made about public officials or public figures, who have reduced rights to sue for defamation for comments made about them

actual malice

the intentional doing of a wrongful act, without a legal excuse, with the intent to inflict injury.

trespass

an unauthorized intrusion upon the property rights of another

smith v kulig

smith died after trespassing; decision was affirmed; trespasser is not owed a duty of care

private nuisance

an activity that substantially and unreasonably interferes with the use and enjoyment of someone’s land

public nuisance

unreasonable interference with a right held in common by the general public

trespass to personal property

The intentional and wrongful interference with possession of personal property of another without consent

conversion

the unauthorized taking of property, permanently or temporarily, that deprives its rightful owner of its lawful use.

misappropriation

an unauthorized taking of another’s property that denies the rightful owner the full use an benefit of the property.

premises liability

an intentional tort, or a tort based on negligence, when the owner or party with responsibility for maintaining certain property fails to provide adequate safety for visitors to the property against criminal attacks or accidents.

invitees

a person who has an invitation, express or implied, to enter on to another’s premises, such as a business visitor.

reyes v brookshire

summary judgment after reyes slipped on a caution sign

NYT v Sullivan

established actual malice standard; freedom of press

Giulani Defamation Case

made false statements about the election votes; ordered to pay $148 million in damages to the defamed workers

fraud

an intentional misrepresentation of a material fact designed to induce the person receiving the mis-communication to rely upon it to that person’s detriment, so that a loss is suffered.

elements to determine fraud or intentional misrepresentation

misstatement of material fact, intent to defraud, privity between parties, intent to induce reliance on false information, causation, scienter, and damages must be caused by it

misstatement

false information was presented as fact

material fact

information that is substantially relevant to the consideration of a contract or to securities or to the decision made in a trial.

scienter

usually meaning that the defendant knew that the act in question was illegal

privity

a legal relationship between parties, such as between parties to a contract.

causation

logical link between reliance on the misstatement and the losses that were suffered by the plaintiff. That is, there must be proximate cause

interference with contract

a tort in which there is a valid contract, and the defendant knew of the contract but intentionally caused a breach of the contract, resulting in damages to the plaintiff

interference with prospective advantage

tort where there is an intentional and unjustified intervention with a relationship that a party had been developing with others in an effort to obtain new business or more business

product liability

a general category of cases in which the producer or seller of products may be held responsible to buyers, users, or innocent third parties, who suffer injuries due to defects in the goods

privity of contract

relationship that exists between contracting parties

caveat emptor

“let the buyer beware.”

MacPherson v Buick

eliminated the privity requirement and held a manufacturer liable in tort for negligence for a product-related injury to a consumer despite the lack of privity

reasonable care

the degree of care that a person of ordinary prudence would use in the same or similar circumstances or in the same line of business.

strict liability

a legal theory that imposes responsibility for damages regardless of the existence of negligence; in tort law, any good sold that has a defect that causes injury leads to the imposition of liability.

warranty

a manufacturer’s assurance that a product will meet certain quality and performance standards

express warranty

when the manufacturer provides performance promises to the consumer so they are part of the contract for sale

implied warranty

when the law inserts quality standards into the relationship regardless of the formal contract terms

misrepresentation

words or conduct by a person to another that, under the circumstances, amount to a false statement.

failure to warn

in product liability cases, when a producer is found liable in tort for not warning consumers of dangers the producer knew existed or should have known existed.

design defect

in product liability litigation, a claim that a consumer suffered an injury because a safer product design was not used.

unknown hazards

dangers that were not known or not fully appreciated at the time the product was manufactured

joint and several liability

liability that a person or business either shares with other tortfeasors or bears individually.

bulk supplier doctrine

when a supplier sells a product to an intermediary in bulk, the supplier can discharge its duty to warn the ultimate users if it provides adequate instructions to the distributor next in line, or determines that the intermediary party is adequately trained in the use of the product

sophisticated user

a defense that when a manufacturer sells a product to a sophisticated buyer, such as another manufacturer, the purchaser is responsible for instructing its employees about the dangers in using the product.

ultrahazardous

a rule that when an activity involves a risk of serious harm, such as the use of explosives or toxic chemicals, strict liability will be imposed when any harm is caused to other persons or property.

Johnson & Johnson Case

knowingly included asbestos, a cancer causing ingredient in baby powder; billions in dollars awarded

special damages

damages claimed and/or awarded in a lawsuit which were out-of-pocket

costs directly as the result of the negligence or other wrongful act by the

defendant

general damages

compensate the claimant for the non-monetary aspects of

the specific harm suffered. This is usually termed 'pain, suffering.

Can punitive damages be awarded in contract disputes

No, only under tort law when defendant’s conduct was egregiously insidious

Limit to punitive damages

No limit

Amazon third-party seller case

third party sellers on amazon leads to liability issues for amazon

McDonald’s Coffee Case

Spilled coffee on herself; punitive damages were included (revenue of 2 days worth of coffee sales) 2.7 million

Class Action

Multiple injured persons, who are similarly situated* (e.g. suffered the same

harm), can all be plaintiffs in a single lawsuit, rather than filing hundreds or

even thousands of separate suits

negligence per se

Violation of a statute, or ordinance rule

actual cause test

Would the injury have occurred “BUT FOR” the defendant’s

proximate cause

the true cause which, in a natural, predictable,

and continuous sequence, caused the injuries

social policy

We don't hold people liable for unpredictable and

unexpected consequences of their actions.

foreseeability

exists when a reasonably prudent person would be

able to reasonably foresee their conduct as injuring others.

Professional liability (malpractice)

The failure to use that degree of care, learning, and skill ordinarily possessed

and applied by the average prudent member of the profession (and sometimes “in

the same locality”