Studied by 5 people
This a knowt for LEB (BADM 350) at Black Hills State University. Over chapters 6,7,8. Made 2023
What is a tort?
A civil wrong.
What makes a tort?
someone has a personal injury or property damage.
What is the remedy for torts?
Damages
There are two types of laws…
Criminal Law and Civil
Civil law torts includes…
property, insurance, family, wills and trusts, contracts
Civil torts includes (part 2) …
product liability employment law and TORT law.
What do you say instead of “guilty” in civil court?
Liable
What do you say instead of “not guilty” in civil court?
not liable
Is drunk driving a civil or criminal tort?
It is both. It overlaps.
How could you sue someone for drunk driving in civil law?
Negligence driving and damages.
How could you sue someone for drunk driving in criminal tort?
DUI and Impose penalty.
Compensatory Damages
compensated for actual lose.
Special Damages
quantifiable monetary losses
Example of special damages
hospital bills, loss of wages, ambulance ride, car damage
General damages are…
difficult to quanitfy
Example of Compensatory Damages
pain and suffering, mental distress, loss of enjoyment of life
Example of Compensatory Damages (part 2)
Disfigurement, loss of companionship and loss of consortium
Pain and Suffer is
the pain and suffering caused by the injury itself.
Mental distress is…
shock or fright or emotional distress.
Loss of enjoyment of life is…
injured person does not have the ability to participate in normal activities or everyday life.
Loss of Consortium is…
the loss of benefit from a family relationship
Loss of companionship is…
the same as loss of consortium.
Fines are…
Punitive Damages
Punitive Damages are…
awarded at trail as a way of punishing a wrongdoer.
Battery is…
an unauthorized harmful or physical contact with someone.
If you raise your fist at someone this would be considered…
assault.
If you punch someone this is considered…
battery.
How can you have battery charges with no assult charges?
The person attacked didn’t see the act of violence coming.
Battery can be…
direct or indirect.
Battery must be…
intentional.
If a person is consenting to a behavior that can get them hurt then…
there will be no damages.
Vicarious Liability is when…
if an employee commits a tort- the employer is liable for that.
False Imprisonment is…
detaining someone in an unreasonable way.
What does a business need to “imprison” someone?
reasonable grounds for suspicion.
What is another requirement for business to “imprison” someone?
It must be conducted in a reasonable manner for a reasonable time.
Intentional Infliction of Emotional Distress is…
intentional behavior that exceeds the boundaries of decency.
Intentional Inflection of Emotional Distress must be…
extreme emotional distress not just rude or offensive behavior.
Defamation also is…
slander that has malice
Defamation is…
harming someone’s reputation with false statements.
Frivolous Litigation is…
a lawsuit that has no sense in it orr not base for it
What is frivolous litigation?
It is someone abusing the legal system.
Negligence is…
a person liable for the harm that is the foreseeable consequences of his/her actions.
What are the four elements of neglience?
Duty of Care, Breach, Injury, and Causation.
What are the last two elements of negligence?
Injury and Causation.
Duty of Care is when the court must ask if…
the defendant owes a duty of care to the plaintiff.
Type of Duty of Care…
General Duty, Statutorily imposed dutt and duty imposed on professionals.
What is it called when a professional does not provide their duty of care?
Malpractice.
Breach is…
failure to act a reasonable person would have in similar circumstances.
What is the Reasonable Person Standard?
Objective, Careful and Conscientious.
What must a court do when deciding a defendant had a Breach in negligence?
Measure the defendant’s conduct against the reasonable person standard.
If a company policy for a business defers from the norm and someone is harmed as a result of that, this is called a…
Unreasonable policy— defined as a breach.
A person who commits a tort is called…
Tortfeasor
What are compensatory damages? W
Awarded to an injured party that compensate for damages, injury or incurred loss.
What is an intentional tort?
An intentional tort is a civil wrong resulting from an intentional act on the part of the tortfeasor.
What is a negligence tort?
is when harm is caused to a person by another failing to act as a reasonable person.
What is a strict liability?
the defendant may be held accountable even in the absence of demonstrable negligence or fault.
What is strict liability also known as?
Absolute liability
A plaintiff can sue for…
injuries or damage to property.
The plaintiff in a tort case is….
the injured person.
Walmart V McCann Case is a case where….
mom and kids were detained in Walmart. They sued for false imprisonment.
Intentional infliction of emotional distress is also called…
tort of outrage
What is the definition of libel?
Is written or broadcasted defamation.
What is slander?
Oral defamation.
In defamation cases, public figures have to prove…
actual malice.
What are the two requirements for assumption of the risk?
The part had knowledge and voluntarily took the risk.
What is the court case where a snow boarder crashed on a man made jump?
Shukoski V. Indianhead Mountain Resort
Why did Shukoski (in Shukosi V. Indianhead Mountain Resort Case) sue the resort?
because they believed the resort was negligent in creating a bad design for this man-made jump. aka “unnecessary terrain modifications”
What was Indianhead Moutain Resorts defence? (in Shukoski V. Indianhead Mountain Resort Case)
Assumption of the risk
Why did Indianhead Mountain Resort win the case V. Shukoski?
The slope Shukoski went on was labeled an expert slope and he had been on it several times before the incident that occurred— he accepted the dangers and risks.
What is contributory negligence?
prohibits victims from recovering compensation in a personal injury claim if they were even 1% responsible for their own injuries.
What is contributory negligence known for being?
a complete defense.
What is comparative negligence?
assigns blame and damages in accidents based the percentage at fault from each party.
Does South Dakota use contributory negligence or comparative negligence?
Comparative negligence.
For negligence, what is one question the court must ask about the case?
Was it foreseeable?
Res Ipsa Loquitur in latin means…
the facts speak for themselves
Case example of “Res Ipsa Loquitur”
A medical instrument accidentally left in a person’s body.
What is Res Ipsa Loquitur (definition)
Negligence is extremely obvious that the defendant has to try to prove they were not negligent.
What is the first category of causation?
Causation in fact
What is the second category in causation?
proximate cause.
What must happen to prove a causation of injury?
Must satisfy both categories.
Causation in Fact is when…
The defendant’s act was actual cause of the plaintiffs injury.
What is the BUT FOR Test?
but for the existence of X, would Y have occurred?
What is another phrase explaining the BUT FOR Test?
But for the negligent act the injury would not have occurred.
What is the proximate cause?
Was the risk of injury to the plaintiff foreseeable?
Proximate cause makes it so the defendant doesn’t…
necessarily always liable for all the damages “set in motion” by the negligent act.
Statute of Limitations is…
gives the plaintiff a certain amount of time in which to file a lawsuit (states varies)
When can a person not be able to sue a at fault party?
If the plaintiff misses the window for the statute of limitations.
Strict Liablity is…
certain activities are so abnormally dangerous that whoever is doing the activity must be prepared to compensate anyone who suffers injury as a result of the activity.
How could a product be liable for negligence?
Failure to warn and/or privity of contract.
Strict Liability for Products Liability could be…
1.Defect in manufacturing process 2. Defect in the design 3. Failure to warn.
A case example (for product liability) for defects in the manufacturing process
The Squirt Case (dead rat in soda can)
A case example (for product liability) for defect in the design
The Lawn Mower Case (the stopping mechanism for blades wasn’t designed well)
A case example (for product liability) for failure to warn.
The Hair Spray Case (not enough warnings about flammability)
What is product liability?
set of legal rules that gives victims a legal cause of action when they are injured by defective or dangerous products.
Who bears the law of strict product liability?
The sellers.
The first (1) requirement for strict product liability:
The product must be in a defective condition when the sellers sell it.
2nd (2) requirement for strict product liability:
The defendant must normally be engaged in the business of selling (or otherwise distributing) that product.
3rd (3) requirement for strict product liability:
The product must be unreasonably dangerous to the user or consumer because of its defective condition (in most states)
4th (4) requirement for strict product liability:
The plaintiff must incut physical harm to self or property by use or consumption of the product.
5th (5) requirement for strict product liability:
The defective condition must be the proximate cause of the injury or damage.
