BLAW EXAM 2

Intent

In tort law, intent does not require a hostile or evil motive. It is enough that the actor desires to cause the consequences of his act or even that he believes those consequences are substantially certain to result.

Battery

The intentional infliction of harmful or offensive bodily contact. The act of.

Assault

The intentional infliction of apprehension of immediate bodily harm or offensive contact. Threat.

False Imprisonment

Intentional interference with a person’s freedom of movement by unlawful confinement.

Infliction of Emotional Distress

Extreme and outrageous conduct intentionally or recklessly causing severe emotional distress.

Recklessness

Conduct that evidences a person’s conscious disregard of or an indifference to the consequences of the his or her act.

Defamation

This tort consists of injury to a person’s reputation by means of the unprivileged publication of a false statement.

Elements of Defamation

* The burden of proof is on the plaintiff to prove the falsity of the defamatory statement.
* There must be a publication, which is communication to a person or persons other than the one who is defamed.

Slander

Oral defamation.

Libel

Defamation that is communicated by writing, television, radio or the like.

Tort

A __wrongful__ act or an infringement of a right (other than under contract) leading to civil legal liability.

Privilege

* An immunity from tort liability.
* 3 kinds: Absolute, Conditional, Constitutional.

Absolute Privilege

Protects the defendant regardless of his motive or intent and applies to statements made:

* During a judicial proceeding,
* By members of Congress on the floor of Congress,
* By certain executive officers performing governmental duty,
* Between spouses when they are alone.

Conditional (Qualified) Privilege

Depends on proper use of the privilege, such as when a person publishes defamatory matter to protect his own legitimate interests or interests of others. It would also apply to letters of reference.

Constitutional Privilege

Applies to comments about public officials or public figures so long as the comments are made without malice.

Malice

Knowledge of the falsity or reckless disregard of the truth.

Appropriation

The unauthorized use of another person’s name or likeness for one’s own benefit constitutes the tort of appropriation.

Intrusion

Unreasonable and highly offensive interference with the seclusion of another.

Public Disclosure of Private Facts

Offensive communication to the public at large of private information about another person.

False Light

Offensive publicity placing another in a false light.

Defenses to Invasion of Privacy

Absolute, conditional, and constitutional privilege are the allowable defenses.

Malicious Prosecution and Wrongful Civil Proceedings

Impose liability for damages caused by improperly brought proceedings.

Abuse of Process

Consists of the use of a legal proceeding in order to accomplish a purpose for which the proceeding is not designed.

Real Property

Land and anything attached to it, such as buildings, trees, and minerals.

Trespass - Real Property

Wrongful entry onto another’s land.

Nuisance

Non-trespassory invasion of another’s interest in the private use and enjoyment of his land constitutes the tort of nuisance.

Personal Property

Any property other than an interest in land is considered personal property.

Trespass - Personal Property

An intentional dispossession or unauthorized use of the personal property of another.

Conversion

The intentional exercise of dominion or control over another’s personal property.

Interference with Contractual Relations

Intentionally, improperly causing one of the parties to a contract not to perform the contract.

Disparagement

Publication of false statements resulting in harm to another’s monetary interests.

Fraudulent Misrepresentation

A false statement made with knowledge of its falsity and with the intent to deceive.

Exemplary or Punitive Damages

Damages assessed in the legal process to punish a defendant for negligence.

Public Disclosure of Private Facts

A highly offensive disclosure by the defendant of private facts about the plaintiff.

Negligence

Conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm.

Elements of Negligence

1. breach of duty of care,
2. proximate cause,
3. injury.

Breach of Duty of Care

Occurs when the defendant fails to conform to the required standard of conduct established for the protection of others.

Reasonable Person Standard

This is an objective and external standard which is the duty of care required to avoid being negligent. It is imposed by law and measured by the degree of careful-ness that a reasonable person would exercise in a given situation. The reasonable person is a fictitious individual who is always careful and prudent and never negligent.

Children

To avoid negligence, they must conform to the standard of a reasonable person of like age, intelligence, and experience under like circumstances.

Physical Disability

A person who is ill or physically disabled must conform to the standard of a reasonable person under like disability.

Mental Deficiency

No allowance is made for insanity or other mental deficiency.

Superior Skill or Knowledge

A person who is qualified to practice a profession or trade that requires special skill and expertise is required to use the same care and skill normally possessed by members of that profession or trade.

Emergencies

In sudden, unexpected events that call for immediate action, the standard is that of a reasonable person under the circumstances—the emergency is considered part of the circumstances.

Violation of Statute

If a statute sets a reasonable person standard of conduct, the unexcused violation of it is negligence per se; that is, it is conclusive on the issue of negligent conduct.

Duty to Act

Except in special circumstances, no one is required to aid another in peril. Exceptions include situations where special relations between the parties exist and where a person’s conduct has injured another and left him helpless and in danger of further harm.

Duties of Possessors of Land

The right of possessors of land to use that land for their own benefit and enjoyment is limited by their duty to do so in a reasonable manner. The possessor of land is required to exercise reasonable care in carrying on activities on the land in order to protect others who are not on the property. The duty to persons who come on the land depends on whether that person is a trespasser, a licensee, or an invitee.

Duty of Trespassers

A person who enters or remains on the land of another without permission or privilege to do so. Except to children, there is no duty to maintain land in a reasonably safe condition for the benefit of trespassers.

But an owner cannot intentionally hurt a trespasser, and most courts hold that upon discovering the presence of trespassers, the lawful occupier of land must use reasonable care in carrying on his or her activities and warn trespassers of dangerous conditions that they are unlikely to discover.

Duty to Licensees

A licensee is a person privileged to enter or remain on land by the consent of the lawful possessor. Licensees include members of the household, social guests, and salespersons calling at homes.

The possessor must warn a licensee of dangerous activities and conditions that the possessor know of and which the licensee does not and is not likely to discover. Some states have extended to licensees the same protection traditionally accorded invitees. A number of states have included social guests in the invitee category.

Duty to Invitees

A person invited upon land as a member of the public or for a business purpose. The duty of the possessor is to exercise reasonable care to protect them against dangerous conditions they are unlikely to discover.

“Res Ipsa Loquitur”

This term means “the thing speaks for itself.” It permits the jury to infer both negligent conduct and causation from the mere occurrence of certain types of events.

It applies when the event is of a kind that ordinarily does not occur in the absence of negligence.

Proximate Cause

Judicially imposed limitations on a person’s liability for the consequences of his negligence. In strict liability cases the courts impose a narrower rule of proximate cause than they do for negligence cases.

Causation in Fact

The defendant’s negligence must be the actual cause of the plaintiff’s injury.

Unforeseeable Consequences

The Restatement and a majority of the courts have adopted the position that even if the defendant’s negligence is a cause in fact of the harm to the plaintiff, the conduct is not a proximate cause unless the defendant could have reasonably anticipated injuring the plaintiff or a class of persons of which the plaintiff is a member.

Superseding Clause

Intervening event or act that occurs after the defendant’s negligent conduct. It relieves the defendant of liability for harm to the plaintiff caused in fact by both the defendant’s negligence and the intervening event or act.

Injury

The plaintiff must prove that the defendant’s negligence proximately caused harm to a legally protected interest.

Contributory Negligence

Conduct on the part of the plaintiff that falls below the standard to which he should conform for his own protection and that is a legal cause of the plaintiff’s harm.

Comparative Negligence

* Damages are divided between parties in proportion to their relative fault.
* 12 states have a “pure” comparative negligence system under which a plaintiff recovers the percentage of total damages that is attributable to the defendant’s fault.
* Other states have adopted the “modified” comparative negligence doctrine which operates the same as “pure” comparative negligence, except a plaintiff recovers nothing if his or her negligence is 50% or more the legal cause of the harm.

Assumption of Risk

* Plaintiff who voluntarily and knowingly assumes the risk of harm arising from a defendant’s negligence cannot recover for such harm.
* Assumption of the risk may be express, such as an exculpatory contract.

Strict Liability

Based on any particular fault of the defendant, but rather on the nature of the activity in which the defendant is engaging.

Abnormally Dangerous Activites

This activity is one which:

* (1) necessarily involves a high degree of risk of serious harm to the person and/or property of others, which risk cannot be eliminated by the exercise of reasonable care, and,
* (2) is not a matter of common usage. Activities to which the rule has been applied include storing explosives or flammable liquids in large quantities, blasting, crop dusting, drilling for or refining oil in populated areas, and emitting noxious gases or fumes into a settled community.

Products Liability

Limited form of strict liability on the manufacturers and merchants who sell goods in a defective condition unreasonably dangerous to the user or consumer.

Liability is imposed regardless of the seller’s due care and applies to all merchant sellers.

Negligence *per se*

Violates a statute that is designed to protect against the type of accident or harm caused by their conduct, and the plaintiff is someone the statute is designed to protect.

But For Rule

Commonly used in both tort law and criminal law to determine actual causation.

The test asks, "but for the existence of X, would Y have occurred?"

In tort law, but-for causation is a prerequisite to liability in combination with proximate cause.

Agency

The relationship existing between two persons known as principal and agent through which the agent is authorized to act for and on behalf of the principal.

Principal

The party that empowers another party to act on the first party's behalf.

Agent

Simply an intermediary if the principal’s existence and identity are disclosed

One who represents a principal in business dealings with third persons.

May negotiate and bind the principal to contracts with third persons.

Employment Relationship

Employer has the right to control the physical conduct of the employee.

Independent Contractor

Person who contracts with another to do a particular job and is not subject to the control of the other.

Power of Attorney

A written, formal appointment of an agent.

Fiduciary Duty

The duty to act with utmost loyalty and good faith.

Reimbursement

A principal is under a duty to pay back authorized payments the agent has made on principal’s behalf.

Indemnification

A principal is under a duty to pay the agent for losses incurred while acting as directed by principal

Agency Coupled with an Interest

Irrevocable Agencies

This occurs where the agent has a security interest in the subject matter of the agency. The authority of the agent may not be revoked by the principal.

In addition, incapacity or bankruptcy of the principal will not terminate the authority of the agent.

This occurs where the agent has a security interest in the subject matter of the agency. The authority of the agent may not be revoked by the principal. In addition, incapacity or bankruptcy of the principal will not terminate the authority of the agent.

Disclosed Principal

One whose existence and identity are known.

Partially Disclosed Principal

One whose existence is known but whose identity is not known.

Undisclosed Principal

One whose existence and identity are not known.

Actual Authority

The power conferred upon agent by actual consent given by principal.

Apparent Authority

Power that arises out of words or conduct of a disclosed or partially disclosed principal that, when manifested to third persons, reasonably induce them to rely upon the assumption that actual authority exists.

Express Authority

Authority of an agent is found in the words of the principal, spoken or written, and communicated to the agent.

Implied Authority

Authority is inferred from words or conduct manifested to the agent by the principal. It may arise from custom and usages of the principal’s business.

Subagent

Performs or assists in the performance of the agent’s duties, the acts are binding on the principal to the same extent as if the agent had done them.

Actual Notice

Knowledge actually and expressly communicated.

Constructive Notice

Knowledge imputed by law. It includes publication in a newspaper of general circulation in the area where the agency is regularly carried on.

Ratification

The affirmance by one person of a prior unauthorized act that another has done as his agent.

Vicarious Liability

Indirect legal responsibility for the act of another.

*Respondent Superior*

This means “let the superior respond.”

This is a form of liability without fault and is based on the rationale that a person who carries out business activities through the use of employees should be liable for their tortious conduct in carrying out those business purposes.

Labor Dispute

Includes any controversy concerning terms or conditions of employment or union representatives.

**Norris-LaGuardia Act (1932)**: labor has full freedom to form labor unions and prohibited “yellow dog” contracts requiring employees to promise not to join a union.

Unfair Labor Practice

Prohibits the right to self-organization, to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection.

**National Labor Relations Act (1935)**: support collective bargaining and unionization.

Unfair Employer Practice

Prohibited by the act include interference with the right to unionize, discriminating against union members, and refusing to bargain in good faith.

**National Labor Relations Board (NLRB)**: remedy unfair labor practices and to supervise elections.

Unfair Union Practice

Coercing employees to join a union, causing employers to discharge nonunion employees, refusing to bargain in good faith, levying excessive union dues, featherbedding, and engaging in secondary activities, such as boycotts, strikes, or picketing an employer with whom there is no labor dispute.

**Labor-Management Relations Act (1947)**: prohibits certain unfair union practices.

Closed Shop

Contract that requires the employer to hire only union members. LMRA prohibits this.

Union Shop

Contract permits the employer to hire nonunion members but requires them to join the union within a specified period after being hired.

Right-to-Work Law

A right-to-work law is a state statute that prohibits union shop contracts.

Equal Pay Act

Prohibits an employer from discriminating between employees on the basis of sex by paying unequal wages for the same work. An employer may pay unequal wages for equal work to members of the opposite sex if the pay differential is based on a:

* seniority system,
* a merit system,
* a system that measures earnings by quantity or quality of production,
* or any factor except gender.

Today, the Act is enforced by the Equal Employment Opportunity Commission (EEOC).

Employment Discrimination Law

Federal statutes prohibit discrimination in employment on the basis of race, sex, religion, national origin, age, and disability.

Title 7 of 1964 CRA, CRA of 1991, ADA 1990.

Affirmative Action

The active recruitment of a designated group of applicants.

Reverse Discrimination

Refers to affirmative action that directs an employer to remedy the under representation of a given race or sex in a traditionally segregated job by considering an individual’s race or gender when hiring or promoting.

Subject to strict scrutiny under the Equal Protection Clause.

Sexual Harassment

Sexual harassment may constitute sexual discrimination in violation of Title VII. An employer is liable for sexual harassment committed by an employee if it knew or should have known of the harassment.

Comparable Worth

Provides that the relative values to an employer of different jobs should be measured through a rating system or job evaluation that is free of sex bias.

Limited success in the courts.

Fellow Servant Rule

The employer would not be liable for the employee's injury if the employer could prove that the employee's injury was caused by his or her co-worker rather than the absence of a finger guard on the saw.