BL 3305 Exam 2

tort

civil wrong causing injury to persons, property or economic interests; wrongs against individuals

Duty owed, duty breached, actual loss, proximate cause (caused in fact and foreseeable)

4 elements of torts

battery

intentional infliction of harmful or offensive bodily contact (knowledge not required)

assault

intentional infliction of apprehension of immediate bodily harm or offensive contact (knowledge required); FEAR!

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 (very high standard)

defamation

injury to a person's reputation by communication (publication) of false statements to at least one person other than the person being defamed

false and defamatory statement
communication to third party
failing to ascertain falsity of statement

3 elements of defamation

libel

defamation communicated by writing, TV, radio, etc.

slander

oral defamation (spoken or said)

absolute
conditional
constitutional

3 defenses/privileges against defamation

absolute privilege

protects defendant regardless of motive or intent

conditional privilege

to protect own legitimate interest

constitutional privilege

freedom of speech and press issues

malice

person knew the statement was false or was reckless in failing to determine falsity and defamatory character

malice
negligence

a plaintiff can recover damages for defamation if

appropriation

unauthorized use of another person's identity for one's own benefit

intrusion

unreasonable and highly offensive interference with the seclusion of another (unlawful entry, eavesdropping, snooping!)

public disclosure of private facts

Offensive publicity given to private information about another person; requires everyone to know

false light

Offensive publicity placing another in a false light (not necessarily defamatory)

misuse of legal procedure

includes malicious prosecution, wrongful civil proceeding, and abuse of process that protects an individual from unjustifiable litigation

real property

land and anything attached to it

trespass to real property

wrongfully entering/remaining on land of another (intent to trespass not really required as long as intended to go on land! No permission)

nuisance

non-trespassory (air: fumes, dust; pollution: stream) interference with another's use and enjoyment of land

personal property

Any property that is not real property

trespass to personal property

intentional taking or using of another's personal property (without permission); must pay damages for unauthorized use

conversion

intentional exercise of control over another's personal property (as if it's no longer their property/how long were you deprived of personal property)

interference with contractual relations

intentionally causing one of the parties to a contract not to perform

disparagement

publication of false statements about another's property or products; truth is a complete defense to this tort

fraudulent misrepresentation

false statement made with knowledge of its falsity, intended to induce another to act

negligence

failure to exercise "reasonable care" under the circumstances

duty to use reasonable care
breach of duty of care
proximate cause (factual cause + foreseeable)
damages

4 elements of negligence

res ipsa loquitur

A doctrine under which negligence may be inferred simply because an event occurred, if it is the type of event that would not occur in the absence of negligence. Literally, the term means "the facts speak for themselves."

reasonable person standard

The standard of behavior expected of a hypothetical "reasonable person." The standard against which negligence is measured and that must be observed to avoid liability for negligence.

child
physical disability
mental deficiency
superior skill and/or knowledge
emergency situation

5 reasons why the reasonable person standard is modified

child

consider age, intelligence and experience

physical disability

must conform to conduct of a reasonable person with similar disability

mental deficiency

-must conform to conduct of reasonable person without considering disability or deficiency

violation of statute

if the statute applies, the violation is negligence per se in most states

negligence per se

if you fail to follow the law, an injury occurs, and the type of harm caused is the type of harm the statute was trying to prevent

duty to act

Your legal responsibility to do something in the case of an emergency (generally none)

special relationships

by agreement (babysitter; parent/child; er/ee), and other situations such as common carrier, innkeeper, employer to employees, school to students, landlord to tenants for common areas, business open to public, custodian to those in custody

special relationships
if you create the danger

2 reasons why duty to act might change

licensee

privileged to enter or remain on land due to consent

invitee

invited upon land as member of the public or for business purpose

duty to trespasser

not to intentionally injure

duty to licensee

to warn of known dangerous conditions that are unlikely to discover

duty to invitee

to use reasonable care to protect against dangerous conditions the possessor should know of but are unlikely to discover

contributory negligence

If the plaintiff is even slightly negligent, they recover nothing since plaintiff failed to use reasonable care

comparative negligence

divides damages between plaintiff and defendant where the negligence of each has caused the harm; plaintiff can recover if not more at fault than defendant; damages are allocated based on % set by jury

assumption of risk

plaintiff knew about risk and took it anyway; reduces or eliminates amount of damages plaintiff recovers

strict liability

defendant liable for harm even if not at fault; abnormally dangerous activities, animals, products liability

abnormally dangerous activities

involve high degree of risk of serious harm and are not matters of common usage

wild animals

liable for all harm

domestic animals

owner is liable if knew or should have known of animal's dangerous propensity

product liability

merchant seller held liable for personal injuries and property damage caused by selling a product in a defective condition; strictly liable and narrowly construed

nature of agency

P and A agree that A will act on the behalf of P, typically so A can do business with a TP - use objective standard (ie "reasonable person")

agency

consensual relationship authorizing one party (the agent) to act on behalf of the other party (the principal) subject to the principal's control

employer and employee
principal and independent contractor

types of agency relationships (2)

employer and employee

in this agency relationship, P has high degree of control (manner and means) over A

principal and independent contractor

A has discretion in "manner and means" of performance

formal/informal
consensual
consideration not required
statute of frauds
capacity

5 formalities required to create an agency

statute of frauds

A state statute under which certain types of contracts must be in writing to be enforceable.

work \> 1 year
'equal dignity' doctrine

when written agency agreement is required (2)

capacity required of P

P must have legal capacity; A can bind P to contract even if A doesn't have capacity (but can avoid contract with P)

actual or apparent authority, always, actual, liable

If A acted with \_____________________________________________, P will \___________ be liable on the contract to the TP. BUT if A did not have \___________ authority, then A is \__________ to P and will have to pay him back.

TP, actual, P

If TP does not know the name of P at the time the contract was made, the \_____ can sue the A, but if A had \__________ authority, the TP can sue the __when he finds out who he is. Can only recover judgment against one of them, not both

obedience
performance/diligence
account
inform/notification
fiduciary duties

agent's duties to principal (5)

fiduciary duties

utmost loyalty and good faith; no conflicts of interest, self-dealing; duty not to compete, confidential information, account for financial benefits

compensation
reimbursement
indemnification
tort duties

principal's duties to agent (4)

acts of the parties
operation of law

termination of agency by (2):

lapse of time
fulfillment of purpose
mutual agreement
termination by one party

termination of agency by acts of the parties (4)

death of P or A
incapacity of P
loss or destruction of subject matter
change in circumstances
disloyalty of A
change of law
war

termination of agency by acts of the parties (7)

disclosed principal

a principal whose identity is known by the third party at the time the contract is made by the agent

partially disclosed principal

A principal whose identity is unknown by a third party, but the third party knows that the agent is or may be acting for a principal at the time the agent and the third party form a contract.

undisclosed principal

A principal whose identity is unknown by a third person, and the third person has no knowledge that the agent is acting for a principal at the time the agent and the third person form a contract.

A is bound to TP for all types of Ps

contract liability when agent has no actual or apparent authority

disclosed: P is bound to TP, A reimburses P
partially disclosed: P and A are bound to TP, A reimburses P

contract liability when agent has apparent authority but no actual authority (2)

disclosed: P is bound to TP
partially disclosed: P and A are bound to TP, P reimburses A
undisclosed: P and A are bound to TP, P reimburses A

contract liability when agent has actual authority (3)

actual authority

based upon words and/or conduct; gives agent power and right to bind P in legal relations with TP

express

actual authority stated through words of P (written OR spoken)

implied

actual authority inferred from words or based on conduct

apparent authority

P's acts or conduct reasonably leads a TP to believe that A has actual authority to do something; gives A power, but not necessarily right to bind P

principal done something?
reasonable for TP to believe...
agent has actual authority

3 steps of apparent authority

actual direct notice
constructive notice

if agency terminates by acts of parties then to end apparent authority, P must give (2):

actual direct notice

if TP had dealt with A previously or been 'especially accredited.'

constructive notice

to everyone else (newspaper ad); protects principal

P direct A to commit tort
If A is an ee, P liable based on respondeat superior

when principal can be liable for tort of his agent (2)

respondeat superior

A doctrine under which a principal or an employer is held liable for the wrongful acts committed by agents or employees while acting within the course and scope of their agency or employment.

independent contractor

P is not liable for actions of A if they are a \___________________ \____________________

criminal liability

generally, P is only liable for A's criminal acts if P directed, participated or approved the acts.

right to control the conduct of the agent

the most significant factor in determining whether an employment relationship exists

unenforceable

any contracts resulting from the appointment of an agent by a minor are:

equal pay act

Employer cannot discriminate on basis of gender by paying unequal wages for the "substantially equal" work

title VII of the civil rights act of 1964

prohibits employment discrimination based on race, color, religion, sex, or national origin; includes all aspects of the employment process

pregnancy discrimination act

extended Title VII protection to pregnant employees; must treat like temporary disability

disparate treatment

intentional discrimination based on a person's protected characteristic

present effects

employer's conduct appears "neutral" but actually perpetuates past discriminatory practices

disparate impact

neutral rules that adversely affect a protected class and are not justified as being necessary to the business (but the impact is discriminatory)

bona fide seniority/merit system

employee has preference if has been at job longer than other employees; courts have generally upheld