judicial process exam 3

cause of action

If a person’s claim is one that Courts consider to be actionable, for which a remedy can be provided and the loss can be compensated the term cause of action refers to the basis for the lawsuit.

Elements of cause of action

a. Defendant breached a legal duty owed to Plaintiff
b. Defendant’s breach was proximate cause of injury
d. Plaintiff sustained an injury recognized by law.

Elements to prove negligence (tort)

a. The Defendant failed to exercise reasonable care considering the foreseeability of harm to Plaintiff.
b. Defendant’s negligent act or omission breached a legal duty owed to the Plaintiff.
c. Plaintiff sustained a compensable injury.
d. The negligent act or omission was a proximate (direct) cause of the Plaintiff’s injury.

Elements to prove breach of contract

a.The parties were competent to enter into a contractual relationship.
b. A contract was made through offer and acceptance.
c. The parties exchanged legal consideration.
d. If the alleged contract must be in writing, that all formalities were met; and
e. The Defendant’s breach of contract caused Plaintiffs to suffer a loss.

Burden of Proof

Plaintiff/defendant not required to disprove the claim.

Standard of Proof

Preponderance of Evidence – When all of the evidence, taken as a whole, shows that the fact is more likely true than not true.

Measure of Damages

Basis for assessing or evaluating the amount of money that should be awarded to compensate a party for a loss.

Affirmative Defenses

A fact or circumstance which if proven completely defeats the Plaintiff’s claim, even if all of the elements of Plaintiff’s claims are proven to be true

Accord and Satisfaction

The parties make a new agreement to replace an old agreement then the old agreement becomes unenforceable

Fraud

A false statement concerning a material fact.

Fraud Elements

A false representation of material fact
b. Made by a person with knowledge of its falsity
c. Which false representation is justifiably relied upon by Plaintiff
d. Damages

Negligent Misrepresentation

A statement made as a fact when the person making it does not know whether it is true or not and has reason to know that the person whom it is make may rely upon it

Trespass

The unauthorized entry onto the land of another

Trespass Elements

a. Trespass occurs whenever entry is made without the consent of the land possessor or without legal authority.
b. Property rights extend above and below surface
c. Trespass may be involuntary

Assault

Intentional threat of bodily harm or death that puts the victim in fear of physical harm.

Battery

Impermissible touching/physical contact of an injurious nature

Negligence per se

An act or omission that is declared by statute to be wrongful and is treated by courts as negligence as a matter of law, without any reference to the reasonable person standard.

Causation

Plaintiff must prove that Defendant conduct was negligence and that the negligence was the proximate cause of the accident.

Causation in Fact

Plaintiff must prove that injuries were actual or factual result of Defendant’s acts

Foreseeability

Defendant only liable for damages within contemplation of the parties.

Superseding Cause

A cause of injury that relieves the Defendant from liability for negligence. Cause must occur after Defendant relieves all prior negligent conduct of any liability for an accidents.

Contributory Negligence

Negligence on the part of the Plaintiff that contributed to the accident and the Plaintiff’s injuries. Historically, contributed negligence provided Defendant with a complete defense to the Plaintiff’s actions in negligence.

Comparative Negligence

A legal doctrine that required a fact finder in a negligence action to determine the percentage of negligence attributable to each person involved in an occurrence.

Replevin

an action at how to recover a specific item of property that the Defendant wrongfully took or retained.

Ultrahazardous Activities

Activity that give rise to strict liability in tort for damages, because the activity is inappropriate to the place where it is conducted and necessarily involves a risk of serious harm to other or their property and the risk cannot be eliminated by exercising the utmost care. A person who engages in Ultrahazarous Activity is strictly liable for damages caused by that activity.

Intentional Infliction of Mental Suffering

Conduct of the Defendant is serious in nature (extreme misconduct) and causes anguish in Plaintiff’s mind (shocking to the conscience)

Products Liability

The liability that the manufacturer or vendor may have for supplying a product that is defective or unreasonably dangerous for use. Defective – unreasonable dangerous for use in the ordinary manner. Could be design problem, materials used, failure to provide adequate instructions or warnings.

Strict Liability in Tort

A cause of action that is available in product cases. Liability of Defendants is not based on fault. Manufacturers and vendors of products are held strictly liable in tort for injuries caused by defective products.

Dramshop Action

A civil action against liquor vendors and in favor of persons (other than the drunks) who suffer harm as a result of an illegal sale of intoxicants.

Nuisance

A cause in tort to recover money damages for the unreasonable interference of an occupant’s use or enjoyment of real property.

Infliction of Mental Suffering

The recovery of compensatory damages where the Defendant has negligently inflicted mental suffering

False Imprisonment

Intentional confinement of the Plaintiff to a specific area without authority in law to do so. Defendant must intend to confine the Plaintiff by limiting or controlling the Plaintiff’s freedom of movement. Confinement must be intentional and not merely inadvertent or negligent.

Malicious Prosecution

A cause of action in tort to recover money damages for personal injury caused by the Defendant’s intentional wrongful use of criminal court proceeding, without justification for an improper purpose.

Abuse of Judicial Process

Unjustified use of civil procedures for a wrongful purpose.

Interference with 3rd Party Contract

Non contracting party or third person wrongfully interferes with contract relations. Interference with a person’s right under the contract.

Conversion

Unauthorized act that deprives an owner of possession of tangible personal property. Conversion even if incorrect.

Defamation

Act of injury another’s reputation by false and malicious statements.

Invasion of Privacy

A cause of action in tort for personal injury for wrongfully publishing a person’s likeness or private information about the person in a manner that is outrageous. Right to withhold self or property from public interest.