negligence (flashcards)

Tort law

Tort law

requires reasonable care to protect people from harm on your property but does not apply to trsspassers.

Damages

plaintiff suffered actual injuries or loss.

Negligence

is the failure to provide reasonable amount of care to something that results in the harm of another person.

Attractive nuisance doctrine

says that if a person has something on their property that is likely to attract children then they have to take reasonable steps to protect the children against the possible dangers it could cause.

Reasonable person standard

helps judges determine if certain conduct is negligent and is an idealized version of how a community expects its members to act.

duty

legal obligation, the defendant had to owe a duty of care to the person who got injured

breach of duty

defendants conduct had to have violated said duty

causation

defendants actions caused plaintiff harm

damages

plaintiff suffered actual injuries or loss

what happens if minors are engaged with what is considered an adult activity

they are held to an adult standard of care

elements of negligence

duty, breach of duty, causation, damages

pools need to be fenced

true

causation

the reason an event occurs, which produces an effect

what is causation subdivided into

cause in fact and proximate cause

cause in fact

an element the plaintiff must prove to establish cause in fact

if harm would not have occured without w/o the wrongful act, then the act is the cause in fact of the harm

proximate cause

limits damages the defendants must pay to only the harms that have reasonably predicatable consequences of the defendants wrongful act.

-foreseeable result

-close connection between wrongful act and harm

proximate cause is

hard to prove

contributory negligence

a legal defense in which it is determined that the plaintiff and defendant share the fault for a negligence tort. neither can recover damages if equally at fault.

what happens if contributory negligence is proven

the plaintiff cannot recover damages

comparative negligence

in a tort suit, a finding that the plaintiff was partly at fault and, therefore, does not deserve full compensation for his or her injuries. dividing the loss according to the degree to which each person is at fault.

example of comparative negligence

if an accident was 40 percent the plaintiff’s fault, the plaintiff’s damages are reduced by 40 percent

counterclaim

a claim made by a defendant against the plaintiff in a civil lawsuit

assumption of risk

a legal defense to a negligence tort, whereby the plaintiff is considered to have voluntarily accepted a known risk of danger

selectional bias

add def.

can a sports league be held liable for brain damage in its former players?

nope

strict liability

the legal responsibility for damage or injury even if you are not negligent

Strict liability means that the defendant is liable to the plaintiff regardless of fault or negligence.

To prove strict liability you must prove

only causation and damages.

must also convince the court that the activity that caused the harm is the type of unreasonably dangerous activity to which strict liability should be applied.

Strict liability applies to

activities that are seen as unreasonably dangerous.

Activities are considered unreasonably dangerous when

they involve a risk of harm that cannot be eliminated even by reasonable care.

toxic torts

a lawsuit against a manufacturer of a toxic substance for harm caused by the manufacture or disposal of that substance

pet owners are

held strictly liable for any harm caused by their untamed animals.

“one bite” rule

the dog owner cannot be sued successfully the first time his or her dog bites someone.

force majeure

remove liability for unforeseeable and unavoidable catastrophes that interrupt the expected course of events and prevent participants from fulfilling obligations.

• natrual disasters

tort reform

the movement that focuses on changing the process of settling tort claims. It emphasizes methods other than going to court or establishes limitations on how much money the winning party may receive

statute of limitations

a deadline for filing a lawsuit that requires a tort claim to be filed within a certain period after the injury was suffered. In most states, the statute of limitations for filing a tort lawsuit is either two or three years.

frivolous lawsuits

cases without merit, some­times filed in an effort to force the defendant to offer a cash settlement rather than going to the expense of defending the lawsuit

Violence Against Women Act of 1994

This law addresses domestic violence, sexual assault, rape, and stalking. It also creates protections against teen dating violence, establishes nationwide enforcement of protection orders, and expands stalking laws to include cyberstalking.

rape is both

a criminal and civil offense

The 3 Ways for Juveniles to be tried in Adult Court

Juvenile waiver, statutory exclusion, and direct file

Direct File

gives prosecutors discretion to file charges against juveniles in adult criminal court

Statutory Exclusion

because of the crime - juveniles are sent directly to adult court

Juvenile Waiver

allows judges to wave juveniles to adult court

The 3 Civil Remedies

Rescission, Restitution, and Specific Performance

Martin received several offers of $100 for the used mp3 player he was selling. Gina agreed to buy the item for $150, but she later refused to follow through on the purchase. Martin would be required to mitigate his damages. In other words, if he could still sell the used mp3 player for $100, his damages for a breach of contract claim against Gina would be only $50.

Duty to Mitigate (example)

Duty to Mitigate

a party's obligation to make reasonable efforts to limit the harm they suffer from another party's actions

Mitigate

to make less severe

if you ordered goods that were never delivered, the court could order the company to deliver the goods to you. In the case of specific performance, you would still have to pay for the goods.

Specific Performance (example)

Specific Performance (civil remedy)

a remedy available in civil court in which the breaching party must do exactly what he or she promised under the contract

you order four video games through an online merchant and pay $120, but the company sends you only two games. Assume that the market value of the two games is $60. The expectation damages would be $60—the difference between the full value of what you were promised ($120) and the value of what you actually received ($60) in the mail. You would not have to return the games you received.

Expectation Damages (example)

A contract involving commiting an illegal act or going against public policy is legally bound. true or false

FALSE

Minors don't legally have to honor contracts they have agreed to. true or false

TRUE

Each _______ must be proven by a preponderance of evidence to convict negligence

elements of negligence

Tort law requires that you use ________ ____ to protect other persons from harm when they are on your property

reasonable care

Tort law does not require you to be responsible for ___________ ______

tresspassers injury

Product Liability

the legal responsibility of manufacturers or sellers for injuries caused by defective products

strict liability (animals)

The law has traditionally held owners strictly liable for any harm caused by their untamed animals

if a man denies being a child’s father, the mother may bring a ________, or action in court to establish his fatherhood, and force him to pay for prenatal care and child support

paternity suit

emancipation

children are free from the legal custody and control of their parents

family (filial) responsibility laws

require adult children to care for their elderly parents

truant/truancy

a child who misses school without justification

Medical Care

Parents have a legal duty to protect and supervise their children’s health.

Care and Supervision

Parents may decide what is best for their children as long as they do not abuse or neglect them. There are no minimum requirements for the number of hours parents must spend with their children

Family Car Doctrine

forces parents to be responsible for damages caused by any driver in the family

Child Abuse

any adult or older child inflicts or threatens to inflict intentional physical, emotional, or sexual harm on a child

Child Neglect

occurs more frequently than child abuse and involves the failure to properly feed, clothe, shelter, educate, supervise, or tend to the medical needs of a child

contract

an agreement between two or more persons to exchange something of value

breach

in terms of contract refers to someone who fails to hold up their end of the bargain

elements of a contract

an offer --> an acceptance --> exchange of consideration --> legal competence

Offer (element of a contract)

a proposition directed to a specific person

Accpetance (element of a contract)

a verbal or physical agreement by either carrying out the agreement or paying

Consideration (element of a contract)

something of value is given for something else of value

Legal competence (element of a contract)

to make a contract someone may not be under the influence, mentally ill, etc

Cosign

an adult who also agrees to a contract and with that they take the responsibility if the minor refuses to pay

Minors may be held to a contract involving _________.

necessities

Unconscionable

if a contract is unfairly oppressive, unfair, or harsh

15th Amendment

forbids denying the right to vote based on race or color

Fraud

false statement or lie in order to get them to do something

you order four video games through an online merchant and pay $120, but the company sends you only two games. Assume that the market value of the two games is $60. The expectation damages would be $60—the difference between the full value of what you were promised ($120) and the value of what you actually received ($60) in the mail. You would not have to return the games you received.

expectation damages example

Rescission (civil remedy)

cancel or rescind a contract

Restitution (civil remedy)

recieving a refund for all the money you've already paid

Specific Performance (civil remedy)

order the seller to carry out the specific terms of the agreement

if you ordered goods that were never delivered, the court could order the company to deliver the goods to you. In the case of specific performance, you would still have to pay for the goods.

Specific Performance (example)

Strict liability applies to

activities that are seen as unreasonably dangerous.

Activities are considered unreasonably dangerous when

they involve a risk of harm that cannot be eliminated even by reasonable care.

While you do not have to prove fault in a strict liability case, you do have to prove

both causation and damages.

In product liability cases, manufacturers or sellers may have a defense if

the consumer misuses a product or ignores clear safety warnings.

paternity suit

a lawsuit brought by a woman against a man she claims is the father of her child. If paternity is proven, the man is legally responsible for contributing to the support of the child

recidivism

statistic used to measure if someone goes to jail, do they commit the crime again

Compensatory damages

compensate injured party for loss or injury

Punitive damages

to punish a wrongdoer

If two cars each negligent collided into each other and harmed a pedestrian on the cross walk they are both responsible for the pedestrians injuries.

Cohabitation agreement

a written or oral contract that outline how some unmarried couples want to deal with their money, property, or responsibilities during and after their relationship

Palimony

financial support after marriage

Mavin v Marvin

court ruled that unmarried adults who voluntarily live together can make contracts regarding their earnings and property rights

Defense of Marriage Act (DOMA)

federal definition of marriage as the union of a man and a woman - allowed each state to decide if same sex counts

Paternity

No one can be forced to marry someone against their will

Family Support Act of 1988

requires all states to assist mother and children in obtaining paternity testing and to allow paternity suits until the child is 18

Responsibility for Children’s Acts

Parents who fail to properly supervise and control children may be legally responsible for children’s acts

Juvenile Justice and Delinquency Prevention Act of 1974

requires that Department of Justices Offices of Juvenile Justice and Delinquency Prevention (OJJDP) oversee changes ordered by congress and it works with state/local units of government to improve juvenile justice systems

McKeiver v Pennsylvania

jury trials were not required in juvenile cases, could destroy privacy