FINC 475 - Exam 5

Tort

a legal wrong for which the court allows a remedy in the form of money damages. The person who is injured (plaintiff) by the action of another (tortfeasor) can sue for damages.

Torts fall into 3 categories:

• Intentional (fraud, assault, slander)

• Negligence

• Strict liability

Strict Liability

means that liability is imposed regardless if negligence or fault can be proven

Negligence

the failure to exercise the standard of care required by law to protect others from an unreasonable risk of harm

Elements of Negligence

• Existence of a legal duty to use reasonable care

• Failure to perform that duty

• Damage or injury to the claimant

• A proximate cause relationship between the negligent act and the infliction of damages, which requires an unbroken chain of events

Compensatory Damages

awards that compensate the victim for losses actually incurred (measurable)

Example: medical bills, missed pay, reduced pay/capacity to work due to injury

Punitive Damages

awards designed to punish people and organizations so that others are deterred from committing the same wrongful act. (larger monetary value)

Contributory Negligence Law

the injured person cannot collect damages if his or her care falls below the standard of care required for his or her protection (all or nothing)

• under strict application of common law, the injured cannot collect damages if his or her conduct contributed any way to the injury.

Comparative Negligence Law

the financial burden of the injury is shared by both parties according to their respective degrees of fault

• under the pure rule, you can collect damages even if you are negligent, but your reward is reduced in proportion to your fault

The Last Clear Chance Rule

states that a plaintiff who is endangered by his or her own negligence can still recover damages from the defendant if the defendant has a last clear chance to avoid the accident but fails to do so

Example: a jaywalker is breaking the law, but if a motorist has a last chance to avoid hitting the jaywalker and fails to do so, the injured jaywalker can recover damages for the injury.

Assumption of Risk Doctrine

a person who understands and recognizes the danger inherent in a particular activity cannot recover damages in the event of an injury (fireworks)

Imputed Negligence

under certain conditions, the negligence of one person can be attributed to another

(driving a vehicle that is in someone else’s name)

Dram Shop Law

a business that sells liquor can be held liable for damages that may result from the sale of liquor

Res Ipsa Loquitur

The doctrine means “the thing speaks for itself”

Under this doctrine, the very fat that the injury or damage occurs establishes a presumption of negligence such that the injured party is not required to prove injury.

3 requirements for Res Ipsa Loquitur to apply":

• the event is one that normally does not occur in the absence of negligence

• the defendant has exclusive control over the instrumentality causing the accident

• the injured party has not contributed to the accident in any way

Invitee

a person who is invited into the premises for the benefit of the occupant. The occupant has an obligation to inspect the premises an eliminate any dangerous conditions

Example: a mail carrier, store customers, garbage collectors

Attractive Nuisance

a hazardous condition that can attract and injure children

• the occupants of land are liable for the injuries of children who may be attracted by some dangerous conditions, feature, or article

• Example: a contractor leaves the keys in a tractor, and a child is injured while driving it

The Doctrine of Sovereign Immunity

Government entities can be sued in almost every aspect of governmental activity. A governmental unit can be held liable if it is negligent in the performance of a proprietary function (operation of water plants, telephone systems, hydroelectric dams, auditoriums and other money-making activities).

Resondeat Superior Doctine

an employer can be held liable for the negligent acts of employees while they are action on the employer’s behalf. The worker must be an employee and must be acting within the scope of employment when the negligent act occurred

Tort Reforms:

• Capping noneconomic damages, such as pain and suffering

• Reinstating the state-of-the-art defense for product liability cases

• Restricting punitive damages awards

• Modifying the collateral source rule

• Modifying the joint and several liability rule

• Alternative dispute resolution (ADR), a technique for resolving a legal dispute using arbitration or mediation

• Regulating attorney fees

• Imposing penalties to deter frivolous lawsuits

Medical Malpractice

occurs when a negligent act or omission by a physician or other healthcare professional results in injury or harm to the patient. The injured patient must show that the doctor deviated from the generally accepted standards of practice in this particular case.

Class Action Lawsuit

a plaintiff pursues damages from a defendant or a group of defendants on behalf of a group of individuals (the class) who have been harmed