Common Law Vocab

tort

civil wrong, other than a breach of contract, committed against a person or property (real or personal) for which a court provides a remedy in the form of action for damages

negligence

tort

unintentional commission or omission of an act that a reasonably prudent person wouldor would not do under the same or similar circumstances

failure to use ordinary or reasonable care.
Negligence requires a duty to care, breach of duty, proximate cause (reasonable foreseeability) and actual cause

malpractice

dereliction of professional duty or a failure to exercise an ordinary degree of professional skill, learning or care rendering professional services which results in injury, loss, or damage

Not following the standard of care

compensatory damages

monetary award given to the plaintiff to compensate for damages, injury or other
loss

punitive damages

monetary compensation awarded to a plaintiff for pain and suffering caused by the conduct considered particularly harmful or egregious

duty

legal obligation of care, performance, or observance imposed on one to safeguard the rights of others

reasonable

refers to actions, beliefs or decisions that are considered, just, rational, appropriate and fair under the circumstances

flexible standard used across various contexts, such as reasonable care, cause and
accommodations

standard of care

describes what conduct is expected of an individual in a given situation

general standard of care that must be exercised is that which a reasonably prudent person would do acting under the same or similar circumstances

injury

encompasses various forms of harm. Injury is not limited to physical harm, but includes physical harm, pain, suffering, and the loss of income, reputation or a legal right

“Without harm there is no injury

foreseeability

reasonable anticipation that harm or injury is likely to result from an act or an omission of an act

Would anyone of ordinary prudence and intelligence have anticipated the danger to others caused by his or her negligence is the basic question that is at hand

assault

deliberate threat, coupled with the apparent present ability, to do physical harm to another
may be through a deliberate act, or through irresponsible actions that show a deliberate lack of respect for the victim’s safety

No actual contact is necessary

Assault is both a crime and a civil wrong and may result in criminal charges and/or civil liability

battery

unlawful application of force (e.g. touching) directly or indirectly upon another person or their personal belongings, causing bodily injury or offensive contact

The attempt of battery is an assault

false imprisonment

unlawful restraint of an individual’s personal liberty or the unlawful restraining or
confining of an individual

Actual physical force is not necessary to constitute imprisonment

defamation of character

false oral or written communication to someone other than the person defamed that
tends to hold the defamed person’s reputation up to scorn and ridicule in the eyes of a substantial number of respectable people in the community

libel

form of defamation that harms someone’s reputation through print, writing or other physical form

slander

form of defamation that harms someone’s reputation through the spoken word

fraud

willful and intentional misrepresentation of material existing fact that causes harm or loss to a person or property

Fraud can also include acts, omissions and concealments that breach a legal duty, trust or confidence that results in an unfair or dishonest advantage

invasion of privacy

infringement of a person’s constitutional right to privacy through intrusive or
undesirable actions

People have the right to be free of unwarranted publicity and exposure to public view, as well as the right to live one’s life without having one’s name, picture or private affairs made public against one’s will

mental distress

suffering resulting from painful emotions, such as grief, public humiliation, despair, shame, and wounded pride

warranty

particular type of guarantee (a pledge or assurance of something) concerning goods or services provided by a seller to a buyer

express warranty

specific promises or affirmations made by the seller to the buyer
Example: Drug “X” is not subject to addiction. If the product fails to perform as advertised, it is a breach of express warranty.

implied warranty

Is a guarantee of a product’s quality that is not expressed in the purchase contract
An implied warranty assumes that the item sold can perform the function for which it is designed
Implied warranties are in effect when the law implies that a warranty exists by operation of law as a matter of “public policy” for the protection of the public Example: when buying a “new” book on Amazon, you don’t expect to have any earmarks or highlights on the pages

strict liability

Liability without the necessity of finding fault. Is a legal doctrine that makes some
persons or entity responsible for damages their actions or products caused, regardless of “fault” on their part

Strict liability often applies when people engage in inherently hazardous activities such as blasting through rock when building a road. If the blasting injures a person nearby, no matter how careful the blasting company was, it is liable for any injuries suffered

Strict liability also applies in the case of manufactured products such as drugs

For example, a product that is defective at the time it left the manufacturer’s hands.