CAS DISC IA CH 14+15

Class action lawsuit conditions

Commonality, numerosity, adequacy of representation, typical

Express Invitee

oral or written permission to enter on to land to perform an act without interest in the land

Public Invitee

people invited on to premises as a member of the public to use it for public purposes

business invitee

People who enter business premises under the assumption they intend to engage with the business.

substantial factor rule

A rule to establish proximate cause by weighing an act’s significance to the harm

but for rule

if it wasn’t for some condition/person, the loss wouldn’t have occurred

concurrent causation rule

foreseeability rule

a rule to determine if an act would have been reasonably foreseen by an ordinary person

Implied warranty of merchantability

sellers are liable to uphold standards of their respective goods

Failure to Warn

unintentional nuisance

negligent, reckless, or ultrahazardous conduct

intentional nuisance

purposeful interference with another party’s enjoyment of their property

negligence

failure to exercise care to avoid harm that an otherwise reasonable person would exercise

torts

wrongful act or omission that is not a crime or breach of contract

Elements of Negligence

Legal duty, breach of duty, proximate cause, actual injury or damage

common law

laws developed from the results court decisions

reasonable person test

a standard for the degree of care exercised in a situation that is measured by what a reasonably cautious person would or would not do under similar circumstances, external and objective, but based on the jury’s perception of how that reasonable person would have acted

proximate cause

a cause that produced an event that was conditioned continuously on the cause

negligence per se

an act that is considered inherently negligence because of a violation of a law or an ordinance

res ipsa loquitur

An act that the defendant had exclusive control over resulting in harm

pure comparative negligence

Any plaintiff can recover their discounted proportion of damages

50 percent comparative negligence

Any plaintive can recover as long as their contribution to damages was not greater than half or the other party

49 percent comparative negligence

Any plaintiff can recover damages as long as their contribution to the damages was less than the other party

slight versus gross

A plaintiff can only recover if their contribution to damages was slight

Statute of limitations

The time frame after a cause of damages occurs in which a lawsuit must be brought after the cause occurs or is discovered. Subject to plaintiffs age or competence

Statute of repose

The time frame after a cause of damages occurs in which a lawsuit must be brought regardless of when the cause occurs or is discovered. Subject to plaintiffs age or competence

Statute of limitations: medical malpractice

1-3 yrs

Statute of repose: medical malpractice

3-10 yrs

Statute of limitations: real or personal property

up to 10 yrs

Statute of limitations: breach of warranty

4-6 yrs

Statute of repose: architects and engineers

4-15 yrs

Statute of repose/limitations: after death

1 yr

implied license

permission to enter onto another’s land arising out of a relationship between parties

defenses against battery

invited contact, self-defense, physical discipline (reasonable and good faith)

battery

intentional or harmful contact

assult

threat of physical harm to harm or create fear

false imprisonment

unlawful nonphysical restraint

false arrest

unlawful physical restraint

defenses to false imprisonment and arrest

felonies: police - unconditionally, citizens - on the condition the felony happened

misdemeanors: police - valid warrant (or unconditionally for certain crimes), citizens - only breach of peace

defenses against libel

statement was true, retraction, absolute privilege (protected setting - court), conditional or qualified privilege (public interest)

Abuse of Information Torts

Public disclosure of private facts, false lighting, unauthorized release of confidential information, appropriation of another

defenses to invasion of privacy

published information, consent to publication, public info/figure, news, unoffensive to an ordinary individual, judicial proceedings, public interest

proving fraud

false representation, material misrepresentation, misrepresentation was a reckless disregard of falsity, influence/deceive, misrepresentation led to consequences, damages

business torts

inducing breach of contract, slander, conspiracy, passing-off/unfair competition, indimidation

absolute privilege

statements made in judicial and legislative proceedings, executive officer communications, spousal communications, or by consent of injured party

conditional/qualified privilege

statements made without malice as a matter of public interest

potentially defamatory commercial speech

comparative advertising, specific and false comparisons, product disparagement/trade libel

product disparagement/trade libel

an intentional false and misleading statement about a characteristic of a plaintiff’s product

bad faith

a breach of the duty of good faith and fair dealing to intentionally cause another person sever emotional distress

injurious false hood

disparaging statements about the plaintiff’s merchandise, conduct of business, and the validity of a person’s title to property.

malicious interference with prospective economic advanage

interfering with another’s business or expected economic advantage (job, will, gift)

Unfair competition

intentional deception to gain economic advantage

defense against interference with employment claims

deny: interfering/preventing employment, inducing breach of contract, harm, acting to advance an illegal element of a contract, illegal means of discharge, blacklisting

defense against trespass

plaintiff didn’t own/possess the property, plaintiff consent, never present on property

nuisance per se

nuisance at all times

conversion

a tort where a person exercises unlawful control over another’s personal property to the other’s detriment

strict liability

liability imposed by statute from conditions that are ultrahazardous

examples of ultrahazardous activites

own/possession of animals, dealings with toxic substances, nuclear, man-made water ways, control of explosives, aviation, fireworks, racing

proving strict liability for products liability

in business of product, ustanreasonable dangerous and in such state when it left the seller’s control, proximate cause, no change in condition prior to injury

state-of-the-art defense

product is safe according to the state of the art at the time of production.

Compliance with statutes and regulations defense

the product was manufactured according statutes and regulations (partial defense)

compliance with product specs defense

Products that conform to preestablished specifications that led to the damage. The manufacturer claims non-liability for such damages

Open and obvious danger defense

Damages related to a products obvious inherent danger absolves manufacturer liability

plaintiff knowledge

if there is no known difference in the plaintiff and defendant’s knowledge of a product, the defendant has no duty to warn

misuse defense

the plaintiff’s use of the product created the danger

alteration defense

if a plaintiff altered the product, the manufacture cannot be liable for damages resulting the altered condition