Law and Ethics Chapter 9

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pcdembin
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174036
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Law and Ethics Chapter 9
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2012-09-29 18:01:18
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Law and Ethics Chapter 9
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  1. tort law is governed by
    state common law principles
  2. Torts fall into one of three general categories:
    • intentional
    • negligence
    • strict liability
  3. Defamation
    Defamatory statement

    Dissemination to a third party

    Specificity

    Damages
  4. Trade libel and product disparagement
    (1) clear and specific reference to the disparaged party or product,

    (2) knowledge the statement was false, or reckless disregard for the truth,

    (3) communicated to a third party.
  5. Fraudulent Misrepresentation
    (1) the misrepresentation was a material fact known to be false by the tortfeasor (or reckless disregard for the truth);

    (2) the tortfeasor intended to persuade the innocent party to rely on the statement and the innocent party did, in fact, rely on it; and

    (3) damages were suffered by the innocent party.
  6. False Imprisionment
    In the business context, a merchant most commonly encounters these circumstances in cases of suspected retail theft.

    While the merchant has the right to briefly detain a suspected shoplifter-must be cautious about giving rise to a false imprisonment claim when detaining an individual.
  7. Business Competition Torts

    Tortious Interference with Existing Contractual Relationship
    • (1) had specific knowledge of the contract,
    • (2) actively interfered with the contract, 
    • (3) caused some identifiable damages
  8. Negligence
    When party fails to act reasonably,

    Even though that party does not intend for harm to occur,

    The party is still liable for any injuries or damages suffered by another party as a result of the unreasonable conduct.
  9. Elements of Negligence
    Duty: Did the tortfeasor owe a duty of care to the injured party?

    Breach of duty: Did the tortfeasor fail to exercise reasonable care?

    Cause in fact: Except for the breach of duty by the tortfeasor, would the injured party have suffered damages?

    Proximate (legal) cause: Was there a link between the breach of duty and the damages suffered by the injured party?

    Actual damages: Did the injured party suffer harm?
  10. Strict Liability Torts
    concept rooted in the notion that the general public benefits when liability is imposed on those who engaged in certain activities that result in harm to another party, even if the activities were undertaken in the most careful manner possible (without negligence)
  11. Products Liability
    In a products liability case, the injured party may pursue a legal remedy against the seller under one of three theories:

    • (1) negligence,
    • (2) warranty, or
    • (3) strict liability.
  12. Objectively reasonable
    a fact finder (such as a jury) at trial could conclude that a reasonably prudent person in the same circumstances should have realized that certain conduct would be risky or harmful to another person.
  13. Misfeasance
    act by one party that harms or endangers another party
  14. nonfeasance
    the failure to act or intervene in a certain situation
  15. injured parties may not hold a defendant liable for failing to act unless the parties had a 
    special relationship

    ex: bus company to its passengers, innkeeper to guests, employer to employees
  16. Breach of duty
    failing to meet obligations  when there is a special relationship involved

    duties include: general obligations to act in a responsible manner so as to not put another in harms way, and special duties to certain parties including the duty to inspect or duty to warn of defects
  17. negligence per se
    is the legal doctrine whereby an act is considered negligent because it violates a statute (or regulation).

    In order to prove negligence per se, the plaintiff must show that

    • the defendant violated the statute,
    • the statute provides for a criminal penalty (i.e., fines or imprisonment) but not by civil penalties,[1]
    • the act caused the kind of harm the statute was designed to prevent, and
    • the plaintiff was a member of the statute's protected class
  18. dram shop laws
    impose liability on the owners and employees of a public establishment where alcohol is being served. These laws allow a third party who has been injured or harmed by an intoxicated tortfeasor to recover damages against the owner or employee who served an obviously intoxicated patron/ 
  19. Res Ipsa Loquiter- the thing or matter that speaks for itself
    doctrine allows an injured party to create a presumption that the tortfeasor was negligent by pointing to certain facts that infer negligent conduct without showing of exactly how the tortfeasor behaved

    ex: barrel fell off a roof and hit a pedestrian (the plaintiff did not need to prove how the barrel fell off the roof)
  20. after establishing that a breach of duty has occurred, the injured party must also prove that the tortfeasor's conduct was the
    cause in fact of the damanges suffered by the injured party
  21. there must be a link between the breach of duty and the damages
    cause in fact
  22. what test is used to test the cause in fact?
    the but for (except for) the breach of duty by the tortfeasor, would the injured party have suffered damages?
  23. The but for test requires a further step to establish liability, known as
    proximate (legal) cause

    the tortfeasors conduct was also the closest in proximity cause of the damages and the torfeasors liability wasnt cancelled due to a superseding cause
  24. superseding causes
    some (but not all) of these intervening acts may be the basis for limiting the tortfeasor's liability
  25. loss of consortium
    loss of companionship or marital relations
  26. if the injured party dies, her estate may sue for those damages that the injured party would have received if he had survived

    True or false
    True
  27. Spouses and children may also recover damages for losses sustained by virtue of the dealth of an injured party

    true or false
    true
  28. the two primary claims of negligence are
    comparative negligence and assumption of the risk
  29. comparative negligence
    where the injured party's conduct played a factor in the harm suffered
  30. contributory negligence
    whereby even 1% of negligence on the part of the plaintiff was a complete bar to any plaintiff recovery
  31. assumption of risk
    when the injured party knows that a substantial and apparent risk was associated with certain conduct, and the party went ahead with the dangerous activity anyway
  32. assumption of risk factors
    1. the injured party/plaintiff knew or should have known (by virtue of the circumstances or warning signs, etc.) that a risk of harm was inherent in the activity

    2.  the injured party/plaintiff voluntarily participated in the activity
  33. Negligence Analysis
    • Duty- did the tortfeasor owe a futy to the injured party
    • Breach- did the tortfeasor breach the reasonably prudent person standard
    • Causation- Except for the tortfeasor's breach of duty, would the plaintiff have suffered the injury
    • Proximate (legal) cause- was the breach the closest in proximity? Were there any superseding causes? Was the harm foreseeable?
    • Damages- Did the injury to the person pr property result in losses?
    • Defenses- Did the injured party contribute to the injury (comparative negligence)? Was the injured party aware of the risk, but went ahead anyway (assumption of the risk)?
  34. Strict Liability Torts (Absolute Liability)
    neither intent nor negligence need to be proven

    primarily for abnormally dangerous activities that result in harm to another party, even if the activities were undertaken in the most careful manner possible (without negligence)
  35. the 6 factor test- abnormal dangerous activity
    • 1. does the activity involve a high degree of risk of some harm
    • 2. Is there a liklihood that the harm that results will be great
    • 3. Is it possible to eliminate the risk by exercising reasonable care
    • 4. Is the activity relatively common?
    • 5. Is the location of the activity appropriate to the risk?
    • 6. is ther any community value that outweighs the dangeruos attributes?
  36. Products Liability
    refers to the liability of any seller (including the manufacturer, retailer, and any intermediary seller such as a wholesaler) of a product that, because of a defect, causes harm to a consumer
  37. modern products liability law protects not only the actual purchaser, but also any ultimate users that were harmed by the products defect.

    True or false
    True
  38. In a products liability case, the injured party may pursue a legal remedy against the seller under one of three theories:
    • 1. Negligence
    • 2. Warranty
    • or
    • 3. Strict Liability
  39. One who negligently manufactures a product is liable for any injuries to persons (and in some limited cases, property) proximately caused by the negligence
    the person who goes into the contact does not have to be the only person that can prove negligence.

    ex: a father buys a son a motorcycle and the son is injures and sues based on negligence (even though he wasnt the one who entered into the purchase agreement with the motorcycle company)
  40. Manufacturers have the duty of care regarding proper design, manufacturing, testing, inspecting and shipping

    true or false
    true
  41. express warranty
    when the seller makes a representation of fact about a product
  42. implied warranty
    if the seller has not made a specific representation about the product, the buyer still may be protected un the UCC (uniform commercial code)
  43. Strict Liability
    the injured party need not prove the elements of negligence
  44. strict liability on the seller so long as the injured party can show the product was in a defective condition and that the defect rendered the product unreasonably dangerous. Liability is only triggered when:
    • the seller is engaged in the business of selling such a product, and
    • the product is expected to and does reach the user or consumer without a substantial change in the condition in which it is sold

    • strict liability is imposed on the seller even though:
    • the seller has exercised all possible care inte preparation and sale of the product, and
    • the user or consumer has not bought the product from or entered into any contractual relationship with the seller
  45. in order to recover for an injury caused by a product, it must have been defective and have created a danger that is outside of the reasonably dangerous expectations

    true or false
    true
  46. theories of dangerous defects:
    • Design or manufacturing defect
    • inadequate warning
    • improper packaging
    • unavoidably unsafe
  47. causation and damages- product liability
    once it has been established that the product was unreasonably dangerous, the injured party need now prove only that the defective product was the cause of the injuries and that the product caused an actual injury that resulted in damages
  48. Sellers defenses
    Substantial change- draw aline of liability based on the condition of the product at the time it leaves the seller's control. the seller may still be liable, but not strictly liable, only negligent.

    Assumption of risk- injured party has assumed the risk if the party knew or should have known about the risk and disregarded the risk by continuing with the activity at issue for her own benefit

    misuse of product- the injured party may have NOT known of a certain risk, but failed to use the product in a manner that an ordinarily prudent person would, then the seller may use misuse of the product as a defense

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