Biz Law 7

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Biz Law 7
2012-10-03 20:08:15
Business Law Chapter

Chapter 7
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  1. Negligence
    • occurs when someone suffers injury because of another's failure to live up to a required duty of care
    • tortfeasor neither wishes to bring about the consequences of hte act nor believes that they will occur
  2. To succeed in a tort, plaintiff must prove:
    • Duty: defendant owed a duty of care to the plaintiff
    • Breach: defendant breached that duty
    • Causation: defendant's breach caused the plaintiff's injury
    • Damages: plaintiff suffered a legally recognizable injury
  3. Duty of Care
    people are free to act as they please so long as their actions do not infringe on the interests of others
  4. Duty of care may be:
    • an act or an omission
    • a careless act or carefully performed
  5. Reasonable Person Standard
    standard of behavior expected of a hypothetical "reasonable person". The standard against which negligence is measured adn that must be observed to avoid liability for negligence
  6. The Duty of Landowners
    • landowners are expected to exercise reasonable care to protect individuals coming onto their property from harm
    • landowners who rent/lease have a duty to supply correction information to tenants; if breached, can be held liable for negligent misrepresentation
  7. Duty to warn Business Invitees of Risk
    • Retailers and other firms that explicitly or implicitly invite persons to come onto their premises are usually charged with a duty to exercise reasonable to care to protect these business invitees
    • obvious risks provide an exception
  8. Duty of Professionals
    if an individual has knowledge or skill superior to that of an ordinary person, the individual's conduct must be consistent with that status
  9. Malpractice
    • if a professional violates his or her duty of care toward a client
    • essentially professional negligence
  10. No Duty to Rescue
    • a person will not be considered negligent for failing to come to the aid of a stranger in peril
    • people involved in special relationships may be held to this
  11. Causation in Fact
    • "Did the injury occur because of the defendant's act or would it have occurred anyway?"
    • Can be determined with the "but for" test
  12. Proximate Cause (aka legal cause)
    • exists when the connection between an act and an injury is strong enough to justify imposing liability
    • asks whether the injuries sustained were foreseeable or too remotely connected to the incident
  13. Two questions court must address in requirement of causation?
    • Is there causation in fact?
    • Was the act the proximate, or legal, cause of the injury?
  14. The Injury Requirement & Damages
    For a tort to have been committed, the plaintiff must have suffered a legally recognizable injury
  15. Three Basic Affirmative Defences in Negligence Cases
    • Assumption of risk
    • Superseding cause
    • Contributory and comparative negligence
  16. Assumption of Risk
    a plaintiff who voluntarily enters into a risky situation, knowing the risk involved, will not be allowed to recover
  17. Requirements of Assumption of Risk
    • knowledge of the risk
    • voluntary assumption of the risk
  18. Superseding Cause
    an intervening force or event that breaks the connection between a wronful act and an injury to another; in negligence law, a defense to liability
  19. Contributory and Comparative Negligence
    Contributory: plaintiff who was also negligent could not recover anything from the defendant

    Comparative: enables both the plaintiff's and the defendant's negligence to be computed and the liability for damages distributed accordingly
  20. "Pure" Comparative Negligence
    • some jurisdictions (CA & NY);
    • allows plaintiff to recover damages even if her/his fault is greater than that of the defendant
  21. Modified Comparative Fault
    in which plaintiffs who are largely responsible for their own injuries are not allowed to recover damages

    • 1. 50% rule
    • 2. 51% rule
  22. Res Ipsa Loquitur
    • "the facts speak for themselves"
    • event must have been within the defendant's power to control, and must not have been due to any voluntary action/contribution on the part of the plaintiff
  23. Negligence Per Se
    • "in or of itself"
    • occurs if an individual violates a statute or an ordinance providing for a criminal penalty and that violation causes another to be injured
  24. "Danger Invites Rescue" Doctrine
    a person who is injured while going to some else's rescue can sue the person  who caused the dangerous situation
  25. Good Samaritan statutes
    someone who is aided voluntarily by another cannot turn around and sue the "good samaritan" for negligence
  26. Dram Shop Acts
    • a tavern or bartender may be held liable for injuries caused by a person who became intoxicated while drinking at the bar or who was already intoxicated when served by the bartender
    • see also social hosts
  27. Strict Liability (aka liability without fault)
    a person who engages in certain activities can be held responsible for any harm that results to others even if the person used the utmost care
  28. Applications of Strict Liability
    • persons who keep wild animals
    • owners of domestic animals 
    • product liability - liability of manufacturers and sellers for harmful or defective products