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79 Cards in this Set
- Front
- Back
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TORT- what are 4 elements a plaintiff has to prove to win a tort lawsuit
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1) defamatory statement-harm to another person's reputation
2)falseness-statement must be false 3)communicated-communicated to at least 1 other person besides the plaintiff 4) injury-pain, suffering, embarrassment, etc. **in libel,radio, and tv cases, law is willing to assume injury |
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libel
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written defamation
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slander
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oral defamation
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Yeagle VS Collegiate Times
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plaintiff-yeagle
defendant-school newspaper (collegiate times) facts: school newspaper put the phrase (director of butt licking) under yeagle's picture in school newspaper ruling: not defamation becuase the statement is not ment to be taken literally |
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battery
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touching that a person would find offensive
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justification to tortious interference with a contract. defendant must show:
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1) it was acting to protect an existing economic interest
2)it was acting in the public interest 3)the existing contract could terminated at will by either party, meaning that although the plaintiff had a contract, the plaintiff had no long term assurances because the other side could end it at any time |
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commercial exploitation
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the right prohibits the use of someone's likeness of voice for commercial purposes
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justification to tortious interference with a contract. defendant must show:
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1) it was acting to protect an existing economic interest
2)it was acting in the public interest 3)the existing contract could terminated at will by either party, meaning that although the plaintiff had a contract, the plaintiff had no long term assurances because the other side could end it at any time |
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Jean Kinder vs. Dominos
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Kinder was a 49 yr old women who suffered a head and spin injury because dominos drivers were speeding to meet thier 30 minute guarentee.
Judgement: kinder was awarded $750,000 compensatory damages and $78 million in punitive damages |
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Palsgraf vs. long island railroad
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facts: passenger had fireworks. guard helped passenger on train. fireworks exploded. palsgraf was hurt.
judgement:defendant could not foresee the injury, so there is no liability |
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Hernandez vs. Arizonza board of Regents
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Facts: a frat knowingly served an underage person (rayner). Rayner left the party, and hit hernandez and badly injured him. hernandez sues the drunk driver, the entire frat, the organization, the officers, the university.
judgement: all are liable becuase they have a duty of care to avoid funishing alcohol to underage consumers. |
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negligence per se
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definition: when a legislature sets a minimum standard of care for a particular activity in order to protect a certain group of people, and violation of the statue injures a member of that group
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3 defenses in a defamation case
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1)opinion- cannot be proven true or false
2)public personality-must prove actual malice by the defendant 3)privilege-the legitimate need to exchange information |
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Doe and Roe vs. Milles
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Plaintiff: Doe and ROE
Defendant: milles Facts: milles was given a piece of paper that thomas found in a dumpster and milles made signs with the actual lady's name on them who would be getting an abortion decision: trial court said that it was not intentional infliction appeals court said that the conduct was outrageous and reversed the decision |
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false imprisonment
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detaining someone against his will
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superseding cause
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when a situation is too unlikely and impossible for the defendant to foresee
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what are the two kinds of damages
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1)compensatory-to compensate plaintiff for injury. 99% of all damages are compensatory. not taxable.
-medical -pain and suffering -lost earnings 2) punitive damages-awarded to discourage defendant and others and to punish defendant. 1% are punitive. taxable. |
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actual malice
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the defendant knew the statement was false or acted with reckless disregard of the truth
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assult
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threatening battery
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4 elements to tortious interference
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1) there was a contract between the plaintiff and a third party
2)the defendant knew of the contract 3) the defendant improperly induced the third party to breach the contract or made performance of the contract impossible 4)there was injury to the plaintiff |
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5 elements plaintiff must show in a negligence case
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1)duty-did the defendant have a duty to this plaintiff
2)breach-the defendant breached his duty (measured by the reasonable person standard) 3)factual cause-the defendant's conduct actually causes the injury 4)foreseeable harm-it was foreseeable that conduct like the defendant's might cause this type of harm 5)injury-the plaintiff has actually been hurt |
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contributory negligence
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if the plaintiff is even slighly negligent himself, he recovers nothing
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comparative negligence
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a plaintiff may generally recover even if she is partially negligent
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Griffith vs. Valley of Sun
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Facts: a car repossession man sets off a car alarm at 4a.m. neighbors wake up. a neighbor with a gun passes that gun to another neighbor and the gun goes off injuring the second neighbor.
Judgement: the repossession man and his company is liable becuase he did not act in a reasonable manner |
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reynolds vs highland manor inc.
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Facts: renyolds found used condoms under a bed and thought that she would get the AIDS virus. she test negative on several occasions.
Judgement: the case was dismissed becuase the plaintiff showed no injury ** ppl are not compensated for fear-actaul injury must be shown |
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strict liability (definition and 2 types)
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activities that are so naturally dangereous the law places an especially high burden on anyone who engages in them. plaintiff needs to only prove factual cuase and injury.
1)ultrahazardous activites 2)defective products |
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statute of limitations
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places a time limit on the period between when an offense occurs and when a plaintiff can sue
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interogitories
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specific written questions
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contigent fee
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a fee the lawyer only collect if he wins the case
usually occurs in a personal injury case lawyers become gate keepers of cases because they can choose to take a case or not |
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letigiousness
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a society that has too many law suites
*u.s. has more law suites than any other society |
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McDonalds Coffee Case
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Facts: 81 year-old women spills coffee all over her and gets 2nd and 3rd degree burns. McDonalds serves its coffee at 30degrees hotter than most restaurants.
Judgement: women received $160,000 in compensatory damages and $2.7 million in punitive damages. McDonalds appealed. The case was settled out of court. |
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5 elements of discovery
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1) interrogatories-written questions
2)depositions-verbal questions to potential witnesses 3)production of documents and things 4)physical and mental examination 5)requests for admission-insits the opposing party admit of deny certain facts to avoid wasting time points not in dispute |
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mediation
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when a nuetral person attempts to coax 2 disputing parties to a voluntary settlement
-fastest growing method of ADR in the U.s. -offers the strongest win-win potnetial |
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arbitration
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parties agree to bring in nuetral 3rd party with power to improve an award, issue a binding decision with out giving reasons.
parties give up the right to (1)discovery (2)class-action suit |
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What are the two ways to resolve disputes?
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1)Litigation
2)alternative dispute resolution |
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What do the three branches of government do on a federal and state
level? |
*Legislative: congress/(state legislature)
-pass statutes -ratifies treaties -creates agencies *Executive: president/(governor) -proposes statutes -signs/vetos bills -oversees agencies -issues executive orders *Judicial: federal courts/(state courts) -interpret statutes -create common law -review the consitutionality of statutes |
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What does the US constitution do?
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1)establishes congress, Presidency and Courts
2)gives to states all powers not given to the federal government 3)guarentees basic rights to all citizens |
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What happens at trial court?
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This is the only court to hear testimony from witnesses and receive
evidence. The court reviews the facts of the current case and relates them to prior cases. State or federal court can only hear cases they have jurisdiction over. |
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What are the two civil lawsuits permitted in federal court?
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1)federal question cases
2)diversity cases |
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What is precedence and stare decisis?
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Judges decide current cases based on the judgements in past cases.
Stare decisis menas "let the decision stand" |
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What is the difference between criminal and civil law?
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criminal law: dangerous behavior is outlawed by society. Government
prosecutes it; guilt is determined; punishment and/or compensation Civil law regulates the rights between people. victim files suit; guilt is not determined; compensation |
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What is the difference between public and private law?
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Public law: rights/obligations of governments as they deal with
national citizens Private law: regulates the duties between individuals, |
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What is the difference between substantive and procedural rules?
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substantive: states the rights of the parties
Procedural: tells how a court can go about settling a dispute |
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what are the three ways of alternative dispute resolution?
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1) negotiation
2) mediation: neutral person tries to get a voluntary settlement 3)Arbitration- neutral person that has the power to impose an award -mandatory arbitration: they agree in advance to arbitrate |
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what are trial courts of limited jurisdiction?
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Small claims:civil lawsuits under $2500
Municipal court: traffic and minor criminal matters Probate court: settle the estates of dead people Domestic Relations Court: marital disputes and child custody issues |
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what is a directed verdict?
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a directed verdict is when the plaintiff has entiredly failed to
prove some aspect of her case. |
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what is a federal question jurisdiction?
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a claim based on the US constitution, a federal statute, or a
federal treaty |
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what is a writ of certiorari?
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formal written request for supreme court to hear the case
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what is a writ?
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order by central government to hear the case
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what is an injunction
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a court order telling someone to stop something
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what is appellate court?
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o jury, no witness, no new evidence. They accept the facts given
by trial courts and review the trial record to see if the court has made "errors of law" |
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what is the diffence between the burden of proof for civil and
criminal case: |
Civil case: preponderance of the evidence (at least slightly more
likely to be true) |
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what is voir dire?
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the process of selecting a jury to "speak the truth"
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What are the theories of jurisprudence?
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1) legal positivism: the law is what the soverign says (decisions
stand, regardless of morality) 2) natural law: an unjust law is no law at all (laws must have a good moral basis) 3) legal realism: who enforces the law is more important that the actual law (enforcers determine if the law is applied in a fair way) |
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What are divesity cases?
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1) plaintiff and defendant are citizens of different states
2)the amount is over $75000 |
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What are administrative agencies?
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Agencies in charge with investigating, regulating, and adjudicating
industries or issues. (they do the day to day work) |
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challenge for cuase
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reasons for dismissing jurors
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preemptory
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dismissing a person after a judge says no
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summary judgement
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there are not enough facts to justify a trial
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Jones vs. Clinton
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Facts: jones claimed she was sexually harrasse by clinton who exposed himself.
Judgement: case dimissed no injury shown. clinton used two defenses. 1) factual-says he didn't do it. 2)legal argument-says didn't matter if he did expose himself since plaintiff failed to allge harm |
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Jones vs. Clinton
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Facts: jones claimed she was sexually harrasse by clinton who exposed himself.
Judgement: case dimissed no injury shown. clinton used two defenses. 1) factual-says he didn't do it. 2)legal argument-says didn't matter if he did expose himself since plaintiff failed to allge harm |
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What are statutes?
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statutes are laws made up by a legislative body (prospective)
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What is common law?
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The accumulation of precedent.must be:
1)predicable-people must know what the law is 2)flexible-law must respond to new problems and changing social needs |
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3 steps in court's statutory interpretation
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1)plain meaning rule-when a statute's words have ordinary everyday significance the courts will apply those words
2)legislative history and intent-if the language is unclear, the courts must look deeper 3)public policy-if the legislative history is unclear, courts will rely on general public policies |
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Bankruptcy Bill
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discharges debt and allows a person to "start over"
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hard money
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finds that go directly to candidates
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soft money
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no limit on the amount of money a person can give becuase it goes directly to the actual political party
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4 types of contracts
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1)expressed contract-the two parties explicitly state all important terms of thier agreement
2)implied contract-words and conduct of the parties indicate they intended on an agreedment 3)promissory estoppel-the defendant makes a promise that the plaintiff relied on 4)quais contract-the defendant did not make any promise but did receive a benfit form the plaintiff |
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goods
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things that can be moved
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exculpatory clause
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clause that attempts to release you from liablity in the event of injury to another party
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capacity
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the legal ability to enter into a contract
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non-compete clause
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restriction on your ability to start your own business
employment is enforced only to protect: trade secrets, confidential information, and customer lists sale of business only if reasonable in time, area, and scope of activity |
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misrepresenation
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occurs when a party to a contract says something that is factually wrong
to cancel contract party must show: 1)there was a false statement of fact 2)the statement was fradulent or material 3)the injured person justifiably relied on the statement |
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bilateral mistake
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occurs when both parties negotiate based on the same factual error
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mirror image
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the offer and acceptance are identical
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disaffrim
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a minor may nofiy the other party that he refuses to be bound by the agreement
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restitution
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a minor who disaffirms a contract must return the consideration he has received to the extent he is able
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unconsonscionable contract
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contract the court refuses to enforce becuase of fundamental unfairness
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4 negative factors for a exculpatory clause
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1)gross negligence
2)intentuibak tort 3)unequal bargaining power 4)public interest |
