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98 Cards in this Set

  • Front
  • Back
  • 3rd side (hint)
a legal right
legally protected interest
a legal wrong
invades a right
what is the laws primary function
protect rights
what does criminal law address
wrongs against the public or the state
criminal wrongs
violate statutory law (written laws of legislative bodies)
what are the punishments under criminal law
fines, imprisonment and death.
they are not insurable
under criminal law the prosecution must prove
beyond a reasonable doubt to a moral certainty
what does civil wrong address
wrongs prosecuted by injured people
civil wrongs violate either
contract law - voluntarily assummed obligations
tort law - wrongful acts other then breach of contract
civil law is based on
common law - body of unwritten principles based on court decisions upholding custom and tradition
case law
court interpretations of statues and common law principals
set a precedent means
base similar future cases
"the doctrine of stare decisis" means
stand by the decision - encourages courts to follow precedent providing stability to case law
damages
monies assessed against defendant to compensate
"the doctrin of mitigation of damages"
defendent is not liable for additional injury or damage following the harmful act if the plaintiff does not take reasonable actions to prevent further harm
specific performance
requires the defendant to perform the contract
injunction
requires the defendant to do or not to do something
there are 3 types of damages
nominal damages
compensatory damages
punitive damages
nominal damage
compensate violated tort rights w/out financial loss
compensatory damages
special damages - damages that you can put a dollar amount to

general damages - damages you can not put a dollar amount to i.e., pain and suffering or consortium - spousal sex,society, and services
punitive damages
punish the defendant for negligence
intentional action tort
involve intentional actions but not necessarily intentional injury
intentional torts (wrong doings)trespass, property coversion, assulty, battery, false arrest, defamation, malicious prosecution, abuse of legal process, invasion or privacy, nuisance
vicarious liability
imposes liability on one person for the torts of another
negligent action torts
involve unintentional harm caused by failure to exercise reasonable care
absolute liability torts
hold plaintiff liable for all harm caused by his inherently dangerous, but socially acceptable, activities
plaintiff's care and lack of negligence are urrelevant
ie. owning a wild animal, blasting music, acting as a common carrier
employer-employee vicarious liability -- "the doctrine of respondeat superior"
an employer is liable for his employee's acts while the employee is performing his employer's work even if the tort was done against the employer's explicit instructions
principal-agent vicarious liability
principal is liable for his agent's actions if the agent acted within the scope of his authority
since agent bears primary responsiblity, you can recover from either agent or principal
parent-child vicarious liability
parents are liable for their childrens actions
"the family purpose doctrine"
holds the parent liable for torts committed by a family member operating the family car
"in loco parentis'
some states hold the parent liable for their childs torts
contractual relationship
vicarious liability exists when the first party agrees to assume the legal liability of the second party
exculpatory agreement
relieves one contracting party from the consequences of its own negligence
contracts of adhesion
contract written by one party and offered to the other party on a 'take it or leave it' basis
independent contractor
hired to accomplish a goal and works when and as he chooses
employers are not liable for the torts of their independent contracts except in situations involving
employer negligence
nondelegable duties
inherently dangerous work
employer negligence
employers failure to take reasonable care in selecting and directing the independent contractor and stopping the contractor's unneccessarily dangerous practices
nondelegable duties
employer can not delegate certain acts as set by statue, contract, or common law
voting, marrying, executing his will
inherently dangerous work
employer is liable for the contractor's negligence in performing work that is inherently dangerous to others
immunity
protects certain entities from lawsuits following their tort violations
governmental immunity
arises out of the doctrin "sovereign immunity"(the king does not wrong)
governmental functions(activities necessary to government business)are subject to governmental
immunity
proprietary functions (activities that generate profit or ivolve private businesses) are not
public official immunity
public officials serve the state or municipality
judges and legislators
administrative (discretionary)acts
public officals performing administrative acts have full immunity
ministerial acts
public officals are liable for errors, even if performed in good faith and w/out malice
charitable immunity
very limited - based on various theories protecting the donors of charitable funds and the beneficiaries of charities
intrafamilial immunity
interspousal immunity (one spouse can't sue the other) and parental immunity (a child can't sue its parents)
very limited and apply to personal injury cases
interspousal immunity
one spouse can't sue the other
parental immunity
a child can't sue its parents
statues of limitation
set time limits after the cause of action beyond which the injured can bring suit
malpractice suits limited to two years after an operation

exist to protect the rights of defendants in civil actions, who might have difficulty defending against lawsuits concerning events they cannot rememeber accurately or for which evidence no longer exists
statutes of respose
set time limits after some stated event beyond which the injured may not bring a suit
products liability limited to four years after product sale
negligence
involves the failure to use the standard of care required by society in the given situation
the reasonable person standard
any person acting w/out reasonable care and caution is negligent
to bring a successful suit, the plaintiff must prove the defendant's negligence
four requirements needed to prove negligence
duty, breach of duty, proof of damages or injury, proximate cause
breached duty caused damage
duty -- a legal duty
is imposed by law and requires a stated standard of care
what are the real estate owner's duties when it comes to INVITEES
they are on the premises for the insureds benifit and deserve the highest standard of care but they are not liable for conditions that could not be discovered by a reasonable inspection
what are the real estate owner's duties when it comes to LICENSEES
they are premitted on the premises for their own benefit and deserve an ordinary standard of care. owner must warn them of known dangers (slippery floors, watchdogs)
salesman, meter readers, fireman putting out a fire, police capturing burglar
what are the real estate owner's duties when it comes to TRESPASSERS
they are on the premises w/out premission and require the lowest standard of care. owners can not deliberately harm trespasser
the attractive nuisance doctrine
treats trespassing children as licensees when they are enticed onto the property by attractive nuisances
breach of duty
failure to exercise the required standard of care
injury to the plaintiff or damage to his property
proof damages or injury
proximate cause
a direct chain of causality from the breach of the injury
which condition helps to determine proximate cause :
the accident is proximate if injury occurs soon after the breach
time
which condition helps to determine proximate cause :
the accident is proximate if a reasonable person could foresee or expect an accident to result from the action
foreseeability
which condition helps to determine proximate cause :
the accident is proximate if defendant exposed the plaintiff to the hazard that cause the accident
exposure to hazard
which condition helps to determine proximate cause :
if the negligent act does not cause harm but a following act, unexpected and unforeseeable, does cause harm, the chain of events is broken
intervening act
which condition helps to determine proximate cause :
an accident is not proximate if the chain of causality includes a third party's criminal act
intervening criminal act
a driver who leaves his keys in his car (negligent act) may be responsible for accidents caused by the third party who steals his car
which condition helps to determine proximate cause :
accident is not proximate even if its not the only cause of injury
substantial factor
if two trucks hit a car at the same time, both truckers are liable for the injury and damage
which condition helps to determine proximate cause :
accident is proximate if the negligence of third persons is forseeable
conduct of third persons
what is concurrency
the independently negligent acts of 2 or more people combine to produce an injury
joint and several liability
allows the plaintiff to pursue one or all who caused damage
how do children modify negligence principles
a childs unpredictability makes some accidents unavoidable
why does being a professional modify negligence
professionals are subject to higher standards of care for torts involving their field of expertise
why does being a mental impaired modify negligence
mentally impaired are held at a lower standard of care for their own torts
the people taking care of them are held to a higher standard
good samaritian law
cancels or limits a physicians professional liability when helping at the scene of an accident
negligence per se
plantiff doesnt need to prove negligence because this often involves violation of a statue
the judge rules
res ipsa loquitur
the thing that speaks for itself where as the defendent negligence cant be proven
the doctor leaves a spong in a patient
how do children modify negligence principles
child's unpredictability makes some accidents unavoidable
how do professionals modify negligence principles
professionals are subject to higher standards of care for torts involving their fields of expertise
how do the mentally imparied modify negligence principles
defendants are subject to higher standard of care when they knowingly deal w/ mentally imparied people. mentally impaired individuals are held to lower standards of care for their own torts
what does negligence per se mean
plaintiff need not to prove negligence
what does Res ipsa loquitur mean
the thing speaks for itself which establishes the presumption of the defendant's negligence in cases where the plaintiff cannot prove negligence
A res ipsa loquitur (establishes the presumption of the defendant's negligence case where plaintiff cannot prove negligence) argument requires
1. the accident to be a type that normally shows negligence
2. the defendant had exclusive control of the instrument causing injury
3. no voluntary action of the plaintiff contributed to the injury
4. knowledge of the facts of the case were significantly more accessible to the defendant than to the plaintiff
contributory negligence
defendent must prove the plaintiff was at least partially to blaim, so the defendant owes nothing
contributory negligence is based on the common law duty to use ordinary care for one's own safety. most cases of contributory negligence involves mutually negligent auto drivers.
comparative negligence
the defendant claims the plaintiff was at least partially to blames, so the plaintiff shares the loss proportionately
'pure type' rule
plaintiff may recover damages inversely proportional to his share of the total negligence

in other words plaintiff 80% at fault may recover 20% of his damages
'50%' type rule
plaintiff may recover reduced damages as long as his negligence does not exceed that of the other party
'49%' type rule
plaintiff may recover reduced damages as long as his negligence is less than that of the other party
'slight versus gross type' rule
plaintiff may recover reduced damages only when his negligence is slight compared to the 'grossness' of the other party's negligence
assumption of risk
defendent claims the plaintiff voluntarily accepted a situation he knew was dangerous
this defense only applies when the plaintiff had alternatives to accepting the risk. this defense is based on the maxim volenti non fit injuria (no legal wrong is done to him who consents)
acts of GOD
defendent claims the plaintiff's injuries and damages were caused by an unforeseeable act of GOD
hurricane, tornado, tidal wave
lack of negligence
the defendant claims one of the four elements of negligence were missing
the reasonable, prudent person standard
determines when negligence has occurred. the person who commits a negligence tort bears primary responsibility
Hold harmless agreement
one party agrees to absolve and/or indemnify the other party for specific kinds of losses, as a contractor often holds the owner harmless for liability related to the construction site
employers are not liable for the torts of their independent contractors except in situations involving
employer negligence
nondelegable duties
inherently dangerous work
employer negligence
the employer must use reasonable care in selecting and directing the independent contractor and must stop the contractor's unnecessarily dangerous practices
nondelegable duties
the employer can not delegate certain acts as set by statute, contract, or common law (voting, marrying, executing his will)
inherently dangerous work
the employer is liable for the contractor's negligence in performing work that is inherently dangerous to others (blasting, excavating near public highways)
there are 4 types of immunity
governmental immunity
public offical immunity
charitable immunity
intrafamilial immunity
negligence classifications
slight negligence
ordinary negligence
gross negligence
willful misconduct
intentional misconduct
Causality
(but not causation)denotes a necessary relationship between one event(called cause)and another even(called effect)which is the direct consequence(result)of the first