Cpcu 530 Ch 6

Front 1

Tort

Back 1

is a breach of a common law obligation.

Front 2

Tortfeasor

Back 2

committed a tort.

Front 3

Negligence

Back 3

is the breach of a legal duty to use reasonable care with a direct chain of causation from the breach to injury; monetary damages are paid to the plaintiff as compensation for his injury.

Front 4

Plaintiff

Back 4

is the party who files a lawsuit and alleges damages caused by the defendant; compare defendant.

Front 5

Defendant

Back 5

is the alleged wrongdoer who is sued in a lawsuit or charged with a crime; compare plaintiff.

Front 6

Legal duty

Back 6

is created by statute, contract, or common law.

Front 7

Statute

Back 7

is a written dictate of a legislative body that declares, commands, or prohibits something.

Front 8

Common law (case law)

Back 8

consists of laws that have been established by court decisions; compare statutory law.

Front 9

Case law

Back 9

is another term for common law.

Front 10

Reasonable person test

Back 10

determines the standard of care by comparing what a ‘reasonable person’ would have done in similar circumstances, making allowances for physical disabilities, youth, and individual experience.

Front 11

Common carrier

Back 11

serves any member of the public by transporting people and/or cargo for preset fees.

Front 12

Zone of hazard

Back 12

is the area of danger surrounding a person’s negligent act or omission.

Front 13

Proximate cause

Back 13

requires a direct, unbroken, reasonably foreseeable chain of causation from the defendant’s violation of the plaintiff’s legally protected right to the plaintiff’s injury.

Front 14

‘But for’ rule (of proximate cause)

Back 14

establishes proximate causation if there would be no injury ‘but for’ the defendant’s act.

Front 15

Substantial factor rule (of proximate cause)

Back 15

holds that if the acts of two or more parties were each substantial in causing the plaintiff’s injury, then each party is fully liable.

Front 16

Foreseeability rule (of proximate cause)

Back 16

holds that if hindsight shows the plaintiff’s injury was a reasonably probable consequence of the defendant’s act, then the defendant is liable.

Front 17

Intervening act

Back 17

is an independent act that breaks the chain of causation from the defendant’s act to the plaintiff’s injury.

Front 18

Concurrent causation

Back 18

involves independent acts of independent defendants that combine to cause injury.

Front 19

Negligence per se

Back 19

is violation of a statutory standard that shifts the burden of proof from the plaintiff to the defendant.

Front 20

Res ipsa loquitur

Back 20

(Latin. “the thing speaks for itself”)is the legal doctrine that shifts the burden of proof to the defendant; that if whatever caused the injury was under the defendant’s exclusive control and such injuries don’t normally occur except in cases of negligence.

Front 21

Exclusive control

Back 21

means no one else had control over the object causing injury.

Front 22

Vicarious liability

Back 22

is substitutionary liability that imposes responsibility on one person (a principal, employer, or parent) for the torts of another (his agent, employee, or child).

Front 23

Negligent entrustment

Back 23

occurs when a defendant carelessly places a dangerous instrumentality (gun, car) under the control of an incompetent person (enraged or child, drunk or blind).

Front 24

Dangerous instrumentality doctrine

Back 24

holds a parent liable for negligently letting a child have control of a dangerous instrumentality (gun, car).

Front 25

Negligent supervision

Back 25

is the failure to control an incompetent person.

Front 26

Contributory negligence

Back 26

is a defense (obsolete in these US) to negligence actions in which a plaintiff’s negligence, to any degree, in caring for his own selfinterest, bars any recovery.

Front 27

Comparative negligence

Back 27

is a defense to negligence actions in which the plaintiff’s negligence in caring for his own selfinterest, bars recovery to some extent; see also pure comparative negligence, 50% type comparative negligence, 49% type comparative negligence, and slight versus gross rule.

Front 28

Pure comparative negligence

Back 28

bars a plaintiff’s recovery for that proportion of his damages equal to his proportion of negligence.

Front 29

50% type comparative negligence

Back 29

bars the plaintiff’s recovery of any damages if his proportion of negligence was greater than the other party’s.

Front 30

49% type comparative negligence

Back 30

bars the plaintiff’s recovery of any damages if his proportion of negligence was at least equal to the other party’s.

Front 31

Slight versus gross rule

Back 31

bars the plaintiff’s recovery of any damages unless his negligence is slight compared to the other party’s (relatively gross) negligence.

Front 32

Last clear chance doctrine

Back 32

is a defense to a negligence action imposing responsibility on the party who had the last definite opportunity to avoid the accident.

Front 33

Assumption

Back 33

ofriskis a defense to a negligence action; intentional, voluntary acceptance of a dangerous situation precludes a lawsuit for injuries that arose from that risk.

Front 34

Gross negligence

Back 34

is the failure to use even slight care.

Front 35

Immunity

Back 35

is exception from liability.

Front 36

Sovereign (governmental) immunity

Back 36

excuses the government from tort liability for governmental functions, but not for proprietary functions.

Front 37

Governmental immunity

Back 37

is another term for sovereign immunity.

Front 38

Governmental function

Back 38

is something only the government can do.

Front 39

Proprietary function

Back 39

is something a private business could do.

Front 40

Administrative (discretionary) act

Back 40

is one a public official can choose to do or not to do.

Front 41

Discretionary act

Back 41

is another term for administrative act.

Front 42

Ministerial act

Back 42

is one a public officer is required to do.

Front 43

Interspousal immunity

Back 43

provided tort immunity between spouses, but has been abrogated.

Front 44

Parent

Back 44

child immunityprovided tort immunity between parent and child, but has been abrogated.

Front 45

Statute of limitations

Back 45

bars tort suits initiated more than a stated period, often two to four years, after the cause of action accrued (after all elements of the cause of the action first existed).

Front 46

Statute of repose

Back 46

bars tort suits initiated more than a stated period, often ten to twelve years, after the date of the breach of the duty to exercise reasonable care, regardless of when the injury occurred or was discovered.

Front 47

Trespasser

Back 47

enters another’s property without permission.

Front 48

Licensee

Back 48

enters another’s property for his own purpose with the landowner’s permission.

Front 49

Invitee

Back 49

enters another’s property for the owner’s or their mutual benefit with the owner’s permission.

Front 50

Nuisance

Back 50

exists when a landowner’s use of his land interferes with another’s rights.

Front 51

Attractive nuisance doctrine

Back 51

creates a landowner’s duty to protect children from injury resulting from their interest in any nonnatural attractive nuisance on his property.

Front 52

Attractive nuisance

Back 52

is any artificial condition or item that attracts children.

Front 53

License

Back 53

is permission to enter another’s land.

Front 54

Express license

Back 54

is oral or written authority to enter another’s land.

Front 55

Implied license

Back 55

is permission to enter another’s land arising from the parties’ relationship.

Front 56

Invitee

Back 56

is invited to enter another’s land; includes business invitees (paying customers, prospects, and the tax collectors) and public invitees (Appalachian Trail hikers, fans at a Little League game); the owner must find and correct dangerous conditions for invitees.

Front 57

Public invitee

Back 57

is on the premises for a purpose for which the premises are open to the public.

Front 58

Business invitee

Back 58

is on the premises for business purposes.

Front 59

Intentional tort

Back 59

is committed by a tortfeasor who foresees or should foresee that his act will cause harm.

Front 60

Battery

Back 60

is the intentional hostile or offensive touching of another without his consent.

Front 61

Assault

Back 61

is intentionally making someone reasonably apprehensive of imminent bodily contact.

Front 62

False imprisonment

Back 62

is the intentional unlawful detention of another.

Front 63

False arrest

Back 63

is the intentional, unlawful, physical restraint of another.

Front 64

Intentional infliction of emotional distress

Back 64

requires an intentional act that causes the plaintiff’s emotional distress with resulting physical injury or physical manifestation of the distress.

Front 65

Negligent infliction of emotional distress

Back 65

requires a negligent act that causes the plaintiff’s emotional distress with resulting physical injury or physical manifestation of the distress.

Front 66

Defamation

Back 66

involves publication (communication to a third person) of a false statement injurious to another’s reputation; includes libel and slander.

Front 67

Slander

Back 67

is oral defamation.

Front 68

Libel

Back 68

is written defamation (including radio and TV broadcasts).

Front 69

Publication (in defamation)

Back 69

requires communication to a third person.

Front 70

Product disparagement (trade libel)

Back 70

involves publication of falsehoods about the quality of another’s product or business that causes its loss of customers.

Front 71

Trade libel

Back 71

is another term for product disparagement.

Front 72

Invasion of the right of privacy

Back 72

violates an individual’s right to be left alone or to be protected from unauthorized publicity.

Front 73

Bad faith

Back 73

applies to actions for breach of contract involving outrageous or extreme conduct or breach of an implied duty of good faith and fair dealing; is used against insurers who show bad faith.

Front 74

Injurious falsehood

Back 74

requires the defendant’s false statement, made with intent to cause financial injury, publicized to a third party, with malice, and resulting damage to property rights.

Front 75

Malicious interference, with prospective eco

Back 75

nomic advantageinvolves malicious interference with commercial dealings or expected gifts or legacies through fraud, intimidation, or spreading false reports about another’s honesty or solvency.

Front 76

Malice

Back 76

is an intentional wrongful act without justification or excuse.

Front 77

Unfair competition

Back 77

is intentional imitation that fools the public into buying one party’s product in the mistaken belief that it is another’s product.

Front 78

Interference with employment

Back 78

involves an intentional act that interferes with another’s legitimate or expected employment relationship.

Front 79

Loss of consortium

Back 79

is the loss of spousal sex, society, and services.

Front 80

Alienation of affection

Back 80

is the cause of action against someone who persuades one’s spouse to leave.

Front 81

Wrongful

Back 81

life actionis the cause of action arising when a child is born with serious defects.

Front 82

Wrongful

Back 82

pregnancy (wrongfulconception) actionis the cause of action arising from pregnancy following a failed sterilization.

Front 83

Wrongful

Back 83

conception actionis another term for wrongfulpregnancy action.

Front 84

Misuse of legal process

Back 84

involves using the legal process for an improper purpose.

Front 85

Malicious prosecution

Back 85

is the improper initiation of criminal proceedings, with malice, and without probable cause.

Front 86

Probable cause

Back 86

consists of grounds that would lead a reasonable person to believe the plaintiff committed the act for which the defendant is suing.

Front 87

Malicious abuse of process

Back 87

involves use of civil or criminal process for a use other than that for which it was intended.

Front 88

Trespass

Back 88

violates another’s exclusive use or possession (not ownership) of real or personal property without permission.

Front 89

Personal property

Back 89

includes all property other than real property and interests in real property.

Front 90

Nuisance

Back 90

occurs when a landowner’s use of his land interferes with another’s rights.

Front 91

Private nuisance

Back 91

is the unreasonable and unlawful interference with another’s right to quiet enjoyment of his real property, examples: loud noise and causing dust on adjoining property.

Front 92

Intentional nuisance

Back 92

arises when a person knowingly interferes with another’s enjoyment of his property, examples: erecting a ‘spite fence’, continuing to spray noxious chemicals.

Front 93

Nuisance per se

Back 93

is any act, occupation, or structure which is offensive by its nature, examples: a pig farm, a whorehouse, a slaughterhouse.

Front 94

Public nuisance

Back 94

affects the public at large; example: pollution in a stream.

Front 95

Conversion

Back 95

is intentional, unlawful control over the tangible, movable personal property (chattel) of another to the detriment of the person entitled to control it.