Legal Liability Basics - Chapter 1

legally protected interest

invades a right

protect rights

wrongs against the public or the state

violate statutory law (written laws of legislative bodies)

fines, imprisonment and death.
they are not insurable

beyond a reasonable doubt to a moral certainty

wrongs prosecuted by injured people

contract law - voluntarily assummed obligations
tort law - wrongful acts other then breach of contract

common law - body of unwritten principles based on court decisions upholding custom and tradition

court interpretations of statues and common law principals

base similar future cases

stand by the decision - encourages courts to follow precedent providing stability to case law

monies assessed against defendant to compensate

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

requires the defendant to perform the contract

requires the defendant to do or not to do something

nominal damages
compensatory damages
punitive damages

compensate violated tort rights w/out financial loss

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

punish the defendant for negligence

involve intentional actions but not necessarily intentional injury

imposes liability on one person for the torts of another

involve unintentional harm caused by failure to exercise reasonable care

hold plaintiff liable for all harm caused by his inherently dangerous, but socially acceptable, activities

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 is liable for his agent's actions if the agent acted within the scope of his authority

parents are liable for their childrens actions

holds the parent liable for torts committed by a family member operating the family car

some states hold the parent liable for their childs torts

vicarious liability exists when the first party agrees to assume the legal liability of the second party

relieves one contracting party from the consequences of its own negligence

contract written by one party and offered to the other party on a 'take it or leave it' basis

hired to accomplish a goal and works when and as he chooses

employers failure to take reasonable care in selecting and directing the independent contractor and stopping the contractor's unneccessarily dangerous practices

employer can not delegate certain acts as set by statue, contract, or common law

employer is liable for the contractor's negligence in performing work that is inherently dangerous to others

protects certain entities from lawsuits following their tort violations

arises out of the doctrin "sovereign immunity"(the king does not wrong)

public officials serve the state or municipality

public officals performing administrative acts have full immunity

public officals are liable for errors, even if performed in good faith and w/out malice

very limited - based on various theories protecting the donors of charitable funds and the beneficiaries of charities

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

one spouse can't sue the other

a child can't sue its parents

set time limits after the cause of action beyond which the injured can bring suit

set time limits after some stated event beyond which the injured may not bring a suit

involves the failure to use the standard of care required by society in the given situation

any person acting w/out reasonable care and caution is negligent

duty, breach of duty, proof of damages or injury, proximate cause

is imposed by law and requires a stated standard of care

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

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)

they are on the premises w/out premission and require the lowest standard of care. owners can not deliberately harm trespasser

treats trespassing children as licensees when they are enticed onto the property by attractive nuisances

failure to exercise the required standard of care

proof damages or injury

a direct chain of causality from the breach of the injury

time

foreseeability

exposure to hazard

intervening act

intervening criminal act

substantial factor

conduct of third persons

the independently negligent acts of 2 or more people combine to produce an injury

allows the plaintiff to pursue one or all who caused damage

a childs unpredictability makes some accidents unavoidable

professionals are subject to higher standards of care for torts involving their field of expertise

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

cancels or limits a physicians professional liability when helping at the scene of an accident

plantiff doesnt need to prove negligence because this often involves violation of a statue
the judge rules

the thing that speaks for itself where as the defendent negligence cant be proven

child's unpredictability makes some accidents unavoidable

professionals are subject to higher standards of care for torts involving their fields of expertise

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

plaintiff need not to prove negligence

the thing speaks for itself which establishes the presumption of the defendant's negligence in cases where the plaintiff cannot prove negligence

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

defendent must prove the plaintiff was at least partially to blaim, so the defendant owes nothing

the defendant claims the plaintiff was at least partially to blames, so the plaintiff shares the loss proportionately

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

plaintiff may recover reduced damages as long as his negligence does not exceed that of the other party

plaintiff may recover reduced damages as long as his negligence is less than that of the other party

plaintiff may recover reduced damages only when his negligence is slight compared to the 'grossness' of the other party's negligence

defendent claims the plaintiff voluntarily accepted a situation he knew was dangerous

defendent claims the plaintiff's injuries and damages were caused by an unforeseeable act of GOD

the defendant claims one of the four elements of negligence were missing

determines when negligence has occurred. the person who commits a negligence tort bears primary responsibility

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

employer negligence
nondelegable duties
inherently dangerous work

the employer must use reasonable care in selecting and directing the independent contractor and must stop the contractor's unnecessarily dangerous practices

the employer can not delegate certain acts as set by statute, contract, or common law (voting, marrying, executing his will)

the employer is liable for the contractor's negligence in performing work that is inherently dangerous to others (blasting, excavating near public highways)

governmental immunity
public offical immunity
charitable immunity
intrafamilial immunity

slight negligence
ordinary negligence
gross negligence
willful misconduct
intentional misconduct

(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