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63 Cards in this Set
- Front
- Back
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Negligent vs strict liability lawsuit
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Negligent - only the negligent body is sued
Strict Liability - all of the chain of distribution are liable |
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Shoshone coca cola bottling company v Dolinski
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strict liability case where dolinski won that there was a defect in manufacture when mouse poop and a mouse body was in her squirt and she got sick
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crashworthiness doctrine
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cars have to be made in a way that will keep the passengers safe from second collision or hitting something in the car during a wreck
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Generally Known Dangers
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example: a gun shoots bullets and bullets are dangerous
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Assumption of Risk
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the plaintiff is responsible if it can be proved that they understood and voluntarily accepted the risk
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Supervening or Intervening event
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a company cannot be held responsible for a defect in it's product if a distributor in the chain of distribution substantially changed it
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Statute of repose
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Limits companies liability for a product to a few years or certain amount of time
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Common Law
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Law made by judges when passing their opinions when deciding a case - these became precedents for later cases
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Sources of Law
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- Constitution (Supremacy Clause)
- Codified Law (Statutes & Ordinances) - Administrative Law - Aviation or FDA - Case Law - Interrupts all others |
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Statute
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Written Law enacted by the legislative branch of fed gov - establishes certain conduct that must be adhered to by certain parties
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Ordinance
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Law enacted by local gov't bodies such as city, municipality, school district, county, water district
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Supremacy Clause
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States that US Constitution and Federal Treaties are the highest law of the land
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Types of Remedies
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- Equitable
- Legal |
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Equitable Remedy
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- When legal is not enough - such as injunction, specific performance, rescission or cancellation of a contract (rescind) or reformation
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Legal Remedy
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Usually Just determines damages in terms of money
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Stare Decisis
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Similar cases should be decided consistently
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Differences between civil and criminal cases
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Civil = private parties, preponderance - more likely than not, usually for $ for civil damages
Criminal = Gov't v You, Beyond a reasonable doubt, punishment by fine or incarceration |
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Requirements for personal jurisdiction
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- Resident - Live in State
- Non-Resident is OK if you've had "sufficient minimum contact within the state" - Property - for residents it is determined by where the property is located, not the location of the owner - for corporation - residence is where it was incorporated or where it's place of business, or HQ is |
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Original vs Appellate Jurisdiction
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Appellate - Appealed to higher courts
Original - Where a case should traditionally be tried |
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Causes of federal Jurisdiction
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Federal Question (constitutional or federal statute) or
Diversity Jurisdiction between two states and worth more than 75k |
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Exclusive vs Concurrent
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Exclusive is that which must go to fed court while concurrent doesn't necessarily have to
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What are grounds for exclusive?
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- Merritime law, bankruptcy, intellectual property, antitrusts, US is a party, or Federal Crime
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Venue
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Where in the state will the case be heard
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Standing
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Are these the right parties - is it a real controversy
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Writ of Cert
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Writ of certiorari - official notice that the supreme court will hear a case
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Stages of litigation
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- Pleadings
Complaint, Answer, cross-complaint, reply - Pre-Trial Discovery, interrogatories, production of documents, examinations, motion for judgment on the pleadings, motion for summary judgment, and settlement conference - Trial Jury Selection, Opening Statements, Plaintiff's Case, Defendant's Case, Rebuttal & Rejoinders, Closing Arguments, jury instructions, jury deliberation and verdict, entry of judgment |
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Complaint
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Must show personal jurisdiction, statement of facts must show cause of action and restitution (what you want)
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Post-Trial Motions
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New Trial, JNOV (Judgment notwithstanding the verdict), and Appeals (with transcript, brief, or oral argument) ?
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Federal Sanctions
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Fines or Incarceration
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Felonies
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Can go to prison
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Misdemeanors
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Can go to jail
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Infractions or Violations
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Can't go to jail - like traffic fines
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Burglary
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Have to enter personal property
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robbery
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Has to have violent action - like a mugging
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Theft
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Like Pick-pocket
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Arson
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Burn Property
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Embezzlement
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There has to be an element of entrustment
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Criminal Fraud
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Obtaining property through deception or trickery
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Extortion
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Threat to loose information in return for money or property
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Money Laundering
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"Washing" money through a fake business to make it look legitimate
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Corporate criminal liability
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criminal liability of corporations for the actions of officers or employees
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Criminal Process
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Arrest - Booking - can post bail - appear before judge - indictment - arraignment - plead (guilty = over) - not guilty - trial - plea bargain - sentencing
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Exclusionary Rule
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If gov't violates constitution in case - fruit of the poisonous tree
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Elements of entrapment
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- Agent of the police
- suggest the crime - induce the crime |
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Strict Liability
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Liability without fault - applies to abnormally dangerous activities like playing with bombs and having wild animals
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No Duty to rescue
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you are not required to rescue a person
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False imprisonment
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intentional confinement without authority, justification, or consent
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Invasion of Privacy
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- Tort of misappropriation of the right to publicity
- Defamation of Character - Libel - Slander |
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Shopkeeper priviledge
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its ok if there are reasonable ground of suspicion, suspects are detained for a reasonable time, and investigation is done in a reasonable manner
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Defamation
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Had to be an untrue statement and must have been published to a third party - Public figure has to have malice but private just has to show negligence
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Contributory Negligence
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If not at least 1/2 the plaintiff's fault then he owes them 0$
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Comparative Negligence
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Pure and partial - can be modified to be shared
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Negligence Elements
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Causation - But For
Approximate Causation - Foreseeable |
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Business Torts
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wrongful interference with a contractual or a business relationship - tip - just because there is a duty and a breach does not mean there is causation
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Warning Defect
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can only be charged with this if somebody is hurt with it from a not generally known danger that would be considered a foreseeable misuse
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Packaging defect
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Tamper proof meds
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Product Liabilities
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Negligence - Company breached a duty of care
Misrepresentation - Company falsely made the product look better than it was and therefore caused injury Strict Liability - liability without fault to all in the chain of distribution |
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Special Negligence Doctrines
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Malpractice - liability of professional who breaches duty of care
Negligence Per Se - If statue declares it's your duty - like keeping the sidewalk safe in front of your house Res Ipsa Loquitur - Defendant is in somebody else's control and would have been safe had it not been for their negligence - if they can prove that they weren't negligent then they're fine |
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unintentional tort is the same as
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negligence
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Intentional infliction of emotional distress
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Tort of outrage - just means that if you do something ridiculous and it hurts somebody else, you are responsible for that emotional distress
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Statute of limitation
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case has to be brought within a certain time of the injury
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Statue of repose
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Case has to be brought within a certain time of the production of the product
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Invasion of Privacy
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- Appropriation
- Intrusion upon seclusion - False light - Public Disclosure of private facts |
