I. Cause in fact, sine qua non
R. To prove the defendant negligent, one has to prove that the plaintiff’s injuries would not have happened if the defendant did not place their foot on the accelerator before being rear-ended. Evidence needs to be shown that if the defendant did not move his car slightly, his car would not have been pushed out further into oncoming traffic and thus hitting and injuring the plaintiff. A. Because Burg’s foot was off the accelerator at the time of impact, it can be estimated that his car would’ve moved less into traffic than if it had not. Since is car has been estimated to be moving at the time, it can be said that his car would’ve moved substantially less and not into traffic hitting Mason and injuring him. C. Burg’s foot being off the brake and on the accelerator, albeit minor, could very well have played a role in pushing his car into on coming traffic when his car was rear-ended. If his had kept his foot on the brake, he most likely would not have been pushed that far into traffic, resulting in hitting and injuring Mason. Therefore, his negligence has played a role in the accident. I. Comparative Negligence
R. Because Burg’s negligence played a some sort of role (even minor) in the accident, one must determine how large of a role was played. Comparative negligence comes into play when many factors are present in a negligent situation. When more than one party is negligent, or aids to the negligence, the percentage of injuries are reduced. A. Burg would not have been pushed into traffic all together if he wasn’t rear-ended, so he clearly does not share 100% of the fault. However, because his foot was off the brake and on the accelerator, he shares a percentage of the negligence and therefore should pay a percentage of the injuries to Mason. C. Because Burg was rear ended in the first place, he should not pay the full amount that Lawter should pay. However, because he was negligent in putting his foot on the accelerator slightly, he still is liable to pay a percentage of the injuries Mason endured.
I. Fraud, intentional misrepresentation
R. Fraud is a very broad concept and many aspects must be considered when using the term, primarily the question of: was this fraud intentional or based on pure negligence?
Because Antique Arts has much more money to gain by passing this window off as a Tiffany, we must consider the aspect of intentional misrepresentation. In that case, we must cover key elements to establish intentional misrepresentation:
1. A misstatement of an important or material fact is present. False information was presented as factual. 2. There is a scienter, or an intent to defraud present. One party intentionally deceives another. 3. The seller must have knowledge of the fraud and the recipient must justifiably rely on that information in making their decision to follow through on the deal. 4. There must be privity between the parties. The parties must have been in a relationship that created a legal obligation. 5. Causation. A logical link that that existed between reliance on the misstatement and the losses that the plaintiff has suffered and damages must be suffered by the plaintiff due to the reliance on the fraud.
A. Was this fraud intentional misrepresentation?
Antique Arts purchased this window at an auction years prior to selling it to Tony Williams. At that auction, it was credited to a different famous artist other than Tiffany. Though it was previously listed as a Tiffany twenty years ago, it was never officially sent to auction claiming the window as a Tiffany.
1. Was a scienter present?
2. Yes, because Antique Arts never purchased the window believing it was indeed a Tiffany. Therefore, the company always knew that it was deceiving the seller by listing the window as a “Tiffany Stained Glass Window”. 2. Did the company know about the fraud and does the recipient have justifiable cause to...