Business Law Study Guide

Topics: Common law, Tort, Law Pages: 6 (2134 words) Published: October 16, 2013
Ch. 7: Negligence: Elements of a claim: 1. D owed a duty of care to the P 2. breached that duty 3. Breach was the actual & proximate cause of the injury. Duty & Breach of Duty: 1. Person must act as a reasonable person would’ve in the situation 2. P must establish that defendant failed to act as a reasonable person would’ve 3. Defendant owed duty to plaintiff if he was among those who would foreseeably be at risk of harm from the behavior 4.Breach of duty: actions compared to those of a reasonable person, focuses on defendant’s behavior rather than mental state 5. Most important consideration in breach of duty: reasonable foreseeability of harm. Ex. falling asleep at the wheel: foreseeable risk of harm to others BUT a blackout while driving  not foreseeable Also considered: magnitude & social utility & ease of avoiding risk Personal characteristics are also considered: Context considered: emergency vs. time to make judgment call. Special duties, Duties to Persons on property Premises liability cases, involve possessors of land & those who enter it. Entering party classifications: Invitees: Business visitors, people using public property Licensees: possessor must give consent, enter for purposes other than to do business Trespassers: Neg. per se: D’s violation of reasonable behavior may cause a breach of duty & may allow P to win if: Was within the class of persons intended to be protected by the statute, suffered harm that statute was intended to protect against. Causation of injury: physical injury, Property damage * usually only compensatory damages are recoverable, some courts allow recovery for emotional damages but require that physical injury resulted. The causation link Was the breach the actual cause of injury? Was it the proximate cause? Was there any intervening cause? Actual cause - But-for test – plaintiff would not have been hurt if it wasn’t for the defendant’s actions. Proximate cause no liability if injuries were remote, consequences must be natural & probable. Later acts/ intervening causes If X sets a fire & strong winds spread the fire to someone’s house if it was foreseeable defendant is liable. If the same thing happened except the ambulance driver was drunk when driving to the scene & hit some ppl on the way the drunk driving was unforeseeable so defendant isn’t liable. If a hotel owner fails to put enough exits in the building then a freak fire erupts & people cant get out owner still liable even though fire was unforeseeable. Special rules: Defendants are responsible for injuries even if they’re aggravated by an unforeseeable susceptibility, also responsible for disease that emerges from weakened state from the injuries Res Ipsa Loquitur, Presumption of breach of duty & causation arises when: Defendant has exclusive control over instrumentality of harm (knowledge & responsibility), Harm would not have occurred if not for negligence, Plaintiff was in no way responsible for own injury Neg. defenses: Contributory negligence If P steps onto the street w/o looking for cars & gets hit no liability. Comparative negligence P’s recovery = defendant’s % X Ps proven damages Assumption of risk P’s voluntary consent to known risk, Can be contractual or assumed Ch. 6: Tort: Civil wrong NOT a breach of contract: Intent Desire to causeRecklessness: Conscious indifference to known & substantial risk of harm, Someone fires a gun in a random crowd w/o desire to hit a certain person Negligence: Failure to use reasonable care & harm to another party occurs as a result, Person doesn’t know handgun is loaded but pulls the trigger anyway & wounds another person. Strict liability: liab. w/o fault, P must not prove fault (intent, recklessness, etc), must prove preponderance of evidence, remedy is usually compensatory damages (compensate victim for losses) If defendant behavior was really bad, can recover punitive damages to punish defendant Battery: Intentional & harmful (or offensive) touching or another w/o consent,...
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