MOS 2275 Biz Law Chapter 5 Notes.docx.docx

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Management and Organizational Studies
Management and Organizational Studies 2275A/B
Cristin Keller

Chapter 5 Negligence, Professional Liability and Insurance (another type of tort) (and a little bit of chapter 4) 1/30/2013 6:38:00 PM  60 questions How are you going to solve intentional torts?  prove the elements of the tort  if you’re the plaintiff  then it is up to the defendant to either disprove the elements AND/OR defend his case What’s the standard of proof for a tort case?  balance of probabilities  it is a CIVIL CASE  it is up to the PLAINTIFF AND DEFENDANT. What are the elements of defamation (one example of intentional tort)  False statement of a factual statement  publicly broadcast  is it a false statement of factual nature? Has it been publicly broadcasted?  defenses against defamation: qualified privilege, absolute privilege, it’s true, it’s a matter of opinion. What are the elements of battery?  Is there in fact actual contact Chapter 5  Every negligence case is proven the same way  this is a different type of tort  this is still a civil case Dona Hue Stevenson’s case  Two female friends go to the club. One of the women got a divorce, lost her job and had a bad day. So the friend goes and buys the ginger beer in an opaque (dark) glass.  What legal transaction just took place?  we have a contract  really important piece of the story  both sides have to give something in order to have a contract  so the friend has a legal contract  so the friend hands the ginger beer to the friend (who is having a bad day) what legal transaction just took place?  a gift  a gift is something you get without giving back anything  does this woman (who is having a bad day) have a legal contract with anyone?  NO  This woman drinks a beer that has a decomposing snail at the bottom of the glass  This lawyer convinces this woman to sue because she has been injured  the woman is reluctant  the lawyer says this is the perfect case, please let me do it.  sues the bar and the manufacturer  does not sue the friend.   she wouldn’t be able to sue the friend because you can’t sue someone for giving you a gift  this has been one of the biggest cases in the century  there are times in our lives, even if we don’t have a contract with somebody, they might still owe a DUTY TO BE CAREFUL  and this was revolutionary, because up to this point you would never get damages (you would never get money) if you didn’t have a contract  we all owe someone a duty to care because we are all in this life together.  we should take in this amount of care  this idea is revolutionary.  there is a certain standard of care that we have to meet  and if someone is injured and there has been some kind of loss, then the court will recognize this and grant damages.  if it wasn’t for dona hue Stevenson then we wouldn’t have any of these cases  this idea turned the legal profession main concepts:  the women who got injured DID NOT have a contract with anybody.  if the woman who bought the drink and HAS A contract with the bar and sued the bar then what would she sue for?  breach of contract. *****exam might have a case VERY SIMILAR to dona hue Stevenson’s. Negligence  inadvertent, careless conduct causes injury to another  we don’t care if it was unintentional  every negligence case is proven the same way Essential Elements (Negligence) 1. Did the defendant owe you a duty of care  was there a duty of care?  if the answer of duty to care is NO then you don’t have a case  YOU HAVE TO PROVE A DUTY TO CARE.  duty to care 2. Did the defendant breach of the standard of care?  what does this obligation look like in terms of action  1. Says is there a duty of care. 2. Says what were the actions to the duty to care? Did they fall short? If the answer to 2. Is no then you don’t have a case.  **you have to answer yes to all of these questions. 3. Causation  it was the DIRECT CAUSATION.  if this is no then you don’t have a case. 4. Were there in fact damages?  damages  there has to be a loss. In the world of negligence, there HAS TO BE A loss.  ***there is going to be a question in the exam. An extremely long case and it’s going to say there is no damages  then the answer is that there is no case!!!!! Is a Duty Owed?  Are the two of people in the same story? Are they driving on the same road at the same time of night? Are their paths somehow going to intersect? Are these two people somehow in the same story?  when will a duty not be owed?  if you’re driving on one of the road and the other person is at the other side then the duty is not owed because we are not in the same story.  Anns case (no need to know the details but need to use this term***)  let’s not go crazy over this duty of care.  LIMIT THE DUTY   case summary  ****privity of contract  the fact that you’re not in a contract with someone  does not defeat negligence  which means that just because you don’t have a contract does NOT mean that you CANNOT sue for negligence. Duty to Exercise Care Must Exist  Misfeasance  should have done something  Misfeasance  you don’t have a legal obligation to do something most of the time but if you do DO something then YOU CAN’T BE NEGLIGENT.  ex: on the ground, a person is bleeding and I choose to stop and help you then I can’t make it worse.  Nonfeasance   You have no legal obligation to help. So if you don’t help that is NONFEASANCE Breach of Standard of Care  If I owe you a duty of care what does this duty of care look in term of actions  ex: I’m in a car, driving late at night and we are on the same path. Is it going to be hard to prove that you have a duty to care?  no because we are on the same road. You are in the same story.  no limit to this duty because this you have a duty to drive safely around other people.  you have to drive slow and be aware of your surroundings, have snow tired. Don’t be drunk, have windshields.  Reasonable Person Test  A reasonable person is someone who is better than average but not perfect. Someone who is prudent and aware. Create this reasonable person and base the cases on this Liability for Children  what is the standard of care for kids? What would have a reasonable child would have done in that case?  you take people as you find them  if the person you are suing has a limited mental capacity then what would a person with a limited mental capacity would have done?  are the parents ever liable for their children's torts?  sometimes because if you can prove that the parents were responsible for their children’s torts  parents have money. Causation and Damages  make a list of their actions  did the person fall below the standard? Now we have to say, were there causation in actions?  not happening at the same time.  IT HAS TO BE A CAUSE.  THERE BETTER BE DAMAGES. IF THERE ARE NO DAMAGES THEN THERE IS NO CASE.  “But for” Te
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