Business Law Question

Read the chapter 19 of the courses text [ (Emerson, W.R.J.D. (2015). Business Law (Barron’s Business Review). Barron’s Educational Services; Sixth edition]). Then complete the assignment.

Attached you will find the assignment.  You are to download the document and, after saving the document to your computer, fill in each answer.  After each answer, you are to identify the page in the book from which you took the answer.

I have also attached The power point presentation that should help you get a good overview of the very basic material for tort law and damages. You may also find the attached wrap up on torts useful.

NB: i HAVE ATTACHED AN IMAGE OF THE COURSE TEXT BOOK YOU HAVE TO USE E BUSINESS LAW & Ethics
Fall 2022
Adj. Prof. William E. O=Brien
Name: _______________________________
1.
Under the doctrine of _____________________, the defendant is liable for the plaintiff’s
injuries despite the absence of negligence or intentional wrongful acts.
2.
Name two types of damages
_________________________ .
3.
The 4 that a plaintiff must show to demonstrate a negligent act are:
awarded
in
tort
cases.
________________
__________________
__________________
__________________
__________________
4.
A public wrong, committed with intent or by negligence for which the law provides
punishment or recompense to society is a ________________________ .
5.
A private wrong against a person or his/her property is called a ________________ .
6.
_________________ ________________ allows a plaintiff to recover the proportion of
his or her loss attributable to the defendant’s negligence.
7.
Unjustified contact with a person or something connected to it is ___________________.
8.
Detention of a person without their permission is ______________________ .
9.
Interference with a person’s right to be left alone is _________________________ .
10.
Unauthorized, unjustified exercise of control over another’s personal property is
called _____________________ .
11.
Another term for deceit or misrepresentation is ____________________.
12.
Identify three forms of defenses against torts:
(1)_______________ (2) _________________ (3) _____________.
13.
What does RES IPSA LOQUITU mean: ____________________ .
Wrap up on Torts
I.
This week’s wrap up:
The chapter 19 of the course text covered many terms and definitions, in particular of various torts that
can form the basis of a claim against another party (e.g.: Trespass to Land; Battery; intentional
interference with contractual relations etc.) Certainly, it is useful to review and know these different
torts as they often arise in business.
However, for this class and this Wrap Up, the focus on understanding the nature of torts and the
different types of torts. Therefore, instead of providing a re-stated definition to various torts defined in
the chapter, I am going to focus the Wrap Up on the properties of torts in general and the defenses
against them.
If you have a question regarding any of the specific torts please contact me.
II.
Difference between a tort and a crime:
1.
A “tort” is a civil wrong that injures a person, property, or certain economic interests and
or business relationships.
2.
What is the difference between a tort and a crime.
tort = a civil wrong – the individual seeks a remedy.
crime = a wrong against society. (Think of “I re-payed my debt to society.
[Another way of thinking of the difference in its simplest terms = tort – no jail; crime – jail.]
III.
Categories of torts you should know:
There are three categories of torts:
•
Negligent
•
Intentional
•
Strict Liability.
1. Intentional Torts:
•
A person intends a harmful result and causes damage to another.
•
“Automatic” liability for these actions.
In other words, if a person intentionally causes harm to another, which results in damages, the person
causing the harm is responsible for the damages he/she causes.
NOTE:
Whenever you discuss an intentional tort, you must show 3 things:
1. Intent – in order for a tort to have been committed intentionally, the party
committing the act must have had the intent to cause harm through their actions.
No intent – no intentional tort.
2. Elements – there many kinds of intentional torts – (conversion, false imprisonment,
fraud, tortuous interference with a contractual relationship etc.). Each one of these
torts has elements that you must prove. You need to cite the law and show that
each of the elements is given.
3. Harm – No harm, no tort!
2. Negligent torts:
Negligence = conduct that involves an unreasonable risk of causing injury to another person or
damage to another person’s property.
In order for an act to be considered “negligent” four elements must be present:
1. the defendant owed a duty to act to the plaintiff;
2. there was a breach of duty;
3. there was “proximate cause”; and
4. an actual loss was suffered.
Example:
Let’s review how to discuss the issue of a possible negligent claim using the following example.
The example is designed to give you an understanding of how to apply the theory of negligence
to a fact pattern.
A person has a cut on his arm that requires stitches. The person goes to a local hospital. The
hospital treats the wound. When closing the wound, the relatively new physician leaves a
sponge in the wound when it is closed. The wound festers and the patient requires further care.
The patient incurs additional costs and expenses to treat the condition.
The patient comes to you as an attorney and asks what he should do. What do you reply?
Example response:
Step 1:
We need to identify if the client has any potential claims against the hospital. As an individual,
the person will seek civil redress for damages suffered. We know that the client suffered and
incurred expenses. These could be recovered under tort law, if a negligent, intentional act was
committed by the hospital or if the hospital had strict liability for its actions.
Here there is no apparent intent so that an intentional tort can be ruled out. A strict liability
standard is also not apparent. The question is then did the hospital employee commit a
negligent act?
Step 2. Define terms:
Definition of a negligent act is conduct that causes unreasonable risk of causing to injury
to another person or damage to another’s personal property. To establish liability for
negligence, the claimant must show:
(1) the defendant owed a duty to act to the plaintiff;
(2) there was a breach of duty;
(3) there was “proximate cause”; and
(4) an actual loss was suffered.
Step 3. Application of the definition to the facts.
1. The hospital owed the patient a duty of care by virtue of the client-patient
relationship.
2. There was a failure of the relationship when a sponge was left in the wound.
3. It could be foreseen that leaving the sponge in the wound would cause damage.
4. The patient suffered damages because of the sponge being left in the wound.
Step 4. Make a decision and explain:
Based on the foregoing, I believe the hospital committed a negligent act and is liable to the
patient for the damages caused by leaving the sponge in the wound.
3. Strict Liability:
The doctrine of strict liability states that when the law requires strict liability there is:
•
Liability without fault.
•
No negligence or intent required.
•
Liability imposed a matter of law.
Strict liability for products is given when
1. the product was defective when it left the hands of the defendant and
2. the defect made the product unreasonably dangerous.
•
•
Types of Defects include:
–
Manufacturing defects
–
Design defects
–
Failure to warn.
Who may be liable: – Everyone!
Manufacturers, retailers, sellers, component part manufacturers and successors
4. Other Concepts to Know:
Vicarious Liability: Doctrine of Respondant Superior: Responsibility for the actions of another –
typically in the context of employer – employee relationship.
5. Tort Remedies:
A remedy is the legal consequence for an action. There are two general categories:
a. Damages
Damage remedies provide monetary compensation for a wrong-doing. Types of damages that can be
recovered are:
–
Actual or compensatory damages;
–
Special damages;
–
Indirect;
–
Incidental;
–
And/or consequential.
b. equitable remedies.
Equitable relief is non-monetary relief usually in the form of an injunction.
6. Defenses against Tort claims:
–
Assumption of risk (meaning = a party assumed the risk in entering an activity; think
skydiving.) ;
–
Obviousness of the risk (meaning that the risk was readily apparent and the person could
see that the activity was risky and participated in the activity anyway. Think shydiving);
–
Misuse of the product (meaning= a party incorrectly used the product – for example, using a
microwave to dry a cat.);
–
State of the art (meaning that the plaintiff used the most state of the art information or
technology and no other product design was known to be possible [defense in pro; and
–
Comparative fault (meaning= fault for the damages can be attributed to both parties. The
court will compare the respective liability of the parties.);
–
Contribution (meaning that several parties contributed to the damages and therefore the
responsibility for damages is apportioned between several parties).
–
Preemption (meaning federal law will be imposed).
7. FINAL COMMENTS:
In closing, it is important and useful to take away from this course, what torts are and how you can
defend yourself against them. If you are able to discuss these issues on the final, you will be in excellent
shape!