Term
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Definition
| Protection by providing legal justification for defendant's actions; excuse negligent behavior; provide defendants with a blame-shifting tool; examine plaintiff misconduct contributing to his own injuries |
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Term
| How Negligence Defenses are Used |
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Definition
| 1. Defenses are used only by the defendant against the plaintiff. 2. Applied only in response to plaintiff's allegations that defendant acted negligently or with willfull and wanton negligence. 3. Once a plaintiff alleges defendant's negligence, both parties' failure to be careful may be at issue. |
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Term
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Definition
| Laws that set a maximum amount of time after something happens for it to be taken to court. Statutes restricting the time within which a plaintiff may file a lawsuit. (Many negligence ~ 2 years) |
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Term
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Definition
| (Not CA) The plaintiff's own negligence that contributed to his injuries. In some jurisdictions this may bar recovery by a plaintiff. (Seems very few states use this) |
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Term
| Last Clear Chance Doctrine |
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Definition
| Even though plaintiff was at fault in causing his own injuries, the defendant had the last clear opportunity to avoid harm and failed to do so, and the plaintiff can still recover damages. (Rebuttal to a contributory negligence defense) Defendant cannot escape liability for his negligence by invoking contributory negligence if he had the last clear chance to avoid the injury. |
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Term
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Definition
| A legal rule by which the amount of fault on each side of an accident is measured, and the side with less fault is given damages according to the difference between the magnitude of each side's fault. Enables the defendant's liability to be adjusted according to the extent of the plaintiff's contribution to his own injuries. |
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Term
| 3 Elements of Comparative Negligence |
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Definition
| 1. Plaintiff's negligence contributed to his own injury. 2. Calculation of the percentage of the plaintiff's contribution. 3. Calculation of the percentage of the defendant's negligence that produced the plaintiff's injury. (Some jurisd 4. Defendant must have been more negligent than plaintiff) |
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Term
| Comparative Negligence in California |
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Definition
| Pure form of Comparative Negligence. Contributory negligence does not bar recovery (damages to plaintiff/victim even if plaintiff/victim is most responsible for accident. There is no minimum percent for tortfeasor's responsibility. |
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Term
| Culpability Factoring (Liability Apportionment) |
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Definition
| A defense to negligence. When the plaintiff/victim's negligence contributed to his injuries, comparative negligence calculates the percentage of the defendant/tortfeasor's and the plaintiff/victim's negligence and adjusts the plaintiff/victim's damages according to the numbers. |
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Term
| Who decides the percentages in comparative negligence? |
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Definition
| The trier-of-fact: Jury, or judge in a bench trial must closely examine the facts and assign negligence percentages. |
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Term
| Pure Comparative Negligence |
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Definition
| There is no minimum percent for tortfeasor/defendants. |
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Term
| Assumption of Risk (Defense to Negligence) |
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Definition
| The plaintiff/victim assumed the risk of doing or not doing something that resulted in his injuries. Knowingly and willingly exposing yourself or your property to the possibility of harm. |
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Term
| 2 Elements of Assumption of Risk (Defense to Negligence) |
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Definition
| 1. The victim/plaintiff's voluntary assumption of a known risk with 2. a full appreciation of the dangers involved in facing that risk. |
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Term
| Voluntary Assumption of Known Risk (Element 1 in Assumption of Risk as a Defense to Negligence) |
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Definition
| For the defense to help insulate the tortfeasor from liability: The victim/plaintiff must have Voluntarily decided to engage in an activity that he knew (or reasonably should have known) was dangerous. The victim must willfully face a known risk. |
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Term
| Full Appreciation of Danger (Element 2 in Assumption of Risk as a Defense to Negligence) |
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Definition
| The victim/plaintiff must fully understand the dangerous nature of the activity that he voluntarily undertakes |
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Term
| Express (Explicit) Assumption of Risk (as a defense against negligence) |
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Definition
| A victim/plaintiff voluntarily assumes a known risk by an express (and voluntary) agreement (signs an agreement with a release clause, agreeing not to hold the other party liable) |
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Term
| Implied Assumption of Risk (as a defense against negligence) |
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Definition
| A victim/plaintiff accepts a risk knowingly and voluntarily by reason of his knowledge. Assumption of risk is implied based on his conduct -- entering despite a No Entry sign. |
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Term
| Assumption of Risk as a Complete Defense |
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Definition
| In some jurisdictions: If victim/plaintiff assumes the risk, he cannot recover damages. The tortfeasor/defendant cannot be held liable for negligence. |
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Term
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Definition
| The law should be applied in a way that promotes the good and the welfare of the people. |
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Term
| Defenses to Intentional Torts |
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Definition
| Sometimes intentional torts are legally justified so the TF is not liable to the victim. Used by the defendant in a civil lawsuit to exonerate the defendant from liability to the plaintiff. Justification of intentional tortious conduct through defenses. |
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Term
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Definition
| Voluntary and active agreement. A broad defense applicable to every intentional tort. When the victim of an intentional tort voluntarily agrees to the TF's actions, provided that the victim understand's the TF's deeds. (Actually "cancels" the intentional tort, b/c non-consent is an element of intentional torts) |
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Term
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Definition
| A person's agreement to allow something to happen that is based on a full disclosure or full knowledge of the facts needed to make the decision intelligently |
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Term
| Informed Consent Defense (2 Elements) |
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Definition
| (1) Voluntary acceptance of an intentionally tortious act (2) with full knowledge or understanding of the consequences. |
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Term
| Informed Consent: Voluntary Acceptance (1st Element) |
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Definition
| Consent as a successful defense action: Only if the victim willingly and knowingly agreed to the TF's conduct (not coercion) |
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Term
| Informed Consent: Voluntary Acceptance (Possible exclusions) |
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Definition
| Depends on victim's mental capacity to agree. May exclude retarded or intoxicated individuals, or very young children. |
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Term
| Implied Consent (Examples) |
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Definition
| Public officials by being in the public eye; Emergency medical treatment |
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Term
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Definition
| Evil intent; Intent to do a wrongful act |
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Term
| Self-Defense (Defense to Intentional Tort) |
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Definition
| The use of physical force against a person who is threatening or using physical force. Use of reasonable force to repel an attack on one's person or avoid confinement. |
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Term
| Self-Defense (3 Elements) |
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Definition
| (1) Use of reasonable force (2) to counter an offensive force, (3) that is necessary to prevent bodily injury, offensive contact, or confinement. |
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Term
| Reasonable Force (1st Element of Self-Defense) |
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Definition
| Force that is reasonable: limited to that necessary to dispel the attacking force. Cannot be greater than what is reasonably necessary. Depends on circumstances of each case. |
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Term
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Definition
| Depends on Jurisdiction... One view: In the face of deadly force, a victim must first try to escape if that is a reasonable possibility, before using deadly force in self-defense. Another view: One is not required to flee one's home if threatened by intruder. |
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Term
| Castle Doctrine / Dwelling Defense Doctrine |
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Definition
| Principle that you can use any force necessary to protect your own home or its inhabitants from attack. |
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Term
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Definition
| The legal right in some states to use deadly force in the face of deadly force, rather than flee |
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Term
| Force Necessary to Prevent Injury, Offensive Contact, or Confinement (Necessary Force) (3rd Element of Self-Defense) |
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Definition
| That degree of force reasonably perceived as required/necessary to repel an attack or resist confinement. |
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Term
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Definition
| A defense to the intentional torts of assault, battery, and false imprisonment when a third party is the potential victim. |
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Term
| Defense of Persons (3 Elements) |
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Definition
| (1) Use of reasonable force (2) to defend a third party from injury (3) when the party is threatened by an attacking force. |
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Term
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Definition
| Assault or battery may be vindicated if taken to defend property from damage or dispossession. An owner has the right to possess and safeguard his property from others. |
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Term
| Defense of Property (3 Elements) |
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Definition
| (1) Use of reasonable force (2) to protect property from damage or dispossession (3) when another person, the invader, attempts to injure or wrongfully take possession of the property. |
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Term
| Defense of Property (Amount of Reasonable Force) |
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Definition
| Many courts: the least amount necessary to protect the property - human well-being is more important than property. Not deadly force. |
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Term
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Definition
| The use of reasonable force to expel a trespasser. |
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Term
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Definition
| The right to repossess, by force if necessary, a chattel that has been wrongfully taken. Generally applied to allegations of trespass to land, trespass to chattel, conversion, assault, and battery. |
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Term
| Rightful Repossession (4 Elements) |
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Definition
| (1) Use of reasonable force (2) to promptly (3) repossess/retake personal property (4) of which the owner has been wrongfully dispossessed or denied possession. |
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Term
| Reasonable Force (1st Element - Rightful Repossession) |
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Definition
| Reasonable force, including trespass to land (to get the property back) |
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Term
| Prompt Repossession Efforts (2nd Element of Rightful Repossession) |
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Definition
| As soon as possible after the owner has discovered his property is missing |
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Term
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Definition
| A rapid chase as soon as possible after discovery of missing property |
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Term
| Wrongful Denial of Possession (4th Element of Rightful Repossession) |
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Definition
| Wrongfully refusing to return property. |
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Term
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Definition
| An owner has delivered possession of a chattel to someone else for a specific purpose with the explicit understanding that the property is to be returned at a certain time or upon demand. |
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Term
| Wrongful Dispossession (4th Element of Rightful Repossession) |
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Definition
| The dispossessor must not have a legal right to possess the chattel. |
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Term
| Mistake as a Defense to Intentional Tort |
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Definition
| The good-faith belief, based upon incorrect information, that one is justified in committing an intentional tort under the circumstances. |
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Term
| 3 Elements of Mistake as a Defense to Intentional Torts |
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Definition
| (1) The good-faith conviction, (2) based on faulty information, that one's actions are justified, (3) in taking action that otherwise would be considered tortious but for the mistaken belief. |
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Term
| Privilege as a Defense to Intentional Torts |
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Definition
| A legal justification to engage in otherwise tortious conduct in order to accomplish a compelling social goal |
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Term
| 2 Considerations for Privilege as a Defense |
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Definition
| (1) Do the TF's motives for tortious action outweigh the injury to the victim or his property? (2) Was the TF justified in committing the tort to accomplish his socially desirable purposes, or could a less damaging action be taken instead? |
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Term
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Definition
| The reason why a person does something. What is the goal driving the action? (vs. Intent = what and how) |
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Term
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Definition
| The resolve or purpose to use a particular means to reach a particular result. What a person wants to do and how he does it (vs. Motive = why) |
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Term
| Privilege in Restatement (Second) of Torts |
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Definition
| Privileges are conditioned upon their being performed for the purpose of protecting the interest for which the privilege was given. (ejecting a trespasser) TF is not liable if he acts in pursuance of and within the limits of a privilege of his own or another delegated to him. |
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Term
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Definition
| (1) Actor's motives in committing tort outweigh injury to the victim. (2) Actor was justified in engaging in tort to accomplish socially desirable goals. (3) No less-damaging alternative could have been taken. (4) Exception: Absolute privilege of judges, legislators, etc. where motive is immaterial. |
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Term
| Necessity as a Defense to Intentional Tort |
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Definition
| TF is justified in engaging in tort to prevent more serious injurty from an external force. |
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Term
| 4 Elements of Necessity as a Defense to Intentional Tort |
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Definition
| (1) Committing an intentional tort (2) which was reasonably necessary (3) to prevent a more serious injury (4) caused by an external force. |
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Term
| Thwarting a More Substantial Harm (Element of Necessity) |
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Definition
| Choosing between the lesser of two evils. |
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Term
| External Forces (Element of Necessity) |
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Definition
| Necessity defense can't be used if you created the harm yourself. |
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Term
| Reasonably Necessary Action (Element of Necessity) |
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Definition
| Using only that degree of force required to prevent the greater risk. |
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Term
| Necessity in Restatement (Second) of Torts |
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Definition
| An emergency makes it necessary, or apparently necessary, in order to prevent harm to another, to act before there is an opportunity to obtain consent. |
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Term
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Definition
| When persons are authorized by law to engage in certain conduct, and they are protected from liability. Relevant to public officers' immunity for enforcing legal processes. |
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Term
| Process, Process Serving, Service of Process |
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Definition
| (Immunity) Methods by which a defendant in a lawsuit is notified that a plaintiff has filed suit against him |
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Term
| Execution Sale / Sheriff's Sale |
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Definition
| (Immunity) A forced public sale held by a sheriff or other public official of property seized to pay a judgment. |
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Term
| Attachment as a Court Ordered Remedy in a Lawsuit |
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Definition
| (Immunity) Formally seizing property (by a law officer) in order to bring it under control of the court (when it is needed to pay a judgment) (to prevent the defendant from getting rid of it) |
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Term
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Definition
| (Immunity) A legal action to get back property wrongfully held by another person. An order to a defendant to return wrongfully possessed property to the plaintiff when the defendant refuses to return it. |
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Term
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Definition
| (Immunity) If law enforcement acting pursuant to an arrest warrant properly ordered by a judge, and they act in good faith, they won't be liable for a tort. |
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Term
| Immunity for Prosecutors and Judges |
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Definition
| Prosecutors and Judges acting in the scope of their positions are privileged and immune from liability for their actions. |
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Term
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Definition
| Permits liability of public officers if the performance of their duties involves activities that infringe upon a person's civil rights. |
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Term
| Warrantless Arrest by Law Enforcement Officials or Citizens (Immunity) |
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Definition
| Law enforcement officers are authorized to arrest criminal suspects without a warrent under certain circumstances (such as having witnessed a felony). Also citizens, if they witness a felony or breach of peace. |
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Term
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Definition
| Normally two years for intentional torts (but should be researched for a particular cause of action) |
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Term
| Workers' Compensation as a Defense to Intentional Tort |
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Definition
| Workers' Compensation statutes bar tort actions against employers and are considered a worker's sole remedy for on-the-job injuries and death, regardless of fault (in most states) |
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Term
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Definition
| Insurance that provides cash benefits and/or medical care for workers who are injured on the job or become ill or die as a result of their job. Paid for by employers. No one party is found to be at fault. Injury must be at work and be related to work. |
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