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MSU / Marketing / MKT 2413 / What are the 3 elements of negligence?

What are the 3 elements of negligence?

What are the 3 elements of negligence?

Description

School: Mississippi State University
Department: Marketing
Course: Legal Environment Business
Professor: Cecelia cook
Term: Spring 2015
Tags:
Cost: 25
Name: Notes from February 21-21
Description: These notes cover what was discussed in classes on these two dates. These notes will be on the second test of the semester.
Uploaded: 02/25/2017
7 Pages 46 Views 3 Unlocks
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B. Law Notes


What are the 3 elements of negligence?



February 21, 2017

Ch. 6 Torts

I. Torts

a. Purpose of tort law is to make a person whole again through  compensation for injuries

b. Tort: a civil wrong resulting from unreasonable interference with  another person or another person’s property

c. 3 basic things of tort law

i. Civil wrong not criminal wrong

1. We are trying the action not the person

ii. Burden of proof establish case for plaintiff

1. Preponderance of credible evidence

iii. Source of law

1. Common law  

d. Three areas of tort law

i. Intentional torts

1. An act done with purpose

2. “It is so basic that even a dog knows the different  


What is the most common tort?



between being kicked and being tripped over” –

Oliver Holmes **Test Question**

3. Def: wrongful act committed with intent and knowledge  

of the consequences

4. Intent to commit an act

5. This area of the law is driven by facts and circumstances

6. There are six intentional torts

a. Assault: the intentional threat of eminent harm

b. Battery: unpermitted or offensive touching

i. May include indirect contact We also discuss several other topics like What do liverworts hornworts and mosses have in common?

1. Ex: knocking a hat off other’s head

ii. Transferred intent is when harm is  

visited upon a third party **Test  

Question**

c. False imprisonment: intentional confinement or  


What are the requirements for false imprisonment?



restraint of a person without justification

i. Protecting freedom of movement with  

law

ii. Distinctive feature: you have to have  

knowledge that freedom to move has  

been restrained

1. You must test it

a. Ex: try to open the locked  

doors

iii. Called shopkeepers tort: we allow them to  

hold shoplifters with two requirements

1. Reasonable suspicion they stole

2. You can only hold them for  

reasonable period of time without  

the use of force

d. Defamation: wrongful harm to another person’s  reputation and good standing in the community  by false statement If you want to learn more check out What is the rate of change of position?

i. Protecting reputation

ii. Two kinds

1. Slander – spoken word

2. Libel – written work

a. You don’t have to be the  

original party who posted  

the libel if you repost it

iii. Four requirements to establish  

defamation

1. False statement

2. Identification: enough information  

that general population would  

know who you’re talking about

3. Publication requires it be said or  

given/stated before a third party

4. Damages: there must be some kind  

of harm

5. These four apply to anyone

6. There is a fifth requirement for  

public figures:

a. Malic, mean evil intent to  

do harm

7. One absolute defense to  

defamation is the truth

e. Invasion of privacy

i. Protecting the right to privacy and  

solitude Don't forget about the age old question of What is the meaning of coercive power?
We also discuss several other topics like What is the action of the effector opposes the original stimulus?

ii. Four acts that we use to define invasion of  privacy

1. Intrusion into an individual’s  Don't forget about the age old question of When to update the master file?

private affairs or seclusion

a. Ex: home/office

2. False light: statement or writing  

associating a person with a cause  

they do not follow

3. Public disclosure of private facts:  

facts that would embarrass

someone

a. Ex: saying they have an STD

4. Appropriation of identity for  

commercial purpose

a. Ex: voice overs

f. Fraudulent misrepresentation: a statement that  causes a person to believe that conditions are  

different

i. Ex: like that car is in mint condition

ii. Five elements:

1. False statement of material fact

2. Made knowing that statement is  

false/reckless disregard for the  

truth

3. Intending that hearer rely on  

statement

4. Hearer justifiably relies on the  

statement

5. Damages  

ii. Unintentional torts

iii. Strict or absolute liability

B. Law Notes

February 23, 2017

I. Exception to fraud

a. Puffery: “salesman talk”

i. We expect that when we talk to salesmen that they are going to  give us all the good information about product and puff it up to  If you want to learn more check out What are the major mineral classes?

sell and enhance their likelihood of selling the product.

ii. As long as they term it in conditions of opinion it is not fraud. II. Torts against property

a. Trespass to personal property

i. Also called trespass to chattels **Test Question**

ii. The wrongful taking or harming another person’s personal  

property

iii. This deprives the true owner possession or ownership

iv. This includes destroying or damaging another person’s  

property

v. This is the civil side of theft or destruction of property

b. Conversion

i. Depriving the owner of the use of his or her property

ii. The best example involves bailment when the bailee refuses to  return or fails to return the property

c. Trespass to real property

i. On someone’s property without permission

ii. Does not have to involve intent or harm

iii. Can occur in three different ways

1. Actually entering another person’s property surface or  

subsurface

a. Subsurface: tunneling under someone else’s  

property or digging under another person’s  

property

2. Remaining on land after you’ve been told to leave

3. Causing anything to fall onto another person’s property

a. Ex: sticks, stones, trash

III. Unintentional torts

a. Also called negligence

i. The failure to use due care and caution under the  

circumstances

1. Greatest example is car accident

2. Negligence is always driven by facts and circumstances

3. Actions without thought of consequences

ii. There is a standard to measure negligence

1. The reasonably prudent person (RPP)

2. If it is an act that the RPP would have done, then it is not  

negligence.

3. If it is an act that the RPP would not have done, then it is  negligence

iii. Negligence can be an act or omission

iv. Four elements to establish negligence

1. Duty

a. We all have the duty to act reasonably towards  

other people and their property

b. We can’t infringe on someone else’s space and  

their enjoyment of their property

c. Duty of landowners

i. What is your duty to trespassers?

1. You can’t take action that harms  

trespasser  

2. You cannot set a trap that will  

physically harm a person

a. You don’t know intention of  

person

b. The trap has no discretion

i. Does not know age  

and why person is  

there

ii. Children are the  

majority of  

trespassers

c. Catcoe v. Briney

i. In this case the  

defendant, Briney,  

inherited property

with an abandoned  

house.  The house  

was full of junk.  He  

put no trespassing  

signs on the house.  

He boarded up the  

house.

ii. “Spring gun case”

iii. He set up gun to go  

off when door opens

iv. Human life is valued  

over property rights

ii. Licensees

1. People that come onto property  

for their own benefit or purpose

2. Anyone involved with utilities to  

do their job

3. Postman

4. Social guests: if you have a party

5. Duty here is to warn them of  

nonobvious dangers

iii. Business invitees

1. People who come into your  

business for you benefit

2. Owner has highest duty here

3. You have the duty to inspect your  

business property, warn invitees,

and fix problems found

4. Premises liability

iv. Duty of professionals

1. Standard of reasonably prudent  

professional  

2. If a professional fails to meet  

his/her professional duty, it is  

malpractice  

a. Professional negligence  

2. Breach of duty

a. The failure to act as a reasonable person

3. Causation

a. Did your actions cause the harm?

b. In order to establish causation there are two  questions that have to be answered

i. Actual cause: (but for) test

1. But for the fact that you were  

speeding, the plaintiff would not  

have been hurt

2. Usually pretty easy to answer

3. The problem is it is limitless  

because we can take that to the  

most ridiculous of extremes

**Test Question**

a. Ex: but for the fact that the  

earth was created

ii. Proximate cause: legal cause

1. Legal cause takes into account  

foreseeability

2. Was it foreseeable that because of  

your actions, the plaintiff was  

hurt?

3. Most infamous negligence case

a. Paulsgraf v. the long island  

railway company

b. Drops package of fireworks  

when getting on train and it

exploded when dropped

that knocked over scale that  

hit paulsgraf and she sued

c. Paulsgraf lost the case

4. Damages  

a. Covered at beginning of chapter

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