[h] CPCU 410 – Module 5
[q] Comparative negligence
[a] A principle that requires the two parties to share the financial burden of a loss based on their respective degrees of fault.
[q] Rules for applying comparative negligence
Pure comparative negligence rule – plaintiff can recover a percentage of their damages.
50% rule – plaintiff can only recover a percentage of their damages if their liability is 50% or less.
49% rule – plaintiff can only recover a percentage of their damages if their liability is 49% or less.
Slight vs. gross rule – plaintiff can recover only if their fault is slight in comparison.
[a] A contract that will release parties from further obligation after the contract is fulfilled.
[q] Exculpatory clause
[a] A contract clause in which one party agrees not to sue if injured.
[q] Gross negligence
[a] The failure to exercise even the slightest amount of care.
[a] A defense that shields certain parties from negligence claims.
[q] Sovereign immunity
[a] Governmental immunity; a defense that protects the government against tort lawsuits.
[q] Public official immunity
[a] A type of immunity that applies to local government officials.
[q] Charitable immunity
[a] A defense that shields charitable organizations from liability.
[q] Statute of limitations
[a] A statute that places a limit on the time period a plaintiff has to file suit.
[q] Statute of repose
[a] A statute that requires a plaintiff to file a lawsuit within a certain period of time after the defendant commits a wrongful act.
[q] Tortfeasor’s capacity
[a] A defense to a tort claim that may be available if the tort requires intent. Lack of capacity can potentially be used as a defense.
[a] A type of intentional tort that involves hostile or offensive bodily contact. Can be considered both a crime and a tort.
[q] Defenses to battery
The plaintiff consented to the act.
An act of self defense or defense of others.
An act of discipline.
[a] A type of intentional tort that does not involve physical contact. The other person must expect contact and fear harm.
[q] False imprisonment
[a] The confinement of a person without consent or authority. Unlawful non-physical restraint.
[q] False arrest
[a] The restraint of a person without authority. Unlawful physical restraint.
[q] Intentional infliction of emotional distress
[a] A type of intentional tort involving mental anguish resulting in physical symptoms.
[a] A false statement that harms someone’s reputation. Can involve slander or libel.
[a] The act of making a false spoken statement damaging to a person’s reputation.
[a] The act of making a false written statement damaging to a person’s reputation.
[q] Defenses to defamation
The statement was true.
The defendant retracted the statement.
The statement had privilege.
[q] Invasion of privacy
[a] Several common law torts that are based on an individual’s right to be left alone.
[q] Torts involving use or disclosure of information
Public disclosure of private facts.
Publicity placing the plaintiff in a false light.
Unauthorized release of confidential information.
Appropriation of the plaintiff’s name or likeness.
[q] Defenses to invasion of privacy
Plaintiff previously published the information.
Plaintiff consented to the publication.
Plaintiff is a public figure.
Information was part of a news event.
Publication would not offend an ordinary person.
Information is of public interest.
[q] Elements required to prove fraud
[a] Elements required:
A false representation was made.
The representation was material.
The misrepresentation was knowingly made.
There was intent to deceive.
The plaintiff relied on the misrepresentation.
The plaintiff suffered actual damage.
[q] Bad faith
[a] A breach of the duty of good faith.
[q] Defenses to bad faith
Lack of intent or recklessness.
No outrageous conduct occurred.
No contractual duty owed to plaintiff.
[q] Injurious falsehood
[a] Torts involving disparagement that causes harm to a legally protected intangible property right.
[q] Wrongful-life action
[a] A lawsuit on behalf of a child born with birth defects.
[q] Malicious prosecution
[a] The improper institution of legal proceedings against another
[q] Malicious abuse of process
[a] The use of civil or criminal procedures for a purpose for which they were not designed.
[q] Probable cause
[a] The grounds that would lead a reasonable person to believe the defendant committed an act.
[a] Interfering with the use or enjoyment of property.
[q] Private nuisance
[a] The unlawful interference with another’s enjoyment of their real property.
[q] Public nuisance
[a] An act that affects the public at large, interfering with public enjoyment regarding property.
[q] Intentional nuisance
[a] Purposeful interference with a person’s enjoyment of their property.
[q] Nuisance per se
[a] An ongoing nuisance, under all conditions and in all circumstances.
[a] The unlawful exercise of control over personal property owned by another. The interference must be major and not temporary.
[q] Products liability
[a] A liability for harm suffered by a buyer, user, or bystander as a result of a product that has a defect or inherent danger.
[q] Basis of most products liability suits
[a] Most product liability is based on:
Breach of warranty.
[q] Defect in manufacture or assembly
[a] A major type of product defect in which the product does not match the original design. Can lead to a lawsuit.
[q] Defect in design
[a] A major type of product defect in which the product matches the design but the design itself is flawed, resulting in injury. Can lead to a lawsuit.
[q] Failure to warn
[a] A major type of product defect in which the product is dangerous and the manufacturer did not provide warning. Can lead to a lawsuit.
[q] Defenses available in products liability suits
[a] Defenses available:
State of the art defense.
Open and obvious danger.
Assumption of risk.
Misuse of product.
Alteration of product.
[q] Federal Trade Commission Act
[a] A law that prohibits unfair practices and has been applied to data practices.
[q] Family Educational Rights and Privacy Act
[a] A law that protects students’ education records.
[q] Health Insurance Portability and Accountability Act
[a] A law that regulates how medical information can be stored and shared.
[q] Children’s Online Protection Act
[a] A law that imposes data collection and privacy requirements on websites targeted to children under 13.
[q] Gramm-Leach-Bliley Act
[a] A law that regulates collection, use, and disclosure of data by financial institutions.
[q] Homeland Security Act
[a] A law that addresses privacy issues related to homeland security.
[q] Federal Information Security Management Act
[a] A law that provides a mandatory framework for federal agencies to use in developing security programs.
[q] Cybersecurity Information Sharing Act
[a] A law that authorizes companies to monitor and defend their information systems.
[q] Categories of state data protection laws
Data privacy laws.
Breach notification laws.
Data security laws.
[q] Data privacy
[a] A concept representing the appropriate use of data.
[q] Data security
[a] The protection of data from unauthorized access.
[a] The protection of data from unauthorized access through the internet.
[q] Breach notification laws
[a] Laws in all 50 states that require organizations to notify individuals of security breaches.
[q] Personally identifiable information
[a] Unique information for a person, including social security number or address, that requires safeguarding.
[q] Data security laws
[a] State laws relating to the security of data.
[q] Best practices when managing data
[a] Best practices:
Appoint a chief information security officer.
Limit the number of employees that can access personal data.
Install security features.
Destroy personal data that isn’t needed.
Learn from mistakes.
[q] Joint tortfeasors
[a] Two or more parties who act together to commit a tort.
[q] Uniform Contribution Among Joint Tortfeasors Act
[a] An act that allows those paying more than their share of damages to collect from other tortfeasors.
[q] Enterprise liability
[a] An expanded liability concept in which manufacturers within an industry share liability for defective products.
[q] Alternative liability
[a] An expanded liability concept that shifts the burden of proof to each of several defendants when it is uncertain as to who caused injury.
[q] Market share liability
[a] An expanded liability concept in which the plaintiff must sue all manufacturers comprising a substantial share of the market.
[q] Concert of action
[a] An expanded liability concept that applies when all defendants acted together or cooperatively.
[a] An expanded liability concept that applies when two or more parties worked together to commit an unlawful act.
[q] Vicarious liability
[a] A situation in which one party is held partly responsible for the unlawful actions of a third party.
[q] Relationships that can result in vicarious liability
Parent and child.
[q] Negligent entrustment
[a] Leaving a dangerous instrument with a child.
[q] Negligent supervision
[a] A parent’s failure to exercise reasonable control over a child.
[q] Family purpose doctrine
[a] A situation in which the owner of an auto used by a family member can be held liable for damages while a family member is driving.
[q] Good Samaritan laws
[a] Laws that protect a person providing help to others. Provides that a person will not be liable for damages as a result from rendering aid.
[q] Class action lawsuit
[a] A lawsuit that permits one person to file a suit on behalf of an injured group.
[q] Mass tort litigation
[a] A class-action suit based on tort law rather than contract law.
[q] Features that must be considered to classify a suit as a class action suit
[a] Features that must be considered:
Adequacy of representation.