1. Causes of Action and Remedies Unit 3

2. Housekeeping Feedback on Action Item 1 Grading Rubrics posted in DocSharing Now Grading Action Item 2

3. General Questions?

4. Actionable Courts cannot undo every wrong. Based on experience, courts have determined that only certain kinds of wrongful conduct, which cause certain kinds of losses, should be “actionable.”

5. Cause of Action A claim that is actionable states a “cause of action” or is a “cause of action.” A cause of action is a legal theory on which a court will grant relief to a plaintiff against a defendant.

6. Not Causes of Action An unflattering or hurtful remark. Having someone “steal” the parking space you were waiting for. Someone cuts you off in traffic. A woman or man breaks off a marriage engagement.

7. Other examples? Can you think of other examples of “wrongs” that probably do not rise to the level of being actionable in court?

8. Critical Aspects A COA:  Is fashioned to give effect to a particular legal duty.  Has specific requirements that must be met.  Affords a particular remedy or remedies.  Is subject to certain defenses and time limitations.

9. Plaintiff Must Prove 1. The defendant breached a legal duty that the defendant owed to the plaintiff. 2. The plaintiff sustained an injury or property damage or monetary loss. 3. The defendant’s breach of the legal duty was a proximate (direct) cause of the injury, damage, or loss.

10. Affirmative Defenses Usually based on some wrongful conduct of the plaintiff. Defendant has burden of proving affirmative defenses.

11. Examples Assumption of risk and contributory negligence are common affirmative defenses in civil litigation. Self-defense is a common affirmative defense in criminal litigation.

12. Question What does it mean that the defendant has the “burden” of proving an affirmative defense?

13. Breach of Contract A breach of contract is a failure to comply with the terms or conditions of an agreement. A COA for Breach of Contract arises when the defendant fails to perform his or her part of the contract.

14. Breach of Contract The plaintiff must plead and prove that: 1. There was a contract. 2. The defendant breached the contract by failing to comply with one of its material terms or conditions. 3. There was a loss resulting from the defendant’s breach – including the nature and extent of the loss.

15. Sample Exhibit 4.1 on page 83 of your text has a helpful example of a Complaint for Breach of Contract.

16. Justin King Based on what we know (or imagine to be the case), do you think Justin King has a COA for Breach of Contract against MCI Records?

17. Justin King Based on what we know (or imagine to be the case), is it possible that MCI Records has a COA for Breach of Contract against Justin King?

18. Justin King A plaintiff’s own breach of contract provides an affirmative defense to the defendant. The defendant must prove the breach.

19. Negligence To understand negligence, it is necessary to understand the underlying duty of reasonable care.

20. Negligence Negligence is failure to use reasonable care where significant harm is a foreseeable consequence. The law does not demand perfection.

21. Negligence Adults are charged with knowledge ordinarily possessed by members of a community and knowledge of natural laws such as gravity.

22. Negligence A COA in Negligence requires proof that the defendant was negligent and that the defendant’s negligence directly caused the plaintiff’s injury or loss.

23. Negligence Duty Breach Causation Damages

24. Examples Suppose a person sees a neighbor using a metal ladder very near an un-insulated power line and recognizes the neighbor is in danger. Does the neighbor have a duty to warn or stop the neighbor from going near the line?

25. Examples Suppose a person sees a neighbor using a metal ladder very near an un-insulated power line and recognizes the neighbor is in danger. Does the neighbor have a duty to warn or stop the neighbor from going near the line? NO. The law does not require ordinary individuals to act to protect fellow citizens.

26. Examples Suppose a pedestrian discovers a trench in the road and realizes that motorists may not be so fortunate to see or avoid it. Does the pedestrian have a duty to warn approaching motorists?

27. Examples Suppose a pedestrian discovers a trench in the road and realizes that motorists may not be so fortunate to see or avoid it. Does the pedestrian have a duty to warn approaching motorists? NO. However, the person who excavated the trench or failed to erect barricades is negligent.

28. Malpractice Malpractice cases are similar to negligence cases. They are claims against professional people based on their alleged failure to comply with the standards of their profession.

29. Justin King Who can Justin King sue for negligence (not malpractice)? Remember: Duty Breach Causation Damages

30. Employers Respondeat superior is a legal doctrine which states that, in many circumstances, an employer is responsible for the actions of employees performed within the course of their employment.

31. Justin King Who can Justin King sue under the doctrine of respondeat superior?

32. Justin King Who can Justin King sue for malpractice?

33. Justin King What affirmative defenses might the potential defendants raise against Justin King?

34. Best Case Which COA has the most chance of success for Justin King? Why?