1. If Congress passed a law making it illegal to burn the American flag, that la
ID: 420744 • Letter: 1
Question
1. If Congress passed a law making it illegal to burn the American flag, that law would be unenforceable. However, a private employer could legally fire an employee for doing so. Why the difference? 2. If a person was found guilty of a crime, and the victim wants to sue for damages in a civil case, the jury can be told to accept as a fact that the event that led to the conviction has occurred. The jury's only job would be to determine damages. Why? 3. What is the difference between actus reus and mens rea? Give an example. 4. Explain the difference between a tort and a crime. Explain how the same act can be both. 5. What are the elements of negligence and what defenses are there? 6. When strict liability is applied, there are very few defenses available. What are some of the policy reasons for imposing such a high standard of culpability? 7. What are the requirements for an offer to be a 8. Give an example of an offer that appears to be 9. Does every single term have to be spelled out in valid offer? indefinite, but has been held to be a valid offer. a contract in order for it to be valid? If not, give an example.Explanation / Answer
1)
If Congress passed a law making it illegal to burn the flag, it'd be unenforceable because it of the First Amendment's protection in freedom of speech. However, employees in the private sector have limited free speech in order to avoid what the employer believes is profanity, rude comments, controversial political views, or sharing confidential company information.
2)
Since the person was found guilty of a crime, the level of proof would be beyond reasonable doubt. Therefore, there is a higher standing of proof and the jury's only job would be to determine damages.
3)
Difference between actus reas and men’s rea. Example.
Acts reaps is the act committed that caused the crime. Men's rea is the state of mind you had that caused the crime. An example of acts reaps would be murder and example of men's rea would be having the intention to rob a bank.
4)
A tort is a private wrong, whereas a crime is a public wrong. A tort is an infringement or privation of the civil rights which belong to individuals, considered merely as individuals, while crime is a public wrong. Crime is a breach and violation of the public rights and duties due to the whole community, in its social aggregate capacity.
An offence, which is punishable as a crime, may also be treated as a tort if it is shown that it has caused special injury to an individual, and gives rise to a civil action, if the aggrieved individual proves that the injury suffered by him is distinct from that suffered by the general public.
The real distinction between a tort and a crime lies in the method in which the remedy for the wrong is pursued. Tort differs from crime both in principle and procedure.
Every tortious act does not amount to crime, nor does every crime include a tort. There are certain points of distinction between a tort and a crime, which are tabulated below:
Tort:
1. A tort is a species of a civil wrong. It gives rise to civil proceedings
2. In a tort, the plaintiff is the injured party.
3. A tort is a violation of the private rights of an individual.
4. The wrong-doer is liable to compensation to the injured party.
5. The purpose of awarding compensation to the injured party is to make good the loss suffered by him.
6. The nature of punishment is lighter, that too in the shape of awarding damages.
7. In tort, the intention is not important factor.
8. Mens rea has no place in tort.
9. The principles of “Injuria sine damnum”, “Damnum sine injuria”, “Vicarious Liability”, “Respondeat Superior”, “Absolute Liability”, “Precautionary Principle”, “Polluter Pays’ Principle”, etc. are recognised in the Law of Torts.
10. Burden of proof lies on the complainant/ injured.
11. Natural Principles of Justice, good conscience, equity, etc. are followed in fixing the wrong-doer’s liability.
12. Most of the Law of the Torts is judge-made- law. It is not codified.
13. It is the latest subject.
14. The offences under the torts do not involve any element of moral turpitude. The wrongdoers of torts are punished by way of damages for the better social welfare and efficiency.
5)Elements of a Negligence Case
In order for a plaintiff to win a lawsuit for negligence, he or she must prove all of the "elements." For instance, one of the elements is "damages," meaning the plaintiff must have suffered damages (injuries, loss, etc.) in order for the defendant to be held liable. So, even if you can prove that the defendant was negligent, you may not be successful in your negligence lawsuit if that negligence caused you no harm.
When deciding on a verdict in a negligence case, juries are instructed to compare the facts, testimony, and evidence in determining whether the following elements were satisfied:
duty
Breach of Duty
Cause in Fact
Proximate Cause
Damages
These five elements are explained in greater detail below. See FindLaw's Negligence section for additional resources and articles.
Duty
The outcome of some negligence cases depends on whether the defendant owed a duty to the plaintiff. A duty arises when the law recognizes a relationship between the defendant and the plaintiff requiring the defendant to act in a certain manner toward the plaintiff. A judge, rather than a jury, ordinarily determines whether a defendant owed a duty of care to a plaintiff, and will usually find that a duty exists if a reasonable person would find that a duty exists under a particular set of circumstances.
For example, if a defendant was loading bags of grain onto a truck and struck a child with one of the bags, the first question that must be resolved is whether the defendant owed a duty to the child. If the loading dock was near a public place, such a public sidewalk, and the child was merely passing by, then the court may be more likely to find that the defendant owed a duty to the child. On the other hand, if the child were trespassing on private property and the defendant didn't know that the child was present at the time of the accident, then the court would be less likely to find that the defendant owed a duty.
Breach of Duty
It's not enough for a plaintiff to prove that the defendant owed him or her or a duty; the plaintiff must also prove that the defendant breached his or duty to the plaintiff. A defendant breaches such a duty by failing to exercise reasonable care in fulfilling the duty. Unlike the question of whether a duty exists, the issue of whether a defendant breached a duty of care is decided by a jury as a question of fact. Thus, in the example above, a jury would decide whether the defendant exercised reasonable care in handling the bags of grain near the child.
Cause in Fact
Under the traditional rules in negligence cases, a plaintiff must prove that the defendant's actions were the actual cause of the plaintiff's injury. This is often referred to as "but-for" causation, meaning that, but for the defendant's actions, the plaintiff's injury would not have occurred. The child in the example above could prove this element by showing that but for the defendant's negligent act of tossing the grain, the child would not have suffered harm.
Proximate Cause
Proximate cause relates to the scope of a defendant's responsibility in a negligence case. A defendant in a negligence case is only responsible for those harms that the defendant could have foreseen through his or her actions. If a defendant has caused damages that are outside of the scope of the risks that the defendant could have foreseen, then the plaintiff cannot prove that the defendant's actions were the proximate cause of the plaintiff's damages.
In the example described above, the child would prove proximate cause by showing that the defendant could have foreseen the harm that would have resulted from the bag striking the child. On the contrary, if the harm is something more remote to the defendant's act, then the plaintiff will be less likely to prove this element. Assume that when the child is struck with the bag of grain, the child's bicycle on which he was riding is damaged. Three days later, the child and his father drive to a shop to have the bicycle fixed. On their way to the shop, the father and son are struck by another car. Although the harm to the child and the damage to the bicycle may be within the scope of the harm that the defendant risked by his actions, the defendant probably could not have foreseen that the father and son would be injured on their way to having the bicycle repaired three days later. Hence, the father and son wouldn't be able to satisfy the element of proximate causation.
Damages
A plaintiff in a negligence case must prove a legally recognized harm, usually in the form of physical injury to a person or to property. It's not enough that the defendant failed to exercise reasonable care. The failure to exercise reasonable care must result in actual damages to a person to whom the defendant owed a duty of care.
Filing a Negligence Claim
Even if you're confident that all the elements for a negligence claim are present, it takes a skilled lawyer to make a compelling case and ultimately win. And since you can have your claim evaluated absolutely free, there's no risk in consulting with an attorney if you have been injured as a result of someone else's negligence.
Negligence Defenses
You had a few too many cocktails during Happy Hour, but somehow you remembered to stop off at the market to pick up cat food. On your way down the pet food aisle, you trip, slip, and slide on your bottom from one end of the store to the other. Ouch!
When help arrives, it was witnessed that no slip hazard existed. No spills, no sticky stuff, nothing! But everything, from your bum to your ego, is sore, and you want justice. Well, not so fast - the law may see it a different way.
Although mostly abolished by the courts in modern times, contributory negligence may save the market from a costly lawsuit. This defense holds the plaintiff responsible for their injury if the plaintiff was in any way responsible for it - even if the defendant was more responsible for the injury than the plaintiff.
In other words, if you arrived at the market after a night of heavy drinking, that may have been the contributing cause for your fall. Had you not been drinking, it is possible, even probable, that you would have remained upright.
The more recognized defense is comparative negligence. In this defense, the court will apply a percentage of negligence to both parties, depending on the degree of responsibility each has toward the injury.
So, in the case of the grocery store slip, the court will want to know a few things:
How much alcohol did the plaintiff consume prior to shopping?
What type of shoes was the plaintiff wearing at the time of the fall?
Was the floor clean and dry at the moments prior to the fall?
Was the fall foreseeable?
There are three categories of comparative negligence: pure, modified, and slight-gross.
Pure comparative negligence awards the plaintiff damages based on the percentage the defendant is responsible for injury. Let's say you order a hot bowl of soup at a restaurant. When the server arrives, he warns you that the contents may be hot and to be careful when eating the soup. If you dive right in and take a big spoonful and burn your tongue, the restaurant is not liable for the burn. You were warned about the soup's temperature prior to consuming it. Now, had the waiter failed to warn you that the soup may be hot, you may just have a case.
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