Defence
French
défense: Latin defensa: defendere, to strike down or away, ward off, repel.
Mid. Eng. defence.
That
which is proposed by the defendant to defeat their opponents claim by denial of
the injury, by justification of the cause of injury, or by reducing or
eliminating the damages therefrom.
Defence
| Einwendung / Rechtfertigung
Evidence
offered by the accused to refute a charge.
Defence,
Affirmative
A
defence based not on the falsehood of the accusation but rather upon some
excuse or justification (q.v.) which may limit the damages in whole or in part.
Common affirmative defences include assumption of risk, incapacity, self
defence and the statute of limitations among others. The defendant bears the
burden of proof as to affirmative defences.
Defence,
Dilatory.
A
defence made not on the merits but to obstruct and harrass the prosecution of
the claim and which does not touch upon the substantive merits of the claim.
Defence,
Equitable
A
defence founded not on a theory of law but on a theory equity or on both a
theory of law and of equity. See: Equity
Defence,
Full.
A
defence in the common law which contests both the finding of damages, that the
defendant was negligent, and the extent thereof, that if the defendant were
negligent, that his damages would be not what the plaintiff claims but some
other lower value.
Defence,
General
A
general denial of the material allegations of a claim.
Defence,
Legal
A
defence made on a theory of law as opposed to equity.
Defence,
Peremptory
A
defence which asserts that the plaintiff does not have or never had a cause of
action.
Defendant
| Beklagte
The
party against whom recovery is sought and thus s/he who defends. The party
complained against. In criminal cases, the person accused of the crime. In
civil matters, the person or organization that is being sued.
In
equity actions the defendant is sometimes called the respondent. In practice
this term has disapperead with the merger of law and equity. The term
respondent is also, and much more commonly, used to designate the person
responding to an appeal.
Delict/Tort
| Delikt (~Haftung)
Latin:
Torquere, To twist. French: Tort – Wrong
A
private, i.e. civil and not criminal, wrong or injury other than an injury
resulting out of a contractual obligation, for which the law will grant a
remedy. See: prima facie tort. See: tort, prima facie tort
Deterrence
| Abschreckung / Prävention
One
of the theories upon which liability in tort is justified. The idea being
simply that the liability in tort will deter and prevent negligent errors.
Discernment
| Einsichtsfähigkeit
Being
of such an age that the law will impose ordinary legal responsibility upon the
person. Having attained the age of majority and suffering from no
incapacitating infirmity. See: children, capacity.
Disclaimer
/ Waiver |
Ordinarily
a tort will imply a remedy – ‘for every right there is a remedy’. However a
plaintiff may have waived their right, either expressly or implicitly. Where
that waiver was knowing, (i.e. appreciating the risks and dangers) intelligent
and voluntary (absence of coercion) that plaintiff will not be able to recover
for they have accepted the risk and thus the damage.
To
avoid tort liability manufacturors and merchants will often include disclaimer
clauses in their sales contracts. However these clauses may – or may not – be
declared void as against public policy.
Discrimination
| Diskriminierung
The
effect of a statute which arbitrarily affords certain privileges to one class
of persons yet denying them to another class of persons where no reasonable
distinction can be made between the two classes. Unfair treatment or denial of
rights or privileges to persons because of their race, age, nationality or
religious heritage or convictions.
Baker
v. California Land Title Co., O.C.Cal., 349 F.Supp. 235, 238, 239.
Division
of the burden of proof | Beweislastverteilung
In
some cases the burden of proof of certain elements of the claim will be on one
party, while other elements of the same claim will be on the other. For
example, in cases of libel, the plaintiff must prove the defamatory assertion
after which damages are presumed. The defendant however can move to prove the
truth of the matter asserted - but will bear the burden of proving the truth of
the libelous statement.
Due
Care / Standard of Care
The
care that an ordinarily reasonable and prudent person would use under the same
or similar circumstances. Proving the failure to exercise due care toward a
person who one has a legal duty resulting in injury to that person establishes
a prima facie tort. Due care is one of the standards of care (q.v.) in tort.
Physicians
are held to a higher standard of care, not that of a reasonably prudent person
but of a reasonably prudent physician.
Gillette
v. Tucker, 67 Ohio St. 106, 65 N.E.
865.
Bruni
v. Tatsumi, 46 Ohio St.2d 127, 129, 346 N E.2d 673, 676
doctors
Duress
| Zwang / Nötigung
Overwhelming
force which compels a defendant to act or fail to act to the injury of another.
Though that act or ommission would normally constitute a tort, here it may not
if the defendant can prove that their conduct was justified because of duress.
Hyde
v. Lewis, 25 lll.ApP.3d 495, 323 N.E.2d 533, 537.
Williams
v. Rentz Banking Co., 112 Ga.App. 384, 145 S.E.2d 256, 258.
Duty
Legal
or moral obligation. When recognised as a legal obligation the precondition for
all torts.
Rasmussen
v. Prudential lns. Co., 277 Minn. 266, 152 N,W.2d 359, 362.
Duty
of Care | Verkehrspflicht („Sorgfaltspflicht“)
The
duty of the defendant to act as a reasonably prudent person. This duty may be
elevated to one of utmost care in certain situations such as bailors
Duty
to act | Pflicht zu Handeln
Ordinarily
the common law, unlike continental civil law, does not impose an affirmative
duty to act. However the exceptions to the general rule of “no duty” are
numerous: For example family members, working colleagues and contracting
parties will all have a legal duty in tort to act non-negligently toward each
other.
Duty
to ensure safe premises | Verkehrssicherungspflicht
An
owner of real property is under a duty to warn invitees of hidden dangers on
his or her property.
Duty,
Organisational | Organisationspflicht
The
liability of a corporation is the same as that of a natural person. However the
corporation’s shareholders – unlike its board of director’s and employees –
will only be liable for the torts of the corporation to the extent of their
investment. Like any employer a corporation can be held liable for torts to
it’s employees which occur at the workplace according to the vicarious
liability imposed by the principle of respondeat superior (q.v.).
Due
Care / Standard of care
The
ordinary care which one is obliged to use towards others to protect against
risk of injury. The care attention and watchfulness which a reasonable person
would exercise under the circumstances in which he or she finds herself.
Failure to meet this standard constitutes one element of a prima facie tort,
namely breach of legal duty. The standard of care may be higher than ordinary
due care so the terms are not exactly synonymous. Due care is the ordinary
standard of care.
The
general rule is that the standard of care is that of a reasonably prudent
person. Exceptionally higher or lower standards of care can be imposed.
Murray
v. De Luxe Motor Stages of lllinois, Mo.App., 133 S.W.2d 1074, 1078.
Duty
Anglo-French
deuté indebtedness, obligation, from deu owing, due.
An
obligation, whether imposed by law or assumed by contract to conduct oneself
according to a certain standard such as
the standard of ordinary care. For example landowners have a duty to
maintain safe premises, drivers have a duty to drive responsably. Proving the
existence of a duty is one element of a prima facie tort. (proving its breach,
causation in fact, and legal causation are the others).
No
Duty Doctrine
The
general rule at common law is that persons are generally not subject to legal
duty. This is not the case in civil law jurisdictions. There are many
exceptions to the general rule in the common law.Family relations and
co-workers owe a duty to each other. Duty can be assumed by one’s actions. Thus
though one has no duty to aid a stranger once aid is offered to them that aid
must be non-negligent.
Duty,
breach
Literally,
to break.
The
term used to designate the failure to comply with one’s legal duty, for example
in tort the legal duty to act non-negligently. Breach of an existing legal duty
is one element of a prima facie tort (q.v.).
-E-
Efficient
Cause
A
synonym for proximate cause. Hillis v. Home Owners' Loan Corporation, 348 Mo.
601
That
cause which vhich Produces results which would not have come to pass except for
its interposition, and tor which, therefore, the person who set in motion the
owgina chain of causes is not responsible.
Southland
Greyhound Lines v. Cotten, Tex.Civ.App., 55 S.W.2d 1066, 1069
See
also: intervening / superseding cause.
Emergency
| Notfall ?
At
common law – unlike the continental civil law - there is no duty to rescue
persons in an emergency. The only justification for that rationale is the fact
that some persons may not in an emergency have the calm required to perform a
rescue.
Statutes
in some common law jurisdictions impose an affirmative duty to rescue or
perform medical treatment on physicians and other persons employed as
professional rescuers.
State
v. Perry, 29 Ohio App.2d 33, 278 N.E.2d 50, 53.
Eminent
domain
Eminent
domain is the right of the soveriegn over all property within its territorium.
It is the right of the soveriegn to confiscate without compensation.
Constitutional limitations on this sovereign power may exist and do exist in
the United States where property when taken
by the government must be fairly compensated and may only be taken for
public use.
Authority
of Cherokee Nation of Oklahoma v. Langley, 555 P.2d 1025, 1028.
Emotional
Distress | Gefühlsschaden
Damages
for emotional distress were greeted with skepticism at common law, all the more
so where no claim of material injury was averred. Still one could consider
assault an example where even the common law would permit recovery for
intentional infliction of emotional distress. And later the common law did
recognize exactly this tort: an intentional, i.e. willfull, action undertaken
to cause emotional distress can be a cause of action in tort. More dubious
however is the claim of a tort for negligent infliction of emotional distress.
Such claims have been recognized by some jurisdictions but only very recently
and not without skepticism and criticism. See: Negligent infliction of
emotional distress, intentional infliction of emotional distress.
Employee
vs. Independent Contractor
To
determine whether a person is an employee or a contractor a number of factors
must be considered in their totality: none of the factors are dispositive alone
but taken together with the others will lead to the determination of the status
of the person. A designation of the relationship by the parties without the
underlying relation is not controlling.
One
of the most important considerations is the degree of control exercised by the
company over the work of the workers.
Another factor to be considered is the duration of the relationship:
independent contractors are seasonal whereas employees are generally employed
indefinitely at will. An independent contract will tend to be paid not by the
hour but by the job as a flat rate or on commission.
Persons
injured by the negligence of an independent contractor will not be able to
recover against the person who bid the services of that contractor unless there
was negligence as to the hiring of the contractor. In contrast victims of
ordinary employees may have a recovery either against the employer or the
employee who will be jointly and severally liable under a theory of respondeat
superior. See: respondeat superior, vicarious liability, organizational
liability.
Riverbend
Country Club v. Patterson, Tex. Civ. App., 399 SW.2d 382, 383 (1965)
Hammes
v. Suk, 291 Minn. 233, 190 N.W.2d 478, 480, 481.
Sparks
v. L. D. Folsom Co., 217 Cal.App.2d 279, 31 Cal.Rptr. 640,
Housewright
v. Pacific Far East Line, Inc. (1964) 229 Cal. App. 2d 259, 40
Cal.Rptr.
208, 212;
Dowling
v Mutual Life Ins. Co. of New York, 168 So.2d 107, 112 (La.App.1964).
Enterprise
liability
Liability
of a business either for the on-the-job injuries of its employees or for the
collective liability of an entire industrial sector where it is clear that that
sector had produced a defective product but where the specific manufacturer
cannot be identified. See mass tort, market share liability (q.v.).
Employment
The
hiring of a person for compensation. Whether an act occurred “within the scope
of employment” will determine the liability of the employer for the torts of
the employee toward third parties.
Hinton
v. Columbia River Packers' Ass'n, C.C.A.Or., 117 F.2d 310. 117
Employment-at-will
Employment
for so long or so brief as the employer chooses. This is the usual form of
employment in the United States. At will employees may be fired at any time for
any reason or no reason at all.
Epedemiological
proof
The
study of medicine and probabilities in order to determine the causation of
illness and the application of these two sciences to the proof of facts in a
court of law. Epedemiological proofs are most often used in cases of toxic
torts (q.v.) and mass torts (q.v.).
Equity
Latin
aequitat- aequitas fairness, justice, from aequus equal, fair
Equity
can refer to an interest in a property not equivalent to the value of the
property. This meaning is not our concern here but is mentioned in order to
prevent further confusion in an already dense and obscure area of the common
law.
Historically
speaking the equity courts assured the function of justice as fairness and corrected
the mechanical legalistic application of rules of the law courts.
The
courts of equity arose in England from a need to provide relief for claims that
did not conform to the writ system existing in the courts of law. Originally,
the courts of equity exercised great discretion in fashioning remedies. Over
time, they established precedents, rules, and doctrines of their own that were
distinct from those used in the courts of law.
The
courts of equity were instituted by the King, then through his Chancellor to
correct the harsh legalism of the law courts. As a special and discretionary
correction instance the equity courts imposed moral restrictions upon the
plaintiffs and also limited the remedies they would award. While some remedies
would only be available at law, others would only be available at equity
(namely injunction and specific performance). Thus a procedural legalism
developed regqrding legal or equitable jurisdiction. This legalism however recreated the very problem
the equity courts were intended originally to correct! This situation has been
remedied somewhat by the fusion of law and equity courts into one general court
of first instance both in the U.S. and the U.K. – though the procedural
distinctions continue to survive.
Gilles
v. Department of Human Resources Development, 11 Cal.3d 313, 521 P.2d 110.
Evidence
Those
objects or statements which tend to prove or disprove the elements of a claim.
The things presented in court for the purpose of proof of matters there
asserted.
Taylor
v. Howard, lll R.I. 527, 304 A.2d 891, 893.
Testimony,
documents, photographs, maps and video tapes are all examples of evidence.
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