Law Philospher: ABSOLUTE LIABILITY / STRICT LIABILITY | GEFÄHRDUNGSHAFTUNG UNBEDINGTE HAFTPFLICHT / DIE KAUSALHAFTUNG / DELIKTSHAFTUNG | RESPONSABILITÉ DE PLEIN DROIT ACCIDENT LAW

ABSOLUTE LIABILITY / STRICT LIABILITY | GEFÄHRDUNGSHAFTUNG UNBEDINGTE HAFTPFLICHT / DIE KAUSALHAFTUNG / DELIKTSHAFTUNG | RESPONSABILITÉ DE PLEIN DROIT

ACCIDENT LAW | UNFALLRECHT

ACT | HANDLUNG / POSITIVES TUN

ACTION AT LAW | KLAGE

ACT OF GOD | HÖHERE GEWALT | FORCE MAJEURE

ACTIO PERSONALIS MORITUR CUM PERSONA / MORITUR DOKTRIN

AGENT | VERTRETER | AGENT | AGENTE

Agente

agent

Related Concepts: Principle, Master, Servant, Respondeat Superior, Vicarious liability, Constructive liability

AGENCY | ? | REPRÉSENTATION |

ALL-OR-NOTHING PRINCIPLE / FULL COMPENSATION PRINCIPLE) | ALLES ODER NICHTS PRINZIP / GRUNDSATZ DER TOTALREPARATION FULL COMPENSATION PRINCIPLE | PRINCIPE DE RÉPARATION INTÉGRALE

APPORTIONMENT OF DAMAGES / APPORTIONMENT OF LIABILITY | SCHADENSVERTEILUNG / HAFTUNGSVERTEILUNG

ASSUMPTION OF RISK | HANDELN AUF EIGENE GEFAHR

ASSAULT | TÄTLICHE BELEIDIGUNG? STRAFBARE HANDLUNG | VIOLENCE

Strafbare Handlung

Violence

ASSETS | VERMÖGEN | PATRIMOINE

AUTONOMY

AVOIDABLE CONSEQUENCES RULE | SCHADENSMINDERUNG

BATTERY | STRAFBARE HANDLUNG GEGEN LEIB UND LEBEN | VIOLENCE:

In German Law: Strafbare Handlung gegen Leib und Leben

In French Law: Violence

In Italian Law

BREACH OF CONTRACT | VERTRAGSVERLETZUNG

BIVENS CLAIM (CONSTITUTIONAL TORT):

BURDEN

Burden of production / burden of going forward with the evidence | Behauptungslast/Darlegungslast/ Beweisführungslast | charge de la preuve | onere della produzione della prova:

Beweisführungslast

Charge de la Preuve

onere della produzione della prova

Burden Of Proof | Beweislast | Charge de la Preuve | onere della prova / onere probatorio:

And Hearing of Evidence | Beweisaufnahme | administration des preuves / audition des preuves:

-C-

CAPACITY | RECHTSFÄHIGKEIT / GESCHÄFTSFÄHIGKEIT | CAPACITÉ JURIDIQUE | CAPACITÀ GIURIDICA:

Rechtsfähigkeit (suggested translation: enjoyment of civil rights | jouissance des droits civiques | esser titolare di diritti civili)

Geschäftsfähigkeit

Capacité juridique

CAUSATION

Cause, Proximate / Legal Cause | Näheste verursachung( ?) | cause proche / cause prochaine | causa prossimale:

cause proche / cause prochaine

Cause in fact / But-for causality | condicio sine qua non formel / sine qua non

CHATTEL | BEWEGLICHE KÖRPERLICHER GEGENSTAND | PROPRIÉTÉ MOBILIER

CHILDREN, MINOR:

Haftung der Kinder

Beschränkte Haftung der Eltern

Responsabilité

La responsabilité civile

Children and attractive nuisance-

CIVIL LAW / CONTINENTAL CIVIL LAW / CONTINENTAL LAW | KODIFIZIERTES PRIVATRECHT (IN DER TRADITION DES CODEX JUSTINIAN

CIVIL LIABILITY | PRIVATRECHTLICHE HAFTUNG

CLASS ACTION LAWSUIT

CLEAR AND CONVINCING EVIDENCE

COINSURANCE ?

CONSTITUTIONAL TORT

COMPANY | HANDELSGESELLSCHAFT | SOCIÉTÉ

COLLATERAL SOURCE RULE : ~VORTEILSAUSGLEICHUNG

COMMON CARRIER | OEFFENTLICHER TRANSPORTUNTERNEHMER | TRANSPORTEUR PUBLIC | IMPRENDITORE DI TRASPORTO PUBBLICO:

COMPARATIVE FAULT:

COMPENSATIO LUCRI CUM DAMNO / SET-OFF

COMPENSATION, EQUITABLE, FAIR | BILLIGE ENTSCHÄDIGUNG IN GELD

COMPENSATION IN KIND | NATURALRESTITUTION | RESTITUTION IN NATURA / : RESTITUTION EN NATURE

COMPENSATION | AUSGLEICH

COMPENSATORY DAMAGES : IMMATERIALLER EINBUSSEN UND VERMÖGENSSCHÄDEN

COMPENSATION IN-KIND | NATURALRESTITUTION | EN NATURE:

CONCURRENT TORTFEASOR / JOINT TORTFEASOR | GESAMTSCHULDNER | CO-AUTEUR DU FAIT DOMMAGEABLE / AUTEUR CONJOINT DE DELIT:

CONSENT | EINWILLIGUNG | CONSENTEMENT:

Einwilligung

Consentement

autorizzazione / assenso

CONSENT: INFORMED | AUFGEKLÄRTE EINWILLIGUNG NACH AUFKLÄRUNG | CONSENTEMENT ÉCLAIRÉ | ASSENSO INFORMATO:

CONSEQUENTIAL DAMAGES | FOLGESCHÄDEN

CONSORTIUM, LOSS OF | VERLUST DES LIEBESPARTNERS | PRIVATION DE COMPAGNIE CONJUGALE:

CONSTITUTIONAL TORTS | VERLETZUNG VERFASSUNGSRECHTLICHER FREIHEITEN

CONSTITUTION | GRUNDGESETZ/VERFASSUNG | LOI FONDAMENTALE / CONSTITUTION:

Verfassung

loi constitutionnelle / loi fondamentale / constitution

CONTRA BONOS MORES / AGAINST GOOD MORALS | SITTENWIDRIG

CONTRIBUTORY NEGLIGENCE | PART DE RESPONSABILITE DE LA VICTIME DANS UN ACCIDENT / NEGLIGENCE CONCURRENTE / FAUTE DE LA VICTIME / IMPRUDENCE CONCURRENTE / NEGLIGENCE CONCURRENTE | MITGEFÄHRDUNG :

CORPORATION | KAPITALGESELLSCHAFT | SOCIETE ANONYME (A RESPONSABILITE LIMITE)

CORRECTIVE JUSTICE | GERECHTIGKEIT | LA JUSTICE CORRECTIVE:

CREATION OF RISK | GEFÄHRDUNG

CUSTOM / CUSTOMARY LAW | GEWOHNHEITSRECHT | DROIT COUTUMIÈR :

Consuetudo.

Consuetudo est altera lex.

Consuetudo interpres legum.

Consuetudo loci observanda.

-D-

DAMAGES

Damages | Schadensersatz (in Geld) / Schäden

Damage, Actual | Konkreter Schaden | Indemnisation effective

Damages, Civil / Constitutional tort

Damages, compensation for | Schadensersatz | dommages et intérêts | risarcimento dei danni

Damages, Constructive

Damage, Compensatory (opp. To punitive damages) | Ersatz eines eingetretenen (materillen oder immateriellen) Schadens Ausgleichsentschädigung ? | dommages-intérêts compensatoires / indemnité compensatrice | premio di compensazione

Damages, Consequential | Folgeschaden (aus Primärschaden)/ Indirekter Schaden | dommage consécutif / dommages secondaires / dommage indirect

Damages, Direct | | dommage direct

Damage, Divisible | teilbarer Schaden (bei Nebentäterschaft)

Damage, Emotional | Gefühlsschaden

Damages, exemplary | Exemplarischer Schadensersatz | dommages-intérêts exemplaires | risarcimento danni

Damages, General | Ersatz eines immateriallen Schadens | Courants danni generici

Damages, Hedonic

Damages, Monetary | Vermögensschaden

Damages, Measure of | base d'évaluation des dommages-intérêts

Damages, Mitigation of | Obligation de limiter les dommages

Damages, Nominal | dommages-intérêts symboliques

Damages, Non-Economic

Damages for pain and suffering | schmerzengeld

Damage per se / actionable per se | Eine Rechtsgutsverletzung wird einem kompensationsfähigen Schaden gleichgesetzt

Damages, presumed

Damages, punitive | dommages-intérêts punitifs

Damages, Ricochet | Abgeleiteter Schaden (ohne eigene Verletzung)

Damages, Special | Ersatz eines konkretes Vermögensschadens | dommages-intérêts spéciaux

Damages, Treble / Treble Costs | Strafschadensersatz

Damages, Treble costs

DAMNUM SINE INJURIA

DECEIT | ARGLISTIGE TÄUSCHUNG | BETRUG

DEFAMATION | VERLEUMDUNG / ÜBLE NACHREDE / BELEIDIGUNG

Defamation and Public Figures

Defamation and the Constitution

Defamation and Opinion

Defamation, Fact or Opinion

DEFAULT / DEFECT | FEHLVERHALTEN / FEHLER (?)

DEFECTIVE PRODUCT

DEFENCE

Defence | Einwendung / Rechtfertigung

Defence, Affirmative

Defence, Dilatory.

Defence, Equitable

Defence, Full.

Defence, General

Defence, Legal

Defence, Peremptory

DEFENDANT | BEKLAGTER

DEFENDANT | BEKLAGTE

DELICT/TORT | DELIKT (~HAFTUNG)

DETERRENCE | ABSCHRECKUNG / PRÄVENTION

DISCERNMENT | EINSICHTSFÄHIGKEIT

DISCLAIMER / WAIVER |

DISCRIMINATION | DISKRIMINIERUNG

DIVISION OF THE BURDEN OF PROOF | BEWEISLASTVERTEILUNG

DUE CARE / STANDARD OF CARE

DURESS | ZWANG / NÖTIGUNG

DUTY

Duty of Care | Verkehrspflicht („Sorgfaltspflicht“)

Duty to act | Pflicht zu Handeln

Duty to ensure safe premises | Verkehrssicherungspflicht

Duty, Organisational | Organisationspflicht

Duty, Supervisory | Aufsichtspflicht

Due Care / Standard of care

Duty

No Duty Doctrine

Duty, breach thereof

-E-

EFFICIENT CAUSE

EMERGENCY | NOTFALL ?

EMINENT DOMAIN

EMOTIONAL DISTRESS | GEFÜHLSSCHADEN

EMPLOYEE VS. INDEPENDENT CONTRACTOR

ENTERPRISE LIABILITY

EMPLOYMENT

EMPLOYMENT-AT-WILL

EPEDEMIOLOGICAL PROOF

EQUITY

EVIDENCE

Clear and Convincing | hohe Wahrscheinlichkeit

See supra clear and convincing evidence

Beyond reasonable doubt | mit an sicherheit grenzende Wahrscheinlichkeit

Preponderance of | Überwiegende Wahrscheinlichkeit

Presentation of evidence | Beweisaufnahme

PRESENTATION OF EVIDENCE | BEWEISAUFNAHME

Evaluation of evidence | Beweiswürdigung

EXCUSE.

EXPECTATION DAMAGES | ERFÜLLUNGSINTERESSE

EXTENT OF LIABILITY | HAFTUNGSAUSFÜLLUNG

-F-

FAULT | (ZIVILRECHTLICHES) VERSCHULDEN

Comparative | Mitverschulden

Contributory | Mitverschulden

FEDERAL LAW | BUNDESRECHT

FELLOW SERVANT RULE | NICHT HAFTUNG DES ARBEITGEBERS, WENN EIN ARBEITER SCHULDHAFT EINEN ANDEREN VERLETZT

FORESEEBILITY | VORHERSEHBARKEIT

FOUNDATION OF LIABILITY / BASIS OF LIABILITY | HAFTUNGSGRUND

-G-

GENERAL CONTRACT TERMS | ALLGEMEINE GESCHÄFTSBEDINGUNGEN

GOVERNMENTAL IMMUNITY

GOVERNMENTAL LIABILITY | STAATSHAFTUNG

-H-

HONOUR; REPUTATION : EHRE

HOSPITAL LIABILITY | KRANKENHAUSTRÄGERHAFTUNG

-I-

IMMUNITY:

INDEPENDENT CONTRACTOR

INFORMED CONSENT

INSURANCE | VERSICHERUNG

First party | Schadensversicherung

Third party | Haftpflichtversicherung

Social | Sozialversicherung

IMMUNITY

Governmental Immunity

Types of Personal Immunity

Qualified Immunity

Absolute Immunity

Charitable Immunity

Corporate Immunity

Discretionary Immunity

Executive Immunity

Judicial Immunity

Legislative Immunity

Official Immunity

Ministerial / Discretionary distinction

IMPUTATION | ZURECHNUNG

IMPUTED NEGLIGENCE

INDEMNITY | ENTSCHÄDIGUNG

INDEPENDENT CONTRACTOR | SELBSTÄNDIGER VERTRAGSPARTNER

INFORMED CONSENT

INJUNCTION | UNTERLASSUNGSANORDNUNG

INJURY | VERLETZUNG (EINES RECHTLICH GESCHÜTZTEN INTERESSES)

Personal| Verletzung körperlicher Integrität (Körperschaden)

INTENT | VORSATZ

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

INTENTIONAL INTERFERENCE WITH PROSPECTIVE ECONOMIC ADVANTAGE

INTENTIONAL INTERFERENCE WITH CONTRACT

INTENTIONAL TORTS | VORSÄTZLICHE DELIKTE

INTERVENING CAUSE / INTERVENING EFFICIENT CAUSE

-J-

JOINT AND SEVERAL LIABILITY | MITVERSCHULDUNG / MITGEFÄHRDUNG / GESAMTSCHULDNERISCHE HAFTUNG

JOINT TORTFEASORS:

JUSTIFICATION | RECHTSERTIGUNGSGRUND

-L-

LAW

LEGAL CAUSE / PROXIMATE CAUSE | ZURECHNUNGSGRUND

LIABILITY | HAFTUNG

Insurance, liability | Haftpflichtversicherung

Extent of liability | Haftungsausfüllung

Foundation of liability | Haftungsgrund

Joint and several liability | Gesamtschuldnerische Haftung

Insurance liability | Haftpflichtversicherung

Proportional liability | Anteilshaftung

Contributory negligence vs. comparative fault

Market share liability

Epedemiological Proof

LIBEL | MÜNDLICHE BELEIDIGUNG

Libel Per Se

LICENCE | LIZENZ

LOSS | SCHADEN

Economic / pecuniary | Vermögensschaden

Pure economic | Reiner Vermögensschaden

LOSS OF CONSORTIUM : VERLUST DES LIEBESPARTNERS

-M-

MALICE | ARGLIST

MARKET SHARE LIABILITY | MARKTANTEILSHAFTUNG

MASS TORTS | MASSENSCHADENSFÄLLE

MASTER AND SERVANT | ARBEITGEBER UND ARBEITNEHMER

MEANS OF PROOF | BEWEISMITTEL

MEDICAL MALPRACTICE | MEDIZINISCHE BEHANDLUNGSFEHLER

MINOR CHILDREN | MINDERJÄHRIGE

MISREPRESENTATION

MITIGATION | SCHADENSMINDERUNG

MONETARY DAMAGES | SCHADENSERSATZ IN GELD / GELDENTSCHÄDIGUNG (?)

MORAL INJURIES | NORMATIVER SCHADEN

-N-

NECESSITY | NOTSTAND [?]

NEGLIGENCE | FAHRLÄSSIGKEIT (ALS DELIKT) / FAHRLÄSSIGKEIT (ALS SCHULDFORM)

Comparative negligence | Mitverschulden (am: Quotelung)

Contributory negligence

Criminal negligence | Fahrlässigkeit als strafrechtliche Schuld

Slight negligence | Leichte Fahrlässigkeit

Ordinary negligence | Normale Fahrlässigkeit

Gross negligence | Grobe Fahrlässikeit

Per se negligence | Per se Fahrlässigkeit

NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS

NO-FAULT LIABILITY | GEFÄRDUNGSHAFTUNG

NON-DELEGABLE DUTIES | NICHT DELEGIERBARE PFLICHTEN [??]

NOMINAL DAMAGES | NOMINAL SCHADENSERSATZ / SYMBOLISCHER SCHADENSERSATZ

NON-PECUNIARY LOSSES | NICHT VERMÖGENSSCHÄDEN

NON-MATERIAL DAMAGES | IMMATERIALLER SCHÄDEN

NUISANCE

-O-

OCCUPIERS’ LIABILITY | HAFTUNG VON GRUNDBESITZERN

OMMISSION

ORDINARY NEGLIGENCE

-P-

PATENT | PATENT

PER QUOD (LIBEL PER QUOD, SLANDER PER QUOD)

PER SE (SLANDER PER SE, LIBEL PER SE)

PERSONALITY RIGHTS | PERSÖNLICHKEITSRECHTE

PLAINTIFF | KLÄGER

POLLUTION | UMWELTVERSCHMUTZUNG

POSESSION | BESITZ

PRESCRIPTION / STATUTE OF LIMITATIONS |VERJÄHRUNG

PRESCRIPTION PERIOD | VERJÄHRUNGSFRIST

PRIMA FACIE | ANSCHEINSBEWEIS

PRINCIPAL | GESCHÄFTSHERR

PRIVATE NUISANCE

PRIVACY | PRIVATHEIT / PRIVATER BEREICH

PRIVILEGE

PRIVITY OF CONTRACT | RECHTSVERHÄLTNIS ZWISCHEN VERTRAGSPARTNERN

PRESENTATION OF EVIDENCE | BEWEISAUFNAHME

PRIMA FACIE TORT

PROCEDURE

Civil

Criminal

PRODUCTS LIABILITY | PRODUKTS(GEFÄHRDUNGS)HAFTUNG

PROHIBITION OF ENRICHMENT | BEREICHERUNGSVERBOT | NI PERTE NI PROFITE

PROOF BY A PREPONDERANCE OF THE EVIDENCE (LIT. REASONABLY PROBABLE). ÜBERWIEGENDE WAHRSCHEINLICHKEIT

PROPERTY | EIGENTUM

PROPERTY DAMAGE | VERLETZUNG VON EIGENTUM / SACHSCHADEN

PROXIMATE CAUSE | NICHT ZU ENTFERNTE URSACHE

PUNITIVE DAMAGES : STRAFSCHADENSERSATZ

QUASI-CONTRACT

-R-

REAL RESTITUTION

RECKLESSNESS | RÜCKSICHTSLOSIGKEIT / WILLFUL NEGLIGENCE / WANTON NEGLIGENCE.

REDUCTION OF THE BURDEN OF PROOF | BEWEISERLEICHTERUNG [\?]

REGULATORY AGENCIES

RELATIONAL TORTS | (INDIREKTE DISTANZDELIKTE) [??]

REMEDIES | SANKTIONEN

RES IPSA LOQUITOR | ANSCHEINSBEWEIS

RESPONDEAT SUPERIOR | HAFTUNG DES ARBEITGEBERS FÜR DIE DELIKTE SEINER ARBEITNEHMER (OHNE EIGENES VERSCHULDEN)

RESTITUTIONARY RIGHTS:

REVERSAL OF THE BURDEN OF PROOF | BEWEISLASTUMKEHR

RIGHT TO AN INJUNCTION | UNTERLASSUNGSANSPRUCH

RIGHT TO PRIVACY / RIGHT (OR RIGHTS) OF THE PERSON (OR PERSONALITY) | PERSÖNLICHKEITSRECHTE: (LIT. RIGHT OF PERSONALITY)

Appropriation

Intrusion

Public Disclosure of Private Facts

Melvin v. Reid, 112 Cal.App. 285, 297 P. 91;

False Light

RISK DISTRIBUTION | RISIKOVERTEILUNG

RULE-EXCEPTION PRINCIPLE | REGEL-AUSNAHME PRINZIP

-S-

SATISFACTION INTEREST | GENUGTUUNG

SCHADENERSATZANSPRUCHEN VERSTORBENER REGELN

SERVANT | ARBEITNEHMER

SERVANT, PUBLIC | BEAMTER

SLANDER | BELEIDIGUNG (DURCH SCHRIFTLICHE ÄUßERUNG) MÜNDLICHE VERLEUMDUNG; BELEIDIGUNG; ÜBLE NACHREDE

SOVEREIGN IMMUNITY

SPECIAL DAMAGES | EIGENEN SCHÄDEN

STANDARD OF CARE | VERHALTENS / SORGFALTSSTANDARD

STANDARD OF PROOF (ONUS PROBANDI)| BEWEISMASS

STARE DECISIS

STATUTE OF LIMITATIONS | VERJÄHRUNGSREGEL

STATUTORY DUTY | GESETZLICHE VERHALTENSPFLICHT

STRICT LIABILITY, ESPECIALLY STRICT PRODUCTS LIABILITY | GEFÄHRDUNGSHAFTUNG

SUPERSEDING CAUSE

SURVIVAL STATUTES | GESETZE, DIE DEN ÜBERGANG VON

-T-

THIN SKULL RULE | HAFTUNG AUCH BEI UNVORHERSEHBARER VERLETZUNG WEGEN KONSTITUTIONBEDINGTER ÜBEREMPFINDLICHKEIT

TORT | DELIKT / UNERLAUBTE HANDLUNG

TORT, PRIMA FACIE

TORT-FEASOR | DELIKTSTÄTER

TORT-FEASOR, JOINT / CONCURRENT | MITTÄTER NEBENTÄTER [???]

TORT CLAIMS ACT

Federal Tort Claims Act

TOXIC TORTS

TRADEMARK

TRADE NAME

TRESPASS | VORSÄTZLICH RECHTSWIDRIGES EINDRINGEN

Trespass and battery and trespass vi et armis (vie-et-armes)

Trespass to goods

Trespass to land

Trespass to the person | Trespass vi et armis (vie et armes) / tresspass force and arms

Trespass to chattels

Trespass on the case

TRESPASSER

-U-

UNAVOIDABLE ACCIDENT | UNVERMEIDBARES EREIGNIS

UNITY OF INJURY AND DAMAGE IN THE SAME PERSON | TATBESTANDPRINZIP

UNJUST ENRICHMENT | UNGERECHTFERTIGTE BEREICHERUNG

UNLAWFULNESS | RECHTSWIDRIGKEIT

UNLAWFULNESS, KNOWLEDGE THEREOF | UNRECHTSBEWUßTSEIN

-V-

VERSANTI IN RE ILLICITA IMPUTANTUR OMNIA QUAE SEQUNTUR EX DELICTO (WHO ACTS CONTRARY TO THE LAW WILL BE HELD RESPONSABLE FOR ALL CONSEQUENCES WHICH FOLLOW THEREFROM).

VICARIOUS LIABILITY | ARBEITGEBERHAFTUNG FÜR ARBEITNEHMERDELIKTE (OHNE ARBEITGEBERVERSCHULDEN)

-W-

WARRANTY | GARANTIE

Implied warranty.

WORKER’S COMPENSATION | US-GESETZE ZUR REGELUNG VON ARBEITNEHMERANSPRÜCHEN BEI ARBEITSUNFÄLLEN

WRONGFUL

WRONGFUL DEATH CASES | FAHRLÄSSIGE TÖTUNG (POSSIBLY: UNERLAUBTE TÖTUNG)

WRONGFUL BIRTH/WRONGFUL LIFE

Wrongful birth | Farhlässig verursachte Gebeurt (eines gesunden Kindes)

Wrongful life | fahrlässig nicht ermöglichte Abtreibung eines (genetsich kranken) Fötus

WRONGFUL INJURY | UNRECHTE / FARLÄSSIGE VERLETZUNG EINES RECHTLICH GESCHÜTZTEN INTERESSES

WRONGFUL BEHAVIOR | UNRECHTES / FAHRLÄSSIGES VERHALTEN

WRONGFULNESS | UNRECHT, FAHRLÄSSIGKEIT

The Dictionary

Absolute Liability / strict liability | Gefährdungshaftung unbedingte Haftpflicht / die Kausalhaftung / Deliktshaftung | Responsabilité de plein droit

Liability even when there is no proof of negligence. Strict liability appears most often in cases of product liability where manufacturers are held legally responsible for injuries caused by defects in their products, even if they were non-negligent; liability that is imposed without fault.

The essence of a claim based on strict liability is that the degree of negligence of the defendant is irrelevant to the determination of their liability for the consequences of the accident. Such liability may be imposed because of the inherently dangerous instrumentality which is governed as a source of strict liability, for example, alcohol. Dram Shop Acts hold a business which sells alcoholic drinks or a host who serves liquor to a drinker who is obviously intoxicated or close to it, strictly liable to anyone injured by the drunken patron or guest. However some states specifically ban such liability by statute. Another example of strict liability is the attractive nuisance doctrine for example holds that where a landowner has land which has a dangerous feature which attracts children – a pond, a mine

The equivalent German terms are Gefährdungshaftung, unbedingte Haftpflicht, Kausalhaftung, Deliktshaftung and Gefährdungshaftung. Gefährdungshaftung however best conveys the concept of strict liability, i.e. liability without fault or liability where fault is irrebutably presumed. For example, the German regime of motor liability implicates any owner of a motor vehicle for the legal liability of all damages which arise out of the use of the vehicle. Drivers are also strictly liable, however drivers can reduce their liability by a proof of non-culpability. In cases of two damaged vehicles the damages to each vehicle will be used to offset the determination of the loss.

The equivalent French term is « responsabilité de plein droit ». The law of 19 May 1998 established a strict liability regime for manufacturers and furnishers of defective products, including defective medicines. The French strict liability regime, like the Anglo-American common law, is statutory and concurrent to the regime de droit commun (literally: common law regime, i.e. the regime of the French Civil Code). Similarly to the Anglo-American legal system the defective character of the product is not presumed. The similar defences, for example that the plaintiff was also at fault, can exonerate defendants under the strict liability statute.

See also: per se liability, strict liability

Rylands v. Fletcher, 3 H.L. 330; Clark-Aiken Co. v. Cromwell-Wright Co., lnc. (Mass.), 323 N.E.2d 876.

Accident law | Unfallrecht

A lay synonym for the law of tort. In the common law torts are either negligent or intentional but are always distinct from crimes. However that distinction, while typologically correct, is nevertheless somewhat illusory: While it is true that in the civil law however some delicts are also crimes, at common law for each intentional tort there was also a corresponding crime. Thus the distinction between tort and crime at common law was procedural and concerned the higher standard of proof in criminal cases where not only fortune but also liberty could be deprived from the defendant.

Act | Handlung / Positives Tun

External manifestation of will. A failure to act is an ommission: both may constitute negligence.

Action at law | Klage

Klage could also be translated as “complaint”, i.e. the initiation of a law suit. Actions can be either at law or in equity with somewhat different rules of procedure and only judicial fact-finding in equity.

Act of God | Höhere Gewalt | Force Majeure

An unforseeable natural disaster which cannot be prevented. Where the injury is uniquely due to an ‘act of God’ it is a defense against liability. ‘Acts of God’ will not however excuse delays in fulfilling contractual commitments because the duties assumed are negotiated – including the responsibility for losses resulting from natural disaster. Thus if the duty of the party is in tort acts of God will excuse their liability. But if the duty of the person is in contract then the contractor must have included a clause covering ‘acts of God’ even though the misfortune was unforseeable and could not have been prevented. Most insurance contracts include clauses to exclude liability of the insuror for ‘acts of God’.

A latin maxim applie: Actus Doi nomini facit injuriam: An act of God does wrong to no one – thus no one is responsible in tort for the result of an inevitable accident.

Acts of God can be distinguished in the common law from force majeure: Acts of god are natural disasters whereas force majeure, at least in the common law, consists of man made disasters.

See:

Watts v. Smith, D.C.App., 226 A.2d 160, 162

Middaugh v. U. S., O.C.Wyo., 293 F.Supp. 977, 980.

Höhere Gewalt

In german law is defined as an unforseeable unusual result which was brought about by irresistable force. The German concept is thus similar to the common law and includes all manner of natural disasters and their consequences. (See, Bundesamt für Sicherheit in der Informationstechnik „Gefährdungskatalog Höhere Gewalt“

e.g. http://www.uni-saarland.de/verwalt/gshb99/g/g1.htm(1999)

Force Majeure:

Again the concept paralells that of höhere Gewalt and acts of god.

As we have already mentioned, force majeure as a concept does exist in the common law but is limited to man made disasters. In French law however force majeure encompasses all unforseeable disasters whether man made or not. Again unforseeability is the key element to the exclusion of liability which may arise via force majeure.

Actio personalis moritur cum persona / moritur doktrin

The principle that the cause of action of the victim of a tort died with the tort feasor. Statutorily remedied through wrongful death statutes.

See also: wrongful death, survival statutes

Mornand v. Twentieth-Century Fox Film Corporation, O.C.Okl., 37 F.Supp. 659, 652.

Humphries v. Going, O.C.N.C., 59 F.R.D. 583, 587.

Agent | Vertreter | agent | agente

An agent is a person granted the authority of another to act on their behalf. The agent is subject to the control of s/he who grants the agency. The grantor of the power of agency is known as the principal, and s/he determines the extent of the powers of the agent. The agency may be gratuitous or compensated and the agency agreement may be oral or written.

http://dictionary.law.com/

Agente

Vertragspartei des Agenturvertrages,welche die Verpflichtung übernimmt,dauernd für einen oder mehrere Auftraggeber Geschäfte zu vermitteln oder in ihrem Namen und auf ihre Rechnung abzuschliessen,ohne zu den Auftraggebern in einem Arbeitsverhältnis zu stehen.

(Obligationenrecht,Art.418a Abs.1(SR 220)

agent

Partie du contrat d'agence qui prend à titre permanent l'engagement de négocier la conclusion d'affaires pour un ou

plusieurs mandants ou d'en conclure en leur nom et pour leur compte,sans être liée envers eux par un contrat de travail.

(Code des obligations,art.418a al.1(RS 220))

agent

Parte del contratto d'agenzia che assume stabilmente l'impegno di trattare la conclusione di affari per uno o più mandanti o

di conchiuderne in loro nome o per loro conto,senza essere vincolato ad essi da un rapporto di lavoro.

Codice delle obbligazioni,art.418a cpv.1(RS 220)

Related Concepts: Principle, Master, Servant, Respondeat Superior, Vicarious liability, Constructive liability

Agency | ? | Représentation |

The agreement between a principal to grant a power to dispose his or her affairs to an agent. As a general rule, whatever a man do by himself, except in virtue of a delegated authority, he may do by an agent: qui facit per alium facit per se.

Agents are entitled to actions against third persons for torts committed against them in the course of their agency.

Agents are liable for their acts, both to their principals and to third persons.

The liabilities of agents to their principals arise from a violation of their duties and obligations to the principal, by exceeding their authority, by misconduct, or by any negligence or omission, or act by which the principal sustains a loss. Agents may become liable for damages and loss under a special contract, contrary to the general usages of trade. They may also become responsible when charging a del credere commission.

Agents become personally liable to third parties when they act outside the scope of their authority, when they do not disclose their agency, when they make themselves personally responsible, e.g. by contracting in their own name,

See: agent, principle, master and servant

Rorton v. Doty, 57 ldaho 792, 69 P.2d 136, 39.

Bevollmächtigte

The German term for a person empowered as an agent is the Bevollmächtigte. A Bevollmächtigte holds a Mandat.

Agent / Mandataire

In French law, the concept of one empowered to transact business on behalf of another is also known as an agent. However an agent in France is not granted a power of agency. They French term for agency is mandat, and thus an agent is also a mandataire.

All-Or-Nothing Principle / Full compensation principle) | Alles oder nichts Prinzip / Grundsatz der Totalreparation Full compensation principle | Principe de réparation intégrale

Principle that where one has committed a tort that they shall be liable for all the damages therefrom, even where others are also liable. This principle also holds that where there is no negligence there is no liability whatsoever.

The logic of this principle is that the tort-feasors will have claims against each other. This general principle is however being riddled with so many exceptions as to be practically swallowed by them.

Apportionment of damages / Apportionment of liability | Schadensverteilung / Haftungsverteilung

Because the logic of German tort law distinguishes between determination of liability and the extent of liability it must also distinguish between the apportionment of damages and the apportionment of liability. However in the common law the extent of damages and the determination of liability are in principle equivalent, with the extent of damages exactly matching the finding of liability. There is of course the exception of joint-tortfeasors where a tort-feasors liability may exceed or be less than the damages but even there the joint-tortfeasor has, unless statutorily modified, an action against his confederate.

At common law, in cases of joint tort feasors, the defendant could make a claim against any tort feasor for all of the damages. Statutes have in some cases modified this rule. (Rangolan, v. County of Nassau and Nassau County Sheriff's Department, 749 N.E.2d 178; 725 N.Y.S.2d 611).

Répartition des dommages-intérêts is the equivalent term in French law.

Assumption of Risk | handeln auf eigene Gefahr

The principle that a plaintiff can waive their rights in tort by contractually assuming the risk for the injuries which they may incur in cases of dangerous conduct. Assumption of risk is an affirmative defense to a charge of negligence wherein the plaintiff is asserted to have assumed the risk of the injury. This assuming of risk may be either express or implied. The defense typically arises in cases of inherently dangerous sports such as skydiving or other inherently dangerous activities. Ordinarily the assumption of risk is found through express clauses in contracts which waive the tortious liability of the organizer of the dangerous sport.

An interesting question is whether one can "assume the risk" in cases of strict liability (handeln auf eigene Betriebsgefahr), e.g. no-fault auto accidents. The better argument is no, since strict liability functions as a form of social insurance and as a way to avoid difficult burdens of proof between inequal opponents, viz products liability.

See: Clarke v. Brockway Motor Trucks, D.C.Pa., 372 F.Supp. 1342, 1347.

Turcone v. Fell, 502 N.E.2d 964 (N.Y. 1986)

See also: exemplary damages (syn.)

Punitive damages are those damages awarded in case of willful, wanton, or malicious conduct. They may even be available in cases of reckless negligence if the damages are particularly severe or in cases of fraudulent acts. Punitive damages serve to punish the defendant and deter others. The plaintiff must prove both the necessity and extent of punitive damages according to the ordinary standard of a preponderance of the evidence. Conduct is malicious if it is accompanied by ill will, or spite, or if it is for the purpose of injuring another. Conduct is reckless if it reflects a complete indifference to the safety and rights of others.

See: Wetherbee v. United lns' Co. of America, 18 C.A.3d 266, 95 Cal.Rptr. 678, 680.

Damages, Special | Ersatz eines konkretes Vermögensschadens | dommages-intérêts spéciaux

Those damages which do not arise ordinarily out of the injury but which arise extraordinarily and thus must be specifically plead and proven. Such damages are nonetheless concrete and material as opposed to abstract. That is they are calculable in economic terms. Special damages must be plead and proven in cases of slander. E.g. a plaintiff’s has been burgled, and as a consequence must seek lodging elsewhere. This consequential damage, having to pay a hotelier, must be specially plead and proven.

Sometimes the special damage is said to constitute the substance of the action itself; for example, in an action wherein the plaintiff declares for slanderous words, which of themselves are not a sufficient ground or foundation for the suit, if any particular damage result to the plaintiff from the speaking of them, that damage is properly said to be the substance of the action.

Special damages can include medical bills, repair and replacement of property, lost wages and other concrete damages which are not abstract speculative or subjective.

See: Twin Coach Co. v. Chance Vought Aircraft Inc., 163 A.2d 278, 286.

Damages, Treble / Treble Costs | Strafschadensersatz

Treble damages is the measure for an award of punitive damages. The actual calculation of punitive damages is not fixed according to a formula and must in all cases be proven by the plaintiff, first as to existence, second as to extent. However those damages can be as high as three times the substantive damages plus the plaintiffs attorney’s fees and costs. Treble damages may also be governed by statute which may abrogate the common law rule.

E.g., if a jury awards twenty dollars damages and punitive damages would be forty dollars more. However the construction of treble damages is different from that of treble costs.

Damages, Treble costs

Treble costs are sometimes awarded by statutes. When an act awards treble costs, the party is allowed three times the usual costs, excepting the fees and costs of their attorney which are not trebled.

Damnum sine injuria

Literally condemnation without injury, often mis-translated as damages with no injury but in fact would be better translated as injury (a wrong) with no damages (a measure).

Refers to the legal situation in which plaintiff’s right is not respected by another but where the breach of plaintiff’s right does not cause a damage, or at least not a calculable or admissible damage. A finding of damnum sine injuria can be the basis for a finding of nominal damages (q.v.).

Deceit | Arglistige Täuschung | Betrug

Deceit is a tort of fradulent misrepresentations: it’s elements are:

1) A fraudulent statement

2) Made with intent to decieve

3) Which induces reliance on the part of the plaintiff

4) And results in injury to the plaintiff.

The tort will also lie where the statement was made with reckless disregard as to its truth or falsehood.

Deceit is similar to the tort of passing off; however in the tort of deceit the injured plaintiff is a consumer, and in the tort of passing off the injured plaintiff is a competitor.

In some jurisdiction deceit or fraud is a statutory tort and includes an action against false advertising.

See: Karlin v. IVF America, 1999 N.Y. LEXIS 815, *; 93 N.Y.2d 282; 712 N.E.2d 662; 690 N.Y.S.2d 495 (Suit for false advertising permitted under fraud statute in case of medical misrepresentation).

Defamation | Verleumdung / Üble Nachrede / Beleidigung

Communication to third parties of false statements about a person such that the statements injure the person’s reputation or dissuade others from associating with them.

There are two forms of defamation, slander, which is oral and libel which is written. In cases of slander, damages must be proven, but in cases of libel damages are not presumed and must be proven.

Truth is a defence to an accusation of defamation.

This tort corresponds, roughly, to the German torts of Verleumdung, üble Nachrede, and Beleidigung.

Beleidigung is a more extensive injury than defamation and includes words which are insulting or emotionally injurious.

At common law in England a court could order the defaming defendant to offer an apology.

See, e.g.

McGowen v. Prentice, La.App., 341 So.2d 55, 57.

Wolfson v. Kirk, Fla.App., 273 So.2d 774, 776.

Defamation and Public Figures

Public figures, including officeholders and candidates, have to show that the defamation was made with malicious intent and was not just fair comment.

Defamation and the Constitution

In the U.S. the First Amendment freedoms of speech and press must also be considred. New York Times v. Sullivan, 376 U.S. 254, 264 (1964); Masson, 501 U.S. at 510. The U.S. constitution protects statements of opinion on matters of public concern that do not contain or imply a provable factual assertion. Milkovich, 497 U.S. at 20.

Defamation and Opinion

To determine whether a statement implies a factual assertion, courts examine the totality of the circumstances in which it was made. They look at the context and contents which the work present – the subject of the work and the setting in which the subject is treated. The court will look to the language for hyperbole or figurative language. They look to see whether the statement can be proven or disproven and whether it merely expresses an opinion.

'[T]he First Amendment requires that the courts allow latitude for interpretation.' Partington, 56 F.3d at 1154 (quoting Moldea v. New York Times Co., 22 F.3d 310, 315 (D.C.Cir.), cert. denied, 115 S.Ct. 202 (1994)).

Defamation, Fact or Opinion

A defense to defamation is that the supposedly defamatory statement was in fact merely an expression of a personal subjective opinion. To determine whether a statement is merely an opinion, the court puts itself in the position of a reasonable person percieving the statement in the totality of circumstances. "what constitutes a statement of fact in one context may be treated as a statement of opinion in another, in light of the nature and content of the communication taken as a whole." (Gregory v. McDonnell Douglas Corp. (1976) 17 Cal.3d 596, 601.) Where the statement is 'cautiously phrased in terms of apparency,' it is less likely to be seen as an assertion and more likely to be seen as an opinion. Other facts and circumstances of the publication must also be considered. The statement must also be seen as a whole: 'It may not be divided into segments and each portion treated as a separate unit.' It must be read as a whole in order to understand its signification. import and the effect which it was calculated to have on the reader, and construed in the light of the whole scope and apparent object of the writer, considering not only the actual language used, but the sense and meaning which may have been fairly presumed to have been conveyed to those who read it.

Default / Defect | Fehlverhalten / Fehler (?)

A flaw in a product which causes it to malfunction which malfunction may lead to a tort. See: products liability.

A defect is ordinarily a condition precedent to the finding of a tort under a theory of strict liability. However there are exceptions to the rule: in cases of negligent supply by a merchant of an inherently dangerous product to minor the manufacturor can also be held liable.

Defective Product

Where a product is defective the products manufacturer can be implicated in tort on a theory of strict liability.

A product is in a defective condition, i.e. is unreasonably dangerous to the user, when it has a propensity or tendency for causing physical harm beyond that which would be contemplated by the ordinary user.

A defective condition is a legal cause of injury if it directly produces the injury. A defective condition may be a legal cause of damage even though it operates in combination with the act of another, or some other natural cause.

Thus, in cases involving defective or unreasonably dangerous products the manufacturer may be liable even though it exercised all reasonable care in the design, manufacture and sale of the product in question.

Manufacturers are not on always liable for accidents resulting from misuse of their products. The manufacturer is not an insurer. The mere possibility that injury result from the use of a prodcut is insufficient to impute liability to a manufacturer. (Moomey v. Massey Ferguson, Inc., C.A.N.M., 429 F.2d 1184. 1184.) here is no duty upon the manufacturer to produce a product that is 'accident-proof.' However the manufacturer is required to make a product free of defective and unreasonably dangerous conditions.

See: Manieri v. Volkswagenwerk, A.G., 151 N.J.Super. 422, 376 A.2d 1317, 1322.

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.

Evidence, Clear and Convincing | hohe Wahrscheinlichkeit

See supra clear and convincing evidence

Beyond reasonable doubt | mit an sicherheit grenzende Wahrscheinlichkeit

A standard of proof in the common law.

State v. Dubina, 318 A.2d 95, 97.

Preponderance of | Überwiegende Wahrscheinlichkeit

See: Proof by a preponderance of the evidence infra

Presentation of evidence | Beweisaufnahme

See Presentation of evidence infra

Presentation of evidence | Beweisaufnahme

Evaluation of evidence | Beweiswürdigung

The determination of the trier of fact as to whether the movant has carried their burden of proof, i.e. whether the means of proof meet or exceed the standard of proof.

Excuse.

A reason alleged for the doing or not doing a thing. An excuse can reduce damages partially or entirely. Excuses are either because the tort feasor had no choice or because they had no intention to commit the act or its consequences. Minor children, lunatics, and the infirm may be excused due to their lack of discernment. Self defence and destruction of a good to prevent a greater evil is an excuse because the defendant had no choice.

Expectation damages | Erfüllungsinteresse

Those damages which a plaintiff sustains not based on the injury but because of the loss of some future, possibly speculative, stream of income. Courts will be hostile to expectation damages because of their speculative character.

Extent of Liability | Haftungsausfüllung

The principle that, once a foundation of liability has been determined, that that liability must be discharged; also the methods by which that liability is discharged

-F-

Fault | (zivilrechtliches) Verschulden

The entire system of negligent torts, with the exception of strict liability, is predicated on the notion of some fault, i.e. the absence of the care of a reasonably prudent person. Fault can be defined as negligence or the failure to perform a legal duty.

l Continental Ins. Co. v. Sabine Towing Co., C.C.A.Tex., 117 F.2d 694, 697.

Kersey Mfg. Co. v. Rozic, 207 Pa.Super, 182, 215 A.2d 323, 325.

Fault, Comparative | Mitverschulden

See negligence, comparative (syn.)

Fualt, Contributory | Mitverschulden

See negligence contributory

Federal Law | Bundesrecht

The United States, like many other former British colonies, is a federal system predicated upon the dual sovereignty of the states/provinces on the one hand, and on the national soveriegn at another. Germany is also a federal system, however the German federal government has broader powers than that of the United States

Fellow servant rule | Nicht Haftung des Arbeitgebers, wenn ein Arbeiter schuldhaft einen anderen Verletzt

At common law an employer would not be held liable for torts injuring an employee which occurred on the premises of the work-place but which were the fault of one of his servants. Prior to the industrial revolution, where there were both fewer and less serious accidents and where there was less mobility the fellow servant rule made sense. But with the reality of grave injury and highly mobile employees the necessity of providing at least de facto insurance for workers led to the abandonment of this rule and a determination of a general liability for an employer for all torts occurring at the work-place in the scope of the employees duties. This general liability is known as the principle of “respondeat superior”.

Walsh v. Eubanks, 183 Ark. 34, 34 S.W.2d 762, 764.

Southern Ry. Co, v. Taylor, 57 App.D.C. 21, 16 F.2d 517, 519.

Foreseebility | Vorhersehbarkeit

The modern determination of a negligent tort is dependant upon the foreseeability of the tort arising from the defendants conduct. That is, whether a reasonably prudent person would be able to foresee that their conduct would result in damage to the plaintiff.

Emery v. Thompson, 347 Mo. 494, 148 S.W.2d 479, 480.

Clark v. Wagoner, Tex., 452 S.W.2d 437, 439.

Wyatt v. Motsenbocker, Tex.Civ.App., 360 S.W.2d 543, 546.

Foundation of liability / basis of liability | Haftungsgrund

The principle that a tort must first be grounded in some factual instance. This principle of German law has no exact conceptual equivalent in the theory of common law torts though of course in practice analogues and paralells can be found.

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General Contract Terms | Allgemeine Geschäftsbedingungen

Those clauses of a contract which are not negotiated. These clauses, often in fine print, may or may not be read and may or may not be comprehended or comprehensible. Thus courts may, at their discretion, set them aside if manifest injustice results under a theory of unconscionability. German law appears however to take these clauses much more seriously, both to the benefit of the consumer and to society at large through greater legal certainty. [?]

Governmental immunity

The principle of the common law is that “the king can do no wrong” – that is that there be no remedy against the sovereign because of sovereign immunity unless the sovereign waive that immunity. This principle continues to exist in America however the government consents to be sued according to the federal tort claims act.

Local governments can be sued directly under 42 U.S.C.A. § 1983

Monell v. Department of Social Services of N. Y., 429 U.S. 1071, 97 S.Ct. 807, 50 L.Ed.2d 789.

See: Sovereign Immunity (syn)

Principe Compania Naviera, S.A. v. Board of Com'rs of Port of New Orleans, D.C.La., 333 F.Supp. 353, 355.

Governmental Liability | Staatshaftung

The liability of the government in tort was limited at common law by government immunit (also known as soveriegn immunity) (q.v.). This has changed with the introduction of tort-claim statutes, both by federal and state governments.

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Honour; Reputation : Ehre

The moral right of a person to be held in good esteem by the community until their comportment prooves that they are in fact otherwise.

Hospital Liability | Krankenhausträgerhaftung

Hospitals may be immune from torts either as charities, when run by the private sector, under the principle of charitable immunity or, when run by the state, under a theory of governmental immunity. This immunity however would not exculpate the negligence of the hospital’s employees.

-I-

Immunity:

See governmental Immunity

Independent Contractor

See: employee vs. independent contractor

Informed Consent

See: consent, informed

Insurance | Versicherung

Industrialisation led to serious work-place accidents. Consequently to avoid the worst injustices governments enacted mandatory insurance systems to cover workers against such accidents. The tort system also plays an insurance role, but is generally not as efficient due to the costs of attorneys as an insurance system.

First party | Schadensversicherung

Insurance by a person of their person or property. Such insurance could arguably be considered as deductible from whatever damages award that the insured receives in the event of being victim of a tort-feasor. In cases of obligatory insurance a good argument can be made that reducing the damages award by the insurance is just, particularly in cases of no-fault liability such as auto accidents. However in cases of voluntary assurance the collateral source rule would be perverse: it would undermine the deterrence function of tort law by permitting plaintiffs to escape unsanctioned or under-sanctioned and punish prudent plaintiffs who seek insurance.

Third party | Haftpflichtversicherung

(Obligatory) Insurance of persons against accidents that they cause. Such insurance where mandatory is clearly legal. What of cases where the insurance is not mandatory? There the risk is percieved that permitting insurance coverage may lead to irresponability. However that rationale is not strong: the costs of litigation, both in terms of money and time, as well as the threat of punitive damages and higher premiums indicate that the deterrence function of tort law is probably not undermined by permitting insurance to cover tortious losses.

Social | Sozialversicherung

As explained above, social insurance is a mandatory insurance coverage which is intended to spread losses for injury through society. Social insurance serves the goal not of deterrence or punishment or even prevention but rather the goal of compensation.

Immunity

Exemption from legal duties. In so far as torts are concerned, immunities may be classified according to their extent, being absolute or qualified, or their object, being governments or persons.

Governmental Immunity

A principle precluding the institution of a suit against the government without its consent.

Governmental immunity exempts the government from liability for its torts. It is referred to as either governmental immunity or as soveriegn immunity. The terms are synonymous.

This principle continues to exist in America however the government consents to be sued according to the federal tort claims act. According to Holmes, the "sovereign is exempt from suit [on the] practical ground that there canbe no legal right against the authority that makes the law on which the right depends." 205 U.S. 349, 353.

"[S]tatutes waiving the sovereign immunity of the United States must be`construed strictly in favor of the sovereign." McMahon v.United States, 342 U.S. 25, 27 (1951).

The government can waive its immunity.

Local municipalities often enjoy “regulatory immunity” for those tasks which arise out of any of the municipality's regulatory decisions involving cable television. See, e.g.

Caprotti v. Town of Woodstock, 1999 N.Y. LEXIS 3729, *; 94 N.Y.2d 73; 721 N.E.2d 957; 699 N.Y.S.2d 707

Types of Personal Immunity

Personal immunities protect government official from personal liabilities for torts committed in the scope of their office. Personal immunities are either qualified or absolute. For a good summary see

Lauer v. City of New York, 2000 N.Y. LEXIS 907, *; 95 N.Y.2d 95; 733 N.E.2d 184; 711 N.Y.S.2d 112

Qualified Immunity

Qualified immunity protects government officials from personal liability for the torts they commit in the service of the government. It protects them “from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known."

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

"Therefore, regardless of whether the constitutional violation occurred, the officer should prevail if the right asserted by theplaintiff was not `clearly established' or the officer could have reasonably believed that his particular conduct was lawful." Romero v. KitsapCounty, 931 F.2d 624, 627 (9th Cir. 1991) (emphasis added). Furthermore, "[t]he entitlement is an immunity from suit rather than a mere defense to liability; .. . it is effectively lost if a case is erroneously permitted to go to trial." Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).

The qualified immunity test requires a two-part analysis: "(1) Was the law governing the official's conduct clearly established? (2) Underthat law, could a reasonable officer have believed the conduct was lawful?" Act-Up!, 988 F.2d at 871; see also Tribble v. Gardner, 860 F.2d321, 324 (9th Cir. 1988), cert. denied, 490 U.S. 1075 (1989).

Even where there has been a constitutional violation immunity will protect the government officer if he or she "could have reasonably believed that hisparticular conduct was lawful." Romero, 931 F.2d at 627.

"[A] district court's denial of a claim of qualified immunity, to the extent that it turns on an issue of law, is an appealable 'final decision'within the meaning of 28 U.S.C. section 1291 notwithstanding the absence of a final judgment." Mitchell v. Forsyth, 472 U.S. 511, 530(1985).

Qualified immunity only applies to the acts of the government official undertaken in the scope of their office.

Absolute Immunity

Absolute immunity is unconditional immunity from all personal civil liability, e.g. diplomatic immunity.

Charitable Immunity

Immunity from civil liability and particularly as regards negligent torts that is granted to a charitable or nonprofit organization such as a hospital.

Corporate Immunity

Immunity from liability in tort granted to an officer of a corporation who acted in good faith within the scope of their duties.

Discretionary Immunity

Qualified immunity from civil liability for tortious acts or omissions that arise from a government employee's discretionary acts performed as part of their duties

Executive Immunity

Immunity granted to officers of the executive branch of government from personal liability for tortious acts or omissions done pursuant to their duties. The US president's executive immunity is absolute, the immunity of other federal executive officials is qualified.

Judicial Immunity

Absolute immunity from liability that is granted to judges and court officers such as grand juries and prosecutors and for tortious acts or omissions done within the scope of their jurisdiction orauthority.

Legislative Immunity

Absolute immunity from liability that is granted to legislators for tortious acts or omissions done in the course of legislative activities.

Official Immunity

Discretionary immunity from personal liability that is granted to public officers for tortious acts and omissions

Ministerial / Discretionary distinction

The law in this field is intricate and frankly byzantine.

Where municipalities have waived their common-law tort immunity for the negligence of their employees, a distinction is drawn, between "discretionary" and "ministerial" governmental acts. A public employee's discretionary acts--meaning conduct involving the exercise of reasoned judgment--may not result in the municipality's liability even when the conduct is negligent. By contrast, ministerial acts--meaning conduct requiring adherence to a governing rule, with a compulsory result--may subject the municipal employer to liability for negligence (see, Tango v Tulevech, 61 NY2d 34, 40-41). No one disputes that the Medical Examiner's misconduct here in failing to correct the record and deliver it to the authorities was ministerial.

Lauer v. City of New York, 2000 N.Y. LEXIS 907, *; 95 N.Y.2d 95; 733 N.E.2d 184; 711 N.Y.S.2d 112

Imputation | Zurechnung

The determination of a legal duty or right to a person. The imputation may occur through implication or through legal fiction, i.e. a constructive duty or right.

Imputed Negligence

Negligence where the fault of one person is transferred to another. For example, the negligence of a child may be imputed to a parent or that of a worker to his or her employer.

Schmidt v. Martin 212 Kan. 373, 510 P.2d 1244, 1246.

See also: respondeat superior, master and servant, children.

Indemnity | Entschädigung

Compensation given (often from an insurance fund) to make whole the injury already sustained. May refer either to compensation via private insurance, social insurance or indemnisation of the victim of a tort by the tortfeasor through whatever resources the tortfeasor has.

Independent Contractor | selbständiger Vertragspartner

A person or business who serves another but on their own account, thus generally being paid either a flat rate or commission. The independent contractor is not subject to the control of she who hires them and thus the person who engages the contractor is not liable for the acts or ommissions of the contractor.

informed consent

A rule of full disclosure of all relevant facts which is necessary prior to the validity of a waiver of rights. Informed consent is most often a statutory obligation and effects most usually the field of medicine. Thus the physician must inform the patient of the risks and advantages of the procedure or medicine as well as the possible alternatives so that the patient can make a fully informed choice. Except in emergency, physicians must obtain the informed consent of the patient prior to treatment.

Injunction | Unterlassungsanordnung

An injunction at common law is an equitable remedy which can bar, either temporarily or permanently, and either prospectively or retrospectively any conduct of a defendant which constitutes a nuisance. Breach of such injunction will give rise to liquidated damages.

Gainsburg v. Dodge, 193 Ark. 473, 101 S.W.2d 178, 180.

Injury | Verletzung (eines rechtlich geschützten Interesses)

Injury implies damages and although the two terms are not synonyms they are very nearly so. Injury is the ordinary consequence of violation of one’s rights though injury does not always lead to damages which is why though the two terms are nearly the same they are not exactly so. Wherever there are damages there was an injury but ther is not always damages where there is injury. This principle of damnum sine injuria(q.v.) may be difficult for the lay person. However injury can encompassing abstract rights with no monetary value. Thus in cases of damnum sine injuria the injury is either de minimis, i.e. a trifling and too small to be remedied practically at the law or incommensurate. In such cases the plaintiff will have a satisfaction remedy of nominal damages - which are also called symbolic damages.

Personal | Verletzung körperlicher Integrität (Körperschaden)

Many torts, though not all, involve injuries to the body of a person. Such injuries are known as personal injuries.

Intent | Vorsatz

The autonomous individual – despite the fact of mutual dependance of people on others - is the centerpiece of the liberal notion of humanity. Thus the legal concept of intent, i.e. volition is central to an understanding of law in the liberal regimes. Intent is that state of

minde which is determined to do a certain thing.

Reinhard v. Lawrence Warehouse Co., 41 Cal. App.2d 741, 107 P.2d 501, 504.

State v. Gantt, 26 N.C. App. 554, 217 S.E.2d 3, 5.

Intentional infliction of emotional distress

The common law would not have recognized a claim for IIED as such, though such a claim could have been made using the general claim of action on the case or trespass on the case (q.v.) which are synonymous terms for the same action. Alternatively an IIED claim could have been – and as case, could be – made on a theory of assault if the victim were placed in fear of imminent bodily harm. This claim – where recognized – requires an intent on the part of the tort feasor, and an intent to harm the person. Thus there is less concern with fraudulent or exageratted claims that inheres in claims of negligent infliction of emotional distress (q.v.).

Even where this claim is recognized it is limited. E.g.,

“In our view, allowing emotional distress claims against a municipality for an official's negligent failure to transmit correct information to law enforcement authorities conducting criminal investigations in this case will have far-reaching effects in future cases.”

Lauer, Respondent, v. City of New York

95 N.Y.2d 95; 733 N.E.2d 184; 711 N.Y.S.2d 112; 2000 N.Y. LEXIS 907

Intentional Interference With Prospective Economic Advantage

This tort protects the relationship of trust and confidence between two persons as regards a third person. To prove a tort of intentional interference with prospective economic advantage the plaintiff must show:

1) An economic relationship between themselves and another person

2) A potential future benefit arising out of the relation

3) That defendant knew of the relationship

4) Action or intent to commit acts designed to disrupt the relationship

5) Damages caused by the defendant’s acts.

Buckaloo v. Johnson (1975) 14 Cal.3d 815, 827.

Essentially this tort remedies situation where a contract would have been formed but for the tortious interference of the defendant.

See Besicorp Ltd. v Alan R. Kahn, 2002 N.Y. App. Div. LEXIS 77, * ; 736 N.Y.S.2d 708; 2002 N.Y. App. Div. LEXIS 77

Intentional Interference with Contract

The tort of intentional interference with contract grew out of the tort of 'inducing breach of contract.'' (Seaman's Direct Buying Service Inc. v.Standard Oil Co. (1984) 36 Cal.3d 752, 765.) and is in fact one type thereof.

Essentially this tort remedies situation where a contract has been formed but is repudiated because of the tortious interference of the defendant.

See, e.g. Builders Corporation ofAmerica v. U.S. (N.D.Cal.'57 148 F.Supp. 482, 484, fn. 1, revd. on other grounds (9th Cir.'58) 259 F.2d 766, see also Pacific Gas & ElectricCo. v. Bear Stearns & Co.(1990) 50 Cal.3d 1118, 1126.)

'The actionable wrong lies in the inducement to break thecontract or to sever the relationship, not in the kind of contract or relationship so disrupted, whether it is written or oral, enforceable or notenforceable.' ' Pacific Gas & Electric Co. v. Bear Stearns & Co., supra, 50 Cal.3d at 1127.

The act of inducing breach of contract must be intentional. Thus an act which unintentionally leads to the breach of contract would not be grounds for a cause of action.

Intentional torts | Vorsätzliche Delikte

For every intentional tort there is a corresponding crime. Thus the tort of assault / the crime of assault, the tort of battery / the crime of battery etc. The intentional torts are those torts committed not through negligence or under a theory of strict liability but deliberately.

Intervening cause / Intervening Efficient Cause

Where a necessary cause to a tort occurs and where a superseeding sufficient cause intervenes that intervening cause will clearly be a tort. The question then is what of the underlying necessary cause? Will it also be a tort? If the necessary cause was not however sufficient then it will not be a legal cause and will not give rise to a cause of action. If on the other hand the necessary cause was in fact sufficient but did not occur due to the intervening cause liability for the earlier necessary cause will also lie.

For example imagine a person has been poisoned: because of the poison they will die. However before they die a second tort feasor shoots them to death. Clearly the second party is liable. The first party is also liable – strictly speaking the second cause is not an intervening cause.

Imagine the opposite case: defendant is drunk, and drives with a passanger. At a traffic light, the passenger gets out of the stopped car, and crosses the street against the signal – and is struck by another driver. Clearly the drunken driver is negligent and is also factually a cause, i.e. a necessary cause. However his action is not sufficient: once the passenger got out of the car and crossed the street the second car acts as an intervening cause.

Phillabaum v. Lake Erie & W. R. Co., 315 Ill. 131, 145 N.E. 806, 808.

Coyle v. Stopak, 86 N.W.2d 758, 768;

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Joint and Several Liability | Mitverschuldung / Mitgefährdung / Gesamtschuldnerische Haftung

Where two plaintiffs contribute to the defendants injury and where either plaintiffs conduct would have led to the injury they are both liable as as joint-tortfeasors. The plaintiff can recover against either of them for the entire cost of their injury, though the joint tort-feasors may have causes of action inter se.

Joint tortfeasors:

See concurrent tortfeasor

Justification | Rechtsertigungsgrund

The act by which a party accused shows and maintains a good and legal reason in court, why he did the thing he is called upon to answer. Justifiable actions include self defence, or even defence of one’s house or property. Libel and slander can be justified by proving the truth of the assertion or because the defendant had the write to publish, for example before a government inquiry.

Justification must be specially pleaded. When proven however it is a completely bars the action.

Young Women's Christian Ass'n of Princeton, N.J. v. Kugler, D.C.N.J., 342 F.Supp. 1048, 1062.

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Law

See : action at law

Legal Cause / Proximate Cause | Zurechnungsgrund

Causation in tort is divided between factual cause, i.e. those necessary causes but for which the tort would not have occurred, and proximate or legal cause, which concerns those causes which were not only necessary but sufficient (or sometimes efficient) and thus which will give rise to legal liability in tort.

See: causation, legal cause

Krauss v. Greenbarg, C.C.A.Pa., 237 F.2d 569, 572

Giles v. Moundridge Milling Co., 351 Mo. 568, 173 S.W.2d 745, 750.

Liability | Haftung

Liability is the legal obligation of a person to be held responsable for the injury to another whether that injury is contractual (breach of contract) or tortious (negligence, strict liability, intentional tort).

The consequence of a finding of a prima facie tort if unrefuted by some affirmative defence rise to legal liability in tort.

Mayfield v. First Nat. Bank of Chattanooga, Tenn., C.C.A.Tenn., 131 F.2d 1013, 1019.

Insurance, liability | Haftpflichtversicherung

See insurance

Extent of liability | Haftungsausfüllung

In German law the court distinguishes between a finding of negligence and a determination of the extent of damages. The determination of the extent of damages establishes what remedies the defendant has against the plaintiff, e.g. how much she will be compensated. The common law does this as well though is not as doctrinally strict in that the German determination of negligence and its extent corresponds also to another principle which does not appear to have an analogue in the common law that injury and damage be united in one person (Tatbestandprinzip). The common law reaches the same result albeit using a slightly different conceptual apparatus. In a case where there was no unity of injury and damages, that is where there is an injury but no damages (damnum sine injuria) the common law would award nominal damages.

Foundation of liability | Haftungsgrund

The foundation of liability is the determination of the negligence of the tort feasor and the injury arising therefrom to the plaintiff. It does not however concern the determination of the extent of liability (q.v.). In German law that is a separate inquiry, though in the common law the separation is not as distinct.

Joint and several liability | Gesamtschuldnerische Haftung

When several tort-feasors actions result in a tortious injury to the plaintiff and where each of their actions independantly would have led to the injury they shall be considered jointly and severally liable. The plaintiff may further choose to sue any or all of them either individually or as a group.

Insurance liability | Haftpflichtversicherung

See liability insurance

Proportional liability | Anteilshaftung

At common law the all-or-nothing rule (q.v.) required that a plaintiff have either a full recovery against defendant or none at all. This was seen to have led to substantive injustice in that somewhat negligent defendants would be able to avoid liability entirely – or be implicated for the entirety of the damages plaintiff suffered.

Proportional liability proposes to remedy the all-or-nothing rule by permitting a defendant to be held liable for damages only in proportion to their fault in creating the accident. Thus if the defendant were found only to have contributed to 20 percent of the tort (leaving aside for the moment the question of how that determination is made and whether a sufficient cause can only be partially responsible for a consequence) the defendant would be only liable for twenty percent of the damages. Thus proportional liability often arises in questions of joint and several liability.

Contributory negligence vs. comparative fault

Proportional liability also arises in cases of contributory negligence / comparative fault. At common law the rule of contributory negligence held that if the plaintiff were at all responsible for their misfortune – that is if the plaintiff’s own negligence contributed to the tort – be that contribution ever so small the plaintiff would have no recovery because of the all-or-nothing rule. This rule was also seen to be injust and in some jurisdictions has been replaced with the rule of comparative fault. According to the rule of comparative fault a finding of plaintiff’s negligence will reduce the award of damages to the plaintiff. Thus if plaintiff were ten per cent at fault for creating their injury then the damage award to the plaintiff would be reduced by ten percent.

In cases of products liability liability according to market share and epedemiological proof can be used to avoid the problems of causal indeterminicity – although they raise other problems of indeterminicity and may undermine legal certainty. In those cases proof is obtained via statistical evidence and thus the rationale of proportional liability appears again.

Market share liability

The rationale of proportional liability can arise first in cases where it is known that the plaintiff was injured by a product, but not known which manufacturer created the product. There a proportional market share liability may be applied, at least where it is known that all such products were in fact defective. Thus if plaintiff ingests a defective drug, and a certain corporation has fifteen percent of the market share then the defendant would be fifteen per cent liable for the damages arising out of their injury. See, e.g.

Hamilton v. Beretta U.S.A. Corp., 2001 N.Y. LEXIS 946, *; 96 N.Y.2d 222; 750 N.E.2d 1055; 727 N.Y.S.2d 7 (Market share liability where handgun manufacturer unknown due to negligence of manufacturer).

Epedemiological Proof

The second instance, epedemiological proof, arises where it is certain that the plaintiff was injured but uncertain what the cause was. For example a corporation negligently dumps toxic wastes. As a result the rate of cancer in that zone doubles. Plaintiff might be able to argue that the defendant should be fifty per cent liable for their cancer.

Libel | Mündliche Beleidigung

Libel is written defamation of the defendant by the plaintiff. As the defamation is in writing there is less cause for doubt as to the statement and the statement can be presumed to have had greater impact than unpublished spoken words. For these reasons damages in cases of libel are presumed.

Truth is an affirmative defence to libel, and must be proven by the plaintiff.

Bright v. Los Angeles Unified School Dist., 51 Cal.App.3d 852, 124 Cal.Rptr. 598, 604.

Washer v, Bank of America Nat. Trust & Savings Ass'n, 21 Cal.2d 822, 136 P.2d 297, 300.

N. Y. Times v. Sullivan, 376 U S. 254. 11 L.Ed.2d 686.

Libel Per Se

One need not prove damages in cases of libel per se. Falsely accusing another of being stricken by a loathesome disease, of sexual immorality, of professional incompetence, or having committed a crime

Robinson v. Nationwide Ins. Co., 273 N.C. 391, 159 S.E.2d 896, 898.

Licence | Lizenz

A limited right to travel over or use the property of another. A licence may be the object of a contract or gratuitous. A gratuitous licensee may have difficulty bringing an action in tort against the licensor unless the licensor was grossly negligent in failing to reveal some hidden danger on their property which they reasonably ought to have indicated.

The common law distinguished between invitee, licensee, and trespasser in cases of torts against an owner.

An invitee is one who goes onto another's premises in response [*5] to an express or implied invitation and does so for the mutual benefit of both the owner and himself. A licensee, on the other hand, "is one who enters onto another's premises with the possessor's permission, express or implied, solely for his own purposes rather than the possessor's benefit." Mazzacco, 303 N.C. at 497, 279 S.E.2d at 586-87. The classic example of a licensee is a social guest. See, e.g., Crane v. Caldwell, 113 N.C. App. 362, 366, 438 S.E.2d 449, 452 (1994). Lastly, a trespasser is one who enters another's premises without permission or other right.

There is a descending degree of duty owed by a landowner based upon the plaintiff's status. Id. at 561, 467 S.E.2d at 63.

The highest degree of care a landowner owes is the duty of reasonable care toward those entrants classified as invitees. See Roumillat, 331 N.C. at 64, 414 S.E.2d at 342. Specifically, a landowner owes an invitee a duty to use ordinary care to keep his property reasonably safe and to warn of hidden perils or unsafe conditions that could be discovered by reasonable inspection and supervision. See Pulley, 326 N.C. at 705, 392 S.E.2d at 383.

A landowner's duty toward a licensee, on the other hand, is significantly less stringent. The duty of care owed to a licensee by an owner or possessor of land ordinarily is to refrain from doing the licensee willful injury and from wantonly and recklessly exposing him to danger. McCurry v. Wilson, 90 N.C. App. 642, 645, 369 S.E.2d 389, 392. Thus, a licensee enters another's premises at his own risk and enjoys the license subject to its concomitant perils. See Turpin v. Our Lady of Mercy Catholic Church, 20 N.C. App. 580, 583, 202 [*7] S.E.2d 351, 353 (1974).

Finally, with respect to trespassers, a landowner need only refrain from the willful or wanton infliction of injury. See Bell v. Page, 271 N.C. 396, 156 S.E.2d 711 (1967). Willful injury constitutes actual knowledge of the danger combined with a design, purpose, or intent to do wrong and inflict injury. See Howard v. Jackson, 120 N.C. App. 243, 246, 461 S.E.2d 793, 797 (1995). Similarly, a wanton act is performed intentionally with a reckless indifference to the injuries likely to result. Id.

Those jurisdictions which reject the traditional rule generally adopt a “reasonably prudent person under the circumstances” test – which would still distinguish between invited and uninvited guests.

The harder case is that of liability for a tenant who is the victim of a burglary. There, landlords have a "common-law duty to take minimal precautions to protect tenants from foreseeable harm," including a third party's foreseeable criminal conduct ( Jacqueline S. v

City of New York, 81 NY2d 288, 293-294, rearg denied 82 NY2d 749; see, Nallan v Helmsley-Spear, Inc., 50 NY2d 507, 519-520). A tenant may recover damages, however, only on a showing that the landlord's negligent conduct was a proximate cause of the injury ( Miller v State of New York, 62 NY2d 506, 509).

Burgos v. Aqueduct Realty, 92 N.Y.2d 544; 706 N.E.2d 1163; 1998 N.Y. LEXIS 4039; 684 N.Y.S.2d 139

Loss | Schaden

The fact of no longer having the disposition of an object or right. Thus loss is synonymous to damages (q.v.). Mason v. City of Albertville, 276 Ala. 68, 158 So.2d 924, 927.

Economic / pecuniary | Vermögensschaden

Economic losses are those losses objectively measurable. They certainly include all material objects, i.e. chattel and real property. Under the better view losses to abstract non-corporeal rights such as patent, one’s reputation and goodwill will also be considered economic losses provided one can prove a lost stream of future income resulting from the injury. Economic losses do not however include any compensation for pain and suffering, emotional distress or other non-material rights which cannot be valued by the market.

Pure economic | Reiner Vermögensschaden

Pure economic loss has been defined as "damages for inadequate value, costs of repair and replacement of the defective product or consequent loss of profits--without any claim of personal injury or damages to other property . . . ." ' [Citations.]" (Sacramento Regional Transit Dist. v. Grumman Flxible (1984) 158 Cal. App. 3d 289, 294 [204 Cal. Rptr. 736].

In cases of strict products liability the tort feasor will be held liable for direct injuries to the person but not for purely economic injuries i.e. torts where there is no injury to the person. The difficult cases are where there is damage to corporeal property but no personal injury. There the line between contract (economic loss) and tort (material damage) proves hardest to draw. Decisions generally allow recovery for consequential corporeal property damage. Seely v. White Motor Co. (1965) 63 Cal. 2d 9 [45 Cal. Rptr. 17, 403 P.2d 145]

In negligent torts the liability of a manufacturer will be limited to physical injuries and possibly also property damage, i.e. corporeal damages. No recovery for purely economic losses is. Wyatt v. Cadillac Motor Car Division, 145 Cal. App. 2d 423, 426, 302 P.2d 665, disapproved on other grounds in Sabella v. Wisler, 59 Cal. 2d 21, 31, 27 Cal. Rptr. 689, 377 P.2d 889. (Dicta).

The difficult issue is whether property damage should be compensated and if so whether consequential damages arising out of property damage should be compensated.

The issue of consequential damages for a tort arises out of eight possible basic cases:

Strict Negligence

Liability

I) Personal Injury

II) No Personal Injury

III) Corporeal Property Damage

IV) No corporeal property damage

Any of these eight cases can be litigated under a theory of tort or breach of contract. In theory purely economic losses will be recovered under a theory of warranty and personal injury or corporeal property damage will be remedied under a theory of tort. The confusion arises however – aside from the variety of possible fact patterns – in the case of consequential damages. The best guiding principle is that contractual losses are governed by the theory of contractual freedom: that parties to a contract can negotiate the terms thereof. Thus under a theory of contract a plaintiff would not be able to recover for their economic losses due to understimating the economic worth of their bargain. In contrast tort’s are predicated upon a non-consenting relationship. Thus where there is an injury to the person, and even to the persons property, they should be allowed the consequential damages flowing therefrom. However concerns over adequate compensation of plaintiffs and deterrence of defendants lurk behind these principles. The case law in this field is in fact contradictory, see e.g. J'Aire Corp. v. Gregory (1979) 24 Cal. 3d 799 [157 Cal. Rptr. 407, 598 P.2d 60].

Loss of Consortium : Verlust des Liebespartners

The right of a spouse to an award of damages for the loss of services and affection in cases where their spouse was the victim of a tort; Abgeleitete Anspruch des Ehemanns im Fall der Tötung oder Verletzung seiner Ehefrau.

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Malice | Arglist

The intentional doing of an act without justification or excuse and intending to do harm. Malice is one of the preconditions which if found will support an award of punitive damages.

in Libel:

Becker v. Brinkop, 230 Mo.App. 871, 78 S.W.2d 538,

in defamation:

Rice v. Winkelman Boys Apparel, Inc., 13 Mich.App. 281,

New York Times Corp. v. Sullivan, 11 L.Ed.2d 686.

Market share liability | Marktanteilshaftung

See: proportional liability

Mass torts | Massenschadensfälle

A mass tort is a collective tort, that is an injury to a group of persons. Factually speaking there appear to be two instances of mass torts: one source of injury at one point in time, such as an airline accident, or several victims with several tort-feasors but one common instrumentality such as a defective medicine.

Master and servant | Arbeitgeber und Arbeitnehmer

The relation of employment wherein one person, the master, bids and controls the other, the servant, to do their will in exchange for remuneration. Master’s will ordinarily be liable for the torts of their employees committed in the scope of their employ.

An employer can be liable for the torts of their employee committed in the scope of their employment under a theory of vicarious liability (see: respondeat superior).

Whether an employer will be liable for the tort committed against their employee will depend partly on the circumstances. At common law the fellow servant rule (q.v.) denied such liability where the tort was committed by a co-worker. The fellow servant rule has been abrogated in most if not all jurisdictions.

See also: Employee vs. Independent Contractor, Fellow servant rule, respondeat superior, vicarious liability.

Brenner v. Socony Vacuum Oil Co., 236 Mo.App. 524, 158 S.W.2d 171, 174. I75; Relling v. Missouri Ins. Co., 153 S.W.2d 79;

Pantell v. Shriver Allison Co., 61 Ohio App. 115, 22 N.E.2d 497, 499.

See: Agency

Means of proof | Beweismittel

The material method used to prove a fact asserted, e.g an affidavit (d. Bestätigung; fr. attestation). See: evidence.

Medical malpractice | Medizinische Behandlungsfehler

A tort committed by a physician against their patient. Unless a patient consents to being treated by their physician the physicians act would constitute battery. Naturally patient’s consent, but such consent must be informed (see informed consent). Even if the patient has given informed consent they have consented only to non negligent treatment: that is the physician still has a duty to perform their service non-negligently.

Kosberg v. Washington Hospital Center, Inc., 129 U.S.App.D.C. 322, 394 F.2d 947, 949.

Mere Negligence

See: Negligence, Due care

Minor children | Minderjährige

See Children

Misrepresentation

See deceit

Mitigation | Schadensminderung

A synonym for avoidable consequences (q.v.) Mott v. Persichetti, Colo.App., 534 P.2d 823, 825. Also see:

damages, mitigation of.

Monetary Damages | Schadensersatz in Geld / Geldentschädigung (?)

Monetary damages are the ordinarily presumed remedy in the common law. They seek to compensate the injury of the plaintiff via a determination of the cash equivalent of the loss to the defendant, the interest thereon, and the pain and suffering suffered by the defendant. They must be distinguished from real restitution.

The usual meaning is ''pertaining to coinage , but it has been held to include personal property.

In re Kipp's Will, 37 N.Y.S.2d 541, 543

See damages, monetary

Moral injuries | Normativer Schaden

Injuries to rights other than economic rights. Thus injuries to one’s personal honour (Ehre) but also injuries to other non-material interests such as the pain and suffering arising from a tort. Such injuries give rise to at least nominal damages (q.v.). See also: damnum sine injuria,

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Necessity | Notstand [?]

Where a defendant is compelled by overwhelming force to commit a tort that compelling force provides the excuse (q.v.) of necessity. The defendant will be exonerated C.f. justification.

Bykofsky v. Borough of Middletown, D.C.Pa.,

401 F.Supp. 1242, 1250.

Negligence | Fahrlässigkeit (als Delikt) / Fahrlässigkeit (als Schuldform)

The failure to meet the duties of social obligation, general judged by the standard of a reasonably prudent person. See standard of care, due care.

Amoco Chemical Corp. v. Hill, Del.Super., 318 A.2d 614, 617.

Pence v. Ketchum , 326 So. 2d 831, 836 (La. 1976)

Comparative negligence | Mitverschulden (am: Quotelung)

See liability: proportional – contributory negligence / comparative fault

Contributory negligence

See liability: proportional – contributory negligence / comparative fault

Criminal negligence | Fahrlässigkeit als strafrechtliche Schuld

Criminal negligence is that negligence which willful, wanton and malicious. A higher standard than ordinary negligence which is the failure to act as a reasonably prudent person. To impute a criminal as opposed to civil liability this standard must be greater than recklessness but must display some culpable intent, i.e. wanton indifference or malice.

Slight negligence | Leichte Fahrlässigkeit

Contresens: Slight negligence means failure to exercise the foresight and circumspection that an extraordinarily prudent person would exercise.

Briggs v. Spaulding, 141 U.S. 132, 11 S.Ct. 924, 35 L.Ed. 662.

Ordinary negligence | Normale Fahrlässigkeit

The standard of ordinary negligence is the failure to act as a reasonably prudent person. Failure to meet this standard of care (q.v.) will lead to a finding of negligence in tort.

Briggs v. Spaulding, 141 U.S. 132, ll S.Ct. 924, 35 L.Ed. 662.

Gross negligence | Grobe Fahrlässikeit

Gross negligence is negligence which while reckless and indifferent is not sufficiently malicious as to rise to criminality. It is however a higher standard of negligence than mere negligence.

Glaab v. Caudill, Fla.App., 236 So.2d 180, 182, 183, 185.

Claunch v. Bennett, Tex.Civ.App., 395 S.W.2d 719, 724;

Snyder v. Jones, Tex.Civ.App., 392 S.W.2d 504, 505, 507.

Per se negligence | Per se Fahrlässigkeit

Should be seen as a form of strict liability: an imputation of negligence where there is no showing of fault. Statutes sometimes impose per se negligence for certain acts or ommissions. Ironically as strict liability in commerce, i.e. products liability is being adopted, instances of per se negligence in the non-commercial context have diminished as they are formalistic, inflexible and substantively unfair.

Negligent infliction of emotional distress

This claim, a very recent development in the common law, purports to create a claim for purely emotional losses due to the negligence of another. It is not recognized in all jurisdictions.

No-fault Liability | Gefärdungshaftung

Liability without fault. Liability where there is no negligence or no need to prove negligence on the part of the tort-feasor.

See: strict liability, absolute liability

Non-delegable duties | Nicht delegierbare Pflichten [???]

Nominal damages | Nominal Schadensersatz / symbolischer Schadensersatz

An award to a plaintiff of a symbolic sum to fullfil the satisfaction interest (Genugtuung) of the injured plaintiff; Purely symbolic damages awarded to remedy an injury to a plaintiff where no damages occur. Q.v. damnum sine injuria. The objective of nominal damages is to provide emotional satisfaction (Genugtuung) to the plaintiff.

Non-Pecuniary Losses | Nicht Vermögensschäden

Those injuries which have a material existence but to which no monetary value can be ascribed, e.g. antique family posessions.

Non-material damages | Immaterialler Schäden

Those injuries which may or may not have an economic value but which in all cases do not concern material things such as personal or real property.

Nuisance

Unreasonable unlawful or unwarranted use of one’s property such that it injures or obstructs the rights of another. Nuisances can be the basis for an injunction (q.v.). Nuisances may be public, private, or mixed. Public nuisances interfere with the rights of all though possibly to a different degree. (Kelley v. New York, 6 Misc. 516, 27 N.Y.S. 164.) Private nuisances interfere with the rights of a single individual or a very few persons. (Mandell v. Pasquaretto, 76 Misc.2d 405, 350 N.Y.S.2d 561, 566; pur Industries, Inc. v. Del E. Webb Development Co., 108 Ariz. 178, 494 P.2d 700, 705.) Mixed nuisances do both, for example the defendants polluting activity creates both noxious odors, a public nuisance, and destroys the fish in a private lake owned by one person, a private nuisance.

It is possible for plaintiff to prevail on causes of action for public nuisance and for negligence where it has suffered economic loss, but no personal or property damage.

Herman v. Cardon, 23 Ariz.App. 78, 530 P.2d 1115, 1118.

Awad v. McColgan, 357 Mich. 386, 98 N.W.2d 571, 573.

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Occupiers’ Liability | Haftung von Grundbesitzern

The liability of a landowner for a tort occuring on his or her property was dependant at common law upon a distinction between trespassers, licensees, invitees and guests. Trespassers would have virtually no rights, whereas guests would. Statute and case law have sometimes dropped this distinction.

See: License

Ommission

The failure to act. Just as an action can be negligent a failure to act can also be negligent if the law imposes a duty to act. See: act.

Ordinary Negligence

Failure to exercise the care of a reasonably prudent person. See due care (syn.). Also: Briggs v. Spaulding, 141 U.S. 132, 11 S.Ct. 924, 35 L.Ed. 662.

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Patent | Patent

An exclusive right of the owner of the patent to enjoy a monopoly over the use of their invention for a limited period in time.

Per Quod (Libel Per Quod, Slander Per Quod)

Per quod in slander means proof of special damages is required. Libel per quod means the requirement of proof of extrinsic circumstances

General Motors Corp. v. Piskor, 27 Md.App. 95, M0 A.2d 767, 783.

Per Se (Slander Per Se, Libel Per Se)

Slanderous or libelous statements are considered “per se” under the following four circumstances. 1) False accusation of criminality 2) False mputation of loathesful or offensive disease 3) False accusation of the unchastity of a woman 4) False statements which tend to injure a person in their trade, business, or office.

In such cases proof of particular damages, i.e. of ‘special damages’ will not be required.

Munafo v. Helfand, D.C.N.Y., 140 F.Supp. 234, 238.

Personality rights | Persönlichkeitsrechte

Personality rights were not a concept of the common law: however the growth of an information society with instant production, reproduction, and dissemination of writings, images, and sounds has led to the creation of a concept of the rights of the person.

These rights can be understood first as certain of the classic common law torts: defamation; action on the case; and then later the actions for deceit and passing off. More recently, either by decisions of high courts or statute, rights of privacy are also included in the concept of personality rights.

Law Philospher

Sunday, February 12, 2012

ABSOLUTE LIABILITY / STRICT LIABILITY | GEFÄHRDUNGSHAFTUNG UNBEDINGTE HAFTPFLICHT / DIE KAUSALHAFTUNG / DELIKTSHAFTUNG | RESPONSABILITÉ DE PLEIN DROIT ACCIDENT LAW | UNFALLRECHT

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