ABSOLUTE LIABILITY / STRICT LIABILITY PPC and Tort paper 5 and 6 for LLB part I Punjab Universty

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.

-G-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.