These definitions are not legal advice. Please consult with an attorney prior to taking any legal action.

Assumption of the risk.  The doctrine of assumption is a defense to a claim of negligence.  The defendant must prove the following: (1) the claimant had knowledge of the facts indicating a dangerous condition; (2) the claimant knew the condition to be dangerous; (3) the claimant knew the extent of the danger and the seriousness of injuries that could result; and (4) the claimant voluntarily exposed himself to the danger.

Example: Plaintiff engages in hang gliding at an event operated by the defendant.  A gust of wind slams the plaintiff against the cliff resulting in injuries.  The defendant would raise assumption of risk as an affirmative defense.

Example: Plaintiff Colleen Kane and her husband, John, attended a clinic for skiers who wanted to become members of a local voluntary ski patrol. The appellate court in California found that "although with the benefit of hindsight one can see how errors in judgment by the clinic instructor led to Colleen's injury and John's death, the record shows that as a matter of law the Kanes assumed the risk of those errors.(Kane v. National Ski Patrol)

Collateral estoppel.  Collateral estoppel, or issue preclusion bars the re-litigation of issues actually adjudicated in previous litigation between the same parties. (Kamilch Co. v. United States,53 F.3d 1059, 1062 (9th Cir. 1995). The doctrine of collateral estoppel can apply to preclude re-litigation of both issues of law and issues of fact if those issues were conclusively determined in a prior action. (United States v. Stauffer Chem. Co.,464 U.S. 165, 170-71, 104 S. Ct. 575, 578 (1984).

Comparative fault.  The doctrine of comparative fault or comparative negligence is that the recovery of a plaintiff should be reduced by the proportion of the plaintiff's negligence in causing the injury.  To recover anything at all, the proportion of the plaintiff's negligence must be less than the defendant.  A second condition is that the plaintiff could not have avoided consequences of the defendant's negligence after it was, or should have been, apparent.  This doctrine is an alternative to contributory negligence.

Constructive notice.  When there is no actual notice to a defendant of a hazardous condition, there may nevertheless be constructive notice.  If the defendant would have been aware of the condition by being reasonably attentive, the defendant has constructive notice

Constructive termination.  An employee can assert a claim of constructive discharge when she is forced to resign because her working conditions, from the standpoint of the reasonable employee, have become unbearable. Lindale v. Tokheim Corp., 145 F.3d 953, 955 (7th Cir. 1998).

Although an employee facing a discriminatory or harassing work environment is not required to file suit before resigning, failure to object to egregious conditions or to seek some form of redress is compelling evidence that the employee, or any reasonable worker, would not find the conditions intolerable. Id. Absent extraordinary conditions, "a complaining employee is expected to remain on the job while seeking redress." Perry v. Harris Chernin, Inc., 126 F.3d 1010, 1015 (7th Cir. 1997).

An affirmative defense for an employer is that it exercised reasonable care to prevent and correct any discriminatory or sexually harassing behavior. Burlington Indus. v. Ellerth, 524 U.S. 742, 760- 65 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998).

Contributory negligence.  This is an affirmative defense against a claim of negligence.  The defense is that the plaintiff's negligence was a concurrent contributing cause of the injury.  The defense might also be that the plaintiff's conduct fell below standards of ordinary self-protection and that cooperated with the negligence of the defendant in causing the injury.

Copyright.  A copyright is the right of literary property, that is, created in a medium of language.  The protection of copyright extends to original works of authorship.  In most countries a copyright need not be registered with the government office in order to be protected.  The copyright holder enjoys the following rights exclusively: to reproduce and distribute the work, created derivative works, render public performances based on the work, publicly display the work, or made sound recordings of the work.  See U.S. Copyright Act.

Copyright infringement.    The elements of  copyright infringement are that the claimant owns the copyright and that the infringing party copied the protected expression from the work of the claimant and interfered with the exclusive rights of the copyright holder.  See copyright.

First, the claimant must prove that the works are substantially similar.  A reasonable person standard may be used to make this determination or proof can be rendered by an objective analysis of specific elements or features of the work.   Secondly, it is necessary to show access to the work by the infringer.  Note: it is not necessary to show intent.  But a showing of intent may affect the damages awardable.

Copyright infringement defenses.  Estoppel, laches, and unclean hands are each defenses.  The defendant may also assert its ownership of a license or the work itself or that the work is in public domain. Defendants can also assert that the claimant misused or abandoned its copyright.

Courts have also found that there is a "fair use" of parts of copyrighted material for limited purposes. See section 107 of the U.S. Copyright Act.

 Demurrer.  This is a response pleading to a complaint or cross-complaint.  The basis of a demurrer is that, even if the alleged facts are correct, the complaint does not provide a sufficient legal basis for the claim.  Each element of a cause of action must be alleged if one or more are missing then a demurrer will be granted.  A demurrer may be granted with either a leave to amend or without leave to amend the complaint.    

Design immunity.  A public entity is liable for injury proximately caused by a dangerous condition of its property if the dangerous condition created a reasonably foreseeable risk of the kind of injury sustained, and the public entity had actual or constructive notice of the condition a sufficient time before the injury to have taken preventive measures. (Gov. Code, § 835, subd. (b);[1] Baldwin v. State of California (1972) 6 Cal.3d 424, 427 (Baldwin).)

However in California, a public entity may avoid such liability by raising the affirmative defense of design immunity. (§ 830.6.) A public entity claiming design immunity must establish three elements: (1) a causal relationship between the plan or design and the accident; (2) discretionary approval of the plan or design prior to construction; and (3) substantial evidence supporting the reasonableness of the plan or design. (Grenier v. City of Irwindale (1997) 57 Cal.App.4th 931, 939 (Grenier); Higgins v. State of California (1997) 54 Cal.App.4th 177, 185 (Higgins); Hefner v. County of Sacramento (1988) 197 Cal.App.3d 1007, 1013-1014 (Hefner).))

Design immunity does not necessarily continue in perpetuity. (Baldwin, supra, 6 Cal.3d at p. 434.) To demonstrate loss of design immunity a plaintiff must also establish three elements: (1) the plan or design has become dangerous because of a change in physical conditions; (2) the public entity had actual or constructive notice of the dangerous condition thus created; and (3) the public entity had a reasonable time to obtain the funds and carry out the necessary remedial work to bring the property back into conformity with a reasonable design or plan, or the public entity, unable to remedy the condition due to practical impossibility or lack of funds, had not reasonably attempted to provide adequate warnings. (§ 830.6; Baldwin, at p. 438.)

See Cornette v. Department of Transporation

Duty.  California and other states have adopted a multi-element duty assessment in determining whether a particular defendant owed a tort duty to a given plaintiff. These factors include: (1) the foreseeability of harm to the injured party; (2) the degree of certainty that the injured party suffered harm; (3) the closeness of the connection between the defendant’s conduct and the injury suffered; (4) the moral blame attached to the defendant’s conduct; (5) the policy of preventing future harm; (6) the extent of the burden to the defendant; and (7) the consequences to the community of imposing a duty to exercise care, with resulting potential liability. ( Rowland v. Christian (1968) 69 Cal.2d 108.)

Where a public entity is involved, the California court considers the following additional factors: the availability, cost, and prevalence of insurance for the risk involved; the extent of the agency’s powers; the role imposed on it by law; and the limitations imposed on it by budget. (Ma v. City and County of San Francisco, 2002)

Extrahazardous.  Conditions or activities of special and unusual danger.

Estoppel.  A claimant may be prevented from exercising a right due to its own acts.  For instance, the claimant may have done something that induced the defendant to do the alleged wrong.  The defendant may then use that as a defense. (Illinois Supreme Court, April, 2001: Geddes v. Mill Creek Country Club)  "The doctrine of estoppel has three essential elements -- a position of authority assumed by the defendant under color of right; submission to and reliance upon that assumption by the plaintiff; and injury suffered by the plaintiff as a proximate consequence of such submission and reliance. Belt Auto. Indem. Ass'n v. Ensley Transfer & Supply Co., 211 Ala. 84, 99 So. 787 (1924)" Alabama Supreme Court, April, 2001: 

Emergency doctrine "More than a century ago, this Court first considered the reasonableness of an actor's conduct when confronted with a sudden emergency situation (see, Wynn v C.P., N.&E. R.R.R. Co., 133 NY 575). Since then, we have articulated and applied the common-law emergency doctrine which “recognizes that when an actor is faced with a sudden and unexpected circumstance which leaves little or no time for thought, deliberation or consideration, or causes the actor to be reasonably so disturbed that the actor must make a speedy decision without weighing alternative courses of conduct, the actor may not be negligent if the actions taken are reasonable and prudent in the emergency context” (Rivera v New York City Tr. Auth., , 77 NY2d 322, 327), provided the actor has not created the emergency." (Caristo v. Sanzone)

Inverse condemnation.  Liability for inverse condemnation requires a showing that an improvement built or operated by a public agency caused damages.

Joint and several liability.  Two or more joint tortfeasors are jointly liable for the full judgment and are also each individually liable for the full judgment.

Laches.  If the claimant let substantial time lapse before asserting a right, the defendant may assert that it was prejudiced by this delay.

Learned intermediary doctrine.   This legal theory is usually used to protect drug manufacturers from liability claims by patients when the manufacturer provides adequate warnings to the prescribing physician instead of directly to patients. The doctrine has also been used to exempt pharmacies and pharmacists from liability in cases in which warnings are not passed on to patients. (Kirk v. Michael Reese Hospital & Medical Center, 117 Ill. 2d 507 (1987 ) Perez v. Wyeth Laboratories, Inc., 1999 N.J. LEXIS 1000 (N.J. Aug. 9, 1999) )

Malicious prosecution. This is an action brought by a person against whom a civil action was prosecuted. The following must be shown about the underlying action. The legal process was terminated in favor of the claimant. The prosecution of the action was either begun or continued with malice. The civil action was without merit or there was no probable cause for criminal proceedings. The claimant suffered injury or damage as a proximate result of the action .(Spiegel v. Zurich Ins. Co.) In some jurisdictions indemnification for direct malicious prosecution is illegal (Downey Venture v. LMI Ins. Co., 98 S.F. Recorder C.D.O.S. 6916;).

Negligence liability.  Negligence is the doing of something, or the failure to do something,  that would be expected of a reasonable person guided by considerations that normally regulate human affairs.  The standard of negligence is what would a reasonable person do in such a circumstance.

Nuisance liability.  Liability for nuisance requires a showing that a public agency created, or maintained after notice, a condition constituting a nuisance.

Peculiar risk doctrine.  Under the doctrine of peculiar risk, a person who hires an independent contractor to do inherently dangerous work can be held liable for tort damages when the contractor causes injury to others by negligently performing the work. Peculiar risk is not exclusively a form of vicarious liability. It may arise as a form of direct liability if the person who hires an independent contractor (a) fails to provide in the contract that the contractor shall take such precautions, or  (b) fails to exercise reasonable care to provide in some other manner for the taking of  such precautions.        ( Toland v. Sunland Housing Group, Inc. (1998) 18 Cal.4th 253 )

 Product liability.  The manufacturer of a product as well as sellers, lessors, or anyone else in the chain of commerce, is liable in tort if the product is defective so that it is dangerous (Cobbins v. General Acc. Fire & Life Assur. Corp., 3 Ill.App.3d 379, 279 N.E.2d 443, 446)  Strict liability applies. It must be proved not only that there was a defect but that the defect has actually caused damages. (American Suzuki Motor Corp. v. Superior Court, 37 Cal. App.4th 1291, 1299 (1995); Collins v. Safeway Stores, Inc., 187 Cal.App.3d 62, 72 (1986)).

Res ipsa loquitur.  This is a Latin phrase meaning: "The thing itself speaks."  "Res ipsa loquitur is a rule of circumstantial evidence requiring that the plaintiff show that the defendant had exclusive control of the instrumentality and that the accident was of the kind that normally would not happen if reasonable care had been used.  With both conditions met, negligence is presumed. (Harnet v. O'Rourke (2003) U.S.10th Co)  The defendant then has the burden to prove he was not negligent The doctrine applies only when control and negligence coincide. Town of Reasnor v. Pyland Constr. Co., 229 N.W.2d 269, 272 (Iowa 1975). In other words, "[f]ailure to connect the defendant with the negligent event defeats the application of res ipsa loquitur." Brewster, 542 N.W.2d at 528-29. The difficulty in successfully applying the res ipsa doctrine in the case of multiple defendants was demonstrated in Town of Reasnor. There the city sued two construction companies, each involved in constructing separate parts of a sewer system. One contractor constructed sewer mains and manholes while the other constructed sewage lagoons, a lift station, and force main. The two parts of the system were designed to connect but, because of an unexpectedly high water table at the first manhole, the first contractor had to adjust its plans, an event causing problems for the second contractor when it "tied-in" its work. One manhole eventually sunk, causing the sewer pipe to break. Unless there is vicarious liability or shared control, the logical rule usually is applied, that the plaintiff does not make out a preponderant case against either of two defendants by showing merely that he has been injured by the negligence of one or the other. Because the construction companies' control of the instrumentalities at issue was consecutive rather than shared, neither company could be shown to have had exclusive control when the negligence occurred, thus making the doctrine of res ipsa loquitur inapplicable. (Novak Heating v. Carrier Corporation et al, Iowa Supreme Court, Feb. 13, 2001)

Res gestae.  This is a Latin phrase meaning "Thing uttered."  This is a remark made at the time of an event and spontaneously.  Res gestae is considered inherently credible and therefore admissible as evidence from a secondary source.  It is an exception to the hearsay rule.   To qualify for the exception the remark must be related to the event and close to the event in time.

Example: If  immediately after a two car accident one driver says to the other, "I am sorry, I just did not see you coming."  This remark would be admissible as evidence.

Statutes of repose.  Laws that limit the time period a product placed on the market can be subject to a liability claim are statutes of repose. When the individual item or product has been on the market for more than specified period of time, the product is no longer subject to a claim for injuries. If a widget was sold more than ten years ago and causes an injury to someone due to a defect in it's eleventh year, the widget may not be a subject to a claim. There are exceptions to this rule, for instance, when the product life is expected to last more than the ten years.  However each state has different laws with respect to this.

Strict liability.  This is the doctrine that a seller of a product is liable for any defects that put the any consumer or user of the product at risk of injury.  Strict liability applies to all involved in the manufacture or selling of the product unless the product was substantially changed before it was sold.  For strict liability to be imposed the seller must be in the business of selling the product.  

Passive members in the stream of commerce, those that merely passed the  product along, may obtain equitable indemnity against active members, such as the manufacturer.

Tangible employment action.  

A tangible employment action constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." Burlington Indus. v. Ellerth, 524 U.S. 742, 760- 65 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998).

Trademark.  Trade marks identify  products of particular manufacturers or sellers as distinct from others.  Service marks distinctively identify services of a particular provider.  The level of distinction from those that are arbitrarily chosen and associated with a product or service to marks that have some connection to the product or service to those that are generic descriptions of the product or service.  An example of an arbitrary mark is Apple Computer.  A suggestive mark might be Microsoft.  A generic name would be  Best Buy stores.  Generic names are not protected unless they acquire secondary meaning as being particularly associated with a particular product or service in public recognition.

Trade libel.  The intentional disparagement of the quality of property which results in pecuniary damage. (Nichols v. Great American Insurance Co. (1985) 215 Cal. Rptr. 416, 419). There exists "no right to issue and publish an untrue or deceptive statement of facts which has the disparaging effect upon the quality of another's property, under circumstances which would lead a reasonable person to foresee that it will have such effect." (Paramount Pictures v. Leader Press (10th Cir. 1939) 106 F.2d 229) The aggrandizing of one's own product by claiming its superiority over a competitor's product is not disparagement. (Aerosonic Corp. v. Trodyne Corp. (5th Cir. 1968) 402 F.2d 223)

Trademark infringement.    The elements of  trade or service mark infringement are that the claimant owns and actually uses the mark and that the infringing party palms off its product or services as those of the claimant by copying all or a part of the mark.  If only a part of a mark is copied, it must be enough to cause confusion to the potential customer.  It is a form of unfair competition.

Claimant must show that the infringing party actually used the copied mark in commerce without the consent of the claimant.  It must further be shown that the use was in connection with the sale, offering for sale or advertising of products or services.  Finally, the claimant must show that the use was in a manner that would likely cause confusion or deceive customers as to the source or origin of the product or services.

 Note: it is not necessary to show intent.  

Trademark infringement defenses.  Estoppel, laches, and unclean hands are each defenses.  The defendant may also assert its prior use of the mark. Defendants can also assert that the claimant abandoned its mark.

Another defense is that the claimant acquiesced to the use of its mark.  Acquiescence is an assurance, either expressly or impliedly, that the trademark rights would not be asserted.

 

Unclean hands.  This is a defense that asserts the claimant defrauded the defendant with respect to the subject matter of the claim.  The claimant accordingly has no equitable right of relief.  "Fair use" by the defendant of the claimant's mark may be asserted.

Wrongful entry.  A wrongful act is an injurious, unjust, reckless, unfair act that infringes on the rights of another to his damage.

Wrongful eviction. A wrongful act is an injurious, unjust, reckless, unfair act that infringes on the rights of another to his damage.