Causes of Action
and Remedies
Unit 3
Housekeeping
Feedback on Action Item 1
 Grading Rubrics posted to Announcement
Board
 Now Grading Action Item 2

General Questions?
Jurisdiction Review
Bring lawsuit where defendant lives, or
where accident took place
 Federal lawsuit requires diversity
jurisdiction – parties must be from different
states

Federal v. State

Federal
 In

the United States District Court for…
State
 In
the Circuit Court for the County of…
Sample Complaint in Client Folder is a
Federal Complaint!
 Google sample complaints

Actionable
Courts cannot undo every wrong.
 Based on experience, courts have
determined that only certain kinds of
wrongful conduct, which cause certain
kinds of losses, should be “actionable.”

Cause of Action
A claim that is actionable states a “cause
of action” or is a “cause of action.”
 A cause of action is a legal theory on
which a court will grant relief to a plaintiff
against a defendant.

Not Causes of Action
An unflattering or hurtful remark.
 Having someone “steal” the parking space
you were waiting for.
 Someone cuts you off in traffic.
 A woman or man breaks off a marriage
engagement.

Other examples?

Can you think of other examples of
“wrongs” that probably do not rise to the
level of being actionable in court?
Critical Aspects

A COA:
 Is
fashioned to give effect to a particular legal
duty.
 Has specific requirements that must be met.
 Affords a particular remedy or remedies.
 Is subject to certain defenses and time
limitations.
Plaintiff Must Prove
1.
2.
3.
The defendant breached a legal duty that
the defendant owed to the plaintiff.
The plaintiff sustained an injury or
property damage or monetary loss.
The defendant’s breach of the legal duty
was a proximate (direct) cause of the
injury, damage, or loss.
Affirmative Defenses
Usually based on some wrongful conduct
of the plaintiff.
 Defendant has burden of proving
affirmative defenses.

Examples
Assumption of risk and contributory
negligence are common affirmative
defenses in civil litigation.
 Self-defense is a common affirmative
defense in criminal litigation.

Question

What does it mean that the defendant has
the “burden” of proving an affirmative
defense?
Breach of Contract
A breach of contract is a failure to comply
with the terms or conditions of an
agreement.
 A COA for Breach of Contract arises when
the defendant fails to perform his or her
part of the contract.

Breach of Contract
The plaintiff must plead and prove that:
1. There was a contract.
2. The defendant breached the contract by failing
to comply with one of its material terms or
conditions.
3. There was a loss resulting from the
defendant’s breach – including the nature and
extent of the loss.
Sample

Exhibit 4.1 on page 83 of your text has a
helpful example of a Complaint for Breach
of Contract.
Justin King

Based on what we know (or imagine to be
the case), do you think Justin King has a
COA for Breach of Contract against MCI
Records?
Justin King

Based on what we know (or imagine to be
the case), is it possible that MCI Records
has a COA for Breach of Contract against
Justin King?
Justin King
A plaintiff’s own breach of contract
provides an affirmative defense to the
defendant.
 The defendant must prove the breach.

Negligence

To understand negligence, it is necessary
to understand the underlying duty of
reasonable care.
Negligence
Negligence is failure to use reasonable
care where significant harm is a
foreseeable consequence.
 The law does not demand perfection.

Negligence

Adults are charged with knowledge
ordinarily possessed by members of a
community and knowledge of natural laws
such as gravity.
Negligence

A COA in Negligence requires proof that
the defendant was negligent and that the
defendant’s negligence directly caused the
plaintiff’s injury or loss.
Negligence
Duty
 Breach
 Causation
 Damages

Examples

Suppose a person sees a neighbor using
a metal ladder very near an un-insulated
power line and recognizes the neighbor is
in danger. Does the neighbor have a duty
to warn or stop the neighbor from going
near the line?
Examples


Suppose a person sees a neighbor using a
metal ladder very near an un-insulated power
line and recognizes the neighbor is in danger.
Does the neighbor have a duty to warn or stop
the neighbor from going near the line?
NO. The law does not require ordinary
individuals to act to protect fellow citizens.
Examples

Suppose a pedestrian discovers a trench
in the road and realizes that motorists may
not be so fortunate to see or avoid it. Does
the pedestrian have a duty to warn
approaching motorists?
Examples
Suppose a pedestrian discovers a trench
in the road and realizes that motorists may
not be so fortunate to see or avoid it. Does
the pedestrian have a duty to warn
approaching motorists?
 NO. However, the person who
excavated the trench or failed to erect
barricades is negligent.

Malpractice
Malpractice cases are similar to
negligence cases.
 They are claims against professional
people based on their alleged failure to
comply with the standards of their
profession.

Justin King
Who can Justin King sue for negligence
(not malpractice)?
Remember:
Duty
Breach
Causation
Damages

Employers

Respondeat superior is a legal doctrine
which states that, in many circumstances,
an employer is responsible for the actions
of employees performed within the course
of their employment.
Justin King

Who can Justin King sue under the
doctrine of respondeat superior?
Justin King

Who can Justin King sue for malpractice?
Justin King

What affirmative defenses might the
potential defendants raise against Justin
King?
Best Case

Which COA has the most chance of
success for Justin King? Why?
Wrap-Up
Any questions?
 Have a safe and happy Holiday Break!
