Refer to Exhibit 3.3 in the text, Elements of Different Causes of Action. Analyze the following factual situation. Determine which causes of action exist and state why they exist.
Connors and Loewe enter into a written agreement whereby Connors agrees to purchase Loewe’s house. Connors asks Loewe about the condition of the roof. Loewe tells Connors that the roof is in good repair. In fact, Loewe recently had a roof inspection done and was told that the roof was in terrible condition and should be replaced immediately. Shortly after Connors moves into the premises, a storm occurs and the roof leaks in several places.
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Chapter 3 Preliminary Considerations and Procedures
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© 2012 Delmar, Cengage Learning
Copyright © 2020 Cengage Learning. All Rights Reserved.
1
Preliminary Considerations and Procedures
Cause of Action
Time Limitations
© 2012 Delmar, Cengage Learning
Copyright © 2020 Cengage Learning. All Rights Reserved.
Determining the Existence of a Cause of Action
Cause of action—legal right to recover damages
Elements of a cause of action
The defendant must have a duty of due care toward the victim.
That duty must have been breached.
The defendant’s careless act must be the actual cause of the damages.
The defendant’s careless act must be the proximate cause of the damages.
Damages must have been sustained.
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Copyright © 2020 Cengage Learning. All Rights Reserved.
Feasibility of the Lawsuit
Even if cause of action exists, a lawsuit may not be practical.
Determine the cost of litigation
Review the damages suffered by plaintiff
Research the defendant’s ability to pay a judgment
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Copyright © 2020 Cengage Learning. All Rights Reserved.
Turning Down a Case
If an attorney turns down case, this must be communicated clearly to client.
In writing
Careful about stating opinion
Advise client of statute of limitations
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Copyright © 2020 Cengage Learning. All Rights Reserved.
Time Limitations
Statute of limitations—time limit for filing a complaint
Unless a case is filed within the appropriate statute of limitations, it will be dismissed, regardless of its merits.
Calculating statute of limitations
Tolling the statute of limitations
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Copyright © 2020 Cengage Learning. All Rights Reserved.
Time Limitations (cont’d)
Claim statutes
Laches—an equitable principle that prevents lawsuits from being filed when, in fairness to the defendant, too much time has elapsed, even though the statute of limitations may not have expired
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Copyright © 2020 Cengage Learning. All Rights Reserved.