Test 2 Notes (CH6,7, & 8)
Test 2 Notes (CH6,7, & 8) FIN 331
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This 14 page Study Guide was uploaded by Casey Hogue on Tuesday August 2, 2016. The Study Guide belongs to FIN 331 at Old Dominion University taught by Michael Zugelder in Fall 2016. Since its upload, it has received 13 views.
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Date Created: 08/02/16
CH6 Intentional T orts 06/08/2016 ▯ 1. Nature of Intentional Torts- the primary purpose is to compensate the injured party and punish the conduct of the wrongdoer by the award of punitive damages ▯ **In many cases Int. Torts are also considered criminal conduct** ▯ **Int. Torts are dangerous b/c you can’t get insurance for them** ▯ ** Infants/ Minors/ Incompetents are generally held liable for Int. Torts** ▯ ** The "intent" of an Int. Tort doesn’t require a hostile or evil motive, but connotes that the wrongdoer intends there are consequence of his act** Tort- is a private civil wrong Relation to crimes Relation to other tort theories o Negligence- accident o Strict Liability- no hurt to anyone Remedies available/ Punitive Damages available- to punish or send a message regarding wrongful conduct ▯ A. General defenses- Consent- did the victim give consent to be hurt before hand? (ex: to battery) Privilege- (ex: to battery, defamation, & disparagement) Self Defense- right to defend yourself & others but NOT property ▯ 2. Interference with Personal Rights- ▯ ▯ A. Battery- offensive, unconsented touching, and harmful/hurtful bodily conduct to a reasonable person Attempted Battery- seeing it coming but not getting hurt ▯ ▯ B. Assault- objective reasonable apprehension of fear of immediate bodily contact/ battery (can recover $ damages) Law enforcement’s privilege- if needed in the field officials have right to shoot, arrest, etc ▯ ▯ C. Intentional Emotional Distress- such as sexual or racial insults, horrible (practical) jokes, etc. ▯ **Courts require proof of physical injury to limit fraudulent claims** Elements- in a case you must prove o Intentional- event was not an accident o *Outrageous- Jury decided if it’s over the top or not o Severe distress- necessary for plaintiff to show evidence of suffering ▯ D. False Imprisonment- intentional confinement without consent or privilege by physical barrier, threat, or force so person feels unfree to leave Shopkeeper Privilege- if a shop has probable/ reasonable cause of theft (includes walking out, changing price, etc) they have the right to detain person on the premises for 1hr max ▯ ▯ E. Defamation- when damages are presumed by a false statement **defamation of someone’s character** ▯ **speaker/ witness must hear statement** Type: o Libel- written false statement/ making multiple permanent record(s) of statement o Slander- speaking false statements (t.v., radio) Elements o False defamatory statement of fact/ false communication regarding a person's reputation- must actually have hurt your reputation Satire & Parody- not facts- for fun and use of humor, irony, exaggeration, or to expose/ critisize Opinion & Commentary- not facts Fighting words & Harassment- meant to be hurtful/ have to have clear definition to be punishable rd o Publication/ Communicated- there has to be a 3 person hear or see the false statements Inter-company rule being replaced with qualified privilege Publisher vs. Distributor rule- Ex: No Internet Service Provider should be liable if defamation is posted on their site b/c they only distribute service/ not publish material o Of & concerning- false statement must specifically identify/ be of (by name) the plaintiff Fictional Accounts Issue Disclaimers o Damages/ Injury- must be present Libel and slander per se categories – Damages presumed Special damages- economic, compensatory, & punitive o Malice or Negligence: suits against media- applies to famous people Malice- intention or desire to do evil/ ill will Defamation & the Constitution: special rules o Public Plaintiff- includes celebs & gov’t officials of high statutes/ must show malice & evidence that what was exposed is a lie o Private Plaintiff- includes you & me/ must show negligence of media (they were careless/ sloppy) Defenses to Defamation o Truth- didn’t make false statement o Consent- didn’t happen against their will o Privileges/ Immunities Conditional Privileges- Ex: Protecting legitimate interests Ex: Former employers reference Absolute Privileges- Ex: Legislative/ Judicial proceedings Ex: ISP Immunity as distributor ▯ F. Invasion of Privacy- Intrusion on solitude- *worst type/ ex: peeping tom, eavesdroppers, electronic trackers or bugs, etc. o Highly offensive to reasonable person- Highly offensive=when in house or on property Not offensive= in workplace (not a private place) o Physical or non- physical intrusion o Workplace testing and surveillance- cannot give lie detector test/ or tap phones Publicity concerning private facts o Disclosed in widespread publicity o Highly Offensive to a reasonable person False Light- ex: newspaper photos of successful celebrity & world’s most dangerous child molester swapped (affects life negatively) o Contributing false beliefs or characteristics to a person o Highly offensive to a reasonable person Use/ appropriation of name or likeliness- VA has a statute o Commercial endorsement- need your permission o Related: Right of publicity- your characteristics/ property= need permission ▯ 3. Interference w/ Business & Economic Interests ▯ ▯ A. Misuse of Legal Proceedings Malicious prosecution- causing prosecution w/out probable cause Wrongful civil proceedings- bringing in a frivolous (silly- not worth bringing up) lawsuit Abuse of process ▯ B. Fraud/ Misrepresentation- when been lied to/ hard to prove/ bigger lie= bigger fraud/ misrepresentation usually in form of unintentional, such as negligent/ innocent mistake has been made as to representation of a product/ service Elements (5) o A false actual statement o Material in nature o Said w/ intent to cause reliance o & Causes reasonable reliance o To victim’s damage Use as tort claim or as a contract defense- if fraud is in contract; you can sue for $/ punitive damages ▯ C. Interference w/ Contract- encouraging one another to breach an existing contract; note- if contract is at will, plaintiff must also show additional intentional conduct (ex: fraud) ▯ 4. Interference w/ Property Rights A. Trespass to Land- entering or possessing/ causing of entering or possessing upon land w/ out permission Physical Intrusion on property ▯ B. Private Nuisance- a non- trespassory invasion interfering w/ the victim’s use & enjoyment of the land ▯ C. Conversion of Personal Property- damages to/ or taking of personal property w/ out consent, so award of the price is available, & the lesser trespass on property which is short of conversion, requiring less damages or deprivation Complete dominion to permanently deprive ▯ D. Trespass to Personal Property- a lesser interference Incomplete, temporary- ex: taking car for joy ride Spam- trespassing on the server ▯ 1. Established Categories Importance to business- I/P rights have an increasing importance to businesses small & large Relation to the internet Ex: internet business model Ex: Music File sharing ▯ A. Patents- protects inventors’ federal right to make, use, or sell an invention Things patentable- include: process, machine, product, composition, improvement Patent application- 1 to file- not 1 to invent/ patent doesn’t protect against abstract ideas w/out application/ file & award/ duration- regular patent=18 yrs/ design patent= 14yrs Ownership & transfer of patent rights- rights are transferrable/ can be given away or sold/ shop rights give ee’s a share of ownership for inventions created on the job Patent Infringement- make, use, offer, or sell (patent holders can sue for infringement & receive treble damages) Defenses to patent infringement Remedies o Patent Troll Issue ▯ B. Copyrights- gives exclusive federal rights in creative works of authorship/ purpose is to encourage works & provide benefit to authors Coverage- includes copying, displaying, performing, & distributing o Creative Works Ex: Music, art, data bases, computer software, TV copy, radio, ad copy, photos, blueprints, motion pictures, NOT ideas Creation, federal registration, & notice of Copyright- occurs when the creative work is put into a fixed medium/ registration is optional but benefits received make it recommended Ownership rights/ duration- 70 years + the life or the creator/ 125 years + that life of works created on the job called “for hire”- which are the property of the employer absent agreement Infringement- is shown by access & similarity o Many Types o Elements- Ex: Music Composer Cases Internet Issues- DMCA/ internet based infringement is a huge source for litigation o File sharing- Ex: file sharing litigation o Decryption- o ISP Safe Harbor- Fair Use defense *primary defense- ▯ ▯ C. Trademarks/ Service Mark- excusive federal property rights to use a marketing symbol used in commerce causing secondary meaning Ex: “Just Do It”, “Honda Accord”, “BigMac” Protection level- coverage extends to any word, name, symbol, or device that distinguishes the product/ service/ or its’ source Registration- optional but recommended for benefits, including eventual incontestability & constructive notice (can be made perpetual) o Federal Lanham Act o State Laws Losing trademark protection- can be lost when successfully challenged, abandoned, or cancelled Infringement- caused by a competing mark causing use & likelihood of confusion Trademark Dilution Act- expands infringement to blurring & tarnishing of famous marks Fair Use Doctrine- geographic description, parody, & comparative ads Domain Names o ACPA 99- Cybersquatting o ICANN arbitration ▯ D. Trade Secrets- advantage to keep info confidential and kept secret State Law Basis- state law protects the app of secret info where it provides an economic advantage over competitors in the market Examples: can be used to protect things like confidential customer lists, manufacturing processes, & secret formulas Trade secret loss- can be lost through accidental or deliberate public disclosure, ee misappropriation, or competitor theft o Not secret or kept secret o Corporate espionage o EE Misappropriation o Impact of Internet ▯ ▯ 2. Commercial Torts- suits can be brought for other wrongs that sometimes occur in connection w/ I/P infringements/ frequently b/w commercial parties ▯ ▯ A. Injurious Falsehood (Product Disparagement)- defamation against a business/ product of business, w/ the privilege being that of honest competition as opposed to an intent to damage/ convey false information (includes trade libel & slander of title) Fact not opinion- false published statement Malice usually required- made w/ malice to injure another’s business, property, or title to property Special damages required- limited to proven economic $ loss, excluding per se damages & emotional distress ▯ B. Interference w/ Contract- as suit based on state law will lie when a contract of fixed duration exists, but is breached by 1 rd the contracting parties, & the breach was caused by the actions of an interfering 3 party who had no legal right Fixed- term contacts- employer negotiated a deal with an ee At- will contracts + tort- no right exists to sue for interference w/ at- will contract unless accompanied by an Int. Tort o At-will ee- can be fired anytime or change jobs anytime b/c there are no contracts ▯ C. Interference w/ Prospective Contract Unfair Competition: Lanham Act Section 43a- federal statute that authorizes suits for all trademark violations including o Palming/ Passing off as your own- ex: making your packaging looking like someone else’s o Trademark Infringement- using words/ symbols of others o Plaintiffs are competitors o Appropriation/ publicity- misappropriation of name or likeliness o False advertising Recovery available ▯ ▯ 1. Negligence ▯ A. Definition- conduct which falls below the standard established by law for the protection of others against unreasonable risk ▯ B. History- level of care is always improving & changing for public health & safety ▯ C. Types of Cases- Property Injury, Personal Injury D. Elements Duty of reasonable care- could defendant foresee harm on the plaintiff? o Reasonable person- objective standard- what you say/ decide is careful “what would you have done” o Circumstances- will very per case o Role of judge- instruct the jury on what to do o Role of jury- to see if the plaintiff is guilty they have to consider (consciously or not): Probability of Harm Seriousness of Conduct Utility of Conduct Creating Harm Cost of Reducing Risk o Any duty owed? Need plaintiff’s status to determine Ex: Duty to rescue- don’t have duty to rescue anyone but immediate family; law doesn’t impose Ex: Inkeeper- duty to keep jailmates safe Ex: Restaurant Owner- duty to cut people off from alcohol & keep patrons inside safe o Different levels of duty you owe to be careful Common carriers- includes operations of airplanes, busses, trains or anything you have to buy a ticket for Professionals- only held to the level of care/ standard of all the other professionals in same field Children, disabled- older children are tried more as an adult/ generally disabled kids are tried as normal kids are/ **disabled kids have an obligation to tell others of disability & precautions needed & take medications Premises Rules/ Liability- on the premises/ own the premises Trespasser- on property w/ out permission/ owner has no duty to protect them & obligation to not intentionally hurt trespasser Licensee- social guest- invited over/ guest entitled to be protected/ It is owners obligation to warn guest about hazard or make it safe for them- unless they can see it Invitee- places where guests are invited so establishment can make $ must warn, make safe, & anticipate problems people won’t know about Breach of Duty- conduct falls below/ failure to use standard of reasonable care/**easily determined o Premises cases o Instruct/ Entrustment/ Warn o Hiring/ Retention has to be done carefully/ Hirers have obligation to check references & tell truth/ possible ee’s have obligation to give correct references o Negligence per se- violating a safety rule/ duty is defined by a statute- usually stated Examples: Safety code violations- all traffic violations (which are created for the sake of public safety) Cause in Fact- negligence does in fact cause, contribute to, or led to the harm of the accident or event **don’t know who committed the crime= there’s no cause in fact** o But for test- but for his negligence, the event wouldn’t have happened **multiple cause test o Substantial factor test- if you’re a factor, you’re liable o Thin skull plaintiff- someone is hurt, but it wasn’t necessarily a foreseeable event o Subsequent malpractice rule- must have a relationship b/w misconduct & a subsequent injury o Danger invites rescue- If you caused accident & an innocent rescuer was hit? You are liable o Res ipsa loquitur- assumption that the occurrence of an accident implies negligence Ex: Medical malpractice- did everything they could? Not liable Ex: Products liability- Proximate Cause- event related to a legally recognizable injury to be held to be the cause of the injury ** No Prox. Cause= law hasn’t yet imposed a duty to discover potential cause** **Even one who has behaved negligently, shouldn’t automatically be liable for all consequences of his act if harm wasn’t brought by a unforeseeable sequence of events** o Foreseeable- was the harm to the plaintiff a foreseeable consequence of the negligence? Did the defendant know or should have known the consequences o Intervening Forces o Super Intervening forces Ex: Criminal acts & assaults Damages- economic recovery for negligence requires proof of personal injury or property damages o Compensatory- $ award/ Consequential/ Punitive- to punish o Prove to reasonable certainty o Emotional distress- mental suffering/ have specific damage proof problems to control fraudulent claims (Intentional- physical& mental abuse) (Negligent- mental& no physical abuse) ▯ E. Defenses to Negligence Contributory Negligence- all or nothing/ total defense/ If you’re P & guilty of negligence you recover nothing o Only 4 states o Effect Comparative Negligence- partial defense/ Has P proven elements? If D>P’s negligence- P is allowed to recover at reduced level as long as P is less than 100% negligent o Pure or mixed o Effect Assumption of Risk- risk must be voluntary & must be known (know what you’re doing- did it anyway) o Examples Other Defenses: o Statute of Limitations- begins from date occurred/ suit must be filed on time/ deadline for filing varies by type of case and its statutory/ sometimes statute will be suspended or tolled until wrong is discovered o Sovereign Immunities- prevents cases against the gov’t o Good Samaritan Immunities- if you’re being a good Samaritan & hurt who you’re trying to save- you’re not liable **Exceptions to Immunities- are provided by tort claim acts/ that say normally you couldn’t sue but in this case- you can** ▯ F. Liability for Acts of Others: Respondrdt Superior Employer’s vicarious liability to 3 parties- If employer benefits from ee’s work then they can be liable for their negligence o True master/servant relationship present; as opposed to Independent Contractors who aren’t held liable o Servant/ ee was negligent (intentional? criminal?) o Scope of employment– Was ee on the job or not? Time- clocked in?, geo- on work- related grounds, kind of work being done, furtherance of employer’s interests? Ex: Auto accidentsEx: Workplace violence? Parent’s vicarious liability for child? Hasn’t been broadly extended to parents for their minor child’s negligence, although parents will be directly liable for negligent supervision & entrustment of their children Compare: own direct negligence- failure to supervise o Ex: employers will be liable for their own negligence to Hire, instruct, supervise, entrust, or retain properly ▯ ▯ 2. Strict Liability- Liability regardless of fault/ & regardless of wether reasonable care was used/ Not based on negligent or intentional conduct, but rather based on considerations ▯ ▯ A. Types of Cases- cases involving dangerous activities, dangerous animals, & defective products Abnormally Dangerous Activities Doctrine- Old common law establishing categories of conduct considered of such a high risk nature & uncommon to require imposition of liability, regardless of fault, such as damming water, dynamite blasting, pile driving, & keeping of “wild” animals Statutory Strict Liability- accident on job? You’re covered & will be compensated o Fund for workers- workers comp o No P/I suit Products liability- product bought somewhere hurts you/ legal liability of manufacturers, sellers, users, & bystanders for injuries & damages caused by the product o Negligence- fault based tort/*weakest o Strict liability- no fault tort/ Is it a defective condition & unreasonably dangerous/*strongest o Warranty- contract based/ built in warranty for recovery from injuries from products Product Liability Defenses Assumption of Risk- voluntary product use & risk is known Product Misuse- danger unknown, used inappropriately/ wrong way Comparative Negligence- ex: know ciggs are bad and smoke them anyway
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