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SDSU / Engineering / FIN 240 / What is an example of a defense of negligence?

What is an example of a defense of negligence?

What is an example of a defense of negligence?


School: San Diego State University
Department: Engineering
Course: Legal Environment of Business
Professor: Seth kaplowitz
Term: Fall 2018
Tags: Law
Cost: 50
Name: FIN 240 Exam 2 Study Guide
Description: tort law, strict liability & product liability, intellectual property rights, internet law, social media, & privacy, criminal law & cyber crime
Uploaded: 10/01/2018
9 Pages 45 Views 9 Unlocks

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fin 240

What is an example of a defense of negligence?

studyguide exam 2

instructor: sethkaplowitz


chapter 6

the basis of tort law

● tort law: designed to compensate someone who has suffered a loss or injury due to someone else's wrongful act

● 2 broad classifications of torts:

○ intentional torts: intentional violation of someone or something ○ unintentional torts: results from breach of duty, done without mal intent

What are the torts against property?

international tort against persons

● assault: a threat (words or acts) of imminent harm or offensive contact ● battery: a physical offensive act performed intentionally 

● defamation: ruining someone's reputation from GOOD - > BAD

● in order to establish defamation, the following elements must be proved: 1. the defendant made a false statement of fact

2. the defendant's statement was intended to harm the plaintiff's reputation 3. the statement was published to someone else other than the plaintiff 4. the plaintiff must prove that there was ACTUAL MALICE from the defendant

● in order to establish fraud (intentional deceit), several elements must be present: 1. knowledge of falsity

What are the four basic objectives of tort law?

Don't forget about the age old question of What is elizabeth cady stanton best known for?

2. intent to deceive or induce another party

3. reliance on the misrepresentation by the fooled party

4. suffered damages as a result of the reliance

5. causal connection between the misrepresentation & injury


international torts against property We also discuss several other topics like Where does the krebs cycle occur?

● international torts against property include:

○ trespass to personal property: anything that diminishes the value, condition, or quality of a possession

○ conversion: any act that takes away the ownership of someone else's personal property

○ disparagement of property: slander that destroys the quality or title of another person's product or property

● trespass to land occurs when an unpermitted person does any of the following: 1. enters above or below the surface of the land

2. causes anything else to enter

3. remains or allows anything else to remain on the land

unintentional torts — negligence

● negligence: occurs when someone suffers injury because of failure to uphold duty of care 

● in order to establish negligence, the plaintiff must prove each of the following: 1. duty: the defendant OWED a duty of care to the plaintiff

2. breach: the defendant DID NOT follow that duty

3. causation: a causal CONNECTION between the breach of duty & the injury 4. damages: the plaintiff suffered a LEGALLY RECOGNIZABLE injury If you want to learn more check out What is a utilitarian appeal?

defenses to negligence

● defenses a defendant can use to avoid liability:

○ assumption of risk requires:

1. knowledge of the risk

2. voluntary assumption of the risk Don't forget about the age old question of What do you mean by senatorial courtesy?

○ superseding cause: intervening event that BREAKS the causal connection ○ contributory negligence: ONLY the defendant's negligence is computed ○ comparative negligence: BOTH the defendant & the plaintiff's negligence is computed


chapter 7

strict liability

● strict liability: liability WITHOUT fault

● a social policy based on 2 factors:

1. the manufacturer is able to bear the cost of injury because they can just increase the prices of their goods If you want to learn more check out How the alleles and traits interact?

2. the manufacturer is making a profit, so the cost of injury should be considered as an operating expensive

product liability

● product liability: when a product defect causes injury

● manufacturers are required to use duty of care in all of the following areas: 1. product design

2. material selection

3. appropriate production process

4. product assembling & testing

5. adequate warnings for dangers not commonly known to an ordinary person 6. component (material used in the product) inspecting & testing

strict product liability

● under strict liability, people may be liable for their actions REGARDLESS of their intentions or exercise of reasonable care If you want to learn more check out What is the study of welfare economics?

● based on 3 assumptions:

1. consumers should be protected against UNSAFE products

2. absence of privity of contract between a manufacturer or distributor & user DOES NOT exclude manufacturers or distributors from being liable for faulty products

3. the manufacturer is able to bear the cost of injury because they can just increase the prices of their goods


defenses to product liability

● assumption of risk: assuming the risks or dangers associated with a particular product or activity

● product misuse: occurs when a product is used for something other than what it was intended for

● comparative negligence: fault

● commonly known dangers: no need to place adequate warnings because the dangers associated with that particular product are already so commonly known by a majority of people

chapter 8

trademarks & related property

● trademark: a mark, motto, device, or implement that identifies a product ● a person an register for protection under the federal trademark law with the u.s. patent & trademark office in washington d.c.

● trade dress: the overall image or appearance (layout & style) of a product ● trade name: directed related to a BUSINESS rather than a product


● patent: a grant that gives an owner the EXCLUSIVE right to make, use, or sell their invention for a period of 20 years


● copyright: the EXCLUSIVE right of authors to publish, print, or sell their intellectual property for a period of time

● generally, copyright owners are protected against:

○ reproduction of the work

○ development of derivative works

○ distribution of the work

○ public display of the work


trade secrets

● trade secret: information of commercial value (i.e. customer lists, plants, research, development, pricing information, marketing methods, production techniques, etc.)

international protection for intellectual property

● under the berne convention, if someone puts out their body of work, every country who signed the convention must RECOGNIZE the author's copyright to that work

● TRIPS agreement: established international protection of intellectual property rights

● madrid protocol: simplified & reduced the costs of international trademark protection

● anti-counterfeiting trade agreement: provided a legal framework to combat global counterfeiting & privacy

chapter 9

internet law

● spam: unsolicited "junk e-mail" (advertisements, solicitations, etc.) ● controlling the assault of non-solicited pornography & marketing (CAN-SPAM) act: permits the sending of unsolicited e-mail BUT prohibits the use of a false return address or misleading or deceptive information when sending an e-mail ● cybersquatting: occurs when someone uses a domain name that is confusingly similar to another (may use a small typo or slight change from the original name or source)

● trademark dilution: occurs when a trademark is used (without permission) in a way that diminishes or lowers its quality

● licensing: permitting another party to use a trademark or other intellectual property under a license


copyrights in digital information

● digital millennium copyright act (dmca): prohibits the manufacture, import, sale, or distribution of devices or services for circumvention; also establishes civil & criminal penalties for anyone who bypasses encryption software or anti-piracy protection

social media

● social media posts can now be included in DISCOVERY in LITIGATION to provide damaging information to showcase a person's intent or what they knew at that particular period of time

● electronic communications privacy act (ecpa): prohibits the intervention of any wire, oral, or electronic communication as well as the disclosure of the information gained from the interception

online defamation

● cyber torts: torts committed online

● defamation: ruining someone else's reputation by making false statements about that person to other people

● communications decency act (cda): if you're publishing something in PRINT, you will get treated DIFFERENTLY than if you're publishing something on the INTERNET

other actions involving online posts

● cyberstalking: repeated use of electronic communications to harass someone (threatening e-mail, etc.)


● reasonable expectation of privacy: determines which places & which activities a person has a legal right to privacy

○ it is PROBABLY NOT reasonable to expect privacy when you post on twitter, flickr, instagram, etc.


chapter 10

civil law & criminal law

● civil law: related to duties that exists between PERSONS or between PERSONS & their GOVERNMENT, key differences include: 

○ a WRONGFUL ACT causes HARM to someone or something

○ the injured person sues

○ burden of proof — preponderance of the evidence

○ typically requires 3/4THS MAJORITY of jury for a verdict


● criminal law: a wrong against society (punishable by a fine &/or imprisonment), key differences include: 

○ a person VIOLATES a statute

○ the government files a complaint

○ burden of proof — beyond a reasonable doubt

○ typically requires UNANIMOUS jury for a verdict

○ remedy = IMPRISONMENT, FINE, or even DEATH

criminal liability

● in order to establish a crime, the following elements must exist SIMULTANEOUSLY: 1. actus reus: performance of a prohibited act

2. mens rea: a specific state of mind or intent on the actor

types of crimes

● criminal acts fall into 5 broad categories:

1. violent crime (crimes against persons)

2. property crime

3. public order crime

4. white-collar crime

5. organized crime


defenses to criminal liability

● self-defense: the legally recognized right to protect yourself or property against another

● necessity: performing a criminal act in order to PREVENT an even greater harm ● insanity: a person who suffers from a mental illness is incapable of the correct state of mind required to commit a crime, this DOES NOT exclude someone from avoiding IMPRISONMENT

● mistake of fact: valid if it NEGATES the mental state required to commit a crime ● duress: occurs when pressure or a threat induces someone to commit a wrongful act that he or she would not normally do

● entrapment: induced by a public official (an undercover agent or police officer) to commit a wrongful act that he or she would not normally do

● statute of limitations: a criminal action CANNOT be brought up AFTER the expiry of the statutory time period

● immunity: a defendant can be convicted of a lesser offense in exchange for a testimony

criminal procedures

● the u.s. constitution provides specific PROTECTIONS for those accused of crimes: ○ the 4th amendment

■ protection from unreasonable searches

■ states that warranties can only be issued if there is PROBABLE CAUSE ○ the 5th amendment

■ states that NO ONE can be deprived of "life, liberty, or property

without due process of law"

■ prohibits against double jeopardy: trying someone TWICE for the SAME criminal offense

■ protects against self-incrimination

○ the 6th amendment

■ guarantees a speedy trial

○ the 8th amendment


■ prohibits against excessive bail & fines &/or cruel & unusual


● exclusionary rule: any evidence obtained that violates any of the constitutional rights spelled out in the 4th, 5th, or 6th amendments will not be admissible at trial ● miranda rule: suspects MUST be informed of their 5th amendment (the right to remain silent) & their 6th amendment (the right to counsel) by arresting officers

cyber crime

● cyber crime: ANY criminal activity occurring via a computer or the internet ● cyber fraud: fraud committed via the internet (theft of credit-card information, banking details, etc.)

● identity theft: stealing another person's identifying information (name, date of birth, social security number, etc.) & using it to access their financial resources ● computer fraud & abuse act (cfaa): prosecutes anyone who accesses or attempts to access a computer online without authorization to obtain classified, restricted, or protected information


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