Law 322 Exam 2 Study Guide
Law 322 Exam 2 Study Guide LAW 3220
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This 8 page Study Guide was uploaded by Stephanie Notetaker on Wednesday March 2, 2016. The Study Guide belongs to LAW 3220 at Clemson University taught by Edward R. Claggett in Fall 2015. Since its upload, it has received 100 views. For similar materials see Legal Environment of Business in Law and Legal Studies at Clemson University.
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Date Created: 03/02/16
Law 322 Exam 2 Study Guide Chapter 6 • If there is a superseding cause then it cuts off your liability • Definition of tort o Breach or duty of care that causes harm to another person • Two types of torts o Negligence and intentional • Tort law is intended to put the injured party back into the same economic position as they were had the tort not been committed • Tort law is private law, you can sue • Definition of negligence o You didn’t exercise reasonable care, there is a way reasonable people act • Definition of criminal negligence o Culpable disregard of the rights and safety of others • Causation-‐Two types, actual and proximate • Cause is important because if your negligence causes harm to someone else than that means you are reliable for their injuries • Cause and fact-‐direct action, direct result • Proximate-‐ chain of events have to be foreseeable, not the direct cause, leaving an open trench open at night and someone comes along and falls into it, you didn’t directly hurt them but the negligent act is the cause of their injury so they are reasonable for the injuries • Intervening conduct and superseding cause-‐if there is an intervening conduct that they might relieve you from liability, if two people come along and pushes the second into the trench • Defenses to negligence torts o Assumption of risk o Comparative negligence o Liability waver § They are only effective against negligence based torts if they are in writing and the waver is clear and the person signs it • Major categories of torts o Assault § Action or words that put someone in fear of bodily harm § Not actual touching or contact o Battery § Unlawful touching of your person o Defenses: § Consent • Want to box, play football, you can’t sue them for battery, you have consented to it § Privilege • Emergency situations • If someone needs CPR you can touch them, it won’t be considered battery § Self-‐defense • If someone starts punching you can fight back o False imprisonment § If someone restrains you without your consent § Happens a lot with shoplifters • If it turns out you didn’t shoplift, you can sue but you have to look at the state laws o Infliction of emotional distress § Has to be severe or outrageous conduct that would create severe mental or emotional stress • Bill collector hounding you 24/7, you can sue for damages o Invasion of privacy § We all have expectations that our private life will stay private, if someone tries to change that and make your private life public, you can sue for damages § If someone makes something public that is already on the public record that doesn’t pass § Hard to prove for movie stars and famous people o Defamation § Knowingly communicating false information to a 3 party that injures somebody’s reputation or goodwill • Types: o Slander-‐verbal defamation, telling a lie o Liable-‐written defamation o Defamation Per Se-‐if you said someone was a child molester and it is clearly not true, the court will just say lets just move on and talk about damages § Defenses against defamation: • Truth-‐absolute defense • Privilege-‐ in certain circumstances if politicians are in session doing their job, they can say whatever they want Chapter 7 • 3 different business torts o Fraud § Lying about someone to someone else to try and hurt their business § Sienter-‐knowledge, one of the elements required • You knew the information you were communicating was false o Interference with contractual relations § Anytime a business has a contract in place, whether it is verbal or written, if a third party comes along and tries to interfere with that contract § A and B can sue the 3 party for trying to interfere with that contract o Interference with prospective advantage § Any business arrangement that has not been reduced to a contract but gives you an edge with competitors • Customer list, trained workforce, if anybody tries to steal those from you, you can sue for interference with prospective advantage • Product Liability o Consumer products generally carry strict liability with them o Started with the food industry, started out as a contract based cause of action o Looking for the existence of a warranty § Warranty-‐a statement about a manufacturer as to the performance and quality of the product • Express-‐ arises because of statements made by the manufacturer or marketing literature about their product, they have said that this product has an • Implied-‐ one that the court creates, started in the food industry, if you go to the restaurant and get sick, you can sue for breach of implied warranty • A warranty is a contract o Tort cause of action § Design your product as safely as you can within economic reason o There is a strict liability, unless there is a defense § Product Misuse-‐misusing the product, there is only strict liability if you are using the product for its intended use § Comparative Negligence § Assumption of risk • If the manufacturer warns of possible side effects, and you still choose to use the product then you have given up your rights to sue for damages § Bulk Supplier Doctrine • As long as you told them how to use your input, you aren’t liable • If you supply raw material to a manufacturer, you aren’t liable for injuries because all you were was a bulk supplier § Professional user • If you are in the trade of business where you use this type of product all the time, you know the risks before you are using them, like construction workers using a drill • 3 statutory limits-‐to try to limit amount of damages § Workers compensation • Employee injured at work from a negligence based tort, workers compensation says you cannot sue in a tort cause of action, you can’t get to a jury • Is considered a potential limit on tort liability § State laws-‐States have put caps on damages you can get • The jury might only be able to award a certain amount of damages based on state laws § If you manufacture your product to government regulations/standards, you have no liability if someone gets hurt by it (defense or cap of liability) cap is 0 • Alter Hazardous Activity § Dynamiting § If you are engaged in this, there is strict liability and absolute liability, no defenses are available to you § You are liable, no defenses Chapter 8 • Real vs. personal property o Real-‐anything growing on land o Personal-‐pick it up and move it • Deeds o Recorded with county recorded, tells you who the owner is o 3 types: § Most risky to least risky • Quick claim o Seller tells you now own whatever I own • Special warranty o Seller warrants to you that during the period of time that they own the property, no leans or encumbrances were put on the property • Warranty o Easiest to take o I warrant that I own good and free title, there are no leans or encumbrances o If the warranty is NOT true, you can sue for breach of contract • Title o Legal concept, if you are the owner you have the right to use and enjoy your property o You own 3 rights, to the land, the mineral rights and the air rights § Separable § You can sell them separately • 3 Ways to own property jointly-‐2 or more owners o Rights of survivorship o Tenets in common § No right of survivorship o Joint tenants § Right of survivorship o Tenants by the entirety § Right of survivorship § Only if you are married, otherwise it’s just like joint tenants • Trust o Separates the legal ownership from the beneficiary ownership • Servitude o Limitations or restrictions on the use of your property even though you own it § Easements • Gives someone the legal right to be on your property for a specific use • To put in telephone lines, sewers, etc. • They are not trespassing on your property § Covenants • More of a limitation about what can be on your property • “No building higher than 2 stories can be built on this property” • “A certain portion of this property has to consist of a park” § Look at the deed to tell if any of these are listed • Adverse possession o State laws o If someone uses a part of your property open and notoriously under a certain amount of years, they become the new owners of that property • Landlords and Tenants o Basic rights and duties of each o Tenants § Right of possession to the property and to use it § If you lease a property, there is an implied warranty that it is suitable for your business § If it is not habitable to live in, landlords must change it or they can become constructively evicted § Constructively evicted-‐ you do not have to make any more rental payments • Eminent Doman o Can take private property for public use but must pay reasonable amount o If they change the environmental laws and the value of your property drops a little bit, they are not suitable for compensation unless it drives your property value to 0 • Torts against real property o Trespassing and nuisance o Someone is on your property without your permission o You can sue if they cause damages o Or sue for injunction to make it so they can’t come back o If you have an attractive nuisance like a pool and children come by • Private Nuisance o Between your neighbor and yourself • Public Nuisance o Interference with the public to use and enjoy property o Can sue for damages and/or injunction • Torts against personal property o Trespass § When someone deprives you the use of your property for a short period of time o Conversion § Longer period of time, and sometimes when you get it back it has been damaged o Misappropriation § If someone uses your intangible, intellectual property without your permission like your trademark § You can sue for damages and injunction to stop using it • Premise Liability o If you own a business, you have the duty to make it safe for customers o Security, lighting o No duty to protect trespassers • Intellectual Property o Trade name-‐name of company, protected under common law, first person to use it has protection o Trade mark-‐ logo, symbol that you associate to the company, can register under federal act, protection good for 10 years, renewal not guaranteed § Examples of suggestive trademarks and generic trademarks o Trade dress-‐look, feel, packaging of product § You can register trade dress under Lanham Act and get same 10 year protection o Good will-‐ ongoing, profitable business o Certification mark-‐certifies as to the geographic area that the product was made o Copyrights-‐artists or authors, if you create an original work of art like a book or song, you can file for copyright protection under the Federal Copyright Law, the protection period is the life of the artist plus 70 years o Does not give you any domain rights, not for the internet • Patents-‐inventions o New manufacturing process o Good for 20 years and that’s it, you can’t renew it o Public filing • Trade secrets o Anything that gives your business an advantage over your competitors o Like the formula for Coke, or Chikfila o You don’t register under any act o Protection is unlimited, forever Contracts • Definition of a contract-‐rights and obligations of the parties • Must be a binding promise to be enforceable • Nonbinding is not enforceable • The 5 elements of a contract, all 5 must be there in writing or verbal or it is not enforceable o Agreement-‐consists of an offer and acceptance § Can withdraw an offer before it is accepted § Counter offer terminates original offer o Consideration-‐something of value bargained for § Both parties have something of value o Legal capacity of contract § Law says that minors under 18 and people intoxicated § Voidable contracts-‐it is enforceable, but the minors or intoxicated can cancel the contract and void it or choose to go ahead with it o Subject matter must be legal § If its illegal, then it is a void contract o Genuine Consent § Both parties understood the material terms that they were agreeing to § Know all the material facts o Statute of Frauds § Must be in writing to be enforceable § There are certain contracts that must be writing to be enforceable • Parole of evidence rule o If there is a written contract, you cannot introduce oral evidence or testimony if it contradicts the written words, it must be put in writing o If the contract is vague or ambiguous, or you are trying to say they committed fraud, they will listen to you • Home Solicitation statues o State laws that say if you buy something from a door to door sales person you have 3 days to void that • If both parties say they are going to do what they are going to do, the contract can be discharged • Material breach-‐not substantial performance o Non breaching party may be entitled to sue for damages • Damages o Monetary damages § Compensatory damages-‐meant to compensate for any actual loses or costs you incurred due to the breach § Expectancy damages-‐equal your expected profits had the contract been fulfilled § Liquidated damages-‐specified in the contract, both parties put it in there, courts will generally enforce that unless it is grossly excessive • Contract law is designed to put the non breaching party back in the same economic position had the action not been performed • Will not get specific performance if the subject matter is service • There are certain contracts that have all 5 elements are legal but there are 3 types they will look at if they are in accordance to public policy, if they are then they won’t enforce them o Exculpatory contract § One party tries to release themselves from liability § Arise in employment situation o Contracts in restrain of trade § Non compete agreements • Reasonable if its for a year or less in the geographic area o Unconscionable contract § So grossly unfair to an innocent party § So one-‐sided § Ask the court to rule it unfair
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