BLAW 3310 Test 2 Study Guide
BLAW 3310 Test 2 Study Guide BLAW 3310 - 001
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This 15 page Study Guide was uploaded by Josh Radcliff on Tuesday October 13, 2015. The Study Guide belongs to BLAW 3310 - 001 at University of Texas at Arlington taught by Charles Miller in Summer 2015. Since its upload, it has received 914 views. For similar materials see Legal Ethical Business Environment in Business at University of Texas at Arlington.
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Date Created: 10/13/15
Josh Radcliff BLAW 3310001 Test 2 Study Guide September 21 2015 Chapter 6 Neolioence Accidental Thinos Pg 141 Another word for quotwrongquot A civil wrong where you deserve a remedy money if you are the one who was wronged 0 Most often in civil cases very rarely in a criminal case Pg 142 0 Each person owes a when they cause someone else harm otherwise it is negligence 0 People have a responsibility to act reasonably so we do not create an unreasonable risk of harm nancially or physically o Any time a person does not exercise due care or duty of care a person ignores their duty of care and refuses to pay someone else for the harm they incurred When a person is injured due to another person39s negligent conduct Pg 143 The responsibility and actions a reasonable person would do in a given situation it39s a broad term you can39t quite de ne but you know what it is o Ex A girl signs up for Matchcom She goes on a couple dates with a guy then is stabbed 22 times by him but survives Because she knows he has no money she decides to sue Matchcom for failure to provide duty of care by doing a background check BUT Matchcom had itself protected when the girl signed the agreement at the beginning when she signed up for the website The judge dismissed the case Main point of story People can call others out for negligence in all sorts of situations Pg 144 Cause in fact quotBut forquot rule Latin translation quotsine qua nonquot rule o Is the injury of a person caused by another person o If you39re liable for someone else39s injury that is causation in fact Used the example of punching the guy in the rst row in the face and causing someone in the third row to break their nose Who caused it The guy who threw the punch o determines where the line should be drawn for who is liable Pg 145 amp 146 Palsgraph v Long Island Railroad Company o Led to the rule A person can39t be blamed for causation when the action of that person could not be reasonably foreseeable o A man runs to get on the train which is just leaving the station The conductor pulls the man aboard but the man drops his brief case which had reworks in it The reworks went off and inured a woman in the train car behind She tries suing the train company because they have the most money But the actions of the conductor could not reasonably foresee the man having reworks in his brief case that would be dropped and explode thus hurting the other woman Side Note A corporation is responsible for the negligence committed by its employees This is why the lady on the train was able to sue the train company and didn39t have to sue solely the conductor Pg 148ish Defenses to Negligence 0 Ex Texas Rangers ball game Dad is hit in the head by a y ball Can he sue the Rangers for his injury No because that is understood as risk he assumed aka when he entered the ball park for the game 0 However Texas Rangers ball game Man falls over the railings because the railings gave way and he fell and injured himself Can he sue Absolutely That is not a risk that should be assumed by a person when going into a ball park o Similar to assumption of risk in that when you enter a place such as a ball park you are consenting to any risks to yourself that are a result of the game being played you are consenting that quotsuch and suchquot could happen to you while you are at the game and you are okay with that and decide to go anyway Pg 149 This subject is complicated o When two or more people are at fault judges need to decide how much blame to put on each person 0 Example two cars are in a car wreck and they both try blaming each other The total cost of damages was 100000 The jury decides that 30000 was caused by the plaintiff and 70000 was caused by the defendant Therefore the defendant is found guilty and has to pay the plaintiff the 70000 worth of damage he caused o BUT say the plaintiff were 51 responsible the defendant wins the case and the plaintiff does not receive any money from the defendant 0 You only receive money if the other person is the one who the jury decides is responsible for over 50 of the negligence September 23 2015 o Signing something so the company can39t be sued for most harms caused When you intentionally commit a tortDUH types of intentional torts below 0 Someone who fears immediate bodily harm ex the motion of punching someone The actual physical contact that causes bodily harm Actually getting hit by that punch Usualy battery and assault go together Southwest Airline employee nishes her probation and to celebrate her O employees have her arrested as a joke She started crying and was physically handcuffed She sued for battery and assault Court sided with Southwest at rst but after appealing the appellate court agreed with the plaintiff Defenses to Assault and Battery When you consent to the potential harm that could be caused to you Ex when you step into a boxing ring you are consenting that you may get punched so you cannot sue for that o You have a right to defend yourself or others around you if you are physically being threatened 0 Pg 155 Holding someone against their will A person buys groceries and when he gets to his car he realizes he bought the wrong medicine So he brings one medicine back and leaves it with the cashier up front grabs the new medicine and walks directly out because the two medicines had the same price The manager saw and thought he was stealing so he brought him back in had security hold him in a room against his will until the real police showed up Buccioni then sued for false imprisonment and won 100000 Now there is a law in TX and other states that allows stores and whatnot to hold people if there is certainty in a crime and they can only be held for a fair amount of time o Pg 156 When somebody performs some sort of extreme conduct with an intent to distress another person The manager of a store develops a medical condition that keeps her from being able to work 40hrs a week The owner comes in and res her with severance pay but she thought it was unfair to re her for her disability She sues for emotional distress and loses The ring wasn t intentional to cause her distress It was a reasonable business decision 0 Pg 157 Just what it sounds like Pretending to be someone else getting physically too close to someone etc What about using someone39s identity in a book That39s not invasion of privacy It must be de nitive Check Blackboard for a posting about this 0 Pg 159 Intentional false communication that hurts someone39s reputation either written or oral basically humiliating and making fun of someone bullying them It must be made known in public the act can39t happen in private You have to prove the damages you suffered to win the case Ex gossiping at work if someone is looking to hire a person and they ask another coworker about them and that coworker says things that causes the potential employee to not get the job that could be defamation September 25 2015 ABSENT NO NOTES AVAILABLE September 28 2015 0 Chapter 7 o When you knowingly are trying to deceive other people and give false information 0 0 Example Bokes Case A woman wanted to start dancing and taking dancing lessons The dance studio sells her a package of dance hours with instruction The studio tells her that if she keeps buying dance lessons she will keep getting really good and she will keep getting to dance with the attractive younger tter male dance instructor They made her feel really good about herself so she would keep buying dance packages So she paid for tons of these in advance Her family realizes how much she is spending and decides to sue the Arthur Murry dance studio for intentional fraud The trial court says the people at the dance studio were just giving the woman their opinion so they were not found guilty But her family appealed and the appellate court reversed the call They said the opinion of the dance studio was only a scheme to get her to buy more lessons ergo they committed intentional fraud 0 Pg 174 quotlet the buyer bewarequot 0 The buyer has a right to know the assumed risks that come from buying a product or service 0 Pg 177 The law creates a warranty so when you buy an item it has automatic warranty on it Food is a good example 0 The uniform commercial code means that restaurants have to serve their food up to a certain standard Like it39s not acceptable to serve moldy food That39s implied In order to be able to sell your goods and services they must be good enough to meet regular expectations Example lfl buy skis I assume that the product is made to do what I want to do with it which is ski McDonald39s Case on Blackboard O O 79 year old woman gets a cup of coffee at a McDonald39s drive thru She places the coffee in her lap in a stopped car to pour cream and sugar in the coffee She is wearing sweat pants and she spills the coffee and receives third degree burns She sues McDonald39s for negligence strict liability for inadequate warnings defective product for bad design and merchant ability Information shows that 700 other people have led complaints to McDonald39s about their coffee being too hot Jury decides she should get 200000 minus 20 because she was found to have caused 20 of the damage by spilling the coffee herself and wearing sweat pants which soaked in the liquid and kept it touching her legs longer Also decided she should receive 27 million in punitive damages but the judge reduced that to 640000 0 Question to consider Do people view cases differently when the defendant has lots of money 0 Pg The product was defective which resulted in an unreasonably dangerous product and someone was injured because of it o The company who made the product is responsible for the performance of the product regardless of whether or not the company was negngnt Pg 182 Examples of Liability 0 A Pennsylvania court found a gun manufacturer that failed to warn users of damage to hearing from longterm exposure to gun re was liable for injuries 0 The Supreme Court of Alaska upheld a verdict against a diet food producer that failed to provide adequate warnings about using the adult diet food as baby food Although the food was safe for dieting adults it was not for infants because of the lowcalorie level and the company should have stated so on its product 0 New York s highest court held the producer of a commercial pizza dough roller machine liable for injuries suffered by a worker who stuck his hands in the machine when he tried to clean it Although the machine had a safety switch to be used when cleaning the machine the worker had turned off the switch so he could stick his hands in the machine The manufacturer failed to warn by not clearly explaining the dangers of turning off the switch 0 Ajury in a federal court ordered johnson and johnson to pay 885 million to a man who had to have a liver transplant because years of drinking alcohol and taking Tylenol had destroyed his liver johnson and johnson had not warned Tylenol users that liver damagers could occur in heavy drinkers who used Tylenol often 0 Pg 183 Design Defects Examples 0 Only one he mentioned in class was the escalator issue A child pushed the emergency stop button on an escalator causing a person to fall and be injured The Seventh Circuit Court of Appeals ruled that it was a design defect both to make the button red because that color is attractive to children and to place the button so that it was accessible to children Defenses in Product Liability Cases A producer is protected from liability lawsuits if the consumer was using the product not in its intended way For example a company is not liable for my injury if I stuck my nger between the moving blades of its electric hedge trimmer When there is stated risk for using a product yet you continue to use the product and suffer an injury For example if a car company puts a recall on a car and you continue to drive the car anyway you are assuming the risk if you get hurt and the car company is not liable Page 187 More liability cases to look over Page 188 0 An activity that necessarily involves a risk of serious harm to the person land or chattels of another which cannot be eliminated by the exercise of the utmost care and is not a matter of common usage Example is transporting chemicals in a city The party in charge of such acts is generally responsible for whatever happens that is logically related September 30 2015 0 Chapter 8 0 Pg 194 Deeds o A guarantee of acquiring property that has no other claims on the land by anyone else It39s the best kind of deed you can get because it assures you and you alone own the entirety of the property This is what the seller purchases if the buyer asks them to do so If the seller gets title insurance and gives it to the buyer along with the warranty deed it legally binds the seller to keep their word So if the seller didn39t really own the land but took the buyer39s money the buyer could turn in the title insurance claim and receive their money back To make the deed of cial the buyer must send the deed to a records of ce That ensures there is of cial documentation of ownership Not as protective as a warranty deed The seller guarantees that the seller is receiving the title of the land and that the property was not harmed during the time the seller owned the land but it does not guarantee any action or inaction that occurred before the seller owned that land lt passes along from seller to buyer the interests the seller had in the property but it does not assure a good title to the property Pg 195 o If you have fee simple absolute on a piece of land that means you have the right to do anything you want with it You could build a house you could destroy it you could pass it down to your grandkids after you die All sorts of stuff It also includes owning the mineral rights undertheland Pg 196 You can own land via 0 You are sharing the land with someone else So for example we each one 05acre of a 1 acre piece of land that we bought together If I die I can give my 05acre to my kids and I don39t have to give it to the person who bought the other half of the land with me 0 Another example would be if grandma dies she can distribute her land to her three kids so each kid would have 13 of the land The fair distribution of this land is called an undivided interest That is tenancy in common Dif culties with tenancy in common What if the kids can39t agree on what to do with the land How is the land divided up between the three kids They can go to court and have the court divide the land If people can39t decide what to do with it the government can issue a forced sale on the property so it almost always bene ts you to avoid taking the case to court o If the land has different things on different locations of the land how do people decide who gets each part of the land 0 He posed a lot of these dif cult questions but never gave a concrete answer This is probably because there is no one answer to these situations They should be solved and determined case by case are included when dividing up the land through undivided interest 0 Companies will pay you for your mineral rights and if they strike oil you could get royalties off of the oil around 20 c He has given a bunch of complicated situations of how the land is divided and he hasn39t given any answers how to solve it October 2 2015 0 Chapter 8 o When a person dies and gives their land to multiple people and those people can39t agree on how to best divide the land or how to use the land then they will le a partition lawsuit o If government can39t divide the land in an agreeable way they will force the sale of the property 0 When you pass down land to someone for life so he has a claim to live there but can39t sell it then when he dies it is given to someone else 0 with Rite of Survivorship JTROS When a couple buys a house together and the husband dies the wife gets the right to the property because she is the survivor of the people who were together when they bought the house 0 Rite to easement means people have access to your property to cross it to get somewhere else the rite to go on someone else39s property 0 The rite to allow or deny people to come onto your land to conduct business such as cut down timber buy wheat etc o If you have stuff you should keep track of it and not just leave it laying around or vacant Example you can take adverse possession of someone ese39s house if they are never there and you move in and live there for ten years without them telling you to move out 0 Ex If my neighbor builds a fence line 20feet into my property and I don39t even know that the extra 20ft is actually my property he has taken the land via adverse possession since the fence line usually dictates property lines but not so in this case Overall rules people must follow if they buy a piece of land owned by a developer 0 Intended to maximize the attractiveness of an area 0 Example developer has an image that the area will only have residential houses people who buy part of the land to build cannot build a warehouse o Homeowner39s Association usually is put in charge of regulating this 0 Tenants can lawfully occupy a landlord39s property if they have a lease the landlord can set the rules for how this tenant can live Common issue for students leaving school before the end of the lease Typically do a walk around before you move in so when you leave you won t be charged for damage already done to the property before you moved in What happens if a boygirl move in together and split rent but they breakup and the girlfriend leaves Depending on the lease the boy may be required to start paying the other half of the lease as well CASE Woman complains to a landlord that the window latch is broken The landlord does nothing A person then breaks into the house and rapes the woman She sues him for negligence and wnns Landlords may have certain extension clauses in the lease so if you don39t say anything to the landlord when your lease term ends you are assuming that you take up a new lease Landlord may write this as he pleases pg 204 Warehouses offices etc Often times security deposits are put on the lease Some may have the right to sublease If you sign a lease for 10 years but want to move out after 5 you could nd someone else to pay you to occupy it for the last 5 years and you just pay the landlord When stores at the mall all utilize the same AC security janitorial service etc how do they decide how much each store owes Typically a square footage thing 0 October 5 2015 0 Pg 205amp206 The state can take your land to use it for public services as long as you are compensated for it 0 Pg 207 Government has a vision of what it should look like so it must be developed that way Ex An industrial or residential area The government can dictate it 0 Pg 210 Nuisance People can39t own their land in a way that interferes with others such as bad smells loud noises or abnormal activities 0 Pg 213 Lots of example cases 0 Pg 214 An indoor soccer player hurts herself when her foot gets stuck on the turf So she sues for her injuries The owner gets out of the suit because no one else had been hurt or had complained in the past so he had no knowledge that there was an issue to the turf To all others it was ne He could not be found guilty for negligence in this case Chapter 9 o Intangible property such as the rights to something 0 Types of Intellectual Property 0 Pg 221 A log that represents a product such as the McDonald39s golden arches The Ralph Lauren polo player The CocaCola cursive lettering How do you get a trademark You create the symbol rst then you register is with the US Patent and Trademark Of ce USPTO in DC Why register is You can claim it as yours you have the right to that logo for ten years then you le an af davit for renewal after that o It gives you protection and the right to sue those who use your mark without permission under the What if you use the mark internationally since the trademark is only good in America 0 Lots of countries signed the Madrid treaty which means that any trademarks in any of the countries involved in the Madrid treaty are protected in all of the other countries as well Classi cation of Trademarks Could be words over time that end up taking the meaning for the name of the product itself 0 Ex People say Kleenex instead of tissue other ex Polaroid Trampoline and thermos Using someone else39s trademark name logo etc o Not using the exact mark but using something super close to it 0 Ex Calling your coffee shop Sambucks instead of Starbucks Cyber Squad O 0 Making a fake product and marketing it like the real product Steaking a mark and putting it on a cheap piece of crap 0 Often women accessories and clothing 0 Can sue people for selling and making counterfeit stuff 0 When you have all stores everywhere have the exact same design such as a Whataburger or Chipotle 0 Same design same experience 0 You can39t register something like this but it is still important Much like a trademark in that it39s a name or phrase that distinguishes the company quotHome of the Whopperquot would be a service mark of Burger King Trademarks go to hard goods while service marks go to services associated with those goods The of cial name of the company TX law says that the name of the building must be named after the last name of the owner You go get a DBA to have the name certi ed it39s not necessarily the name that the place goes by to the public Fruits of the mindideas Novels plays songs etc You want to register copyrights so people don39t steal your ideas Copyrights are good for life plus 70 years after that it shoes ownership Can sue for infringement for a violation of a copyright Pg 231amp232 Ex a bookstore who buys a book from an author then resells it to the public is not violating the author s copyright because copyrights are no longer valid after the FIRST sale A government authority or license conferring a right or title for a set period especially the sole right to exclude others from making using or selling an invention If a company wants to use a product or idea that has a patent on it they will have to pay the owners of the patent a set fee plus a percentage of each sale of the product going forward called royalties Just as before a violation of the patent can be sued for violating the Lanham Act for infringement Trade Secrets a secret formula or ingredient or something of that nature something owned by a company that adds value to that company Ex Krabby Patty secret formula Cannot get a patent or trademark on a trade secret Pg 237 Economic Espionage hiring someone to try and steal another company s trade secrets Chapter 10 Contracts 0 Contract An agreement between parties who both have an obligation to the other 0 EX simply buying something from the store employment contracts etc 0 Do contracts have to be in writing Often not 0 Why don39t you need contracts for everything Because it often just works as a trust system If you break the trust you are usually shunned and not allowed to participate anyway 0 Pg 244 Elements of a Contract 0 an offer to reach an agreement The offer must have clear intent and the terms must be de nite You must communicate your acceptance of the offer and it must be unconditional meaning you accept all parts of the contract Silence does not count as acceptance Can you terminate the offer and take it off the table 0 Sure Called revocation if you take away the offer before the other person agrees Illegality can terminate contract if it turns out to be illegal Can terminate the original offer by declining and making a counteroffer o Both parties must get something favorable out of the deal Both people have to have the mental capacity as well as legal capacity to sign and ful ll the contract It must be a legal act in the contract L You can39t be forced to agree it must be mutual Lots of people try to say after the fact that consent wasn t genuine October 9 2015 Continued from October 7 o Owing some set amount but agreeing with the other person to pay for a lesser value instead therefore voiding the initial agreement People who made the deal initially are usually okay with this if they need to get some of the money right then and cannot wait until the future when the borrower will nally have the money to pay me back 0 Capacity to consent contractual capacity Ex A parent signs a contract for a minor because they are a legal guardian thus they have the capacity to give consent on behalf of the minor 0 Legality of a contract The subject matter of the contract must be legal Gambling contracts illegal Being charged more than the maximum amount on interest 0 Ex limit is 18 in Texas so people can39t charge more interest than that OO o Loophole credit card companies whose headquarters aren39t in Texas can charge higher interest rates than 18 0 Pg 256 Contracts that can39t be enforced Taking blame from someone else 0 When you sign something that says you can39t blame the company if you get hurt at work that is an exculpatory agreement but that can39t be enforced because it really is dependent on the situation to determine if you can sue or not Big complicated word for a contract that is not agreed upon genuinely Ex case A welfare recipient couple gets an offer from a salesman at their house to buy a freezer they sign a contract and buy it but the contract has tons of clauses in it saying the salesman can charge ridiculous late fees if they don39t make their payments on time o This contract was deemed to be unconscionable in court because the situation selling to a welfare couple is unfair Also the amount for late fees is not fair Lastly the sale occurred at the home which means people could use overbearing sales tactics to make people buy the Home Solicitation Sales Act prevents this from happening in TX 0 Even though the salesperson argued that the quotbuyer bewarequot or quotbuy at your own riskquot should apply but he didn39t win the case Pg 257 When an owner sells a building to someone this covenant prevents the old owner from going across the street and opening up the same store as the new owner just to compete against them 0 The government doesn39t like this covenant because it wants to have business compete against each other 0 Therefore the restraints that come with this covenant must be reasonable compete You can restrict the old owner from competing only for a certain amount of time about 2yrs or so You can restrict the old owner from competing within a certain geographical area about ten miles or the citycounty You can AKA they can open up something new next door but cannot sell things that would compete against the newcomer another form of covenant not to c When you leave one company you can39t go to another company who is a direct competitor The government doesn39t like this either because if people are specialized in a certain skill not being able to go work for a competing company takes away potential job opportunities that t the person39s skillset It takes away good work experience on a resume 0 Pg 259 Genuine ConsentOOPS You have nally taken the contract but after some time you want out of the contractOOPS You can get out of a contract through genuine consent if something in the contract was falsi ed AKA fraud was committed If you were under duress AKA forced to via gun point or something like that you can get out of the contract October 12 2015 o Pushing someone up against a deadline to create stress to cause someone to sign a contract under stress 0 Anna Nicole Smith is a stripper who marries an 80 year old man in a wheel chair The man gives most of his estate to her when he died and his sons were pissed Sons took it to the Supreme Court ghting unduein uence 0 Case Dr Miller worked next door neighbor is very nice to grandma who eventually puts him in her will instead of the grandkids This was undue in uence by taking advantage of her age 0 If I want sell a chair for 300 but later nd out that it is a super famous chair that is worth way way more money Pricing it at 300 was a mistake of value so the sale doesn39t count 0 If I want to buy a piece of land zoned for commercial buildings only to build an of ce but I nd out afterwards that it s zoned for residential buildings only and I can39t build my of ce building I can void the sale because of mistake of Law 0 Both people made a mistake in thinking something is very valuable but both come to nd out it isn39t worth anything at all 0 Famous case European man agrees to buy a bunch of cotton from a certain shipment coming into London from India Problem was there were two ships with the exact same name and load coming into the port a couple weeks apart and the European thought he agreed to buy one shipment while the seller thought he agreed to buy the other shipment This was a mutual mistake so it could be voided Rule contracts can be oral or in writing 0 Exception some contracts have to be in writing to be enforceable 0 Pg 259 History of this exception being made In European law if you wanted to argue a case from breach of contract you were allowed to pay people to testify on your behalf This caused people with more money to always win and just wasn39t fair Called to make people put contracts in writing in certain cases 0 Contracts for the sale of land must be in writing 0 It39s hard to describe land and value it so it39s easiest to put in writing 0 Contracts that can39t be performed within one year must be in writing Promises to pay for the debt of another must be in writing 0 A consignee is someone who agree to pay for something on your behalf 0 A promise made in consideration of marriage must be in writing 0 Prenuptial agreements increase the chances of a divorce because you have undermined your commitment of being married so the courts used to not allow it or enforce it But at least now they will enforce it if it is in writing 0 Marriage is about love divorce is about money 0 Pg 260 Related Parol Evidence Rule Lawyerspeak for quotspoken testimony at trialquot Relates to types of evidence people may give in trial when they are witnesses If you sign a contract then testify an agreement that doesn39t go with the contract If you testify that you were not in mental capacity when you signed the lease ex drunk 0 Pg 263 If you sign a contract to pay 50 before and 50 after one person may say it39s done and request the other 50 when the payer does not think it39s done and doesn39t want to pay OR If you agree to pay by a certain date but you pay late does that excuse to seller from shipping the goods if he hasn39t shipped them already When does the breach of contract become material enough to where the contract is voided and the person does not have to ship the goods 0 When the person doesn39t pay at all 0 Pg 264 explained above Pg A and B are in privity of contract They have a direct contractual relationship If A owes B B owes C money so B lets A pay C C is the assignee who receives the money MILLER SAYS THIS IS ONE OF THE MOST IMPORTANT THINGS IN THE TEXTBOOK o If A doesn39t pay C has the right to sue A even though A39s debt was to B 0 Why is this so important in the textbook This is how the world works This is how credit cards work The bank will pay your tab at a restaurant for you so your debt to the restaurant is paid but you still have to pay your credit card company back that amount at some point in time The credit card company will agree to pay the restaurant a couple doars less than the actual tab because when you pay back the credit card company they make a couple doars pro t because you are paying them the entire tab
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