BUSINESS GOVT & SOCIETY
BUSINESS GOVT & SOCIETY MGMT 209
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Date Created: 10/21/15
CHAPTER 5 TORTS o This chapter concerns the rights and duties of parties to the involuntary transactions such as accidents assaults intentional interference with business opportunities and fraud TORT de ned as a civic wrong other than a breach of contract for which the courts will provide a remedy in the form of damages to compensate the injured party 1st Section Introduction to Torts basic doctrines and purpose of Tort Law 2quot 1 Section Examines Intentional Torts in a Business Setting INTRO TO THE LAW OF TORTSquot 0 Crimes and torts are very similar Both are Wrongs o CRIME a wrong against society where as a TORT is a wrong against a private party CRIME o Punished through nes or imprisonment TORTS 0 Not to primarily punish defendants but to compensate injured Plaintiffs through an award of monetary damages BOTH o The results of criminal law and Tort law are the same They are a deterrence of activities considered to be wrong 0 Three Categories of Torts 1 Intentional Torts 2 Negligent Torts 3 Strict Liability 1 INTENTIONAL TORT o Involves a deliberate action which results in an injury Example A company knowingly makes false statements about the quality of a competitor s products 2 NEGLIGENT TORT 0 an unintentional tort that arises from the failure to use reasonable care toward one whom a duty is owed which results in injury Example SlipandFall accidents due to defectively designed products 3 STRICT LIABILITY 0 Liability without fault Example You did the acts that resulted in the harm 0 Purpose of Tort Law gt Tort law provides a set of legal rules that allows parties injured as the result of the actions of others to collect damages under certain welldefined circumstances 0 Compensation amp Appeasement gt The purpose of the law is to limit the negative impact of the in iction of injury to the event of the event of the injury itself 39239 Tort law provides a way to 39239 Right the wrong without the injured party retaliating through some destructive means 39239 Victim is appeased in two ways 1 Receipt of compensation 2 Knowledge of the fact that the transgressor is punished by being required to Pay 0 Justice gt Justice is viewed as an expression of moral principle gt One who by his fault has caused damage to another ought to make compensation as a matter of justice gt Two views in support of this view 1 Ethical Retribution emphasis on fact that the payment of compensation is haimful to the offender and that justice requires that the offender suffer the harm 2 Ethical Compensation point of view of the victim emphasizes the fact that the payment of compensation is a benefit to the victim of the wrong and declares that justice requires that the victim should receive this compensation o Deterrence gt Some view Tort law as a regime of prevention 0 Rules of tort law are designed to alter the incentives of interacting parties so as to control their future conduct in a manner that reduces losses due to accidents in the most efficient manner 0 Concentrated on developing legal rules that minimize the total costs associated with accidents gt Two Types of Costs associated w accidents 1 Costs of preventing accidents 2 Actual costs of accidental injuries Example Cost of avoiding accident lt Cost of injuries 39239 An efficient legal rule would be one that imposes liability on the party that could have avoided the accident at the lowest possible cost gt Deterrence View of ROLE of Tort Law 0 not only concentrates on altering behavior so as to avoid accidents but also generates public policy prescriptions based on efficiency 39239 The party who is the leastcost avoider of an accident should be held liable This is not always obvious o The rule is intended to alter behavior so that the likelihood of accidents is decreased 0 Bearing costs of injuries the incentive to liable parties to alter their behavior to reduce the risk of injury since the precedent set by such cases establishes liability rules for the future Example Many courts have held that grocery storeowners are liable to customers that are mugged in UNLIT parking lots Courts are saying it is cheaper to light parking lots to prevent muggings rather than for customers to hire bodyguards or provide some other form of personal security The IMPACT is to make grocery stores install lights or pay damages to someone who is mugged in the dark gt The Deterrence Perspective 0 does not answer all questions about the proper liability rule 0 Some Cases cost of preventing accident may be greater than the cost of the accident gt The liability rule WILL NOT alter the behavior of the parties because it is cheaper to pay for the cost associated with the accident rather than to try to prevent the accident 0 Social Insurance 0 CONSIDER TORT LAW AS A MEANS OF SOCIAL INSURANCE o This View gt The party who is in the best position to spread the loss ofthe injury should be held liable 39239 Manufacturer is often in the best position to cover the costs of compensation because the expected costs can be re ected in the price of the product gt All consumers bear some of the costs 0 This theory is sometimes articulated as a deeppocket theory gt The business has greater wealth than the injured consumers do so the business should pay o Damages 0 Most of damages awarded in individual tort cases are intended to make the plaintiff whole again at least financially o Compensatory Damages gt 3 Major Types of Loss 1 Past amp Future Medical Expenses 2 Past amp Future Economic Loss 3 Past amp Future Pain and Suffering 0 Amount of damages suffered are determined by a jury gt Testimony regarding damages is normally introduced only after liability of the defendant has been established gt The Plaintiff has these types of experts testify in their case Medical Experts Economists Physical Therapists and in some cases Attomey s specializing in pain and suffering awards gt The Defendant may have experts to present contradictory evidence or cast doubt in the mind of the jurors as to the expertise of the plaintiff s experts o Courts also award Punitive Damages 4 Punitive Damages awards designed to punish individual defendants gt Typical Cases Intentional torts for negligence cases where the conduct was Gross Negligence or Willful amp Wanton disregard for the plaintiff s safety gt The Supreme Court has ruled that punitive damages awarded by civil juries are not fines within the historical context of the Constitution BrowningFerrisIndustries of Vermont Inc V Kelco I Many state legislatures have imposed statutory restrictions on punitive damages 39239 Common type of tort reform is to limit the punitive damages to a multiple of the actual compensatory damages Example If a jury awards the plaintiff 1 million dollars compensatory damages and 400 million dollars punitive damages then in a state which has enacted tort reform the punitive damages would be reduced to probably three or four times the actual compensatory damages States have imposed these limits in response to an outing of injustice by the insurance companies as well as large donations made to numerous by politicians reelection campaign by the insurance companies 0 How Businesses are Involved in Tort 0 Normally becomes involved in l of 3 ways 1 Due to the actions of its employees 2 Due to its own actions against another business 3 Due to its products 0 Successful businesses are often a target for tort action 0 There are people who abuse the system and stage torts lawsuit happy gt Large jury awards have led the insurance industry to scream foul and demand tort reform gt This has led several states to enact tort reform limiting the damages in tort cases Note It must be mentioned that most large tort verdicts handed down by juries are sometimes reduced by the trial judge and almost certainly will be reduced or even thrown out by the appellate courts 0 Reasonable Person Standard 0 When a tort is allegedly committed The question IS NOT what did the victim think gt The question L9 what would a reasonable person do in a like situation under the same circumstances or how would a reasonable person react in the case of defenses 39239 The victim s state of mind is important in awarding the damages but it is not of paramount importance when trying to determine if a tort was committed INTENTIONAL TORTS IN A BUSINESS SETTINGquot o Intentional Tort based on the intentional invasion of a protected interest 0 Not Necessary that the wrongdoer intends to cause harm merely that an injury ows from the intentional act Example If you intentionally pull a chair out from under someone as a joke without meaning to physically hurt them but the person falls to the oor and breaks their hip then you are responsible for their injuries 0 The interest harmed must be a legally protected interest NOT ALL wrongs are protected legally o Classi ed as those interfering with personal rights and those interfering with property rights 1st Several Sub Sections involve interference with personal rights Remaining Sub Sections discuss interference with property rights 0 Personal Intentional Torts 0 Assault amp Battery gt Assault 39239 Assault an intentional action that places a person in fear or apprehension of immediate bodily harm or offensive contact An assault can be a threat such as pulling a gun and pointing it at someone Since the assault is the fear or apprehension that a reasonable person would have due to the intentional act if a reasonable person would be afraid there is a tort If a reasonable person would not be afraid there is no tort This is an OBJECTIVE STANDARD It doesn t matter whether the victim is easily scared or not 39239 Business can become involved in this tort if an employee threatens or places a person in fear of harm Example If a security guard working at a mall within the scope of his employment told a female shopper that he would use is gun on her if she did not agree to go to the storage shed with him and proceeded to tell her bad things he d do to her would a reasonable woman in a like situation be afraid If the threat would cause a reasonable person to be afraid it does not matter if the threat could have actually been carried out If the woman got away she could still file suit for the assault even if the gun was not loaded and yes she can sue the employer because the employer is responsible for the action of their employees while on the job or within the scope of their employment gt Battery 39239 If the security guard does any unlawful touching or physical contact with the female shopper without her consent a battery has also occurred 39239 Battegv the intentional act of physical contact or offensive touching of someone else without his or her permission I can be a battery any contact with another in any manner causing physical contact or offensive touching Can be Battery in any of the following situations a A person hits another person in an offensive manner b A person shoots another person and the bullet his the person c A person commands their dog to attack another person d You throw a rock and hit someone Note To have a battery all you have to do is unlawfully or o ensively touch someone without their permission o Defenses to Assault and Battery 0 A defense is a legal justification to commit what otherwise would be a tort o lst Defense Consent Consent can be expressed as in signed releases or waivers or implied as in most sporting events gt Tortfeasor the person committing the tort 39239 If the tortfeasor goes beyond the level of consent given the appropriate tort would still occur Another defense is that of self defense 39239 You can defend yourself You can also go the defense of others 39239 The problem the amount of force that you can use in selfdefense and whether or not you exceeded that force 39239 The victim can use reasonable amount of force to defend himself or others I Can be the use of deadly force if deadly force is first used against you amp you have no other alternative 0 In defending property you can use reasonable force but under common law you cannot use deadly force to protect your property gt Several states have statutory laws that allow one to use deadly force in certain situations to protect themselves and their property V 0 False Imprisonment 0 Defined as intentionally causing the confinement of another person without consent or legal justification gt Confinement situations involve Physically restraining an individual 2 Using threatening force against an individual or his or her family members to restrain them Using force or threat of force against an individual s property to restrain the victim 4 Refusing to release a person from confinement when there is a duty to release gt Common False Imprisonment Situation 39239 Retail merchant detaining a customer suspected of shoplifting I Merchant may assert the defense of shopkeeper s privilege V 3 VV I In most states antishoplifting statutes have been passed making the shopkeeper s privilege statutory I These laws require the merchant to show that he or she had a reasonable basis for suspecting the customer of shoplifting and that the detention was reasonable I Detaining shoplifters is a major problem for businesses involved in retail sales Example Store employee sees what he thinks is a person who is in the process of shoplifting The store employee follows the alleged shoplifter If the alleged shoplifter realizes he is being followed could he be afraid especially if the store employee is undercover and does not look like a store employee Say that the store employee waits until the alleged shoplifter leaves the store he then gives chase Now the shopper is afraid and runs from what he thinks is a crazy person This is a potential assault Then when the employee catches the shoplifter and tackles him in the parking lot there is a potential battery Then when the store employee takes the alleged shoplifter back into the store against his will there is potential false imprisonment If the store can prove that their employee s actions were reasonable under the circumstances or that they acted within the states statutes covering this area if any then the store is privileged in its actions But what if the alleged shoplifter either was not a shoplifter or the store could not prove its justification Furthermore what if the alleged shoplifter turned out to be the son of one of the most prominent businessmen or politician in town who just happens to be from the oldest and most powerful family in town Then what if the business is WalMart or McDonald s In that situation it is easy to see that a jury could have sympathy for the victim and after all the business has lots of profits so how much could it really hurt the business if the jury gave the poor accused shoplifter half a million dollars Result Therefore the result could be very bad for the business Because of the potential damages in this type of situation several businesses have a policy not to detain shoplifters Businesses need more than just the common law shopkeeper s privilege protection in this area 0 Intentional In iction of Mental Distress O OO Defined as the intentional or reckless causing of severe mental suffering in another by means of extreme conduct of language Conduct that goes beyond the bounds of decency Protects individuals from harassing tactics by businesses to collect debts The elements required for a case of action for in iction of mental distress to be successful are l Outrageous and extreme conduct by the defendant 2 Which causes severe emotional and mental distress in the plaintiff 3 Which is manifested by some form of physical injury to the plaintiff such as a heart attach mental breakdown etc Courts are not inclined to find that obscene and abusive language by itself is sufficient for a cause of action for several reasons gt Freedom of speech is a highly protected interest V Abusive and obscene language is a matter of de nition and allowing suits on such a basis could give rise to trivial lawsuits 39239 Since extreme and outrageous conduct is required for this tort such conduct does not reach the level required for intentional in iction of mental distress Courts are hesitant to act in this area because mental suffering is not only difficult to measure it also may be feigned in a fraudulent attempt to recover damages 39239 Hurt feelings are not sufficient 39239 Various courts have awarded damages for in iction of fright grief shame humiliation embarrassment anger chagrin and worry 39239 The distress must be severe enough to manifest itself in some form of physical injury However an outward injury is not generally required Tension headaches could suffice V o Invasion of Privacy 0 Person has right to live life privately without being subjected to unwarranted publicity Note unwarranted does not mean unwanted o The tort of invasion of privacy usually occurs in one of four forms 1 A person s name or likeness is used for business purposes without consent I Example is using a likeness or name for advertising purposes without consent 2 There is an unreasonable intrusion upon an individual s physical solitude I Examples include public disclosure of information obtained by illegal entry into one s home or an illegal wiretap 3 Public disclosure about a person which is offensive and objectionable I Example The publication of one s personal credit history would probably be acceptable 4 Publication of information which places an individual in a false light I Example The publication that an individual possesses certain beliefs when in fact he or she does not A necessary element for an action for the invasion of privacy is the public disclosure of a private fact All that is required is that the fact be private and that the disclosure be objectionable even though the fact is truthful 0 POINTS T O REMEMBER 1 Unwarranted does not mean unwanted 2 If something is taken from public records there is no invasion of privacy 3 Public gures give up some but not all oftheir rights ofprivacy O o Defamation O O O 0 Defined as publication of a false statement that tends to injure a person s reputation or good name causing the public to hold that person up to hatred contempt or ridicule or to cause him or her to be shunned or avoided Defamation includes libel amp slander The difference between libel amp slander has to do with the nature of the publication gt M defamation through some permanent form in print or permanent recording gt Slander defamation through some transitory means such as unrecorded speech Examples statements that an individual had committed a crime has a socially unacceptable disease or has been cheating customers Note Keep in mind that for the tort of defamation to occur the statement must be false When defamation is made about a public figure the public figure must prove that the statement made was false E that the person making the statement knew it was false or should have known it was false T he public gure has to prove the statement was made with malice gt This is a very high burden of proof and it is not easily attained 39239 Therefore scandal magazines ourish in spite of most of their stories being of a questionable nature because the stories are about public gures who either choose not to take action or who cannot meet the high burden of proof 0 Also to be defamation the victim has to suffer harm which means that someone else must hear the false statement Note Therefore the statement must 1 be false and must 2 be published or communicated to a third party for the victim to suffer a legal harm gt Truth amp privilege are two defenses to defamation 39239 If a statement is true there is no defamation 39239 The defense of privilege is based upon the idea that the ability to publish some defamatory statements furthers certain social interests Privileges may be conditional or absolute which is sometimes called constitutional Absolute privilege applies in situations where freedom of speech is required It protects statements made in a civil or criminal action so long as the statements are relevant to an issue in the proceeding Statements made by federal and state legislators and high level public officials in performing their duties are also examples of absolute privilege but these statements are sometimes referred to as constitutional privileges 4 Public policy dictates that such statements must be protected 4 However this privilege is limited Hutchinson V Proxmire 4L In Hutchinson v Proxmire the Supreme Court determined that Senator Proxmire s famous Golden Fleece Award was not protected by the absolute privilege for legislators performing their duties when published in newsletters to constituents it A conditional or quali ed privilege is available when a defamatory statement is published in good faith and with proper motives 0 To avoid liability a defendant would be required to show that the defamatory statement was published to protect some recognized interest and was published in good faith and without malice o Recognized Interests include 1 Financial interests 2 Membership in an organization 3 Credit standing 4 Employment record lt Malicious Prosecution o Malicious Prosecution the wrong use of the legal proceedings civil or criminal 0 Very difficult tort to win because you must gt First win the lawsuit or lawsuits against you i There can be no plea bargaining in a criminal case there must be either a dismissal or a finding of not guilty Likewise in a civil case you cannot settle the case The opposing side must agree to dismiss the lawsuit or the Judge or jury must enter a verdict for you after a trial gt Then in separate lawsuit you have to prove by preponderance of the evidence that the opposing party had no probable cause no valid reason for the lawsuit i You must show that the opposing party had no probable cause but then even though he knew he had no suit brought the lawsuit anyway 0 It is dif cult to prove that the opposing party acted in this type of a malicious manner and this step usually dooms malicious prosecution cases to failure Example If you are arrested but you are innocent then you would have to win the criminal case and then prove that the governmental unit that brought the case against you had no probable cause and knowing that they had no probable cause continued with the case If the state had an eyewitness who identi ed you the state has probable cause Then the only hope to win a malicious prosecution case would be to le suit against the eyewitness and if they truly thought they were correct you would have little chance of winning because they thought they were correct You would have to prove that the eyewitness lied and that they knew they were lying o Fraudulent Misrepresentation Fraud 0 Several elements to Fraudulent Misrepresentation Fraud 0 The elements are There must be misrepresentation of material facts they are false 2 The misrepresentation must be made knowing that it is false or with a reckless disregard for the truth 3 There must be intent that the innocent party rely on the misrepresentation 4 There must be justi able reliance of the misrepresentation the misrepresentation must be believable 5 The innocent party must suffer damages and 6 There must be a causal connection between the misrepresentation and the damages suffered When thinking of this tort think of the conman at work 39239 In a typical con the con man sets up the innocent party with a series of lies which the con man of course knows are untrue The innocent party then relies on the lies and is taken in by the con man that then disappears with the innocent party s money before the innocent party discovers that he has been conned Fraud is more than mere puffery which is sometimes referred to as seller s talk 39239 Puffery is usually opinion and since fraudulent misrepresentation requires that the tortfeasor know that the statement is untrue this is not fraud 39239 Salesmen know the ne line between fraud and puffery and generally stay on the puffery side gt In the case of an overzealous salesman who commits fraudulent misrepresentation he can land his employer and or himself into a fraudulent misrepresentation lawsuit Misrepresentations may occur through words actions or through concealment Example Turning back the odometer on a car would be a misrepresentation through an action that would be concealed Oral or written statements that an automobile had been trouble free for the past two years when in fact it was constantly in need of repairs would be a misrepresentation through words Sometimes the failure to speak silence amounts to fraud Some courts have found a duty to speak when one party to a transaction has knowledge of material facts of which the other does not and the person with knowledge is aware that the other s decision would be affected if those facts were known Falsity occurs when you knowingly make a false statement or when you make a statement without knowing whether it is true or false p t V O O O O O 0 Business Intentional Torts 0 Product Disparagement I Product Disparagement a similar tort to defamation I The elements required to prove a case of product disparagement include That the defendant published an untruth about the plaintiff s property or products 2 That the defendant knew the statement was untrue 3 That the statement was made with malice with the intent to injure the plaintiff 4 That plaintiff suffered special damages the loss of one customer or a general downturn in business after the statement was published V 0 False Advertising I The tort of false advertisement is similar to product disparagement but different in that false statements are being made about the defendant s own products which give a false impression that defendant s products are superior to plaintiffs 0 Section 43a of the Lanham Act established an action for damages for any false description or representation of one s goods or services which may damage a competitor 0 Only applies to misrepresentations made about the defendant s won product not the plaintiff s o Intentional Interference with Contractual Relations I A party to a contract under some circumstances can sue a third party for interfering with the performance of the contract 0 Established in an English common law case in the 1850s Lumley v Gye o Damages for intentional torts often include punitive damages 0 The tort allows for recovery from a party that may have more financial resources available to satisfy the damage award than does the contract breaching party I To establish that a tort of interference with a contract occurred a plaintiff must show that l A valid contract with another party existed 2 That the defendant knew about the contract 3 That the defendant interfered with the contract causing damage to the plaintiff Example Phyllis contracts to sell her car to Brenda for 1000 with payment and delivery of the car to take place in ten days Before the car is delivered Patsy without knowledge of the contract offers to buy the car for 1200 and Phyllis accepts Brenda does not have a cause of action against Patsy for interference with the contract her only action is against Phyllis for breach of contract 0 Interfering with Employment I An mp1 J F J quot 39 391 is a 39 one and bears special mention 0 It takes time and money to train employees properly 0 If an employee is induced to quit and go to work for a competitor the competitor gains a substantial advantage I An employment contract is a valuable property right that will be protected from thirdparty interference o QUESTION Under what circumstances will a competitor be liable in tort for interference with an employment contract I A necessary condition is that there must be a contract for a specified period I If a business entices employees from a competitor in order to injure the former employer then an action in tort is possible even if the employment contracts were terminable at will o The Ten Billion Dollar Jury Award I The largest award for damages ever granted by a jury was in an intentional interference with a contract case I Getty Oil Company agreed to a merger with Pennzoil o The deal was made at a meeting of Getty s board of directors at the conclusion of which parties from both sides shook hands the classic signi cation of agreement However the paperwork was not complete yet Getty Oil announced the next morning that it had an agreement in principle to merge with Pennzoil and that the details of the merger would be worked out in a formal written agreement No nal writing of the terms of the agreement was ever executed but remember a contract does not need to be in writing to be enforceable o Texaco requested Getty to stall with Pennzoil and merge with them I As part of the agreement Texaco agreed to indemnify Getty for any damages that Pennzoil might win in subsequent litigation 0 During the trial Texaco did not present any evidence on the issue of damages Once the jury determined there was a contract they only had evidence of damages that had been presented by Pennzoil I Punitive damages were awarded because this was a tort not a contract action The jury awarded the full 753 billion in actual damages that Pennzoil had claimed with an additional 3 billion in punitive damages for an award in excess of 10 billion all because of oral interference with a contract No error was found and Texaco led for bankruptcy protection and the case was eventually settled for 3 billion Texaco Inc v Pennzoil o Interference with Prospective Economic Advantage 39 Some courts have expanded the tort of intentional interference with contracts to include interference with prospective economic advantages 0 This is broader because an agreement in the form of a contract is not required 0 This action could arise if a third party steals a competitor s customers during negotiations but before a contract is made 0 However the tortfeasor must intentionally interfere with someone else s business in an unreasonable and improper manner 0 This can include predatory behavior of unreasonably stealing a competitor s business 39 It is not predatory behavior if a large chain store comes into a town and just because it charges lower prices drives the competition out of business However if a large chain store then raised its prices it would have some explaining to do 0 Interference with Property Rights 39 Private property is a fundamental attribute of the free market economy 0 Realize that tort law protects many private property rights 0 Tort law provides a set of liability rules intended to deter infringement upon private property rights by making the infringer pay 0 Property law provides a set of property rules involving an outright prohibition against interference with property rights 39 Basic Property Law 0 Real Property land or anything permanently attached to the land 0 Personal Property anything else clothes vehicle money etc 0 Personal Property can include 0 Tangible Property property that you can touch 0 Intangible Property property that you cannot touch stocks 0 Trespass to Land O Trespass to Land any unauthorized physical intrusion or entry upon land where someone else has a superior right to the property 0 Any unauthorized entry below on across or above the land even in the absence of actual physical damage or physical contact is an actionable trespass to land 39 An exception to this rule is that the ight of aircraft above the land is permissible so long as it is at a reasonable altitude and does not interfere with the proper use of the land 0 If someone trespasses onto your property you have a right to use reasonable force to remove the trespasser 39 If you know a trespasser is on your property and you do nothing this may be inferred by the trespasser and ultimately by the courts as implied permission In general you do not have any responsibility to a trespasser for damages the trespasser incurs while he is injured on your property 0 In some states they have determined that you owe the trespasser the duty of reasonable care It is almost a universal rule that if you have something on your property that you know attracts trespassers then you must take whatever reasonable steps are necessary to protect the trespasser This is called the attractive nnisance doctrine and applies to things like swimming pools o Trespass to Personal Property 0 Trespass to Personal Property a wrongful invasion of ownership rights in property other than land 0 Element of this tort 39 Interference by an individual or business with the property owner s right to exclusive use and possession ofpersonal property 0 In general liability for damages on the theory of trespass to personal property is imposed in situations where the trespasser takes the property of another damages the property or somehow deprives the owner of the use of the property Example When a car is vandalized When the damage is intentional the remedy is money damages to cover the actual damages and may also include punitive damages In contrast to trespass to land good faith is a defense to trespass to personal property 0 Conversion 0 The tort of conversion is similar to trespass to personal property However conversion occurs when personal property is taken by the wrongdoer and kept from its true owner or prior possessor 39 Conversion differs from trespass to personal property in that conversion represents the permanent disenfranchising of the owner from his or her personal property Conversion is the civil side of crimes related to stealing O Example Taking a new car for a test ride and never returning it to the automobile dealer s showroom The civil remedy is to force payment for the car but that my be difficult to enforce if the wrongdoer is in jail 0 Mistake does not constitute a defense to conversion Example The innocent buyer of stolen goods is liable for damages for converting them 0 Trespass to Personal Property or Conversion 0 Somewhere along the line trespass to personal property becomes conversion 0 To differentiate between trespass to personal property and conversion consider these questions 1 What was the extent of dominion or control over the property 2 How long did the interference with the property last 3 What was the damage to the property 4 What was the inconvenience or expense to the owner of the property m The greater your answer to these questions is the more likely you are dealing with conversion 0 Nuisance 0 Individuals and businesses often engage in activities that affect either positively or negatively other individuals and businesses 39 Such thirdparty effects are referred to as externalities O Tort law sometimes regulates extemalities O In general the law is not concerned with extemalities that have a positive impact on thirdparties 39 Negative externalities such as excessive noise late at night pollution or emissions of noxious odors are the subject of the common law tort of nuisance 0 Any conduct which unreasonably and noncontractually interferes with the enjoyment or use of land is called a nuisance 39 The common law of torts recognizes two kinds of nuisance 0 Private amp Public 0 Private Nuisance a nuisance that affects only one or a few people 0 Public Nuisance a nuisance that affects the community or the public at large 39 In the courts attempt to determine an externality as a private nuisance the courts attempt to determine whether the interference with others is sufficiently great to be condemned as unreasonable 0 Many private nuisance con icts can be resolved through contractual negotiation between the parties 0 Infringement of Intellectual Property 0 Intellectual Property property created from the ideas or thought process of the creator 0 Infringement when someone other than the owner uses those ideas without the owner s permission 39 There are several types of intellectual property including copyrights patens trademarks and service marks trade names and trade secrets 0 Intellectual Property is one of the most active areas of current law 39 Protection of intellectual property is a Constitutional right because it is recognized in Article 1 Section 8 of the US Constitution where the US Congress is given the responsibility To promote the Progress of Science and useful Arts by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries 0 Copyright 0 Congress started copyright protection with the Copyright Act of 1790 0 Copyright law is exclusively national or federal law 0 A copyright gives the owner the exclusive right to reproduce the copyrighted work create derivative works based on it to distribute copies to perform the work or to display it in public 39 Any violation gives the owner a claim of copyright infringement Copyright law covers creative works including 39 Literary works musical works amp lyrics dramatic works choreographic works photographs paintings sculpture computer software maps architectural designs recordings motion pictures and radio or television 0
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