Reading Notes Chapters 6-8
Reading Notes Chapters 6-8 ACCY 3601
Popular in Business Law: Contracts, Torts, and Property
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This 9 page Study Guide was uploaded by Christina Lee on Wednesday October 28, 2015. The Study Guide belongs to ACCY 3601 at a university taught by L Moersen in Fall 2015. Since its upload, it has received 84 views.
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Date Created: 10/28/15
CHAPTER 6 INTENTIONAL TORTS AND PRIVACY Section 1 The Basis of Tort Law Torts wrongs and compensations Compensate those who have suffered a lost or injury due to another person s wrongful act 3 The Purpose of Tort Law gt Provides remedies for the invasion of various protected interests Personal physical safety Protecting property I Intangible assets personal privacy family relations reputation and dignity 0 Damages Available in Tort Actions gt Compensatory damages intended to compensate or reimburse a plaintiff for actual losses to make the plaintiff whole and put himher in the same position that heshe would have been in had the tort not occurred Special damages compensate for quanti able monetary losses 0 Medical expenses Lost wages and bene ts now and in the future Extra costs The loss of irreplaceable items Cost of repairingreplacing damaged property General damages compensate for the nonmonetary aspects of the harm suffered only individuals not companies gt Punitive damages intended to punish the wrongdoer and deter others from similar wrongdoing mainly in intentional torts I Gross negligence an intentional failure to perform a manifest duty in reckless disregard of the consequences 0 such a failure for the life or property of another Punitive damages are subject to the limitations imposed by the due process clause of the Constitution 0 Tort Reform gt Federal Level Class Action Fairness Act CAFA of 2005 shifted jurisdiction over large interstate tort and product liability classaction lawsuits from the state courts to the federal courts Section 2 Intentional Torts Against Persons Intentional tort requires intent Tortfeasor one committing the tort O 90 0 Must intend to commit an act the consequences of which interfere with the personal or business interests of another in a way not permitted by law Assault and Battery gt Assault any intentional and unexcused threat of immediate harmful or offensive contact including words or acts that create in another person a reasonable apprehension of harmful contact gt Battery an unexcused and harmful or offensive physical contact intentionally performed False Imprisonment gt Intentional con nement or restraint of another person s activities without justi cation Moral pressure does not constitute false imprisonment Businesspersons under quotprivilege to detainquot can use reasonable force towards detainingdelaying the suspect Most states require that any detention be conducted in a 1 Reasonable manner and 2 For only a reasonable length of time Intentional ln iction of Emotional Distress gt An intentional act that amounts to extreme and outrageous conduct resulting in severe emotional distress to another Actionable extreme and outrageous to the point that it exceeds the bounds of decency accepted by society Defamation gt Defamation Involves wrongfully hurting a person s good reputation Refrains people from making false defamatory statements of fact about others gt Libel done in writing or other permanent form gt Slander done orally gt Statements of truth v Statements of Opinion The Publication Requirement defamatory statements communicated intentionally or accidentally to persons other than the defamed party Damages for Libel compensate for nonspeci c harms such as disgracedishonor in the eyes of the community humiliation injured reputation and emotional distress Damages for Slander plaintiff must prove that the slanderous statement caused her or him to suffer actua economic or monetary losses gt Proof is required in slander cases because oral statements have a temporary quality gt Slander quotper sequot a A statement that another has a particular type of disease or mental illness b A statement that another has committed improprieties while engaging in a profession or trade c A statement that another has committed or has been imprisoned for a serious crime d A statement that a usually only an unmarried person and sometimes only a woman is unchaste or has engaged in serious sexual misconduct 0 Defense for Defamation gt Privileged Speech Absolute 0 Allowed in judicial proceedings and certain government proceedings 9 Parties should be able to speak freely without restrictions I Quali ed Conditional 0 Made in good faith and the publication is limited to those who have a legitimate interest in communication gt Public Figures Considered quotfair gamequot unless statements are made with quotactual malicequot Actual malice 0 Know that the statement is false 0 Reckless disregard for the truth 00 Invasion of Privacy 1 Appropriation of identity using a person s name picture or another likeness for commercial purposes without permission 2 Intrusion into an individual39s affairs or seclusion invading someone s home or searching someone s personal computer 3 False light publication of information that places a person in a false light in another category of invasion of privacy 4 Public disclosure of facts when a person publicly discloses private facts about an individual that an ordinary person would nd objectionable or embarrassing 0 Appropriation gt Use of another person s name likeness or other identifying characteristic without permission and for the bene t of the user Degree of likeness Right of publicity as a property right 0 Fraudulent Misrepresentation gt Intentional deceit for personal gain for personal gain 1 A misrepresentation of material facts or conditions with knowledge that they are false or with reckless disregard for the truth 2 An intent to induce another party to rely on the misrepresentation 3 A justi able reliance on the misrepresentation by the deceived pa y 4 Damages suffered as a result of that reliance 5 A casual connection between the misrepresentation and injury suffered gt Fraud exists only when a person represents as a fact something he or she knows is untrue 0 Abusive or Frivolous gt The filing of a lawsuit without legitimate grounds and with malice Alternatively the use of a legal process in an improper manner Section 3 Business Torts Business Torts apply only to wrongful interferences with the business rights of others 393 Wrongful Interference with a Contractual Relationship gt Three elements are necessary for wrongful interference with contractual relationship to occur 1 A valid enforceable contract must exist between two parties 2 A third party must know that this contract exists 3 This third party must intentionally induce a party to the contract to breach the contract 393 Wrongful Interference with a Business Relationship gt Competitive practices v predatory behavior actions undertaken with the intention of unlawfully driving competitors completely out of the market gt Interference with a prospective economic advantage Plaintiff must prove that the defendant used predatory methods to intentionally harm an established business relationship or prospective economic advantage The plaintiff bust also prove that the defendant s interference cause the plaintiff to suffer economic harm o3 Defenses to Wrongful Interference O 09 O O 90 90 gt A person will not be liable for the tort of wrongful interference with a contractual or business relationship if it can be shown that the interference was justi ed or permissible Section 4 Intentional Torts Against Property Trespass to Land gt gt gt Occurs at any time a person without permission enters onto above or below the surface of land that is owned by another causes anything to enter onto the land or remains on the land or permits anything to remain on it Trespass Criteria Rights and Duties Defenses Against Trespass to Land Trespass to Personal Property Conversion gt gt Whenever a person wrongfully possess or uses the personal property of another without permission Any act that deprives an owner of personal property or of the use of that property without the owner s permission and without just cause Can occur even when a person mistakenly believed that she or he was entitled to the goods Good intentions are not a defense against conversion Often when conversion occurs because the original taking of the personal property from the owner was a trespass and wrongfully retaining it is conversion Disparagement of Property gt Occurs when economically injurious falsehoods are made about another s product or property rather than about another s reputation quotSlander of qualityquot or quotSlander of titlequot Slander of Quality The publication of false information about another s product alleging that it is not what the seller claims it to be 0 Plaintiff must prove that the improper publication caused a third person to refrain from dealing with the plaintiff and that the plaintiff sustained economic damages Slander of Title When a publication falsely denies or casts doubt on another s legal ownership of property resulting in nancial loss to the property s owner Section 5 Cyber Torts 0 Identifying the Author of Online Defamation 0 Liability of Internet Service Providers 393 The Spread of Spam gt State Regulation of Spam gt The Federal CanSpam Act gt The US Safe Web Act CHAPTER 7 NEGLIGENCE AND STRICT LIABILITY Section 1 Negligence Negligence when someone suffers injury because of another s failure to live up to a required duty ofcare The actor s conduct merely creates a risk of such consequences o If no risk is created there is no negligence The risk must be foreseeable that is it must be such that a reasonable person engaging in the same activity would anticipate the risk and guard against it To succeed in a negligence action the plaintiff must prove each of the following 1 Duty that the defendant owed a duty of care to the plaintiff 2 Breach that the defendant breached that duty 3 Causation that the defendant s breach caused the plaintiff s injury 4 Damages that the plaintiff suffered a legally recognizable injury 0 The Duty of Care and Its Breach Duty of care The basic principle underlying the duty of care is that people are free to act as they please so long as their actions do not infringe on the interests of others gt The Reasonable Person Standard how a reasonable person would have acted in the same circumstances Not necessarily how a particular person would act but how society states that a person should act gt The Duty of Landowners Exercise reasonable care to protect individuals coming onto their property from harm Those who rentlease are expected to 0 Exercise reasonable care to ensure that the tenants and their guests are not harmed in common areas such as stairways entryways and laundry rooms 0 Duty to supply correct information to tenants The Duty to Warn Business lnvitees of Risks I Obvious Risks Provide an Exception gt The Duty of Professionals gt No Duty to Rescue 00 Causation 1 Is there causation in fact Did the injury occur because of the defendant s act or would it have occurred anyway a Causation in fact usually can be determined by use of the but fortest quotbut forquot the wrongful act the injury would not have occurred 2 Was the act the proximate or legal cause of the injury a Proximate cause exists when the connection between an act and an injury is strong enough to justify imposing liability i Were the injuries sustained foreseeable or were they too remotely connected to the incident to trigger liability 3 The Injury Requirement and Damages gt Plaintiff must have suffered a legally recognizable injury gt Must have suffered some loss harm wrong or invasion of a protected interest gt Compensatory damages norm in negligence cases gt Punitive damages awarded if the defendant s conduct was grossy negligent meaning that the defendant intentionally failed O 09 O 09 O O O O 90 09 90 09 to perform a duty with reckless disregard for the consequences to others Section 2 Defenses to Negligence Assumption of Risk gt Assumption of Risk Can Be Expressed or Implied gt When Courts Do Not Apply Assumption of Risk Superseding Cause Contributory and Comparative Negligence gt quotPurequot Comparative Negligence States gt Modi ed Comparative Fault States Section 3 Special Negligence Doctrines and Statutes Res Ispa Loquitur Negligence Per Se quotDanger Invites Rescuequot Doctrine Special Negligence Statutes Section 4 Strict Liability Development of Strict Liability Abnormally Dangerous Activities Other Applications of Strict Liability CHAPTER 8 INTELLECTUAL PROPERTY AND INTERNET LAW Section 1 Trademarks and Related Property Statutory Protection of Trademarks gt Trademark Dilution gt Similar Marks May Constitute Trademark Dilution Trademark Registration O 09 O 09 o 9 O 09 O O 06 90 O O 09 O 69 o 9 o 9 O 09 O 00 Trademark Infringement Distinctiveness of Mark gt Strong Marks Fanciful and Arbitrary Trademarks Suggestive Trademarks gt Secondary Meaning gt Generic Terms Service Certi cation and Collective Marks Trade Dress Counterfeit Goods gt The Stop Counterfeiting in Manufactured Goods Act gt Counterfeiting Penalties Trade Names Section 2 Cyber Marks Section 3 Patents Searchable Patent Databases What is Patentable gt Patents for Business Process Patent Infringement Remedies for Patent Infringement Section 4 Copyrights What is Protected Expression gt Section 102 Exclusions gt Compilations of Facts Copyright Infringement gt Remedies for Copyright Infringement gt The quotFair Usequot Exception gt What is Fair Use Copyright Protection for Software Section 5 Copyrights in Digital Information Section 6 Trade Secrets State and Federal Law on Trade Secrets Trade Secrets in Cyberspace Section 7 International Protection for Intellectual Property
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