Law 322 Chapters 6 and 7 Notes
Law 322 Chapters 6 and 7 Notes LAW 3220
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This 9 page Class Notes was uploaded by Stephanie Notetaker on Tuesday February 9, 2016. The Class Notes belongs to LAW 3220 at Clemson University taught by Edward R. Claggett in Fall 2015. Since its upload, it has received 37 views. For similar materials see Legal Environment of Business in Law and Legal Studies at Clemson University.
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Date Created: 02/09/16
Law 322 Chapter 6 & 7 Chapter 6 I. Definition of Tort a. A breach of duty of care to harm someone b. Not acting as a reasonable person would c. Tort law is considered civil law or private law not criminal law d. You can bring the lawsuit against the other person e. Designed to put the injured party back into the same economic position as you were in before the tort happened i. Some injuries result in psychological damage, so physically you might not be able to, but economically you can get them fully compensated f. Businesses can be involved in torts i. A person can be harmed by the business or by one of its employees ii. If a person is hurt by a business product, or a service rendered iii. If one business harms another business II. Types of Torts a. Negligence i. You have to show 4 things: 1. The person who committed it had to show a duty of care a. You look at the tort law 2. The person breached that duty of care 3. There is a causal connection from that negligent action and the injured party 4. The injured party suffered harm or damage that is recognized as actionable by the law a. The law says you can sue me for damages ii. Your conduct was not that of a reasonable person b. Res Ipsa Loquitur 1. The facts speak for themselves 2. There are certain fact patterns that demonstrate somebody’s conduct was negligent, lets just talk about damages 3. Someone gets stabbed in the operating room, doesn’t matter who pays what, they just have to figure out the damages 4. The facts clearly show someone was negligent c. Danger Invites Rescue Doctrine i. If your negligence puts someone in danger and a 3 party comes to assist them and gets injured, you are liable for both parties injuries ii. The law wants someone to come in and rescue d. Intentional 1. If the person knew the consequences of their actions but they did it anyway and someone gets hurt 2. Motive is not important 3. Example: Firing a shotgun into a crowd of people 4. Greater degree of care and liability e. Strict Liability f. Specific to Property III. Definition of Negligence-‐refer to above IV. Causation-‐Actual and Proximate 1. Two types a. Actual-‐cause and fact i. If someone hits you in the face and knocks your teeth out b. Proximate cause i. If there is a chain of events that happens and someone gets injured the outcome has to be reasonable foreseeable 1. Dig a trench and don’t put lights around it and someone falls into it and breaks their leg, the law says that their negligent act is the proximate cause and this create liability V. Superseding Cause/Intervening Conduct a. If there is intervening conduct b. Someone pushes someone into the trench and they break their leg VI. Defenses a. Assumption of risk i. If you go to a sporting event, the law says its reasonable that a ball or puck could hit someone in the stands 1. You can’t sue the player or the team b. Comparative Negligence c. Liability waver i. To be effective under law, has to be in writing, the language has to be clear, and the person you are trying to force the waver against has to have signed it ii. Only against negligence torts 1. If you go paint balling, sign a waiver to be reliable for whatever happens to you, and during it she got her eye shot out, she tried to sue the company, it didn’t work d. If you are verbally told that they are not responsible for something, if a waiver has not been signed then it is not effective VII. Major Categories of Torts a. Assault i. Somebody’s words or actions that put you in fear of immediate bodily harm, the words or a threat ii. Reasonable fear of bodily harm (not from an old person) 1. Walking across campus and a football player says they are going to knock you out b. Battery i. Any unauthorized physical contact with that person 1. If the football player does hit you upside the head c. Assault and Battery i. If someone threats you and has physical contact ii. Defenses: 1. Consent a. If someone tackles you in football you can’t sue them because you have consented to that type of contact b. If you’re boxing and someone bites your ear off, you can sue because that is not normal 2. Privilege a. Relates to emergency situations b. If you go behind someone and do the Heimlich to stop them from choking, they can’t sue you for battery because you are helping someone 3. Self-‐defense a. You can punch back if someone is punching you b. You can use reasonable force to protect yourself d. False Imprisonment/False arrest i. Intentionally detaining someone without their consent ii. Restricting their freedom of movement iii. Usually suspected shoplifters iv. States have done these two things to protect merchants: 1. Passed laws for a merchant to detain a suspected shoplifter for a reasonable matter within a reasonable period of time 2. Passed a law that says if the merchants actions are fairly reasonable they are going to put a cap on the damages you can get v. False arrest-‐ if the police are involved e. Infliction of Emotional Distress i. High burden of proof ii. Requires that you show outrageous conduct that’s creating severe emotional distress iii. If you are in a store shopping and you present your card and it gets rejected and he announces it to the store (not emotional distress) iv. Cases usually deal with bill collectors, they hound you and show up at your work v. Not an easy tort to prove f. Invasion of Privacy i. If anyone publishes private information about you without your consent ii. Not invasion of privacy 1. If someone makes information about you public that is already out there somewhere like being convicted of a crime, that is already out there in the public 2. If you are a public figure like a movie star, or a well known politician, the law says it is much harder to bring a lawsuit for this because their life is public g. Defamation-‐Slander, Libel, Defamation Per Se i. Intentionally communicating false information about a person to a 3 party that injures that persons reputation or goodwill 1. Slander a. Verbal defamation i. Tell someone you are a child molester and you’re not 2. Libel a. Written defamation 3. Defamation Per Se a. Court concept that says certain statements about another person are false so lets just move on and deal with damages i. Those statements are so negative and so designed to hurt their goodwill 4. Work Place defamation a. An employer against an employee or vice versa b. In the work place environment ii. 3 elements to convict someone of defamation: rd 1. You have to make a false statement to a 3 person 2. Causes harm to someone else iii. Defenses: 1. Truth a. If what you said about the other person is true and can prove it 2. Privilege a. Absolute Privilege i. Politicians ii. We want politicians in session to openly and freely discuss anything, they can call each other anything they want 1. Not to the public b. Constitutional Privilege i. Relates to the press ii. The press can say or print anything it wants and not be guilty 1. Except: the press is not allowed to publish false information maliciously (doing it on purpose) 2. Very hard to sue the press in the United States, not so hard outside the U.S (not a constitutional protection outside) c. Conditional Privilege i. Rare to see ii. If the false statement was published in good faith and with proper motives 3. You can commit on the Internet like emailing a. What about the company who hosts and operates the website? i. They are not guilty but if they are made aware that it is false, then they have to do whatever they can to take it down, if they don’t then they can be guilty of defamation Questions at the end of chapter • Person having surgery would use negligence to sue the court o Res Ipsa Loquitur • Punitive damages o There to damage you as a person Chapter 7 1. Three business torts-‐these are important to U.S businesses, costs about 250 billion dollars for businesses a year in tort damages, businesses need to do whatever they can to minimize this from happening a. Fraud and elements to establish including “Scienter” i. A statement of material fact ii. Someone knowingly makes a false statement (Scienter) iii. Someone justifiably relied on this information 1. Privity of relationship a. Real Estate b. Business relationships c. It is reasonable for you to rely on this information iv. It was the proximate cause of your damages v. If someone wants more of your business, they might lie to you about competitors, etc. b. Interference with contractual relations i. Large percentage of every deal, transaction or relationship is reduced to a contract whether it is in writing or verbal ii. A contract is enforceable whether it is in writing or verbal iii. Anytime two parties have an existing contract and a third party tries to interfere with it, you can sue that party if they cause you damages and you want the court to issue an injunction to tell them to stop interfering with that contract c. Interference with prospective advantage i. Any business relationship, asset that you have that gives you competitive advantage that does not have a contract 1. Examples: Your customer list, you can sue them if someone tries to steal it a. Trained workforce, if someone tries to steal people of your workforce 2. Product Liability-‐consumer product liability a. Suing for compensatory damages b. Tort cause of action c. Law says: If it becomes of any dangers or defects you have to warn consumers of these like “Turn mower off before cleaning” i. If they don’t, more liability will attach d. If a product is too dangerous for consumers to have, the manufacturer has to get those products off the market i. Product recall in food typically means getting the products back from stores and getting rid of them e. Joint liability-‐if you have been injured by asbestos or lead based paint, if you can’t show who made that product and that product is standard across the industry and contains similar effects (asbestos no matter who makes it still contains the same cancer effects) you can get damages and they will asses it against every company that deals with asbestos or lead based paint based on market share f. Product liability insurance-‐there if your product injures someone, it is almost a necessity g. Starting out as a contract part of action i. Example: If you buy a lawnmower and bring it home and the blade flies off and cuts your leg off 1. You can sue Home Depot for breach of contract and get damages 2. Anybody who didn’t deal directly with the person selling the product can’t get anything a. If someone who originally bought the lawnmower h. Strict liability for consumer products, especially food products i. Make your product as safe as you possibly can, but if it injures someone and was being used correctly we are going to assume it was defective ii. Does not mean absolute liability iii. Only applies if you are using the product for its intended use, you can’t sue if you are using it incorrectly iv. Start to talk about damages, assumed the product is defective, manufacturers can provide defenses (below) i. Implied warranty versus and express warranty i. Implied-‐One that the court creates 1. Started with food 2. Implied warranty that this food is fit for consumption 3. Consumer products are fit for the purpose they are intended ii. Express-‐If the person selling the product made some statements to you somewhere in writing j. Defenses in product liability cases i. Product misuse 1. If you pick up your lawnmower and use it, you can’t sue because you’re not using it for its intended purpose ii. Comparative negligence 1. You were using the lawnmower correctly, but something happened when you weren’t using it safely (lawnmower going down a hill really fast) iii. Assumption of risk-‐(usually for medicines, alcohol, and tobacco 1. If you are aware of the certain side effects it can create, tell the consumer about the side effects 2. If you make it as safe as possible and warn consumers about possible side effects, they can’t sue you 3. If assumption of risk is a good defense, you give up the rights to sue for damages iv. Bulk supplier doctrine 1. If all you do is supply some material in bulk and you correctly told the manufacturer how to correctly use the raw materials, you won’t be liable for damages, only the manufacturer will be v. Sophisticated or professional user of product 1. If you are in the trade of business of using this product a lot, the law assumes you are going to much more careful in using it so you are going to be much more careful in suing the company for damages 2. Example: if you are a professional carpenter and you use a power saw and get injured 3. Statutory limits on tort liability a. Workers’ compensation, unless an intentional tort was the cause of an employee’s injury i. If you are an employee who got injured at work ii. State insurance, employer pays premiums on it iii. If any employee gets injured on a negligence based tort, they can’t bring a tort cause of action to court iv. Must fill out the workers compensation claim 1. Focuses on getting you back on the job as quickly as possible v. Does not pay punitive damages vi. Every injury is a fixed amount of compensation b. Manufacture product to government specification-‐no tort liability i. If the government steps in and sets the standards of safety for this product ii. If they meet these standards, they are not liable for injuries on this product iii. Consumers can’t sue for damages if these are met c. State laws may set limits on tort damages i. States want to protect their in state businesses because they pay taxes to the state and keeps the government going ii. By state law, we are going to cap the amount of damages you can get in tort damages to protect the businesses d. If you are a business engaged in an alter hazardous activity (high risk to society) the law says if you are engaged in this you have absolute liability as opposed to strict liability, there are no defenses against this i. If you are a business engaged in alter hazardous activity: 1. You better be as careful as you can 2. You better carry heavy insurance 3. Someone at some point will get injured a. If it’s dynamite, they will die 4. If somebody is hurt, carry out the damages automatically e. Interest in the tort system i. Consumers 1. These concern you if you are a consumer, most consumers like these ii. Consumer products companies are also involved, most companies don’t like these because they are time consuming, expensive, and highly risky iii. Tort lawyers are also involved 1. Happy with the tort system 2. They don’t like the states that are putting caps on the legal rewards f. The tort system is getting a little bit more efficient, punitive damages are coming down Questions at the end of chapter • #5-‐ Strict liability o Does the restaurant have a defense against this liability? ▯ Assumption of risk • The notice was adequate on the menu, they should have been well aware of the risks they were taking by consuming the oysters • #8-‐Was the warning on the lighter sufficient? o Parents should know you keep lighters out of the reach of children o Assumption of risk was applied o No damages against BIC • #9-‐ Strict liability-‐defective product o Court said there was no evidence that they couldn’t smell, this is their living so it doesn’t matter either way o They should know better than to smoke near that equipment o They are professional users so there is no liability
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