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by: Moshe Considine


Moshe Considine
GPA 3.76

Alvin Stauber

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Alvin Stauber
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This 26 page Class Notes was uploaded by Moshe Considine on Thursday September 17, 2015. The Class Notes belongs to BUL 3310 at Florida State University taught by Alvin Stauber in Fall. Since its upload, it has received 19 views. For similar materials see /class/205401/bul-3310-florida-state-university in Business Law at Florida State University.




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Date Created: 09/17/15
Test 2 Review Bul 3310 Alvin Stuaber MWF 1010 1100 Unit 6 Business Crime p 33 1 Equot Equot 5 Equot 0 Civil Wrong against an individual or group Example Negligence Criminal Wrong against society Example Murder threatens all of society Civil Plaintiff vs Defendant Criminal State vs Defendant Civil Lawsuit Criminal Prosecution jail time death Civil Burden of Proof By a preponderance of the evidence Preponderance majority weight of evidence Aka 51 If it is determined as 5050 the Defendant will win It is the Plaintiff s job to prove at least 51 Criminal Burden of Proof Beyond a reasonable doubt Prosecutors must prove the defendants guild beyond a reasonable doubt Keyword reasonable as determined by the jury Civil Issue Liability Responsibility Criminal Issue Guilt Innocence Civil Penalty Money Criminal Penalty Fine Jail time death Reasonable Doubt There are instructions that the judge gives to the jury on what and how to achieve a reasonable doubt conclusion The description on p 33 is long confusing has run on sentences and many agree can cause lack of effectiveness in the court room It was rated as Horrible by FSU professors of law There was a re draft of the instructions it was much clearer and less confusing to all It went up for replacement of the original horrible one but was unsuccessful in replacing it WHY With different instructions many if not all people in jail would argue that their trial was not as fair as it could have been and therefore would be awarded an appeal This represents a great threat the state in form on monetary value and time value as the courts are already experiencing high capacity usage Elements of a Crime 1 Actus Reus Criminal Act a The law requires BOTH criminal act and intent to nd someone guilty of a crime Generally easy to prove through evidence 2 Mens Rea Criminal Intent a How is this proven The law states that if you can prove that a person committed a criminal act then the law presumes that heshe had the criminal intent to do the act If you commit the crime and admit to your lawyer that you did it the lawyer represents you and you need to talk about possible defenses Presumptions can be rebutted Defenses No Mens Rea Justi cation to prove your innocence 1 iii Insanity Yes I shot that person but when I shot them I did not know what I was doing A The McNaghten Rule right wrong test If a person due to mental disease or defect cannot distinguish right from wrong at the time of the crime that person cannot be held criminally responsible In Class Example Andrea Yates drowned her 5 kids in a bath tub did she understand light from wrong at the time of the crime Jury found her guilty because immediately after the act she called 911 for help therefore showing she knew what the heck she was doing and NOT being insane Importance getting the jury to side with you B Irresistible Impulse If a person due to mental disease or defect has an uncontrollable urge to commit and does commit a criminal act that person is NOT criminally responsible Examples Kleptomania and Pyromania Accident One never meant to commit the crime Example Someone is shot when a gun accidentally goes off during cleaning Mistake One meant to do the act under a mistaken impression about the facts Example When ex Vice President Cheney meant to pull the gun trigger under the impression that he was shooting at a bird when in fact it was his friend There were no charges because mens rea did not exist Self Defense One meant to do the act but did it to defend oneself therefore no criminal intent A The law states that a person may use whatever force is reasonable necessary to repel an attack The jury will decide what is necessary Importance convincing jury it was reasonable this could be done with shooting a eeing criminal in the back by claiming one thought they were going to come back with a gun or some other means of force Age How young is too young to develop mens rea The law states that there is no speci c age it is based on the individual situation a A 5 year old was arrested and charged with battery of an elected of cial or educator when she bit her teacher b Older people are not covered by this defense because old age does not affect your mind Rather a disease which does affect your mind could be argued but that would fall under an insanity plea vi Duress One is forced to commit a crime The Mens Rea is not yours it is the person who is forcing you to commit the crime In class example Patty Hearst voluntarily joined a gang the gang robbed a bank and she was caught Her defense was that the gang brain washed her to rob the bank The jury was not convinced and found her guilty Overall Importance Just because you CAN use one of the above defenses does NOT mean that the jury will believe it Go over pages 35 36 in Target Packet lots of info pay attention to underlined sections Flo P 37 rida Statutes 2009 Justi able Use of Force p35 Imminent means threatening to occur You do have the right to defend yourself or defend other people as long as it is reasonable Reasonable is still decided by the jury Do Not Retreat law means you can stand your ground so not have to avoid violence or retreat Citizens arrest p 36 A citizen can arrestdetain a person if a criminal act takes place in front of them If the criminal tries to ea you can take measures shoot to stop them Re read underlined portions 1 Also deals with the eeing felon rule does one have the right to shoot that eeing felon The Florida courts say YES because one does not know if that felon is running to get force to come back and commit more crimes Cannot use deadly force unless it is necessary to prevent the escape and the officer has probable cause to believe that the suspect posed a signi cant threat of death or serious physical injury to the officer or others Florida Statutes Criminal Penalties Capital Felony punished by death Felony criminal offense of which jail time is GREATER than 1 year Misdemeanor criminal offense of which jail time is LESS than 1 year There ARE different degrees of felonies and misdemeanors Life Imprisonment Ineligible for parole Death Penalty History of the Death Penalty Early death penalty laws 8th century BC drowning burning to death were used 10 11 century hanging burning at stake were used Long time ago 222 crimes were punishable by death stealing cutting down trees European settlers brought capital punishment James Kendall was the rst execution is the USA Early Mid 19th century there was a move to abolish the death penalty 1834 Pennsylvania became the rst state to move executions away from the public eye Rhode Island and Wisconsin abolished the death penalty in the late 1800s Late 1800s the electric came about 1890 rst electric chair execution in USA 1950s in the US executions decreased dramatically US Supreme Court Death Penalty Decisions There are 8 cases in your target packet I will list the 5 that Stuaber speci cally pointed out in classbut make sure you look at all of them also in class he said we don t need to know speci c years bc he will word the questions like The 1972 case of Furman vs Georgia ruled that 1972 Furman vs Georgia Supreme Court ruled that all death penalty statutes are nulli ed The procedures are too arbitrary no guidelines attorneys representing people who had been sentenced to death were not of high caliber risk of executing an innocent person 1976 Gregg vs Georg a Death penalty is NOT unconstitutional in all cases States reinstated death penalty under new procedural guidelines 1977 Coker vs Georg a Death IS an excessive penalty for the crime of rape Court rules that only those convicted of rst degree murder can be put to death 1988 Thompson vs Oklahoma States cannot execute anyone who was younger then 16 at the time of the crime A year later a ruling allowed execution of those who were between 16 18 during the time of the crime 2005 Roper vs Simmons The court ruled that under the 8th and 14 11 amendments it is unconstitutional to execute a juvenile offender who was under 18 when they committed a capital crime The court held that capital punishment in these circumstances constituted cruel and unusual punishment Pages 41 42 have a lot of information and SHOULD be looked at summary below Florida Statutes Death Sentence Bifurcated Proceedings 1 Guilty or Innocent if found innocent no sentence 2 Sentence Life in prison without parole OR Death Penalty 2a Advisory Sentence by the jury Advisory Recommendation Aggravating Worsens the situation sentence repeat offender Mitigating Softens the situation rst crime ever committed 2b Findings in support of sentence of death Jury Override The judge can override the jury s decision with his own decision The decision must be documented in writing More agg More Miti ravating circumstances Two time losers convicted twice Shooting a gun in a mall endangers innocent others A crime committed for monetary gain in law referred to as pecuniary gain A Heinous crime aka hatefully or shockingly evil detestable cold blooded murder an example of a heinous crime gating Circumstances When they do NOT claim insanity Mercy Killing assisted suicide from a doctor Military or civil service child abuse experiencing as a child and showing remorse for the act goes a long way with the jury AS Victim Impact Evidence Gives the family and friends of the victim an opportunity to talk about how great the person was and what a great loss to society it was that they are dead This is seen as part of America s checks and balances system it is to outweigh all the bene ts we give to criminals Remember the recommendation does NOT have to be unanimous because it is only a recommendation Death Penalty Stages 12 person jury hears case Makes a decision does NOT have to be unanimous Penalty Phase either life in prison OR death penalty Judge makes the nal decision if verdict if death penalty gt Automatic appeal to Supreme Court Execution Governor signs warrant designating a week for execution awewwr p 43 Florida Statutes Capital Punishment 1 Default is lethal injection or the defendant can choose the electric chair within 30 days after the sentence of death it must be hand written p44 45 Focus on Business Crime Florida Statutes Theft Robbery and Related Crimes Retail theft shoplifting Estimates 3 5 Billion dollar loss because of retail theft Florida has passed a statute that is trying to keep up with the technological advances of criminals 1d Carrying away with intent to steal has come to be an issue with the courts The relating in class example was when a few young men entered a store with trash bags and started loading them up with goods they did not intend to buy they were stopped IN the store this was proved because they had no means to pay for the goods no cash credit card The ruling now states that you can arrest someone for the intent to steal BEFORE they have left the store property 3a Citizen s Arrest See underlined portion when you have probable cause to believe that a person has committed retail theft and by taking the offender into custody they can recover the items or prosecute the person they have the light to detain the offender in a reasonable manner for a reasonable length of time A law enforcement officer shall be called to the scene immediately after the offender has been taken into custody Importance the interpretation of reasonable and the fact that this CAN occur when the offender is STILL in the store 3c Merchant s Privilege If it turns out they did not steal anything they can sue you but the merchant traditionally wins 3d This statute re emphasizes that the offender may be arrested on or off the property of the store States you can be arrested without leaving the store p 45 46 Florida Statutes Violations involving checks and drafts Fraud Intentional Misrepresentation you know there is not enough money to cover the checks that you paid with it bounces back Looked as the same as lying therefore fraud 2a Draw to write Drawee the bank Knowing is key it would NOT be a crime if you did not know that there was insuf cient funds In Class Examples post dated checks and split accounts spouses 2b Penalties extremely serious 5 Payment is No Defense Just because you pay the person back the money you owe it does not mean everything is ok In class example robbing a bank for 500000 but giving the money back once you can tell your going to get caught or are arrested fact is a felony WAS committed and must be dealt with Intent 1a overcome the presumption examples Bad mathematician in class example Stuaber s daughter HAHA Share account with someone else Identity theft Assume paycheck automatically got deposited when it had complications and was not deposited as normally Penalties Law presumes you meant to cheat someone Can be sued for Triple 3x the amount of the check PLUS lawyers fees Not usually put in jail for the rst bad check written Successive violations put you in serious jeopardy Unit V Business and the Constitution p 28 Separation of Powers Checks and Balances Legislative Makes laws Executive Enforces administers the laws Judicial judges in court Interprets laws Each branch is co equal in theory but it is not always true Idea of checks and balances is that we achieve equality a Legislature passing law very signi cant power 1 2 3 4 5 i President can veto check on power of legislature ii Legislature can override the veto with a 23 vote b Judges make decisions sometime controversial i As citizens we can take the initiative and try to pass a new amendment to the constitution ii Needs a vote of the states to approve it then it will be amended c Example 1970s they approved capital punishment or in 1900s when prohibition was approved and later taken away Can remove judges and the president through the impeachment process Cases Separation of Powers US vs Nixon 1974 Watergate break in people associated with the president face charges but not the president himself it is claimed he was involved Federal prosecutor asks Nixon for the audio Whitehouse tapes Nixon said no because his executive power is equal to the legislative power Supreme Court ruled he turn tapes over he did and resigned Clinton vs Jones 1997 Lawsuit led by Paula Jones Governor Bill Clinton sexually harassed her Clinton s response was that he could not be bothered with the lawsuit while he was president of the US so he would deal with it after his presidential duties were over Went to Supreme Court Clinton gave a deposition Critical role played by semantics Bush vs Gore 2000 Problems counting votes in Florida in 2000 election supreme court ruled that their would NOT be a recount It was the court that intervened and decided it all Importance of cases above judicial branch usually has more power Constitutional Judicial Review Determining whether laws actions violate the constitution It is up to the power of the courts to determine this In class example p 18 Anthony vs Alachua county unconstitutional to treat men different from women regarding child care and attending jury duty Judicial Review Interpreting laws What judges do 95 of the time If law has a word that needs interpretation the judges will eventually make the interpretation semantics In class Example the word occurrence in both the World Trade Center case and the frat party shooting case Interstate Commerce commerce between two or more states The Commerce Clause US Constitution Article I section 8 The Congress shall have power to regulate commerce with foreign nations and among several states Importance The Federal Government CAN pass these laws when the transaction effects more then one state Intrastate Commerce Commerce within one state State County and City legislatures pass these laws Cases Wickard vs Filburn 1942 Mr Wickard was secretary of agriculture of the US Mr Filburn was a farmer Case began during the great depression went to the Supreme Court a few years later in 1942 FDR proposed one way to keep track of agricultural products was to give allotments 100 acres per farmer Mr Filburn used 200 acres and was penalized He went to court because he said for the federal law to be involved the situation requires more then one state and he did not leave his state The extra 100 acres was just for his family and to feed his livestock not for commerce He argued that it was intrastate and cannot be regulated by congress Mr Filburn lost his case due to the notion of his activities substantially affecting interstate commerce 0 Congress has the power to regulate state or local activity if the activity substantially affects interstate commerce Importance Just because one s business is all intrastate intracounty or even intrafarm the impact of what one does involves more than just their one farmcitystate If all farmers had grown twice the amount the normal supply and demand would be thrown off Heart of Atlanta Motel vs US 1964 President Kennedy assassinated in 1963 Civil Rights Act of 1964 had 1 Public A J quot Section that stated if you are in business and serve the public your facilities cannot be segregated In this case the US government came to the hotel owner and told him that he was not allowed to be a segregated establishment He argued that all his business was done in Georgia intrastate NOT interstate Congress said that he was involved in interstate commerce because of the fact that customers staying in the hotel are from many states NOT just Georgia Katzenbach vs McClung 1964 Katzenbach is the US attorney general Mr McClung is the owner of Ollie s Barbeque US Government comes in and says he is not allowed to be a segregated establishment Mr McClung s argument All business is done in Birmingham Alabama and all customers are from Alabama intrastate Mr McClung lost his supplier of pork was from out of state Chicago Pork Co Importance retail and wholesale are both involved in business p 30 Federal State Regulation of Commerce Hint from class this page 30 has importance and questions are likely 1quot Equot Subject Matters Exclusively Federal Any attempted regulation is unconstitutional under the Commerce and Supremacy Clauses if there is something in the constitution that says the Federal government only can make laws state laws will yield to these laws a US Constitution Article 1 Section 8 states Congress shall have the power to do the following Regulate interstate and foreign commerce Regulate bankruptcy Coin money Establish post of ces Declare war Raise and support armies and a navy Subject Matters of Possible Dual Regulation a Subjects preempted by federal law Any state law is unconstitutional under the Commerce and Supremacy Clauses Congress makes single rule for the entire US Example Air Traf c Control b Subjects covered by federal law which do not preempt the field State laws which are in irreconcilable con ict are unconstitutional Garnishment A legal proceeding brought by a creditor in which a court orders an employer to pay a percentage of the employee s wages to the creditor on a periodic basis basically when one owes money and works they can have up to 25 of their money put toward the person they owe money to Federal Law states the Garnishment maximum at 25 of wages Florida Law Garnishment is not permitted when the employee is the Head of a Family de ned as at least one dependant besides themselves The exception is Alimony and Child Support Garnishment maximum in North Carolina 0 0 Florida and North Carolina laws are not unconstitutional because their laws are not in irreconcilable con ict They would be if they allowed garnishment over 25 but this way they are in compliance State laws must NOT discriminate against interstate commerce in favor of intrastate commerce a state cannot favor it s own in state business In Class Examples 1 City of New York had a tax for those who commuted to NYC in a car you had to pay a small percentage on income the courts struck this down 2 Out of State Tuition Why is this okay to charge different rates Taxes either you or your parents are paying taxes in the state State Law must not impose unreasonable burden on interstate commerce In Class Examples Maximum length of a freight train in number of cars If the number varied between states it would cause havoc at state boarders to comply with the of train cars A single uniform rule is needed Importance unreasonable is decided by a judge some burdens that ARE reasonable are speed limits truck weigh stations and agricultural inspections Subject Matters Exclusively Local a State Local regulation permitted subject to police power which in this case means to regulate 1 Law must relate to public health safety welfare or morals 2 Law must not violate US Constitution Example segregation laws were struck down eventually 3 Law must not be unreasonable or arbitrary once again unreasonable is to be determined arbitrary means there is no logical basis for the decision Example of case with issue of police power 0 A liquor store was prohibited from being built within the vicinity of 5000 feet of another liquor store 0 City passed an ordinance saying you could not do this 0 Florida Supreme Court said this was an issue of police power 0 The concern was that if there was a concentration of liquor stores the surrounding neighborhood would develop into a bad one 0 Decision Not allowed to build the liquor store 4 Commerce Clause and taxation of businesses by states a Nexus connection or Taxable Situs refers to property taxation required b Fair Appointment required 1quot Can a state tax interstate commerce In Class Example Braniff Airways had a terminal in Omaha Nebraska They only ew interstate ights no ights within Nebraska They were told they had to pay income taxes to the state of Nebraska of 5 Argued that because they were only interstate they did not have to pay Went to the Supreme Court you have to be able to show a connection between what that company is doing and taxation Fundamental reason of taxes to raise revenue to pay for governmental purposes Tax bene ts education re protection and ROADS Braniff argued that they were not incorporated in Nebraska did not own land there Supreme Court asked Braniff if they bene ted from the tax bene ts the answer is clearly yes because people need the roads to use Braniff education in state educates Braniff employees and so on Braniff then argued what if 19 other states wanted income taxes also If 1 million dollars was made and each state wants 5 then no pro t was achieved The compromise was to nd a portion of the income that was attributable to Nebraska and to tax for that amount Does Braniff have to pay income tax in every state they y in and out of Yes if that state has income tax which most do It was found that Nebraska accounted for 10 of Braniff s income and therefore was taxed 5 on the 10 of income So 5 tax on 100000 instead of 1000000 for lntemretimr C quot quot 39 Rights Constitutional lights are not absolute a Congress shall make no law limiting the freedom of speech Examples include yelling re in a crowded area to cause a riot perjury against the law slander libel written slander and treason These are all punishable even though one may think it is their light of free speech Constitutional issues involve a weighing process between competing policies Amendment IV of the Bill of Rights no unreasonable searched In Class On Campus Example 5 years ago at Strozier library there were no theft detecting devices so an attendant was allowed and did for all to look in students backpacks as they left People not stealing anything found it unreasonable because they did nothing to give reason that they were stealing FSU law students began a process to have the searching removed and theft protection devices were installed If gone to court the issue would have been if 15 seconds of bag searching was unreasonable or not Airport searches are not unreasonable due to terrorism threats Constitutional lights are variable from time to time a Constitutional relativity What used to be considered constitutional may not be today capital punishment Plessy vs Ferguson 4 Constitutional Rights protect the minority from the majority a In many operations majority rules however it does not give you the right to oppress the minority p 31 The 14 h Amendment Life liberty and property Can take life with death penalty Can take liberty by putting in jail Due Process Equal Protection Due Process Clause 1 Fundamental Fairness is required examining witnesses presenting both sides Notice and Hearing required you must be told if you are being charged or expected to show in court on some day Equot a Ordinance It is unlawful for three or more persons to congregate on a city street in an annoying manner to others Above is actual law in Cincinnati and 3 men were arrested and convicted Court focused on the word annoying It has different meanings for different people Lawyers argued that the word annoying makes this law Void for Vagueness Conviction dropped and the wording was re looked at Similar case in Georgia Men in Atlanta were protesting 0 Men were arrested for violating a protest law and one man called the arresting officer a Son of a Bitch It is a misdemeanor in Georgia for cursing at a law officer Georgia Supreme Court threw out the misdemeanor law for vagueness it is unclear what cursing is for some compared to others 00 Equal Protection Clause Invidious evil Discrimination is illegal 0 Examples race gender class ethnicity Rational Basis Test Discrimination is legal 0 Most discriminated group in USA is young people voting driving cars not an adult till 18 0 State Laws deny numerous rights but WITH rational reasoning In Class Examples 1 Catholic church has a job opening for a new priest a Rabbi applies and is denied He then argues that it was invidious discrimination He would loose because it is obvious someone of the Catholic faith must hold the job 2 Position opens in the Leach Fitness center to pick up towels in the girls locker room When males are declined the position it is not unfair because it would violate the privacy of females in the locker room Text Problems Page 251 in text Coke and Pepsi accused of price xing criminal offense The judge decides that since the corporations were involved they would be imprisoned for 3 years and pay a fine of one million dollars Corporate Imprisonment Immobilize the corporation or restrain them US Marshall can seize the corporation s assets Eventually lifts most the penalties but symbolically imprisons the corporations Page 281 1 Yes Medical syringes were found in cans of Pepsi Video evidence showed consumers putting syringes in Pepsi cans Consumers were found guilty of a criminal act because the evidence showed criminal intent to sue Pepsi Page 281 4 Yes Person wrote a check from a bank that you do not have an account with Jury found that criminal intent was established Same as writing a worthless check Test 3 Review Bul 3310 Alvin Stauber MWF 1010 1100 lquot Tort 1 Tort p 47 a CIVIL crime other than breach of contract and can sue for money Primarily a fault based law determines who is responsible for what and the corresponding money damages 2 A tort involves a direct interference with ANY of the following three a Person body Ex swinging a baseball bat at someone s head or driving 80 mph in a 40 mph zone and getting in a wreck that hurts another s body shows negligence car wreck is the most common b Property Ex vandalism trespassing c Intangible Interests This means incapable of touching or non physical harm Ex slander spoken or libel written against one s reputation Key the information spread must be false if it is true then there is no tort Another example is privacy we allow some interferences of privacy with cameras and such but a jury will decide what is unreasonable In Class Tort example Ft Lauderdale A man sues a strip club Booby Trap after receiving an injury An exotic dancer s shoe ew off during performance and broke the mirror ceiling resulting in broken glass shards falling on the man and causing injury It was found that the employee failed to reasonably perform in a safe manner The Booby Trap was at fault for negligence Tort Liability 1 Intentional T011 Meant to hurt ex swinging a baseball bat at someone s head 2 Negligence Fault based but not intended looked at as careless ex speeding or stripper from above reference most common tort 3 Strict Liability Even if you did not intend or were not careless if your action injures someone the injured can still sue This is usually associated with very dangerous activities In Class Example explosives we know that they have advantages and we know that they are dangerous Construction companies are at fault even if they take every precaution possible against injury with explosives This is considered a cost of doing business because some things require responsibility explosives Intentional T01ts A Assault INTENTIONAL act of putting another person in apprehension for his physical safety 1 Actual physical contact is NOT required Ex point a gun with no bullets loaded at someone this IS a tort because it was done intentionally to make someone afraid 2 There must be present apparent ability to carry out the threat Key apparent what it looks like at that present time it is assault because it instills fear even a squirt gun robbery of a bank is an assault if it instills fear If you point an object and someone reasonably believes it is a gun then it is a felony of assault In Class Example Guy said if it were not Sunday he would ram an object through someone s gut On Monday a suit was led against the threatening guy it was dropped because there was no future apparent ability shown because it was stated if it were not Sunday but it was Sunday at the time therefore no present fear could be shown B Battery Intentional touching of another person without consent or justi cation Key difference from assault is that touching IS required it does not have to be the hand it could be touching of the foot or any objects thrown 4 states include second hand smoke as battery Emotional and mental injuries are considered In class ex Man swung and hit a woman with an alligator he got 6 months in jail for battery Can you have Assault without Battery Yes point but do not shoot a gun Can you have Battery without Assault Yes attacking from behind or in one s sleep the victim never saw so they did not have a chance to have fear Police grabbing is an exception the key justi cation if something is not justi ed and force is abused it can be excess of force and is a battery Fireman and health of cials are justi ed as they could sometimes be dealing with unconscious people 1 Consent important because battery is without consent a Expressed Consent Given by words verbal or written ex boxing match it is agreed in writing that the opponents can hit each other going past the contract Tyson biting part of an ear off 5quot Implied Consent most used way Shown through conduct determined by the jury ex in a pickup football game all players do not speci cally have to tell every other player that they can touch them it is implied c Informed Consent Dealing with surgery mainly consent without knowledge is no consent at all aka a physician must tell a patient what they are about to experience it is one s personal light to either continue or not with the surgery if there is no consent in surgery it is battery In Class Example Lexington KY A surgeon branded more so wrote not carved the initials UK on a woman s uterus before it was removed from her body She consented to the surgery but not speci cally to writing UK on her body parts The Dr claimed that it did not matter because the uterus was being removed anyway also he claimed that he was Marking the surgical site to draw attention and not accidentally remove the wrong item The Dr was not required to put this in the contract because if absolutely everything was included in it it would be ridiculously long The woman claimed it was a mockery to her body and it was tacky to do so Being tacky is not a crime there was no physical harm done they ended up settling for an unknown amount Damages in Intentional T011 Cases 1 Actual to compensate for loss or injury pain and suffering can include economic and non economic damages if the jury says so Punitive to punish to give incentive to NOT repeat the activity this is a normal damage if the t01t was intentional Drinking and driving can carry punitive costs because of Gross Negligence C False Imprisonment Intentional con nement or restraint of a person without consent or justi cation Most common case is the suspected shoplifter One CAN sue back for not having justi cation In Class Example A teen girl was held for 400 days in mental health care She was put on drugs to shackle her The rst 72 hrs was justi ed reasonable but the 13 month stay was too long and therefore false imprisonment Reese Witherspoon tried to le false imprisonment when paparazzi surrounded her car making it unable for her to leave for a while and 5 cars were pursuing her on the road cutting her off She claimed that she lost her freedom of movement D Abuse of Process p 49 50 groundless institution of civil proceedings against a person This is when there is no basis for suing anyone can pay for a lawsuit and if the defendant does not respond they lose so they are forced to respond this is done to harass someone It abuses the civil court process Florida Vexatious Litigant Law V exatious meaning annoying bothers Florida has its own additional law regarding abuse of process One who has 5 or more lawsuits led within a 5 year period can be deemed a Vexatious Litigant If it can be found that the plaintiff is a Vexatious Litigant and is not reasonably likely to prevail in the action against the defendant the plaintiff will be ordered to pay security UPFRONT an amount reasonably suf cient to cover attorney s fees and relating taxes for the trial Also the vexatious litigant can have a prefrling order filed against them which means they must get permission from a judge before commencing a lawsuit Review text underlined sections on p 50 If a person violates the orders given by the judge their approval or disapproval to file then that person will be found in contempt of court The penalty is jail fine or both This is looked on as dishonoring the judge by not complying with the order E Defamation publication of false statements that harm a person s reputation Key it must be false to qualify as a tort also three people must be involved for something to be considered defamation in its most simplest form defamation is Person 1 tells person 2 something false about person 3 Three types of defamation 1 Slander oral defamation 2 Libel written defamation 3 Defamacast broadcasted defamation such as TV or radio 4 Defamation Per Se This means that if one says these things and they are false it is automatically assumed that they hurt that person s reputation a Accusation of a crime b Statement that degrades a person in business or profession This could include calling someone a Quack Doctor or an Incompetent Professor c Accusation of having a loathsome disease EX AIDS Syphilis Gonorrhea m Defamation continued 5quot Privilege who is excused by the law regarding defamation a Absolute Privilege even if the statement IS false the speakerwriter is immune from liability This is true in two cases 1 Judicial proceedings or 2 Legislative proceedings Why do we waive some people from defamation We don t want people to be afraid of saying the truth in the courtroom Immunity is given in the courtroom to provide as much incentive for the truth as possible without repercussion b Quali ed even if the statement is false the speakerwriter is immune from liability if ALL of the following three are correct i The statement is made in good faith and ii The statement was made with legitimate interest The statement was made in a reasonable manner The story on p 51 in the target packet regarding slander the cashier suing her boss won because of the tone of the boss s voice and his lack of denying her accusation 6 Suits by public of cials public gures require a showing of malice malice a reckless disregard for the truth public gures and celebrities chose to put themselves in the limelight and can attract more attention because of it it is for this reason that malice must be proven In class Ex a famous actor was portrayed on the cover of a hustler magazine having sex with his own grandma on a commode This went all the way to Supreme Court and they ruled that it was obviously a joke satire so it was dropped G Intentional In iction of Emotional Distress BOTH of the following must exist 1 Outrageous conduct 2 Severe emotional distress This law is dif cult to enact because if we allowed anyone in emotional distress to sue too many people would be doing so The act must be way beyond wrong Horribly wrong In Class Ex An old man was in a nursing home and when his wife came to visit him one day noticed all these small cuts and bruises on him all over The nursing home said they were trying to shave him but after some investigating the wife found out it was rodent bites they had been biting him when nobody was there and he could not defend himself She sued for intentional in iction of emotional distress It was not directly intentional but it was a reckless disregard for safety which is equal to intentional conduct H Invasion of Privacy 1 Appropriation Unlawful use of a person s name or likeness ex putting Tiger Woods name on your golf clubs without his knowledge Equot Intrusion Unreasonable offensive interference with another s privacy ex Jennifer Anniston suing paparazzi for taking pictures of her sunbathing topless when the pictures were taken from a tree top to see over her privacy wall She sued for appropriation because the photos were published in a magazine and intrusion This is why baseball tickets have so much writing waive lights to photos and etc Equot Public Disclosure of Private Facts publicity given to private information about another which is offensive objectionable to that person Ex releasing private medical information giving out other s SS posting bad checks received at the front of the store or by the register and revealing the identity of rape victims because it increases their pain and suffering 5 False Light publicity that places another in false light Ex remember the restaurant case on p 51 the boss was at fault because of the tone in which he made his comment false light is putting one in the appearance of doing something wrong 5quot Remedies a Damages money b Injunction a court order commanding an action or the refraining from an action Ex Anniston ordering the removal of her topless photos from magazines I Fraud intentional misrepresentation of a material fact justi ably relied upon by the injured party aka lying Ex rolling back the odometer on a car to make it appear as having less use and selling for more J Nuisance unreasonable interference with a person s light to use or enjoy his property The keyword unreasonable it will be determined by the jury In class Ex a funeral home was next to a neighborhood and the only way in and out of that neighborhood was to go by the funeral home the residents claimed it was a nuisance because they thought about death every time they came or left their home The solution was to build another entranceexit on the other side of the neighborhood giving the residents options K Alienation of Affections Depriving a husband wife of the affections of his her spouse This is relating to an affair with married people a stealing of affections if you will In 2008 this was abolished in the state of Florida II Negligence a Elements of a negligence lawsuit must prove all 4 in a negligence lawsuit 1 Duty of Care to be careful and follow all rules Equot Breach of Duty of Care negligent conduct violating the duty of care ex running a red light 3 Causation showing that the other caused something to happen 4 Injury b Types of Business Negligence 1 Manufacturing Negligence a Negligence in Design faulty design b Negligence in Selection of Materials ex when airplane engines were falling off due to weak wing material c Negligence in packaging this is why coffee has HOT HOT written all over it d Negligence in quality control having proper testing and inspection of products will be determined by jury 2 Retailing Negligence a Premises Liability This says that one is responsible for their own property it covers a lot of issues Ex man bitten by snake in wall mart garden section of store sued for premises liability regarding Negligent security of the property 3 Service Negligence a Professional Malpractice any professional doctor accountant 0 Duty of Care Reasonable Person Standard This is for the jury to make a comparable of the most general middle of the road reasonable person so they can tell how the real person acted in comparison 1 Reasonable person 2 Or ordinary prudence carefulness 3 Under like or similar circumstances Ex Case of the Errant Bee A school bus driver in West Virginia was driving swatted at a bee while driving and crashed the bus and kids get hurt The parents sue but it was determined that the bus driver was instinctive and not careless at all to swat at the bee this is a unavoidable acciden in the eyes of the law similar to if a 25 yo person in good health crashes a bus because of a heart attack nobody is really at fault d Causation a link 1 Was the injury proximately close connection caused by the defendant s negligent conduct a Was the injury reasonably foreseeable from the negligent conduct If yes then have proximate causation The key is reasonably foreseeable P 56 is an example of a case where re ants bit a woman thousands of times while in a retirement community It was found out that employees prior to the accident rep01ted seeing re ants shows negligence also Terminex who was taking care of the propelty bug wise used only 9 minutes to do inspection when their own rules mandate at least a 40 minute inspection shows negligence The plaintiff claimed negligence and wantonness and got over 5 million Wanton malicious inhumane merciless and is equivalent to intent which means it was intentional which means that punitive damages will be possible e Defenses 1 2 M Contributory Negligence accusing the plaintiff of negligence even if they are 5 negligent then they will get no money at all Comparative Negligence splitting the negligence if plaintiff was 25 negligent then they would get 75 of the amount awarded by the jury Assumption of Risk knowing that sitting in the stands at a baseball game can be dangerous that s why there s all the small writing on the ticket in eld at NASCAR f Sovereign Immunity The King can do no wrong If no civil wrong can be committed then no tort can be committed 1 Equot Equot 5 Lawsuits allowed if activity of government is operational ex government truck driver run red light Lawsuits NOT allowed if activity is discretionary ex cannot sue for accident caused by confusing roads construction at Thomasville rd and I 10 Cap 100000 per person and 200000 per incident so if it involved 4 people the max would be 50000 per person Claims Bill relief act This is a proposed bill and IF it passes it is called a relief act it is a hope to change and if it changes money can be seen by the original party to bring it up Ex p 61 the department of transportation did not inspect the sign regularly and it had fallen before when it became a relief act Brenda Smith got g Wrongfully Incarcerated Persons 1 May 28 2008 Gov Crist signed legislation entitled Victims of Wrongful Incarceration Compensation Act The package includes P 5quot a 5 Lquot 50000 for each year of wrongful incarceration Tuition and fee waiver for up to 120 hours of instruction at community or state college in Florida Reimbursement of any ne penalty or court costs paid by the wrongfully incarcerated person Reimbursement of attorneys fees and expenses paid by the wrongfully incarcerated person in connection with trials and appeals Expunction of the person s criminal record resulting from the wrongful conviction and wrongful incarceration Total compensation for a c and d may add up to but NOT exceed 2 million P 58 should review case regarding baseball hitting woman in face by way of wild pitch there was no assumption of risk here because there was supposed to be a protective net and it is because that protective net failed that an injury occurred plaintiff awarded 25 million P 59 should review Talks about negligence and state agencies they are NOT liable for punitive damages also there is a 100000 cap per claim and a 200000 cap per incidentoccurrence No attorney can claim more then 25 of the judgment and no employee is speci cally liable UNLESS they act in bad faith or malicious conduct and example is if professor Stauber kept the whole class in the room during a re alarm when there really was a re and people get hurt h Premises Liability Duties of Property Owners Occupiers to Visitors just because you are not the owner does not mean that you don t have liability 1 Trespasser on property without consent Duty to refrain from Equot wanton willful misconduct Ex farmer having someone break into his tool shed at night NOT allowed to have an automatic spring gun set up to kill them because a spring gun has no discretion a kid or city worker could open the door and be shot Licensee on property with consent or privilege Ex policeman reman health inspector Duty 1 exercise reasonable care for visitor s safety 2 warn about dangerous conditions but do not have to x ex hole in yard Key word is consent because of the different types of consent if someone just drops in unexpectedly but they do it on a regular basis they can be considered a licensee 3 Invitee business customer this involves the highest duty of care Duty Same as licensee but in ADDITION to make reasonable inspection of the premises to discover dangerous conditions ex Publix has a reasonable plan to keep all isles clean maybe one person walks around the store at all times it is unreasonable to have a person assigned to every aisle will be determined by jury i Parents Liability for Torts of Their Child a Rule Parent is NOT liable for tort of his child UNLESS 1 Child is agent of parent because employer is responsible for employee when on the job 2 Parent sanctions or directs child s tort parent tells kid to throw baseball through neighbor s window Equot Parent fails to exercise proper parental control over the child most used ex parents go out of town kid stays at home throws a party with booze kids leave party and get hurt drunk driving the parents ARE liable ONLY if similar parties existed before because then it would be foreseeable the rst party is an exception III P 63Strict Liability liability without fault a Ultrahazardous Activities Very dangerous 1 Use of Explosives 2 Keeping Wild Animals Legal but liability imposed 3 Tavern bar owner liability Dram Shop Laws Intentional torts and negligence are fault based with strict liability fault is irrelevant even if one is careful or not Ex Tiger biting kids head at a school fundraiser it is KNOWN that wild animals are dangerous so if anything happens while dealing with them many people can get in trouble both the handler and the school were at fault in the tiger case The tavern liability is described at length on p 63 it states that a bar owner IS liable to damages caused to third parties through drunk driving IF the person that caused the accident is either 1 a minor or 2 an alcoholic It is easy to check for minors but alcoholics are hard to point out identify the law considers an alcoholic someone that is habitually addicted to the use of any alcoholic beverage It is such a grey area as to if someone is an alcoholic or not so there is a rule saying that family members of alcoholics can submit their name and photo to bars stating that they are alcoholics and that they should not be served this is about the only real way a tavern owner could get in trouble because it is foreseeable that they could cause a problem but it is still tough due to changes in appearance and the amount of people that have to know the alcoholics It should be noted that this applies to tavern owners only not social hosts b Respondeat Supervisor Vicarious Liability the boss is liable for t01ts committed by employees ON THE JOB Employer is liable for employee torts when they are committed within the course and scope of employment basically on the job it is up to a jury to decide whether someone was on the job or not the job or not the relating in class example had a truck driver going from Tallahassee to Jacksonville but the driver went to Gainesville for lunchcourts call this On a Frolic had a wreck they are obviously not on their job duty so the employer is NOT liable but if that same wreck happens 5 or 10 miles off the main course the jury will decide what is and is not reasonable The owner employer is ONLY liable when the tort was on the job and within limits c Product Liability must satisfy BOTH of the following 1 Product is defective AND 2 Product is unreasonably dangerous to user OR consumer notice that it does not have to be the person that bought the item In class ex A knife has a defective screw someone is going to cut turkey with the knife the defective screw breaks the handle falls off and the user slices a big cut in their hand The victim would win the suit because the knife is BOTH defective AND unreasonably dangerous A knife is unavoidably dangerous because of its sharpness but the defective screwhandle made the knife unreasonably dangerous and defective Another example is someone fmding a dead rat in their salad at McDonalds it is both defective and unreasonably dangerous d Dog Owner Liability p 64 65 A dog is NOT entitled to one bite This is said to protect the victim to avoid the owner claiming that they did not know the dog was vicious There is Strict Liability for dog damages Owners of dogs shall be liable for any damage done by their dogs to a person or animal Notice it just says damage this is because there is more speci c rules for biting Dog Bites An owner is liable for dog bites in public places or if the victim is lawfully in a private place regardless of prior knowledge regarding the dog s viciousness BUT if any negligence by the victim is recognized taunting the dog a percentage will be assigned to the victims negligence and taken away from the owner s negligence this makes victim receive less 35 Owners are NOT liable except for victims under the age of 6 because they potentially cannot read IF they have a clearly posted sign with the words Bad Dog the Supreme Court ruled that Beware of Dog could work also IV Tort Reform in Florida 2003 a Medical Malpractice Litigation 1 500000 Cap on non economic damages so dr s insurance isn t as high 2 Itemized Verdict Requirement a Past Economic Losses b Future Economic Losses and Number of Years Award is Intended to Cover c Past non economic damages d Future non economic losses and Number of Years Award is Intended to Cover e Punitive damages if applicable This was done to simplify the process for jurors see page 66 in target packet an example of a confusing to some jurors form that they messed up the total amount compensated with V Tort Reform in Florida 1999 a Jury Duty and Instructions jurors are allowed to take notes in ceItain instances jurors can ask questions through written paper passed on to the judge 5quot Expedited Trials Both paIties must agree it has a shorter discovery period of 60 days interrogatories and requests within 10 days of adopting the expedited trial and all responses to be served within 20 days of receipt The court determines the number of depositions required the case may still go to a jury if both sides agree c Itemized Verdict Requirement separates money into three categories for ease economic losses noneconomic losses and punitive damages Punitive damages only applicable IF they are personally guilty of intentional misrepresentation had knowledge OR gross negligence so reckless it was a disregard to life safety or rights Caps punitive damages are limited to 3x the amount of compensatory damages or 500000 If the act was done for unreasonable fmancial gain then the cap is set at 4x the amount of compensatory damages or 2 million There will be no cap for acts that were intended to and did harm people The jurors will not be noti ed of the caps in place so they are not inclined to throw higher numbers out a Probably should review the above on pages 68 69 I have summarized the underlined sections but there is a lot of info there The same act can be both a Tort and a Crime usually the criminal proceedings are done first and there can be different outcomes ex OJ Simpson winning criminal case but loosing civil case Also we are supposed to know the following article about Bernard Madoff s guilty plea for fraud and involvement in a ponzi scheme Here s the link htt wwwfoxbusinesscom stor markets madoff arrivescourthouse GOOD LUCK


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