LEGALETHIC ENVBUS BUL 3310
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Date Created: 09/17/15
Business Law Probably need book Tests 3 exams Not Cumulative 10 for the assignment attending a state court argument Turned in before thanksgiving holiday CHAPTER 2 Case Briefing 0 Finding all the facts in the class How to Case Brief 0 Court I Where is the case heard 0 Identifying Facts 0 Legal Issues I What is the main issue oflaw that the court has to define 0 Holding I The decision of the court I Dicta o The reason or rational behind the holding o Dissenting I The view of the minority in the judges vote What is law 0 The rules and principles decided by the court to decide controversies 3 Types of Law 0 Legislative I The Constitution I Congressional Statutes o IudicialPronouncements 0 Procedural Law I Rules of evidence How are procedures going to be dealt with in courts I Substantive v Procedural 0 Sub Law used to decide disputes Public Law Vs Private Law 0 Public I Criminal constitutional 0 Private I Contracts etc 4 Different Sources 0 Constitutions 0 Legislation 0 Judicial Decisions 0 Administrative rules and regulations I FDA etc Common vs Civil Law 0 Common I From England can be very old 0 Civil I Statutory system Constitutions 0 US top 0 State next 0 Then State Law Separation of Powers 0 Checks and balances so that one branch isn t more powerful than another Marbury Vs Madison 1803 o Confirms the power of the courts to declare laws constitutional or unconstitutional Legislation 0 Statutes I Laws passed by government or state congress I What if a statute is written very poorly 0 Safe Haven Law protects the mother with a child who wants to leave the child in the hospital 0 In Nebraska they said that any child could be given up in the same way 0 Parents take there 17 year old to the hospital and leave it there 0 Courts have a lot of tools to use to figure out what to do I Stare Decisis 0 Stand by the decision Other courts stand by one courts decision 0 Gives us more certainty equality and makes the judges job much easier I Res Iudipata o The thing has been decided 0 Plaintiff can t sue a defendant twice I Law of Case 0 Ordinances I Law passed by the county 0 Code Con icts of Law 0 2 or 3 different states involved Florida resident crashes with Georgia resident in Alabama I Alabama law applies location where things occur is where law is applied 0 Contracts can be different I Law of the state where the contract was made might apply I Could apply where the most significant place of the contract occurs I Contractual Parties might agree to allow Delaware Law to apply Daleo Case 0 O O O 33 year old man the is in vegetative state because a surgery went wrong Wife wants to terminate The court holding is that he may not be terminated Not ethical because doctors say that he s not terminally ill just needs a feeding tube The court decides for the legislature to make the decision instead of their own decision and there is no will so couldn t do anything LOOK UP SLIDES FOR FISRT AND SECOND DAY OF CLASS CLASS 3 THE COURT SYSTEM Law and Ethics not the same 0 Not everything that is lawful is ethical Trial judges o Oversees the litigation process 0 O 0 Must avoid appearance ofimpropriety Should rescue themselves in any controversy in which they or near relatives have an interest Must not be swayed by public opinion or personal popularity or be apprehensive of unjust criticism Reviewing Court judges and justices look at law 0 O Jury O O O O O O 0 Each decision becomes precedent to some degree a part of the common law The legal opinions of reviewing judges affects society as a whole not just the litigants involved job is to ascertain facts 6th and 7th amendments of US Constitution guarantee the right of a trial by jury by both criminal and civil cases I Civil cases must exceed 20 dollars Indictment I A grand jury s finding that it has probable cause to believe there is sufficient evidence to require that the accused by tried and that informs the accused of the offence with which he or she is charged so the accused may prepare a defense juries can consist of either 12 or 6 people Most states require a jury s verdict to be unanimous Ifyou refuse to serve on jury duty you can be found in contempt of court Subpoena Ad Testifacondum The State Structure 0 0 US judicial system is a dual system state and federal 3 levels of court I Trial appellate and supreme o Iurisdiction I The court s power or authority to conduct trials and decide cases 0 General Iurisdiction I Courts have the power to hear almost and type of case 0 Limited Iurisdiction I Courts that are only allowed to hear certain types of cases Small claims court only 5000 or less for example The Florida court system 0 Florida Supreme Court I 7 justices in Tallahassee 0 Florida district courts of appeal I 5 districts 0 Circuit courts I 20 circuits Federal Structure 0 US supreme court created by constitution o 12 US Circuit courts of appeal 0 Special Courts of Appeal I United states claims court US court oprpeals for the Armed Forces Federal District Courts 0 Trial courts for the Federal system 0 Criminal actions I Originally only for states 0 Civil actions I Must be over 75000 dollars I Diversity of Citizenship 0 Suits between different states I Defendants right of removal 0 The defendant has the right to remove the case from state to federal court I Corporations and Diversity urisdiction 0 Citizen ofboth the state where incorporated and the state in which it has its principal place of business I Federal Question Iurisdiction 0 Must be a problem from federal law or US constitution The Law in Federal Courts 0 Federal procedural law 0 Constitution treaties etc federal substantive law is used 0 Federal courts use the substantive law including con ict of laws principles of the state in which they are sitting Federal courts are bound by the state precedent in diversity of citizenship cases con icts oflaws was discussed in chapter 1 Law and Equity 0 Historic distinction Courts of Law and Courts of Equity or Chancery o Remedy for Court of Law was legal remedy money damages and Court of Equity was an equitable remedy rescission of contracts injunctions and specific performance on contracts 0 Generally there is no right to a jury trial of an equitable action 0 Decisions ofa court and Equity is called a decree o Decree can be final or interlocutory Equitable Maxims o Courts of Equity use maXims instead of strict rules of law to decide case Equitable causes ofaction EXAM QUESTION Paul a citizen of Georgia was crossing a street in New Orleans when he was struck by a car driven by David a citizen of Texas The car was owned by David39s employer a Delaware corporation which has a principal place of business in Atlanta Georgia Paul sues both David and the corporation in the federal district court of New Orleans Paul39s complaint alleges damages in the amount of 100000 Does this court have jurisdiction Why or why not Answer No there39s not complete diversity Paul from Georgia and company has Georgia CLASS 4 Litigation Parties 0 Trial Stage I Plaintiff I Defendant I Third party defendant 0 Appeal Stage I Appellant I Appellee LOOK AT NOTES StandingReal Parties in Interest 0 Standing to sue I Plaintiff must have been or will be directly and personally injured by the Defendant s action I There must be some threatened or actual injury resulting form the Defendants action Iurisdiction Generalized Grievances harm alone doesn not typically grant standing to sue Class Action Suit 0 Person files suit on his or her own behalf and on behalf of all persons who may have a similar claim 0 Requirements Numerosity o Typicality o Commonality o Adequacy Real Party in Interest Florida Rule of Ciil Procedure Rule 1210 a O 0 Florida Long Arm Statutes Nonresident IndividualsCorporation 0 Must have minimum contacts with that state As long as the maintenance of the suit does not offend traditional notion of fair play and substantial justice Registered with the state as a corporation or carrying on business in the state or committing a tortuous act in the state under the jurisdiction of the state 0 Tough Case Butler vs Beer Across America 0 Courts found that minimum contacts were not met Very tricky for the internet PreTrial Stages ofa Lawsuit o Pleadings Default Iudgment in Answer andor motion not filed by Defendant after service Complaint 0 Statement of facts Answer 0 Pleading filed by Defendant responding to the Plaintiff Complaint Counter Claim Default Iudgment o Motions Attacking Pleadings Motion to Dismiss 0 Facts aren t sufficient 0 Discovery Interrogatories 0 Written questions directed only to a Party which are answered under oath Requests for Production ofDocuments o Directed only to parties asking for documents to see I Requests for Admission very serious 0 Asks for admissions or denials of facts under oath can be served only to a party basically a yes or no I Deposition 0 Oral questioning under oath Parties and NonParties may be deposed o PreTrial conference and pretrial motions I Pretrial conference 0 Often set by court before trial in order to discuss the possibility of settlement and also to discuss trial procedure I Motion for judgment the pleadings o Examines PLEADINGS to determine if genuine issue of material fact remains Ifnot the Court can enter judgment to a party as a matter of law 0 Basically motion to dismiss I Motion for Summary judgment 0 Summary judgment is granted ifa genuine issue of material fact does not remain and the moving party is entitled to judgment as a matter oflaw Evidence outside the pleadings CAN and OFTER is presented at a hearing 0 Dangers ofDEFAULT I The WYANT CASE 0 Facts 0 A party has not filed an answer within thirty days 0 Filed motion to vacate I Denied 0 Basically they did not file in time so they got screwed TRIAL 0 Trial and posttrial I jury selection 0 First Step Summoning ofpotential jurors Venire panel of potential jurors 0 Next Step Voir Dire Process of questioning prospective jurors to determine their qualifications and biases o Peremptory Challenges Objection ofpotential juror cannot be used to exclude a potential juror on the bias of race or gender 0 Florida Rule entitled to 3 peremptory challenges to exclude jurors for no explanation I Trialevidence ofproof 0 Opening Statements 0 Attorneys both make opening statements 0 Plaintiff s presentation of evidence 0 Direct examination of witnesses cant ask leading questions 0 Crossexamination opposing attorney allowed to examine same witness o Redirect examination back to the first attorney 0 Recross examination back to the cross examiner 0 Rules of Evidence 0 Govern admissibility of testimony and prohibits and establish which facts may be presented to the jury o Burdens of ProofPersuasion o 3 levelsstandards I Beyond reasonable doubt criminal attorney has to establish that the defendant is guilty of the crime charged and has no reasonable doubt about the guilt o Preponderance of the Evidence civil I A party must convince a jury that the facts are 51 one way 0 Clear and Convincing civil I Situation where the law requires proofmore than the preponderance of the evidence but less than proofbeyond reasonable doubt I Motions during trial 0 Motion for directed verdict 0 After plaintiff rests the case A directed verdict is a decision by the judge that the jury must decide as a matter oflaw in favor of one party against another 0 If the motion for Directed verdict is denied then the defendant presents his or her case At the conclusion ofpresentation ofboth parties evidence either party or both of them may make a motion for directed verdict I jury instructions 0 Purpose oqury instruction 0 Ifit finds certain facts then verdict is for plaintiff Ifit fails then verdict for defendant 0 In some states and courts judges may make comments on the evidence while giving instructions However the court must make clear that is it the jury s duty to determine the facts of the case I Verdicts and judgment 0 Closing statements then jury deliberates o Verdict 0 Decision of a jury reported to the court on matters properly submitted to the jury for consideration 0 After the verdict is announced a judgment is entered I PostTrial motions o A party loses what are the options 0 Motion for new trial buys more time 0 Something must be very wrong with the case to get a new trial 0 Motion for judgment notwithstanding the verdict INOV o Requesting court to find that the verdict is as a matter oflaw erroneous ex Verdict based on sympathy 0 Or appeal I Appeals 0 Apellant must file a notice of appeal within 30 days following the entry ofjudgment or entry of an order ruling upon a motion for New Trial or for Rehearing o Apellant must file a supersedeas bond within 10 days after following a notice of appeal guaranteeing payment of costs that may be charged against him on the appeal 0 Transcript 0 Must be filed with the clerk or court within a specified time after perfection of the appeal This includes the bill of exceptions 0 After docketing of the appeal prepare a brief which contains a statement of the case assignment of errors and legal authoritiesargument for the court Typically prepares a brief for the court as well I Decisions of the appellant court 0 Affirm the district court 0 Reverse the court below 0 Remand the case to the court below for new trial I Review Questions LOOK UP CLASS 6 LITIGATION PART 3 0 Reasons to Settle I Personal 0 Dislike trouble publicity and fear going to trial I Economic o Lawsuits are expensive 0 Public image and goodwill of customers 0 Iuries are sympathetic to individuals against corporations or insurance companies I Obligations of Lawyers 0 Most inquiries for legal advice result in settlement without litigation 0 Most litigation results in settlement prior to trial 0 Many lawyers are hired to negotiate their clients dispute not litigate the dispute o Mediation I The process of involving a third party s efforts to help disputing parties reach a settlement Mediator has no decision making authority parties have to consent to settlement Laws and courts require mediation either prior to filing suit or prior to setting a trial Some give trial judges the discretion to order cases to mediation I Congress favors mediation I A court may require mediation before trial Arbitration Advantages o The procedure is used as an alternative to litigation to submit a dispute to one or more third parties who have authority to impose a resolution to the dispute 0 Advantages I Quicker and less expensive I Less hostility and litigation I Less formality than a trial I Courts like it because it decreases the caseload for the system I Complex issues can be submitted to an arbitrator that is an expert on the issue being litigated judges are rarely experts on the issue I Commercial arbitration clauses are very common in contracts corporation or insurance companies prefer them because ofless sympathy 0 Many state laws and rules of procedure require arbitration before litigation or before trial 0 Types ofArbitration Systems I Common law arbitration systems very few states I States with laws that cover only the enforcement of awards but agreements to arbitrate are revocable few states I States with comprehensive laws regarding all aspects of submission the award and the enforcement of arbitration Majority of states I Some states make the statutory methodrequirements of arbitration the exclusive methodprocedure allowed 0 General Aspects of Arbitration I Voluntary arbitration requires written agreement to arbitrate I Require submission within a stated time after dispute 0 Usually six months I Fraud mutual mistake or lack of capacity would be grounds for avoiding arbitration contracts I Revocation by operation of law is provided for also on the death bankruptcy or insanity or a party or by destruction of the subject matter of the agreement I Parties may waive their right to demand arbitration o The Submission I The act of submitting the dispute to arbitration Factual legal or both are the issues Power determined by arbitration clause Parties must specifically demand their right to arbitration when a problem arises o The award Decision by the arbitrator Binding on all issues may be judicially enforced Every presumption by a court reviewing an award is in favor of the validity of arbitration award When the submission does not restrict arbitrators to decide according to principles oflaw they may make an award according to their own notion ofjustice without regard to the law 0 Procedures in Arbitration Hearings Notice of time and place ofhearing Testimony and evidence given at hearing Arbitrator makes decision No formal pleadings or motions and strict rules of evidence used in trials are not followed Arbitrators are sole an final judges or the evidence and the weight to be given the evidence Arbitrators must act fairly and impartially 0 Judicial Action is necessary when Illegal crap going down 0 ARMENDEZ V FOUNDATION HEALTH PYSCHCARE SERVICES They are fired and sue for wrongful termination They signed an arbitration clause Supreme Court of California Decided o I don t understand lol REVIEW QUESTIONS Crap CLASS 7 CONSTITUTIONAL LAW 0 Concept of Federalism 0 Two forms of government state and federal Purposes of the Federal constituion I Provides and limits power Separation of Power I Article 1 Legislative Article 2 Executive Article 3 Judicial System of Checks and Balances First president impeached o ANDREW JOHNSON Nature of Federalism Because the Articles of Confederation sucked Distribution ofpowers 0 Federal Enumerated Powers 0 Limited to those enumerated in the constitution o Tenth amendment I Provides that those powers quotnot delegated to the US by the constitution nor prohibited by the states are reserved to the states respectively or to the people 0 State police powers 0 Public safety health welfare morals Gay Marriage 0 Concurrent Powers 0 Both state and federal The ability to taX a business and the power of a government to spend money 0 Relationships among the states 0 Article 4 Section 2 PRIVILAGES AND IMMUNITIES A citizen who engages in important activities in another state are entitled to treatment the same as their own state Activities Covered Seeking employment in another state entering into contracts another state using the courts of another state Only FUNDAMENTAL rights involving commercial activities and civil liberties are protected 0 Nonresidents may be treated differently only is substantial reason exists 0 FULL FAITH AND CREDIT CLAUSE I Property deeds contracts and other legal documents will be recognized in all states 0 Commerce Clause 0 Grants power to congress to regulate interstate commerce I Also can regulate intrastate within state commerce is it substantially affects commerce in other states 0 Congress has gone back and fourth on how conservatively they re going to view this clause 0 Latest is to be a bit more conservative o quotDormantquot Commerce Clause 0 A state can regulate local aspects ofinterstate commerce but must not discriminate or unduly burden interstate commerce I Mud Flaps in Kentucky example 0 0 Heart ofAtlanta Motel vs United States 1964 What are the facts of this case o The motel discriminates against black people civil rights act takes that away They argue that s a violation of the law 75 of residents come from out of state 0 US argues that the unavailability for black people interferes with interstate commerce o The COURT HOLDS 0 That the civil rights act of 1964 is constitutional under the commerce clause 0 Supremacy Clause I The constitution treaties and federal laws take precedence over state laws 0 Doctrine of Preemption I State law is preempted by federal law is intended to by the exclusive law in the area 0 Basically means state first if states are the exclusive authority in that area 0 Where Congress is Silent I This presents a difficult case courts must attempt then to discern the intent of the congress TEST 2 CLASS 10 CRIMINAL LAW PART ONE Terminology 0 Conduct is criminal because a legislative body has declared it to be wrongful Malum in se crimes which are per se wrongful Malum Prohibitum Crimes created by legislature Prosecution word used to describe criminal proceedings Prosecutor name of attorney who represents quotthe people Crimes are against society as a whole I Things like returning stolen property payment for damages are not defenses to criminal conduct Its against society as a whole 0 Burden of Proof I BEYOND A REASONABLE DOUBT Classification of Crimes 0 One way is to figure out the purpose for which the conduct is prohibited by society protection ofprop sexual abuse etc 0 Second method I Classified by the penalty the country can impose on the wrongdoer Traditionally these have been classified by treason felonies and misdemeanors OOOOO o Felonies I Aggrivated assult arson bribery burglary embezzlement forgery kidnapping larceny manslaughter mayhem murder price fixing o Misdemeanors I Battery disorderly conduct gambling larceny prostitution public disturbance simple assault traffic offences trespass Business Crimes o Larceny Embezzlement False Pretense o Larceny I A quottakingquot obtaining control I And carrying away I Of tangible personal property I Of another with possession I By trespass I With intent to permanently deprive that person ofher interest of the property 0 Embezzlement I The fraudulent I Conversion I Ofa personal property 0 False Pretenses I Obtaining title to personal property of another with intent to defraud EXAMPLE George persuades Stan to loan him his Maserati for a day then converts it to his own use 0 Its EMBEZZLEMENT if the initial taking is not trespassory 0 Its LARCENY if Stan did not allow him but he took it anyway 0 Its FALSE PRETENSES if George not only takes the car but obtains title to the car by persuading Stan to give it to him based on a lie like saying he was going to give it to charity or something Civil Damages Suits 0 Victims ofa crime often seek to recover damages in civil lawsuits I Sherman antitrust act 0 If there s pricefixing people recover damages 0 RICO Racketeer In uenced and Corrupt Organizations Act of 1970 I Combats organized crime I Ifa company has committed crimes twice in 10 year period of quotracketeering activities I Allows private parties to file suits for TRIPLE damages 0 Under RICO it s a crime to I Use income obtained from any racketeering activity in commercial enterprises I Acquire an interest through racketeering I Conduct or participate in any affairs I Conspire to do any of the preceding activities Essential elements 0 As a general rule crime involves a combination of an act and intent o Ifoe communicates his crime idea to someone else who agrees to assist him this would be a conspiracy 0 Remember I Some crimes are specific intent crimes Must be proved beyond a reasonable doubt o Larceny Embezzlement and False Pretenses are all specific intent crimes 0 Some crimes are strict liability doesn t matter what the mental state I Typically misdemeanor I EX 0 Selling to under aged person Even though he didn t know its still is a misdemeanor CapacityMinors 0 Common law Minors under the age of 7 were conclusively presumed to lack sufficient mental capacity to form criminal intent 0 Those 714 were subject to a rebuttable presumption they could have capacity but the presumption could be overcome by proof of lack of mental capacity 0 Those over 14 were presumed to be capable of committing a crime 0 Today I Many states have changed the ages by statute and have specific juvenile courts which handle crimes involving minors typically those under 18 I However some states do allow the prosecution to prosecute a minor as an adult for certain serious crimes such as murder or rape Corporate Liability Defenses to Criminal Prosecution o Entrapment I When the intent originates from the police Example police asked someone where to find weed o Immunity from Prosecution I Testify for them they grant immunity 0 Insanity I They could not be guilty ofa crime because ofmental capacity I Right from Wrong test M Naghten o If the accused can understand the nature and consequences of an act and the ability to distinguish right from wrong Irresistible Impulse test 0 Is accused is possessed of irresistible impulse to do what is wrong quotThe Devil Made me Do IT I Durham rule 0 Accused is not criminally responsible if his or her act was the product ofa mental disease or defect I Intoxication o Voluntarily becoming intoxicated is generally not a good defense But if it s a specific intent crime it might change the specific intent part 0 Ignorance oflaw is no defense Constitutionalprotections O O 0 Not absolute Vary over time Balance constitutional protections against other legitimate policies of society 4th Amendment 0 O O protects against unreasonable searches and seizures Gotta have a warrant you have a legitimate expectation of privacy I NO EXPECTATION OF PRIVACY 0 Sound ofvoice o Handwriting 0 Paint on outside of vehicle 0 Account bank records 0 Smell of things 0 Land visible from public place Consent I Warrantless searches are valid if the police have a voluntary and intelligent consent Stop and Frisk I Police officer may stop a person without probable cause for arrest if he she has an articulable and reasonable suspicion of criminal activity Hot Pursuit I They can chase a felon even through private homes Other valid searches I Searches of airline passengers prior to boarding I Searches ofparolees Exclusionary Rule I File motion to suppress evidence keeps things police illegally obtained cannot be used at trial I Exception o Seized evidence can be used at trial as long as the police acted in good faith and used a warrant that they believed was properly valid I Kyllo V United States 0 Thermal imaging device by police before warrant to figure out the temperature inside the room to figure out if high profile marijuana was being made 0 Motion to suppress evidence filed court denies and they appeal 0 Supreme court rules that they cannot use it not in general public use 5th amendment 0 Right against compulsory selfincrimination o Broad application I Prosecutor cannot comment on the failure of a defendant to explain evidence within his or her knowledge Court cannot tell jury that silence is evidence of guilt Attorney may not be disbarred for claiming his or her privilege at a judicial inquiry just as police may not be fired for claiming the privilege before the grand jury All court procedures must be fundamentally fair Requires indictment by a grand jury for a capital offense or infamous crime Prohibition against double jeopardy 0 Limitations I Drunk drivers have to take breath test I Corporation records are not protected and the custodian of records of a corporation cannot refuse to produce them if they receive a subpoena 6th Amendment 0 Right to a speedy trial 0 Right to a trial by jury 0 Right to public trial 0 Right to attorney 8th Amendment 0 Excessive bail shall not be required nor excessive fines nor cruel and unusual punishment At one time death penalty was declared by supreme court that it violated the 8th amendment 0 However greg v Georgia overturned CLASS 12 INTENTIONAL TORTS Torts o Wrongful act committed by one person against another person or his property The breach of a legal duty imposed by law other than by contract Compensate Plaintiff s for their lawsuits Types ofTorts o Intentional I Intentional injury 0 Negligence I Requires fault by unreasonable running of a foreseeable risk 0 Strict Liability I Without fault still responsible usually products Damages o Compensatory Damages easily calculated I A sum of money the court imposes for the plaintiff by a breach ofa legal duty Can be economic or noneconomic I quotPain and Suffering O 0 Can t play baseball with your kid 0 Loss of ability to have sex etc 0 Can t mow the lawn o Punitive Damages exemplary damages I Damages imposed to punish defendants for committing intentional torts and in some states in negligence if the defendants conduct is quotgrossly negligent or actions are willful and wanton and consciously disregard the interests of others 0 Boss excessive screaming at employees 0 Persons Liable I Ever person legally responsible for his own torts I Joint and Several Liability 0 2 or more persons jointly commit a tort 0 Each defendant is equally at fault crazy law I Comparative Fault o 1 at fault they pay 1 replaces joint and several liability I Children may have liability o 7 or under cant have liability 0 710 or 714 some states have statutes which presume children are incapable ofnegligence but that can be rebutted above 14 liable I Parents 0 Typically not responsible for the torts of their children However under family purpose doctrine when parents car for the family any member of the family who uses it is presumed as the owner s agent and thus the owner is responsible for the negligence of the family members 0 4 general types of torts I interferance with personal freedom 0 assult false impisonment internional in iction of emotional distress I property rights trespass I economic relations I wrongful communication defamation o Assult I Intentional causing of an apprehension of harmful or offensive contact I Example 0 Points an unloaded pistol at someone is assult 0 Battery I Intentional in iction of a harmful of offensive bodily contact I Example 0 Some dude kisses a girl while shes sleeping 0 False Imprisonment I Intentional in iction ofa confinement Intentional in iction of emotional distress O O O O O I Intentional or reckless in iction by extreme and outrageous conduct that causes severe emotional distress Tresspass to land I When the defendant enters on someones land or causes another person to enter the land even without harm exception to damage rule Trespas to chattle I Any intentional interference with a person s use or possession of a chattle thing I Even innocent mistake creates liability Conversion I Defendant substantially interferes with possessions that it is fair to require defendant to pay the property s full value more severe Nuisance I Interferance with a right common to the general public I Private 0 Unreasonable interference of the plaintiffs use and enjoyment of his land I Public Injurious Falsehood Disparagement I Protects the plaintiff aginst certain false statements made against business product or property 0 Plaintiff mush show that the defendant made a false statement disparaging the Plaintiff s goods business etc Statement was quotpublishedquot and must show specific damages and intent to make statement false Interference with contract I One who induces another to breach a contract with a plaintiff o Targeting another company s customers by general advertising does not constitute interference with contract Interference with Prospective Advantage I Suppose that through the defendants interference the plaintiffloses not existing contract but the benefits of the prospective potential contracts or other relationships 0 Must be wrongful 0 General Advertising is not wrong Defamation Libel and Slander I Defamation requires 0 False statement 0 Published passed on to 3ml party 0 Ones reputation is harmed by the statement 0 Plaintiffis damaged as a result I Slander ORAL I Libel WRITTEN Public figures have to prove malice to collect damages politicians celebs etc 4 Types you don t have to show actual damage Imputing commission ofa crime of moral turpitude rape or something The presence ofa loathsome disease STD Unfitness relating to the conduct of a business trade profession or office accusing of alcoholic or something Accusing a female ofbeing unchaste saying their not a virgin when not true 0 Invasion of Privacy Various aspects ofa plaintiffs quotright to be let alone 4 general types CLASS 13 Appropriation of a Person s identity 0 Using a person s photograph for commercial purposes Intrusion into ones privacy 0 Newspaper of magazine stories about ones private life Public Disclosure of Private Facts 0 Aweb site s disclosure ofa private citizen s financial condition or seX life I Celebrities is different False Light 0 Information is posted in a blog that is false but also highly objectionable often attributing a belief or position that the person does not hold 0 Negligence Faliure to exercise due care Duty Breach Legal dute concept that a person must meet certain standards of conduct to protect others against unreasonable risks 0 Landowner has a duty to make the premises reasonably safe for business visitors 0 Legal right corresponds with legal duties There is no duty to rescue unless your qualified to do so aka a doctor or nurse Causation Cause in Fact 0 Must show a causeeffect relationship 0 Courts ask I Did defendants conduct actually cause harm I But for defendant s negligence would plaintiff have been injured O O I Was the plaintiff injured because of an action of the defendantquot 0 Proximate Cause LEGAL CAUSE o The act or omission complained of must be close enough to the injury or damage in order for the law to allow recovery for the negligence 0 Limited to immediate or foreseeable harm I Heart attack died when heard of car accident but the one who causes accident cant recover for the loss because it wasn t foreseeable o BUT if the person was watching the accident and had a heart attack it may be possible because she s so close 0 Forseeability o Palsgrafv long island I Employee tried to help the plaintiff on the train but ended up injuring him because his package had fireworks which exploded and hurt plaintiff 0 Employee didn t know there was fireworks so she wasn t negligent o Lawnmower had no guard or shield I Grandpa is mowing and piece of rock ies out and hits the kid in the eye rest of his life can t see normally I Is this injury foreseeable for someone sixty feet away I Some states say yes some say no Kind of5050 I Damages Reasonable Person Test I Negligence presumews a uniform standard of behavior Thos standard is that of a reasonable prudent person using ordinary care and skill I quotWhat would a reasonable person do Degrees of Negligence I The greater the risk the higher the duty owed to others I Slight Negligence failure to use great care I Ordinary Negligence Failure to use ordinary care I Gross Negligence Failure to exercise even the slightest care Professional Negligence I NOT subject to the reasonableperson standard I The knowledge skill and judgment usually possessed by members of that same profession in that community RES IPSA LOQUITOR I The thing speaks for itself creates rebuttal presumption that a defendant is negligent o Neglig 0 Used in cases where injury would not have occurred unless someone was negligent and the defendant is on the only logical one that could have responsibility 0 Doctor left instrument in someone s body ence Per Se A person is negligent including situations where one acts of fails to act where the actor violates a statute or ordinance that gives rise to the injury Breaks the law causes injury Plaintiff must prove that The Plaintiffis within the class ofpersons intended to be protected by the statute The plaintiff suffers the type of harm the statute was intended to prevent The breach of the statute caused the injury 0 Defenses o REVIE Contributory Negligence Early doctrine bars plaintiffs from recovery if the Plaintiff is at all at fault contributed to the injury Any fault from plaintiff they get nothing Most states abolished Comparative Fault The plaintiff s contribution of fault does not bar recovery it is just compared with the fault of the defendant Modified Comparative Fault some states prlaintiffis less than 50 they can recover the amount that the defendant is at fault Pure Comparative Fault some states Can recover even if its greater fault than the defendant Even if plaintiffis 95 responsible the plaintiff can still receive 5 compensation Assumption of Risk Where plaintiff voluntarily assumes a known risk Requires defendant to show 0 Plaintiff knew of the risk and voluntary agreed to assume it W Q s Barb the doc C umps sally A BOB injured in car accident D Ed and Fran park C john b O Plaintiff while a patron in a resturant was shot by an armed robber the robber was angry because the cashier locked the register and ed Is the defendant resturant liable for negligence why 0 No its not foreseeable Ann sued grocery store for injuries 0 What defense will the store assert 0 Comparative fault o The plaintiff saw the wet oor sign and proceeds anyways Plaintiffinjured in automobile accident caused entirely by defendant but plaintiffwas not wearing a seatbelt If he was wearing it he wouldn t have own out 0 Will reduce damages Montana tavern served beer to Michael who was already intoxicated He admitted that his speech was think and staggering Later plaintiff died in accident rule says not serving to intoxicated people 0 The tavern IS liable ON THE EXAM FOR SURE o Barb accuses ken of committing an assault A person commits and assault if he ors I he creates in another apprehension or fear of A future harm B immediate harm C Past harm D past present or future ANSWER IS B Class 14 Strict Liability 0 Strict Liability Defendant are held liable irrespective of fault 0 Early Cases 0 Owners of dangerous animals such as bears and lions were strictly liable for any damages those animals cause Liability then extended into abnormally dangerous activities then most recently products liability Most r Abnormally dangerous Fireworks gas tanks nuclear yes Crop dusting crop spraying yes Airplane Accidents Usually no Running of nuclear reactor yes Toxic Chemical and ammable liquids maybe some courts say its not that unusual ecently PRODUCTS Liability Restatement of Torts 40 2A o Restat 0 one who sells any product in a defective or unreasonably dangerous hasn t been modified by plaintiff and show damage ement of third of torts Categorizes 3 types ofdefects manufacturing defects design defects and warning defects Manufacturing Chain on a bike not assembled correctly Does not have to show that it is unreasonably dangerous Keeping the manufacturers on their toes O O 0 Design 0 Plaintiff must show design is unreasonable and a feasible alternative design some form ofnegligence Instructions and Warning 0 Must be reasonable and foreseeable some form ofnegligence o Defenses Comparative Fault is a defense that is available in cases involving strict liability Consumer has entitled to believe that the product will do the job for which it was built State of the art Product was manufactured according to the best and latest technology available 0 More ofa defense for negligence 0 Modern Application 0 REVIE NEXT EXAM FOOD How should defectiveness of food be measured If material in food is foreign can be strict liability But ifit s a bone in the chicken its not quotConsumer Expectation Test Most courts however have applied a test under which the food product is defective if and only ifit contains an ingredient that a reasonable consumer would not eXpect it to contain W MEDIC EQIUP and TOM o D none of the above Dandy Goods INC and Julie D Sharp products inc Tim buys a sharp blade A commonly known danger Plaintiff bought rotary power mower mowing up and down No misusing and instruction booklet has the warning Maude bought a plastic waste container lid did not fit properly she cut her hand YES defect didn t fit properly FOCUS A LOT ON THE SLIDES PRAISE IAHOVA International Business Law Ch 16 What is International Business Law 0 O O 0 Body of rules and regulations usually in the form of treaties and conventions regulating relationships between nations LAW OF CONSENT I Binding only on those who accept being bound 0 EXCEPT things like war crimes and crimes against humanity o IUS COGENS Preemptory International Business Entity I Any business entity with relationship that transcend national boundaries Home country Regulation I Laws of country where IBE has its principle place of business or is incorporated Regional Regulation I The laws of groups of nations that have banded together for a particular purpose FOR THE TEST YOU MUST KNOW THIS ON THE TEST FOR SURE SURE SURE Sharp prod inc makes and sells razorsI tim buys a sharp bladeI cts his hand while putting it in his razorI and sues for negligenceI tim will likely I LoseI because razorblades sharpness is a commonly known danger Algeria seizes the property of clear water drilling corporationI a privately owned businessI for a proper public purpose and pays the owners inst 39 This is I An expropriation KNOW INTERNATIONAL BUSINESS VOCAB WELL KNOW THE CASES WELL 0 O O Ferman case was death penalty Mexically and rose I Enchilada case Propane tank explosion AND KNOW THE DATES Class 17 Basic Principles of Agency Principle agent relationship 0 The person who acts for another is the agent the person whom the agent acts and who controls the agent is called a principle Types of Principle 0 O Disclosed Someone who is known to another party I Teacher and school Undisclosed An agent who does not reveal to a third party that he or she is working for a principle The principle works through an agent to get the deal done because he does not want the buyer to know the identity 0 Partially Disclosed Name is unknown but they know there is a principle Types of agents 0 Broker 0 Factor An agent with special limited authority to sell certain products Selling for a whole bunch of different companies Sells products of different companies Person who has possession of another s property and sells it in his or her own name 0 General Agent One who has authority to transact all the business ofa principle of a particular kind or in a particular case 0 Special Agent Authorized to act for the principle only in particular transaction or in a particular way Like a sports agent Does not have the ability to make investments or purchase property or anything 0 Independent Contractor Minors A person who exercises his or her independent judgment on the means used to accomplish the result 0 Minor may enter into contracts but of course these agreements are voidable 0 Most states have held that a contract of an agent on behalf ofa minor principal is voidable o A minor may act as an agent for an adult but any agreements that minor makes for a principal while acting within the authority of an agent are binding on the principle 0 Beware of minor powers if authority is given any agreements made within that authority is binding Requirements of Agency 0 Created in writing or orally Some states require it in writing for certain contracts within the statute of frauds 0 Power of Attorney Fiduciary An instrument authorizing another to act as ones agent or attorney in fact A power of attorney may be general or special An attorney in fact is a general POA may make financial decisions for the principle healthcare decisions etc A more special POA may be limited to healthcare decisions for example o A position of trust and confidence Duty of AGENTS Duty of loyalty 0 Agents should not undertake a business venture that competes or interferes in any manner with the principles business Duty to protect confidential information o Protecting the recipe Duty to obey instructions and remain within the scope of authority conferred 0 Car dealership cant sell particular car so he lies and rolls back the mileage on the car Sam has no duty to comply because he would be committing a crime Duty to inform 0 Agent has duty to inform principle of all facts that affect the subject matter of the agency that are obtained within the scope of employment Duty not to be negligent o The agent has a duty to act in good faith and to exercise reasonable care and diligence in performing tasks Duty to Account 0 An agent is required to keep proper records showing receipts and expenditures so a complete accounting may be rendered Duty to compensate o Duty to pay for services Duty to reimburse 0 Air fare hotel etc Duty to Indemnify o Duty to save harmless agent or servant tort losses which occur within the scope of employment I However 0 An agents liability is join and several with the principle so the employer could sue and employee who is clearly negligent This does not typically occur because general liability insurance typically covers these losses Termination by death Termination by insanity Termination by bankruptcy Destruction or illegality of subject matter Mutual agreement Unilateral action 0 One can jump out but might be a wrongful termination suit I Hires for 5 years cant be fired without cause if fired in 2 years can be sued REVIEW QUESTIONS 0 Helen retains jack to act I A binding on Helen 0 Ellen a salesperson at fine tile company I A loyalty 0 Associated investment employs bert I B loyalty 0 New World Fashions provides guidance to persons interested in entering the retail clothing business Anderson was hired as sales rep of New World I Yes while under employment he breached his duty ofloyalty o Petersons orist company I Yes duty not to be negligent on the agents behalf CLASS 18 Agency Liability Concepts 0 Actual Authority I When a principal directly give the agent instructions I Or authority that may exist which is required or reasonably necessary to carry out the purpse for which the agency was created I Express Actual Authority 0 Explicitly given to the agent through the principle s written and oral instructions I Implied Incidental Actual Authority 0 Authority is implied not as clear just makes logical sense 0 Apparent ostensible Authority I The authority that a principal leads a third party that exists when there is no actual authority granted 0 Misled by appearances I Principle must give notice of cancellation of actual authority to third parties protects third party who is unaware of principle and agent dealings o Ratification I A principle may become bound by ratifying an unauthorized contract when acting with full knowledge of all the material facts attending negotiation and execution of the contract I Ratification may be expressed or implied 0 Contract liability of principles I General rule 0 Contract is bound on the principle and on the third party 0 Undisclosed principle is also liable to a third party as long as the agent acted within his authority 0 General rule of tort liability I Agents employees and independent contractors are liable for their own torts I Employer is liable if employee is acting within the scope of their job 0 quotresp ondeat sup erior rule 0 An employer is liable to third persons for the torts of employees ifworking within the scope of their employment I Issue is weather their working within their job o DECIDED BY IURY NOT LAW O O o ON EXAM 0 Several Factors 0 Nature of employment The right of control Ownership ofinstrumentality Furnished by employment Whether authorized 0 Time of occurrence during work hours I A principle proprietor employer and contractee is not as a general rule liable for the torts of an independent contractor Exceptions to respondeat superior I Frolics and detours o Frolic eXists when employee pursues personal interests which neglecting the employers business 0 Intentional torts are also an exception to the rule Independent Contractors I Has the power to control the details of the work he or she performs for an employer Respondeat superior is not generally applied I Other rule 0 Ifwork is inherently dangerous then employers can be liable under respondeat superior The basis of this rule is that it would be contrary to public policy to allow one engaged in such an activity to avoid liability OOOO REVIEW QUESTIONS 0 O O O 0 Dana an agent for evan signs agreement I A liable because Dana s knowledge is assumed to be known by Evan Regional products inc hires Sam I B indemnification Lynn may hire employees to work in the I D implied authority Phil is an agent for Quality Products Corporation I A apparent authority Ted an agent for umbrella I B Void Carl hires Diane to act as his agent I C Undisclosed Principle Iim applied for health insurance coverage with great American I No idea Kapp authorized schlad I Issue of apparent authority so Kapp is liable but he can sue Schlad Ioiner employed independent contractor I The argument does have merit because it is a dangerous substance there is liability on the employer TEST 3 10 Q s ch 26 10 Q s ch 27 Rest on Contracts Employment and Labor Law Employment at will 0 Employee can quit at any time for any reason 0 Employer can terminate the employee for the same Other forms of employment 0 Express agreements for a set duration 0 Employment based on existence of certain conditions Exceptions o Prevent Discimination o Exercising Legal Rights Good Cause Exception to Employment at Will Doctrine o Occurs when the employer acts in such a manner that an implied contract to terminate only for good cause is formed 0 BASED ON CONTRACT LAW ONLY On exam Factors for good cause exception 0 Policy Manual a progressive discipline policy statement 0 Duration of employment the longer an employee has worked for a companyentity the better the evidence that the good cause exception applies Awards for performance Promotions raises statement from supervisors indicating continued employment among other factors is good evidence for the good cause exception Fair Labor Standards Act of 1938 0 Child Labor I Prohibits minors under the age of 14 from working I Regulates the working conditionshours of minors aged 1418 Sets minimum wage Provides that work over 40 hours per week for hourly employees is to be compensated at time and a half Some workers are exempted from the over time requirements agricultural workers child actors executive employees professional employees and certain types of sales and computer workers Pension and Health Insurance 0 ERISA Employee Retirement Income Security Act of 1974 39 Disabilities regulates the retirement plan if created by an employer 0 Consolidated Omnibus Budget Reconciliation Act of 1985 COBRA O OO O I Provides employees may continue to receive health insurance under an employer s plan from 18 months after termination from employment 0 Family and Medical Leave Act of 1993 I If an employee worked for more than 12 months they may up to 12 weeks of unpaid leave for certain reasons birth and care of newborn medical foster kids etc The family and Medical Leave Act applies only to employers with 50 or more employees 0 Unemployment Insurance I Provided by most states but one cannot receive unemployment typically if the employee quits without good cause or is fired for egregious behavior Conditions of Employment Workers Safety 0 Occupational Safety and Health Act of 1970 OSHA I Under OSHA employer has general duty to keep workplace safe and free from recognized hazards I Employee could be fined cited or criminal liability Workers compensation 0 Present in most states injured ON THE JOB 0 Employee covered by workers comp cannot sue employer in tort 0 Workers comp does not cover the intentional actions of an employer so if the employer intentionally a worker can sue in tort 0 Can sue manufacturer for products liability 0 Does not cover agricultural workers and independent contractors Privacy 0 Employer AlcohalDrug testing I Most states allow employers to require alcohol and dug tests I Generally the ADA prohibits employers from testing applicant 0 Employer Electronic Monitoring I Generally employees have no expectation of privacy while at work So employers can monitor ones email usage at work record employee conversations etc I Employers cannot monitor bathroom Overview of Lab or Law 0 National Labor Relations Act of 1935 I Provides 3 important privileges 0 Right to organize 0 Right to collectively bargain 0 Right to strike I Prohibits employers from conducting quotunfair labor practices 0 Refusing to bargain with representatives of the employees Retailing against employees that file charges under the NLRA Discriminating against members of unions Interfering with administrations of unions Discouraging employees from forming or joining a union I NLRA does not apply to federal state or local government employees independent contractors and employees that are supervisors 0 Taft Hartley Act of 1947 I Illegal for union to refuse to bargain with an employer I Unions to engage in certain types of picketing I Discourage employees from joining a union I Encourage an employer to discriminate against an employee who is not a union member I Coordinate a secondary boycott I Promote featherbedding requiring employer to hire more employees I IMPORTANT o Allows states to pass right to work states cant force employees to join union 0 If union can get 30 of employees to sign they can request quotrepresentative election I If union wins election union becomes exclusive bargaining right 0 Job actions strikes and lockouts I Ifa union fails to reach contract 0 Job action Union sponsored activity which in designed to put pressure on the employer without a strike 0 Strike If strike is for economic purposes the NLRA allows the strike but employer can hire replacement workers 0 Lockout Employer action which is designed to encourage greater activity on the part of the union 0 Review Q s I Which federal statute requires o D OSHA I Doctors Lawyers executives and others 0 B Exempt I John who is employed by a private business 0 E all the above I Which of the following activities is permitted EMPLOYMENT LAW FILL IN Contract Law Elements 0 Agreement 0 Consideration 0 Legal capacity 0 Legal purpose consistent with law and sound public policy 2 types of contract 0 Bilateral I Promise for a promise o Unilateral I Promise for PERFORMANCE 0 When performance is on the way contract is accepted 0 Void contract I Is not a contract in the eyes of the law 0 Voidable Contract I Contract in which one or more parties have the power to end the contract 0 Minor can get out of contracts 0 Executed contract I Already a completed contract 0 Executory Contract I One yet to be performed Objective Theory of Contracts 0 Has to be a meeting of the minds both understand the terms 0 General Rule I Parties have duty to read 0 Exceptions I An emergency existed at the time of signing that would excuse the failure to read I The opposite party misled him or her by artifice of device which prevented him from reading it I A fiduciary or confidential relationship existed between parties on which he or she relied on in not reading the contract Requirements of an offer 0 Offer I Conditional promise made by the offeror to the offeree 0 Can consist of offeree I Doing something I Refrain from doing something I Promising to do something or not do something 0 Requirements for offer I Present Intention to Contract 0 Language ofpresent commitment is necessary for an offer 0 Rule 0 An offer must include words of Present commitment or undertaking Offers must be distinguished from preliminary negotiations and future intentions 0 Price Quotations 0 Generally price quotes are not considered offers However language for immediate acceptance would lead a reasonable person in the offeree s position to believe an offer has been made I Definiteness o The more definite the terms the more likely it is an offer 0 quotI will sell you any quantity ofwidgets for 5 dollars 0 not a definite amount ofwidgets contract is not valid I Proper Party 0 If addressed to a specific person 0 Leonard V Pepsico 0 Television advertisement 0 Can u get a quotHarrier Fighter for 7million Pepsi points 0 COURT HOLDS FOR PEPSI I An advertisement is not an offer 0 Termination of an Offer I Requires 0 Lapse of time 0 Rule if an offer does not stipulate how long its only open for a reasonable time 0 Time measured by when offeree gets the offer 0 Termination by operation oflaw 0 Insane 0 Or illegality after offer is made I Legal one day illegal the next 0 Rejection by the offeree 0 Self eXplanitory o Revocation by offeror 0 Any time before the offeree accepts 0 Can be direct ofindirect o Counteroffer o Reject but sends a new contract with new terms 0 MIRROR IMAGE RULE I An acceptance may be an offeree must conform exactly to the terms of the offer 0 Irrevocable offers I Options contracts 0 Selling laptop for 400 person wants to think about it and puts down 50 bucks to hold the option to keep the seller accepts they can t sell it to anyone else I Firm offers 0 Merchants dealing in goods is irrevocable without consideration I Conduct of the offense 0 When the offeree starts to perform and then stops 0 Law ofAcceptance I Acceptance
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