ACCT 2150 Exam 2

civil law standard of proof

preponderance of evidence

criminal law standard of proof

beyond a reasonable doubt

intentional tort

knowingly committing a wrongful act

unintentional tort

not knowingly committing a wrongful act

tortfeasor

one who commits a tort

cyber tort

tort committed online

negligence (unintentional) questions - must prove at least 1

1. 1. did the defendant owe the plaintiff a duty of care?

2. 2. did the defendant breach that duty?

3. 3. did the plaintiff suffer a recognizable injury?

4. 4. was the defendant’s breach the factual and proximate cause of the plaintiff’s injury?

legal injury

rises above a certain legal threshold

duty of care

legal or moral obligation to take reasonable care to avoid acts or omissions that could foreseeably harm other people or their property

attractive nuisance

potentially dangerous object that could attract others (usually children)

reasonable care

level of caution, prudence, and attention that an ordinary, rational person (reasonable person) would use under the same or similar circumstances

duty of professionals

responsibility of professionals to exercise due care, make informed decisions, and apply their specialized skills responsibly

malpractice

claim asserted against a professional for injuries a plaintiff sustains because the defendant failed to exercise the appropriate standard of care required in their profession

causation in fact

“but for” a certain event there would not have been an injury

“but for”

test explains if injury would or wouldn’t have happened if event didn’t happen

proximate cause (legal causation)

there is a strong enough connection to justify holding the defendant responsible

res ipsa loquitur

the facts speak for themselves

negligence per se

violation of the law

3 things to prove negligence per se

1. 1. plaintiff was owed a duty of care under a statue

2. 2. the defendant committed the conduct prohibited by the statue in question

3. 3. statue was designed to prevent this type of injury

defenses to negligence

assumption of risk & intervening cause

assumption of risk

plaintiff entered the situation knowing the risks

2 things the defense needs to show for assumption of risk

1. 1. plaintiff knew of the risk

2. 2. plaintiff assumed the risk

intervening cause

something happens that’s beyond defendant’s control

contributory negligence

if plaintiff had any part in wrongful act they don’t get anything

comparative negligence

comparing fault of plaintiff and defendant & plaintiff’s damage award reduces by amount of fault (plaintiff will get % of damages awarded)

danger invites rescue

a negligent third party does not relieve the defendant of liability if he created the danger that invited rescue by a third party

good samaritan protection laws

1. 1. good samaritan can sue negligent person

2. 2. can protect good samaritan from being sued

dram shop acts

plaintiff injured by an intoxicated tortfeasor to sue the establishment that negligently served too much alcohol

nuisance

unreasonable interference with property owner’s use of the property

private nuisance

defendant’s use of their property interferes the plaintiff’s use of their property

public nuisance

defendant’s use of their property substantially interferes with the public

strict liability

manufacturers and distributors are held to strict liability for product defects

fireman’s rule

limits first responders ability to collect tort damages from person who caused original danger

indemnification agreement

if there’s a claim, manufacturer will help distributor with any damages

assault

actions intended to make another person fearful of immediate physical harm

battery

un-consented to and intentional touching of another person which results in harmful contact

defenses for assault and battery

consent, self-defense, defense of others, defense of property (come with reasonableness standard)

false imprisonment

intentional confinement or restraint of another person’s activities without justification

present

person can detain threat of physical harm but threat must be in the ____

defamation

wrongfully hurting a person’s good reputation by stating an untruth

slander

oral defamation

libel

written statement of defamation

3 requirements defamation plaintiff must prove

1. 1. the defendant made a false statement about the plaintiff

2. 2. the statement wsa published to a 3rd party

3. 3. the plaintiff’s reputation was harmed as a result

defamation per se

statements that are inherently harmful

4 false statements that require no proof of damages

1. 1. plaintiff is incompetent and/or immoral in the plaintiff’s business affairs

2. 2. plaintiff has a loathsome disease such as a venereal disease or leprosy

3. 3. plaintiff is sexually promiscuous

4. 4. plaintiff has committed a criminal act

defamation defenses

truth and privileged statements (absolute or conditional)

defamation by implication

truth used maliciously

absolute privileged statements

made in trial proceeding or legislature floor

conditional privileged statements

defendants’ communication was made in good faith and proper motive

slander of property

defendant makes untrue statements which decrease the value of plaintiff’s property

slander of title

defendant makes untrue statements which cause a 3rd party to doubt the plaintiff’s ownership of the property

need at least 1 of 4 acts to violate violation of right of privacy

1. 1. publishes information that places the plaintiff in a false light

2. 2. publicly discloses facts about the plaintiff that a reasonable person would find objectionable or embarrassing

3. 3. uses the likeness of the plaintiff without permission or a commercial purpose

4. 4. invades a person’s home or private papers

appropriation

use of another person’s name or likeness without their consent for the defendant’s benefit

right of publicity

protects person’s name and characteristics from being used commercially without license

intentional infliction of emotional distress requirements

1. 1. behavior has to be outrageous and intentional

2. 2. in most jurisdictions you have to prove some type of physical pain or suffering

trespass

defendant enters plaintiff’s land without permission

defenses to trespass

• - invitee: must warn of hidden risks and make hazardous situations safe

• - licensee: must warn of potentially dangerous situations

• - dangerous situation required action

trespass to real property

interfering with the use of another’s personal property

conversion

unlawful taking of another’s property

fraud requirements

1. 1. the defendant made a misrepresentation

2. 2. the defendant knew of the deception

3. 3. the defendant intended to influence the plaintiff to act or refrain from acting

4. 4. the plaintiff justifiably relied on the defendant’s misrepresentation

5. 5. the plaintiff was damaged as a result

scienter

defendant intended to influence the plaintiff to act or refrain from acting

wrongful interference with contractual relationship

person who induces another to break contract with 3rd party

4 elements needed for wrongful interference with contractual relationship

1. 1. a valid enforceable contract must exist between the two parties

2. 2. defendant knew the contract existed

3. 3. the defendant intentionally caused either of the two parties of the contract to breach the contract

4. 4. plaintiff was injured

compensatory damages

compensate plaintiff for loss suffered

special damages

costs incurred out of pocket

general damages

not calculated by a precise model but meant to compensate plaintiff

nominal damages

small amount of damages meant to establish liability

punitive damages

meant to punish defendant not necessarily compensate plaintiff

liquidated damages

damages required by state statue and awarded in tort cases

4 goals of criminal law

deterrence, retribution (eye for eye), rehabilitation, incapacitation

actus reus

criminal act

mens rea

criminal mind

corporate criminal liability

corporation can be fined or lose certain rights

actual authority

acting with the direct knowledge and permission of the corporation

apparent authority

reasonable person would have believed that the employee was authorized by the company to act in a certain manner

criminal liability for corporate officers

corporate leaders may also be subject to criminal prosecution if an employee commits a crime for the benefit of the company and

• - the officer either knows and approves of the action

• - the officer knows and does nothing to stop the action

responsible corporate officer doctrine

officers may also be criminally liable for criminal acts of employees, even if they didn’t know about the act, if he or she fails to meet their responsibility as corporate leaders to ensure compliance with the law

felony

serious crime that is punishable by death or imprisonment for more than one year

misdemeanor

lesser crime than a felony, punishable by a fine or incarceration in jail for up to one year

petty offense

least serious kind of criminal offense

merger doctrine

accused cannot be punished for a more serious offense and also for the lesser included offense

Ponzi Scheme

investment fraud that involves the payment of purported returns to existing investors from funds contributed by new investors

embezzlement

fiduciary is lawfully entrusted with personal property of another and then fraudulently takes or uses that property for his or her own gain

theft of trade secrets

intentional taking, copying, or using another’s trade secrets

fraud

knowing misrepresentation of the truth or concealment of a material fact to induce another to act to his or her detriment

types of fraud

mail fraud, wire fraud, bankruptcy fraud, perjury

insider trading

purchase or sale of securities on the basis of inside information

tipper

person who gives tip

tippee

person who gets the tip

foreign corrupt practices act

crime to bribe foreign officials to gain a business advantage

money laundering

transferring illegally obtained money

RICO

prosecution of criminal organization “bosses” for the crimes of their subordinates

theft

defendant either 1) taking the property of another or 2) interfering with their use of it

larceny

stealing tangible property with the intent to deprive the owner of the property

robbery

taking of property by force, intimidation, or threat of violence with the intent to deprive the owner of the property

burglary

breaking and entering into the dwelling house of another at nighttime

arson

malicious burning of the dwelling of another person

forgery

making or altering a writing with the intend to defraud

obtaining goods by false pretenses

intentionally misrepresenting a material fact to a person in order to persuade another to transfer property

extortion

wrongfully using a public office to obtain assets from a victim