Business Law - Exam 2

Intentional Tort

a wrongful act that was knowingly committed

Unintentional tort

a wrongful act that was not knowingly committed

Tortfeasor

one who commits a tort

negligence

occurs when the plaintiff is injured because of defendant’s breach of a duty of care

questions needed to answer to prove negligence

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

2. did the defendant breach that duty?

3. did the plaintiff suffer a recognizable injury?

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

Duty of care

a person owes a duty of care towards those around them or who own land around them

land owners

owe a duty of care to those you invite onto your land

reasonable care

duty to act with reasonable care towards others based upon a reasonable person standard

duty of professionals

focuses on the skill set of the reasonable professional in that field and not merely the reasonable person found in society

injury requirement and damages

injury must result from damages to be awarded

causation in fact

act or omission caused the damage

proximate cause

strong enough connection to justify holding defendant responsible

Res Ipsa Loquitur

the facts speak for themselves

Negligence per se

plaintiff must prove

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

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

3. statute was designed to prevent this type of injury

assumption to risk

plaintiff entered the situation knowing the risk

intervening cause

an event that occurs after a defendant’s wrongful act but before the plaintiff’s injury

contributory negligence

under common law any contributory negligence provided by the plaintiff would prevent recovery by plaintiff

comparative neglience

the court looks at the fault of the dependent compared to the fault of the plaintiff

comparative fault

may apply to all torts in a given state & not just neglect

damage inites rescue

just because a 3rd party was negligent does not relieve the defendant of liability if he created the danger that invited rescue by a 3rd party

good Samaritan protection law

protects good Samaritans against negligence lawsuits

Dram shop acts

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

nuisance

an unreasonable interference with another property owner’s use of their property

private nuisance

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

public nuisance

defendant’s use of their property substantially interferes with a right to commonly held by the public

strict liability

courts may impose strict liability when defendant engage in severely dangerous activities

strict product liability

manufactures and distributors are held to strict liability for product defect

assault

actions intended to make another person fearful of immediate physical harm

requirements for assult

1. the defendant intentionally puts the plaintiff in fear of imminent harm

2. a reasonable person in the same situation would be fearful of imminent physical harm

3. the defendant has no permission to act

4. needs a reasonably believable threat

5. more then just words

battery

the un-consented to & intentional touching of another person which results in harmful contact or offensive contact

requirements for battery

1. defendant intentionally touched the plaintiff with an object or the defendant’s body

2. touching was unwelcome or offensive

3. a reasonable person in the same situation would find the touching harmful or offensive

4. defendant had no permission or privilege to act

defense

1. consent

2. self defense

3. defense of others

4. defense of properties

5. come with a reasonable standard

false imprisonment

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

2. cannot have a safe escape

3. may be detained by treat of physical harm but the threat must be present

defamation

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

slander

oral defamation

libel

written statement of defamation

requirements for defamation

1. defendant made a false statement about the plaintiff

2. statement was published to a 3rd party

3. plaintiff reputation was harmed as a result

defamation per se

common law has 4 false statements which require no proof of damages in order for the plaintiff to recover

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

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

3. sexually promiscuous

4. committed a criminal act

truth

cannot be used maliciously

privileged statements absolute

1. made in a trial proceeding

2. made on the floor of a legislature while debating a bill

privileged statements conditional

public figures must prove malicious intent on the part of the person making an untrue statement

slander of property

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

slander of title

defendant makes an untrue statement which causes a 3rd party to doubt the plaintiff’s ownership of the property

invasion of the right of privacy

4 different major acts constitute a violation

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

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

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

4. invades a person’s home or private papers

appropriation (right of publicity)

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

intentional infliction of emotional distress requirements

1. behavior has to be outrageous and intentional

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

trespass

occurs when a person without permission enters above or below the surface or causes something to enter above or below the surface of another’s real property

invitee

must warn of hidden risks and make hazardous situations safe

lincensee

must warn of potentially dangerous situations

danger invites rescue

dangerous situation requires action

trespass to personal property

interfering with the use of another’s personal property

conversion

the unlawful taking of another’s propety

fraud requirements

1. made a misrepresentation

2. knew of the deception

3. intended to influence the plaintiff to act or refrain from action

4. relied on the defendant’s misrepresentation

5. damaged as result

elements that must exist with wrongful interference with a contractual relationship

1. valid enforceable contract must exist between the two parties

2. defendant knew the contract existed

3. intentionally caused either of the 2 parties of the contract to breach the contract

4. plaintiff was injured

wrongful interference with a prospective business advantage

cannot engage in malicious behavior but only competitive behavior

compensatory damages

compensate plaintiff for loss suffered

special damges

costs incurred out of pocket

general damages

not calculated by a precises model but meant to compensate plaintiff

nominal damages

small amount of damages meant to establish liability

puinitive damages

meant to punish defendant to necessarily compensate plaintiff

liquidated damages

damages required by state statute and awarded in tort cases

Civil Law

Defines the relationship between citizens or between citizens & their government

criminal law

defines what a crime is

Goals of criminal law

- deterrence

- retribution

- rehabilitation

- incapacitation

criminal liability

to be guilty of a crime, you generally need both actus reus and mens rea

actus reus

a criminal or guilty act

mens rea

a criminal or guilty mind

model penal code

- purpose

- knowledge

- recklessness

- negligence

actual athority

acting with direct knowledge and permission of the corporation

apparent authority

a reasonable person would have believed that the employee was authorized by the company to act in a certain manner because of representation made by the corporation to a 3rd party

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

- 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 employee, 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

violent crimes

homicide, rape, assult

property crimes

burglary, larceny, arson, forgery

public-order crimes

intoxication, prostitution

cybercrimes

hacking, phishing

felony

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

misdemeanor

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

petty offense

in criminal law, the least serious kind of criminal offense, such as traffic or building code violation

lesser included offenses

some crimes may have different levels of seriousness

Ponzi Scheme

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

Embezzlement

a type of theft that occurs when a fiduciary is lawfully entrusted with personal property of another and the fraudulently takes or used that property for his or her own gain

theft of trafe secrets

the international taking, copying, or using another’s trade secrets with the knowledge the owner of the trade secret will be injured by such action

fraud

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

mailing fraud

using postal services

wire fraud

using phone or other electronic means of communication

bankruptcy fraud

concealing assets from bankruptcy proceedings

perjury

telling an untruth while under oath to tell the truth

insider trading

the purchase of sale of securities on the basis of inside information

tipper

the person who gives tips

tippee

person who gets tipsbr

bribery

bribing a public offical

rules of bribery

- needs intent

- anything of value can be offered

- crime occurs at the time the bribe is offered

foreign corrupt practices act of 1977

made it a crime to bribe foreign officials to gain a business advantage

money laudering

transferring illegally obtained money through legitimate people or accounts so that its original source cannot be traced

RICO (racketeer influenced and corrupt organizations act)

enables prosecution of criminal organization “bossed: for the crimes of their subordinates

property crimes

theft crimes involve a defendant either taking the property of another or 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 with the intent to commit a felony