Business Law Unit Two Exam

Chapters 8, 9, 10, & 41

tort

violation of a duty imposed by the civil law

intentional torts

harm caused by a deliberate action

defamation

false statements that harm someone’s reputation

libel

written defamation

slander

oral defamation

slander per se

when oral statements relate to criminal or sexual conduct, contagious diseases, or professional abilities, they are ASSUMED TO BE HARMFUL to one’s reputation

libel per se

when written statements relate to criminal or sexual conduct, contagious diseases, or professional abilities, they are ASSUMED TO BE HARMFUL to one’s reputation

absolute privilege

a witness testifying in a court may never be sued for defamation

false imprisonment

the intentional restraint of another person without reasonable cause and without consent

intentional infliction of emotional distress (IIED)

intentional tort in which the harm results from EXTREME and OUTRAGEOUS conduct that causes SERIOUS EMOTIONAL HARM

battery

intentional TOUCHING of another person that is harmful or offensive

assault

an act that makes a person reasonably fear an imminent battery

trespass

intentionally entering land that belongs to someone else or remaining on the land after being asked to leavec

conversion

taking or using someone’s personal property without consent (squatters)

fraud

injuring another person by deliberate deception

compensatory damages

money intended to restore a plaintiff to the position he was in

single recovery principle

requires a court to settle the matter once and for all by awarding a lump sum for past and future expenses

punitive damages

damages that are intended to punish the defendant for conduct that is extreme and outrageous

tortious interference with a contract

an intentional tort in which the defendant improperly induced a third party to breach a contract with the plaintiff. (contract is known)

tortious interference with a prospective advantage

malicious interference with a developing economic relationship

Four elements of Defamation

1. Defamatory Statement - factual statement likely to harm one’s reputation

2. Falsity - statement must be false

3. Communicated - statement must have been communicated to at least one person other than the plaintiff.

4. Injury - plaintiff must show some injury

Slander per se

when oral statements relate to criminal or sexual conduct, contagious diseases, or professional abilities, they are assumed to be harmful to the subject’s reputation

libel per se

when written statements relate to criminal or sexual conduct, contagious diseases, or professional abilities, they are assumed to be harmful to the subject’s reputation

What was the legal impact of New York Times Co. v Sullivan?

rules that a public official can win a defamation case only by proving the defendant’s ACTUAL MALICE, that the defendant knew the statement was false or acted with reckless disregard of the truth.

What was the legal impact of State Farm v Campbell?

The Due Process Clause limits excessive punitive damages. In this case in particular, the ratio was 1 million to 145 million. The appellate court remanded the case to the lower court to reduce the punitive damages.

Conditions for a tortious interference with a contract

1. contract existed between plaintiff and third party

2. defendant knew of the contract

3. defendant improperly induced the third party to breach the contract or made performance of the contract impossible

4. there was injury to the plaintiff

Conditions that allow for defense of justification

DF must prove ONE of the following:

1. it was acting to protect an existing economic interest, such as its own contract with the third party

2. it was acting in public interest

3. existing contract could be terminated at will by either party

Four elements of false advertising

1. defendant made false or misleading fact statements about its products or those of a competitor

2. statements were material and likely to influence purchasing decisions

3. defendants used statements in commercial advertising or promotion

4. statements created the likelihood of harm

licensee

person on another’s land for her own purposes but with the owner’s permission

invitee

person who has a right to enter another’s property because it is a public place or a business open to the public

res ipsa loquitur

the facts imply that the defendant’s negligence caused the accident

strict liability

branch of tort law that imposes a much higher level of liability when harm results from ultrahazardous acts or defective products

5 elements to prove for negligence

1. Duty of due care - defendant had a legal responsibility to the plaintiff

2. Breach - defendant breached her duty of care or failed to meet her legal obligations

3. Factual cause - defendant’s conduct actually caused the injury

4. Proximate cause - it was FORESEEABLE that conduct like the defendant’s might cause this type of harm

5. Damages - the plaintiff has actually been hurt or has actually suffered a measurable loss

duty of due care

each of us has a duty to behave as a reasonable person would under the circumstances

forseeability

guide to determine the extent of a person’s duty of care. If a defendant could foresee injury to a person, she has a duty to him.

Special Duty of Care: Professionals

people at work have a heightened level of duty of care. standard is that a professional must act as a reasonable person in her profession.

Lowest Liability - Trespassing Adults

trespasser is only owed a duty of care regarding gross misconduct, but not for a plain negligence claim. (can’t shoot them)

Mid-Level Liability - Trespassing Children

landowners are liable for a child’s injuries if there is anything on the property that may be reasonable expected to attract children.

Higher Liability - Licensee

landowners who have actual knowledge of a hidden danger must warn licensee of it — but not for obvious ones.

Highest Liability - Invitee

duty of reasonable care is owed. landowner is liable even for unknown or hidden dangers that causes injury.

Special Duty of Care: Universities

owe students a duty of care to protect them from violent acts on campus

Breach of Duty

shown with evidence a defendant did not meet this standard, such as arguing the defendant did not act like a reasonable person or professional, or there was a failure to warn of danger

Negligence per se

plaintiff need NOT prove breach of duty. when legislature sets a minimum standard of care for a particular group of people, and a violation of the statute injures a member of that group, this automatically establishes that the defendant breached her duty of care.

causation

it must be proven that the defendant’s breach of duty is what caused the plaintiff harm

superseding cause

an action is not foreseeable and leads to plaintiff’s injury

What does res ipsa loquitur do?

Infers causation; shifts burden of proof from the plaintiff to the defendant

damages

it must be proven that an injury or measurable loss are genuine, not speculative harm.

Name three defenses of the defendant in response to negligence claims

1. contributory negligence

2. comparative negligence

3. assumption of risk

contributory negligence

if a state follows this theory, a plaintiff who is even 1 percent negligent (at fault) will not recover from a defendant who is 99 percent at responsible.

comparative negligence

plaintiffs can recover even if they are at fault. some states will bar the plaintiff from recovery if the party is deemed more than 50 percent responsible

assumption of risk

a person who voluntarily enters a situation that has an obvious danger cannot complain if she is injured. it does not apply if someone is injured in a way that is not an inherent part of the dangerous activity.

What legal principle is utilized in Truong v. Nguyen?

assumption of risk

ultrahazardous activity

defendant engaging in an ultrahazardous activity is almost always liable for any harm that results. if an injury to a plaintiff is from ultrahazardous activity, then duty, breach, or foreseeable harm are instantly established.

Ultrahazardous activity

radioactive materials, toxic chemicals, explosives, dangerous animals, etc.

What is the legal principle utilized in the New Jersey Department of Environmental Protection?

Strict liability because the company engaged in ultrahazardous activity

negligent design

manufacturer’s poor design caused the injury, making it unreasonably unsafe

negligent manufacture

design is adequate but the failure to inspect or other careless conduct caused the product to leave the plant

failure to warn

manufacturer is liable for failing to warn the buyer or users about both dangers of normal and foreseeable misuse. there is no duty to warn for obvious dangers

What does the injured plaintiff need to prove in a strict liability case?

must show that the defendant manufactured or sold a product that was defective and that the defect caused harm. it does not matter is the user or consumer did not buy the product.

reasonable expectation of privacy

test to analyze whether privacy should be protected

third party doctrine

the fourth amendment does not protect the privacy of information that has already become public or has been shared. (including friends, banks, utilities, ISPs)

public disclosure of private facts

tort providing redress (compensation) to victims of unauthorized and embarrassing disclosures

Intrusion

tort addressing an unreasonable invasion into someone’s private space

Electronic Communications Privacy Act of 1986 (ECPA)

federal statute prohibiting unauthorized interception of, access to, or disclosure of wire and electronic communications

Wiretap Act

section of the ECPA that prohibits the interception or recording of face to face oral communications and telephone calls

Stored Communications Act

section of the ECPA that prohibits the unlawful access to stored communications, such as email

Foreign Intelligence Surveillance Act (FISA)

federal statute governing the government’s collection of foreign intelligence in the United States

revenge porn

unauthorizing posting of sexually explicit photos of another, often to embarass or shame

spam

unsolicited commercial email

Security and Data Breaches

1. phishing - attempts to fraudulently acquire data from users

2. hacking the internet of things - disrupts computers imbedded in household objects such as security cameras

3. malware - enables criminals to control computers and destroy data

4. denial-of-service attacks - shut down networks

surveillance

includes tracking individuals by IP and collecting their search and buying preferences

Constitutional Law: The Fourth Amendment

prohibits unreasonable searches and seizures by the government. must first obtain a warrant before searching anyplace where a person has a reasonable expectation of privacy

Four elements of public disclosure of private facts

plaintiff must prove ALL four

1. defendant made public disclosure

2. disclosed facts had been private

3. facts were not of legitimate concern to the public

4. disclosure is highly offensive to a reasonable person

Three elements of intrusion

plaintiff must prove ALL three

1. intentionally intruded, physically or otherwise

2. upon the solitude or seclusion of another or on his private affairs of concerns

3. in a manner highly offensive to a reasonable person.

Patent

give inventors the right to prevent others from making, using, or selling their inventions for a limited time

copyrights

gives its creator the exclusive rights to reproduce, distribute, and perform her original work for a limited time. protect the way ideas were presented, but not the ideas themselves.

fair use doctrine

permits limited use of copyrighted material without permission of the author for purposes such as criticism, comment, news reporting, scholarship, or research

moral rights

intellectual property rights protecting the creator’s personal and repetitional values, such as the right of attribution and the right to integrity

trademark

any combination of words and symbols that a business uses to identify its products or services and distinguish them from others

trade secret

a formula, device, process, method, or compilation of information that when used in business, gives the owner an advantage over competitors

design patents

1. granted to anyone who invents a new, original, and ornamental design for an article

2. last 14 years from date of issuance

3. particularly valuable for preventing knock offs that copy the look and feel of a product

plant patents

anyone who creates a new type of plant can patent it, provided that the inventor is able to reproduce it asexually (grafting)

utility patents

1. protect how an invention works

2. valid for 20 years from date of FILING APPLICATION

requirements for a utility patent

1. novel

2. nonobvious

3. useful

4. patentable subject matter

copyright term

valid until 70 years after the death of author or, in the case of works owned by a corporation, for 95 years from publication or 120 years from creation, whichever is shorter

elements to prove copyright infringement

to prove a violation, plaintiff must present evidence that the work was original and that either

1. the infringer copied the work, or

2. the infringer had access to the original and the two works are substantially similar

first sale doctrine

permits a person who owns a lawfully made copy of a copyrighted work to sell or otherwise dispose of the copy

standards of fair use

permits limited use of copyrighted material without permission of the author

1. purpose and character of the use

2. nature of the copyrighted work

3. amount and proportion of the work that is used

4. effect of the use upon the potential market

Digital Millenium Copyright Act (1998)

1. illegal to circumvent encryption or scrambling technologies that protect copyrighted works

2. illegal to distribute tools and technologies used to circumvent encryption devices

Categories unable to trademark

1. generic trademarks

2. personal names

3. geographical terms

4. deceptive terms

5. deceptive marks

6. similar to an existing mark