BUS 221 Exam 2

Tort

wrongful act that injures others

Liability

a party is liable for committing a tort if the elements of the tort can be proven

Defenses

even if the elements of the tort can be proven, there are still defenses available that can limit

Damages

money or other relief that is sought by the injured party in a tort claim

Compensatory Damages

compensates for loss/injury

Economic Damages

medical expenses, wage loss, property damage

Non-Economic Damages

pain, suffering, loss of a limb

Punitive Damages

money damages that may be awarded to a plaintiff to punish the defendant and deter future similar conduct

Intentional Torts

when the wrongful act is intentional

Transferred Intent

when a defendant intends to harm one individual, but unintentionally harms a second person

Assault

intentional threat of immediate harmful conduct (words or actions)

Battery

uninvited physical contact (no injury is required)

False Imprisonment

unlawful restraint or restriction of a person's freedom of movement

Defamation

the action of damaging the good reputation of someone; slander or libel.

Slander

the action or crime of making a false spoken statement damaging to a person's reputation.

Slander Per Se

slander involving false statements about sexual behavior, crimes, contagious diseases, and professional abilities

Libel

written defamation of a person's character, reputation, business, or property rights.

Disparagement of Property

false statement about property that causes economic damage
-ex: the kitchen has rats; the house is haunted

Slander of Quality (Trade Libel)

publication of false information about another's product, alleging that it is not what its seller claims

Slander of Title

publishing false information about legal ownership of property
-Ex: the boat that he is selling is stolen

Invasion of Privacy

revealing personal information about an individual without his or her consent

Appropriation of Identity

using a person's name, picture, likeness, or other identifiable characteristic for commercial purposes without permission

False Light

invading a person's privacy by implying something untrue about him or her

Fraudulent Misrepresentation

misrepresentation that leads another to believe in a condition that is different from the condition that actually exists

Malicious Prosecution

pursue a claim without a sufficient basis or with malice and ultimately do not prevail

Abuse of Process

improper use of legal system that results in damages

Trespass Real Property

person or thing enters or remains on land without permission

Trespass Personal Property

unlawful taking or harming of another's personal property; interference with another's right to the exclusive possession of his or her personal property.

Conversion

a civil wrong (tort) in which one converts another's property to his/her own use, which is a fancy way of saying "steals." Conversion includes treating another's goods as one's own, holding onto such property which accidentally comes into the convertor's (taker's) hands, or purposely giving the impression the assets belong to him/her.

Intentional Interference with Business Relationship

distinguish from competition

Intentional Interference With A Contractual Relationship

intentional inducement by 3rd party to breach contract

Intentional Infliction of Emotional Distress (IIED)

extreme and outrageous conduct that causes severe emotional distress to another

Negligence

wrongful act that is accidental

Comparative Fault

applies when a plaintiff is partially at fault therefore the defendants payment will be reduced (most states)

Assumption of Risk

voluntarily and knowingly subjecting oneself to danger

Contributory Negligence

completely bars the plaintiff from recovering any damages if the damage suffered is partly the plaintiff's own fault.

Intervening Cause

the defendant asserts that something beyond the defendant's control intervened to cause the plaintiff's injury

Res Ipsa Loquitur

negligence is inferred because an event occurred that would not otherwise happen unless there was negligence
-kid received perfect score on SAT because proctor wasn't watching

Negligence Per Se

an action or failure to act in violation of a statutory requirement.

Danger Invites Rescue

a wrongdoer is held culpable for ensuing rescues that cause harm

Good Samaritan Law

provides limited protection to someone who voluntarily chooses to provide first aid

Dram Shop Acts

a bar's owner or bartender may be held liable for injuries caused by a person who became intoxicated while drinking at the bar

Social Host

nonlicensed provider of alcohol, typically in a party or similar gathering.

Puffery

the legal exaggeration of praise, stopping just short of deception, lavished on a product

Agency

legal relationship between an agent and a principal where the agent acts on behalf of the principal.

Principal

delegates his authority or role to the agent to
be his/her/its representative. Maintains the right to control the scope of the relationship and the method and manner of accomplishing the directive.

Agent

acts on behalf of the principal, pursuant to
principal's directives.

Agency Relationship Examples

Investments: investor and fund manager
Real Estate: agent and seller or buyer

Independent Contractor

person who contracts with another to provide a
service or accomplish an objective and is not subject to the other's control as it relates to the methods and means of performing the service or accomplishing the objective

Independent Contractor Example

homeowner and contractor

Employee vs. Independent Contractor in Court

1. How much control can the employer exercise over the details of the work?
2. Is the worker engaged in an occupation or business distinct from that of the employer?
3. Is the work usually done under the employer's direction or by a specialist without supervision?
4. Does the employer supply the tools at the place of work?
5. For how long is the person employed?
6. What is the method of payment—by time period or at the completion of the job?
7. What degree of skill is required of the worker?

Employer Tort Liability

Respondeat Superior: employer liable for the employee's torts if committed in the course and scope of employment

Taxes

employer pays social security and unemployment for employees but not Independent Conctractor

Federal Employment Discrimination Protection Example

co-host on TV show that signed fixed length contract claimed she was fired because she got pregnant. (H) Independent Contractor so could not bring an employment discrimination suit

Ownership of Works

Independent Contractors owns the copyright to the work unless the parties contract otherwise. Employers own the copyright to the work created by an employee, called "works for hire".

Works for Hire

employer holds copyright for works performed by an employee

1976 Copyright Act

protects original works that are fixed in a tangible medium of expression

Copyright Examples

poetry, novels, movies, songs, computer software, photos, sculptures, and architecture

Agency Requirements

-mutual agreement
-principal must have contractual capacity (ability to enter into a contractual relationship)
-written agreement not required
-purpose must be legal

4 Ways to Form an Agency

agreement, ratification, estoppel, operation of law

Agreement

-express: written or oral
-implied

Ratification

principal affirms the previously unauthorized acts of an agent by word or action
-contract or obligation will not be enforcable

Operation of Law

contract is discharged by a court because it is in the best interest of society
-ex: spouses acting on the behalf of the other with respect to necessities

Estoppel

occurs when a representation of fact made by one person to another person is reasonably relied on by that person to such an extent that it would be inequitable to allow the first person to deny the truth of the representation

Agent's Duties

performance, notification, loyalty, obedience, accounting

Performance

agent must use reasonable diligence and skill
-if agent fails to perform can be sued for breach of contract (if contract) or negligence (if gratuitous)

Notification

agent must notify principal of all matters learned during agency
-notice to the agent\= notice to the principal

Accounting

make accounting of funds and property (gifts included) available to principal

Loyalty

agent must act solely for benefit of principal
-cant consider personal or third party interests

Obedience

follow principal's instructions, act in good faith

Compensation

pay agent for services rendered
-contracts can be used to address unearned sales commissions

Reimbursement and Indemnification

costs and expenses that are reasonable
-indemnify for the value of the benefit conferred and liabilities for authorized acts

Cooperation

do not impede performance
-respect exclusive territories

Safe Working Conditions

The principal is required to provide safe working premises, equipment, and conditions for all agents and employees

Disclosed

principal whose identity is known by the third party at the time the contract is made

Partially Disclosed

3rd party knows he is dealing with an agent, but doesn't know principal's identity

Undisclosed

third party does not know he is dealing with agent and therefore the principal's identity is unknown

Authorized

within the scope of agent's authority

Unauthorized

agent has no authority

Actual Authority

principal manifests to the agent

Express

direct and definite terms
-oral or written

Equal Dignity Rule

A rule requiring that an agent's authority be in writing if the contract to be made on behalf of the principal must be in writing.

Implied

implicit that agent should do what is reasonable and necessary to carry out the objectives of the agency

Apparent Authority

The authority an agent is believed by third parties to have because of the behavior of the principal.

Liability for Torts and Crimes

A principal who acts through an agent may be liable for harm resulting from the principal's own negligence or recklessness

Agent's Intentional Torts

Principal liable for intentional torts committed within the scope of employment

Agent's Negligent Torts

principal is liable if committed in the scope of employment or authorized

Scope of Employment

authorized, time place and purpose of the act, commonly performed by employees, employer's interests were advanced, employer furnished instrumentality, and performance by agent is expected (past performance or notice)

Termination of Agency by the Parties' Act

-lapse of time
-purpose of agency objective achieved
-occurrence of specific event
-mutual agreement
-act of one party

Termination of Agency by Operation of the Law

1. death or insanity
2. impossibility
3. changed circumstances
4. bankruptcy
5. war

Contract Theory

if a contract exists, whether express or implied, that will control the employment arrangement

Tort Theory

termination could lead to a wrongful discharge claim

Public Policy

reason for termination violates a fundamental public policy

Davis-Bacon Act of 1931

This law requires the payment of "prevailing wages" to employees of contractors and subcontractors working on government construction projects.

Walsh-Healey Act 1936

established minimum wage, child labor laws, safety standards, and overtime pay

Fair Labor Standards Act of 1938

established minimum living standards for workers engaged in interstate commerce, including provision of a federal minimum wage

Worker Adjustment and Retraining Notification Act 1988

mass layoff (1/3), 60 days notice if you employ 100+ employees

Child Labor

-under 14: limited in scope (parents, entertainment, newspaper delivery, agriculture) and time
-14-15: no hazardous jobs and limitation on time
-16-17: no hazardous jobs

Minimum Wage

• Federal $7.25 / $2.13
• States vary (ex: FL $8.46 / $5.44)
• exceptions: minors, disabilities, full time students

Overtime

1.5 hourly rate for each hour over 40 hours per week
-exceptions: professionals, executive, administrative, outside sales, over $50,440 salary