MGMT 311 Exam 2 - Hailey

Tort

Civil wrong that's not a breach of contract

Tort damages

Monetary most frequently, could also be punitive

tort feasor

person who commits a tort (defendant)

Classifications of torts

- Intentional Torts

- Negligence

- Strict Liability

Intentional Tort

A wrongful act knowingly committed. Don't have to intend the harm, but have to intend the act that causes the harm.

Assault

An intentional, unexcused act that creates in another person a reasonable apprehension or fear of immediate harmful or offensive contact.

Battery

An unexcused and harmful or offensive physical contact intentionally performed.

Intentional Torts - Evil motive/malice necessary?

No

Defenses to Assault and Battery

Consent

Self defense, defense of others: reasonable defense in both real and apparent danger, force used must be reasonably necessary.

False Imprisonment

Intentional confinement or restraint of another person's activities without justification

1) Barriers/restraints can be physical or oral threats of physical force

2) Person restrained must not agree with the restraint

3) Some states give businesses ability to detain suspected shoplifters temporarily with probable cause

Intentional Infliction of Emotional Distress

Extreme and outrageous conduct resulting in severe emotional distress to someone else

1) Difficult to prove; need truly outrageous conduct

2) May need rlly strong and documented evidence of physical/emotional disturbance

3) Defense used by media when "outrageous conduct" is about a public figure: Freedom of speech 1st Amendment

Hustler Magazine v. Falwell

Court held that intentional infliction of emotional distress was permissible First Amendment free speech- so long as such speech was about a public official (figure), and could not reasonably be construed to state actual facts about its subject

Defamation

Wrongfully harming a person's good reputation

1) Libel

2) Slander

Libel

Written defamation

Slander

Oral defamation

Prima Facie Case of Defamation

Plaintiff must prove:

1) Defendant made a false statement of fact

2) Statement was understood as being about the plaintiff and harmful to reputation

3) Published to 3rd party from the plaintiff

4) If P is public figure: P must prove "actual malice" (knowing it's false and disregarding the truth

Damages for Defamation: Libel

Proof of the libel; general damages are presumed; proof of special damages not necessary

Damages for Defamation: Slander

P must prove that he suffered "special damages" (money loss, job opportunity, etc) before defendant is liable.

Slander Per Se

False statement is actionable without proof of special damages (slander in and of itself)

1) Statement of loathsome disease

2) Statement that a person committed improprieties in their profession/trade

3) Statement that a person has committed a serious crime

4) Statement that an unmarried woman is unchaste

Defenses to Defamation

Truth is an absolute defense

Priviledged Speech: Absolute (Judicial or legislative proceedings), Qualified (made in good faith and to those with legitimate interest)

Public Figure P have higher burden of proof

Invasion of right to privacy

right to solitude and freedom from prying public eyes

Intrusion

invading your private affairs i.e. landlord setting up cameras

False Light

publication of information that places a person in a false light

Public Disclosure of Private Facts

Private info that shouldn't be disclosed to the public but is (financial info, etc)

Appropriation of Identity

Using a person's name, picture, or other likeness for commercial purposes without permission.

Some states have appropriation statutes, easier to prove than tort law

Fraudulent Misrepresentation

Deceit for personal gain

1) Misrepresentation of facts or conditions with knowledge they are false or w reckless disregard for truth

2) Intent to induce another to rely on the misrepresentation

3) Justifiable reliance by deceived party

4) Damages suffered as a result of the reliance

5) Causal connection between misrepresentation and injury

Negligent Misrepresentation

misrepresentation made without due care in ascertaining its truthfulness; renders agreement voidable

Abusive or Frivolous Litigation

The filing of a lawsuit without legitimate grounds and with malice. Alternatively, the use of a legal process in an improper manner.

Wrongful interference with a contractual relationship

1) Valid enforceable contract between 2 parties

2) Third party knew of contract

3) Third party intentionally caused one of two parties to breach contract

Wrongful interference with a business relationship

1. Established business relationship

2. The defendant uses predatory methods

3. Causes business relationship to end

Defenses to wrongful interference

Bona fide competitive behavior

Aggressive marketing and advertising strategies

Real Property

land and anything attached to it

Personal Property

All property not classified as real property; cars, boats, jewelry, stocks, etc.

Trespass to land

The entry onto, above, or below the surface of land owned by another without the owner's permission or legal authorization.

Reasonable Duty

Some jurisdictions, by statute, are replacing common law rule with a "reasonable duty" rule that varies depending on the status of the parties. In other words, the owner would have a duty to warn in certain circumstances

Attractive Nuisance

A dangerous place, condition, or object that is particularly attractive to children; young children can't assume the risk of trespassing if attracted by some object

Can an owner remove someone from their property with reasonable force without being liable for assault and battery?

Ye.

Defenses to Trespass to Land

Trespasser enters to assist someone in danger even if that person is a trespasser

Trespasser enters to protect property

Trespass to personal property

wrongfully harming or interfering with the personal property owner's right to the exclusive possession and enjoyment of their property

- intentional meddling

- defense: meddling was warranted

Katko v. Briney

Briney notices repetitive trespassing, sets up spring-loaded shotgun, katko gets shot and wins a case because Briney used excessive force to protect only property.

Conversion

any act that deprives an owner of personal property or of the use of that property without the owner's permission and without just cause

Civil Theft

Form of conversion; not the only type of conversion

Non-Defenses to Conversion

-good intentions

-buying stolen goods

-mistake

Slander of Quality

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

- actual damages must be proved to have resulted

Slander of Title

The publication of a statement that denies or casts doubt on another's legal ownership of any property, causing financial loss to that property's owner.

Negligence

Elements:

1) Duty: D must owe a duty of care to the P

2) Breach: D must breach that duty

3) Causation: D's breach must cause P's injury

4) Damages: P must suffer a legally recognizable injury

Reasonable person standard

The standard of behavior expected of a hypothetical "reasonable person." The standard against which negligence is measured and that must be observed to avoid liability for negligence.

Duty of landowners

To business invitees: Foreseeable risks the owner knew about and should have known about

To Licensees (social guests): slightly lower

To Trespassers: lowest

Obvious dangers

- Generally, no duty to warn, but still may be liable for failure to maintain safe premises.

- Exception: may, have duty to warn children.

Duty of professionals

Professionals may owe higher duty of care based on special education, skill or intelligence.

Breach of duty is called professional malpractice.

Duty of Employers

Negligent hiring and retention: duty to hire people who don't pose a serious risk to the public

No Duty to Rescue

It is not necessary to go to the aid of a stranger

Exception- you put them in the situation

Causation

Courts must prove factual and proximate cause: Real factual cause, and was the damage that resulted a foreseeable result of the action?

Palsgraf v. Long Island Railroad

Tort: Negligence

Element: Duty of Care

There must be a direct foreseeable link between the negligent act and the damage. Injury caused to a party of sufficient distance in an unforeseeable manner does not attract a duty of care.

Dram Shop Acts

A state statute that imposes liability on the owners of bars and taverns, as well as those who serve alcoholic drinks to the public, for injuries resulting from accidents caused by intoxicated persons when the sellers or servers of alcoholic drinks contributed to the intoxication. Social hosts are liable in some states, not Texas :)

Good Samaritan Statute

A state statute stipulating that persons who provide emergency services to, or rescue, someone in peril cannot be sued for negligence, unless they act recklessly, thereby causing further harm.

Defenses to Negligence

1. Contributory Negligence: if P is also negligent, D doesn't get held liable for anything

2. Comparative Negligence: (Texas) P still recovers proportionate damages (Pure Form) unless more than 50% at fault, then nothing.

3. Superseding Intervening Force

4. Assumption of Risk: prove p had knowledge and assumption of the risk at hand

Strict Liability

The legal responsibility for damage or injury even if you are not negligent: Nature of situation rather than actions

Abnormally Dangerous Activities

those that involve a high risk of serious harm to persons or property that cannot be completely guarded against by the exercise of reasonable care: Strict Liability

Keeping Wild Animals

imposes strict liability

Keeping Domestic Animals

Requires strict liability if we know or should know that they are dangerous

Quid pro quo sexual harassment

a form of sexual harassment in which employment outcomes, such as hiring, promotion, or simply keeping one's job, depend on whether an individual submits to sexual harassment - Strict Liability

Product liability

Lawsuits involving facts of a company selling or making a product that's the cause of a P's injuries

Product liability based on Negligence

If a manufacturer fails to exercise "due care" to make a product safe, a person who is injured by the product may sue the manufacturer for negligence

Don't have to be in contract with party being sued

P must show D's conduct was the factual and proximate cause of the injury

MacPherson v. Buick Motor Co.

Abolished the privity requirement

Court declared that irrespective of contract, products should be manufactured responsibly

Product liability based on misrepresentation

Misrepresentation of material fact concerning quality, nature or approximate use of the product is made knowingly or with reckless disregard for the truth

As a result of the fraud, injury occurs

The buyer/P relied on the misrepresentation

Strict Product Liability

Liability without regard to fault; a company can be held liable for a defective product even if they didn't know of the defect.

Greenman v. Yuba Power Products

A manufacturer is strictly liable in tort if he (1) places an article on the market, (2) knows that it is going to be used without inspection, and (3) the article has a defect which causes injury

Requirements for Strict Product Liability

1. The product must be in a defective condition when the defendant sells it.

2. The defendant must normally be engaged in the business of selling (or otherwise distributing) that product.

3. The product must be unreasonably dangerous to the user or consumer because of its defective condition (in most states).

4. The plaintiff must incur physical harm to self or property by use or consumption of the product.

5. The defective condition must be the proximate cause of the injury or damage.

6. The goods must not have been substantially changed from the time the product was sold to the time the injury was sustained.

Unreasonably Dangerous Products

1. The product was dangerous beyond the expectation of the ordinary consumer.

2. A less dangerous alternative was economically feasible for the manufacturer, but the manufacturer failed to produce it.

Manufacturing defects

product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product

Schmude v. Tricam Industries Inc.

step ladder case

Schmude bought a ladder that broke immediately and he was badly hurt, Tricam Industries took the L in the lawsuit.

Design Defect

the foreseeable risk of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design

Warning Defects

The foreseeable risk of harm posed by the product could have been reduced or avoided by reasonable instructions or warnings

Obvious risks

No duty to warn about obvious or commonly known risks

Foreseeable misuses

seller must warn about foreseeable misuse.

Market Share Liability

If the plaintiff cannot prove which manufacturer produced the particular product that caused harm, then all manufacturers are liable in proportion to its share of the market

Defenses to Product Liability

1. Assumption of the risk

-Knew risk and voluntarily assumed it

2. Product misuse

- if misuse is foreseeable, manufacturer must warn

3. Comparative negligence

4. Commonly known dangers

5. Knowledgeable User - particular user should have had particular knowledge

6. Statutes of limitations - 2 years from discovery of defect to bring suit

7. Statutes of repose - last chance for manufacturer to be liable (most 10-12 yrs from when manufactured)

Boles v. Sun Ergoline, Inc.

Suntanning Product liability, release was unenforceable, tanning booth was liable for fingers being amputated by a fan (wth)

Jamieson v Woodward & Lothrop

plaintiff is using elastic resistance band on her toe and pops up and hits her in the eye. Plaintiff sues defense says its commonly known

Intellectual Property Rights

Intellectual property rights are legal protections given to people who invent, write, design, or create something.

licensing agreement

an agreement in which one firm gives another firm the right to produce and market its product in a specific country or region in return for royalties

Trademark

A distinctive mark, motto, device, or implement that a manufacturer stamps, prints, or otherwise affixes to the goods it produces so that they may be identified on the market and their origins made known. Once a trademark is established (under the common law or through registration), the owner is entitled to its exclusive use.

Statutory Protection of Trademarks

The Lanham Act of 1946 was enacted to protect manufacturers from losing business to rival companies that use similar trademarks.

P must prove:

- P owns famous mark

- D has begun using mark and dilutes famous mark

- Similarity gives rise to association

- association likely to impair distinctiveness

MARKS DO NOT HAVE TO BE IDENTICAL

Starbucks v Lundberg

names coffee house "sam Bucks Coffee House" and Starbucks sues

Trademark Registration

Trademarks may be registered with a state or with the federal government. To receive protection under federal trademark law, a person must register with the U.S. Patent and Trademark Office in Washington, D.C.

Trademark Infringement

Whenever a trademark is copied to a substantial degree or used in its entirety by another, intentionally or unintentionally

Distinctiveness of Mark

A trademark must be sufficiently distinctive to enable consumers to identify the manufacturer of the goods easily and to distinguish between those goods and competing products

Fanciful Trademarks

Involve invented words

Ex: Xerox, Kleenex, Google, Qdoba

Arbitrary Trademarks

those that use common words in an uncommon way that is non descriptive, such as "Dutch Boy" as a name for a paint.

Suggestive Trademarks

(DQ) indicate something about a product's nature, quality, or characteristics, without describing the product directly

Secondary Meaning (Trademarks)

Descriptive terms, geographic terms, and personal names are not inherently distinctive and do not receive protection under the law until they acquire a secondary meaning.

Generic Terms (Trademarks)

a word that identifies the type of product or service involved CAN'T be trademarked

Ex. the word shoe can't be trademarked, bike, etc.

Trade Dress

the image and overall appearance of a product

Counterfeit Goods

imitation goods that are sold illegally

Pros/Cons of Trademarks

- inexpensive

- longest lasting- McDonalds and Walt Disney

Patents

A grant from the government that gives an inventor the right to exclude others from making, using, and selling an: invention for 20 yrs, design for 14 yrs, protection begins when patent application is filed, First come fist serve, cannot be challenged within first 9 months

What is patentable?

Almost anything except the laws of nature, natural phenomena, and abstract ideas

Patent Infringement

if a firm makes, uses, or sells another's patented design, product, or process without the patent owner's permission

Apple v. Samsung

Samsung accused of infringing apple's patents, federal trial court ruled in apple's favor, appellate reversed bc elements were essential to make a phone.