Legal Environment of Business Exam 4

4.1

4.1

Big difference between tort law and …

criminal law

Example: any type of drug possession or use

Some acts are crimes, but not torts

Example: causing a non-fatal automobile accident

Some acts are torts, but not crimes

Example: shooting someone in the leg

Some acts can be both torts and crimes

what is the purpose of a tort law

-compensate for the wrong doing

-emphasis is on the victims injury and how it was caused

-defendant pays damages

who are the parties involved in a tort law

plaintiff (the injured party) v. defendant (the alleged wrongdoer)

(plaintiff is usually a private party or entity)

(the offense is only against the plaintiff, unlike in criminal law where its against the state or society)

Does a defendant have a right to a court-appointed attorney in a Tort case?

No. The Sixth Amendment right to counsel applies only to criminal cases.

When is there a right to a jury trial in Tort law?

Only in cases at law (seeking money damages), not in cases of equity (seeking an injunction or specific action).

What is the Burden of Proof in a Tort case?

Preponderance of the evidence. (Meaning: It is "more likely than not"—or 51%—that the defendant is liable).

What is the primary purpose of Criminal Law?

To punish the defendant. The focus is on the defendant's conduct rather than the victim's injury

Who are the parties in a criminal case?

The State (or "The People") vs. The Defendant.

Who does a criminal offense harm?

Society as a whole, which is why a prosecuting attorney represents the government.

What are three key constitutional rights in criminal cases not guaranteed in civil torts?

1. Right to an attorney

2. Right not to testify against oneself (5th Amendment)

3. Right to a jury trial in all cases

What is the burden of proof in a criminal case?

Beyond a reasonable doubt (the highest legal standard)

What is the jury requirement for a criminal conviction?

The verdict must be unanimous.

What are the possible punishments for a criminal defendant?

fines paid or jail/prison

A wrongful action that can lead to civil liability 

Tort

Any time ones wrongful conduct causes injury to another, a lawsuit may arise under the…

law of torts

The purpose of tort law is to… for the violation of various protected interests. 

provide remedies

In contrast, the purpose of criminal law is to … for a wrong against society. 

punish a wrongdoer

…designed to compensate the wronged party for actual losses

-to put that person in the position they would have been 

Compensatory damages

…Monetary damages used to punish the defendant

-generally not available unless the conduct was intentional or grossly negligent

-Excessive … awards may be unconstitutional

Punitive Damages

Categories of torts (3)

Intentional Torts

Negligence

Strict Liability

Product Liability

-Require intentional conduct

-When looking at intent, look at the conduct, not the impact (I intended to fire a gun, even if i didn’t intent to shoot someone)

intentional tort

-A breach of a standard of care 

-Intent is not required

Negligence (Unintentional Torts)

-liability regardless of fault

-applies in narrow circumstances

Strict Liability

-liability for damage caused by defective products

Product Liability

…occurs when the tortfeasor intends to harm one person but instead harms another

Transferred Intent

…any intentional and unexcused threat of harmful or offensive contact

Assault

… any intentional and unexcused harmful or offensive contact

Battery

…the intentional confinement or restraint of another person's activities without justification 

(not kidnapping, that would be a criminal act)

False Imprisonment

Under…, a business owner can reasonably detain a customer suspected of shoplifting 

a shopkeeper's privilege

If the detention becomes unreasonable, the owner may be liable for…

false imprisonment

…an extreme and outrageous act, intentionally committed, that results in severe emotional distress to another

(family member has died and you believe them)

-must be truly outrageous

-must be intentional 

Intentional Infliction of Emotional Distress

a false statements of fact that cause injury to another's good reputation

Defamation

Defamation in written form

Libel

Defamation in spoken form

Slander

Elements of defamation: 

-The defendant made a false statement of fact (opinion is not a fact)

-The statement was understood as being about the plaintiff and tended to harm the plaintiff's reputation

-The statement was published to at least one person other than the plaintiff (communicated this to a third party)

-If the plaintiff is a public figure, he or she must prove actual malice

Defamation requires a false statement. 

Therefore, if the statement is true, there is …

no defamation

False and defamatory statements about public figures are not defamation unless the statements are made with …

actual malice

actual malice:

• Knowledge that the statement is false; or

• Disregard of whether the statement is true (at the time the person was making the statement, the person didn't care whether the statement was true or false)

Invasion of privacy includes:

-Seclusion (intrusion into one’s affairs) (digging into someones business when you are not supposed to)

-False light (Publishing information that inaccurately portrays someone misleadingly and offensively is an invasion of privacy; this might involve attributing false ideas or opinions to a person)

-Public disclosure of private Information 

-Appropriation of identity

…any misrepresentation, either by misstatement or by omission of a material fact, knowingly made with the intention of deceiving another and on which a reasonable person would and does rely to his or her detriment (if any part is missing then you will not have fraud)

Fraudulent Mispresentation

to have fraudulent misrepresentation you must have:

-misrepresentation of material facts

-intent to induce another party to rely on the misrepresentation

-justifiable reliance on the misrepresentation by the deceived party

-damages suffered as a result of that reliance

-a casual connection between the misrepresentation and the injury suffered

Intentional Interference with economic relations

-disparagement

-interference with contractual relations

-interference with prospective advantage

-misappropriation of business interests

….involves making an untrue statement about someone's business skills, products, or services. This tort may be addressed as defamation. However, some states lack statutes or common law protections for commercial rights against defamatory statements.

Disparagement

… This tort occurs when a third party knowingly induces one party to a contract to breach the agreement. This often happens when one company entices another's employees to break their employment contracts.

Interference with Contractual Relations

…This cause of action involves a business relationship between the plaintiff and a third party that the defendant disrupts. The defendant's actions are intended to harm the plaintiff, not for personal gain. The plaintiff can sue to recover losses or damages

Interference with Prospective Advantage

…This tort occurs when a fiduciary breaches the duty of loyalty and appropriates someone else's intellectual property, such as patents, trademarks, copyrights, trade secrets, or goodwill.

Wrongful Appropriation of Business Interests

Wrongful interference with a contract (contract relations)

• A valid, enforceable agreement

• A third party's knowledge of the agreement

• A third party intentionally induces a party to breach the contract

-when a person uses predatory tactics to take another business's customers (unlawfully taking competitors' customers completely out of the market)

Wrongful interference with a business relationship

-enters land that belongs to another

-causes anything to enter onto land owned by another

-remains on land owned by another or permits anything to remain on it

(You don't have to put a trespass sign for this to apply)

No proof of harm to the land is necessary; just being on the land is trespassing

Trespass to land (real property): (either one of these is gonna be trespass to land)

Wrongfully taking or harming the personal property of another, or otherwise interfering with the lawful owner's possession of personal property (taking someones car)

Trespass to personalty:(personal property)

…wrongfully retaining possession of an individual's personal property and placing it in the service of another

Conversion

…the failure to exercise the standard of care that a reasonable person would exercise in similar circumstances

-intent is not an issue

Negligence

Elements of negligence: (if any of these are missing, then you don't have negligence, use this in a negligence question)

-Duty of care

-Breach of duty

-Causation in fact

-proximate cause

-Damages

a severe departure from the standard of care owed to others

Gross negligence

….a complete disregard for the potential harm that may result from one's actions

Recklessness

Use these two when ur looking at the level of negligence

gross negligence and recklessness

Ordinary negligence, you don't have to be concerned with … Yes, with gross and reckless negligence. 

punitive damages

People are free to act as they please so long as their actions do not infringe on the interests of others

Duty of care

Generally, ones duty of care is determined by asking what a …prudent person would do in similar circumstances. 

reasonable person

When determining whether a professional has exercised reasonable care, the law takes their training and expertise into account

(the law takes into account their expertise and training)

Duty of Professionals

How would a reasonable prudent person act in a similar circumstance

Reasonable person standard:

How would a child of similar age, intelligence, and experience respond in a given situation

children

…a state statute stipulating that persons who provide emergency services to someone in peril cannot be sued for negligence unless they act recklessly 

(create a scenario where if someone provides emergency services to someone who is in danger, that person is going to be granted a little bit of immunity from a lawsuit unless they acted recklessly in whatever act that took place.)

Good Samaritan Statutes

…a bartenders or bar owners liability for injuries caused by a person who became intoxicated while drinking at their bar

Dram Shop Liabiltiy

Causation: 

For a breach of duty to constitute negligence, the breach must cause an injury 

(must have both)

• Causation in fact 

• Proximate cause

…the harm would not have occurred “but for” the conduct of the defendant

Causation in fact

the link between the action and the cause is sufficiently strong to warrant liability 

Proximate cause

It must have been … that the defendants actions would cause the harm (is there a strong enough connection between you and the accident for you to be liable)

foreseeable

To recover … the plaintiff must have suffered some loss, harm,wrong, or invasion of a protected interest

No injury = no negligence

damages

….a plaintiff may not recover for injuries suffered from risks that he/she knew of an voluntarily assumed

Assumption of risk: (doctrine)

…if an unforeseeable intervening event broke the chain of causation between the defendants act and the injury, there is no recovery

(only liable for the initial accident, not if there is one after that)

Superseding cause

…if the plaintiff is also negligent, the plaintiff cannot recover

(used in a few states)

Contributory negligence

…if the plaintiff is also negligent, the plaintiff’s level of fault determines how much damages are recovered (math question)

(most states use this)

Comparative negligence

Not to act in an intentional, willful, or wanton manner to cause physical harm

(You can’t hurt them, but if they go on your land and they get hurt, then that’s on them.)

Trespassers

…duty to warn them of any dangers, because they may assume the property is safe

Regular trespassers

…duty to them aswell 

children

• Ordinary care to avoid injury

• Warn of hidden dangers (any danger the licensee will not discover on his/her own)

• No duty to warn against open and obious dangers

Licensees(someone who has permission to step onto property)

• Affirmative duty to exercise ordinary care to maintain the premises in a reasonable safe condition for the benefit of the invitee

• Protect from dangers, both known and reasonably foreseeable

Invitees(specifically if your a business invitees/they are there for my benefit)

• Lessors have no affirmative duty to protect lessees or their guests

(if you are leasing property from someone else and you get hurt on that property, you cant go to the person that you are leasing the property from and seek some sort of remedy)

Lessors (AR law)

…a doctrine that holds the defendant responsible for the plaintifffs injuries, regardless of fault

Strict liability

Only apply strict liability on:

abnormally dangerous activities

dangerous animals

products liability

-really outside the norm of what a person would be doing 

-explosives (most people dont deal with explosives)

-fireworks (no way to make it safe, most people dont deal with fireworks)

(First, it must create a foreseeable and substantial risk of physical harm. Second, the activity must not be of common usage in the community)

Abnormally dangerous activities 

-tiger

-wild animal

-domesticated animals if they knew or should have know that the animal is dangerous

Dangerous Animals

-retailers

-wholesalers

-manufacturers

(has to be in the same condition all throughout for them to all be liable)

Products Liability

…Contains a defect that renders the product dangerous beyond the expectations of a reasonable consumer

Consumer Expectation Test: (AR)

…A safer design was economically feasible for the manufacturer, but they failed to implement it

Risk Utility Test

…The product departs from its intended design even though all possible care was taken during its preparation and marketing

Manufacturing defect

…The products original design is flawed, making it inherently unsafe for its intended use

(galaxy phone the design of battery was bad)

Design Defect

The product lacks a warning that would have mitigated the danger to its users

Inadequate Warnings

the simplest form of business where a single owner is the business itself

Sole proprietorship

• A single person who conducts a business activity with the intent to earn a profit

• No formalities necessary to create, maintain, or terminate

• The owner has sole control of the business

• Profits and losses are filed on individual tax returns

Sole Proprietorships

disadvantages to sole proprietorships

-sole proprietor solely responsible for all business losses

-lack of continuity (if you die, the business dies with you)

-unlimited personal liability (your personal assets are in jeopardy as-well)

many agency concepts apply to partnership law. partners are … of each other and of the partnership

agents

an association of two or more persons to carry on as co owners a business for profit

partnership

to find out if a partnership exist or not, the … is the key element

intent to associate