Petrone BLAW Exam 2

what is assault?

1) threat of immediate harm/contact

2) any action that arouses reasonable apprehension of imminent harm

3) actual physical harm is unnecessary

what is an example of assault?

when a person is verbally threatened. if that person is worried for their safety, they may sue to recover damages

what is battery?

unauthorized and harmful/offensive physical contact with another person that CAUSES INJURY.

*hitting indirectly with a bat/car is also considered battery

what is an example of battery?

throwing a rock, shooting an arrow/bullet, knocking off a hat, etc.

what is false imprisonment?

intentional confinement of another person WITHOUT authority/consent

what is an example of false imprisonment?

restraining someone in a room against their will, or preventing them from leaving a location without consent

what is shopkeeper’s privilege

allow merchants to stop, detain, and investigate shoplifters without being held liable for false imprisonment, IF the detention is reasonable and conducted in a reasonable manner

what rules must shopkeeper’s privilege abide by?

1) reasonable grounds for the suspicion

2) suspect(s) are detained only for a reasonable time

3) investigations are conducted in a reasonable manner

what is an example of misuse of shopkeeper’s privilege?

detaining a customer for lingering around an aisle, bringing them to a back room for questioning and making them take off a sterile bandage to check for a stolen item, while taking an hour to conduct the search

what is an example of a good use of shopkeeper’s privilege?

employee detains a potential shoplifter after watching them shove merchandise in their pants, questions the suspect, and holds them until police arrives

what is defamation?

anything published or publicly spoken that causes injury or damage to a person’s reputation, name, or character

what must be proven by the plaintiff in order to be ruled defamation?

1) defendant made an untrue statement of fact

2) statement was published to a third party

what must be proven in addition to publication and untrue statement in a defamation case for a public figure?

actual malice

what is actual malice in a defamation case?

defendant made a false statement knowingly or with reckless disregard of its falsity

what is disparagement?

an untrue statement made by one person or business about the products, services, property, or reputation of another business

how do you prove disparagement?

1) an untrue statement was made about another business’s products/services

2) untrue statement published to third party

3) knew the statement was untrue

4) made the statement maliciously

what is intentional infliction of emotional distress (IIED)

a person whose extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another

what is misappropriation of the right to publicity?

an unauthorized appropriation (taking) of the plaintiff’s name, likeness, or identity

if won in court, what can the plaintiff expect when suing for misappropriation of the right to publicity?

1) recovery of unauthorized profits

2) obtain an injunction preventing further unauthorized use of his or her identity

what is invasion of privacy?

unwanted and undesired publicity of a private fact about a person. the fact does not have to be untrue

what are two necessary elements to assert a negligence claim?

1) a person is liable for harm

2) the harm is a result of the foreseeable consequences of actions

what are examples of compensatory (economic) damages?

medical bills, property damages, lost wages

what are examples of non-economic damages?

pain & suffering, loss of consortium (association/companionship)

what is professional malpractice?

the liability of a professional who breaches his or her duty of ordinary care

what is negligence per se?

a tort. where violation of a statute or an ordinance constituted the breach of the duty of care

in a negligence per se case, what must the plaintiff prove?

1) statute existed

2) statute was enacted to prevent the type of injury suffered

3) plaintiff was within a class of persons meant to be protected by statute

what is an example of negligence per se?

health code violation, driving safety violation

what is Res Ipsa Loquitur?

tort. where presumption of negligence arises because:

1) defendant was in exclusive control of situation

2) plaintiff would not have suffered injury but for someone’s negligence

what are examples of Res Ipsa Loquitur?

an elevator falling, airplane crashes, instrument left in body after surgery

what is gross negligence?

doctrine that says a person is liable for harm that is caused by his/her willful misconduct or reckless behavior

what damage may be assessed in a gross negligence case?

punitive damages

what is an example of gross misconduct?

driver runs stop sign by accident and hits another vehicle, causing injury to occupants AND the at-fault driver was under the influence

what is the attractive nuisance doctrine?

imposes liability on landowner to protect children who are attracted to the landowner’s property where the object on the property could cause the child to get injured or killed

what are examples of an attractive nuisance?

ungated pool, abandoned machinery, tools, appliances

what is the good samaritan law?

protects those who stop and render emergency aid to someone in need

what can a “good samaritan” not do?

act grossly negligent or engage in intentionally reckless conduct

what is an intervening event?

an event where defendant is not responsible for injuries caused by intervening event

what is an example of an intervening event?

spectator gets hit with a golf ball, falls unconscious, gets struck by lightning and dies; golfer is technically not responsible for injuries because of assumption of risk, and is also not responsible for the lightning striking the spectator

what is assumption of risk?

a defense that a defendant can use against plaintiff. plaintiff knowingly participated in a dangerous act or entered a potential area of danger

what is an example of assumption of risk?

attending a baseball game and intentionally getting seats by the outfield to see a specific player, where the spectator knows there is not a net in between them and the batter. the spectator then gets struck by a foul ball

what is comparative negligence?

a doctrine where damages are portioned according to fault

how would you calculate the reduction of damages awarded in a comparative negligence case?

if the jury award is $100k and the jury decided the plaintiff was 10% at fault, then the plaintiff would get $90k because the reward is reduced by 10%

what is strict liability?

imposes liability without fault

what activities create strict liability?

1) person engages in abnormally dangerous activity that, in turn,…

2) causes injury or death to another person

what are activities that pertain to strict liability?

crop dusting, blasting, fumigation, burning of fields, storage of explosives, keeping animals/pets

who creates administrative law?

governments that regulate industries, businesses, and professionals

who creates administrative agencies?

federal, state, and local governments

who may enforce antitrust laws?

Department of Justice and the Federal Trade Commission

what did the federal trade act do?

created the federal trade commission. empowered them to enforce antitrust laws, among other powers

what is general government regulation?

laws that regulate businesses and industries collectively

what are examples of general government regulations?

national labor relations board (NLRB) is empowered to regulate formation and operation of labor unions

OSHA regulates workplace safety

EEOC

what is specific government regulation?

laws that regulate a specific industry or type of business

what are examples of specific government regulations?

federal communications commission (FCC) regulates TV and radio

federal aviation administration (FAA) regulates commercial airlines

how do secretary leading departments come to that role?

each department is led by a person appointed by the president, subject to confirmation by a MAJORITY vote in the US senate

who do cabinet level departments answer to?

the president

who creates federal administrative agencies?

the US Congress

who creates state administrative agencies?

the states

what does the APA do?

govern procedures almost all agencies must follow

T/F: when creating regulations, agencies must follow the APA’s Notice and Comment Procedure (rulemaking procedure)

true

what happens if an agency fails to follow the APA’s procedure?

a lawsuit challenging the agency’s action may reverse the agency’s action

what does the administrative law judge (ALJ) do?

conducts hearings, decides issues of fact & law, issues administrative order, and is employed by the agency

T/F: in a first appeal, the ALJ’s order may be appealed to the agency that made the action

true

T/F: in the second appeal, the agency may not be appealed to the appropriate federal court

false; they have the right to appeal to the appropriate federal court

what is the delegation doctrine?

when an administrative agency is created, it is delegated certain powers; the agency can only use legislative, judicial, and executive powers that are delegated to it

what must an administrative agency do when proposing an adoption of a substantive rule?

1) publish general notice of the proposed rule in the federal register

2) give interested persons opportunity to participate in rulemaking process

3) review all written and oral comments in federal register

4) require, in some instance, formal rulemaking

T/F: when an agency is granted executive powers, the agency is a government actor and must obey the constitution

true

what are examples of granted executive powers and their consequences?

the bill of rights (reasonable search and seizure)

procedural due process and adjudicatory or judicial authority

what is the freedom of information act (FOIA)?

federal act that gives the public access to documents in the possession of government

the freedom of information act can be used on…

state-funded universities

what is the government in the sunshine act?

federal act that opens most government buildings or meetings to the public (open door act)

what is the equal access to justice act?

federal act that protects persons from harassment by federal administrative agencies

what is the privacy act?

federal act that states the federal administration agencies can maintain only information about an individual that is relevant and necessary to accomplish legitimate agency purpose

which parties may file antitrust lawsuits (“actions”)?

the federal government

any person or persons who suffers antitrust injury in his/her/their business or property

what remedies are available in antitrust lawsuits?

nolo contendere (criminal action)

consent decree (government civil action)

what does section 1 of the sherman antitrust action do?

prohibits collusion by 2 or more firms/businesses, restraining trade/lessening competition

what is price fixing?

a restraint of trade that occurs when competitors in the same line of business agree to set the price of goods (raising, decreasing, fixing, pegging, or stabilizing)

is price fixing horizontal or vertical restraints of trade?

horizontal

what is division of markets?

a restraint of trade in which competitors agree that each will serve only a designated portion of that market

is division of markets a horizontal or vertical restraint of trade

horizontal

what are group boycotts?

restraint of trade in which two or more competitors at one level of distribution agree to not deal with others at another level of distribution

T/F: group boycotts are vertical

false

what is a vertical restraint of trade?

restraint of trade that occurs when two or more parties on different levels of distribution enter into a contract, combination, or conspiracy to lessen trade

T/F: collective action petitioning the government is legal

true

what is resale price management?

a per se violation of section 1 of the sherman antitrust act that occurs when a party at one level of distribution enters into agreement with a party at another level to adhere to a price schedule that either sets or stabilizes prices

what is an example of resale price management?

prism corporation manufactures a high-end camera and sets a minimum price which the camera cannot be sold by retailers to consumers below that price

what are the three elements a plaintiff must prove to win a monopolization lawsuit?

1) in a relevant market

2) possesses monopoly power

3) engaged in a willful act of monopolization

when is monopoly power legal?

1) having superior skills/product, foresight, government-granted, or single industry

2) it is a natural monopoly

what are the three elements a plaintiff must prove to stop a proposed merger/acquisition?

line of commerce, section of the country, probability of a substantial lessening of competition

what is a horizontal merger?

a merger between two or more companies that compete in the same business and geographical market

what is an example of a horizontal merger?

the local gas station becoming a Casey’s in a region where Casey’s is present

what is a vertical merger?

a merger that integrates the operations of a supplier and a consumer

what is an example of a vertical merger?

rubber production company merges with a shoe manufacturer

what is a markets extension merger?

a merger between two companies in similar fields who do not overlap

what is an example of a markets extension merger?

shoe company merging with a clothing-only company

what is a conglomerate merger?

a merger that does not fit into any other category; merger between firms and totally unrelated businesses

what is an example of a conglomerate merger?

a merger between a candle manufacturer and a car manufacturer

what are the defenses to a section 7 action?

failing company doctrine

small company doctrine

what is section 7?

a part of the clayton act, which prohibits mergers that substantially lessen competition or tend to create a monopoly

what is the failing company doctrine?

states that a competitor may merge with a failing company if:

1) there is no other reasonable alternative for the failing company

2) no other purchaser is available

3) and the assets of the failing company would completely disappear from the market

what is the small company doctrine?

states the courts have permitted two or more small companies to merge without liability under section 7, IF the merger allows them to compete more effectively with large companies