BUS-340 Midterm

What’s Negligence?

When a person doesn’t exercise enough care and caution, and their actions result in someone else’s injury, they’ve acted negligently. A failure to use reasonable care

Four essential elements in a negligence claim.

1) a person is in a situation where they have a duty to act carefully. 2) the person must fail to act as carefully as they should 3) failure must result in a loss or injury to someone else. 4) victim must have physical, emotional or property damages because of what occurred.

Intentional Tort

when someone acts on purpose. That is, a person purposefully intends the action that results in your injuries.

Intentional tort examples

When a person strikes you on purpose, you can recover your damages. Other examples include battery, trespassing, theft, and false imprisonment.

In an intentional tort:

an actor might not plan all of the damages that occur, but they intend their actions that result in the losses or injuries. For example, in the case of assault and battery, they intend to hit you

Negligence:

Most auto accidents are considered this. Usually, another driver doesn’t hit you on purpose. Rather, they make a driving error that leads to an accident.

Intentional tort example 1:

If a person uses a vehicle to strike you or your vehicle intentionally, they’ve committed …

Intentional tort example 2:

If a person throws a ball at you and it strikes you in the nose

Battery example:

they threw the ball at you knowing that it would probably hit you

Negligence example:

If they throw the ball at a wall and it bounces and then strikes you in the face

Actus Reus (guilty act)

The physical act or unlawful omission by the defendant;

a.Must be voluntary

b.Bodily movement

Mens Rea (guilty mind)

The state of mind or intent by the defendant at the time of the act

Concurrence

The physical act and the mental state existed at the same time

Harmful Result/Causation

Caused, both factually and proximately, by the defendant’s act.

Homicide

a. The unlawful killing of another human being

b.Classifications

Murder

The unlawful killing of another human being with malice aforethought.

a.Malice aforethought

i.Intent to kill

ii.Intent to inflict great bodily injury

iii.Reckless indifference to an unjustifiably high risk to human life (abandoned or malignant heart)

iv.Intent to commit a felony (felony murder rule)

b.Deadly Weapon Rule: intentional use of a deadly weapon authorizes a permissible inference of intent to kill.

Voluntary Manslaughter

Rule: Killing that would otherwise be murder but is distinguishable from murder by the existence of adequate provocation. Killing in the heat of passion.

a.Adequate provocation (test)

i.The provocation must have been one that would arouse a sudden and intense passion

in the mind of an ordinary person such as to

cause him/her to lose his/her self-control;

ii.The defendant must have in fact been

provoked;

iii.There must not have been a sufficient time

between the provocation and the killing for the passion of a reasonable person to cool; and

iv.The defendant in fact did not cool off

between the provocation and the killing.

b.Mere words do not count as adequate provocation.

Involuntary Manslaughter

1.Rule: Killing another human being by an unlawful act.

2.Two types:

a.Criminal Negligence

b.Unlawful Act Manslaughter

i.Misdemeanor-Manslaughter Rule

1.Killing another human being in the course of a misdemeanor is manslaughter.

2.Most courts require the misdemeanor be malem in se (inherently wrongful act) or if malem prohibitum that the death be foreseeable or the natural consequences of an unlawful act.

ii.Felonies Not Included the Felony Murder Rule

1.Rule: If the killing of another human being was caused during a felony but does not qualify as a felony murder case, the killing will at least be involuntary manslaughter. The death must also be a foreseeable consequence.

Conduct becomes criminal when

society outlaws it

Criminal procedure

designed to protect the accused and ensure that criminal trials are fair.

Felony

a serious crime, for which a defendant can be sentenced to one year or more in prison. Murder, robbery, rape, wire fraud, and embezzlement are examples

Misdemeanor

a less serious crime, often punishable by a year or less in jail. Public drunkenness, driving without a license, and shoplifting are examples

The penalties for a conviction in a criminal case are so serious so:

the government has to prove its case beyond a reasonable doubt

A criminal defendant has a right to a trial by jury for:

any charge that could result in a sentence of six months or longer.

When the judge is the fact finder:

the proceeding is called a bench trial.

Defendants are not guilty of a crime if:

they were forced to commit it. In other words, they are not guilty if they acted under duress.

When the government induces the defendant to break the law:

the prosecution must prove beyond a reasonable doubt that the defendant was predisposed to commit the crime.

A defendant can be convicted of taking part in a conspiracy if

• A conspiracy existed,

• The defendants knew about it, and

• Some member of the conspiracy voluntarily took a step toward implementing it.

The Fourth Amendment to the Constitution prohibits the government from

making illegal searches and seizures. This amendment protects individuals, corporations, and other organizations from the powerful state.

A warrant is a

written permission from a neutral official, such as a judge or magistrate, to conduct a search. It must specify with reasonable precision the place to be searched and the items to be seized.

Probable cause means that it is

likely that evidence of a specific crime will be found in the place to be searched.

The police may search without a warrant under the following circumstances:

Plain view, emergencies, automobiles, lawful arrest, consent, stop and frisk, no expectation of privacy

Police do need a warrant to:

• Listen in on a telephone conversation,

• Search the contents of your cell phone or personal computer,

• Obtain records from a phone company about a phone’s location history,

• Intercept email in transit,

• Read private Facebook profiles and postings,

• Attach a GPS tracking device to your car, or

• Require a blood test

They do not need a warrant to:

• Require a DNA test (such as a cheek swab) from someone arrested for a serious crime,

• Require a breathalyzer test,

• Search a digital camera,

• Obtain from a phone company a list of numbers a cell phone has called,

• Find out whom suspects have emailed or what websites they have visited,

• Search internet messages, or

• Check public social media profiles or Twitter posts.

Exclusionary Rule

If police and prosecutors know in advance that they cannot use any illegally obtained evidence, they will not be tempted to make improper searches or engage in other illegal behavior.

The Sixth Amendment guarantees

the right to a lawyer at all important stages of the criminal process, from arrest through one appeal.

The prohibition against double jeopardy

means that a defendant may be prosecuted only once for a particular criminal offense.

An indictment is the

government’s formal charge that the defendant has committed a crime and must stand trial.

At an arraignment

a clerk reads the formal charges of the indictment.

A plea bargain is an

agreement between prosecution and defense that the defendant will plead guilty to a reduced charge, and the prosecution will recommend to the judge a relatively lenient sentence.

The Fifth Amendment bars the government from

forcing people to provide evidence against themselves. This provision means that an accused cannot be forced to testify at trial.

The Eighth Amendment prohibits

cruel and unusual punishment.

Larceny means

taking personal property that is in someone else’s possession with the intent to steal it.

Embezzlement is the

fraudulent conversion of property already in the defendant’s possession.

Fraud involves the

deception of another person for the purpose of obtaining money or property from them.

It is bank fraud to

use deceit to obtain money, assets, securities, or other property under the control of any financial institution.

Identity Theft and Assumption Deterrence Act of 1998

prohibits the use of false identification to commit fraud or other crime, and it also permits the victim to seek restitution in court.

Identity Theft statute imposes

a mandatory additional sentence of two years on anyone who engages in identity theft during the commission of certain crimes

Arson is the

malicious use of fire or explosives to damage or destroy any real estate or personal property.

Phishing occurs when

a fraudster sends a message directing the recipient to enter personal information on a website that is an illegal imitation of a legitimate site.

hacking:

gaining unauthorized access to a computer system.

Under federal law:

a company is guilty of any crime committed by its agents when they are acting within the scope of their employment and with the intent to benefit the business

It is illegal to

make false statements or engage in a cover-up during any dealings with the U.S. government.

RICO prohibits using two or more racketeering acts to accomplish any of these goals:

1. investing in or acquiring legitimate businesses with criminal money,

2. maintaining or acquiring businesses through criminal activity, or

3. operating businesses through criminal activity.

A two-step process to prove that a person or an organization has violated RICO

The prosecutor must show that the defendant committed two or more acts, which include embezzlement, arson, mail fraud, wire fraud, and others. The prosecutor must then show that the defendant used these racketeering acts to accomplish one of the three purposes listed above.

RICO is powerful (and for defendants, frightening) in part because a civil plaintiff can recover treble damages, that is:

a judgment for three times the harm actually suffered, as well as attorney’s fees.

Money laundering consists of taking the proceeds of certain criminal acts and either

1. using the money to promote crime or

2. attempting to conceal the source of the money.

The Foreign Corrupt Practices Act (FCPA) prohibits American companies from paying bribes overseas:

Bribes, facilitating payments, recordkeeping

Written defamation is called

libel

Oral defamation is

slander

There are four elements to a defamation case

1) Defamatory statement 2) Falsity 3) Communicated 4) Injury

False imprisonment is the

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

Battery is

intentional touching of another person in a way that is harmful or offensive.

Assault occurs when a

defendant performs some action that makes a plaintiff fear an imminent battery.

Fraud is

injuring another person by deliberate deception.

Intentional infliction of emotional distress results from

extreme and outrageous conduct that causes serious emotional harm. The credit company was liable for the intentional infliction of emotional distress.

The 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

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

Tortious interference with a contract.

1. There was a contract between the plaintiff and a third party;

2. The defendant knew of the contract;

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

4. There was injury to the plaintiff.

False Advertising:

In order to win a case, a plaintiff must prove four elements:

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

2. The statements were material and likely to influence purchasing decisions.

3. The defendant used the statements in commercial advertising or promotion.

4. The statements created the likelihood of harm.

Lanham Act

prohibits false statements in commercial advertising or promotion.

A trespasser is

anyone on the property without consent.

A licensee is

anyone on the land for their own purposes but with the owner’s permission.

An invitee is

someone who has a right to be on the property because it is a public place or a business open to the public.

A defendant breaches the duty of due care by

failing to behave the way a reasonable person would under similar circumstances.

Factual cause

If the defendant’s breach led to the ultimate harm

Res ipsa loquitur

the thing speaks for itself

Assumption of the risk is a

legal doctrine that bars recovery of damages when a person is injured after voluntarily entering a situation that has a known or obvious danger.

Comparative negligence state:

plaintiffs may generally recover even if they are partially responsible.

Ultrahazardous activity is

virtually always liable for any harm that results.

Negligent design

The buyer claims that the product injured her because the manufacturer designed it poorly

Negligent manufacture

The buyer claims that the design was adequate but that failure to inspect or some other sloppy conduct caused a dangerous product to leave the plant.

In strict liability

the injured person need not prove that the defendant’s conduct was unreasonable.

The five principal factors in the risk-utility test include

1. The value of the product;

2. The gravity, or seriousness, of the danger;

3. The likelihood that such danger will occur;

4. The mechanical feasibility of a safer alternative design; and

5. The adverse consequences of an alternative design.

Biometrics

refers to physical or behavioral characteristics, such as fingerprints, facial patterns, DNA, or even the way we walk.

The Fourth Amendment to the Constitution prohibits

unreasonable searches and seizures by the government

Reasonable expectation of privacy

1) The person had an actual, subjective expectation of privacy 2) Society accepts the person’s expectation of privacy as reasonable.

Third party doctrine

a person has no legitimate expectation of privacy in information he voluntarily shares with a third party, including friends, banks, utilities, and ISPs.

The tort of public disclosure of private facts prohibits

the unjustifiable revelation of truthful, but secret, information.

To succeed on a claim of public disclosure, the plaintiff must prove the following four factors:

1) The defendant made a public disclosure. 2) The disclosed facts had been private. 3) The facts were not of legitimate concern to the public. 4) The disclosure is highly offensive to a reasonable person.

The tort of intrusion requires the plaintiff to show that the defendant

1. intentionally intruded, physically or otherwise,

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

3. in a manner highly offensive to a reasonable person. Peeping through someone’s windows or wiretapping their phone is an obvious example of intrusion.

The Electronic Communications Privacy Act of 1986 (ECPA)

is a federal statute that prohibits unauthorized interception of, access to, or disclosure of wire and electronic communications.

Under the Stored Communications Act

1) Any intended recipient of an electronic communication has the right to disclose it 2) ISPs are generally prohibited from disclosing electronic messages to anyone other than the addressee

The Foreign Intelligence Surveillance Act (FISA):

sets out the rules that limit the use of electronic surveillance to collect foreign intelligence (otherwise known as spying) within the United States.

Health Insurance Portability and Accountability Act (HIPAA)

protects the privacy of medical records.

Family Educational Rights and Privacy Act (FERPA).

This federal law protects the privacy of student education records, including grades.

European General Data Protection Regulation (GDPR)

which sets out a framework for processing personal data fairly and transparently. It is the most sweeping privacy legislation in the world.

California Consumer Privacy Act (CCPA)

1. allowing California residents to control the use of their personal data and

2. requiring businesses to have clear and transparent privacy policies.

Opinions are not

defamatory

Statements must be

verifiably false.