MGMT 311 - Exam 2

Torts

Civil wrongs other than breach of contract

Classifications of torts

Intentional, negligence, strict liability

Intentional torts

Civil wrongs based on intentional behavior

Negligence

Unintentional, defendant accused of being reckless/careless

Strict liability

Defendant has no fault but there was still harm done

Assault

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

Assault and battery

Assault can lead to battery, but they are also separate torts

Battery

An unexcused and harmful or offensive physical contact intentionally performed

Defenses to assault and battery

Consent, self-defense, defense of others

Self-defense and 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

Intentional infliction of emotional distress

Extreme or outrageous conduct resulting in severe emotional distress to another

Defamation

Lies harming a person’s good reputation

Types of defamation

Slander, libel

Libel

Written words

Slander

Spoken words

Elements of a defamation case

Defendant made a false statement of fact, the statement was understood as being about the plaintiff and intended to harm the plaintiff’s reputation, published to a third party

If plaintiff is a public figure they…

Have to prove “actual malice” in order to win a defamation case

Actual malice

Making statement knowing it’s false or with reckless disregard for the truth

Damages for libel

General damages are assumed (pain and suffering, emotional distress)

Damages for slander

Plaintiff must prove that they suffered “special damages” before defendant is liable

Types of false statements per se

Statement that a person has loathsome communicable disease, statement that person has committed improprieties in their profession or trade, statement that person has committed or been imprisoned for a serious crime, statement that unmarried woman is unchaste

Defenses to defamation

Truth, privileged speech

Privileged speech

Absolute and qualified

Invasion of privacy

Intrusion, false light, public disclosure of private facts, appropriation of identity

Intrusion

Intrusion into private affairs and spaces

False light

Publishing information that casts doubt on someone’s beliefs or makes someone believe something about another person (doesn’t have to be a lie)

Appropriation of identity

Use of a person’s name, picture, likeness, or other identifiable characteristic for commercial purposes without permission

Fraudulent misrepresentation

Misrepresentation of material facts or conditions with knowledge that they are false or with reckless disregard for the truth, intent to induce another to rely on the misrepresentation, justifiable reliance by the deceived party, damages suffered as a result of the reliance, a causal connection between the misrepresentation and the injury

Abusive/frivolous litigation

Filing a lawsuit without a legitimate basis for a cause of action

Wrongful interference with a contractual relationship

Defendant knew of the contract’s existence and induced the breach of the contractual relationship

Elements to win a business torts case

Valid, enforceable contract between two parties, third party knew of the contract, third party intentionally caused either of the two parties to the contract to break the contract

Predatory behavior

Soliciting only those customers who have already shown an interest in the similar product or service of a specific competitor

Elements of predatory behavior

Established business relationship (customer relationship), tortfeasor used “predatory behavior,” tortfeasor intentionally caused the business relationship to end

Defenses to wrongful interference

Bona fide competitive behavior, aggressive marketing and advertising strategies

Property torts

Wrong is committed against the individual who has legally recognized rights with regard to real or personal property

Real property

Land and things permanently attached to land

Personal property

Other property (cars, boats, jewelry, accounts)

Trespass to land

A person, without permission, enters onto, above, or below the surface of land that is owed by another; causes anything to enter onto the land; or remains on the land or permits anything to remain on it after being told to leave

Attractive nuisance doctrine

Young children do not assume risk if they are attracted to the premises by some object

Defenses to trespass 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, involves intentional meddling

Conversion

Any act that deprives an owner of personal property without the owner’s permission and without just cause that places the property in the service of the trespasser or other person

Disparagement of property

Slander of quality, slander of title

Slander of quality (trade libel)

Publication of false information about another’s product (alleging it is not what the seller claims), actual damages must be proved to have proximately resulted from the statements about a competitors products

Slander of title

Publication denies or casts doubt on another’s legal ownership of property which results in financial loss to the owner, someone knowingly publishes an untrue statement about property with the intent of discouraging a third person from dealing with the person slandered

Negligence

Reckless and careless behavior leads to liability

Elements of a negligence case

Duty, breach, causation, damages

Duty

Defendant must owe a duty of care to the injured party (plaintiff)

Causation

Defendant’s breach must cause plaintiff’s injury

Damages

Plaintiff must suffer a legally recognizable injury

Duty of landowners

Protect from harm and warn about known/foreseeable risks

Duty of professionals

Professionals held to higher standards, violation of duty of care leads to malpractice

Causation

Must prove both factual and proximate clause

Injury requirement and damages

Must have legally recognizable injury (suffer some loss, harm, wrong, or invasion of a protected interest)

Special negligence statutes

Dram Shop Act, Good Samaritan Statute

Dram shop act

Bar owner and bartender may be liable for injuries caused by a person who becomes intoxicated while drinking at the bar; liable for continuing to serve drinks to an intoxicated person

Good samaritan statute

Persons who are aided voluntarily by others cannot sue the person who aided them for negligence

Dram

British term for a shot of alcohol

Defenses to negligence

Assumption of risk, superseding intervening force, contributory negligence, comparative negligence

Assumption of risk

If you voluntarily enter into a risky situation knowing the risk involved, you are not allowed to recover damages you may incur (unless it’s an emergency)

Superseding intervening force

Outside force that is interfering with the causal connection of what the defendant did

Contributory negligence

If plaintiff is also negligent, then plaintiff has breached a duty owed to self and doesn’t recover any money from defendant (only some states use this)

Comparative negligence

Jury compares responsibility of fault on each side, and money is split up based on fault (majority of states use this)

Strict liability

No fault liability, the party who had legal liability was trying to do everything right but injury still happened

Abnormally dangerous activities

Involves a potential degree of serious harm, a high degree of risk that cannot be completely guarded against with the use of reasonable care, and is not commonly performed in the community or area

Applications of strict liability

Abnormally dangerous activities, keeping wild animals, keeping domestic animals, quid pro quo sexual harassment

Products liability

Lawsuits involving facts of a company selling/making a product that is the cause of plaintiff’s injuries, can sue the whole chain of production (manufacturer, distributor, wholesaler, retailer, etc)

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

Product liability based on misrepresentation (fraud)

Misrepresentation of a material fact concerning quality, nature of approximate use of the product is made knowingly or with reckless disregard for the truth, buyer/plaintiff had reasonable belief in the misrepresentation

Strict product liability

Most common, consumers should be protected against unsafe products and the manufacturer/seller didn’t take a reasonable amount of care to ensure the product was safe

Requirements for strict product liability

The product must be in defective condition when the defendant sells it, the defendant must normally be engaged in the business of selling (or distributing) the product, the product must be unreasonably dangerous to the user or consumer because of a defective condition, the plaintiff must incur physical harm to self or property by use of consumption of the product, the defective condition must be the proximate cause of injury, the goods must not have been substantially changed from the time sold to the time of injury

Proving defective condition

Plaintiff has to show the product was defective when sold, but they don’t need the science/engineering behind it

Unreasonably dangerous products

The product was dangerous beyond the expectation of the ordinary consumer and/or a less dangerous alternative was economically feasible, but the manufacturer failed to produce it

Economically feasible

Available and attainable

Product defects

Manufacturing defect, design defect, warning defect

Manufacturing defect

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

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, product as a whole is defective

Warning defect

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

Defenses to product liability

Assumption of risk, product misuse, comparative negligence, commonly known dangers, knowledgeable user, statutes of limitations, statutes of repose

Commonly known dangers

No warning necessary, danger that general public would know

Knowledgeable user

Particular danger known to particular user

Statutes of repose

Set maximum amount of time from date of manufacturing that the manufacturer can be liable (~10–11 years after)

Intellectual property

The work of the human mind which consists of the products that result from intellectual and creative processes

Types of intellectual property rights

Trademarks, patents, copyrights, trade secrets

Licensing agreements

To avoid a lawsuit for infringement on an intellectual property a user of another’s property can enter into a contract to receive rights to use the property and in exchange pay a royalty

Trademarks

Something distinctive that a manufacturer affixes to the goods it produces so that they can be identified on the market and their origins made known (source indicator)

Source indicator

Something that makes you think of the company

Lanham Act

Prevents competitors from having confusingly similar marks in a way that deceives customers

Trademark Dilution Revision Act

Protects famous marks; plaintiff must prove they own a famous mark, defendant had begun using a mark in commerce that allegedly is diluting the famous mark, similarity gives rise to an association between the marks, association is likely to impair the distinctiveness of the famous mark or harm its reputation

Trademark regisration

May be registered with state or federal government, can be registered if it is currently in commerce or if the applicant intends to put it into commerce within 6 months

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 distinct to enable consumers to identify the manufacturer of the goods easily and to distinguish between those goods and competing products

Strong marks

Fanciful, arbitrary, suggestive

Fanciful trademarks

Include invented words (google, zerox, kodak, kleenex)

Arbitrary trademarks

Those that use common words in an uncommon way that is non-descriptive (dutch boy [paint])

Suggestive trademarks

Imply something about a product without directly describing the product (dairy queen, quicken)

Secondary meaning

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 (Calvin Klein, Louis Vuitton, Gucci)

Generic terms

Do not receive protection even if they acquire a secondary meaning (bicycle, computer)

Service, certification, and collective marks

Used when companies want to protect service rather than good