Untitled Flashcards Set

Tort - A civil wrong

Purpose: to provide remedies for the violation of various protected interests

Damage - injury/destruction of property

Damages - monetary compensation for the wrong doing

Compensatory damages: money intended to restore a plaintiff to the position he was in before the injury

Special damages: compensate the plaintiff for quantifiable monetary losses

General damages: compensate individuals (not companies) for the non monetary aspect of the harm

Punitive damages: they exceed simple compensation and are awarded to punish the defendant 

• ONLY awarded in intentional tort actions & rarely in negligence lawsuits.

• subject to limitations under the due process law

• The government DOES have the right to limit punitive damages

Gross negligence - an action committed with extreme reckless disregard for the property or life of another person

* Classifications of torts: intentional and unintentional (negligence)

* Purpose of defense: even if the plaintiff can prove all elements of the tort the defendant can argue a defense to limit or eliminate the liability of the act

* Types of defenses: consent, comparative negligence and statute of limitations (2 yr limit)

Tortfeasor - person who commits a tort

*Intentional torts do NOT require motive ; the defendant can commit the tort without any bad intentions

Transferred intent - when a defendant intends to harm one individual, but unintentionally harms a second person

Assault - intentional & inexcusable threat or immediate harmful of offensive contact (verbal or physical) that can occur without any physical contact being made (if plaintiff can prove immediate harm was about to happen)

Battery - intentional harmful or offensive physical contact unwanted by the plaintiff OR something set in motion to harm the plaintiff

Plaintiffs compensation: emotional distress, physical harm, damage to reputation

Defenses: consent, self defense, defense of others or property

False Imprisonment - confinement or restraint of another person’s activities without justification

Privilege to detain - granted to businesses, a law in most states allowing them to detain shoplifters with reasonable force for the police

Intentional infliction of emotional distress - an intentional tort in which the harm results from extreme and outrageous conduct that causes serious emotional harm.

*  The plaintiff needs ACTIONABLE PROOF to sue for emotional distress

* The FIRST amendment limits the emotional distress claim

Defamation - wrongfully hurting others reputation

Defenses: TRUE statement, privileged speech, speech concerns a public figure

*Usually filed in a state court!

Libel - written or recorded defamations that are permanent

Slander - defamation in oral (temporary) form that causes the plaintiff to suffer economic or monetary loss

* Defamation DOES apply to business & their products

4 Steps to Defamation

*General damages are awarded for breach of libel/defamation

*To establish slander the plaintiff must prove special damages (economic/monetary loss)

Slander per se - when oral statements relate to criminal or sexual conduct, contagious diseases, or professional abilities, they are assumed to be harmful to the subject’s reputation

*Types of privileged speech: absolute and qualified

Absolute Privilege - immunity granted to judicial and government proceedings

Qualified Privilege - the statement is made in good faith and was only shown to individuals with interest

Privacy - the tort “invasion of privacy” protects our right to privacy

* In order to sue for breach of privacy the plaintiff must prove an expectation of privacy OR Invasion must be highly offensive

Acts that identify with invasion of privacy 

1. Intrusion to an individual affairs or seclusion - invading someone's home or property, stalking, eavesdropping, & unauthorized scanning of bank account

2. False light - publication of information that places a person in a false light

3. Public discourse or private facts - a person discloses private facts about a person that anyone would find embarrassing

4. Appropriation of identity - using a person’s name, picture, likeness, or other identifiable characteristic for commercial purposes without permission

Fraud - any misrepresentation, either by misstatement or 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

Statement of opinion - can be considered a statement of fact if the individual making the statement have superior knowledge on the topic

Negligent misrepresentation - fraud committed by someone who should have known what they were saying was false

Abusive or frivolous litigation - the filing of a lawsuit without legitimate grounds and with malice & the use of a legal process in an improper manner

Abuse of process - does NOT require the plaintiff to prove malice and is NOT limited to before trial

Business torts - wrongful interference with another’s business rights and relationships 

Wrongful interference of a contractual relationship : 1. valid & enforceable contract must exist 2. a third party must know the contract exists 3. third party must intentionally induce a party to breach the contract

Wrongful interference with a business relationship: when a person uses predatory tactics to take another business’s customer

*Defense to wrongful interference: the interference was justified or permissible & bona fide competitive behavior is a permissible interference even if it results in the breaking of a contract.

Intentional torts against property

1. Trespass to land - the entry onto, above, or below the surface of land owned by another without the owner’ permission or legal authorization

2. Trespass to personal property

3. Conversion

4. Disparagement of property

Real property - land & things permanently attached to the land

Personal property - ^everything else

*Establishing trespass - before making someone a trespasser there has to be a sign warning, but if the person enters onto another’s property to commit an illegal act (stealing) is trespassing without posted signs

*Liability of harm of trespasser is subject to reasonable duty of care

Attractive nuisance doctrine - if a child is attracted to something on your property and trespasses which results in injury, the home is liable for damages

*Defenses to trespassing - the trespasser can prove they were warranted (saving someone in danger) or the trespasser had license to enter

License - one who receive a license to use or enter onto, another’s property

Trespass to personal property - whenever any individual wrongfully takes or harms the personal property of another or otherwise interferes with the lawful owner’s possession and enjoyment of personal 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. (failure to return goods or intention meaning thought they were entitled to the goods)

Disparagement of property - an economically injurious false statement made about another’s product or property (slander of quality or title)

Slander of quality - the publication of false information about another’s product, alleging that it is not what it's seller claims (trade libel)

*To prove slander of quality the plaintiff must prove improper publication caused a third party to refrain from dealing with the plaintiff and the plaintiff suffered economic damages

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

Unintentional torts(negligence) - someone suffers injury because of another’s failure to live up to a required duty of care

*Negligence involves risk and it is foreseeable

In order for the plaintiff to prove negligence it must prove…

1. Duty - defendant has a duty established

2. Breach - the duty was breached

3. Causation - the defendants actions caused plaintiff's injury

4. Damages - plaintiff suffered a legally recognizable injury

3 factors in determining whether duty of care has been breached…

1. Nature of the act (was it outrageous?)

2. The manner in which the act was performed (was it cautious?)

3. Nature of the injury (was it a serious injury?)

Reasonable person standard - a measurement of the way members of society expect an individual to act in a given situation

The duty of landowners - people who invite others onto property have a duty to keep the premises safe

Duty to warn business invitees of risks - that they know about or should have known about unless the risk is very obvious

Duty of Professionals

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

• Breach of duty is called professional malpractice

• Their skills & expertise are taken into account when considering what is reasonable

Malpractice - professional negligence (medical or legal)

*Is there causation in fact?

*Was the act the legal cause of injury?

Foreseeability - it is unfair to make the defendant liable for their actions unless they knew about the foreseeable risk

*Harm or injury must be present for the plaintiff to receive compensation for negligence

*Good samaritan statute

Defenses to negligence…

• Plaintiff failed to prove one of the elements of negligence

• Assumption of risk

• Superseding cause

• Contributory & comparative negligence

Assumption of risk..

• Plaintiff was aware of the risk

• Voluntary assumption of the risk

Superseding Clause - an intervening force or event that breaks the connection between a wrongful act and and an injury to another; in negligence law, a defense to liability

Contributory Negligence - a rule in tort law, used in only a few states, that completely bars the plaintiff from recovering damages if the damage suffered is partly the plaintiffs own fault

Comparative negligence - a theory in tort law under which the liability for injuries resulting from negligent acts is shared by all parties who were negligent, on the  basis of each person's proportionate negligence

*Fletcher v Ryland : strict liability

Strict liability - the legal responsibility for damage or injury even if you are not negligent

Product liability - the legal liability of manufactures, sellers, and lessors of goods to consumers, users, and bystanders for injuries or damages that are caused by the goods.

Abnormally dangerous activities- involve a high degree of risk of serious harm and are not matters of common usage ; even if reasonable care is taken by the defendant, they still have responsibility to compensate those who were harmed bc of the risk involved (keeping wild animals or dangerous domesticated pets)

Product liability is a matter of social policy & based on…

1. Manufacturer can bare the cost of injury because it can increase the price of its products

2. Manufacturer is making profit from its products and should bare the cost of injury as an operating expense

Negligence under product liability - manufacturer owes due care to safely produce and distribute the product

Due care must be exercised in..

1. Designing the product

2. Selecting the materials

3. Production process

4. Assembly & testing

5. Warning labels

6. Inspecting/testing any purchased components of the product

Privity of contract - the relationship that exists between the promisor and the promise of a contract

*The plaintiff must prove (cause in fact and proximate cause) 

Liability of misrepresentation 

• Injury was a result of sellers/manufacturers fraudulent misrepresentation

• Must be material of fact

• Seller intended to be misleading

Public policy rests on…

1. Consumers should be protected against unsafe products

2. Manufacturer should not escape liability bc there is no privacy of contract

3. Manufacturer can bear the costs of liability bc they can raise their prices

Strict Liability 6 requirements

1. Product is in defective condition when the seller sells it

2. Defendant must be normally engaged in business

3. The product must be unreasonably dangerous to plaintiff bc of its defect

4. Plaintiff must incur physical harm to self or property

5. Defective condition must be the proximate cause of the injury

6. Product cannot be substantially changed from time of purchase

Unreasonably dangerous

• Product is dangerous beyond the expectation of a customer

• A less dangerous alternative was economically feasible for the company but they didn’t pursue it

Types of product liability

1. Manufacturing

2. Design

3. Inadequate warnings

Manufacturing defects -  occurs when a product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product

Design defects - occurs when a product is manufactured according to the manufacturer’s standards, but the product injuries a user due to its unsafe design

• Prove there was an alternate design available but didn’t adopt it

• The design caused the product to be unreasonably safe

• Risk utility analysis consumer expectation test

Inadequate warnings - liability based on foreseeability that proper instructions/labels would have made the product safe to use 

• Seller has to warn users of foreseeable risks

• Lack of warning must be proximate cause

• Defense: obvious risks

Content of warnings - courts apply a “reasonableness” test to determine if the warnings adequately alert consumers to the products risks

Application to strict product liability

1. Injury to bystanders of the product

2. Applies to suppliers of component parts

Defenses to product liability

• Preemption

• Assumption of risk

• Product misuse

• Comparative negligence (fault)

• Commonly known dangers

• Knowledgeable user

• Statutes of limitations and repose

• Defendant has no basis for the lawsuit

Preemption - an injured party may not be able to sue for a defective product if the product is subject to comprehensive federal regulatory schemes

Assumption of risk - plaintiff knew the risk caused by the product defect

Product misuse - plaintiff uses a product in a way it was not intended to be used

Comparative negligence - plaintiff's own negligence contributed toward the injury ; only defense that doesn’t completely eliminate defendants liability but dissolves their damages

Knowledgeable user - a danger so commonly known by particular users of the product that the defendant had non duty to warn plaintiff

Statue of limitation - exists that requires a plaintiff to start the lawsuit within a certain period of time and if the plaintiff waits too long and misses the deadline 

Repose - outer time limits in product liability where the plaintiff must file the lawsuit within 12 years of purchase

Toll - applies to statute of limitations where the time period of filing the lawsuit may be suspended until the injury is discovered or should have discovered it

Statutory protection of trademarks - federal level ; Lanham Trademark Act 1946 creates incentives for companies to invest & prevents unjust enrichment of companies who infringe

Trademark dilution - using someone's trademark in such a way so as to reduce the value of the trademark’s significance, reputation, and goodwill, even if the public is not confused by the use

Trademark registration - may be registered with the state or federal government if.. (it is currently in commerce OR applicant intends to put it into commerce within six months

Registration renewal - between 5th and 6th year after initial registration and every 10 years after that

Trademark infringement - unauthorized use of another’s mark, the holder may recover damages and other remedies from the infringer, intent is not necessary

Distinctiveness of the mark - a trademark must be sufficiently distinctive to enable consumers to identify the manufacturer of the goods easily and to distinguish between goods and competing products (strong marks, secondary meaning, generic terms)

Strong marks - fanciful, arbitrary, or suggestive trademarks that are usually unrelated to the nature of the product or service (most distinctive, facial arbitrary, suggestive)

Secondary meaning - descriptive/geographic terms & personal names that acquire meaning over time ; depends on how much the brand is advertised, the market for the products & the number of sales ; only gains protection when it has acquired secondary meaning

Generic terms - refer to an entire class of terms ; have NO secondary meaning even if they acquire secondary meaning ; just bc a trademark name becomes common doesn’t mean it’s now generic

Trade names - part or all of a businesses name ; protected under common law ; only protected if the name is unusual or financially used

Patents - licenses that give an inventor the right to make, use, sell an invention for a set period of time (20 years) ; patents for designs are 14 years ; starting when patent is filed not issued ; race to the patent office: first to file gets patent rights ; challenges to a patent are prohibited for the first 9 months

Patent infringement - making, using, or selling another person’s patented product, process, or design without permission from the owner

Remedies for patent infringement - owner may sue in federal court ; injunction & royalties to compensate for loss ; to have a permanent injunction, patent holder must prove

Treble damages - losing party has to pay the winning parties attorney fees

Copyrights - intangible property right granted by the federal government to the creator of a literary, artistic, newsworthy or academic work

Creative commons - collection of expired copyright works where the law cannot control what you do with the material you find

Copyright registration - U.S copyright office (huge filing cabinet) ; registration is NOT required to use any copyright symbol or to get protection rights ; changes are if somebody created it, someone owns it.

*Remedies for copyright infringement - damages: actual compensation for loss, statutory: must not exceed $150,000, injunction: stop using it

6 fair use exceptions

1. Criticism

2. Commentary

3. News reporting

4. Teaching

5. Scholarship

6. Research

4 statutory factors

1. Purpose/character in use

2. Nature of copyrighted work

3. Amount/portion of work used in relation to the whole work

4. Effect of the use on potential market/value of work

Plagiarism - using someone else’s writings or ideas as your own

Trade secrets -information owned by the company by which the company gains a competitive advantage

- best way to protect a secret recipe

- must be disclosed to essential employees (have them sign a contract before they start walking to keep secrets confidential)

Difference between trade secrets and trademarks/copyrights

- no registration or filing requirements

- protection extends to ides & their expressions

- suitable for software

Pros/cons of trade secrets

- can be longest lived form of IP

- can be inexpensive

- can be expensive (stealth fighters)

- doesn't always work

The practical significance of admin law

- congress or state legislature usually adopts a general state and leaves its implementation (details) to an admin agency

- benefits to society/environment result from admin law but there are great costs to business

*Admin law is created by admin agencies (they create regulations to carry out a statute)

*Admin agencies at the federal level → securities & exchange commissions regulates a firm's capital structure and financing

*Admin agencies at the state level → created as a parallel to a federal agency

Amin procedure act (APA) - general statute which details the procedural requirements of all federal agencies ; congress can change the procedural requirements for an agency in its enabling statute ; in the absence of directive from congress agencies follow APA

Fair Notice - the notice that regulatory agencies must give to those affected by its regulations

Rulemaking procedures

- major function of admin agency

- rule: statement of applicability to implement law and policy

- notice-comment-rulemaking

the admin process

all federal agencies must follow procedural requirements as they go about fulfilling their 3 basic functions:

1. rule making

2. enforcement

3. adjudication

notice-comment-rulemaking

- notice of the proposed rulemaking: published in federal register (daily publication of the executive branch)

- a comment period: time for people to respond to the proposal (in writing or orally if a hearing is held) & agency must respond to significant comments

- the final rule: drafts final rule and publishes it in the federal register based on any modifications from comments

agency enforcement

- inspections: used to collect evidence of a regulatory violation (facilities or business records)

IF the business or individual refuses inspection:

- subpoenas: 2 types used to obtain testimony or documents

- search warrants: granted by law to search & seize to obtain a specific piece of evidence

limits to subpoenas

- purpose of investigation must be legitimate

- relevance of information being sought (reveals law is being violated)

- specificity of demand for testimony or documents

- burden of the demand on the party of whom the information is sought

5 adjudication elements

1. negotiated settlements

2. formal complaints

3. role of the admin law judge

4. hearing procedures

5. agency orders

negotiated settlements

the purpose is to rectify the problem to the agency's satisfaction and eliminate the need for additional proceedings

appealing to firms for 2 reasons:

1. avoid appearing uncooperative

2. avoid expense involved in formal adjudication

appealing to agencies bc they don't have to use as many resources

formal complaint

if the issue is not settled, the agency may file a formal complaint

the hearing

a trial-like procedure before an admin law judge (AJA)

- agency must provide notice w facts and law on which complaint is based, the legal authority for the hearing, and its time & place

role of admin law judge

- presides over hearing

- power to administer oaths, testimony, or questions

- works for agency filing the complaint

- AJA must be separate & no ex parte (private communications)

agency orders

following a hearing, the ALJ renders an initial order, or decision on the case. If no party appeals the case, the ALJ's decision becomes the final order of the agency

judicial defense to agency decisions

courts give deference to the agency decisions on factual questions and chevron deference to questions of law

2 chevron questions

1. did congress directly address the issue in the dispute of the statute?

2. if the statute is ambiguous, did the agency have reasonable interpretation? if it is, then the court will side with agency regardless if the judge would have interpreted it differently

freedom of info act

federal government to disclose certain records to any person or entity on written request even without reasoning

government in the sunshine act (open meeting law)

every portion of every meeting of an agency to be open to public observation & public must be notified of meetings

exceptions (closed meetings):

- concerns accusing a person of a crime

- open meeting would frustrate implementation of future agency actions

- involves matters relating to future litigation or rulemaking

regulatory flexibility act

requires an analysis of the cost a regulation will impose on small business and must consider less burdensome alternatives

small business regulatory enforcement act

ease regulations on small business:

- agency must state how small business could comply with the regulation

- congress may review 60 days before the are implemented to give opposing side time to build their argument

- agency will consider alternatives for the small business

- small businesses are allowed to comment

key elements of consumer protection

- advertising, marketing & sales

- labeling and packaging laws

- consumer health and safety

what are the acts concerning consumer protection in telemarketing and fax advertising?

- consumer protection act o f1991 (TCPA)

- telemarketing and consumer fraud and abuse prevention act

what are the types laws of consumer protection concerning sales?

- the cooling-off period

- FTC mail/internet/telephone order merchandise rule

what needs to be labeled under labeling and packaging laws?

- auto fuel economy labels

- food labels (fair packaging & nutrition labeling)

what are the 2 main acts under consumer health and safety?

- the federal food, drug, & cosmetic act (FFDCA)

- consumer product safety act (CPSA)

what was created under the federal trade commission act of 1914?

- deceptive advertising

- FTC

Cruz v. Anheuser-Busch Companies

- cruz sues Busch for advertising their beer as "light" even though it has just as many calories as a regular drink

- cruz loses

what are claims based on half-truths?

the ad is deceptive bc of what is doesn't tell the consumer

what is bait-and-switch advertising?

advertising an unusually low price, often on a brand that will draw consumers to the store, combined with personal selling tactics that discourage the purchase of the advertised item and encourage the purchase of a higher priced item

what are the 2 different kinds of FTC remedies?

1. damages: money that goes to the FTC

2. restitution: money that goes to consumers

Warner-Lambert v. FTC

listerine case of "curing common cold", didn't thus unfair and had to use corrective advertising (appellate courts only changed what they had to say in the ad, not the price they had to pay)

TX Deceptive Trade Practices Act (DTPA)

- TX consumer law that has a long list of deceptive and unfair practices for which a merchant/ seller of goods can be liable

- demand letter must be written to correct whatever needs to be fixed

- treble (triple damages), attorney fees, & cost of court must be reimbursed by company

telephone consumer protection act (TCPA)

- $11,000/day for violations

- prohibits telephone solicitation using automatic dialing or prerecorded voice

- allows private lawsuits

- consumer can recover monetary loss OR $500 per violation, whichever is greater

- if the act is violated willfully, treble damages may be incurred

telemarketing and consumer fraud and abuse prevention act

- telemarketer must tell the consumer that the call is a sales call & to identify the seller and product

- must inform consumer of total cost of the goods/restrictions/if it will be final & nonrefundable

- remove customers name from calling list if they request it

cooling-off laws

consumers get 3 days to back out of a purchase without penalization

cooling-off laws apply to:

- trade show sales

- home equity loans

- internet purchase contracts

- door-to-door sales

FTC Mail, Internet or Telephone Order Merchandise Rule

- requires companies to ship orders in the time they say they're going to

- notify of any shipping changes

- refund in a specified time period

what act created the requirement of auto fuel economy labels?

energy policy and conservation act (governed by EPA)

what does the auto fuel economy labels require?

can manu must label every new car with fuel economy estimation

what does the nutrition labeling and education act enforce?

- requires labels that state standard nutrition facts

- controls use of words like fresh, lawful, & transfer-free

t/f: FDA allows trace amount of pesticides in fast food in America

t :(

what does the FDA regulate?

- protect consumers against misbranded and adulterer food and drugs

- establishes food standards, specifies safe levels of potentially hazardous food additives, and sets classifications of food and food advertising

- monitors and enforces FFDCA

what does the FFDCA enforce?

- must be proven effective and safe before mad open to public

- food additives suspected of causing caner are banned

- medical devices & equipment

torts

civil wrongs other than breach of contract

3 types of torts

1. intentional: trying to cause harm (focuses on the act)

2. negligence: 1 court many applications

3. strict liability: no fault liability (not reckless)

assault & battery

- assault can lead to battery

- assault doesn't matter if they are unaware of the situation

what does the plaintiff have to prove to argue battery?

physical contact

can you argue assault/battery if it is not an immediate threat?

no

is malice necessary for battery?

no intent to do harm is necessary/ offensive touching counts

intentional infliction of emotional distress

- applies to freedom of the press

- hard to prove alone

in TX to prove emotional distress you need what?

proof of the emotional distress

Hustler Magazine v. Falwell

- jerry Falwell was a conservative preacher and a liberal magazine made a cartoon of him that reflected poorly on his character and made jokes about inscest

- 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

when it comes to defamation, how does the court determine what damages are fair?

- how big or misleading was the lie

- how good was the persons reputation before the defamation

if the lies are inherently damaging to the reputation the person, does the plaintiff need to prove special damages?

no

under slander per se, a statement that an unmarried woman is unchaste also applies to who?

- married women

- men

what are the 4 separate torts that qualify for defamation?

1. intrusion

2. false light

3. public disclosure of private facts

4. appropriation of identity

what are the 3 types of intentional torts?

1. torts against persons

2. torts against a business

3. torts against property

Texaco v. Pennzoil

plaintiff = penzol, defendant = texaco

pennzoil and getty enter into agreement for merger

pennzoil and getty sign memo agreement

both issue press releases

now, texaco makes offer to acquire getty

getty cancels pennzoil agreement and accept texaco

pennzoil sues texaco, 3 bil for penzool awarded

did pennzoil and getty have a contract

sooooo

texaco and getty do have a contract

texaco lost in trial court for $13 billion

trespass to land includes what?

- above- airspace

- below- oil & gas

Katko v. Briney

because spring gun was set in unoccupied house, D was not privileged to use deadly/serious bodily harm force since life is more valuable than property & katko wins