ACCT 2700 / Exam 2 / Cochran

Is intellectual property important? Why?

- "To promote progress of science and useful arts" - Because through science and arts, our lives can improve, we can benefit as a society *Every business is closely involved with and concerned about intellectual property

Comparative Negligence:

- 48 states have replaced contributory negligence with the doctrine of comparative negligence - Computes liability of plaintiff and defendant and apportions damages -Ex: Jury finds defendant liable for 90% of damages and plaintiff for 10%. Damages amount to $1,000,000. How much money is owed to each party? 90% x 1,000,000 = $900,000 defendant owes to plaintiff

Explain Corporate Criminal Liability.

- A corporation itself cannot be imprisoned, but can be convicted of crime through acts of its officers - A corporation is a legal entity created under the laws of a state

Merchant Protection Statute

- A merchant may detain a suspected shoplifter or thief without being subject to a claim of false imprisonment if: 1. The confinement is made with probable cause 2. The confinement was for a reasonable time 3. The investigation of the matter was conducted in a reasonable fashion

What is Fraudulent Misrepresentation?

- AKA fraud - Involves intentional deceit for personal gain - Tort includes several elements: ~ Misrepresentation of material facts ~ Intent to induce another to rely ~ Justifiable reliance by innocent party ~ Damages suffered as a result of that reliance ~ Causal connection

Strict Liability includes:

- Abnormally Dangerous Activities (nuclear power plants, fireworks factory) - Keeping Wild Animals - Strict Product Liability (liabilities of manufacturers and sellers for harmful or defective products)

Compensatory damages:

- Actual or "out of pocket" - To compensate for actual loses - 1st thing to look at

Explain use of person's name or likeness.

- Also called Appropriation of Identity - Using a person's name, picture, likeness, or other identifying characteristics for commercial purposes without permission

Explain Intentional Infliction of Emotional Distress

- An intentional act of extreme and outrageous conduct that results in severe emotional distress to another. - Most courts require some physical symptoms or illness - Ex: Georgia man claimed to be having a seizure after repeatedly hitting a woman in his car 4 times.

Defenses to Negligence include:

- Assumption of Risk - Superseding Cause - Contributory Negligence - Comparative Negligence

Property crimes include:

- Burglary (breaking and entering) - Larceny/Robbery (taking away another's property) - Receiving Stolen goods - Arson (willful and malicious burring of a building) - Forgery

Explain Trade Secrets.

- Business processes or info which cannot/should not be patented, copyrighted, or trademarked - Can include: customer lists, plans, research, formulas, pricing info, marketing techniques - Ex: Insurance Salesmen

What are the types of damages?

- Compensatory - Consequential - General - Punitive

What is false imprisonment?

- Confinement or restraint of another person's activities without justification - Shoplifting cases: merchants may reasonably detain customers if there is probable cause

Explain Liability of Corporate Officers and Directors.

- Corp. officers/directors are responsible (personally liable) for crimes either they or their agents commit under the "responsible corporate officer" doctrine

Corporations may be convicted if:

- Crime is within agent or employee's scope of employment - Crime authorized or requested by corporate principal/officer

Explain White Collar Crimes.

- Crimes occurring in the business context using non-violent means to obtain personal/business advantage

Intellectual Property Infringement includes:

- Damages - Seizure/destruction of offending goods - Injunctions - Criminal Liability

Explain Causation in Fact.

- Did the injury occur because of the defendant's act, or would have the injury would have occurred anyway? - "But for" test: but for the action of the defendant, the injury would have not occurred.

Explain Trademarks:

- Distinctive motto, mark, device, or emblem a business uses to identify itself and or its products/services - Associates to product - Ex: McDonalds' golden arches, Coke - Distinguishes a business's product/services from others ~Ex: Coca Cola Co. v. The Koke Co. of America (1920)

Explain publication of information that places a person in False Light.

- Does not include political purposes - Ex: writing a story about a person that attributes ideas and opinions not held by that person

Explain the Duty of Land Owners.

- Duty to warn invitees, exercise reasonable care - Landlords owe reasonable care (duty) to invitees (tenants and guests) for common areas such as stairs and laundry rooms - No duty of care to trespassers ~Although, you do owe a duty to trespassers not to injure them through gross negligence or willful or wanton conduct - You CANNOT set traps for people

White Collar Crimes include:

- Embezzlement - Mail and Wire Fraud - Bribery - Bankruptcy Fraud - Insider Trading - Theft of Intellectual Property

What is Duty of Care?

- Everyone has a duty not to harm others - Defendant owes a duty to protect plaintiff from foreseeable risk that defendant knew or should have known about

What are the classifications of crimes?

- Felonies (serious crimes) - Misdemeanors (non-serious, petty crimes) - Violations

What are Intentional Torts against Property?

- Include: trespass to land and personal property; conversion and disparagement of property.

Copyrights are:

- Intangible property rights granted by the Federal Govn't to the creator of a literary, artistic, newsworthy, or academic work - Works created have automatic protection for the life of the creator plus 70 years - Ex: John Lennon's work and Micheal Jackson

Explain Battery

- Intentional, unexcused - Harmful, offensive, or unwelcome - Physical contact *Do not have to have assault to have battery

Explain Assault

- Intentional, unexcused act - Creates a reasonable apprehension or fear of imminent harm - Immediate harmful or offensive contact *No physical contact necessary - Ex: stalking

Explain intrusion on individual's affairs or seclusion.

- Invading someone's home, searching someone's briefcase/ laptop - Extends to eavesdropping by wiretap, unauthorized scanning of a bank account, compulsory blood testing, window peeping - Ex: Erin Andrews and the man who secretly filmed her in her hotel room naked

Explain Defamation

- Involves wrongfully hurting a person's good reputation - Law imposes duty to refrain from making false statements of fact about others ~ Orally breaching this duty is SLANDER ~ Breaching it in print, media, and/or internet is LIBEL *Actual damages must be proven to recover for slander. Damages are presumed for libel.

What are defenses to criminal liability?

- Justifiable use of force - Necessity - Insanity - Duress - Entrapment - Statute of Limitations - Immunity

To recover, the plaintiff must show what?

- Legally recognizable injury - May recover: compensatory damages, consequential damages, general damages - "To make the person whole again"

What is vicarious liability?

- Makes an employer liable for the torts of their employee - Ex: Walmart's spill response team

Types of Product Defects:

- Manufacturing - Design - Warning

Product Liability includes:

- Misrepresentation - Negligence - Strict Liability - Warranty Theory

Theories of Recovery for Losses:

- Negligence - Strict Liability - Strict Product Liability

Explain public disclosure of private facts.

- Occurs when a person publicly discloses private facts about another that could be considered objectionable or "embarrassing" - Ex: if a newspaper wrote about a private citizen's sex life or financial affairs, even if the information was true.

Explain trespass to land.

- Occurs when a person without permission: ~Physically enters onto, above or below, the surface of another's land ~Causes anything to enter the land ~Remains/Permits anything to remain on the land ~Must have damages to recover for the tort

What is Negligence?

- Occurs when someone suffers injury because of another's failure to live up to a required duty of care. - Tortfeasor doesn't intent the consequences of the act or believes they wont occur. - Tortfeasor's conduct creates a foreseeable risk of injury - Ex: BMW v. Mercedes Benz

Contributory Negligence:

- Old Common Law Doctrine now only used in two states - A plaintiff who contributed to his own injury cannot recover anything from the defendant - Ex: Speeding and running a red-light

Duty of Landowners Example: old man in Mobile

- Old man lived in a house alone and was tired of being robbed. - Put out "No trespassing" signs - Rigged a shot gun to a window, and a burglar got his face blown off (but lived) - While in prison, the burglar decided to sue the old man for setting a "trap" - Court found the old man liable

A foreseeable risk is:

- One in which the reasonable person would anticipate and guard against it. - Does NOT say the wrong person knew about it. - Ex: girl driving and throws it into reverse and hits a person; she didn't foresee it, there was no intent; she just wasn't careful, although IT IS our duty to be careful

Explain Organized Crime.

- Operates illegitimately by providing illegal goods and services - Money Laundering - RICO

Defenses to Product Liability:

- Preemption - Assumption of Risk - Product Misuse - Commonly Known Dangers - Knowledgeable User - Statutes of Limitation and Response

What are the types of Trademarks?

- Product of Business (Goodyear, Coca Cola) - Service (Delta Airlines, RotoRooter) - Certification (Napa Valley Wines, MLB) - Collective (Girl Scouts, Elks, FOP)

Explain Duty of Professionals.

- Professionals may owe a higher duty of care based on special education, skill, or intelligence - Breach of duty is called Professional Malpractice

Types of Property:

- Real - Personal - Intellectual

Explain Trade Dress.

- Refers to the distinctive appearance of the business and/or its products - Ex: Subway v. The El - Same protection as trademarks from copying, confusion, and dilution

Special Negligence Doctrines include:

- Res Ipsa Loquitor - Negligence per se - Good Samaritan Statutes - Dram Shop Acts - Social Host Liablility

Explain Strict liability and over criminalization

- S.L. crimes are offenses that do not require a wrongful mental state - Federal code lists over 4,000 criminal offenses, many do not list a "mental state" - S.L. crimes are found in environmental, drug laws that affect public health, safety, and welfare

General damages:

- Something other than a direct monetary loss - Psychological damage

Consequential damages:

- Special - Not out of pocket - Compensation of medical bills, lost wages and benefits, the loss of irreplaceable items, repairing/replacing damaged property

State of mind (mens rea) includes:

- Strict liability and over criminalization - Corporate Criminal Liability - Liability of Corporate officers and directors

What is a Tortfeasor?

- The person committing the tort - Must "intend" to commit the act: ~ He intended the consequences of his act OR ~ He knew with substantial certainty that certain consequences would result

Punitive damages:

- To punish the wrong doer - Intentional damages - Conduct wasn't just wrong, but bad/evil

Types of Intellectual Property:

- Trademarks - Trade Dress - Trade Secrets - Patents - Copyrights - Digital Copyrights

What are criminal procedures?

- U.S. Constitution provides specific safeguards for those accused of crimes at federal and state level - Criminal Procedures are designed to protect against the arbitrary use of power by the govn't

What are the types of crimes?

- Violent - Property - Public Order - White Collar

Explain Proximate Cause.

- Was an injury foreseeable? - When the causal connection between the act and injury is strong enough to impose liability - Case 6.2 Palsgraf v. Long Island Railroad Co. (1928) - Ex: Frat party problem

What is Conversion?

- Wrongful possession or use of property without permission - Failure to return property entrusted to the defendant *Someone who buys stolen goods can be sued for conversion, even if they didn't know the goods were stolen

What are the 2 notions that serve as the basis for all torts?

-Wrongs -Compensation

To be convicted of a crime, a person must:

1. Commit a guilty act (actus reus) 2. Have the guilty mind/mental state (mens rea) during the commission of the guilty act

The law imposes strict product liability as a matter of public policy and this policy rests on the threefold assumption:

1. Consumers should be protected from unsafe products 2. Manufacturers and distributors should be liable to any user of the product 3. Manufacturers, sellers, and distributors can bear the costs of injuries

Explain wrongful interference with a contractual relationship.

1. Defendant knows about contract between A and B 2. Intentionally induces either A or B to breach the contract 3. Defendant benefits from the breach

What are the elements of negligence?

1. Duty- defendant owed plaintiff a duty of care 2. Breach- defendant breached that duty 3. Causation- defendant's breach caused injury 4. Damages- plaintiff suffered legal injury

What are the 4 acts that qualify as Invasion of Privacy under common law?

1. Intrusion on individual's affairs or seclusion 2. Publication of information that places a person in False Light 3. Public disclosure of private facts 4. Use of person's name or likeness

To establish Defamation, a plaintiff normally must prove:

1. The defendant made a false statement of fact 2. The statement was understood as being about the plaintiff and tended to harm the plaintiff's reputation 3. The statement was made to or published to at least one person other than the plaintiff *4. If the plaintiff is a public figure, he/she must prove actual malice

What are the 2 questions a court asks regarding Causation?

1. Was the defendant's action the causation in fact (actual cause) of the injury? 2. Was it the proximate cause (legal cause) of the plaintiff's injuries?

Dram Shop Acts:

A bar's owner/bartender may be held liable for injuries caused by a person who became intoxicated while drinking at the bar.

What is a Tort?

A civil wrong for which the law provides a remedy.

Explain Invasion of Privacy

A person has a right to solitude and freedom from prying eyes.

What is a Civil Wrong?

A wrong between people, people and business

Truth is generally an __________ ____________.

Absolute defense

Superseding Cause:

An intervening act that breaks the causal link between defendant's act and plaintiff's injury, relieving defendant of liability.

What are invitees?

Anyone you invite specifically or anyone who can lawfully be on your property. (gas meter guy, surveyors, Girl Scouts)

Explain wrongful interference with a business relationship.

Business persons are prohibited from unreasonably interfering with another's business in attempts to gain a greater share of the market.

What are Business Torts?

Business torts generally involve wrongful interference with another's business rights.

The goal of tort law is to ________________ the injured party for the damages suffered.

Compensate "Make the victim whole"

Personal Property:

Consists of all other items, including cash and securities (stock, bonds, and other ownership interests)

Due Care must be exercised in:

Design, materials, production process, assembling and testing, inspection, adequate warnings

Risk-Utility Analysis:

Determines whether the risk of harm from the product by design outweighs its utility to the user/public

Causation is when...

Even though a tortfeasor owes a duty of care and breaches the duty of care, the act must have caused the plaintiff's injurers.

T/F To be held liable for negligence, the likelihood that your conduct/action would cause an injury must have been foreseeable to you.

False

T/F Tort law is designed to protect a person from injury.

False

T/F Vicarious liability means a business will only be responsible for the intentional torts of it's employees.

False

Defendant's liability for strict liability is without regard to:

Fault, foreseeability, standard of care, or causation

What is Transferred Intent?

Intent of the tortfeasor is transferred when he intends to harm person "A" but unintentionally harms person "B"

Real Property is:

Land and things permanently attached to the land (house)

Social Host Liability:

Liabilities imposed on social host (party host) for injuries caused by guests who became intoxicated at the host's house.

What is Actual Malice?

Made with either knowledge of falsity or reckless disregard for the truth

What does the Anti-Cybersquatting Consumer Protection Act do?

Makes it a federal offense to register a domain name over which you have no rights to

Negligence Per Se:

May occur when an individual violates a statute or an ordinance providing for a criminal penalty and that violation causes another to be injured.

Violent crimes:

Murder, sexual assault, rape, robbery, aggravated robbery

What is protected by a copyright?

Only the expression of an idea, not the idea itself

Who are trespassers?

People who are not allowed to come onto your property

Assumption of Risk:

Plaintiff has knowledge of risk, or the risk is obvious, and engages in the act anyway.

Punitive Damages are designed to....

Punish the tortfeasor and deter others from wrongdoing.

Good Samaritan Statutes:

Someone who is aided voluntarily by another cannot turn around and sue the "good samaritan" for negligence.

T/F Our society imposes upon you a duty not to injure anyone.

True

How does assumption of risk prevent a person from recovering damages for negligence?

Understanding an injury can occur but taking part anyways (ex. sky diving--you sign waivers to participate knowing the possible damages)

The greatest tort risk to business today involves __________ ___________.

Vicarious Liability

Copyright Infringement is:

When unauthorized copying occurs

Tort is the French word for ________

Wrong

Duress is...

Wrongful threat induces another to commit a crime