MGT 201 EXAM 2 KRELLA

chattel

personal property

Fifth Amendment

prohibits government from forcing individuals to testify against themselves. the right against self incrimination Miranda V Arizona

False Light

Giving publicity to a matter concerning someone that places that person in a false light, which is offensive to a reasonable person

Damages

-The defendant's conduct must actually cause harm. If you slip on a banana, but you are uninjured, then you can't support your claim for damages. -Use economists and experts to testify and provide evidence as to the value of limbs, life, etc.

freedom of speech

1st amendment, First Amendment states that, "Congress shall make no law abridging the freedom of speech."

Breach of Duty

A breach is demonstrated by showing that the defendant failed to act according to the relevant standard of care. ● Typically that they failed to act as a reasonably prudent person would in those circumstances.

lost property

A category of personal property where the property has been unintentionally relinquished by its owners.

tort

A civil wrong, other than a breach of contract.

Sixth Amendment

A constitutional amendment designed to protect individuals accused of crimes. It includes the right to counsel, the right to confront witnesses, and the right to a speedy and public trial. The right to an attorney

undue burden

A constitutional test created by the Supreme Court to determine a law's validity

lease agreement

A contract for the possessory interest in land.

Assumption of Risk

A defense against negligence that can be used when the plaintiff was aware of a danger and voluntarily assumed the risk of injury from that danger. The plaintiff voluntarily and knowingly assumed the risk. ● Waivers ● Instructions ● Signs, etc.

Shopkeeper's Privilege

A defense to false imprisonment which allows businesses confronted with potential thieves to detain suspects until police arrive at the establishment

due diligence

A duty of care imposed on prospective buyers of real property to exercise reasonable judgment or prudence to inspect property for defects. Classification Level of Duty Trespasser: Duty not to intentionally injure (Attractive nuisance doctrine requires a duty to protect children from dangerous conditions) Licensee: Duty not to intentionally injure but to warn about known defects Invitee: Duty to inspect for defects, correct defects, and warn about defects As a landowner you owe various duties to those who enter your property

forgery

A form of counterfeiting.

Fee Simple Defeasible

A form of ownership based on a condition or restriction, the violation of which can result in loss of ownership.

Fee Simple Absolute

A form of ownership in real property in which the owner has absolute ownership, subject to legal restrictions on usage (e.g., zoning).

Reversion Interest

A future interest in real property.

Mens Rea

A guilty mind, or a criminal state of mind. To be convicted of most crimes, someone must possess the required criminal state of mind,

exclusionary rule

A means to suppress evidence that was obtained illegally

Production

A method of acquisition of personal property ownership, which involves creating the property. •Making a birdhouse, recording music, etc.

Comparative Negligence

A partial defense that reduces the plaintiff's recovery by the amount of the plaintiff's own negligence. ● $100,000 claim. Plaintiff is 30% negligent, so the claim is reduced to $70,000.

Tortfeasor

A person who commits a tort

Tresspasser

A person who voluntarily, intentionally enters the land of another without permission or privilege.

Leasehold Interest

A possessory interest in real property.

tenant

A possessory ownership or leasehold interest in land.

crime

A public injury that is punishable by the government. the government collects the evidence and files charges against the defendant. In order to be convicted of a crime the defendant must have mens Rea and acts Rea

Bona Fide Purchaser

A purchaser who takes title in good faith, with no knowledge of competing claims to title.

Ponzi Scheme

A pyramid scheme, which is a particular type of fraud.

white-collor crime

A term used to describe nonviolent crimes committed by people in their professional capacity or by organizations.

intentional torts

A type of tort where the defendant acts with the intent to cause a particular outcome

deed

A writing that conveys title to real property.

environmental crimes

Actions that violate federal or state statutes relating to the environment, which carry criminal sanctions.

Defenses to Negligence

Affirmative defenses are asserted by the defendant and essentially admit the facts, but provide some justification or legally recognized excuse for the conduct. 1. assumption of risk 2. open and obvious 3. contributory negligence 4. comparative negligence 5. Good Samaritan law

Contributory Negligence

An absolute defense in situations where the plaintiff contributed to his or her own injuries

Bailment

An arrangement in which the rightful possessor of personal property gives the property to someone who has agreed to hold the property and who has a duty to return it.

consent

An exception to the warrant requirement, in which a person with valid authority permits a search to proceed without a warrant.

Stop and Frisk

An exception to the warrant requirement, specifically permitted when a person is stopped for some permissible purpose by law enforcement officers. Allows a pat-down search or a "frisk." if someone is stopped lawfully, that person may be frisked without a warrant

lawful arrest

An exception to the warrant requirement, specifically referring to a pat-down search permitted when someone is lawfully arrested. This exception exists to protect the police officer. For instance, if the police could not search someone who was just arrested, they would be in peril of injury from any weapon that the person in custody might have possession of

Exigent Circumstances

An exception to the warrant requirement, specifically when an emergency exists, such as a hot pursuit.

Automobile Exception

An exception to the warrant requirement, specifically when the vehicle is detained pursuant to a lawful stop. means that an automobile may be searched if it has been lawfully stopped

political speech

Any speech dealing with politics or political figures.as speech most deserving of protection. Political dissent, displeasure with the government, forced loyalty oaths, restrictions on party membership, and even speech advocating the overthrow of government, all deserve extraordinary protection under the First Amendment.

Supremacy Clause

Article VI of the Constitution, which makes the Constitution, national laws, and treaties supreme over state laws when the national government is acting within its constitutional limits. Federal law overrides state law

Malpractice

Business professionals owe a special duty of care to the people they serve to act as a reasonable person in their profession. ● Medical malpractice ● Accounting/financial malpractice ● Legal malpractice ● Architects

Causation

Causation in fact - But for the defendant's conduct, would the plaintiff have been injured? Proximate Cause - Was your conduct the proximate cause of the plaintiff's injury? ● If you could foresee the injury, then proximate cause usually found to exist.

conversion

Civil tort of stealing property from another

spending power

Congress's power to spend public revenue to meet broad public objectives.

Warranty Deed

Conveys title and a warranty against defects in title, and states that there are no undisclosed encumbrances.

cyber crimes

Crimes that are committed virtually.

Intentional Infliction of Emotional Distress

Extreme and outrageous conduct (measured objectively) that intentionally or recklessly causes severe emotional distress to another Not about Plaintiff's feeling. About reasonable person standard Some states require physical manifestation of the harm -- loss of sleep, depression, anxiety, PTSD, etc. The sensitivities of the Plaintiff are taken into account (age, health concerns, etc.)

Defamation

False statements that impugn or damage someone's character or credibility. Not protected under the 1st Amendment and is an actionable tort

Wire Fruad

Fraud committed over interstate wire, such as by telephone.

Owed a duty of care

Generally you are free to act as you want, unless or until your action impacts the rights of another You generally see a duty present in most cases ● If you act a certain way, is it foreseeable that a third party will be harmed by your conduct? If so, a duty generally exists. ● As a business, you have a duty to clean up messes, clear snow from your sidewalk, etc. and danger you knew or should've known about As a landowner, you owe a duty of care to those on your property to protect them from foreseeable harm ● This is true even for trespassers ● Loose step, etc. Got to tell them of the danger you know about.

Trespass to Land

Intentional entry to land owned by another without legal excuse.

battery

Intentional, unconsented, unwanted, or offensive contact

Assault

Intentional, unexcused act that creates in another a reasonable apprehension or fear of imminent harmful or offensive conduct

false imprisonment

Intentionally confining or restraining another person's movement without justification. Must be actual and present confinement

Real Property (Real Estate)

Land, and certain things that are attached to it or associated with it.

Open and Obvious

Landowner is protected from liability if an invitee is injured by an open and obvious danger or hazard.

Employee Theft

Larceny by employees.

Adverse Possession

Method of obtaining real property by accomplishing the following 5 elements: 1.Possessor is in actual possession of the property; 2.The possession is open and notorious (visible to others); 3.The possession is hostile; 4.The possession is continuous; and 5.The possession is exclusive of others

misappropriation of trade

Obtaining a trade secret by improper means.

embezzlement

Occurs when someone takes property that was in his or her possession lawfully and then converts it to his or her own use.

Whistleblower

People who report the illegal activity of their employers or of their organization to authorities

private property

Property that is not real property

fungible

Property that is not uniquely identifiable and is subject to easy mutual substitution.

public property

Property that is owned by the government.

Fourth Amendment

Protects against unreasonable search and seizure Exceptions: 1. plain sight 2. hot pursuit 3. giving consent 4. serach incident lawful arrest

defamation

Publishing or saying untrue statements about a living person that harms his or her reputation. Slander - spoken defamation Libel - written defamation Malice - Conscious, intentional wrongdoing Trade disparagement - Publishing false information about another person's product

Miranda warnings

Read to persons in custody, so that they are made aware of some of their constitutional rights. Failure to read them when someone is subject to a custodial interrogation may render statements uttered by the suspect inadmissible under the exclusionary rule.

Invitee

Someone who has entered real property by invitation.

Licensee

Someone who has permission to be on the land.

commercial speech

Speech made by nonhuman entities, One area of First Amendment law that remains unsettled is what rights corporations have to speak, also known a

symbolic speech

Speech that is not uttered or printed but displayed or performed instead. Political speech is not always written or uttered it is in the form of this The Supreme Court has held, for example, that burning the U.S. flag as a form of protest against U.S. government policy is this form of speech, and therefore, attempts to criminalize flag burning are unconstitutional restrictions on political speech.

Slander

Spoken form of defamation and not protected under 1st Amendment

Good Samaritan Law

State laws that shield those who aid the injured from negligence liability. ● Performed CPR, but you broke victims bones, etc.

commerce clause

The clause in the Constitution (Article I, Section 8, Clause 1) that gives Congress the power to regulate all business activities that cross state lines or affect more than one state or other nations. Gives congress the authority to regulate commerce with foreign nations, and among the serval states, and with Indian tribes

assignment

The ability to transfer rights conveyed by a contract to another party. Lease interests are assignable unless those rights are expressly restricted by the lease agreement. This means that the rights conveyed by the lease, which is a contract, may be transferred to another party by

Negligence

The breach of the duty of all persons, as established by state tort law, to act reasonably and to exercise a reasonable amount of care in their dealings and interactions with others To prove negligence, plaintiffs have to demonstrate the presence of certain elements: (1) defendant owed a duty to plaintiff; (2) the defendant breached that duty; (3) the defendant's conduct caused injury to the plaintiff; (4) the plaintiff wasinjured/damaged by the conduct. Because we are talking about elements each one has to present or there is no negligence.

Dormant Commerce Clause

The concept that restricts states from placing an undue burden on interstate commerce. States can't discriminate against out-of-state business or treat them differently

Federalism

The division and sharing of power between state and federal governments.

speration of powers

The division of enumerated powers of government among separate branches, typically the legislative, executive, and judicial.

Incorporation

The doctrine by which certain provisions of the Bill of Rights are applied against the states.While many portions of the Bill of Rights apply to the states, not all of it does. There is no requirement, for example, that states use a grand jury system to indict criminals. There is also no requirement that states provide juries in civil trials.

Bill of Rights

The first ten amendments to the U.S. Constitution. Ror example, the First Amendment states that, "Congress shall make no law abridging the freedom of speech." In fact, there are many laws that limit the freedom of speech. You aren't allowed to libel or slander someone, for example, or incite a crowd into a riot. Instead of absolute rights, courts have to constantly balance competing interests in deciding where the limits of our rights lie.

Police Powers

The general power of states to regulate for the health, safety, and general welfare of the public

fraud

The misrepresentation of facts (lying) with knowledge they are false or with reckless disregard for the truth. Puffery - Promotional statements expressing subjective views.

invasion of privacy

The intrusion into the personal life of another without legal justification

title

The ownership rights in property.

Intermediate Scrutiny

The standard of review in which government must prove the law is substantially related to an important government interest.test is reserved for cases where the government discriminates on the basis of sex or gender.

Equal Protection Clause

The portion of the Fourteenth Amendment requiring states to provide the equal protection of laws to persons within their jurisdiction. "No state shall deny to any person within its jurisdiction the equal protection of the laws."

taxing power

The power granted to Congress to raise revenue through taxation

Right of Survivorship

The power of a successor to acquire ownership interest in property upon the death of a joint tenant.

Minimal Scrutiny

The standard of review in which government must provide rational basis for the law. Under this standard, government needs to put forth only a rational basis for the law—the law simply has to be reasonably related to some legitimate government interest.

probable cause

The standard required for a search warrant to be issued. It arises when there is enough evidence, such as through corroborating evidence, to reasonably lead to the belief that someone has committed a crime.

substantive due process

The second component of due process, process focuses on the content of government legislation itself. Generally speaking, government regulation is justified whenever the government can articulate a rational reason for the regulation. In certain categories, however, the government must articulate a compelling reason for the regulation. Legislation must be fair.

Establishment Clause

The section of the First Amendment prohibiting government from establishing a religion.

Free Exercise Clause

The section of the First Amendment prohibiting government from preventing the free exercise of religion

intent

The tortfeasor intended the consequences of his or her act, or knew with substantial certainty that certain consequences would result from the act the tortfeasor intended.

larceny

The trespassory taking of property with the intent to deprive the owner of it.

fraud

The use of deception to acquire money or property.

Corporate Espionage

The use of deception to acquire the secrets of an economic competitor for financial gain

Strict Scrutiny

This test is used when the government discriminates against a suspect class. Under this test, the government has to prove that the law is justified by a compelling governmental interest, that the law is narrowly tailored to achieve that goal or interest, and that the law is the least restrictive means to achieve that interest

evict

To remove a possessor from land

Trespass to Chattels

Unlawful taking or harming of another person's property without the owner's permission.

defenses

Whenever you have intentional torts, you have to look for defenses that can be asserted to avoid liability Self-defense - reasonable and proportionate force to defend oneself from harm or injury Defense of others - reasonable and proportionate force used to defend another person from harm or injury Consent/permission - agreement, approval, or permission as to some actor purpose (Black's Law Dictionary) Truth Opinion Shopkeeper privilege - A defense to false imprisonment, which allows businesses confronted with potential thieves to detain suspects until police arrive. Public record Lacking elements necessary to prove the tort

due process

a constitutional guarantee of fairness by procedure

Compensory damages

compensation for the actual injuries suffered. ● Medical bills ● Loss of property ● Mental anguish/pain and suffering ● Lost income if you can't work because you're injured.

Punitive Damages

compensation for the actual injuries suffered. ● Medical bills ● Loss of property ● Mental anguish/pain and suffering ● Lost income if you can't work because you're injured.

compensatory damages

money damages to compensate for economic losses, or losses stemming from injuries (medical bills, lost wages, etc.)

nternational use of another's name, likeness, or identifying characteristic without his or her permission.

international use of another's name, likeness, or identifying characteristic without his or her permission.

liable

legally responsible

Joint or several liability

may help in instances where proximate cause is difficult to discern when you've got multiple potential bad actors.This doctrine states that a plaintiff may pursue a claim against any party liable for the claims as if they were jointly liable, and the defendants then sort out their respective portions of liability. -One injury worth $100,000. 10 defendants and each agrees to 10% liability.

punitive damages

money damages awarded to punish the defendant for gross and wanton negligence and to deter future wrongdoing.

procedural due process

the due process clause contains two components and this is the first component. This process requires that any government action that takes away life, liberty, or property must be made fairly and using fair procedures. Government must use fair procedures.

actus rea

the guilty act, or criminal action

Quitclaim Deed

transfer of title, whatever I own you have, if I own nothing you get nothing

Lible

written form of defamation

purchase

•A method of acquisition involving trade of valuable consideration •Buying the birdhouse someone produced

Joint Tenancy

•Joint Tenancy creates a survivorship right where property transfers to other co-owner up on death •Look for "with rights of survivorship language" in deed

Personal Property

•Property that is not real property. -Tangible Property: Something that can be touched -Intangible Property: Does not physically exist, but is still subject to ownership principles

fixture

•Something that used to be personal property but has become attached to the land so that it is legally a part of the land

Tenancy in Common

•TIC creates a defeasible interest where the co-tenant can transfer her right to anyone •Look for "to own in equal shares" or "TIC language" in deed

gift

•Voluntary transfer of property where donorgives property to a donee •Christmas or birthday presents