Business Law Exam 2

Accession

Occurs when an individual adds value to personal property by either labor or materials. This generally occurs by agreement. In some situations, a person may acquire ownership rights in another's property through accession. Sometimes one party makes accessions without agreement. If the improvements can be "undone"without damage to the property, then the improver must do that.

Zoning statutes

state laws that permit local communities to regulate building and land use

What are the four types of tenancy?

1. Tenancy for years 2. periodic tenancy 3. tenancy at will 4. tenancy at sufferance

In a tort, who seeks compensation?

The injured party

rent abatement

a reduction in the rent owed

What must be proven to win an trademark infringement suit?

the trademark owner must show that the defendant's trademark is likely to deceive the customers about who has made the goods or provided the service

two tests for design and warning cases

1. consumer expectation 2. risky-utility test

What are the three types of Business Torts?

1. interference with a contract 2. interference with a prospective advantage 3. Lanham Act violation

3 Rules for defective product cases

1. product sold in defective condition 2. seller is engaged in business of selling such a product 3. reaches the consumer without substantial change these rules apply even if: 1. seller exercised all possible care 2. user did not buy the product or enter contract with seller

What are the three possible outcomes in copyright infringement cases?

1. prohibit the infringer from committing future violations 2. order destruction of infringing material 3. require the infringer to pay damages, profits earned, and attorney's fees

What are the most common forms of concurrent estates?

1. tenancy in common 2. joint tenancy 3. tenancy by the entirety

What are the four main ultrahazardous activities?

1. using harmful chemicals 2.operating explosives 3. keeping wild animals 4. bringing dangerous substances onto property

Is a letter to be opened in the future a present transfer of ownership?

No

When can living things be patented?

if they are different from anything found in nature, and a product of human ingenuity

Fraud

injuring another person by deliberate deception. Fraud is a tort, but it typically occurs during the negotiation or performance of a contract.

Finding statutes

Laws that govern found property. Also known as estray statutes

Jane writes an article for a newspaper reporting that Ann was arrested for stealing a car. The story is entirely false. Ann is not a public figure. Which of the following torts has Jane committed? (a) Ordinary slander (b) Slander per se (c) Libel (d) None of the above

Libel

For this question, assume the same facts as in Question 4. Now determine which of the following can be considered a proximate cause of Carl's injuries.

Mark

Tort

a violation of a duty imposed by the civil law

abatement

an order requiring the homeowner to eliminate the nuisance

fanciful marks

made up words. (kodak, google)

Economic Espionage Act (1996)

makes it a criminal offense to steal (or attempt to steal) trade secrets for the benefit of someone other than the owner, including for the benefit of any foreign government

Falsity

making a true statement, not matter how mean, is not defamation

Compensatory Damages

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

Land

most common and important form of real property. Also includes underground and airspace rights

Duty to Return Security Deposit

In many states, a landlord must either return the security deposit soon after the tenant has moved out or notify the tenant of the damage and the cost of the repairs.

Slander

oral defamation

what are the factors in the risk-utility test?

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 5. the adverse consequences of an alternative design

Duties of the Bailee

1. To take appropriate care of the property; depending on which party is receiving the benefit 2. **To surrender the property to the bailor or dispose of it in accordance with the bailor's instructions at the end of the bailment This is held to a degree of strict liability. There are virtually no exceptions.

What are the four types of marks?

1. Trademark 2. Service mark 3. Certification mark 4. Collective marks

What are the three types of patents?

1. Utility Patent 2. Design Patent 3. Plant Patent

Communicated

if no one else receives the defamatory message, there is no harm done

tenancy for years

a lease for a stated, fixed period. ***A tenancy for years terminates automatically when the agreed period ends.

Madrid agreement

a multilateral agreement offering a single international application for trademark protection

tenancy at will

a tenancy with no fixed duration, which may be terminated by either party at any time

Assume the same facts as in Question 1, except now Barney lives in a state that follows comparative negligence. Now Barney will recover -----.

$90,000

A tenant's personal property will become a fixture and belong to the landlord if its removal would . (a) increase the value of the personal property (b) cause a material change to the personal property (c) result in substantial harm to the landlord's property (d) change the use of the landlord's property back to its prior use

(c) result in substantial harm to the landlord's property

Holding out an envelope, Alan says,"Ben, I'm giving you these opera tickets." Without taking the envelope, Ben replies,"Why would I want opera tickets? Loser." Alan leaves, crestfallen. Later that day, a girl whom Ben has liked for some time says, "I sure wish I were going to the opera tonight."Ben scrambles, calls Alan, and says, "Alan, old buddy, I accept your gift of the opera tickets. I'm on my way over to pick them up." Does Ben have a legal right to the tickets? (a) Yes, because Alan intended to transfer ownership (b) Yes, because offers to give gifts cannot be revoked (c) No, because no consideration was given (d) No, because Ben did not accept the gift when offered

(d) No, because Ben did not accept the gift when offered

Which of the following forms of tenancy will be created if a tenant stays in possession of leased premises without the landlord's consent, after the tenant's one-year written lease expires? (a) Tenancy at will (b) Tenancy for years (c) Periodic tendency (d) Tenancy at sufferancE

(d) Tenancy at sufferance

Elements of Constructive Eviction

***To claim a constructive eviction, the tenant must vacate the premises. The tenant must also prove that the interference was sufficiently serious and lasted long enough that she was forced to move out. SING: 1) Substantial Interference: chronic problem 2) Notice 3) Get out: tenant must VACATE within REASONABLE TIME

What are the four kinds of found property? (MALT)

1. Abandoned 2. Lost 3. Mislaid 4. Treasure trove

What rules are used to determine if an object is a fixture?

1. Attachment 2. Adaptation 3. Other manifestations of permanence.

How often must trademarks be renewed?

10-year terms, as long as the mark is still in use

Inter Vivos Gift

A gift made during the donor's life, with no fear of impending death

Personal Property

All tangible or intangible property that is not real property.

public domain

Creative work that's not copyrighted and therefore free for you to use whenever you want.

What are the 5 most common intentional torts?

Defamation False imprisonment Intentional infliction of emotional distress Battery and Assualt Trespass, conversion, and fraud

Servient Tenement

Parcel over which the easement runs (land burdened by the easement)

Joint Tenancy

Two or more people holding equal interest in a property, with the right of survivorship * used less frequently than tenancy in common *when one joint tenant dies, his interest in the property passes to the surviving joint tenants. *Joint tenancy has one other curious feature. Although joint tenants may not convey their interest by will, they may do so during their lifetime.

Trespasser

a person on another's property without consent A landowner is liable to a trespasser only for intentionally injuring him or for some other gross misconduct. The landowner has no liability to a trespasser for mere negligence.

covenant

a promise by either the landlord or tenant to do something or to refrain from doing something

Which of the following factors is least important in determining whether a manufacturer is strictly liable in tort for a defective product? (a) The negligence of the manufacturer (b) The contributory negligence of the plaintiff (c) Modifications to the product by the wholesaler (d) Whether the product caused injuries

a. negligence of the manufacturer

Easement Appurtenant

benefits its owner in the use of another parcel of land (if someone needs to cross another person's property to access their own property) ***An easement appurtenant runs with the land, meaning that if the owner of the dominant tenement sells her land, the buyer acquires the easement as well. However, the owner may not sell an easement by itself to someone else.

easement in gross

benefits the owner, but not in the use of other land (think utility companies on private land) *** most easements in gross may be sold

Punitive Damages

damages that are intended to punish the defendant for conduct that is extreme and outrageous The idea behind punitive damages is that certain behavior is so unacceptable that society must make an example of it. A large award of money should deter the defendant from repeating the mistake and others from ever making it..

Delivery to an agent

donor might deliver the property to an agent, either someone working for him or for the donee

bailor

the one who delivers the goods

Duty to Deliver Possession

"English rule": This is the majority rule in America. It requires that L put T in physical possession of the premises; if at the start of T's lease a prior holdover T is still in possession, L has breached and the new T gets damages. "American rule": Minority rule. L is not obliged to put T in physical possession; L must merely give legal right to possession. Under this rule, the new tenant generally has the power to act as a landlord toward the old tenant. The new tenant may evict the old tenant and recover damages caused by her delay in leaving. Alternatively, the new tenant may treat the holdover as a tenant at will for a new rental period and may charge the normal rent for that period.

Al runs a red light and hits Carol's car. She later sues, claiming the following losses: $10,000—car repairs $10,000—medical expenses $10,000—lost wages (she could not work for two months after the accident) $10,000—pain and suffering If the jury believes all of Carol's evidence and she wins her case, how much will she receive in compensatory damages?

$40,000 rule: Compensatory damages are designed to return the plaintiff to their status before the accident.

A tenant renting an apartment under a three-year written lease that does not contain any specific restrictions may be evicted for . (a) counterfeiting money in the apartment (b) keeping a dog in the apartment (c) failing to maintain a liability insurance policy on the apartment (d) making structural repairs to the apartment

(a) counterfeiting money in the apartment

Craig finds a rare 1955 double-date penny, worth $4,000, on a city sidewalk outside a coin collectors'convention. The penny is property. If the true owner cannot be found, then the penny will belong to . (a) lost, Craig (b) lost, the city (c) abandoned, Craig (d) abandoned, the city (e) mislaid, Craig

(a) lost, Craig

To be enforceable, a long-term residential real estate lease must . (a) require the tenant to obtain liability insurance (b) define the tenant's duty to mitigate (c) be in writing (d) specify a due date for rent (e) All of the above

(c) be in writing

is what 3 subjects of defamation with the law automatically assume injury without requiring the plaintiff to prove it?

1. Criminal or sexual conduct 2. contagious diseases 3. professional ability

What five elements must a plaintiff prove to win a negligence case?

1. Duty of due care - the defendant had a legal responsibility to the plaintiff specifically. 2. Breach 3. Factual cause - conduct actually caused injury 4. Proximate cause - foreseeable that the this conduct might cause this type of injury 5. Damages

What are the 4 duties of a landlord?

1. Duty to deliver possession 2. Quiet Enjoyment 3. Duty to maintain premises 4. Duty to return security deposit

What are the 4 duties of a tenant?

1. Duty to pay rent 2. duty to use premises for proper purpose 3. duty not to damage premises 4. duty not to disturb other tenants

What are the 4 types of nonpossessory interests?

1. Easements 2. profit 3. license 4. mortgage

What kinds of marks can be trademarked?

1. Fanciful marks 2. arbitrary marks 3. suggestive marks 4. marks with second meaning, as long as they are associated with the product in the public mind 5. trade dress (aesthetic)

What are the two primary defenses in copyright infringement cases?

1. First sale doctrine 2. fair use

How do courts determine what information is a trade secret?

1. How difficult was the information to obtain? Was it readily available from other sources? 2. Does the information create an important competitive advantage? 3. Does the company make a reasonable effort to protect it?

What four items are considered real property?

1. Land 2. Buildings 3. Plant Life 4. Fixtures

In what 4 circumstances is a landlord liable for injuries on premises?

1. Latent defects 2. Common areas 3. Negligent repairs 4. Public use

What are the benefits of registering a trademark?

1. Makes is valid nationally 2. notifies the public that it is in use 3. challenges are barred 5 years after registration 4. damages under the Lanham Act are higher than under common law 5. the holder of a trademark generally has the right to use it as an internet domain name

What are the three main claims in product negligence cases?

1. Negligent design 2. Negligent manufacture 3. Failure to warn

What are the 4 requirements for a patent?

1. Novel 2. Nonobvious 3. useful 4. patentable subject matter

What are ways that gifts can be delivered by a donor?

1. Physical delivery 2. constructive delivery 3. delivery to an agent 4. property already in Donee's possession

What three types of law intersect in landlord-tenant cases?

1. Property 2. Contract 3. Negligence

What four factors determine if use is fair use?

1. Purpose and character of the use 2. the nature of the copyrighted work 3. the amount and proportion of the work that is used 4. the effect of the use upon the potential market

What guideposts must a j court consider when awarding punitive damages?

1. The reprehensibility of the defendant's conduct 2. the ratio between harm suffered and award 3. The difference between the punitive award and any civil penalties used in similar cases. the Supreme Court seeks to limit, but not completely prohibit, enormous punitive damages.

The New York Times rule

1. The rule from The New York Times case is that a public official can win a defamation case only by proving the defendant's actual malice, that is, that the defendant knew the statement was false or acted with reckless disregard of the truth. 2. The New York Times rule has been extended to all public figures, like actors, business leaders, and anyone else who assumes an influential and visible role in society. 3

What are the four elements of tortious interference with a contract?

1. a contract existed between plaintiff and third party 2. the defendant knew of the contract 3. the defendant improperly induced the third party to breach the contract or made the performance of the contract impossible 4. there was injury to the plaintiff

What are the four elements of a defamation case?

1. defamatory statement 2. Falsity 3. Communicated 4. Injury 5. In cases of public figures, plaintiffs must also prove malice

What are the three elements of a gift?

1. donor intends to transfer ownership of the property to the donee immediately 2. the donor delivers the property to the donee 3. the donee accepts the property If all three elements are met, the donee becomes the legal owner of the property.

rights and duties of the bailor

1. entitled to the return of his property on the agreed-upon date 2. entitled to receive the property in good condition and recover damages for harm to the property if the bailee failed to use adequate care

What 4 factors must be proven in cases of adverse possession?

1. entry and exclusive possession 2. open and notorious possession 3. a claim adverse to the owner 4. continuous possession for a statutory period

To what is a rightful owner entitled in cases of trademark infringement?

1. injunction preventing further violations 2. destruction of infringing material 3. up to 3X actual damage 4. any profits the infringer earned 5. attorney's fees

What two types of people have special duties to others?

1. landowners 2. professionals

What sets the requirements for landlords to maintain properties?

1. lease 2. created by state statute 3. implied by law

What three items are covered under compensatory damages?

1. medical expenses, past and future 2. lost wages, past and future 3. pain and suffering

Intention to transfer ownership

1. must intend to transfer *ownership* 2. must intend to transfer *immediately* 3. possession of certain items is key in some transfers of ownership. it a car title has been signed over but not given to the recipient, the donor is still the rightful owner of the car

What is the minimum 4 items a lease must contain?

1. names of parties 2. the premises being leased 3. duration of the agreement 4. rent

Liability for defects: bailments

1. property. If the bailment is for the sole benefit of the bailee, the bailor must notify the bailee of any known defects. 2. In a mutual-benefit bailment, the bailor is liable not only for known defects but also for unknown defects that the bailor could have discovered with reasonable diligence. 3. If the bailor is in the business of renting property, the bailment is probably subject to implied warranties.

What are the common law goals of found property?

1. return the property to its proper owner 2. reward the finder if no owner can be located ***finder must make an effort in good faith to find the owner ***to discourage trespassing, finders who discover personal property on someone else's land generally cannot keep it

What 6 items cannot be trademarked?

1. similar to existing mark (McDowels) 2. generic trademarks (i.e. "shoe","book") 3. names (boston, obamacare) 4. deceptive marks 5. descriptive marks (lowfat, green) 6. scandalous or immoral marks

In what three cases does res ipsa loquitur apply?

1. the defendant had exlusive control of the thing that caused the harm 2. the harm normally would not have occured without the negligence 3. the plaintiff had not role in causing the harm

What three things must a plaintiff prove to win a case with the Lanham Act?

1. the defendant made false or misleading fact statements about the plaintiff's business. 2. the defendants used the statements in commercial advertising or promotion (for commercial speech only) 3. the statement created the likelihood of harm to the plaintiff

What steps must a landlord take to evict a tenant for nonpayment?

1. the landlord must serve a termination notice on the tenant and wait for a court hearing. 2. At the hearing, the landlord must prove that the tenant has failed to pay rent on time. 3. If the tenant has no excuse for the nonpayment, the court grants an order evicting him. The order authorizes a sheriff to remove the tenant's goods and place them in storage, at the tenant's expense. 4. However, if the tenant was withholding rent because of unlivable conditions, the court may refuse to evict.

What 4 things must be proven in cases of copyright infringement?

1. the work was original 2. the infringer actually copied the work 3. the infringer had access to the original 4.the two works are substantially similar

to what three types of people do landowners owe a special duty?

1. tresspassers 2. licensees 3. invitee

What are the two main areas of business that incur strict liability?

1. ultrahazardous activities 2. defective products

Lou DiBella was an executive responsible for programming boxing shows on HBO cable network. DiBella signed Bernard Hopkins, the then-middleweight world boxing champion, to participate in a fight televised by HBO. After DiBella's departure from the network, he and Hopkins entered into an agreement in which Hopkins paid $50,000 for DiBella's promotional services. Months later, Hopkins publicly accused DiBella of taking bribes and"selling"spots in HBO fights, calling him greedy, filthy, and unethical. DiBella sued Hopkins for libel. What did DiBella have to prove to be successful in his claim?

1.Because Hopkins falsely claimed that DiBella committed a criminal act, DiBella will benefit from Libel Per Se, which says that the plaintiff does not need to prove injury when the subject of the statements made by the defendant include criminal activity. 2. DiBella will have to prove that the statements were false, and made to more a third party. 3. Because Dibella is a public figure, he had the additional burden of proving that Hopkins made the statement with malice.

Ratio of compensatory to punitive damages in maritime cases.

1:1

How much are compensatory damages compared to punitive?

1:9

How long are patents good for?

20 years from the date of filing the application

How long is a normal copyright currently valid?

70 years after the death of the work's only or last-living author.

Imagine a case in which a jury awards compensatory damages of $1 million. In most cases, a jury would rarely be allowed to award more than in punitive damages. (a) $1 million (b) $3 million (c) $9 million (d) $10 million (e) $25 million

9,000,000

For how long is a corporate copyright valid?

95 years from publication or 120 years from creation, whichever is shorter

Involuntary bailment

A bailment that occurs without an agreement between the bailor and bailee This is called a constructive bailment because, with no agreement between the parties, the law is construing a bailment.

Strict liability

A branch of tort law that imposes a much higher level of liability when harm results from ultra hazardous acts or defective products. Some activities are so naturally dangerous that the law places an especially high burden on anyone who engages in them.

Paul and Shelly Higgins had two wood stoves in their home. Each rested on, but was not attached to, a built-in brick platform. The downstairs wood stove was connected to the chimney flue and was used as part of the main heating system for the house. The upstairs stove, in the master bedroom, was purely decorative. It had no stovepipe connecting it to the chimney. The Higginses sold their house to Jack Everitt, and neither party said anything about the two stoves. Is Everitt entitled to either stove? Both stoves?

A buyer normally takes all fixtures. The downstairs stove was permanently attached to the house and used as part of the heating system. The owner who installed it intended that it remain, and it was a fixture; Everitt got it. The upstairs stove was not permanently attached and was not a fixture; the sellers could take it with them. Rule: Attachment, adaptation, other manifestations of permanence

Marjan International Corp. sells handmade Oriental rugs. V. K. Putman, Inc., is a Montana trucking company. Marjan delivered valuable rugs to Putman for shipment from New York City to Tacoma, Washington. Unfortunately, there were several delays in transit. The truck driver encountered snowstorms and closed roads. His truck also overheated and required repairs in a garage. Before the driver resumed the trip, he stopped to pick up and load other goods. When the truck finally arrived in Tacoma, two bales of rugs were missing. Marjan sued on the grounds that Putman was a common carrier, but Putman claimed it was a contract carrier. What difference does it make whether Putman was a common carrier or a contract carrier, and how is that determined?

A common carrier would be strictly liable for the goods in their possession. A contract carrier would only owe a reasonable duty of care to the bailor. In this case, Putman is a trucking company, and they are in the business of transporting goods for the general public, which makes them a common carrier. They do not work soley for Marjan which would make them on contract carrier. Putnam is strictly liable for the missing bales of rugs.

Common carrier

A company that transports goods and makes its services regularly available to the general public Generally, a common carrier is strictly liable for harm to the bailor's goods. Common carriers are governed by a statute known as the Carmack Amendment. 5 Under this law, a bailor needs only to establish that it delivered property to the carrier in good condition and that the cargo arrived damaged. ***The carrier is then liable unless it can show that it was not negligent and that the loss was caused by an act of God, public enemy, the bailor itself, public authority, or the inherent nature of the goods. These defenses are difficult to prove, and in most cases, a common carrier is liable for harm to the property. ***A common carrier is, however, allowed to limit its liability by contract.

contract carrier

A company that transports goods for particular customers A contract carrier does not make its services available to the general public but engages in continuing agreements with particular customers. A contract carrier does not incur strict liability. The normal bailment rules apply, and a contract carrier can escape liability by demonstrating that it exercised due care of the property.

trade secret

A formula, device, idea, process, or other information used in a business that gives the owner a competitive advantage in the marketplace.

Julie does good deeds for countless people, and many are deeply grateful. On Monday, Wilson tells Julie,"You are a wonderful person, and I have a present for you. I am giving you this baseball, which was the 500th home run hit by one of the great players of all time."He hands her the ball, which is worth nearly half a million dollars. Julie's good fortune continues on Tuesday, when another friend, Cassandra, tells Julie,"I only have a few weeks to live. I want you to have this signed first edition of Ulysses. It is priceless, and it is yours."The book is worth about $200,000. On Wednesday, Wilson and Cassandra decide they have been foolhardy, and both demand that Julie return the items. Must she do so?

A gift causa mortis is one made in fear of approaching death, and this rule applies to Cassandra. Such a gift is revocable any time before the donor dies, so Cassandra gets her book back. A gift inter vivos is one made without any such fear of death. Most gifts fall in this category, and they are irrevocable. Wilson was not anticipating his demise, so his was a gift inter vivos. Julie keeps the baseball.

Gift Causa Mortis

A gift made in contemplation of death. If the donor does not die of that ailment, the gift is revoked. ***The law permits the gift causa mortis to act as a kind of substitute for a will since the donor's delivery of the property clearly indicates his intentions. But note that this kind of gift is revocable. Since a gift causa mortis is conditional (upon the donor's death), the donor has the right to revoke it at any time before he dies.

Doris Rowley rented space from the city of Mobile, Alabama, to run the Back Porch Restaurant. Her lease prohibited assignment or subletting without the landlord's permission. Rowley's business became unprofitable, and she asked the city's real estate officer for permission to assign her lease. She told the officer that she had"someone who would accept if the lease was assigned."Rowley provided no other information about the assignee. The city refused permission. Rowley repeated her requests several times without success, and finally she sued. Rowley alleged that the city had unreasonably withheld permission to assign and had caused her serious financial losses as a result. Comment.

A landlord is allowed to evaluate a prospective assignee, including its financial stability and intended use of the property. Mobile could not do that because Rowley provided no information about the proposed assignee. Mobile wins.

Duty not to disturb other tenants

A landlord may evict a tenant who unreasonably disturbs others. The test is reasonableness.

exculpatory clause

A lease clause that relieves a landlord of liability for injuries Today, exculpatory clauses are generally void in residential leases.

Contributory Negligence

A legal defense that may be raised when the defendant feels that the conduct of the plaintiff somehow contributed to any injuries or damages that were sustained by the plaintiff. In contributory negligence states, if the plaintiff is even slightly negligent, she recovers nothing.

Failure to warn

A manufacturer is liable for failing to warn the purchaser or users about the dangers of normal use and also foreseeable misuse. However, there is no duty to warn about obvious dangers, a point evidently lost on some manufacturers.

Uniform Trade Secrets Act (UTSA)

A model law defining and protecting trade secrets which has been enacted in 44 states. Trade secret owners are entitled to 1. actual damages 2. unjust enrichment 3. reasonable royalty If the misappropriation was willful or malicious, the court may award attorney's fees and double damages.

Professional Duty of Care

A person at work has a heightened duty of care. While on the job, she must act as a reasonable person in her profession.

tenant

A person given temporary possession of the landlord's property

Licensee

A person on another's land for her own purposes but with the owner's permission. permission. A social guest is a typical licensee. A licensee is entitled to a warning of hidden dangers that the owner knows about. There is has no duty to warn guests of obvious dangers.

Invitee

A person who has a right to enter another's property because it is a public place or a business open to the public. The owner has a duty of reasonable care to an invitee. You are liable even if you had no idea that something on your property posed a hidden danger. Therefore, if you own a business, you must conduct inspections of your property on a regular basis to make sure that nothing is becoming dangerous. However, you generally do not have an obligation to protect against the wrongdoing of a third person.

bailee

A person who receives personal property from another as a bailment.

Assumption of the risk

A person who voluntarily enters a situation that has an obvious danger cannot complain if she is injured. However, the doctrine does not apply if someone is injured in a way that is not an inherent part of the dangerous activity.

remainder

A remainder has exactly the same value as a reversion. The difference is that when the life tenant dies, the property goes to a named third person, not to the original owner.

tenancy at sufferance

A tenancy that exists without the permission of the landlord, after the expiration of a true tenancy ***The landlord has the option of seeking to evict the tenant or of forcing the tenant to pay a use and occupancy fee for as long as she stays. These distinctions are technical but important. ***Nonpayment of rent is not a proper ground for the eviction of a tenant at sufferance because a tenant at sufferance is not required to pay rent, but only use and occupancy.

Tenant's Liability for injuries

A tenant is generally liable for injuries occurring within the premises she is leasing, whether that is an apartment, a store, or otherwise. Generally, a tenant is not liable for injuries occurring in common areas over which she has no control, such as exterior walkways.

Duty to use premises for proper purpose

A tenant may not use the premises for any illegal activity, such as gambling or selling drugs A lease normally lists what a tenant may do in the premises and prohibits other activities. For example, a residential lease allows the tenant to use the property for normal living purposes, but not for any retail, commercial, or industrial purpose.

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 (including the injured party), on the basis of each person's proportionate negligence. In comparative negligence states a plaintiff may generally recover even if she is partially responsible. Most states do not permit a plaintiff to recover anything if he was more than 50% responsible for his own injury.

Continuous Possession for the Statutory Period

A user may be able to meet the statutory period by tacking, which permits her to add on to her years of occupancy any years certain predecessors were in possession. The predecessors must have been in privity with the current user, meaning there was some legal relationship.

gift

A voluntary transfer of property made without consideration

The government accused Carlo Francia and another person of stealing a purse belonging to Frances Bainlardi. A policeman saw Francia sorting through the contents of the purse, which included a photo identification of Bainlardi. Francia kept some items, such as cash, while discarding others. At trial, Francia claimed that he had thought the purse was lost or abandoned. Besides the fact that Francia's accomplice was holding burglary tools, what is the weakness in Francia's defense?

Abandoned property is something that the owner has knowingly discarded because she no longer wants it. The burden is on the finder to prove that the property was abandoned, which will be impossible in this case since no one would throw away cash and credit cards. Because the purse contained photo identification, Francia could easily have located its owner. He made no attempt to do so, and his defense is unpersuasive.

During the Great Depression of the 1930s, the federal government's Works Progress Administration hired artists to create public works of art. The goal was to provide employment and beautify the nation. The artist James Daugherty painted six murals on the walls of the public high school in Stamford, Connecticut. During the 1970s, the city began to restore its high school. The architect and school officials agreed that the Daugherty murals should be preserved. They arranged for the construction workers to remove the murals to prevent harm. By accident, the workers rolled them up and placed them near the trash dumpsters for disposal. A student found the murals and took them home, and later notified the federal government's General Services Administration (GSA) of his find. The GSA arranged to transport the murals to an art restorer named Hiram Hoelzer for storage and eventual restoration, when funds could be arranged. Over 19 years went by before anyone notified the Stamford School system where the murals were. In the meantime, neither the GSA nor anyone else paid Hoelzer for the storage or restoration. By 1989, the murals were valued at $1.25 million by Sotheby's, an art auction house. Hoelzer filed suit, seeking a declaration that the murals had been abandoned. Were they abandoned? What difference would that make when determining ownership?

Abandonment implies that they murals were intentionally disposed of by the owners. In this case it would be more apt to classify the murals as misplaced. The difference is that an abandoned item is presumed to belong to the finder, assuming the finder can prove that the owner intended to discard it. A mislaid item belongs to the property owner where it was discovered, but the rights of the original owner supersede that of the finder and the property owner. Hoelzer also failed to show that the attempted to return the property in good faith, even though he knew that he was in possession of the Stamford School's property.

Constructive Eviction

Actions of a landlord that so materially disturb or impair a tenant's enjoyment of the leased premises that the tenant is effectively forced to move out and terminate the lease without liability for any further rent.

Assualt

An act that makes a person reasonably fear an imminent battery. This tort is based on apprehension—it does not matter whether a battery ever occurs.

Easement by Prescription

An easement by prescription may arise when someone makes use of property belonging to another, if his use is: 1. open and notorious, 2. adverse to the owner, and 3. continuous and uninterrupted for the number of years required by local statute. (usually 7 years) ***The theory of easement by prescription is that landowners must take some initiative to protect their property rights. If they fail to do so, they may lose certain rights in their land ***permission. A landowner who permits another to cross his land nullifies any possibility of easement by implication.

Variance

An exception that permits a type of building or use in an area that would not otherwise be allowed by a zoning ordinance

Bailments: Exculpatory clauses

An exculpatory clause is generally unenforceable if it attempts to exclude an intentional tort or reckless behavior. When the bailor is a consumer, the exculpatory clause stands on shaky ground because judges generally presume the parties have unequal bargaining power. Courts look to see whether the clause was clearly written and easily visible. When the bailor and bailee have equal bargaining power(such as between two corporations), exculpatory clauses are generally enforceable.

Battery

An intentional touching of another person in a way that is harmful or offensive There need be no intention to hurt the plaintiff. If the defendant intended to do the physical act, and a reasonable plaintiff would be offended by it, battery has occurred.

life estate

An interest in real or personal property that is limited in duration to the lifetime of its owner or some other designated person or persons.

Novel

An invention is not patentable if it has already been (1) patented, (2) described in a printed publication, (3) in public use, (4) on sale, or (5) otherwise available to the public anyplace in the world.

prior sale

An inventor must apply for a patent within one year of selling the product commercially anywhere in the world

During her second year at the Juilliard School of Music in New York City, Ann Rylands had a chance to borrow for one month a rare Guadagnini violin made in 1768. She returned the violin to the owner in Philadelphia, but then she telephoned her father to ask if he would buy it for her. He borrowed money from his pension fund and paid the owner. Ann traveled to Philadelphia to pick up the violin. She had exclusive possession of the violin for the next 20 years, using it in her professional career. Unfortunately, she became an alcoholic, and during one period when she was in a treatment center, she entrusted the violin to her mother for safekeeping. At about that time, her father died. When Ann was released from the center, she requested return of the violin, but her mother refused. Who owns the violin?

Ann. The violin was not given as a conditional gift. Ann assumed ownership when she accepted it from her father and he intended her to keep it. Ann's gave possession of the violin to her mother, but did not intend for her mother to keep it forever. Ann does. Ann's father made a valid inter vivosgift of the violin while Ann was still a stu-dent. He intended to transfer ownership to her immediately, and made delivery by permitting her to pick up the violin. From that point on, Ann owned it.

Trademark

Any combination of words and symbols that a business uses to identify its products or services and distinguish them from others. These are affixed to goods in interstate commerce

partition

Any cotenant is entitled to demand partition of the property. If the various co-tenants cannot agree on a fair division, a co-tenant may request a court to do it. *All co-tenants have an absolute right to partition. A court will normally attempt a partition by kind, meaning that it actually divides the land equally among the co-tenants. *If partition by kind is impossible because there is no fair way to divide the property, the court will order the real estate sold and the proceeds divided equally.

Rights of the bailee

Anyone who interferes with the bailee's rightful possession is liable to her. Even a bailor is liable if he wrongfully takes back property from a bailee. The bailee is typically, though not always, permitted to use the property.

Caldwell was shopping in a K-Mart store, carrying a large purse. A security guard observed her looking at various small items such as stain, hinges, and antenna wire. On occasion, she bent down out of sight of the guard. The guard thought he saw Caldwell put something in her purse. Caldwell removed her glasses from her purse and returned them a few times. After she left, the guard approached her in the parking lot and said that he believed she had store merchandise in her pocketbook, but he could not say what he thought was put there. Caldwell opened the purse, and the guard testified that he saw no K-Mart merchandise in it. The guard then told Caldwell to return to the store with him. They walked around the store for approximately 15 minutes, while the guard said six or seven times that he saw her put something in her purse. Caldwell left the store after another store employee indicated she could go. Caldwell sued. What kind of suit did she file, and what should the outcome be?

Caldwell filed a suit for false imprisonment. She would win this case Shoplifts can only be held for a reasonable time and manner (reasonable detention) when the retailer has evidence that a theft has occurred. The initial search in the parking lot was justified, but Caldwell should have been allowed to leave as soon as it was proven that she had no K-mart merchandise on her person. .

Quick, Onyx, and Nash were deeded a piece of land as tenants in common. The deed provided that Quick owned one-half the property and Onyx and Nash owned onequarter each. If Nash dies, the property will be owned as follows: (a) Quick 1⁄2, Onyx 1⁄2 (b) Quick 5⁄8, Onyx 3⁄8 (c) Quick 1⁄3, Onyx 1⁄3, Nash's heirs 1⁄3 (d) Quick 1⁄2, Onyx 1⁄4, Nash's heirs 1⁄4

D Quick 1⁄2, Onyx 1⁄4, Nash's heirs 1⁄4

What is meant by "intentional tort?"

Does not necessarily mean that the defendant intended to harm the plaintiff. If the defendant does something deliberately and it ends up injuring somebody, she is probably liable even if she meant no harm.

Leo rents an apartment from Donna for $900 per month, both parties signing a lease. After six months, Leo complains about defects, including bugs, inadequate heat, and window leaks. He asks Donna to fix the problems, but she responds that the heat is fine and that Leo caused the insects and leaks. Leo begins to send in only $700 for the monthly rent. Donna repeatedly phones Leo, asking for the remaining rent. When he refuses to pay, she waits until he leaves for the day, then has a moving company place his belongings in storage. She changes the locks, making it impossible for him to reenter. Leo sues. What is the likely outcome?

Donna has ignored the legal procedures for evicting a tenant. Instead, she engaged in actual eviction, which is quick, and in the short term, effective. However, by breaking the law, Donna has ensured that Leo will win his lawsuit. He is entitled to possession of the apartment, as well as damages for rent he may have been forced to pay elsewhere, injury to his possessions, and the cost of retrieving them. He may receive punitive damages as well. Bad strategy, Donna.

Duty of due care in negligence cases

Each of us has a duty to behave as a reasonable person would under the circumstances. Judges draw an imaginary line around the defendant and say that she owes a duty to the people within the circle, but not to those outside it. The test is generally "foreseeability."If the defendant could have foreseen injury to a particular person, she has a duty to him.

Easement Implied by Necessity

Easement by NECESSITY: created when without land is USELESS (landlocked). Can Only arise when: 1. Initially COMMON OWNERSHIP 2. Necessity arose when estate was SEPARATED 3. Ends when NO LONGER necessary ***An easement by necessity arises when the dominant tenement absolutely must make use of other property. (think a staircase in an apartment building) (access to amenities in a subdivision)

negligent repairs

Even areas where the landlord has no duty to make repairs, if he volunteers to do so and does the work badly, he is responsible for resulting harm.

Faber-Castell began manufacturing pencils in 1761. Although pencils and erasers had both existed for some time, the company did not begin putting erasers on the ends of its pencils until the 1870s. The company was sued by an inventor who had previously patented this idea. The case went to the Supreme Court. Who won the case? (a) The patent holder, because no one had ever put an eraser on a pencil before (b) The patent holder, because the PTO had approved his patent (c) Faber-Castell, because the pencil with an eraser was not novel (d) Faber-Castell, because the pencil with an eraser was not useful

Faber-Castell, because the pencil with an eraser was not novel

Loren Andreo leased retail space in his shopping plaza to Tropical Isle Pet Shop for five years, at a monthly rent of $2,100. Tropical Isle vacated the premises 18 months early, turned in the key to Andreo, and acknowledged liability for the unpaid rent. Andreo placed a"for rent"sign in the store window and spoke to a commercial real estate broker about the space. But he did not enter into a formal listing agreement with the broker, or take any other steps to rent the space, for about nine months. With approximately nine months remaining on the unused part of Tropical's lease, Andreo hired a commercial broker to rent the space. He also sued Tropical for 18 months'rent. Comment.

For about nine months, Andreo made no serious effort to lease the store. The court rejected his rent claim for that period, permitting him to recover unpaid money only for the period he made a genuine effort to lease the space.

What rules govern the detention of suspected shoplifters?

Generally, a store may detain a customer or worker for alleged shoplifting provided there is a 1. reasonable basis for the suspicion and 2.the detention is done reasonably.

At approximately 7:50 p.m, bells at the train station rang and red lights flashed, signaling an express train's approach. David Harris walked onto the tracks, ignoring a yellow line painted on the platform instructing people to stand back. Two men shouted to Harris, warning him to get off the tracks. The train's engineer saw him too late to stop the train, which was traveling at approximately 55 mph. The train struck and killed Harris as it passed through the station. Harris's widow sued the railroad, arguing that the railroad's negligence caused her husband's death. Evaluate her argument.

Harris's own actions were the factual cause of harm. The train station provided safety measures that Harris ignored, which any reasonable person would have stopped upon hearing and seeing the bells and flashing red lights.

Boboli Co. wanted to promote its"California-style"pizza, which it sold in supermarkets. The company contracted with Highland Group, Inc., to produce 2 million recipe brochures, which would be inserted in the carton when the freshly baked pizza was still very hot. Highland contracted with Comark Merchandising to print the brochures. But when Comark asked for details concerning the pizza, the carton, and so forth, Highland refused to supply the information. Comark printed the first lot of 72,000 brochures, which Highland delivered to Boboli. Unfortunately, the hot bread caused the ink to run, and customers opening the carton often found red or blue splotches on their pizzas. Highland refused to accept additional brochures, and Comark sued for breach of contract. Highland defended by claiming that Comark had breached its warranty of merchantability. Please comment.

Highland lost. The merchantability warranty requires that goods be fit "for their ordinarypurpose." Brochures are not normally placed in contact with very hot pizza. Comark had no ideathe brochure would be subjected to such heat, and was entitled to its contract damages.

Marko owned a cat and allowed it to roam freely outside. In the three years he had owned the pet, the animal had never bitten anyone. The cat entered Romi's garage. When Romi attempted to move it outside, the cat bit her. Romi underwent four surgeries, was fitted with a plastic finger joint, and spent more than $39,000 in medical bills. She sued Marko, claiming both strict liability and ordinary negligence. Assume that state law allows a domestic cat to roam freely. Evaluate both of Romi's claims..

If Marko's cat had bitten or attacked people in the past, this harm was foreseeable and Marko is liable. If the cat had never done so, and state law allows domestic animals to roam, Romi probably loses her suit for negligence. Her strict liability case definitely fails: a housecat is not a wild animal.

Paris convention

If someone registers a trademark in one country, then he has a grace period of six months, during which he can file in any other country using the same original filing date

duty of care: sole benefit of the bailee

If the bailment is for the sole benefit of the bailee, the bailee is required to use extraordinary care with the property. Generally, in these cases, the bailor loans something for free to the bailee.

Factual Cause

If the defendant's breach led to the ultimate harm, it is the factual cause

Wrongful accession

If the improver knows he is making accessions without authority, the owner may generally take the improved property without paying for the work done.

Mistaken Accessions

If the improver mistakenly believes he has permission, the owner probably must to pay for the increased value of his property

public use

If the premises are to be used for a public purpose, such as a store or office, the landlord is generally obligated to repair any dangerous defects, although the tenant is probably liable as well.

Landlord's remedies if Tenant fails to pay rent

If the tenant fails to pay rent on time, the landlord has several remedies. 1. She is entitled to apply the security deposit to the unpaid rent. 2. She may also sue the tenant for nonpayment of rent, demanding the unpaid sums, cost of collection, and interest. 3. Finally, the landlord may evict a tenant who has failed to pay rent.

Sequenom developed a noninvasive prenatal diagnostic test to assess the risk of Down syndrome or other chromosomal abnormalities in fetuses. The test analyzes DNA from the fetus that is found in the mother's blood. Prior to this test, women had to undergo invasive tests that carried a slight risk of miscarriage. The PTO awarded Sequenom a patent on the test, but other diagnostic testing companies sued to invalidate the patent. Is Sequenom's patent valid?

In 2013, a California federal court invalidated Sequenom's patent on the basis that it covered a natural phenomenon—the presence of DNA from the fetus in the mother's blood. This was based on the Myriad precedent discussed in this chapter.

Modern trends in landlord liability cases

In many states, a landlord must use reasonable care to maintain safe premises and is liable for foreseeable harm. in many states, a landlord is no longer saved from negligence suits merely by giving notice of defects—he has to fix them.

Duty to Maintain Premises

In most states, a landlord has a duty to deliver the premises in a habitable condition and a continuing duty to maintain the habitable condition ***The tenant's right to quiet enjoyment focuses primarily on the tenant's ability to use the rented property. The landlord's duty to maintain the property focuses on whether the property meets a particular legal standard.

In 1572, during the reign of Queen Elizabeth I of England, a patent application was filed for a knife with a bone handle rather than a wooden one. Would this patent be granted under current U.S. law?

It was useful—no splinters from a bone handle. It was novel—no one had ever done it before. But the patent was denied because it was obvious.

Question: Jenny asked a neighbor, Tom, to water her flowers while she was on vacation. For three days, Tom did this without incident, but on the fourth day, when he touched the outside faucet, he received a violent electric shock that shot him through the air, melted his sneakers and glasses, set his clothes on fire, and seriously burned him. Tom sued, claiming that Jenny had caused his injuries by negligently repairing a second-floor toilet. Water from the steady leak had flooded through the walls, soaking wires and eventually causing the faucet to become electrified. You are Jenny's lawyer. Use one (and only one) element of negligence law to move for summary judgment.

Jenny is entitled to summary judgment because this was not a foreseeable type of injury. Even if she did a bad job of fixing the toilet, she could not reasonably have anticipated that her poor workmanship could cause electrical injuries to anyone. Rule: Proximate cause must be proven in cases of negligence. Because the injury was unforseeable, Jenny cannot be held liable.

Lonny Joe owned two rare 1955 Ford Thunderbird automobiles, one red and one green, both in mint condition. He stored the cars in his garage. His friend Stephanie wanted to use the red car in a music video, so Lonny Joe rented it to her for two days, for $300 per day. When she returned the red car, Lonny Joe discovered a long scratch along one side. That same day, he noticed a long scratch along the side of the green car. He sued Stephanie for harm to the red car. Lonny Joe sued an electrician for damage to the green car, claiming that the scratch occurred while the electrician was fixing a heater in the garage. Explain the different burdens of proof in the two cases.

Lonny Joe had no bailment with the electrician because the electrician never assumed control of the car. To win that case, Lonny Joe must prove that the electrician behaved unreasonably and caused the scratch. However, when Lonny Joe rented Stephanie the red car, the parties created a bailment, and the law presumes Stephanie caused the damage unless she can prove otherwise. That is a hard burden, and Stephanie will likely lose.

Randy works for a vending machine company. One morning, he fills up an empty vending machine that is on the third floor of an office building. Later that day, Mark buys a can of Pepsi from that machine. He takes the full can to a nearby balcony and drops it three floors onto Carl, a coworker who recently started dating Mark's ex-girlfriend. Carl falls unconscious. Which of the following can be considered a factual cause of Carl's injuries?

Mark and randy

duty of care: mutual benefit

Most bailments benefit both parties. When the bailment is for the mutual benefit of bailor and bailee, the bailee must use ordinary care with the property. Ordinary care is what a reasonably prudent person would use under the circumstances. It is certainly not what the valet attendant exercised in the opening scenario.

Is a promise to make a gift enforceable?

No, Promises about future behavior are governed by contract law, and a contract is unenforceable without consideration.

Roger Schlafly applied for a patent for two prime numbers. (A prime number cannot be evenly divided by any number other than itself and 1. Examples of primes are 2, 3, 5, 7, 11, and 13.) Schlafly's numbers are a bit longer—one is 150 digits, the other is 300. His numbers, when used together, can help perform the type of mathematical operation necessary for exchanging coded messages by computer. Should the PTO issue this patent?

No, because numbers are not patentable subject matter.

Hair Corp. sells shampoo in the United States and internationally. Its international prices are 30 percent less than its domestic prices. Big Seller, Inc. is in the business of buying products internationally in bulk and reselling them in the United States Big Seller buys Hair Corp's shampoos in Peru and imports them to the United States to be sold at international rates. Can Hair Corp successfully sue Big Seller for copyright infringement?

No, the reselling by Big Seller is legal under the first sale doctrine.

While in college, David invented a new and useful machine to make macaroni and cheese (he called it the"Mac'n'Cheeser"). It was like nothing on the market, but David did not apply for a patent. At that time, he offered to sell his invention to several kitchen products companies. His offers were all rejected and he never sold the invention. Years later, he decided to apply for a utility patent. Is David entitled to a utility patent?

No, while the Mac n'Cheeser was new, useful, and nonobvious at the time it was invented, David's disclosure to the kitchen products companies years before renders it not novel now. Inventors have a grace period of one year once disclosure is made to apply for a patent. That time lapsed. Patent rejected. Rule: Prior sale

Two cars, driven by Fred and Barney, collide. At trial, the jury determines that the accident was 90 percent Fred's fault and 10 percent Barney's fault. Barney's losses total $100,000. If he lives in a state that uses contributory negligence, Barney will recover ------.

Nothing

Bailments: burden of proof

Once the bailor has proven the existence of a bailment and loss or harm to the goods, a presumption of negligence arises, and the burden shifts to the bailee to prove adequate care.

Patent Cooperation Treaty (PCT)

PCT is a procedure for filing patent applications internationally. There is no universal patent - you must file in every country of interest.

Question:"Hey, Paula,"a pop hit that spent months on the music charts, was back on the radio 30 years later, but in a form the song's author never intended. Talk-show host Rush Limbaugh played a version with the same music as the original but with lyrics that poked fun at President Bill Clinton's alleged sexual misconduct with Paula Jones. Has Limbaugh violated the author's copyright?

Parody (especially about politics!) is a fair use of copyrighted material so long as use of the original is not excessive.

Fair Use Doctrine

Permits limited use of copyrighted material without permission of the author for purposes such as criticism, comment, news reporting, scholarship, or research

trade fixtures

Personal property used in a business and can be removed by the lessee when the lease terminates.

Plant life

Plant life growing on land is real property whether the plants are naturally occurring, such as trees, or cultivated crops. When a landowner sells his property, plant life is automatically included in the sale unless the parties agree otherwise. A landowner may also sell the plant life separately if he wishes. A sale of the plant life alone, without the land, is a sale of goods. (Goods, as you may recall, are movable things.)

Dominant Tenement

Property that receives the benefit of an appurtenant easement.

Design Patent

Protects the appearance, not the function, of an item Lasts 14 years from the date of issuance

Patrick owns a fast-food restaurant, which is repeatedly painted with graffiti. He is convinced that 15-year-old John, a frequent customer, is the culprit. The next time John comes to the restaurant, Patrick locks the men's room door while John is inside. Patrick calls the police, but because of a misunderstanding, the police are very slow to arrive. John shouts and cries for help, banging on the door, but Patrick does not release him for two hours. John sues. He claims that he has suffered great psychological harm because of the incident; his psychiatrist asserts that John may have unpredictable suffering in the future. John sues for assault, battery, and false imprisonment. Will he win? May John return to court in the future to seek further damages?

Result: Locking John up for two hours, based on an unproven suspicion, was clearly unreasonable. Patrick has committed false imprisonment. The single recovery principle forces John to recover now for all past and future harm. He may not return to court later and seek additional damages.\ Rule: False imprisonment is the intentional restraint of another person without reasonable cause and without consent. 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.

Ryder leased a truck to Florida Food Service; Powers, an employee, drove it to make deliveries. He noticed that the strap used to close the rear door was frayed, and he asked Ryder to fix it. Ryder failed to do so in spite of numerous requests. The strap broke, and Powers replaced it with a nylon rope. Later, when Powers was attempting to close the rear door, the nylon rope broke and he fell, sustaining severe injuries to his neck and back. He sued Ryder. The trial court found that Powers's attachment of the replacement rope was a superseding cause, relieving Ryder of any liability, and granted summary judgment for Ryder. Powers appealed. How should the appellate court rule?

Reverse and remand, as Ryder was informed of the problem and failed to take corrective measures. duty, breach, factual cause, proximate cause, damage

leasehold

Rights the lessor grants to the lessee under the terms of a lease.

Lost property

Something that is given up accidentally Usually, the finder of lost property has rights superior to all the world EXCEPT the true owner. However, if the finder has discovered the item on land belonging to another, the landowner is probably entitled to keep it.

Property already in donee's possession

Sometimes a donor decides to give property to a donee who already has possession of it. In that case, no delivery is required, and the donee need only demonstrate that the donor intended to transfer present ownership.

conversion

Taking or using someone's personal property without consent Personal property is any possession other than land or structures permanently attached to land, such as houses. This, of course, is similar to the crime of theft. The tort of conversion enables a plaintiff to pursue the case herself, without awaiting a criminal prosecution, and to obtain compensation.

Tata Consultancy of Bombay, India, is an international computer consulting firm. It spends considerable time and effort recruiting the best personnel from India's leading technical schools. Tata employees sign an initial three-year employment commitment, often work overseas, and agree to work for a specified additional time when they return to India. Desai worked for Tata, but then he quit and formed a competing company, which he called Syntel. His new company contacted Tata employees by phone, offering higher salaries, bonuses, and assistance in obtaining permanent resident visas in the United States if they would come work for Syntel. At least 16 former Tata employees left their jobs without completing their contractual obligations and went to work for Syntel. Tata sued. What did it claim, and what should be the result?

Tata sued for tortious interference with a contract. Tata would win because: 1. there was a contract between Tata and the employees 2. Desai knew about the contract 3. Desai induced the employees to breach their contract with Tata 4. Tata was injured as a result of the loss of their employees

Kenmart Realty sued to evict Mr. and Ms. Alghalabio for nonpayment of rent and sought the unpaid monies, totaling several thousand dollars. In defense, the Alghalabios claimed that their apartment was infested with rats. They testified that there were numerous rat holes in the walls of the living room, bedroom, and kitchen, that there were rat droppings all over the apartment, and that on one occasion, they saw their toddler holding a live rat. They testified that the landlord had refused numerous requests to exterminate. Please rule on the landlord's suit.

The Alghalabio's defense was breach of the implied warranty of habitability. The landlord failed to maintain the premises in a liveable condition, and the tenants are therefore entitled to an abatement of rent. The amount of an abatement depends upon the severity of the problems. In this case, the infestation was so severe, and lasted so long, that the court found the rent 100 percent abated for all months the tenants did not pay. By the time of trial, the Alghalabios had voluntarily moved out. The landlord recovered no money

Howard Geib, Walker McKinney, and John D. McKinney owned two vacation properties as joint tenants with right of survivorship. The parties were not getting along well, and Geib petitioned the court to partition the properties. The trial court ruled that the fairest way to do this was to sell both properties and divide the proceeds. The two McKinneys appealed, claiming that a partition by sale was improper because it would destroy their right of survivorship. Comment.

The McKinneys lost. Any co-tenant (including a joint tenant) has an absolute right to partition. Difficulties in partitioning are irrelevant.

Shannon borrows Marty's car, but when she returns the auto, she hands the keys to Scott, who claims he is Marty's brother. Scott offers a driver's license and passport to reassure Shannon. Scott is actually a con artist. Marty sues Shannon. Outcome? a. Marty will win. b. Marty will win only if a reasonable person would have spotted the fraud. c. Marty will win only if he in fact has no brother named Scott. d. Marty will lose because Scott offered reasonable identification.

The bailee is strictly liable to redeliver the goods to the bailor. There are no excuses. The"reasonable person"standard does not apply. The correct answer is (a).

Negligent Manufacture

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

Negligent design

The buyer claims that the product injured her because the manufacturer designed it poorly. Negligence law requires a manufacturer to design a product free of unreasonable risks. Reasonable safety features must be built in, if they can be included at a tolerable cost.

Many of the videos posted on YouTube are copyrighted material, including thousands of hours of shows owned by Viacom, such as The Colbert Report and The Daily Show. Viacom sued YouTube for violating its copyrights. Among the evidence Viacom presented was an email from one YouTube founder to another, saying,"...please stop putting stolen videos on the site. We're going to have a tough time defending the fact that we're not liable for the copyrighted material on the site because we didn't put it up when one of the cofounders is blatantly stealing content from other sites and trying to get everyone to see it." 18 YouTube presented evidence that it had responded within one day to Viacom's "takedown notice."Is YouTube liable?

The court found for YouTube. General awareness that many postings infringed copyrights did not impose a duty for YouTube to monitor its videos. Its only requirement was to respond when notified of infringement. YouTube did just that in this case.

Rebecca Reyher wrote (and copyrighted) a children's book entitled My Mother Is the Most Beautiful Woman in the World. The story was based on a Russian folk tale told to her by her own mother. Years later, the children's TV show Sesame Street televised a skit entitled"The Most Beautiful Woman in the World."The Sesame Street version took place in a different locale and had fewer frills, but the sequence of events in both stories was identical. Has Sesame Street infringed Reyher's copyright?

The court held that Sesame Street had not infringed Reyher's copyright because Reyher could not copyright the plot of a story, only her expression of the plot.

Question: Caudle worked at Betts Lincoln-Mercury dealer. During an office party, many of the employees, including president Betts, were playing with an electric auto condenser, which gave a slight shock when touched. Some employees played catch with it. Betts shocked Caudle on the back of his neck, and chased him around. The shock later caused Caudle to suffer headaches, pass out, feel numbness, and eventually to require nerve surgery. He sued Betts for battery. Betts defended by saying that it was all horseplay and that he had intended no harm. Please rule.

The court held that it was irrelevant that Betts had shown no malice toward Caudle nor intended to hurt him. Betts intended the physical contact with Caudle, and even though he could not foresee everything that would happen, he is liable for all consequences of his intended physical action.

DatagraphiX manufactured and sold computer graphics equipment that allowed users to transfer large volumes of information directly from computers to microfilm. Customers were required to keep maintenance documentation onsite for the DatagraphiX service personnel. The service manual carried this legend: "No other use, direct or indirect, of this document or of any information derived there from is authorized. No copies of any part of this document shall be made without written approval by DatagraphiX."In addition, on every page of the maintenance manual, the company placed warnings that the information was proprietary and not to be duplicated. Frederick J. Lennen left DatagraphiX to start his own company that serviced DatagraphiX equipment. Can DatagraphiX prevent Lennen from using its manuals?

The court held that these manuals were DatagraphiX's trade secrets. Datagraphix made reasonable attempts to keep the information secret

Lisa Preece rented an apartment from Turman Realty, paying a $300 security deposit. Georgia law states:"Any landlord who fails to return any part of a security deposit which is required to be returned to a tenant pursuant to this article shall be liable to the tenant in the amount of three times the sum improperly withheld plus reasonable attorney's fees."When Preece moved out, Turman did not return her security deposit, and she sued for triple damages plus attorney's fees, totaling $1,800. Turman offered evidence that its failure to return the deposit was inadvertent and that it had procedures reasonably designed to avoid such errors. Is Preece entitled to triple damages? Attorney's fees?

The court held the defendant liable for $900 (treble damages) and an additional $900 in attorney's fees. The rationale for treble damages is that, historically, landlords often willfully refuse to refund security deposits, knowing that most tenants would not bother to sue. That was obviously unethical. By trebling the damages, state legislatures have given landlords a financial incentive to be fair. By permitting attorney's fees, such laws ensure that injured tenants have access to court and a remedy.

Benzaquin had a radio talk show. On the program, he complained about an incident in which state trooper Fleming had stopped his car, apparently for lack of a proper license plate and safety sticker. Benzaquin explained that the license plate had been stolen and the sticker fallen onto the dashboard, but Fleming refused to let him drive away. Benzaquin and two young grandsons had to find other transportation. On the show, Benzaquin angrily recounted the incident, and then described Fleming and troopers generally:"we're not paying them to be dictators and Nazis";"this man is an absolute barbarian, a lunkhead, a meathead." Fleming sued Benzaquin for defamation. Comment.

The court ruled in favor of Benzaquin because a reasonable person would understand the words to be opinion and ridicule. They are not statements of fact because most of them could not be proven true or false. A statement like"dictators and Nazis"is not taken literally by anyone.

Pacific Express began operating as an airline in 1982. It had routes connecting western cities with Los Angeles and San Francisco, and by the summer of 1983, it was beginning to show a profit. In 1983, United Airlines tried to enter into a cooperative arrangement with Pacific in which United would provide Pacific with passengers for some routes so that United could concentrate on its longer routes. Negotiations failed. Later that year, United expanded its routes to include cities that only Pacific had served. United also increased its service to cities in which the two airlines were already competing. By early 1984, Pacific Express was unable to compete and sought protection under bankruptcy laws. It also sued United, claiming interference with a prospective advantage. United moved for summary judgment. Comment.

The court would award a summary judgement. Because United was connecting existing routes, they are able to prove that this was done to grow their own business, not just destroy Pacific Express. They would also most likely need to prove that United's actions were independently unlawful. *Tortious interference with a prospective advantage *A plaintiff who has a definite and reasonable expectation of obtaining an economic advantage may sue a corporation that maliciously interferes and prevents the relationship from developing.

defective condition is unreasonably dangerous to the user

The defendant is liable only if the product is defective when it leaves his hands. There must be something wrong with the goods. If they are reasonably safe and the buyer's mishandling of the goods causes the harm, there is no strict liability.

Ahmed plans to transport a 25-foot boa constrictor from one zoo to another. The snake is locked in a special cage in Ahmed's truck, approved by the American Zoo Society. Experts check the cage to be sure it is locked and entirely secure. Then Ahmed himself checks the cage. During the transport, his engine begins to fail. He pulls into the breakdown lane and sets up four flares, warning motorists of the stalled vehicle. Katy drives off the road and slams into Ahmed's truck. She is badly injured. Somehow the snake escapes and eats a champion show dog, worth $35,000. Katy and the dog's owner both sue Ahmed. What will be the result in each case?

The dog was killed by a dangerous snake. Transporting wild animals is an ultrahazardous activity, and Ahmed is strictly liable. His reasonable behavior will not save him. However, when he parked his truck in the breakdown lane, he did a reasonable job. Katy cannot prove that he breached his duty to her, and she loses.

Acceptance of a gift

The donee must accept the gift. This rarely leads to disputes, but if a donee should refuse a gift and then change her mind, she is out of luck. Her repudiation of the donor's offer means there is no gift, and she has no rights in the property.

Physical delivery

The donor must deliver the property to the donee.

Nome 2000, a partnership, owned a large tract of wilderness land in Alaska. The Fagerstrom family had used the property for camping and holidays since about 1944. In 1966, Charles and Peggy Fagerstrom marked off an area for a cabin and brought material to build the cabin, but never did so. In about 1970, they built a picnic area on the land, and in about 1974, they placed a camper trailer on the land, where it remained until the lawsuit. In 1987, Nome 2000 sued to eject the Fagerstroms from the land. The Fagerstroms had used the land only during the summer months. No one lived in the area during the winter months, when it was virtually uninhabitable. Has the family adversely possessed the land from Nome 2000?

The family met all of the requirements for adverse possession 1. They were there without permission from the owner 2. they were open and notorious, making obvious modifications to the property 3. they were the only people using the property 4, they had used the property continuously from 1944-1987 Continuous use can include only seasonal use, as long as it was consistent with a normal amount of use for a similar property.

Who is entitled to a patent when two people invent the same product?

The first person to file a patent application

How is ownership over a trademark determine?

The first person to use a mark in trade owns it

First sale doctine

The first sale doctrine permits a person who owns a lawfully made copy of a copyrighted work to sell or otherwise dispose of the copy.

trade dress

The image and overall appearance ("look and feel") of a product that is protected by trademark law.

Strict liability for defective products

The injured person must show only that the defendant manufactured or sold a product that was defective and that the defect caused harm. There is no need to prove unreasonable conduct.

common areas

The landlord is usually responsible for maintaining the common areas, and along with this obligation may go liability for torts.

Trespassing children

The law makes exceptions when the trespassers are children. If there is some man-made thing on the land that may be reasonably expected to attract children, the landowner is probably liable for any harm.

Eviction

The legal process of removing a tenant from rental property

What must the plaintiff prove about damages in cases of negligence?

The plaintiff must persuade the court that he has suffered harm that is genuine, not speculative. The court will look for a measurable, quantifiable loss. This may be difficult in determining future harm.

Injury in cases of defamation

The plaintiff must show some injury, unless the case involves false statements about sexual behavior, crimes, contagious diseases, and professional abilities. In these cases, the law is willing to assume injury without requiring the plaintiff to prove it.

A producer shot a low-budget horror movie and then delivered 10 reels of negative film to Filmprocess Corp. for processing. Filmprocess lost the reels. The producer sued for $5 million, the cost of production. Filmprocess based its defense on an exculpatory clause in the parties'contract, which stated that the producer accepted the full risk of loss for any film delivered to Filmprocess and that the producer would insure against such loss. Who will win the lawsuit?

The producer will lose its claim for $5 million. Both parties were corporations, with roughly equal bargaining power, and the exculpatory clause is valid. There was no intentional tort or gross negligence, so the clause will be enforced.

Jerry Falwell was a nationally known Baptist minister whose website was falwell.com. One of his most outspoken critics registered the website fallwell.com— note the misspelling—to criticize the minister's views on homosexuality. This site has a disclaimer indicating that it was not affiliated with Reverend Falwell. The minister sued fallwell.com, alleging a violation of trademark law and the anti-cybersquatting statute. Was there a violation?

The reverend lost on both counts. The court ruled that there was no confusion— fallwell.com had a clear disclaimer. Also, there was no indication of bad faith. The court was reluctant to censor political commentary.

In 1944, W. E. Collins conveyed land to the Church of God of Prophecy. The deed said:"This deed is made with the full understanding that should the property fail to be used for the Church of God, it is to be null and void and property to revert to W. E. Collins or heirs."In the late 1980s, the church wished to move to another property and sought a judicial ruling that it had the right to sell the land. The trial court ruled that the church owned a fee simple absolute and had the right to sell the property. Comment.

The reversionary interests will stay with Collins. A property owner may convey a life estate to anyone. In this case, W.E.Collins creates a reversion between his heirs and Church of God of Prophecy. Regardless of the amount of time it takes for Church of God property to fail, ownership will ultimately revert to the Collins heirs. Church of God does not fully own the property, only rights to use the property, and may not sell it.

bailment

The rightful possession of goods by one who is not the owner, usually by mutual agreement between the bailor and bailee

in the business of selling

The seller is liable only if she normally sells this kind of product.

Texaco, Inc., and other oil companies sold mineral spirits in bulk to distributors, which then resold to retailers. Mineral spirits are used for cleaning. Texaco allegedly knew that the retailers, such as hardware stores, frequently packaged the mineral spirits (illegally) in used half-gallon milk containers and sold them to consumers, often with no warnings on the packages. Mineral spirits are harmful or fatal if swallowed. David Hunnings, aged 21 months, found a milk container in his home, swallowed the mineral spirits, and died. The Hunnings sued Texaco for negligence. The trial court dismissed the complaint, and the Hunnings appealed. What is the legal standard in a negligence case? Have the plaintiffs made out a valid case of negligence? Remember that at this stage, a court is not deciding who wins, but what standard a plaintiff must meet in order to take its case to a jury. Assume that Texaco knew about the repackaging and the grave risk but continued to sell in bulk because doing so was profitable. (If the plaintiffs cannot prove those facts, they will lose even if they do get to a jury.) Would that make you angry? Does that mean such a case should go to a jury? Or would you conclude that the fault still lies with the retailer, the parents, or both?

The standard is whether the defendant acted as a "reasonable person" would have. The appeals court reversed, holding that the plaintiffs had made out a valid negligence claim and were entitled to take their evidence to a jury. Plaintiffs could argue, for example, that Texaco should have provided warnings of the danger, should have discouraged distributors from selling to retailers who illegally packaged the goods in used milk containers, and should have refused to sell to distributors who didn't cooperate.

Stuart lives in a state that sets a three-year statute of limitations on tort claims. His state also has an eight-year statute of repose. Stuart bought a television on June 1, 2010. On July 1, 2017, a manufacturing defect causes the television to malfunction and cause an electrical fire. Stuart waits for a year and then files a lawsuit on July 1, 2018. Will he win, or will his case be dismissed?

The statute of limitations'three-year period starts to run only when Stuart discovers the defect. Because he filed one year from the fire, the statute of limitations does not bar his recovery. But unfortunately, Stuart's lawsuit will fail because of the statute of repose. That eight-year limit begins to expire when Stuart buys the TV, and the lawsuit is not filed for eight years and one month from the time of the sale. Stuart loses.

Ronald Armstead worked for First American Bank as a courier. His duties included making deliveries between the bank's branches in Washington, D.C. Armstead parked the bank's station wagon near the entrance of one branch in violation of a sign saying:"No Parking—Rush Hour Zone."In the rear luggage section of the station wagon were four locked bank dispatch bags containing checks and other valuable documents. Armstead had received tickets for illegal parking at this spot on five occasions. Shortly after Armstead entered the bank, a tow truck arrived and its operator prepared to tow the station wagon. Transportation Management, Inc., operated the towing service on behalf of the District of Columbia. Armstead ran out to the vehicle and told the tow truck operator that he was prepared to drive the vehicle away immediately. But the operator drove away with the station wagon in tow. Oneand-a-half hours later, a bank employee paid for the car's release, but one dispatch bag, containing documents worth $107,000, was missing. First American sued Transportation Management and the District of Columbia. The defendants sought summary judgment, claiming they could not be liable. Were they correct?

The towtruck operator took full possession of the vehicle. Because a bailment was made, the towing company had an ordinary duty of care while the car was in its possession. The towing company was not correct in their claim that they are not liable for the vehicle.

Research Corp. applied for a patent for a so-called halftoning technique that uses a mathematical formula to enable monitors and printers with limited color options to simulate a wider range of colors. Is this technique patentable?

The trial court ruled that this patent application was invalid because it was too abstract. But the appellate court overruled, holding that, although the patent used mathematical algorithms, the inventors were patenting the process not the algorithms. It upheld the patent.

A Claim Adverse to the Owner

The user must clearly assert that the land is his. He does not need to register a deed or take other legal steps, but he must act as though he is the sole owner. If the user occupies the land with the owner's permission, there is no adverse claim and the user acquires no rights in the property. To succeed, the user must protect his possession of the land against all others the way any normal landowner would.

Open and Notorious Possession

The user's presence must be visible and generally known in the area, so that the owner is on notice that his title is contested. This ensures that the owner can protect his property by ejecting the user. Someone making secret use of the land gives the owner no opportunity to do this, and hence acquires no rights in the land.

How long do trade secrets last?

They remain protected as long as they are kept secret.

Question: A supervisor reprimanded an employee for eating in a restaurant when he should have been at work. Later, the employee showed up at the supervisor's office and shot him. Although the employee previously had been violent, management withheld this information from supervisory personnel. Is the company liable for the supervisor's injury?

This employer may have been liable for negligently hiring a previously violent employee, and it certainly did an unreasonable job in retaining him without advising his supervisor of the earlier violence. The assault was easily foreseeable, and the employer is liable.

Tenancy by entirety

This form of ownership exists in slightly over half of the states. The husband and wife each own the entire property, and they both have a right of survivorship. *Neither party has a right to convey his or her interest. If the parties wish to sell their interests, they must do so together. *An advantage of this is that no creditor may seize the property based on a debt incurred by only one spouse.

Federal Trademark Dilution Act of 1995

This statute prevents others from using a trademark in a way that dilutes its value, even though consumers are not confused about the origin of the product; or tarnishes it by association with unwholesome goods or services.

Thomas, aged 80, has spent a lifetime accumulating unspoiled land in Oregon. He owns 16,000 acres, which he plans to leave to his five children. He is not so crazy about his grandchildren. Thomas cringes at the problems the grandchildren would cause if some of them inherited an interest in the land and became part-owners along with Thomas's own children. Should Thomas leave his land to his children as tenants in common or joint tenants?

Thomas is better off leaving the land to his children as joint tenants. That way, when one of his children dies, that child's interest in the land will go to Thomas's surviving children, not to his grandchildren.

Control in bailments

To create a bailment, the bailee must assume physical control of an item with intent to possess. A bailee may be liable for loss or damage to the property, and so it is not fair to hold him liable unless he has taken physical control of the goods, intending to possess them. This comes up often in parking lot cases. If the car owner keeps their keys, no bailment has been made. If the driver leaves their keys, a bailment has been made.

Victoria's Secret, a well-known lingerie company, found out that a man named Victor Moseley was running a small store in Kentucky named"Victor's Little Secret." Moseley's shop sold clocks, patches, temporary tattoos, stuffed animals, coffee mugs, leather biker wallets, Zippo lighters, diet formula, jigsaw puzzles, handcuffs, hosiery, greeting cards, incense burners, car air fresheners, sunglasses, jewelry, candles, and adult novelties. Women's lingerie represented about 5 percent of its sales. Does Victoria's Secret have a valid intellectual property claim?

To win an infringement suit, the trademark owner must show that the defendant's trademark is likely to deceive customers about who has made the goods or provided the services. The FTDA prevents others from using a trademark in a way that (1) dilutes its value, even though consumers are not confused about the origin of the product; or (2) tarnishes it by association with unwholesome goods or services. Victor's would not be able to use the trademark because it could potentially tarnish the name of Victoria's Secret

America Invents Act (AIA)

Under this statute, anyone who has been charged with infringement of certain financial service business method patents has the right (from 2012 to 2020) to challenge the validity of that patent.

Right of Survivorship

Upon the death of a joint tenant or tenant by the entirety the interest does not pass to the tenant's heirs but to the other join tenant(s).

Mark is furious because his girlfriend, Denise, just told him she is leaving him. He never saw it coming. On the sidewalk, he picks up a rock and hurls it at Denise's head. She does see it coming, and she ducks. The rock misses Denise but hits Terrance (who never saw it coming) in the back of his head. Denise and Terrance both sue Mark for assault and for battery. Outcomes?

Was Denise touched? No. Did she fear an imminent battery? Yes. Denise wins a suit for assault but loses one for battery. Now Terrance: Was he touched? Yes. Did he fear an imminent battery? No. Terrance wins a suit for battery but loses one for assault. Rule: Battery is an intentional touching of another person in a way that is harmful or offensive. Assault is an act that makes a person reasonably fear an imminent battery.

Actual eviction

When a landlord prevents the tenant from possessing the premises. *** Even a partial eviction is an interference with quiet enjoyment

negligence per se

When a legislature sets a minimum standard of care for a particular activity, in order to protect a certain group of people, and a violation of the statute injures a member of that group. A plaintiff who can show negligence per se need not prove breach of duty.

slander/libel per se

When oral or written statements relate to criminal or sexual conduct, contagious diseases, or professional abilities, they are assumed to be harmful to the subject's reputation.

duty of care: sole benefit of bailor

When the bailment benefits only the bailor, the bailee must use only slight care. This kind of bailment is called a gratuitous bailment, and the bailee is liable only for gross negligence.

Jack arrives at Airport Hotel's valet parking area in a Ferrari, just as Kim drives up in her Smart Car. A valet drives Kim's car away, but the supervisor asks Jack to park the Ferrari himself, in the hotel's lot across the street. Jack parks as instructed, locking the Ferrari and keeping the keys. During the night, both vehicles are stolen. The owners sue for the value of their vehicles—about $10,000 for Kim's Smart Car and $350,000 for Jack's Ferrari. Each owner will win if there was a bailment but lose if there was not. Can either or both prove a bailment?

When the valet drove Kim's car away, the hotel assumed control with intent to possess. The parties created a bailment, and the hotel is liable. But Jack loses. The hotel never had physical control of the Ferrari. Employees did not park the vehicle, and Jack kept the keys. Jack's was a"park and lock"case, with no bailment.

no contractual relation

When two parties contract, they are in privity. Note that privity only exists between the user and the person from whom she actually bought the goods, but in strict liability cases, privity is not required.

Refer to question 1. If Ann decides to sue, she -----have to show evidence that she suffered an injury. If she ultimately wins her case, a jury ------have the option to award punitive damages.

Will not;Will (Will not because libel per se includes criminal and sexual activity. A plaintiff need not prove injury, as injury is assumed)

You are a vice-president in charge of personnel at a large manufacturing company. In-house detectives inform you that Gates, an employee, was seen stealing valuable computer equipment. Gates denies the theft, but you believe the detectives and fire him. The detectives suggest that you post notices around the company, informing all employees what happened to Gates and why, because it will discourage others from stealing. While you are considering that, a phone call from another company's personnel officer asks for a recommendation for Gates. Should you post the notices? What should you say to the other officer?

You should not post the notices. Without proof of the theft, Gates could sue for defamation. You should not mention the theft accusations to the officer for the same reasons.

Lanham Act

a 1946 law that provides broad protection against false statements intended to harm another business

Digital Millennium Copyright Act

a 1998 US law intended to update copyright law for electronic commerce and electronic content providers. It criminalizes the circumvention of electronic and digital copyright protection systems.

condemnation

a court order specifying what compensation is just and awarding title to the government

ultrahazardous activity

a defendant engaging in an ultrahazardous activity is almost always liable for any harm that results. Plaintiffs do not have to prove duty or breach or foreseeable harm. This includes using harmful chemicals, operating explosives, keeping wild animals, and bringing dangerous substances onto property. In these cases, the reasonable person rules is irrelevant. If the court rules that the activity was ultrahazardous, the plaintiff is assured of winning. If it was not ultrahazardous, the plaintiffs must prove all elements of negligence.

Constructive Delivery

a donor makes constructive delivery by transferring ownership without a physical delivery ***most courts permit constructive delivery only when physical delivery is impossible or extremely inconvenient

patent

a grant by the government permitting the inventor exclusive use of an invention for a specific period

notice to quit

a landlord's notice terminating a tenancy

escalator clause

a lease clause allowing the landlord to raise the rent for specified reasons

periodic tenancy

a lease for a fixed period, automatically renewable unless terminated by either party *** If the tenant is renting commercial property, the new periodic tenancy is for the same period as the old tenancy for years, up to a maximum of one year. ***if the property is residential, the new periodic tenancy is month to month.

mitigate damages

a party injured by a breach of contract is required by law to take reasonable steps to minimize the harm done

business method patent

a patent that protects an invention that is or facilitates a method of doing business

Utility Patent

a property right awarded for a new and non-obvious process, machine, or composition of matter that has a useful function

mortgage

a security interest in real property. a type of easement

duty not to damage premises

a tenant is liable to the landlord for any significant damage he causes to the property A tenant is permitted to make reasonable changes in the leased property so that he can use it as intended.

absolute privilege

a witness testifying in a court or legislature may never be sued for defamation

Gina has season tickets to Cardinals games. One Monday, she promises to give her tickets to Friday's game to Ed, a friend who works across town. On Tuesday, Gina hands the tickets to Al, an administrative assistant. An hour later, when Al still has the tickets and has not given them to Ed, Gina returns."Sorry,"she says,"but my cousins are coming to town this weekend. I'll need those tickets back."Gina is entitled to get the tickets back if Al works for . (a) Gina (b) Ed (c) Both A and B (d) None of the above

a--- gina

condition

allows the landlord to evict a tenant if there is a violation. In many states, conditions must be clearly labeled.

Tortious interference with a contract

an intentional tort in which the defendant improperly induced a third party to breach a contract with the plaintiff

Intentional Infliction of Emotional Distress

an intentional tort in which the harm results from extreme and outrageous conduct that causes serious emotional harm

superseding cause

an unforeseeable intervening act broke the chain of causation

nuisance

an unprivileged interference with a person's use and enjoyment of her property ***Offensive noise, odors, or smoke often give rise to nuisance claims. Courts typically balance the utility of the act that is causing the problem against the harm done to neighboring property owners.

There is a collision between cars driven by Candy and Zeke. The evidence is that Candy is about 25 percent responsible, for failing to stop quickly enough, and Zeke about 75 percent responsible, for making a dangerous turn. Candy is most likely to win: (a) A lawsuit for battery (b) A lawsuit for negligence in a comparative negligence state (c) A lawsuit for negligence in a contributory negligence state (d) A lawsuit for strict liability (e) A lawsuit for assault

b

2. Consider the following: I. A house (value: $150,000) II. A giant high-definition television in the house (value: $4,999) III. The land that the house sits upon (value: $30,000) IV. An old car in the house's garage (value: $5,001) How many of these items are personal property? (a) All four of them (b) Three of them (c) Two of them (d) One of them (e) None of them

c-- two of them

1. Which of the following requirements must be met to create a bailment? I. Delivery of personal property to the intended bailee II. Possession by the intended bailee (a) I only (b) II only (c) Both I and II (d) None of the above

c--- both 1 and 2

Keith is driving while intoxicated. He swerves into the wrong lane and causes an accident, seriously injuring Caroline. Which statement is true? a. Caroline could sue Keith, who might be found guilty in her suit. b. Caroline and the state could start separate criminal cases against Keith. c. Caroline could sue Keith, and the state could prosecute Keith for drunk driving. d. The state could sue Keith but only with Caroline's consent. e. The state could prosecute Keith and sue him at the same time for drunk driving.

c. Caroline could sue Keith, and the state could prosecute Keith for drunk driving.

Negligence

careless neglect, often resulting in injury often called the "unintentional tort" because it concerns harm that arises by accident. "In every instance, before negligence can be predicated of a given act, back of the act must be sought and found a duty to the individual complaining."

Treasure trove

coins or currency concealed by the owner for such a length of time that the owner is probably dead or undiscoverable; the finder is entitled to the property

Justification Defenses

defendants admit they were responsible for their acts but claim that, under the circumstances, what they did was right (justified) To establish justification, a defendant must show that: 1. It was acting to protect an existing economic interest, such as its own contract with the third party 2.It was acting in the public interest, for example, by reporting to a government agency that a corporation was overbilling for government services 3. The existing contract could be terminated at will by either party, meaning that although the plaintiff had a contract, the plaintiff had no long-term assurances because the other side could end it at any time.

A new truck, manufactured by General Motors Corp. (GMC), stalled in rush hour traffic on a busy interstate highway because of a defective alternator, which caused a complete failure of the truck's electrical system. The driver stood nearby and waved traffic around his stalled truck. A panel truck approached the GMC truck, and immediately behind the panel truck, Davis was driving a Volkswagen fastback. Because of the panel truck, Davis was unable to see the stalled GMC truck. The panel truck swerved out of the way of the GMC truck, and Davis drove straight into it. The accident killed him. Davis's widow sued GMC. GMC moved for summary judgment, alleging (1) no duty to Davis, (2) no factual causation, and (3) no foreseeable harm. Comment.

duty, breach, factual cause, proximate cause, damages

proximate cause

for the defendant to be liable, the type of harm must have been reasonably foreseeable

Fee Simple Absolute

full ownership privileges in a property

Fixtures

goods that have become attached to real estate. When an owner sells real property, the buyer normally obtains the fixtures unless the parties specify otherwise.

revocable gift

governed by a special rule is not actually a gift

intentional torts

harm caused by a deliberate action

latent defect

if the landlord knows of a dangerous condition on the property and realizes the tenant will not notice it, the landlord is liable for any injuries if the landlord notifies the tenant of the latent defect, he is no longer liable.

trespass

intentionally entering land that belongs to someone else or remaining on the land after being asked to leave. It is also trespass if you have some object, let's say a car, on someone else's property and refuse to remove it. "Intentionally"means that you deliberately walk onto the land. If you walk through a meadow, believing it to be a public park, and it belongs to a private owner, you have trespassed.

Grant Easement

landowner expressly intends to convey an easement to someone else

Tortious interference with a prospective advantage

malicious interference with a developing economic relationship A plaintiff who has a definite and reasonable expectation of obtaining an economic advantage may sue a corporation that maliciously interferes and prevents the relationship from developing. To demonstrate interference with a prospective advantage, most courts require a plaintiff to show that the defendant's conduct was independently unlawful.

Zack lives in a state that prohibits factory laborers from working more than 12 hours in any 24-hour period. The state legislature passed the law to cut down on accidents caused by fatigued workers. Ignoring the law, Zack makes his factory employees put in 14-hour days. Eventually, a worker at the end of a long shift makes a mistake and severely injures a coworker. The injured worker sues Zack. Which of the following terms will be most relevant to the case? (a) Res ipsa loquitur (b) Assumption of the risk (c) Negligence per se (d) Strict liability

negligence per se

Donald Trump wanted to copyright the phrase"You're Fired!"He used the phrase on his reality show, The Apprentice. He . (a) can copyright it only if he registers it (b) can copyright it only if it is in a tangible form (c) cannot copyright it because it is not novel (d) None of the above

only in if it is in tangible form

Plant patents

patents that recognize the discovery of new plant types that can be asexually reproduced

Statute of Repose

places an absolute limit on when a lawsuit may be filed, regardless of when the defect is discovered.

community property

property acquired during marriage and owned equally by both spouses ***This system allows the husband and wife to maintain separate ownership of assets they bring to the marriage or inherit. Those assets are called separate property. They remain the private property of each spouse during the marriage. Either spouse may convey separate property to another person during the marriage and may leave the separate property to anyone he or she wishes. ***But income or assets that either party earns during the marriage are considered community property, which must be equally shared during the marriage, regardless of who earns it. Neither party may convey community property without the consent of the other. When a spouse dies, one-half of the community property goes to the surviving spouse, and the other half goes to the heirs of the deceased.

suggestive marks

provide some suggestion as to a quality or characteristic of the goods or services associated with the mark, but require some mental exercise to connect the mark with the product (greyhound, coppertone)

single recovery principle

requires a court to settle the matter once and for all by awarding a lump sum for past and future expenses

The Paris Convention for the Protection of Industrial Property

requires each member country to accept and recognize all patent and trademark applications filed with it by anyone who lives in any member country.

Berne Convention

requires member countries to provide automatic copyright protection to any works created in another member country

Merchantability warranty

requires that goods be fit "for their ordinary purpose.

implied warranty of habitability

requires the landlord to keep the premises fit for habitation both before and after a tenant takes possession ***In warranty of habitability cases, a court normally considers the severity of the problems and their duration.

Trademark Law Treaty

simplifies and harmonizes the process of applying for trademarks around the world

Inkeepers: bailments

some state innkeeper statutes impose an absolute limit on a hotel's liability. Other statutes require guests to leave valuables in the inn's safe deposit box. And even that may not be enough to protect them fully. For example, a state statute might require the guest to register the nature and value of the goods with the hotel.

Abandoned property

something that the owner has knowingly discarded because she no longer wants it Generally, a finder is permitted to keep abandoned property. But because the owner loses all rights in abandoned property, a court never presumes abandonment. The finder must prove that the owner intended to relinquish all rights.

Mislaid property

something the owner has intentionally placed somewhere and then forgotten Generally, the finder gets no rights in property that has simply been mislaid. If the true owner cannot be located, the mislaid item belongs to the owner of the premises where the item was found.

Defamatory Statement

statement likely to harm another person's reputation

Fifth Amendment

states:"...nor shall private property be taken for public use, without just compensation."

copyright

the exclusive legal right, given to an originator or an assignee to print, publish, perform, film, or record literary, artistic, or musical material, and to authorize others to do the same. material need not be novel to be copyrighted a work is copyrighted automatically once it is in tangible form.

Res Ipsa Loquitur

the facts imply that the defendant's negligence caused the accident "the facts speak for themselves" In such cases, many courts will apply res ipsa loquitur and declare that the facts imply that the defendant's negligence caused the accident. If a court uses this doctrine, then the defendant must come forward with evidence establishing that it did not cause the harm.

False Imprisonment

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

What is the plaintiff's claim in a tort case?

the law itself creates a duty that the defendant has breached

A couple thought of a clever name for an automobile. They wanted to protect this name so that they could ultimately sell it to a car manufacturer. What would be the best method to attain this goal?

the name cannot be protected

landlord

the owner of a freehold estate who allows another person temporarily to live on his property

eminent domain

the right of a government or its agent to expropriate private property for public use, with payment of compensation.

reversion

the right of an owner (or her heirs) to property upon the death of a life tenant

easement

the right to enter land belonging to another and make limited use of it

profit

the right to enter land belonging to another and take something from it

Reversionary Interest

the right to possess the property when the lease ends

license

the right to temporarily enter land belonging to another (emphasis on temporary. think a ticket to an event in an arena)

Quiet Enjoyment

the tenant's right to be free from interference from the landlord with respect to how the property is used. ***The most common interference with quiet enjoyment is an eviction, meaning some act that forces the tenant to abandon the premises.

Arbitrary Marks

those that have no relation to the goods or services associated with the mark other than identifying the source

Thomas's English Muffins wanted to protect the method by which it makes muffins with air pockets—what it calls"nooks and crannies."What would be the best way to achieve this goal? (a) Patent (b) Copyright (c) Trademark (d) Trade secret (e) This method cannot be protected.

trade secret

VitaminWater has become such a success that other companies are also now selling similar (but not identical) flavored colored water. Some competitors bottle their drinks in a similar bell-shaped bottle with a two-toned label that has a horizontal color band. What is the best infringement claim for VitaminWater to make against these

trademark

true or false The statute of frauds generally requires that a lease be in writing.

true

Tenancy in Common

two or more people holding equal interest in a property, but with no right of survivorship. 1. This is the default setting when multiple people acquire a property. 2. The tenants in common do not own a particular section of the property; they own an equal interest in the entire property. 3. Any co-tenant may convey her interest in the property to another person.

concurrent estates

two or more people owning property at the same time

collective marks

used to identify members of an organization

service marks

used to identify the services or intangible activities of a business rather than a business's physical product

Entry and Exclusive Possession

user must take physical possession of the land and must be the only one to do so

If you buy a DVD, you have the legal right to . (a) watch it as many times as you want and then give it away (b) copy it to your computer and then give it to a friend (c) copy it to your computer and sell it on eBay (d) All of the above (e) a and b only

watch it as many times as you want and then give it away

reservation

when an owner sells land but keeps some rights to enter the property

Certification Mark

words or symbols used by a person or organization to attest that products and services produced by others meet certain standards

Libel

written defamation (think: Libel/Library)

After Edward Miller left his job as a salesperson at the New England Insurance Agency, Inc., he took some of his New England customers to his new employer. At New England, the customer lists had been kept in file cabinets. Although the company did not restrict access to these files, it claimed there was a "You do not peruse my files and I do not peruse yours"understanding. The lists were not marked"confidential"or"not to be disclosed."Did Miller steal New England's trade secrets? Whether or not he violated the law, was it ethical for him to use this information at his new job? What is your Life Principle?

yes. a reasonable attempt had been made to protect the information