Business Law (First Exam)

In rem jurisdiction

"Jurisdiction over the thing"; a court can exercise jurisdiction over property that is located within its boundaries.

Motion for judgment n.o.v.

(Federal courts use the term- judgment as a matter of law instead) This is only granted if the jury's verdict was unreasonable and erroneous. This happens when the jury's verdict is set aside and a judgment is entered in favor of the opposing party

Slander Per Se

1) A statement that someone else has a particular disease 2) A statement that another has committed I properties while engaging in a profession or trade. 3) A statement that someone has committed or been imprisoned for a serious crime. 4) A statement that a person (usually unmarried and sometimes a woman) is unchaste or has engaged in serious sexual misconduct.

Invasion of Privacy

1) Appropriation of Identity: Under the common law, using a person's name, picture, or other likeness for commercial purposes without permission is a tortious invasion of privacy. 2) Intrusion into an individual's affairs or seclusion: For example, invading someone's home or searching someone's personal computer without authorization is an invasion of privacy. This tort has been held to extend to eavesdropping by wiretap, unauthorized scanning of a bank account, com- pulsory blood testing, and window peeping. One court found that a man who had repeatedly followed a woman (the wife of his girlfriend's former husband), photographed her, and made obscene gestures at her had intruded into her privacy. 3) False Light: The publication of information that places a person in a false light is another category of invasion of privacy. This could be a story attributing to someone ideas not held or actions not taken by that person. (The publication of such a story could involve the tort of defamation as well.) 4) Public disclosure of private facts: This type of invasion of privacy occurs when a person publicly discloses private facts about an individual that an ordinary person would find objectionable or embarrassing. A newspaper account of a private citizen's sex life or financial affairs could be an actionable invasion of privacy, even if the information revealed is true, because it is not of public concern.

Sources of American Law:

1) Constitutional Law 2) Statutory Law 3) Admin Law 4) Common/Case Law

Three branches of gov't

1) Legislative branch (Congress) can enact and make a law 2) Executive branch enforces the laws; responsible for foreign affairs 3) Judicial branch interprets the laws; has the power to hold actions of the other two branches unconstitutional.

State Court Systems

1) Local Trial Courts of limited jurisdiction 2) State Trial Courts of general jurisdiction 3) State Courts of Appeals (Intermediate Appellate Courts) 4) The state's highest court (often called the state Supreme Court, only if applicable in that state) State trial courts have either general or limited jurisdiction. Trial courts that have general jurisdiction as to subject matter may be called county, district, superior, or circuit courts; they have jurisdiction over a wide variety of subjects including civil disputes and criminal prosecutions. Courts with limited jurisdiction are often called special inferior trial courts or minor judiciary courts. Small claims courts are inferior trial courts that hear only civil cases involving claims of less than a certain amount, such as $5,000 (varies from state to state)

State and Trial Courts

1) Trial court- bottom tier; evidence is presented and testimony is given 2) Court of Appeals or an Appellate Court- intermediate; where decisions from trial court can be appealed 3) State Supreme Court or US Supreme Court- highest court; where decisions from the intermediate courts can be appealed.

Federal Court Systems

1) US District Courts (trial courts of general jurisdiction) and various courts of limited jurisdiction 2) US Court of Appeals (intermediate courts of appeals) 3) US Supreme Court- consists of nine justices; can review any case decided by any of the federal courts of appeals; has appellate authority over cases involving federal questions that have been decided in the state courts; the final arbiter of the Constitution and the federal law.

Diversity of citizenship

1) the plaintiff and defendant reside in two different states 2) the amount in controversy must exceed $70,000-$75,000 (????); normally filed in the appropriate district court.

Negligence must include:

1. Duty. That the defendant owed a duty of care to the plaintiff. 2. Breach. That the defendant breached that duty. 3. Causation. That the defendant's breach caused the plaintiff's injury. 4. Damages. That the plaintiff suffered a legally recognizable injury.

Long Arm Statute

A court can exercise personal jurisdiction over certain out-of-state defendants based on activities that took place within the state; the court must exercise that the defendant had minimum contacts within the state.

In personam jurisdiction

A court has power over any person or business that resides in a certain geographic area. (State trial court has jurisdiction over residents of a particular area of the state, county or district; the state's highest court has jurisdictional authority over all residents within the state.

Federal Question

A federal court can exercise jurisdiction when the plaintiff's cause of action is based at least in part on the US Constitution, a treaty, or federal law.

Jurisdiction

A geographic area in which a court or courts have the power to apply the law.

Assumption of Risk

A plaintiff who voluntarily enters into a risky situation, knowing the risk involved, will not be allowed to recover. The requirements of this defense are (1) knowledge of the risk and (2) voluntary assump- tion of the risk. This defense is frequently asserted when the plaintiff was injured during recreational activities that involve known risk, such as skiing and skydiving. Note that assumption of risk can apply not only to participants in sporting events, but also to spectators and bystanders who are injured while attending those events. For example, a driver, Bryan Stewart, knows that there is a risk of being killed or injured in a crash whenever he enters a race. Therefore, a court will deem that Stewart has assumed the risk of racing. Of course, a person does not assume a risk different from or greater than the risk normally carried by the activity. Thus, Stewart does not assume the risk that the banking in the curves of the racetrack will give way during the race because of a construction defect. Courts do not apply the assumption of risk doctrine in emergency situations. Nor does it apply when a statute protects a class of people from harm and a member of the class is injured by the harm. For instance, because federal and state statutes pro- tect employees from harmful working conditions, employees do not assume the risks associated with the workplace. An employee who is injured generally will be compensated regardless of fault under state work- ers' compensation statutes (discussed in Chapter 34).

Contributory Negligence

A plaintiff who was also negligent (failed to exercise a reasonable degree of care) could not recover anything from the defendant. Under this rule, no matter how insignificant the plaintiff's negligence was relative to the defendant's negligence, the plaintiff would be precluded from recovering any damages.

Note to Remember:

A state must have a substantial reason for taking any action that infringes on a person's free speech rights.

Actual Malice

A statement must be made with either knowledge of its falsity or a reckless disregard of the truth. Public figures have a greater burden of proof in defamation cases (they must prove actual malice) than do private individuals.

Unanimous opinion

All judges and/or justices involved unanimously agree on one decision.

No Duty to Rescue

Although the law requires individuals to act reasonably and responsibly in their relations with one another, a person will not be considered negligent for failing to come to the aid of a stranger in peril. For example, assume that you are walking down a city street and see a pedestrian about to step directly in front of an oncoming bus. You realize that the person has not seen the bus and is unaware of the danger. Do you have a legal duty to warn that individual? No. Although most people would probably concede that, in this situation, the observer has an ethical duty to warn, tort law does not impose a general duty to rescue others in peril. In addition, if a person who has no duty to rescue undertakes to rescue another, then the rescuer is charged with a duty to follow through with due care in the rescue attempt. Most states also have laws that require motorists involved in an automobile accident to stop and render aid. Failure to do so is both a tort and a crime.

Defense

An argument raised by the defendant indicating why the plaintiff shouldn't obtain the remedy sought.

Intentional infliction of emotional distress

An intentional act that amounts to extreme and outrageous conduct resulting in severe emotional distress to another. To be actionable (capable of serving as the ground for a lawsuit), the act must be extreme and outrageous to the point that it exceeds the bounds of decency accepted by society. Acts that cause indignity or annoyance alone usually are not sufficient, but repeated annoyances (such as those experienced by a person who is being stalked), coupled with threats, are enough. When the outrageous conduct consists of speech about a public figure, the First Amendment's guarantee of freedom of speech also limits emotional distress claims.

Battery

An unexcused and harmful or offensive physical contact intentionally performed; The completion of the act that caused the apprehension, if it results in harm to the plaintiff

Assault

Any intentional and unexcused threat of immediate harmful or offensive contact, includ- ing words or acts that create in another person a reasonable apprehension of harmful contact. An assault can be completed even if there is no actual contact with the plaintiff, provided that the defendant's conduct creates a reasonable apprehension of imminent harm in the plaintiff. Tort law aims to protect individuals from having to expect harmful or offensive contact.

Abuse of process

Any person using a legal process against another in an improper man- ner or to accomplish a purpose for which the pro- cess was not designed. The key difference between the torts of abuse of process and malicious prosecu- tion is the level of proof. Abuse of process does not require the plaintiff to prove malice or show that the defendant (who was previously the plaintiff) lost in a prior legal proceeding.17 In addition, abuse of pro- cess is not limited to prior litigation. It can be based on the wrongful use of subpoenas, court orders to attach or seize real property, or other types of formal legal process.

Note to Remember:

Any person who is a party to a lawsuit has the opportunity to plead the case before a trial court, and if they lose they can go before at least one level of appellate court.

Full Faith and Credit Clause

Applies only to civil matters; it ensures that the rights established under deeds, will, contracts, etc. in one state, will be honored by other states; any judicial decision w. respect to such property rights will be honored and enforced in all states.

Note about trespass to land

Before a person can be a trespasser, the real property owner (or other person in actual and exclusive possession of the property, such as a person who is leasing the property) must establish that person as a trespasser. For example, "posted" trespass signs expressly estab- lish as a trespasser a person who ignores these signs and enters onto the property. Any person who enters onto another's property to commit an illegal act (such as a thief entering a lumberyard at night to steal lumber) is established impliedly as a trespasser, without posted signs. At common law, a trespasser is liable for damages caused to the property and generally cannot hold the owner liable for injuries that the trespasser sus- tains on the premises. This common law rule is being abandoned in many jurisdictions, however, in favor of a reasonable duty of care rule that varies depend- ing on the status of the parties. Also, under the "attractive nuisance" doctrine, a landowner may be held liable for injuries sustained by young children on the land- owner's property if the children were attracted to the premises by some object, such as a swimming pool or an abandoned building. Finally, an owner can remove a trespasser from the premises—or detain a trespasser on the premises for a reasonable time— through the use of reasonable force without being liable for assault, battery, or false imprisonment.

Common Law

Body of general rules that applied throughout the entire English realm.

Libel

Breaching the duty of defamation in writing or other permanent form (such as a digital recording). Once a defendant's liability for libel is established, general damages are presumed as a matter of law. General damages are designed to compensate the plaintiff for nonspecific harms such as disgrace or dishonor in the eyes of the com- munity, humiliation, injured reputation, and emotional distress—harms that are difficult to measure; The plaintiff doesn't normally have to prove that they were actually injured as a result of the libelous

Slander

Breaching the duty orally. The plaintiff must show that the slanderous statement caused her or him to suffer actual economic or monetary losses. Unless this initial hurdle of proving special damages is overcome, a plaintiff alleging slander normally cannot go forward with the suit and recover any damages. This requirement is imposed in slander cases because oral statements have a temporary quality.

Note to remember:

Cases can only be brought before appellate courts on appeal from an order or a judgment of a trial court or other lower court; the distinction between courts of original and appellate jurisdiction normally lies in whether the case is being heard for the first time.

Interstate commerce

Commerce conducted between the states; the states DO NOT have the authority to regulate interstate commerce.

Intrastate commerce

Commerce conducted within the state

Note to Remember:

Common law doctrines and principles govern only areas not covered by statutory or admin. law.

Reasoning by Analogy

Comparing the facts in the case at hand to the facts in previous cases and, to the extent that the patterns are similar, to apply the same rule of law to the present case.

General Damages

Compensates the individuals (not companies) for the nonmonetary aspects of the harm suffered, such as pain and suffering. This would include physical or emotional pain and suffering, loss of companionship, loss of consortium (losing the emotional and physical benefits of a spousal relationship), disfigurement, loss of reputation, or loss or impairment of physical or emotional capacity.

Special Damages

Compensates the plaintiff for quantifiable monetary losses, such as medical expenses, but lost wages and benefits, extra costs, the loss of irreplaceable items, and the costs of repairing or replacing damaged property.

Damages in Negligence cases

Compensatory damages are the norm in negligence cases. Occasionally, though, a court will award punitive damages if the defendant's conduct was grossly negligent, meaning that the defendant intentionally failed to perform a duty with reckless disregard of the consequences to others.

Question of law

Concerns the application or interpretation of the law - such as whether flag burning is a form of speech protected by the First Amendment to the US Constitution.

Personal Property

Consists of all other items, which are basically movable. Thus, a house and lot are real property, whereas the furniture inside a house is personal property. Cash and securities are also personal property.

Appellate Courts

Courts of Appeals don't conduct new trials, they review the transcript of the trial proceedings and determine if the trial court committed an error. There must be a question of law, NOT facts; they don't hear evidence at all; they don't reverse their findings of fact unless the findings are unsupported or contradicted by the evidence. Appellate Courts Options after Reviewing a Case: 1) Affirm the trial court's decision 2) Reverse judgment if it concludes that the trial court erred or the jury didn't receive proper instructions 3) They can remand (send back) the decision for further proceedings consistent with the opinion on the matter. 4) They can affirm or reverse a decision, in part. 5) They can modify a decision They can accept or reject any appeal, just like the US Supreme Court.

Question of fact

Deals with what really happened in regard to the dispute being tried- such as whether a party actually burned a flag.

General jurisdiction

Decides cases with a broad array of issues; Examples- State trial court & Federal district court.

Stare Decisis

Deciding new cases with reference to former decisions, or precedents; judges are obligated to follow the precedents established within their jurisdictions. Two aspects: (1) Decisions made by a higher court are binding on lower courts (2) A court shouldn't overturn its own precedents unless there is a compelling reason to do so.

Affirmative Defenses in negligence cases

Defenses that a defendant can use to avoid liability even if the facts are as the plaintiff states. These include: assumption of risk, supersed- ing cause, and contributory and comparative negligence.

Cyberlaw

Emerging body of law that governs transactions conducted via the Internet; informal term used to describe both new laws and modifications of traditional laws that relate to the online environment.

Ninth Amendment

Establishes that the people have rights in addition to those specified in the Constitution.

Tenth Amendment

Establishes that those powers neither delegated to the federal government nor denied to the states are reserved to the states and to the people.

Pretext

False motive put forth to hide the real motive; pretexting is the process of obtaining information by false means.

Note to Remember:

Federal courts have the power to enjoin (prevent) plaintiffs from future filings when they consistently abuse the court system and harass their opponents.

Note to remember:

Federal statutes take precedence over conflicting state statutes; federal agency regulations take precedence over conflicting state regulations.

Note to Remember:

Firing a person solely because of their race or gender violates federal laws that prohibit employment discrimination.

Bill of Rights

First ten amendments of the US Constitution; Adopted in 1791 and embodies a series of protections for the individual against types of interference by the federal gov't.

Note

For a tort to have been committed, the plaintiff must have suffered a legally recognizable injury. To recover damages (receive compensation), the plaintiff must have suffered some loss, harm, wrong, or invasion of a protected interest.

Example of Assault & Battery

For example, Ivan threatens Jean with a gun, then shoots her. The pointing of the gun at Jean is an assault; the firing of the gun (if the bullet hits Jean) is a battery. The contact can be harmful, or it can be merely offensive (such as an unwelcome kiss). Physical injury need not occur. The contact can involve any part of the body or anything attached to it—for example, a hat or other item of clothing, a purse, or a chair in which one is sitting. Whether the contact is offensive is determined by the reasonable person standard. The contact can be made by the defendant or by some force that the defendant sets in motion—for example, a thrown rock or distributing poisoned food.

Symbolic Speech (Freedom of Speech)

Fully protected by the courts; Example- the burning of the American flag as part of a peaceful protest or wearing a t-shirt with a presidential candidate are constitutionally protected forms of expression (it is protected under the freedom of speech act) ; Speech violating criminal laws, fighting words, obscene speech and/or defamatory speech aren't protected under this act.

Sixth Amendment

Guarantees the accused in a criminal case the right to a speedy and public trial by an impartial jury and with counsel. The accused has the right to cross-examine witnesses against him or her and to solicit testimony from witnesses in his or her favor.

First Amendment

Guarantees the freedoms of religion, speech, and the press and the rights to assemble peaceably and to petition the government.

Seventh Amendment

Guarantees the right to a trial by jury in a civil case involving at least twenty dollars.

Fifth Amendment

Guarantees the rights to indictment by grand jury, to due process of law, and to fair payment when private property is taken for public use; prohibits compulsory self-incrimination and double jeopardy (being tried again for an alleged crime for which one has already stood trial).

Causation

If a person breaches a duty of care and someone suffers injury, the person's act must have caused the harm for it to constitute the tort of negligence. 1. Is there causation in fact? Did the injury occur because of the defendant's act, or would it have occurred anyway? If the injury would not have occurred without the defendant's act, then there is causation in fact. Causation in fact usually can be determined by use of the but for test: "but for" the wrongful act, the injury would not have occurred. 2. Was the act the proximate, or legal, cause of the injury? Proximate cause, or legal cause, exists when the connection between an act and an injury is strong enough to justify imposing liability. Proximate cause asks whether the injuries sustained were foreseeable or too remotely connected to the incident to trigger liability. If a defendant's action constitutes causation in fact but a court decides that the action is not the proximate cause of the plaintiff's injury, the causation requirement has not been met—and the defendant normally will not be liable to the plaintiff. Questions of proximate cause are linked to the concept of foreseeability because it would be unfair to impose liability on a defendant unless the defendant's actions created a foreseeable risk of injury.

Malpractice

If a professional violates his or her duty of care toward a client, the client may bring a suit against the professional, alleging malpractice, which is essentially professional negligence. For example, a patient might sue a physician for medical malpractice. A client might sue an attorney for legal malpractice.

Defense to Trespass of Land

If it can be shown that the trespass was warranted, however, as when a trespasser enters to assist someone in danger, a defense exists. Another defense exists when the tres- passer can show that he or she had a license to come onto the land. A licensee is one who is invited (or allowed to enter) onto the property of another for the licensee's benefit. A person who enters another's property to read an electric meter, for example, is a licensee. When you purchase a ticket to attend a movie or sporting event, you are licensed to go onto the property of another to view that movie or event. Note that licenses to enter onto another's property are revocable by the property owner. If a property owner asks an electric meter reader to leave and she or he refuses to do so, the meter reader at that point becomes a trespasser.

Note to Remember:

If the case involves a federal statute or federal constitutional issue, the decision of a state Supreme Court on that issue may be further appealed to the US Supreme Court.

Note to Remember:

If the plaintiff shows that there was contact, and the jury (or judge, if there is no jury) agrees that the contact was offensive, then the plaintiff has a right to compensation. A plaintiff may be compensated for the emotional harm or loss of reputation resulting from a battery, as well as for physical harm. A defendant may raise a number of legally recog- nized defenses (reasons why the plaintiff should not obtain damages) that justify his or her conduct, including self-defense and defense of others.

Privileged Speech

Immunity. Consists of two forms: absolute and qualified, or conditional. Only in judicial proceedings and certain government proceedings is an absolute privilege granted. Statements made by attorneys and judges in the courtroom during a trial are absolutely privileged. An employer's statements in written evaluations of employees are protected by qualified privilege. Generally, if the statements are made in good faith and the publication is limited to those who have a legitimate interest in the communication, the statements fall within the area of qualified privilege. The concept of conditional privilege rests on the common law assumption that in some situations, the right to know or speak is equal in importance to the right not to be defamed.

Note

In addition, even if a risk is obvious, that does not necessarily excuse a business owner from the duty to protect its customers from foreseeable harm.

Standard/Burden of Proof

In civil cases- a preponderance of the evidence; the plaintiff need only show that her factual claim is more likely to be true than the defendant's. In criminal cases- beyond a reasonable doubt.

Reasonable person standard

In determining whether a duty of care has been breached, for example, the courts ask how a reasonable person would have acted in the same circumstances. The rea- sonable person standard is said to be (though in an absolute sense it cannot be) objective. It is not neces- sarily how a particular person would act. It is society's judgment of how an ordinarily prudent person should act. If the so-called reasonable person existed, he or she would be careful, conscientious, even tempered, and honest.

Compensatory Damages

Intended to compensate or reimburse the plaintiff for actual losses (to make the plaintiff whole and put them in the same position that they would've been in if the incident hadn't occurred. Compensatory damages are broken down into general and special damages.

Fraudulent misrepresentation (fraud)

Involves intentional deceit for personal gain.

Pre-trial litigation

Involves the filing of the pleadings, the gathering of evidence (or discovery), and other things such as jury selection and/or pretrial conference.

IRAC

Issue; Rule; Application; Conclusion

Real Property

Land and things permanently attached to the land.

Duty of landowners

Landowners are expected to exercise reasonable care to protect indi- viduals coming onto their property from harm. In some jurisdictions, landowners may even have a duty to protect trespassers against certain risks. Landowners who rent or lease premises to tenants are expected to exercise reasonable care to ensure that the tenants and their guests are not harmed in common areas, such as stairways, entryways, and laundry rooms (see Chapter 50). Landowners who rent or lease premises to ten- ants also have a duty to supply correct information to tenants. If they breach this duty, landowners can be held liable for negligent misrepresentation.

Constitutional Law

Law expressed in the constitutions; Article VI says that the Constitution is the supreme law of the land.

Strict product liability

Liability of manufacturers and sellers for harmful or defective products; everyone who is involved in the process from the defect down to the end user will be held liable.

Deductive Reasoning (syllogistic reasoning)

Logical relationship involving a major premise, a minor premise, and a conclusion.

Federal form of government

National gov't and states share sovereign power; the Constitution sets forth powers that can be exercised by the national gov't and says that the national gov't has the power to undertake actions necessary to carry out its powers; All other powers are "reserved" to the states under the Tenth Amendment to the US Constitution; State governments have the authority to regulate affairs within their borders.

Negligence per se

Negligence per se may occur if an individual violates a statute or an ordinance providing for a criminal penalty and that violation causes another to be injured. The standard of conduct required by the statute is the duty that the defendant owes to the plaintiff, and a violation of the statute is the breach of that duty.

Note

Newspapers, magazines, and television and radio stations may be subject to liability for defamatory content that they publish or broadcast, even though the content was prepared or created by others.

Trespass to Land

Occurs any time a person, without permission, enters onto, above, or below the surface of land that is owned by another; causes anything to enter onto the land; or remains on the land or permits anything to remain on it. Actual harm to the land is not an essential element of this tort because the tort is designed to protect the right of an owner to exclusive possession. Common types of trespass to land include walking or driving on another's land; shooting a gun over another's land; throwing rocks at or spraying water on a build- ing that belongs to someone else; building a dam across a river, thereby causing water to back up on someone else's land; and constructing one's build- ing so that it extends onto an adjoining landowner's property.

Disparagement of property

Occurs when economically injurious falsehoods are made about another's product or property rather than about another's reputation (as in the tort of defamation). Disparagement of property is a general term for torts that can be more specifically referred to as slander of quality or slander of title.

Probable cause

Officers must have trustworthy evidence that would convince a reasonable person that the proposed search or seizure is is more likely justified than not.

Writ of Certiorari

Order issued by the Supreme Court to a lower court requiring the latter to send it the record of the case for review.

Majority opinion

Outlines the view supported by the majority of the judges or justices deciding the case.

Note to remember:

People who claim that their constitutional rights have been violated, can begin their suits in a federal court; in cases based on a federal question, a federal court will apply federal law.

Civil Law

Person vs. another person or company

Privileges and immunities clause

Prevents a state from imposing unreasonable burdens on citizens of another state; "Citizens of each state shall be entitled to all Privileges and Immunities of Citizens in the several states" (Article IV, Section 2 of the US Constitution)

Linear Reasoning

Proceeds from one point to another, with the final point being the conclusion.

Eighth Amendment

Prohibits excessive bail and fines, as well as cruel and unusual punishment.

Fourth Amendment

Prohibits unreasonable searches and seizures of persons or property. Furthermore, the Fourth Amendment prohibits general warrants. It requires a particular description of whatever is to be searched or seized. General searches through a person's belongings are impermissible. The search cannot extend beyond what is described in the warrant. Although search warrants require specificity, if a search warrant is issued for a person's residence, items that are in that residence may be searched even if they do not belong to that individual. Because of the strong governmental interest in protecting the public, a warrant normally is not required for seizures of spoiled or contaminated food. Nor are warrants required for searches of businesses in such highly regulated industries as liquor, guns, and strip mining. The standard used for highly regulated industries is sometimes applied in other contexts as well, such as screening for airline travel.

Third Amendment

Prohibits, in peacetime, the lodging of soldiers in any house without the owner's consent.

Substantive Due Process

Protects an individual's life, liberty, or property against certain gov't actions regardless of the fairness of the procedures used to implement them; limits what the gov't may do in its legislative and executive capacities.

Public figures

Public officials who exercise substantial governmental power and any persons in the public limelight. In general, public figures are considered "fair game," and false and defamatory statements about them that are published in the media will not constitute defamation unless the statements are made with actual malice.

Punitive Damages

Punishes the wrongdoer and deters others from doing the same thing. Only appropriate when the defendant's conduct was egregious or reprehensible; Mainly Occurs with intentional tort actions and rarely with negligence; An appellate court may reduce the amount of punitive damages if it is an excessive amount and violates the due process clause.

Business invitees

Retailers and other firms that explicitly or implic- itly invite persons to come onto their premises are usually charged with a duty to exercise reasonable care to protect these business invitees. For exam- ple, if you entered a supermarket, slipped on a wet floor, and sustained injuries as a result, the owner of the supermarket would be liable for damages if, when you slipped, there was no sign warning that the floor was wet. A court would hold that the busi- ness owner was negligent because the owner failed to exercise a reasonable degree of care in protecting the store's customers against foreseeable risks about which the owner knew or should have known. That a patron might slip on the wet floor and be injured as a result was a foreseeable risk, and the owner should have taken care to avoid this risk or warn the cus- tomer of it (by posting a sign or setting out orange cones, for example). The landowner also has a duty to discover and remove any hidden dangers that might injure a customer or other invitee. Store owners have a duty to protect customers from slipping and injuring themselves on merchandise that has fallen off the shelves, for example.

Legitimate grounds to file an appeal:

Some legal error; usually with jury's verdict or judge's ruling.

Note to Remember:

Some types of trials require twelve-person juries, but most civil matters are heard by six-person juries.

Second Amendment

States that the right of the people to keep and bear arms shall not be infringed.

Statutory Law

Statues passed by Congress or by state legislatures; when the legislature passes the statute, it's included in the federal and/or state code of laws.

Standing to Sue

Sufficient stake in a matter to justify seeking relief through the court system; the party bringing the lawsuit must have been harmed or threatened with a harm about which he or she has complained; a parent or legal guardian can represent a minor.

"Danger Invites Rescue"

The "danger invites rescue" doctrine extends the same protection to a person who is trying to rescue another from harm—the original wrongdoer is liable for injuries to the individual attempting a rescue. Under the "danger invites rescue" doctrine, a person who is injured while going to someone else's rescue can sue the person who caused the dangerous situation.

Supremacy Clause

The Constitution, laws and treaties of the US are "the Supreme Law of the Land"; When there is a direct conflict between a federal law and a state law, the state law is rendered invalid; Some powers are concurrent, or shared by the federal gov't and the states.

Assault

The act of wrongfully and intentionally making another person fearful of IMMEDIATE physical harm.

Duty of Care

The basic principle underlying the duty of care is that people are free to act as they please so long as their actions do not infringe on the interests of others. Failure to live up to a standard of care may be an act (accidentally setting fire to a building) or an omission (neglecting to put out a campfire). It may be a careless act or a carefully performed but nevertheless dangerous act that results in injury. Courts consider the nature of the act (whether it is outrageous or common- place), the manner in which the act is performed (heedlessly versus cautiously), and the nature of the injury (whether it is serious or slight) in determining whether the duty of care has been breached.

Comparative negligence

The comparative negligence standard enables both the plaintiff's and the defendant's negligence to be computed and the liability for damages distributed accordingly. The plaintiff's financial recovery may be reduced, or even prohibited, depending on whether the state has a pure or modified comparative negligence system. There are two variations of modified comparative fault systems: those that follow a "50 percent rule" and those that follow a "51 percent rule." Under the 50 percent rule, the plaintiff in a negligence action recovers nothing if she or he was 50 percent or more at fault. Thus, an injured party can recover only if it is determined that his or her responsibility for the injury is 49 percent or less. If the injured party's level of fault reaches 50 percent, he or she cannot recover any damages. Under the 51 percent rule, the plaintiff in a negligence action recovers nothing if she or he was responsible for more than half (51 percent or more) of the accident. Thus, if the plaintiff was 50 percent at fault in causing the injury, then she or he can still recover, but once the plaintiff's level of fault reaches 51 percent, recovery is barred.

Rule of Four

The court will not issue a writ of certiorari unless at least four of the nine justices approve of it; denial of the request to issue a writ simply means that the lower court's decision remains the law in that jurisdiction.

Publication

The defamatory statements are communicated, intentionally or accidentally, to people other than the defamed party; The basis of the tort of defamation is the publication of a statement or statements that hold an individual up to contempt, ridicule, or hatred; Even if a person overhears defamatory statements by chance, the courts still rule this as publication. Defamatory statements made via the Internet are actionable as well. Note also that any individual who repeats or republishes defamatory statements normally is liable even if that person reveals the source of the statements.

Warrants

The fourth amendment prohibits general warrants; must provide a particular description of what needs to be searched or seized.

Note to Remember:

The freedom of speech guaranteed by the First Amendment is not absolute. In interpreting the First Amendment, the courts must balance the vital guarantee of free speech against other pervasive and strong social interests, including society's interest in preventing and redressing attacks on reputation.

False Imprisonment

The intentional confinement or restraint of another person's activities without justification. False imprisonment interferes with the freedom to move without restraint. The confinement can be accomplished through the use of physical barriers, physical restraint, or threats of physical force. Moral pressure does not constitute false imprisonment. It is essential that the person being restrained not agree to the restraint.

Remedies

The legal means to enforce a right or redress a wrong.

Venue

The most appropriate location for a trial; Venue in a civil case is typically where the defendant resides and in a criminal case, the venue is normally where the crime occurred.

Defendant

The party being sued.

Tortfeasor

The person who committed the tort; an evil or harmful motive is not required (the person may even have a beneficial motive for committing what turns out to be a tortious act); In tort law, intent means only that the actor intended the consequences of his or her act or knew with substantial certainty that specific consequences would result from the act; the law generally assumes that individuals intend the normal consequences of their actions. Thus, forcefully pushing another—even if done in jest and without any evil motive—is an intentional tort (if injury results), because the object of a strong push can ordinarily be expected to be abruptly displaced.

Jurisdiction

The power to speak the law.

Slander of quality or trade libel

The publication of false information about another's product, alleging that it is not what its seller claims. To establish trade libel, the plaintiff must prove that the improper publication caused a third person to refrain from dealing with the plaintiff and that the plaintiff sustained economic damages (such as lost profits) as a result. An improper publication may be both a slander of quality and a defamation of character. For example, a statement that disparages the quality of a product may also, by implication, disparage the character of a person who would sell such a product.

Case Law

The rules of law announced in court decisions including interpretations of constitutional provisions, statutes enacted by legislatures, and of regulations created by admin. agencies; "judge-made law governing all areas not covered by statutory or admin law and is part of the common law tradition"

Administrative Law

The rules, orders, and decisions of federal, state, or local gov't admin. agencies.

Plaintiff

The suing party.

Appropriation

The use of another person's name, likeness, or other identifying characteristic, without permission and for the benefit of the user. Under the law, normally an individual's right to privacy includes the right to the exclusive use of his or her identity.

Intentional Torts/Torts/Tort Law

They arise from intentional acts; designed to compensate those who have suffered an injury or loss as a result of another persons wrongful act; the basic purpose is to provide remedies for the invasion of various protected interests.

Example of false imprisonment:

Under the "privilege to detain" granted to merchants in most states, a merchant can use reasonable force to detain or delay persons suspected of shoplifting and hold them for the police. Although laws vary from state to state, most states require that any detention be conducted in a reasonable manner and for only a rea- sonable length of time. Undue force or unreasonable detention can lead to liability for the business.

Strict liability (or liability w/o fault)

Under the doctrine of strict liability, a person who engages in certain activities can be held responsible for any harm that results to others even if the person used the utmost care. Liability for injury is imposed for reasons other than fault.

Business Ethics

What constitutes as right and wrong behavior in the business world.

Ethics

What constitutes right or wrong behavior; just because an action is legal does not make it ethical.

Note to Remember:

When a law or action limits the liberty of all persons to do something, it may violate substantive due process; When a law or action limits the liberty of some people but not others, it may violate the equal protection clause.

Slander of Title

When a publication falsely denies or casts doubt on another's legal ownership of property, resulting in financial loss to the property's owner. Usually, this is an intentional tort in which someone know- ingly publishes an untrue statement about another's ownership of certain property with the intent of discouraging a third person from dealing with the person slandered. For example, it would be difficult for a car dealer to attract customers after competitors published a notice that the dealer's stock consisted of stolen automobiles.

Concurrent jurisdiction

When both federal and state courts have the power to hear a case, which can typically happen with diversity of citizenship.

Exclusive jurisdiction

When cases can ONLY be tried in either state OR federal courts, not both/either or. Federal court examples- federal crimes, bankruptcy, most patent & copyright claims, suits against the US, and laws governing transportation on ocean waters; State court examples- divorce and adoption.

Negligence

When someone suffers injury because of another's failure to live up to a required duty of care. In contrast to intentional torts, in torts involving negligence, the tortfeasor neither wishes to bring about the consequences of the act nor believes that they will occur. The actor's conduct merely creates a risk of such consequences. If no risk is created, there is no negligence. The risk must be foreseeable; that is, it must be such that a reasonable person engaging in the same activity would anticipate the risk and guard against it. In determining what is reasonable conduct, courts consider the nature of the possible harm. Creating a very slight risk of a dangerous explosion might be unreasonable, whereas creating a distinct possibility of someone's burning his or her fingers on a stove might be reasonable. Example: Suppose that Juarez walks up to Maya and intentionally shoves her. Maya falls and breaks her arm as a result. In this situation, Juarez committed an intentional tort (battery). If Juarez carelessly bumps into Maya, however, and she falls and breaks her arm as a result, Juarez's action constitutes negligence. In either situation, Juarez has committed a tort.

Malicious prosecution

When the party that initiated a lawsuit did so out of malice and without probable cause (a legitimate legal reason), and ended up losing that suit; In some states, the plaintiff (who was the defendant in the first proceeding) must also prove injury other than the normal costs of litigation, such as lost profits.

Conversion

Whenever a person wrongfully possesses or uses the personal property of another without permission. Any act that deprives an owner of personal property or of the use of that property without that owner's permission and without just cause can be conversion. Even the taking of electronic records and data may form the basis of a common law conversion claim. Often, when conversion occurs, a trespass to personal property also occurs because the original taking of the personal property from the owner was a trespass, and wrongfully retaining it is conver- sion. Conversion is the civil side of crimes related to theft, but it is not limited to theft. Even when the rightful owner consented to the initial taking of the property, so no theft or trespass occurred, a fail- ure to return the property may still be conversion. For example, Chen borrows Mark's iPad to use while traveling home from school for the holidays. When Chen returns to school, Mark asks for his iPad back, but Chen says that he gave it to his little brother for Christmas. In this situation, Mark can sue Chen for conversion, and Chen will have to either return the iPad or pay damages equal to its value. Note that conversion can occur even when a per- son mistakenly believed that she or he was entitled to the goods. In other words, good intentions are not a defense against conversion. Someone who buys stolen goods, for example, has committed the tort of conversion even if he or she did not know the goods were stolen. If the true owner brings a tort action against the buyer, the buyer must either return the property to the owner or pay the owner the full value of the property (despite having already paid the purchase price to the thief).

Trespass to personal property (trespass to chattels or personalty)

Whenever any individual wrongfully takes or harms the personal property of another or otherwise interferes with the lawful owner's possession and enjoyment of personal property. In this context, harm means not only destruction of the property, but also anything that diminishes its value, condition, or quality. Trespass to personal property involves intentional meddling with a possessory interest (one arising from possession), including barring an owner's access to personal property. If Kelly takes Ryan's business law book as a practical joke and hides it so that Ryan is unable to find it for several days before the final examination, Kelly has engaged in a trespass to personal property. If it can be shown that trespass to personal prop- erty was warranted, then a complete defense exists. Most states, for example, allow automobile repair shops to hold a customer's car (under what is called an artisan's lien, discussed in Chapter 28) when the cus- tomer refuses to pay for repairs already completed.

Defamation of character

Wrongfully hurting a person's good reputation; The law imposes a general duty on all persons to refrain from mak- ing false, defamatory statements of fact, NOT OPINION, about others; The tort of defamation also arises when a false statement of fact is made about a per- son's product, business, or legal ownership rights to property; Statements of opinion normally are not actionable because they are protected under the First Amendment. Making a negative statement about another person is not defamation unless the statement is false and represents something as a fact (for example, "Lane cheats on his taxes") rather than a personal opinion (for example, "Lane is a jerk"). Truth normally is an absolute defense against a defamation charge. In other words, if a defendant in a defamation case can prove that the allegedly defamatory statements of fact were true, normally no tort has been committed.

Criminal Law

Wrongs committed against the public as a whole.

res ipsa loquitur

translates as "the facts speak for themselves." This doctrine is applied only when the event creating the damage or injury is one that ordinarily does not occur in the absence of negligence.