Legal Environment of Business Exam 2 (Didn`t Take)

Dram Shop Act

A state statute that imposes liability on the owners of bars and persons who serve alcoholic drinks for injuries resulting from accidents caused by intoxicated persons.

Causation in Fact

An act or omission without which an event would not have occurred.

Actionable

Capable of serving as the basis of a lawsuit. An actionable claim can be pursued in a lawsuit or other court action.

actus reus

A guilty (prohibited) act. The commission of a prohibited act is one of the two essential elements required for criminal liability, the other element being the intent to commit a crime

Defense

A reason offered and alleged by a defendant in an action or lawsuit as to why the plaintiff should not recover or establish what she or he seeks.

Probable Cause

Reasonable grounds for believing that a search should be conducted or that a person should be arrested.

embezzlement

The fraudulent appropriation of funds or other property by a person who was entrusted with the funds or property. Embezzlement is not larceny, because the wrongdoer does not physically take the property from another's possession, and it is not robbery, because force or fear is not used.

Beyond a Reasonable Doubt

The standard of proof used in criminal cases

Proximate Cause

Legal cause. It exists when the connection between an act and an injury is strong enough to justify imposing liability.

there are three basic affirmative defenses in negligence cases (defenses that a defendant can use to avoid liability even if the facts are as the plaintiff states):

(1) assumption of risk, (2) superseding cause, and (3) contributory and comparative negligence.

Two elements normally must exist simultaneously for a person to be convicted of a crime:

(1) the performance of a prohibited act and (2) a specified state of mind or intent on the part of the actor. Note that to establish criminal liability, there must be a concurrence between the act and the intent. In other words, these two elements must occur together.

Fraudulent Misrepresentation includes several elements:

1. A misrepresentation of material facts or conditions with knowledge that they are false or with reckless disregard for the truth. 2. An intent to induce another party to rely on the misrepresentation. 3. A justifiable reliance on the misrepresentation by the deceived party. 4. Damages suffered as a result of that reliance. 5. A causal connection between the misrepresentation and the injury suffered.

Three elements are necessary for wrongful interference with a contractual relationship to occur:

1. A valid, enforceable contract must exist between two parties. 2. A third party must know that this contract exists. 3. The third party must intentionally induce a party to breach the contract.

the singular damage is used to

refer to harm or injury to persons or property

in a case alleging slander the plaintiff must prove:

special damages to establish the defendant's liability. In other words, the plaintiff must show that the slanderous statement caused the plaintiff to suffer actual economic or monetary losses.

Malpractice Negligence

the failure to exercise due care on the part of a professional, such as a physician, is commonly referred to as malpractice.

To succeed in a negligence action, the plaintiff must prove each of the following:

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

A trespass to land occurs when a person, without permission, does any of the following:

1. Enters onto, above, or below the surface of land that is owned by another. 2. Causes anything to enter onto land owned by another. 3. Remains on land owned by another or permits anything to remain on it.

In deciding whether there is causation, the court must address two questions:

1. Is there causation in fact? Did the injury occur because of the defendant's act, or would it have occurred anyway? If an injury would not have occurred without the defendant's act, then there is causation in fact. Causation in fact can usually be determined by the use of the "but for" test: but for the wrongful act, the injury would not have occurred. Theoretically, causation in fact is limitless. One could claim, for example, that "but for" the creation of the world, a particular injury would not have occurred. Thus, as a practical matter, the law has to establish limits, and it does so through the concept of proximate cause. 2. Was the act the proximate 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. Courts use proximate cause to limit the scope of the defendant's liability to a subset of the total number of potential plaintiffs that might have been harmed by the defendant's actions

These protections for individuals prosecuted by the government include the following:

1. The Fourth Amendment protection from unreasonable searches and seizures. 2. The Fourth Amendment requirement that no warrant for a search or an arrest be issued without probable cause. 3. The Fifth Amendment requirement that no one be deprived of "life, liberty, or property without due process of law." 4. The Fifth Amendment prohibition against double jeopardy (trying someone twice for the same criminal offense).12 5. The Fifth Amendment requirement that no person be required to be a witness against (incriminate) himself or herself. 6. The Sixth Amendment guarantees of a speedy trial, a trial by jury, a public trial, the right to confront witnesses, and the right to a lawyer at various stages in some proceedings. 7. The Eighth Amendment prohibitions against excessive bail and fines, and against cruel and unusual punishment.

To establish defamation, a plaintiff normally must prove the following

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

product liability—liability of manufacturers and sellers for harmful or defective products. Liability here is a matter of social policy and is based on two factors:

1. The manufacturer or seller can better bear the cost of injury because it can spread the cost throughout society by increasing prices of goods and services. 2. The manufacturer or seller is making a profit from its activities and therefore should bear the cost of injury as an operating expense

Felony

A crime—such as arson, murder, rape, or robbery—that carries the most severe sanctions, ranging from more than one year in a state or federal prison to the death penalty.

entrapment

A defense in which a defendant claims that he or she was induced by a public official to commit a crime that he or she would otherwise not have committed. For entrapment to succeed as a defense, both the suggestion and the inducement must take place. The crucial issue is whether the person who committed a crime was predisposed to commit the illegal act or did so only because the agent induced it

Assumption of Risk

A defense to negligence. A plaintiff may not recover for injuries or damage suffered from risks he or she knows of and has voluntarily assumed.

Res Ipsa Loquitur

A doctrine under which negligence may be inferred simply because an event occurred, if it is the type of event that would not occur in the absence of negligence. Literally, the term means "the facts speak for themselves."

Information

A formal accusation or complaint (without an indictment) issued in certain types of actions by a government prosecutor.

Indictment

A formal charge by a grand jury that there is probable cause to believe that a named person has committed a crime.

Grand Jury

A group of citizens who decide, after hearing the state's evidence, whether probable cause exists for believing that a crime has been committed and that a trial ought to be held.

Transferred Intent

A legal principle under which a person who intends to harm one individual, but unintentionally harms a second person, can be liable to the second victim for an intentional tort.

misdemeanor

A lesser crime than a felony, punishable by a fine or incarceration in jail for up to one year

Compensatory Damages

A monetary award equivalent to the actual value of injuries or damage sustained by the aggrieved party.

Damages

A monetary award sought as a remedy for a breach of contract or a tortious action.

Insanity

A person who suffers from a mental illness may be incapable of the state of mind required to commit a crime. Thus, insanity can be a defense to a criminal charge. Note that an insanity defense does not allow a person to avoid imprisonment. It simply means that if the defendant successfully proves insanity, she or he will be placed in a mental institution. proving insanity is extremely difficul

Business Invitee

A person, such as a customer or a client, who is invited onto business premises by the owner of those premises for business purposes.

License

A revocable right or privilege of a person to come on another person's land.

Contributory Negligence

A rule in tort law, used in only a few states, that completely bars the plaintiff from recovering any damages if the damage suffered is partly the plaintiff's own fault.

Comparative Negligence

A rule in tort law, used in the majority of states, that reduces the plaintiff's recovery in proportion to the plaintiff's degree of fault, rather than barring recovery completely.

Exclusionary Rule

A rule that prevents evidence that is obtained illegally or without a proper search warrant—and any evidence derived from illegally obtained evidence—from being admissible in court.

Puffery

A salesperson's often exaggerated claims concerning the quality of property offered for sale. Such claims involve opinions rather than facts and are not legally binding promises or warranties.

Privilege

A special right, advantage, or immunity granted to a person or a class of persons, such as a judge's absolute privilege to avoid liability for defamation over statements made in the courtroom during a trial.

Good Samaritan Statute

A state statute stipulating that persons who provide emergency services to, or rescue, someone in peril cannot be sued for negligence unless they act recklessly, thereby causing further harm.

Crime

A wrong against society proclaimed in a statute and, if committed, punishable by society through fines, imprisonment, or death

Tort

A wrongful act (other than a breach of contract) that results in harm or injury to another and leads to civil liability.

Intentional Tort

A wrongful act knowingly committed.

Negligence Per Se

An action or failure to act in violation of a statutory requirement.

Disparagement of Property

An economically injurious falsehood about another's product or property.

a person will not be liable for defamatory statements because he or she has a qualified, or conditional, privilege.

An employer's statements in written evaluations of employees are an example of a 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

search warrant

An order granted by a public authority, such as a judge, that authorizes law enforcement personnel to search particular premises or property.

money laundering

Engaging in financial transactions to conceal the identity, source, or destination of illegally gained funds

Trespass to Land

Entry onto, above, or below the surface of land owned by another without the owner's permission or legal authorization.

Before a person can be a trespasser, the real property owner (or other person in actual and exclusive possession of the property) must establish that person as a trespasser.

For instance, "posted" trespass signs expressly establish as a trespasser a person who ignores these signs and enters onto the property. A guest in your home is not a trespasser—unless she or he has been asked to leave but refuses. Any person who enters onto your property to commit an illegal act (such as a thief entering a lumber- yard at night to steal lumber) is established impliedly as a trespasser, without posted signs.

self-Incrimination

Giving testimony in a trial or other legal proceeding that could expose the person testifying to criminal prosecution

Public Order Crime

Historically, societies have always outlawed activities that are considered to be contrary to public values and morals. Today, the most common public order crimes include public drunkenness, prostitution, gambling, and illegal drug use. These crimes are sometimes referred to as victimless crimes because they normally harm only the offender. From a broader perspective, however, they are deemed detrimental to society as a whole because they may create an environment that gives rise to property and violent crimes

Strict Liability

Liability that is imposed on certain activities regardless of fault.

Punitive Damages

Monetary damages that may be awarded to a plaintiff to punish the defendant and deter similar conduct in the future.

white-Collar Crime

Nonviolent crime committed by individuals or corporations to obtain a personal or business advantage.

Tortfeasor

One who commits a tort.

Mistake

Ordinarily, ignorance of the law or a mistaken idea about what the law requires is not a valid defense. A mistake of fact, as opposed to a mistake of law, can excuse criminal responsibility if it negates the mental state necessary to commit a crime. Oliver Wheaton mistakenly walks off with Julie Tyson's briefcase because he thinks it is his, there is no crime. Theft requires knowledge that the property belongs to another.

General damages compensate

individuals (not companies) for the nonmonetary aspects of the harm suffered, such as pain and suffering.

Special damages compensate the plaintiff for

quantifiable monetary losses, such as medical expenses, lost wages and benefits (now and in the future), extra costs, the loss of irreplaceable items, and the costs of repairing or replacing damaged property.

One defense to a claim of trespass to land is to

show that the trespass was warranted—such as when the trespasser entered a building to assist someone in danger. Another defense is for the trespasser to show that he or she had a license to come onto the land

Compensatory damages awards are often broken down into

special damages and general damages.

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. Essentially, the purpose of tort law is to compensate for legally recognized injuries resulting from wrongful acts.

Battery

Unexcused, harmful, or offensive physical contact with another that is intentionally performed

Statute of Limitations

With some exceptions, such as for the crime of murder, statutes of limitations apply to crimes just as they do to civil wrongs. In other words, the government must initiate criminal prosecution within a certain number of years. If a criminal action is brought after the statutory time period has expired, the accused person can raise the statute of limitations as a defense.

Business Tort

Wrongful interference with another's business rights and relationships.

Trespass to Personal Property

Wrongfully taking or harming the personal property of another or otherwise interfering with the lawful owner's possession of personal property

Conversion

Wrongfully taking or retaining possession of an individual's personal property and placing it in the service of another.

Truth is normally an absolute defense against:

a defamation charge. In other words, if the defendant in a defamation suit can prove that his or her allegedly defamatory statements were true, normally no tort has been committed

"privilege to detain" granted to merchants in most states

a merchant can use reasonable force to detain or delay a person suspected of shoplifting the merchant's property. Although the details of the privilege vary from state to state, generally laws require that any detention be conducted in a reasonable manner and for only a reasonable length of time. Undue force or unreasonable detention can lead to liability for the business.

The tort of intentional infliction of emotional distress can be defined as

an extreme and outrageous act, intentionally committed, that results in severe emotional distress to another

There are three phases of the criminal process

arrest, indictment or information, and trial.

Intentional torts against property include

trespass to land, trespass to personal property, conversion, and disparagement of property.

The Fourth Amendment only protects against searches that

violate a person's reasonable expectation of privacy. A reasonable expectation of privacy exists if (1) the individual actually expects privacy, and (2) the person's expectation is one that society as a whole would think is legitimate.

Crimes against persons, because they cause others to suffer harm or death, are referred to as

violent crimes. Murder is a violent crime. So, too, is sexual assault, or rape. Robbery— defined as the taking of cash, personal property, or any other article of value from a person by means of force or fear—is another violent crime.

Two notions serve as the basis of all torts

wrongs and compensation

Double Jeopardy

The Fifth Amendment requirement that prohibits a person from being tried twice for the same criminal offense

Robbery

The act of forcefully and unlawfully taking personal property of any value from another.

Actual Malice

The deliberate intent to cause harm that exists when a person makes a statement with either knowledge of its falsity or reckless disregard of the truth. Actual malice is required to establish defamation against public figures.

Duty of Care

The duty of all persons, as established by tort law, to exercise a reasonable amount of care in their dealings with others. Failure to exercise due care, which is normally determined by the reasonable person standard, constitutes the tort of negligence

Negligence

The failure to exercise the standard of care that a reasonable person would exercise in similar circumstances.

Forgery

The fraudulent making or altering of any writing in a way that changes the legal rights and liabilities of another

Sometimes, criminal defendants can be relieved of liability by showing necessity

—that a criminal act was necessary to prevent an even greater harm. Example 7.14 Jake Trevor is a convicted felon and, as such, is legally prohibited from possessing a firearm. While he and his wife are in a convenience store, a man draws a gun, points it at the cashier, and demands all the cash. Afraid that the man will start shooting, Trevor grabs the gun and holds on to it until police arrive. In this situation, if Trevor is charged with possession of a firearm, he can assert the defense of necessity

Libel

Defamation in writing or another form having the quality of permanence (such as a digital recording).

Insider Trading

The purchase or sale of securities on the basis of inside information (information that has not been made available to the public).

Reasonable Person Standard

The standard of behavior expected of a hypothetical "reasonable person." It is the standard against which negligence is measured and that must be observed to avoid liability for negligence.

The crime of bribery involves

offering something of value to someone in an attempt to influence that person, who is usually, but not always, a public official, to act in a way that serves a private interest. Three types of bribery are considered crimes: bribery of public officials, commercial bribery, and bribery of foreign officials.

Duress Unlawful

pressure brought to bear on a person, causing the person to perform an act that she or he would not otherwise perform. Duress can be used as a defense to most crimes except murder.

The most common type of criminal activity is

property crime—crimes in which the goal of the offender is some form of economic gain or the damaging of property.

the purpose of tort law is to

provide remedies for the violation of various protected interests. Society recognizes an interest in personal physical safety. Thus, tort law provides remedies for acts that cause physical injury or that interfere with physical security and freedom of movement.

Fraudulent Misrepresentation

Any misrepresentation, either by misstatement or by omission of a material fact, knowingly made with the intention of deceiving another and on which a reasonable person would and does rely to his or her detriment.

Assault

Any word or action intended to make another person fearful of immediate physical harm—a reasonably believable threat.

Defamation

Anything published or publicly spoken that causes injury to another's good name, reputation, or character.

Real property is land and things "permanently" attached to the land. Personal property consists of all other items, which are basically movable.

Thus, a house and lot are real property, whereas the furniture inside the house is personal property. Cash and stocks and bonds are also personal property.

Slander

Defamation in oral form.

Appropriation

In tort law, the use by one person of another person's name, likeness, or other identifying characteristic without permission and for the benefit of the user.

arson

The intentional burning of a building.

Petty Offense .

The least serious kind of criminal offense, such as a traffic or building- code violation

self-Defense

The legally recognized privilege to do what is reasonably necessary to protect oneself, one's property, or someone else against injury by another.

Plea Bargaining

The process by which a criminal defendant and the prosecutor work out an agreement to dispose of the criminal case, subject to court approval.

Slander of Title

The publication of a statement that denies or casts doubt on another's legal ownership of any property, causing financial loss to that property's owner

Slander of Quality (Trade Libel)

The publication of false information about another's product, alleging that it is not what its seller claims.

Burglary

The unlawful entry or breaking into a building with the intent to commit a felony.

mens rea

The wrongful mental state ("guilty mind"), or intent, that is one of the key requirements to establish criminal liability for an act.

larceny

The wrongful taking and carrying away of another person's personal property with the intent to permanently deprive the owner of the property. Whereas robbery involves force or fear, larceny does not. Therefore, picking pockets is larceny, not robbery.

Privileged communications are of two types:

absolute and qualified

two broad classifications of torts

intentional torts and unintentional torts (torts involving negligence).

False imprisonment

is the intentional confinement or restraint of another person's activities without justification.

plural damages

is used to refer to monetary compensation for such harm or injury.