MGMT 200 Bergstrom Final

Torts of Negligence

when a tort occurs because of carelessness, someone has breached a duty of care that led to another being hurt

ultra vires

when an agent is acting outside of the scope of their authority/ actions binding arent valid

class action

when one tortfeasor hurt a large group of people, they can get relief together rather than filing many small actions BUT they must be the same general complaint

shareholder's derivative suit

when shareholder's bring suits up against third parties that have hurt their company when BOD/managment wont

duress

when someone is foreced to do a crime, kidnapping for example

entrapment

when someone is lured into a crime -they committed a crime they would not otherwise commit -entrapment is not shown if the law enforcement just gave the defendant an opportunity to commit the crime -defendant has burden of proof of preponderance of the evidence

adverse possession

when someone takes your home due to prescriptive easement

prescriptive easement

when you "let" someone use your house for long enough, they have rights to use it

fee simple

when you just own something, plain and simple

Intentional Tort

where one person purposefully harms another (occasionally this is a crime)

sine qua non

would the actions have occurred without the acts of defendant (todd led to his friend having a baby) aka was the action a catalyst to the harm

Assault

-not considered battery in Washington

Affirmative Action

-not required by Title 7 -private businesses may use ___________ __________ in hiring

quid pro quo

-when a supervisor offers some employment benefit for sexual favor

intentional torts against property

1. trespass to realty 2. trespass to personality (using your shit) 3. conversion aka theft LONG TERM THEFT IS AN INTENTIONAL TORT

knowledge

A person acts knowingly when: -they are aware of -information that would lead a reasonable person to understand it is an offense -recklessness is disregard of substantial risk, deviating from the actions of a reasonable person -criminal negligence is failing to be aware of risks that deviates from reasonable person standard

Strict Liability Torts

A tort where the fact of injury means someone did something wrong (ex. surgeon leaving knife inside body/ product malfunction when properly used)

piercing the corporate veil

a way to hold shareholders personally liable

prostitution

agreeing to sell sex for money -patronizing/soliciting -offer and acceptance

compensatory damages

aka actual damages, consist of money damages awarded to plaintiff for real loss or injury

survivor statue

allows the deceased's claim to flow to heirs, aka estate has right to sue on behalf

trademark

an image or symbol that designates a company

assault

an intentional tort and crime that means apprehension of fear (made someone else scared)

False Imprisonment/Wrongful Arrest

an intentional tort that is when you keep someone unreasonably, physical force not required

battery

an intentional tort that means actual harmful or offensive conduct

Americans with Disabilities Act

applies to public and private, can seek reasonable accomodation without undue hardship on the business

Invasion of privacy torts

appropriation, intrusion into solitude, false light, public disclosure of facts

benefit corporation

are corps that have goals like help enviroment in their charter

Bona Fide Occupational Qualifications

can justify discrimination based on gender, age, religion, national origin, BUT NEVER FOR RACE OR COLOR

Public disclosure of private facts

cannot disclose private information to public and usually this is statutory (criminal/civil action)

Insanity Test

cannot know/appreciate 1. nature and consequences because of insanity

anticybersquatting law

cannot use names of other people on the web

Protected Classes

cant fire for these reasons ... race, color, religion, sex or national origin

diminished capacity

cant form mental intent to be found to blame for crime

DC v. Heller

case that indicated federal guns must comply with the second amendment and federal gov (including congress) CANNOT ban guns from individuals

Intentional Infliction of (mental or emotional) distress

causing mental harm, ALSO violates statutory law an example of this is creditors intentionally harassing you

Domestic Violence

class of crimes: married, household members, dating, previously dated -classification on top of any other crime gives court more sentencing options.

general partnership

joint control, share profits, NO double taxation, but personal liability for all debts, can be formed orally, partners owe fiduciary relationship to partnership

punitive damages

law punishes tortfeasor by allowing these damages, especially when tortfeasor is especially Blameworthy, CANT GET THESE WITHOUT general damages (only avail for specific things like product liability with wilfull disregard)

non-patenable

laws of nature, natural phenomenon, abstract ideas

privity

legal relationship that illicits responisbility of some kind

Legal Responsibility

legal title, accomplice, causing another person to commit a crime, solicts another, encourages, requests it, aids, or conduct shows legal responsibility

chapter 7

liquidation: persons, partnerships, corps

Franchise (franchisor,franchisee)

dependent relationship, owner of one trademark/name authorizes use to another, gov regulation to protect the liscensing party bc of large scale investment that is tied up

limited partnership

made of general partners and limited partners (dont get to call shots, dont have personal liability) MUST BE IN WIRITNG

corporate responsibility

mandates that execs make sure financials are legit

certification marks

marks that say things like Dell Tested

2nd Amendment

means individual has right to bear arms for self defense purposes

multiple tortfeasor

multiple parties were responsible for a tort. Carried out in two ways, plaintiff brings them all to court, or one of the defendant then brings another into it to share the blame

special circumstances(in crime)

multiple victims, torture, law officer, hate crime

Intrusion into Solitude

must get permission for recording otherwise its an intentional tort of invasion to privacy

tradename

name that represents some product or company and is protected

manslaughter 2

negligent killing/ no intent to kill (sled case) Class B felony

rape 3

no consent, threat to property rights of victim

fringe benefits

no constitutional law that requires for benefits such as insurance, vaction time

Determinate Sentencing

no parole

LLC (limited liability company!!)

no risk of double taxation, limited liability to investment, must have operating agreement, and be registered, EVERY MEMBER can bind the company, member managed and they have interest. Majority members owe fiduciary ob to minority member

Trade dress

non functional way to be distinctive, "total image", color of packaging (tiffany's), CL (red soles)

rape

sexual intercourse + by force (rape 1,2) sexual intercourse without consent (rape 3)

necessity

doing a crime that you have to, stealing food during katrina

vehicular homicide

drunk driving, caused accident, causing death

premise liability

duty of care is due based on classification

premise liability trespasser

duty of care owed to this party is 1. no spring guns 2. no duty to warn of natural causes 3. duty to warn of manmade risks if people are known to trespass (aka well)

At will

employees can quit or be fired at any time

reasonable accomodation

employers must take steps to accomodate for religious beliefs in the work place

Auditor Independence

establishes standards for external auditors, to limit conflict of interest

reasonable doubt

every person is innocent until proven guilty beyond ___________ __________--

corporate veil

shareholders dont have personal liability

digital millennium copyright act

signifigant protection for copyright owners of digital info

Sarbanes Oxley

sketchy accounting shit

nominal damages

small token damages, like attorney fees, contractual fees

premise liability business

people are called INVITEES and they are owed high duty of care. must inspect for hidden dangers and warn of risks

premise liability guest

people are called LICENSEES duty of resonable care to this party, but not hidden dangers

Good Samaritan

people who help, shielded by state laws from being sued IF they act how a reasonable person would

easement

permanent/set duration time to use property for some specified reason (run cables under house ex)

intent

person acts with the objective or purpose to accomplish a result, the crime

chapter 13

personal bankruptcy/reorganization plan of repayment for 5 years, trustee appointed to deal with it

stay

petition of bankruptcy signals that creditors mus stop action against party , cannot repo once in bankruptcy

force

physical force that overcomes resistance or more force than necessary to accomplish sex act

Disability

physical or mental impairment that limits major life activity, history of impairment, or regarded as having such impairment

contributory negligence

rule that makes it nearly impossible to recover damages from negligence if they were at fault in ANY way (1% of fault means no recovery to plaintiff)

no obligation to retreat at home

rule that you can shoot in your household, no retreat

restrictive covenants

rules like must be 55 or over to buy, no discrimination allowed though

defenses to crime

self defense (intentional torts)

Tortfeasor

the person who harmed the other (defendant),

conditional estate/lease

the right to rent your property out

Joint Employer (NLRB)

ex. if franchisor sets up policies about conduct, they are considered a joint employer with the franchisee and both can be pulled into litigation about labor standards

1. compensate for innocent party 2. deter similar conduct by others

tort goals

Disparagement

tort related to libel in business setting Elements Include: 1. knowingly false statement about business 2. publication 3. resulting in harm 4.ACTUAL economic loss

Assault 2

serious bodily injury, or with intent to commit a felony or with a deadly weapon (knife/car) -harm to unborn baby counts as well

Fair Labor Standards Act

sets max work week, overtime, breaks, DOESNT APPLY TO COMMISSIONED FOLK(computer professionals, drivers, mechs, farm workers, Execs and professionals

S corp

(less than 100 shareholders) shareholder must be a real person, no double taxation, no individual liability

partnership

(no federal taxes/double taxation) ARE distinct legal entities, can be formed verbally

Employee Relationship

-at will (can quit/be fired at any time) -employees conduct is controlled by employers -do not have independent business discretion -respondeat superior, meaning employers are liable for any misconduct of ___________

trademark dilution act

-cant lessen the value of another trademark -regardless if competing products -eliminated need for confusion -infringment lessens og trademark (dilution)

First Amendment

-establishment, free excercise -didnt count for states until incorporated

Workers Compensation

-exception to social policy that says there cannot be a rule preventing litigation

(justifications to) self defense

-genuine/reasonable fear, imminent danger, great bodily harm *proportionate force

Contractor Relationship

-independent workers, not regular -a lot of control over how they do the job -dont have to give benefits, keep time records, pay insurance or overtime, or fringe benefits -respondeat superior does not apply

Principal- Agent Relationship

-principal hired agent to work on their behalf -relationship is consensual/contractual -agent works with fiduciary relationship -agent places principals interests above their own

lanham act

-protects trademarks for consumers who would be confused -statutory law about IP (where there only used to have common law) -non functional, distinctive trademarks can be protected -10 yr reg

Accountants Liability

1. always liable to employer (issue of conflict of interest) 2. liability to third party (investor who sees reports) 3.some states allow the intended user (investor) to sue for negligence MAY OR MAY NOT HAVE STANDING (investor)

Manufacturer (Duty of Care)

1. design 2.manufacturing 3.inspection 4.recalls 5.presentation/ad of product 6.warning

Federal Trademark Dilution Act

1. federal cause of action violation 2. regardless of whether products compete 3. eliminated need to prove that confusion occured 4. must have some evidence that infringing mark dilutes brand name 5. injunctive relief allowed 6.protects service, product, certification and collective marks

Fraud

1. misstatement of fact knowingly false 2.intent to deceive (scienter) 3. reliance on the statement 4. causes damages 5. damages caused by misstatement 6. damages 7. MATERIAL FACT 8. PRIVITY

defenses to product liability lawsuits

1. product misuse 2. assumption of risk 3. sophistication users 4. federal preemption 5. statue repose 6. state of the art defense

Bona Fide reasons for disparate impact

1. seniority system (ok to pay more if they worked longer) 2. merit system( produce more gets more money even if its all one race) 3. test that designed not to discriminate 4. measuring quality or quanitity for earnings

Essence of the business

A BFOQ that pertains to the type of business (ex. hooters only hiring women)

Family and Medical Leave Act

Act that says 50+ employees must give upaid time to tend to family members or new children without employment consequence

1. felony with officer near 2.some misd with officer near 3.any DV crime 4.any accusation by private person 5. any filed charge with arrest warrant

Arrest

Third Party Liability

Ex. an investor (intended user) who is reliant of incorrect info given by auditing accountants and suffers damage

farmers, ranchers, nonprofits

Exceptions to involuntary liquidation

Property Rights

NO DEADLY force to protect property

general damages

NOT out of pocket expenses that include pain and suffereing, mental distress

Standing

a cause to sue, reason enough to hold another party responsible

non compete

a clause that says one cannot leave and start a competing business for industries where customers have lots of goodwill with their employees (haircut)

audit partner rotation

a firm that audits cant provide non auditing services to the same company

liability waiver

a statement waiving damages if injury were to occur must include: 1. disclaimer in prominent place 2.standard print size

assault 3

assault of police officer/bus driver, criminal negligence causes bodily harm

Malicious harassment

assaulting, damaging property of, threatening somebody bc of race, ethnicity, sexual orientation, REQUIRES A PROOF OR MOTIVE

Defense to Negligence

assumption of risk (if you voluntarily put yourself in a risky situation and are injured you cant sue)

goodwill

benefit/advantage a company has based on brand value and trust consumers have

debt financing

bonds

Intentional Torts

deliberate intentional conduct by one person that injures another

corporate governance

controll of a corp

close corporations

corporation that is managed by a small group of people, (less than 50), not traded on the market, can make more rapid decisions than public

1st (speech/speech as money) 4th (no search and seizure)

corporations rights

public corporations

corps that usually have more working capital, but owe fiduciary relationship to shareholders

comparative negligence

damages split by % by each party found at risk

copyright

exclusive right to produce, publish, sell a creative idea for life + 70 years if it was done for you its 95 yrs

disparate impact

facially neutral policy that results in people being treated differently (trumps ban, 6 countries, facially neutral but muslim people affected, or like having policy of blond people getting to leave early disproportionately effects asians

wrongful death

family members can sue for ________ __________ who depend on the income of the deceased can sue for loss of companionship/ future income

services liability/malpractice liability

general test of negligence: duty of care owed, breach, proximate and actual cause of harm, injury, injury caused by breach Duty of care different: failure to apply degree of care of an average member of that profession (same locality)

eminent domain

governments right to take your property with just pay

Assault 1

great bodily injury, firearm, poison, HIV With intenet

Professional Corporation

groups of professionals that formed a partnership, liability limited to investment, but has liability for own negligence

assault 4

harmful or offensive touching

business judgement rule

honest mistakes that BOD/managment makes that loses money for a company, they cant be held liable

social policy (causation)

how far back we go to get proximate cause, think of ex in class about girl tripping and leading to kidnapping of little sister

fair use doctrine

idea that copyrights can be used by others for purposes of criticism, commentary, teaching, news

collective mark

identifies product as part of a group ex. made in USA

Undue hardship

if reasonable accomodation for religious beliefs is too costly, or problematic, then its called ________

McDonald v. Chicago

incorporated the fundamental right of weaponry as an individual right by applying to state and local law

white collar crime

increases criminal penalities for white collar crimes, reccomends sentencing guides that are high

mental defenses

insanity, diminished capactiy, delusions, drugs, alc

disparate treatment

intentional discrimination to protected classes, White get off at 4 non white get off at 5

murder 2

intentional murder, no premeditation

Elements of aggravated murder

intentional murder, premeditated murder, special circumstances, prosecutorial discretion to seek death

Defamation

intentional tort of either Libel (written word) or slander (spoken word) ex. employers too honest about their former employees

rape 2

intercourse + force or intercourse+victim could not consent (drunk) MAY BE MARRIED

rape 1

intercourse+force+weapon/kidnap/burglary/serious physical injury MAY BE MARRIED

intercourse

object penetrating anus/vagina

sole proprietorship

one person owns a business, no seperate enitity, all profits go to owner, owner pays direct taxes (no double taxation), Unlimited personal risk

special damages

out of pocket damages, like medical bills time off work

future interest

own it after the passing of the current life interest owner

life interest

own it until you die

LIBEL

plaintiff bears burden of proving beyond a preponderance of evidence that: 1. libel was said to third person 2. identified plaintiff 3. libel was defamatory/per se 4. libel was false 4a. if press is defendant requires the plaintiff to prove fault 1. public figure: must be knowingly false. reckless disregard for truth 2.non public figure: press was negligent

premeditation

plan to convict crime, for more than one point in time

1. principal controls (the employee) 2.principal benefits (from employee) 3.principal has $(has deep pockets)

policy reasons for respondeat superior

VUCSA

possession, possession with intent, delivery, delivery/sales, meth labs

murder 1

premeditated and intentional or intentional felony resulting in death (even though murder was not intentional) -displaying extreme indifference to human life

1. Clear standard 2. whistle blower

preventative steps to stop sexual harassment

Agency Respondaet Superior

principal is liable for torts of agent if they were acting in scope of employement

Torts

private wrong(not a breach of contract) committed by one party that injures another that is remedied by monetary damages do not lead to jail ALONE

trade secrets

process, product, method that isnt known to the public that allows you to make money, AKA economic reliance on it being a secret To qualify: -restrict access, some security -limit people who know -get non disclosure -anyone who sees it must sign ^ -mark any written material about it as propreitary

strictly liable

producer of a product will be held __________ ___________ if user uses it the way its intended

Overtime (Obama)

proposal that would set overtime pay eligibility mark at 50k instead of 20k

patents

protection for NOVEL, USEFUL, NON OBVIOUS processes, inventions, ect. good for 20 years from date of application,

negligence per se

proved negligence by virtue of violating some statue, criminal or civl

Public Company Accounting Oversight Board

provides oversight over auditors

False Light

publishing something with significant misinformation

aggravated murder

punishable by death penalty without life parole

manslaughter 1

reckless killing/ no intent to kill (gun case) (if you kill an unborn baby by hurting its mom)

stakeholders

regular employees of a corp for ex

chapter 11

reorganization of debt to move forward if they have a viable business model

stalking

repeatedly following someone, invokes fear

shareholder rights

rights to receive dividends, if declared, right to vote, recieve annual reports, bring lawsuits (against BOD/management), sell shares, dodd frank, owed a fiduciary obligation

modified comparative negligence

rule that defendant must be MORE (aka 51%<) faulty or plaintiff will recover nothing

types of compensatory damages

special damages, general damages

bylaws

specific rules and regulation of government internall

(corporate and criminal) fraud

specifics criminal penalties for any tampering with financial records

ROC (rape of child)

statutory rape, children under 16 cannot consent

equity financing

stock

product trademark

symbol that represents a product

service trademark

symbol that represents a service (fat tire thingy)

real property

tangible/intangible property

Res Ispa Loquitur

the thiing speaks for itself

intellectual property

things created by mental processes

1. product distributorship (cars) 2. chains 3. trademark licensing

types of franchises

Intentional, Negligence, Strict Liability

types of torts

duty of loyalty

use reasonable skill and effort to do job as employee

DIGITAL SAMPLING

using part of someones work, violates copyright law

Appropriation

using someones likeness for commercial purpose without their permission

ROC 2

victim is 12-14, defendant is more than 3 years older

ROC 3

victim is older than 14, defendant is more than 4 years older

ROC 1

victim less than 12, defendant is more than 2 years older

rape shield law

victim's sexual history not admissible at trial (except for prostitutes)

self defense

violent conduct thats justified -defendant has burden of proof of producing evidence -state has to show that it wasnt self defense to convict

complicit liability

you are guilty for a crime if they're legally responsible for the person who actually committed the crime