Business Law Chapter 6

Fraudulent Misrepresentation 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) A causal connection between the misrepresentation and the injury suffered.

Declarations Considered to be slander per se

1) A statement that another has a particular type of disease (such as a sexually transmitted disease or mental illness). 2) A statement that another has committed improprieties while engaging in a profession or trade. 3) A statement that another has committed or has been imprisoned for a serious crime. 4) A statement that a person (usually only unmarried persons and sometimes only women) is unchaste or has engaged in serious sexual misconduct.

3 Elements 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) This third party must intentionally induce a party to the contract to breach the contract.

3 Basic Affirmative Defenses in negligence cases:

1) Assumption of risk 2) Superseding cause 3) Contributory and comparative negligence

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:

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.

Invasion of Privacy Under the Common Law

1) Intrusion into an individual's affairs or seclusion. 2) False light 3) Public disclosure of facts 4) Appropriation of identity

Courts ask two question in deciding if causation is met:

1) Is there causation in fact? 2) Was the act the proximate, or legal cause of injury?

Measures to reduce the number of tort cases

1) Limiting the amount of both punitive damages and general damages that can be awarded. 2) Capping the amount that attorney's can collect in contingency fees (attorneys' fees that are based on a percentage of the damages awarded to the client). 3) Requiring the losing party to pay both the plaintiff's and the defendant's expenses.

To establish defamation, a plaintiff 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 public figure, she or he must prove actual malice.

Torts

A civil wrong not arising from a breach of contract. A breach of a legal duty that proximately causes harm or injury to another. The basis for torts are wrongs and compensation.

Actual Malice

A condition that exists when a person makes a statement with either knowledge of its falsity or a reckless disregard for the truth. In a defamation suit, a statement made about a public figure normally must be made with actual malice for liability to be incurred.

Class Action

A lawsuit in which a large number of plaintiffs bring the suit as a group.

Compensatory Damages

A money award equivalent to the actual value of injuries or damages sustained by the aggrieved party.

Puffery

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

Dram Shop Acts

A state statute that imposes liability on the owners of bars and taverns, as well as those who serve alcoholic drinks to the public, for injuries resulting from accidents caused by intoxicated persons when the sellers or servers of alcoholic drinks contributed to the intoxication.

Good Samaritan statutes

A state statute that provides that persons who rescue or provide emergency services to others in peril--unless they do so recklessly, thus causing further harm--cannot be sued for negligence.

Contributory Negligence

A theory in tort law under which a complaining party's own negligence contributed to or cause his or her injuries. Contributory negligence is an absolute bar to recovery in a minority of jurisdictions.

Comparative Negligence

A theory in tort law under which the liability for injuries resulting from negligent at is shared by all parties who were negligent (including the injured party), on the basis of each person's proportionate negligence.

Intentional Tort

A wrongful act knowingly committed.

Predatory Behavior

Actions undertaken with the intention of unlawfully driving competitors completely out of the market.

Reasonable Person Standard

An "objective" test of how a reasonable person would have acted under the same circumstances.

Negligence per se

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

Causation in fact

An act or omission without ("but for") which an event would not have occurred.

Disparagement of Property

An economically injurious false statement made about another's product or property. A general term for torts that are more specifically referred to as slander of quality or slander of title.

Gross Negligence

An intentional failure to perform a manifest duty in reckless disregard of the consequences of such a failure for the life or property of another. Unintentional torts result from negligence.

Superseding cause

An intervening force or event that breaks the connection between a wrongful act and an injury to another; in negligence law, a defense to liability.

Attractive Nuisance Doctrine

An owner can normally use reasonable force, however, to remove a trespasser from the premises--or detain the trespasser for a reasonable time--without liability for damages.

Fraudulent Misrepresentation (fraud)

Any misrepresentation, either by misstatement or 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.

Defamation

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

Assault

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

Abuse of Process

Can apply to any person using a legal process against another in an improper manner or to accomplish a purpose for which the process was not designed.

Actionable

Capable of serving as the basis of a lawsuit.

General Damages

Compensate individuals (not companies) for the non-monetary aspects of the harm suffered, such as pain and suffering, A court might award general damages for 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 mental or physical capacity.

Special Damages

Compensate the plaintiff for quantifiable monetary losses. Includes 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.

Personal Property

Consists of all other items, including cash and securities (stocks, bonds, and other ownership interests in companies).

Slander

Defamation in oral form.

Libel

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

Business Torts

Generally involve wrongful interference with another's business rights. It usually falls into two categories: interference with a contractual relationship and interference with a business relationship.

Malicious Prosecution

If the party that initiated a lawsuit did so out of malice and without a legitimate legal reason, and ended up losing that suit.

Privilege

In tort law, the ability to act contrary to another person's right without that person's having legal redress for such acts. Privileges may be raised as a defense to defamation. There are 2 types: absolute (judicial proceedings and certain government proceedings) and qualified/conditional.

Public Figures

Individuals who are thrust into the public limelight. Public figures include government officials and politicians, movie stars, well-known businesspersons, and generally anybody who becomes known to the public because of his or her position or activities.

Product Liability

Involve the manufacture sale, and distribution of dangerous and defective goods.

Tort of Intentional Infliction of Emotional Stress

Involves an intentional act that amounts to extreme and outrageous conduct resulting in severe emotional distress to another.

Real Property

Land and things permanently attached to the land, such as a house.

Proximate Cause

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

Forum Shopping

Looking for a state court known to be sympathetic to their clients' cause.

Punitive Damages

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

Tortfeasor

One who commits a tort.

Licensee

One who receives a license (a revocable right or privilege of a person to come on another person's land) to use, or enter onto another's property.

Malpractice

Professional misconduct of the failure to exercise the requisite degree of skill as a professional. Negligence--the failure to exercise due care--on the part of a professional, such as a physician or an attorney, is commonly referred to as malpractice.

Assumption of risk

Requires: 1) Knowledge of the risk 2) Voluntary assumption of the risk A defense against negligence that can be used when the plaintiff was aware of a danger and voluntarily assumed the risk of injury from that danger.

Publication

The defamatory statements are communicated (either intentionally or accidentally) to persons other than the defamed party.

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.

Trespass to Land

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

Negligence

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

Abusive or Frivolous Litigation

The filing of a lawsuit without legitimate grounds and with malice. Alternatively, the use of a legal process in an improper manner.

False Imprisonment

The intentional confinement of restraint of another person's activities without justification. It interferes with the freedom to move without restraint.

Key difference between the torts of abuse of process and malicious prosecution

The level of proof

Intent

The person intended the consequences of his of her act or knew with substantial certainty that specific consequences would result from the act.

Slander of Title

The publication of a statement that denies of casts doubt on another's legal ownership of any property, causing financial loss to that property's owner. Also called trade libel.

Slander of Quality/Trade Libel

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

Reasonable Person Standard

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

Trespass to Personal Property/Trespass to Chattel/Trespass to Personalty

The unlawful taking or harming of another's personal property; interference with another's right to the exclusive possession of his or her personal property.

Battery

The unprivileged, intentional touching of another.

Conversion

The wrongful taking, using, or retaining possession of personal property that belongs to another.

Business Invitees

Those people, such as customers or clients, who are invited onto business premises by the owner of those premises for business purposes.

Legally recognizable Injury

To recover damages (receive compensation), the plaintiff must have suffered some loss, harm, wrong, or invasion of protected interest.

Transferred Intent

When a defendant intends to harm one individual, but unintentionally harms a second person.