SCMA 323 -- FINAL

implied agency

"incidental authority"; an agency in which a principal and an agent have not expressed an agency but it is inferred from the conduct of the parties (i.e. truckload of food comes in to a grocery store, it is implied that a worker can sign for the load)

duty of care

"reasonable person" - obligations that one another have to not cause harm to the other person. (i.e. driving safely, to ensure passengers are safe)

manufacture defects

a defect that occurs when a manufacture fails to properly assemble the product, properly test the product or adequately check the quality of the product. (missing screw in a ladder, ladder is from manufacturer, sold to a wholesaler, sold to a retail store, sells ladder to consumer, consumer gets hurt and all companies are liable) (a girl found a decaying dead rat in the bottom of her coke can)

failure to provide proper instructions

a defect that occurs when a manufacturer does not provide detailed directions for safe assembly and use of a product. *not on test*

design defects

a defect that occurs when a product is improperly designed (i.e. a toy that has a sharp end -- can always be designed safer, a flaw in the design)

breach of duty

a failure to exercise care or to act as a reasonable person would do. *follows the breach of contract*

malicious prosecution

a lawsuit in which the original defendant sues the original plaintiff (i.e. to make a murderer)

injury to plaintiff

a plaintiffs personal injury or damage to his or her property that enables him or her to recover monetary damages for the defendants negligence

strict product liability

a tort doctrine that makes manufacturers, distributors, wholesalers, retailers and others in the chain of distribution of a defective product liable for the damages caused by the defect - liable to the consumer who purchased the product and any user of the product. (anyone who just a bystander of the product can also sue if injured)

misrepresentation

a tort in which a seller or lessor fraudulently misrepresents the quality of a product and a buyer is injured thereby.

negligence

a tort related to defective products in which the defendant has breached a duty of sue care and caused harm to the plaintiff. (i.e. motorcycle has loose screw, screw comes out while driving and cyclist crashes and injured) (also, did the manufacture follow the breach of duty and see out his duties as a manufacture -- did he test it, try it etc)

termination of acts by parties

agency contract can be terminated this way; by mutual agreement, lapse of time, purpose achieved, happening of an event.

agency by ratification

agency that occurs when someone misrepresents themselves as principal's agent when she/he is not authorized to do so, if the principal likes what the "agent" did then it is ratified, if not... the principal is not liable for the "agent"'s unauthorized act

"frolic and detour"

agent does something in his/her own interests rather than the principals. frolic = serious departure; detour = minor departure. (i.e. frolic - agent sent to the post office, while out goes to the grocery store and hits a pedestrian -- employer is not liable for the unforeseeable events; detour - agent is sent to the post office, while there buys a birthday card and sends it. -- employer is liable for any foreseeable events)

principle/agent relationship

agent has the authority to enter contracts on behalf of principal; ex: president of corporation can enter in contracts on corporation's behalf, supervisor may only have authority to purchase supplies

termination of impossibility

agent is hired to sell house, but the house burns down, contract is terminated

duty of loyalty

agent must be loyal to the principal who hired you.

chain of distribution

all manufacturers, distributors, wholesalers, retailers, lessors involved in a transaction; (ex all participants in the sale of a car can get sued for the injury caused by a defective car)

agency by estoppel

an agency that is not actually created but that is imposed by law when a principal acts in such a way as to lead a third party to reasonably believe that another is a principal's agent and the third party is injured by relying on that belief. the principal has the duty to correct the third parties mistaken belief in the agent's act of authority on principal's behalf. -- if the principal fails to do so, the principal is estopped from denying existence and is bound to agent's acts with the third party. (i.e. say you're the owner of a building and you tell your agent to show an apartment to a possible tenant. the agent goes ahead and negotiates a lease even though you didn't give the agent any direct authority to do so. the tenant assumes the agent has the authority and an agency by estoppel has been created.)

parties who can recover

anybody that is injured by a product - even bystanders or family members

damages

awarded to punish a defendant who either intentionally or recklessly injured the plaintiff.

by mutual agreement

both agent and principal decide to mutually end agreement.

false imprisonment

confinement or restraint of another person without consent, justification, or authority. (i.e. someone is suspected of stealing from a store, security guard blames it on you and you didn't steal anything)

restatement (second) agency

consent by one person to act on behalf and under control of another and agreement by other to have that person so act.

fully disclosed

contracting third party knows the identity of principal and that the agent is acting as an agent for such principal. Liable on the contract, agent is not liable on contract because 3rd party relied on principal's credit and reputation when contract was made. Agent is liable on contract if he or she guarantees principal will perform contract. Agent's signature on contract entered into on the principal's behalf is important. In fully disclosed agency, agent's signature must clearly indicate that he or she is acting as an agent for a specifically identified principal Ex - examples of proper signatures for agent include "Allison Adams, agent for Peter Perceival", "Peter Perceival, by Allison Adams, agent" and "Peter Perceival, by Allison Adams" Ex - Peter decides to sell his house, hires mark a real estate broker to list and sell house for $100. Agree that mark will disclose existence of agency and identity of peter to interested 3rd parties. Mark discloses to heather, a buyer, that he is acting as an agent for peter. Mark signs contract with heather on behalf of peter, by signing "mark, agent for peter" peter is liable on contract with heather, mark is not.

disparagement of products and services

defamation of a competitors products, services, property, or business reputation.

assumption of risk

defense against negligence; a defense a defendant can use against the plaintiff who knowingly and voluntarily enters into or participates in a risky activity that results in injury. (i.e. race-car driver assumes the risk of being injured or killed in a crash)

superseding/intervening event

defense against negligence; an event in which the defendant is not liable for. (i.e. a spectator is hit by golf ball by golfer, while waiting for help the spectator is struck by lightning and dies. golfer is liable for the injuries prior to death but not the actual death)

comparative negligence

defense against negligence; damages are appointed to according to fault (i.e. jaywalker is hit by a car during a walk sign, can recover partial damages because 80% driver's fault and 20% jaywalker's fault)

contributory negligence

defense against negligence; if the person is partially at fault for defendant's negligence they can not recover damages because they are also in the wrong. (i.e. jaywalker is hit by car during a no walk sign, can not recover damages because they are partially at fault for the injuries)

unforeseeable misuse

defenses to product liability; a defense which acknowledges that is the product was misused and caused harm, manufacture is not liable

generally known dangers

defenses to product liability; a defense which acknowledges that some products are generally known for their dangers. (i.e. gun manufacture does not need to warn that their gun shoots bullets)

incidental authority

doing what you have to do to protect principal's property; (i.e. if someone is doing something to principal's property without them knowing, person can act as one's agent to protect their property even though it is unauthorized)

competition

duty of loyalty; agent can not compete with whomever hires he/she. (i.e. salesperson at an automotive shop also works for competing automotive shop, conflict of interest.)

confidential information

duty of loyalty; agent is under legal duty not to misuse or disclose confidential information from principal or agency; if violated, principal can recover damages. (i.e. work in coca cola plant and know the formula; you can't use the confidential information against the company. Extends even after you stop working for them/get fired)

self dealing

duty of loyalty; agents are prohibiting from doing this, (i.e. real estate agent who is employed to purchase real estate cannot secretly sell his own property to the principal. lawful if principal agrees to buy the property after the agent discloses his ownership; ANOTHER i.e. hire someone to sell property, agent happens to have his property on market, binds you to purchase his house to benefit him without your knowledge.)

taking advantage of an opportunity

duty of loyalty; can not take opportunity that arises for principal without telling them; (i.e. principal is looking for vacant land to purchase to develop, third party owns and wants to sell tells agent. agent purchases for own use instead of telling principal)

dual agency

duty of loyalty; when an agent acts for two or more principals in the same transaction - both principals must be in mutual agreement of interests. (i.e. getting divorce, happy divorce and they only want one lawyer to save costs, creates a conflict in agents responsibilities)

duty of cooperation

duty to allow the agent to perform his duties. work together~ the principal must assist and cooperate with the agent.

reimbursement/indemnification

duty to reimburse for hotel bills, travel fees. (i.e. reimburse for authorized business trips taken on principals behalf); duty to pay agent back for whatever he has to pay for third parties (i.e. agent provides third party with place to work, stay, supplies etc. must pay agent back for these)

employer/employee relationship

employer hires employee to perform some form of physical service, employee does not have authority to enter contract; employer has total control over what the employee does and how he performs his job.

"going and coming rule"

employers are not responsible for what goes on to and from work. (i.e. employer is not liable for accident that is caused on the way to work or from work)

exclusive vs. non-exclusive

express agency; contract a principal and agent enter into that says the principal cannot employ any agent other than the exclusive agent; EXCLUSIVE: ex. hiring real estate agent to buy house, they spend money and time to try and sell house. they have exclusive authority to sell house. if he sells house to neighbor, agent still gets his part while under contract. NON: ex. hiring multiple agents to find you a house whoever finds the best house wins the contract

general power of attorney

express agency; principal allows agent to act on his behalf - must be in writing and notarized to protect your third parties. (i.e. give power to twin brother, permitting him to make all decisions on his behalf while he is gone, can purchase or sell stocks, sell real estate, pursue or defend lawsuits, and make all relevant decisions for his brother)

intentional infliction of emotional distress

extreme; says that a person's extreme or outrageous conduct has intentionally or recklessly causes severe emotional distress to another person is liable for that person's emotional distress

actual cause

factor of causation; a defendants acts must be proven of actual cause of the plaintiff's injuries in order to be liable. (i.e. drinks river water, dies of a heart attack - family blames it on polluted water)

proximate cause

factor of causation; a point along a chain of events in which the party whose negligence is no longer considered the actual cause for the following events. In other words, the plaintiff will have to show that the injuries were the natural and direct consequence of the proximate cause, without which the injuries would not have occurred. (i.e. a person throws cig on ground, house catches on fire from the cig, then catches another house on fire and another)

defamation

false statements made by one person about another in court; when someone lies about you and it hurts your reputation - must be untrue and proved by the plaintiff. (untrue statement of fact not opinion, intentionally or accidentally published, truth as an absolute defense)

express agency

formation of agency; an agency that occurs when a principal and an agent expressly agree to enter into an agency agreement with each other; can be either written or oral. (i.e. written listing agreement between a seller of real estate and a broker)

intentional misrepresentation

fraud or deceit. the intentional defrauding of a person's material fact. can get someone out of a contract

tort

french for "wrong" - duty by law. breaks down into three categories: intentional, unintentional (negligence), and product (strict) liability.

special power of attorney

giving a person authority to do specific things.

contract liability to third parties

how agents signs contract is important as to wether agent is liable on contract.

deceit

if a person intentionally deceives another person out of money, property, or something else of value.

lapse of time

if the contract says that agency is 6 months, you have until the end of 6 months to fulfill contract and then it will be terminated

purpose achieved

if the reason an agent is hired is achieved then contract can be terminated. (i.e. agent hired to sell house in 6 months, sells it in one month.. agency is terminated)

notification to third parties

if this is failed to be given to a third party, an agent still has apparent authority to bind the principal contracts with these parties - must provide direct or constructive notice; (i.e. notice of termination of an agency that is printed in a newspaper that serves the vicinity of the parties is constructive notice)

happening of an event

include death, insanity, or bankruptcy of either the principal or agent.

impute knowledge

information that is founded by agent must go to the principal, principal is assumed to know what the agent knows. *whatever the agent finds out doing his job, he must tell the principal. (i.e. agent didn't tell important information regarding polluted soil to a real estate agent)

work-related test

intentional torts; determines whether an agent committed an intentional tort within a work related time or space -- principal is liable.

motivation test

intentional torts; determines whether an agent's motivation is committing an intentional tort is to promote the principal's business; principal is liable for any injury caused by the tort; if the guy was doing something for revenge rather than helping employer, not liable. --- is the motivation behind being employed in the interest of the employer.

intentional misrepresentation

known as fraud or deceit, occur when an agent makes statements that he or she knows are not true; Ex - assume that 1) car salesman is employed as agent to sell principal's car and 2) principal tells agent that car was repaired after it was involved in a major accident. If agent intentionally tells buyer that car was never involved in accident, agent has made an intentional misrepresentation. Both principal and agent are liable for this misrepresentation

res ispa loquitur

latin for "the thing speaks for itself" - a rule of law in which negligence is presumed when the object or situation which caused injury or damage was under his or her control, and the damage could not have happened had negligence not occurred.

supervening event

manufacture or seller is not liable if the product has been altered or modified after if it leaves seller's possession. (ex not liable if a truck is purchased and then off road tires were added on after purchase that cause truck to roll over)

persons dealing with agent

must notify them directly

compensation

must pay an agreed-upon amount to the agent either upon completion or at some other mutually agree-upon time. (i.e. sarah hires a lawyer to represent her on a 35% contingency fee basis, if the lawyer wins he will earn 35% of whatever is collected, if he doesn't win he gets paid nothing.)

unintentional torts

negligence; a doctrine that says a person liable for the harm that is foreseeable consequence of his or her actions

persons aware of agency

never personally dealt with them, gives them a constructive notice - (i.e. newspaper)

innocent misrepresentation

occurs when agent negligently makes a misrepresentation to 3rd party. Principal is liable for intentional and innocent misrepresentations made by an agent acting within the scope of employment. Third party can either 1) rescind contract with principal and recover any consideration paid, 2) affirm contract and recover damages

liability without fault

only applies to products - not services; a seller can be found guilty and liable even though he/she exercised all possible care in the preparation and sale of his/her product (i.e. doctor performs surgery to put in pacemaker, pacemaker is faulty and does not work and kills the patient, doctor is not liable but pacemaker manufacturer is)

duty of notification

owes the duty of communication to principal of important information concerning the agency.

duty of accountability

owes the duty of keeping records of everything, must maintain an accurate accounting of all transactions undertaken on principal's behalf. (i.e. employee is paid bribes for steering contracts to a supplier, purchases real estate with the money, employer can obtain a constructive trust over the real property and be awarded the property at the conclusion of a successful trial.) *employee must be able to sort everything out, keep records straight forward.

defamation of public officials and public

people that subject themselves to the public eye are offered LESS protection than those who are private individuals. cannot recover for defamation unless they can prove that the defendant acted with *actual malice*

duties of agent

performance, duty of notification, duty of accountability

performance

performing the duties that were expressed in the contract, meeting the standards of reasonable care, skill and diligence.

civil action for injury to person/property

person can sue someone for damages. i.e. medical expenses, property damage (if someone hits your car), loss of wages (if you can't work bc you are harmed, someone can pay you for that), emotional stress (if you are unable to do things you could do before)

persons w no knowledge of agency

principal is not obliged to give notice of termination to strangers who have no knowledge of the agency;

principal's duties

principal owes these duties to agent: compensation, reimbursement/indemnity, duty of cooperation

"dual purpose mission"

principal requests an employee or agent to run an errand or do another act for the principal while the agent is on his or her own personal business; if principal sent agent to do his/her business for them, then both parties are liable. (i.e. employee is sent to drop off package for boss on the way home from work, the employee hits a pedestrian, both parties are liable)

apparent agency

protects innocent third parties; agency that arises when a principal creates the appearance of an agency that in actuality does not exist. (i.e. giving joe the "apparent authority" by providing him with materials, stationery, forms, a truck with a company logo, or letting him work out of the company office, so that a reasonable person would think Joe had authority to act for the company. Then the contract or the price quote given by Joe and accepted by a third party is binding on the company. Apparent authority may also arise when Joe works for the company, has no authority to contract, but appears to have been given that authority. Beware of the salesman who exceeds his authority or the hanger-on who claims to work for the boss.)

principle/independent contractor

relationship between a principal and an independent contractor who is not an employee of the principal but that has been employed by the principal to perform a certain task on behalf of the principal; *principal is not liable for the negligence of the independent contractor for they are not their actual employee. principal however CAN be found liable if they directed or took any part in the act from which an injury resulted.

statue of limitations/repose

requires an injured person to bring an action within a certain number of years from the time they were injured; repose- limits the seller's liability for a certain number of years from the date it was sold. *different states have different lapses of time

intentional torts

requires that the defendant possessed the intent to do the act that caused the plaintiff's injuries. includes assault, battery, false imprisonment, misappropriation of right to publicity, merchant protection statuses, invasion of right to privacy, defamation, intentional misrepresentation (fraud), intentional infliction of emotional distress, and malicious prosecution.

misappropriation of right to publicity

right to name, personality and looks - etc. (i.e. someone used an singer impersonator to sing a song and famous singer didn't like it so he sued and won. OR placing someone's picture on a billboard without their consent) if you don't make commission, you can sue and get your part.

plaintiff fault

same as contributory/comparative negligence -- who is at fault?

defect

something wrong, inadequate, or improper with the manufacture, design, warning, instructions, or packaging of a product.

negligent infliction of emotional distress

special negligence doctrine; a person who is not physically injured by the defendant's negligence but instead can recover damages from the defendant due to emotional stress. (i.e. father walks daughter to school, daughter gets hit and killed, he can recover damages because of the emotional stress he suffered of seeing his daughter killed)

good samaritan laws

special negligence doctrine; laws that protect medical specialists from ordinary negligence by helping people in need from getting sued. (i.e. nurse sees accident, stops at the scene and pulls person out of the car and accidentally breaks his shoulder by doing so - not liable)

professional malpractice

special negligence doctrine; the liability of a professional who breaches his or her duty of ordinary care. (i.e. doctor cuts off the wrong leg, lawyer turns in documents late, accountant uses the wrong skill)

merchant protection statues

statues that allow merchants to detain, stop, or investigate suspected shoplifters without being held liable for false imprisonment if 1. there are reasonable grounds for suspicion 2. suspects are detained for a reasonable time 3. investigations are conducted in a reasonable matter (Example: Mother went in store with daughter to return phone, gave it to customer service, she looks for more, didn't find one, customer service lady wasn't there, she took the phone, security guard accuses her for stealing the phone and charges are actually filed. when everything came to light criminal charges were dropped, and she sued walmart won)

termination by operation of law

terminated if death, insanity, bankruptcy of principal, war occurs

wrongful termination

termination of agency contract in violation of the terms of the agency contract in which the nonbreaking party can recover damages from the breaking party; (i.e. principal employee hires real estate agent to sell his house, exclusive listing for 4 months, after 1 month the principal unilaterally terminates the agency, did not have the right to terminate, the agent can sue him and recover damages.)

product liability

the liability of manufactures, sellers, and others for the injuries caused to a person by a defective product; relies on the theory of negligence

assault

threat of harm. when a party does something that causes fear or harm, doesn't necessarily have to have been touched. (i.e. someone swings and the person is in fear; someone holds a gun up to someone and that person is scared)

negligence

tort liability to third parties; includes: "frolic and detour", "going and coming rule", and "dual purpose mission".

misrepresentation

tort liability to third parties; principal is liable for any misrepresentations made by agent within the scope of the employment.

battery

unauthorized and harmful, offensive direct or indirect physical contact. (indirect is still battery if the other person is harmed)

invasion of right to privacy

unwarranted and undesired publicity of a private fact about a person doesn't necessarily have to be untrue; (i.e. secretly taking picture of someone else)

packaging defects

when a product has been placed in packaging that is insufficiently tamperproof; (ex package fails to have tamperproof seal, someone puts cyanide in all products, consumers get sick and die, manufacturer liable for not putting tamperproof)

"failure to warn"

when the manufacture does not place a warning on the packaging or products that could cause injury if the danger is unknown. (ex prescription meds don't have a warning of side effects, anyone who uses and suffers unmentioned side effects can sue and recover damages) *disclaimer*