BUS 202 Exam 2 Chapters 6-9

Abnormally Dangerous Activities

Include: blasting, explosives, transportation of ultra-hazardous waste, and the keeping of wild animals domestically. - Someone engaged in abnormally dangerous activities will be held liable for injuries sustained by another.

Intentional Infliction of Emotional Distress (IIED)

Intentional acts that amount to extreme and outrageous conduct that causes severe and emotional distress. - Extreme and outrageous conduct is said to be conduct that exceeds the bounds of decency.

Tortfeasor

The person guilty of committing a tort (wrong).

Defenses to Product Liability Law:

1) Assumption of the Risk 2) Misuse of Product 3) Commonly Known Dangers

3 Reasons for Tort Reform

1) Awards to plaintiff are excessive. 2) The law disproportionately favors the plaintiff. 3) Businesses are forced to take steps to prevent or defend tort lawsuits, and this increases cost which are passed on to the consumer and to the public.

3 Categories of Torts

1) Intentional Torts 2) Unintentional Torts = Negligence 3) Strict Liability and Product Liability

3 Categories of Intentional Torts

1) Intentional Torts to persons 2) Intentional Torts to business 3) Intentional Torts to property

3 Types of Defamation

1) Libel = written words 2) Slander = spoken words 3) Cyber = online false statement of facts using the internet. (New and emerging law) (Problems exist in identifying this).

Specific Causes of Action Under Invasion of Privacy Tort:

1) Misappropriation of one's image or likeness without consent = Right of publicity - If the purpose of use is "commercial" = violation of tort law - If the purpose is educational/informational = lawful conduct 2) Intrusion into one's Seclusion and Solitude.

Plaintiff's Burden of Proof: (Invasion of Privacy)

1) Plaintiff had a reasonable expectation of privacy under the circumstances. 2) The invasion was highly offensive and intrusive.

Elements of Defamation

1) Publication - the defamatory statement must be made to at least 1 person other than the defamed party. 2) False statement of fact vs. opinion - by law opinions are not defamation.

Punitive Damages

1) Punish the tortfeasor 2) Deter others Only available when dealing with reprehensible conduct, malicious conduct, intentional conduct or willful conduct.

Plaintiff's Burden of Proof: (Intentional Torts to Business)

1) The existence of a valid contract between the plaintiff and another party (employee). 2) Prove that a 3rd party knew about the contract. 3) The 3rd party induced the employee to breach the contract.

Defenses of Defamation

1) Truth - absolute defense 2) Privilege - statements made in court proceedings. 3) Public figure defense - when the plaintiff is a public figure it's harder to prove defamation. All elements must be proven and actual malice.

Unintentional Tort - Negligence

= The most common type of lawsuit filed against business. - Is the failure to exercise a required standard of care

Trademark

A distinctive mark, motto, symbol or name that a manufacture affixes to their product. Includes domain names on the internet. Includes hashtags on social media.

Patent

A document granting an inventor sole rights to an invention. *patent last for 20 years from the date of filing the application

Patent Pending

A label claiming patent protection for an application not yet granted.

Reasonable Person Standard

A legal standard used to help a jury determine if a tort has occurred when the element of the tort is vague.

Foreseeability

A reasonable person under the same circumstances as the tortfeasor would have anticipated the Risk of Harm and taken steps to guard against. it.

Tort Reformer

Advocate for change of existing tort law. (Primarily they are business leaders).

Copyright

An automatic grant of a legal right once an idea is put into a tangible form. It is the expression of the idea, not the idea itself that is copyrightable.

Assault

An intentional act that causes fear or apprehension of immediate harmful or offensive contact. (Has to prove 5 things).

Battery

An intentional harmful or offensive contact. (Has to prove 2 things)

Elements of a Cause of Action In Negligence (Plaintiff Must Prove): (con't)

Causation - The defendant's breach resulted in the plaintiff's injury (hardest to prove) - Has 2 types - Actual Cause = causation in fact = but for the defendant's breach, the plaintiff would not be injured = limitless causation - allows for a remote link between the defendant's conduct and plaintiff's injury. - Proximate Cause = legal causation = liability = limiting causation Ex: Palsgraff v. LIRR (1928) ~ The plaintiff's injury wasn't foreseeable to the defendant. Injury - The plaintiff suffered a legally recognized injury (physical, emotional and/or economic harm).

Compensatory Damages

Compensate the plaintiff for their actual loss, seeks to release the plaintiff whole, and places them in a position as if the injury never occurred.

Assumption of the Risk

Defendant must prove that the plaintiff: 1) Knew/understood the risks associated with the product defect 2) Voluntarily used the product anyway. Ex: example of defense = plaintiff failed to adhere to a product recall

Non-Quantifiable Damages

Difficult to calculate losses. There may be no documentary evidence to support the law. Ex: Pain and suffering.

Elements of a Cause of Action In Negligence (Plaintiff Must Prove):

Duty - The defendant owes the plaintiff a duty of care. - Legal duties are created by statutory law and court decisions. Breach - The defendant failed to exercise that standard of care to the plaintiff. - Ex: 27 people on 34ft. boat - exceeds capacity. No equilibrium in weight distribution while on the boat.

Quantifiable Damages

Easy to calculate damages. Ex: Bills, receipts, invoices, etc.

Misuse of Product

If the plaintiff fails to use the product for its intended purpose and is injured, the defendant will not be liable.

Basis of Tort Law

Is a wrong and compensation.

Conversion

Is the wrongful use, possession, or destruction of the personal property of another. Ex: Dr. Vissoughi v. The University of The District of Columbia. - Jury awarded the plaintiff $1.65 million for his losses

Copyright Protection

Lasts for the life of the author/originator plus 70 years. Can have co-authors/originators. Protection lasts for the life of the longest living author/originator plus 70 years.

Periscope Drunk Driving Case

Law enforcement and federal regulators use social media to investigate illegal activities.

Trademark Infringement Lawsuit

Legal Standard: Plaintiff must show defendant's unauthorized use of the trademark created a substantial likelihood of confusion in the marketplace.

Intentional Torts to Business: Intentional Interference with Contractual Relations

Protects a contractual business relationship. Prevents 3rd parties from undermining a contract

State Laws

Require senders to include and opt-out or unsubscribe option.

Social Media Issues

Social media posts are included in the Discovery process of litigation. Tweets and other social media can be used to reduce damage awards.

Coca-Cola Company v. Koke Company of America, Inc., U.S. Supreme Court (1920)

The court recognized that the plaintiff had an exclusive ownership right to the name "Coke" and that the defendant's use of the name "Koke" to identify the same type of product would cause confusion in the marketplace. The court protected the plaintiff's trademark/trade-name. The plaintiff was successful.

Comparative Negligence (NY Law)

The defendant must prove that the plaintiff was also at fault. The jury must determine a percentage of fault to the plaintiff and to the defendant. The plaintiff's award is reduced by their percentage of fault. This law takes a pro plaintiff stance

Commonly Known Dangers

The law recognizes that some products are inherently dangerous when they are used for their intended purpose. Sellers, manufacturers and lessors are not legally obligated to warn of such commonly known dangers. This involves products such as - knives, matches, hammers, scissors, etc. Injuries that result from use of these products will not subject the manufacturer, seller, or lessor to liability.

Product Liability

The legal theory under which those who make (manufacturer), sell (seller), or lease (lessor) goods are held liable for harm to another caused by those goods.

Defamation

The publication of a false statement of fact that causes injury to reputation or character.

Assault and battery are civil law causes of action as well as criminal law causes of action. It is possible for a civil assault case to be filed at the conclusion of a criminal assault case. What legal principle explains why this can occur?

The same set of facts can give rise to more than one cause of action.

Invasion of Privacy

Tort law seeks to protect individual privacy. Source of the tort is Griswold v. Connecticut, U.S. Supreme Court (1968) Holding: citizens have a right to privacy.

Strict Liability = Liability Without Fault

Under strict liability, the tortfeasor takes every possible precaution to prevent harm, but if a person or property is harmed, the tortfeasor is held liable. - There are NO defenses to Strict Liability

Tort Law

When wrongful conduct results in injury or harm to another (person or property) and a cause of action arises.

What question does the Reasonable Person Standard ask?

Would a reasonable person under the same circumstances as the plaintiff, conclude as the plaintiff did?

Intentional Torts to Property: Trespass to Land

Wrongful entry onto, above or below the surface of land owned by another without consent. - A landowner is not liable for injury to a trespasser, so long as, they exercise reasonable care to keep the property safe. - It is the legal duty of the landowner to keep the property safe.