GBL 323 sec 730 Exam 2

Ch6 Trespass to Personal Property

(CHATTEL or Trespass to personalty) This occurs when a person interferes with the use of nd enjoyment of another person's property without consent.

Ch8 Ethical Thought Theories

!. Consequential Theories 2. Deontological Theories 3. Ethical Relativism 4. Humanist Theory

Ch7 Misrepresentation

For an injured plaintiff to win under intentional misrepresentation or fraud the plaintiff must show that the seller: 1. affirmatively misrepresented the quality of the product 2. concealed a defect in the product and the plaintiff relied on the misrepresentation However, this would be a rare basis for claims, since manufacturers, sellers, and lessors do not intentionally misrepresent product quality

Ch6 Tort of Assault

Imminent harm or offensive contact with another person or action that causes a reasonable apprehension of imminent contact or harm in a person's mind. It is irrelevant whether the threatened physical contact occurred bc the relevant factor is the victim's apprehension of harmful contact.

Ch9 Duty not to interfere with the tenant's right to quiet enjoyment

Implied covenant imposed by law that a landlord may not interfere with the tenant's quiet and peaceful possession,

Ch7 Defect in Packaging

Manufacturers have a duty to properly design and provide a safe packaging for their products based on the nature of the products. ex. medical products (pills) children should not be able to tamper with them

Ch6 Defense of Negligence - Contributory Negligence

Many states do not allow plaintiffs to recover damages if they have contributed to their own injuries regardless of the degree of their fault. Both parties are at fault so long as they both contributed

Ch6 Compensatory Damages

Most commonly sought tort case. Places the victim in the position they would have been in if the tort never occurred. They then receive compensation for the pain or for repair/replacement

Ch6 Tort of Battery

Unlawful, unprivileged touching of another person. The wrongdoer does not have to physically come in direct contact with the victim for the battery to occur. Assaults and batter often occur together

Ch8 School of Social responsibility

(1) profit-oriented school (2) managerial school (3) institutional school (4) professional obligation school (5) regulation school.

Ch6 Res Ipsa Loquitor

(The thing speaks for itself) (Facts speak for themselves) provides remedy in cases where negligence elements are difficult to prove. Plaintiff MUST ESTABLISH... 1. The defendant had exclusive control for the thing that caused injury 2. The injury normally would not have occurred without Defendant negligence 3. Plaintiff did not have a role in causing injuries

Ch7 Strict Liability and DEFECTS

1) Defect in manufacture 2) Defect in design 3) Failure to warn 4) Defect in packaging 5) Failure to provide adequate instructions.

Ch7 Defense to Product Liability

1. Commonly known dangers 2. Government Contractors Defense 3. Assumption of risk 4. Misuse of product 5. Recall 6. Supervening Event 7. Statute of Limitations and Repose 8. Comparative and Contributory Negligence

Ch6 Special Negligence Doctrines and Statutes

1. Danger Invites Rescue Doctrine 2. Good Samaritan Statutes 3. Dram Shop Act

Ch7 Comparative and Contributory Negligence

1. Defense of Contributory negligence - permits injured party to recover damages for the defendant under the negligence theory for product liability. DOES NOT apply to strict liability theory claims. 2. Comparative Negligence Defense - The plaintiff will receive compensation for damages suffered from defendant proportionate to his or her contributory negligence

Ch6 Negligence and Unintentional Tort

1. Duty of Care - the defendant had a duty of care to the plaintiff not to cause any harm or interfere with the plaintiff's interest by exercising reasonable care 2. Breach of duty - The defendant breached their duty toward the plaintiff by not exercising reasonable care. The duty of reasonable care is measured by the reasonable person standard. 3. Actual Cause (Causation in fact) - The defendant's conduct actually caused the plaintiff's injuries. To determine the actual cause we use the "but for" test = "but for" the defendant's conduct would the plaintiff have been injured? 4. Proximate Cause (foreseeable harm) - The plaintiff's injury was foreseeable (anticipated) as a result of the defendant's conduct, which means the defendant's conduct would likely cause the type of harm the plaintiff suffered. 5. Damages - The plaintiff has actually suffered an injury as a result of the defendants conduct.

Ch9 Estates in Fee

1. Fee simple absolute - fee that provides the highest possible form of ownership of real property bc it grants the owner the utmost bundle of legal rights that a person can have in real property. When a person owns real property in this their ownership is infinite in duration, has no limitation on inheritability and does not end upon the occurrence of any event. 2. Fee simple Defeasible - A qualified or conditional fee simple that grants the owner all the benefits of a fee simple absolute except the benefits may be lost if a specific condition occurs or not. EX. is a conveyance of a property to someone so long as that person maintains the property as a recreational center.

Ch6 Defense to negligence

1. Superseding Event 2. Assumption of the Risk 3. Contributory Negligence 4. Comparative negligence

Ch8 Profit-oriented school

A company has met its social responsibility when it maximizes profits for shareholders. Business needs only to be judged on criteria of economic efficiency

Ch7 Government Contractors Defense

A contractor who is engaged in the manufacturing of products used by the government following government specifications may not be held strictly liable. The contractor must meet the three elements to rely on this defense... 1. Precise specifications for the product were provided by the government 2. contractor followed those specifications 3. contractor warned the government of any known defects or dangers about the product

Ch6 Defense of Negligence - Assumption of the Risk

A defendant can use the assumption of risk against a plaintiff if the plaintiff 1. had knowledge of the specific risk 2. voluntarily assumed the risk.

Ch6 Negligence Defense - Superseding Event

A defendant would not be liable for any injuries the plaintiff sustained from an intervening event that caused plaintiff injury. Conduct occurred, however, between the conduct and damage something else (like a storm) happened.

Ch9 Fixture

A fixture, which is personal property permanently affixed to real property, so as to become part of it, is also real property. However, a fixture may not be considered real property if the landlord and tenant agree it should remain personal property

Ch6 Danger Invites Rescue Doctrine

A person who puts another person in danger and that person suffers injuries, as well as, a third party coming to rescue the victim will be liable for all injuries of both parties due to their conduct

Ch6 Negligence Per Se

A plaintiff does not need to show breach of duty. Plaintiff can recover damages under negligence per se when the defendant violated a statute that establishes a minimum standard of care for a particular activity to protect a certain group of people and the plaintiff is an injured member of the group. example, if a statute prohibits the consumption of alcohol by individuals under the age of twenty-one, a liquor store owner will be liable if he or she sells alcoholic beverages to a nineteen-year-old person.

Ch7 Failure to Warn

A product is defective bc of inadequate instructions or warnings when the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the instructions or warnings renders the product not reasonably safe.

Ch9 Tenant's rights and duties

A tenant has a duty to pay rent, obey all the covenants of the lease, not to commit waste by destructing the leased property, not to use the leased property for illegal or non-agreed purposes, and not to disturb other tenants. 1. Gross Lease - In a gross lease, the tenant is responsible only for paying rent. 2. Net Lease. - In a net lease, the tenant is responsible for paying rent and property taxes. 3. Double-Net Lease. - In a double-net lease, the tenant is responsible for paying rent, property taxes, and utilities. 4. Triple-Net Lease. - In a triple-net lease, the tenant is responsible for paying rent, property taxes, utilities, and insurance.

Ch7 Statute of limitations and repose

An injured party is obligated under stature to bring a lawsuit to claim damages resulting from a product defect WITHIN a specified TIME PERIOD. Period usually starts at the time of injury, under the statute of repose, the period starts from the date when the product was first sold. When the Statute of Limitations or the Statute of Repose TIME has EXPIRED, the Plaintiff will be barred from any recovery.

Ch7 Breach of Warranty

An injured party may recover damages from a manufacturer or seller on the basis of breach of warranty. Provides for specific remedy like repair or replacement Express warranty - guarantee or a binding promise that clearly stated by the seller or manufacturer of the product. Implied Warranty - guarantee or a binding promise that automatically arises from a transaction, rather than from the express representations of the seller or manufacturer.

Ch9 Life estate

An interest in property that lasts for the life of a specified person For example, Margaret conveys her home to her best friend Helen for Helen's life, and upon Helen's death, the property reverts back to Margaret. 1. Remainders and Reversions - a life estate bc the conveyance is for the life of a specified person. there is a future interest in the property. If the future interest of a life estate is reserved by the original grantor, the future interest is called a reversion. However, if the future interest is reserved for someone other than the original grantor, the future interest is called a remainder.

Ch9 Trade fixture

Are generally considered as personal property because when installed it is presumed they were not intended to become a permanent part of the realty.

Ch8 Ethics and Social Responsibility

Business Ethics focus on what constitutes right or wrong business conduct. Any business that operates or is formed in the US must adhere to the laws.

Ch8 Professional Obligation School

Business leaders, managers, executives, and boards of directors should be certified as professionals before they can have their corporate role. Professional is defined by... 1. Met education requirements and continuing education standards 2. Fulfilled licensing examination requirements 3. adhered to codes of conduct that are enforced 4. membership in a formal association that meets regularly 5. independent commitment to publuc interest

Ch8 Regulation school

Businesses cannot act alone and without governmental regulation. - A company that operates and meets regulatory standards has fulfilled its social responsibility, called the moral minimum.

Ch8 Institutional School

Businesses have a responsibility to act in a manner that will benefit all of society just like churches, schools, courts, and the government. The corporations will help solve social issues even if they did not cause them.

Ch6 Punitive Damages

Can only be awarded with compensatory and nominal damages. Awarded when the act of the wrongdoer/tortfeasor is unconscionable. Usually used to deter or punish wrongdoer.

Ch9 Tenancy at sufferance

Created when a tenant continues the possession of the property after the expiration of another tenancy or a life estate without the consent of the property's owner. The Tenant is a trespasser. The tenant is still liable to pay rent and other damages suffered by the owner. This tenancy terminates upon the death of the tenant or the vacating of the property.

Ch9 Tenancy at will

Created when either party can terminate their relationship at any time. Death of either party will terminate it

Ch9 Tenancy for years

Created when the lease term is for a fixed term regardless of duration. For example, a lease where a landlord leases an apartment to a tenant for five months starting May 1 and ending September 30 will create a tenancy for years. This tenancy does not terminate upon the death of either landlord or tenant but rather upon the expiration of the lease term.

Ch9 Periodic Tenancy

Created when the term of the lease is not specified but the lease provides specific intervals of payment. For example, a lease where a landlord leases an apartment to a tenant requiring that rent payments are due on the 1st of each month but does not provide for the duration of the lease will create a periodic tenancy. This tenancy does not terminate upon the death of either landlord or tenant but rather upon either party giving adequate notice.

Ch6 Defense of Negligence - Comparative negligence

Damages are calculated based on the proportion of each party's degree of negligence. Pure - Party A suffered $10,000 in damages because of Party B's negligence. Party A was 75 percent at fault and Party B was 25 percent at fault. Party A will receive $2,500 for his damages from Party B Modified - the party seeking to receive compensation for his or her damages must be less than 50 percent at fault. Under the modified comparative negligence, in the first example above Party A will be awarded damages because he was less than 50 percent at fault but Party A will not receive anything from Party B in the second example because Party A was more than 50 percent at fault.

Ch7 Assumption of Risk

Defendant has issued a recall for product defect and the buyer failed to respond. Defendant must meet 2 elements: 1. Plaintiff knew and appreciated the risk associated with the product defect 2. the plaintiff voluntarily assumed the risk

Ch8 Deontological theories

Duty-based ethical school of thought that judges the morality of an action based on the action's adherence to a rule or rules that bind people to their duties. Ethically good or bad based on absolute moral principles regardless of net happiness. EX. "do unto others as you would have them do unto you,"

Ch6 Misappropriation of the Right to Publicity

Each person has the exclusive legal right to control, use, and profit from the commercial use of his/her name and identity during their lifetime. Nobody can misuse or misrepresent your name for those purposes without consent

Ch6 Invasion of privacy

Each person has the right to live their life w/out being subjected to unwarranted and undesired publicity. refers to 3 distinct torts 1. Intrusion on solitude or seclusion - nobody can illegally go into ones home or open their mail/photograph them w/out consent 2. Public discloser of private facts 3. False light - when someone places a person in the public eye

Ch9 Non-freehold Estates

Estate that creates a possessory interest and not an ownership interest Classifies leases... 1. Tenancy for years 2. Periodic Tenancy 3. Tenancy at will 4. Tenancy at sufferance

Ch7 Commonly Known Dangers

Inherent dangers of using certain products, such as knives or guns, need not be warned by the manufactures

Ch6 Dram Shop Act

Injured person may receive compensation for his or her injuries from a tavern owner for injured caused to him/her by an intoxicated driver who consumed alcohol at the tavern.

Ch6 False Imprisonment

Intentional confinement or restraint of another person for an applicable time without authority or justification and without the person's consent. Confinement must be complete and the victim must have knowledge of his/her confinement for liability for false imprisonment to arise. Restrained though physical force, barriers, threats of harm, or false legal authority to arrest.

Ch6 Disparagement

Is an untrue statement made by a person or business about the products, services, property, or general reputation. MUST PROVE 1. The wrongdoer made an untrue statement about the business's products, services, property, or business reputation 2. statement was published to a third party 3. wrongdoer knew about the falsity of the statement 4. wrongdoer made the statement maliciously, with intent to injure the business

Ch8 Consequential Theories

Judges act as ethically right or wrong based on whether the acts have achieved the desired results. BASED ON Utilitarianism school of thought. People act in a way that leads to the greater good of society. EX. For example, conduct such as a company bribing a government official to earn a government contract will be viewed as ethical because it would provide net happiness to society by creating jobs and revenue for the community.

Ch8 ethical relativism

Judges conduct on whether it is ethically right or wrong based on individual standards. - A person meets the moral standard if he or she believes the conduct is ethical.

Ch9 Landlord's rights and duties

Landlord has a duty to deliver possession of the lease property, and to maintain the implied warranty of habitability.

Ch9 Duty to maintain the leased property

Landlords have a duty to repair and maintain leased properties.

Ch6 Duty to Act

Landowner's duty - A landowner is not liable to a trespasser for mere negligence. The landowner will only be liable to a trespasser for injuries resulting from intentional or gross negligent conduct. Duty to act - can be at fault for failing to act as well as be at fault for acting

Ch9 Duty to Deliver possession

Lease agreement that grants the tenant an exclusive possession right to the leased property so long as... 1. The lease term had not expired 2. the tenant has not defaulted on the terms of the lease

Ch7 Misuse of the Product

Manufacturer is not required to foresee and take precautions against every unreasonable mode of use and abuse to which their product might be put key in this defense is foreseeability abnormal usage of the product and the defense will not be liable

CH6 Strict Liability

Liability without fault. This is a tort that imposes liability on the defendant bc they caused damages from engaging in abnormally dangerous activity. The party causing the injuries would be liable to the injured party Abnormally dangerous activities include 1. the storage and use of explosives, such as dynamite or fireworks 2. care or domestication of wild animal - anything not a dog or cat 3. Hazard/Toxic Materials

Ch6 Defamation-Libel and Slander

Libel = a statement that appears in writing. printing, or other fixed medium such as video, movie, picture Slander = refers to an oral statement

Ch6 Misrepresentation (Fraud or Deceit)

Occurs when a person deceives another our of money, property, or something else of value and the VICTIM has the FOLLOWING ELEMENTS 1. Wrongdoer made a false representation of material fact 2. wrongdoer made the false representation knowingly or recklessly and with the intent to induce reliance by the victim 3. victim actually, justifiably, and detrimentally relied on the misrepresentation 4. victim suffers injury

Ch6 Trespass to Land

Occurs when a person enters the land of another or causes an object to be placed on the land of another without the owners consent

Ch7 Defect in Manufacture

Occurs when manufacturer fails... 1. Properly ASSEMBLE a product 2. properly TEST a product 3. adequately check the QUALITY of the product

Ch6 Conversion

Occurs when someone exercises domain or control over the owner's personal property without consent Occurs when... 1. Acquisition of the owners property such as theft, fraud or purchase of stolen property. 2. Removal of the owner's property such as moving the owners boat 3. Transfer of the owner's property such as misdelivering the property 4. Withholding possession of the owner's property 5. Destruction or alteration of the owners property 6. Using the owner's property without permission

Ch6 Malicious Prosecution

Occurs when the wrongdoer institutes legal proceedings against another 1. without cause 2. improper purpose 3. proceedings were terminated in favor of victim 4. victim suffered damages

Ch9 real property interest

Permanent or temporary and depends on the estate.

Ch6 Wrongful interference with a contractual relationship

Plaintiff must establish... 1. Valid and enforceable contract existed between the plaintiff and another party 2. 3rd party knew the contract existed 3. 3rd party intentionally induced the other party to breach the contract or made performance of the contract impossible 4. Plaintiff was injured as a result of the 3rd party conduct

Ch6 Meet the contract requirement

Plaintiff must show that a contract existed between the plaintiff and its employees or the customers. The Defendant MUST CLAIM the unfair circumstances though 1. Defendant was acting to protect its own existing economic interest 2. Defendant was acting in the public interest 3. The existing contract between plaintiff and the 3rd party could be terminated at will by either party

Ch6 Wrongful Interference with a business relationship P2

Plaintiff need not show a contract existed but rather the plaintiff claims an outside interference with an expected economic relationship. When the Plaintiff has a definite and reasonable expectation of obtaining economic advantage, and a corporation maliciously or predatorily interferes or prevents the business relationship from developing, the Plaintiff may sue the competitor under the tort of wrongful interference with a business relationship.

Ch6 Good Samaritan Statutes

Protect those who provide aid to others from any liability if they cause an injury to those who they are trying to assist. This is so long as the action of rescuing/helping was in a reasonable manner

Ch 6 Defamation of Character

Protects individual's interest in his/her reputation during his/her lifetime. MUST PROVE 1. The wrongdoer made a defamatory and untrue statement of fact about the victim 2. The statement was unprivileged 3. The statement was intentionally or accidentally published to a third party

Ch7 Supervening event

The member of the chain of distribution is not liable if the product was materially altered or modified after it was sold and if the modification causes injury

Ch7 Defense to Breach of Warranty

Seller can raise 3 defenses by using a disclaimer in advance. 1. no warranties are made (as is) 2. the manufacturer or seller warrants only against certain consequences or defects 3. Liability is limited to repair, replacement, or refund

Ch7 Failure to Provide adequate Instructions

Sellers and manufacturers of the products are responsible to provide adequate instructions for the safe use and assembly of their products to prevent injuries.

CH7 Strict Liability (different than CH6)

Strict Liability imposes liability without fault 1. Consumers should be protected against unsafe products 2. Manufactures and distributors should not escape liability for defective products due to lack of privity of contract with the user of the product 3. manufacturers, sellers, and lessors of defective products are in a better position to bear the cost for damages caused by the defective product

Ch9 Assignment

Tenant's transfer of all of his or her interest under the lease constitutes an assignment. The assignee acquires all of the rights that the assignor had under the lease, and is obligated to perform all of the duties that the assignor had under the same lease for the remaining term of the lease.

Ch9 Sublease

Tenant's transfer of only part of his or her interest under the lese constitutes a sublease.

Ch9 Freehold Estates

The estate that a person has ownership and present possessory interest in real property. two types - estates in fee and life estates

Ch7 Negligence in Product Liability

The parties must be in Privity, which means only the negligent party would be liable and thus at fault. As a general rule, Negligence law states that each person must act as a reasonable person of ordinary prudence would have acted under the same or similar circumstances = Reasonable Person TEST: 1. Likelihood of the injury 2. seriousness of the injury 3. ease of warning For negligent design cases, although these constitute a limited number of cases, Plaintiff must prove under the reasonable person test that despite any warnings given for the product, the risk of harm outweighed the utility of the product as designed. This means that Plaintiff must prove any of the following elements: 1. design of the product was inherently dangerous 2. the design of the product contains insufficient safety devices 3. design of the product consists of materials that do not satisfy standards acceptable in the trade

Ch7 Defect in Design

There are flaws in its overall design; lacking safeguards. Fails to perform what it was designed for or fails to protect against foreseeable risk of harm.

Ch8 Humanist Theory

This theory evaluates actions as ethically right or wrong based on their contribution to improving inherent human capacities such as intelligence, wisdom, and self-restraint.

Ch6 Infliction of Emotional Distress - Tort

Victim can be compensated for mental or emotional distress without evidence of physical harm if the wrongdoer's conduct is extreme and intentionally or recklessly caused emotional distress to the victim.

Ch6 Nominal Damages

Victim is unable to reasonably prove any damages or no damages were suffered by the wrongdoer. court rewards damages of nominal value bc of the wrongdoer's conduct

Ch7 Recall

When a defect is discovered by the manufacturer they must... 1. notify the buyers and users of the product 2. correct the defect by repair or replacing

Ch6 Intentional Torts

Wrongdoer desired to harm or new consequences of harm 1. Interference with personal rights 2. involving interference with property rights

Ch6 Defense to Assault and Battery

consent, self-defense, defense of others, defense of property 1. Consent - A defendant cannot be held liable for assault or battery if the person consented to the conduct that caused the assault or battery. 2. Self-defense - A defendant cannot be held liable if he/she uses reasonable force to protect his or her life or well-being while committing an assault or battery. 3. Defense of others - A defendant cannot be liable for assault or battery if he/she acted in a reasonable manner to protect others who were in real danger 4. Defense of Property - A defendant cannot be liable for assault or battery if he or she used reasonable force to protect his/her property. Reasonable force is considered the force that cannot cause death or serious bodily harm.

Ch9 Real property

known as realty, includes land, buildings, and everything else permanently attached to the land. Includes space above and below the land's surface, which is limited to a reasonable distance. The owner of land possesses the sub-surface rights or mineral rights and surface rights. For example, natural gas, oil, and other minerals found beneath the surface of the land maybe some of the valuable rights of a landowner.

Ch9 Implied Warranty of Habitability

leased premises should be habitable, or fit for ordinary residential purpose, by having adequate weatherproofing, heat, water, and electricity, and being clean, sanitary, and structurally safe.

Ch7 Magnuson-Moss Warranty Act 1975

modifies the UCC warranty rules when consumer transactions are involved, even though the UCC remains the primary code of warranty rules. Although the Act does not require that the sellers of consumer products give a written warranty, if such a warranty is made by the seller of products priced at more than $10, the express written warranties covering the product must be labeled as either a full warranty or a limited warranty. A full warranty requires the seller to provide free repair or replacement of defective parts, and to refund or replace any product that cannot be repaired in a reasonable time. The implied warranties are not covered under the Magnuson-Moss Warranty Act.