LGST Exam 2

GGNSC Batesville, LLC d/b/a Golden Living Center v. Johnson

-Johnson was the court-appointed representative of her brother's estate and filed a wrongful death lawsuit against Golden Living alleging that their negligence caused the death of her brother Mose Cooper who was a former resident of the Golden Living nursing home.-Golden Living moved to compel arbitration based on an arbitration clause in its standard admission agreement.-The trial court denied the motion and ruled that no valid contract existed because Johnson, not Cooper, signed the agreement during the nursing home's admissions process and Johnson had no legal authority to act as Cooper's agent. Case found that no evidence for any of the prongs necessary to meet apparent authority was present.

Other types of intentional torts

1. Battery 2. Intentional infliction of emotional distress 3. Trespass 4. Conversion 5. Civil assault

2 defenses to negligence claims

1. Comparative Negligence 2. Assumption of risk

Agency relationship 3 elements

1. Consent 2. Right of control 3. The agent's conduct must benefit the principal in some way

5 types of business torts

1. Defamation 2. Libel (trade libel) and slander 3. Fraudulent misrepresentation 4. False imprisonment 5. Business Competition torts

Defamation 4 elements

1. Defamatory statement 2. Dissemination to a 3rd party 3. Specificity 4. Pecuniary harm/ damages

5 elements of negligence

1. Duty Did the tortfeasor owe a duty of care to the injured party? 2. Breach of duty Did the tortfeasor fail to exercise reasonable care? 3. Cause in fact But for the breach of duty, would the injured party have suffered damages 4. Proximate (legal) cause Was there a legally recognized and close-in-proximity link between the breach of duty and the damages suffered by the injured party? 5. Actual damages Did the injured party suffer some physical harm that resulted in identifiable losses? A suing party must prove these 5 fundamental elements . Circumstances where one party fails to act reasonably and, even absent intention for harm, the party is still liable for any injuries or damages suffered by another party as a result of the unreasonable conduct.

3 categories of agents

1. Employee agents 2. Independent contractors 3. Gratuitous agents

3 Categories of torts

1. Intentional tort 2. Negligence 3. Strict liability

3 defenses to defamation

1. Truth 2. Absolute privilege 3. Qualified privilage

Creation of an agency relationship

1. Typically created expressly by the parties with the duties of the agent being set out by the principal 2. The parties perform their respective duties in accordance with their agreement and agency law 3. The agency transaction is ended by the termination of the agency by the parties

IRS 3 Prong Test for determining independent contractor status

1. behavioral aspects of the agent Does the principal control how the employee does the job? 2. the financial arrangements between the principal and agent Are the business aspects controlled by the principal? 3. the type of working relationship the parties had in terms of benefits and promises of continuing employment Retirement, medical, continued future employment?

3 theories of product liability

1. negligence 2. warranty 3. strict liability

Moardi v. Marsh USA 1. Does the going-and-coming rule apply or does this case fall into the incidental benefit exception? 2. What was Marsh's theory of the case as to why the should not be liable for Bamberger's negligence?

: Bamberger was employed by Marsh (insurance co) as a salesperson which required her to provide educational seminars, make presentations, and become involved with civic organizations such as the chamber of commerce and the Rotary Club. She met with prospective clients, typically at their location and convenience, and meetings could occur before, during, and after regular work hours. To reach these various destinations, Marsh required Bamberger to use her personal vehicle. She also used her personal vehicle to transport Marsh executives, clients, and co-employees to offsite meetings, appointments, and seminars. At the end of the workday on April 15, 2010, Bamberger planned to stop on the way home for some frozen yogurt and, thereafter, to attend a 6:00 p.m. yoga class. While still at work, she changed clothes from business attire to active wear. She also packed her laptop and other sales materials in a briefcase and took them with her in her car. On her way to a frozen yogurt shop, she was involved in an accident with Moradi who was riding a motorcycle. Moradi filed a negligence suit against Bamberger and against Marsh as Bamberger's principal/ employer under a theory of respondeat superior. Marsh defended on the basis that it was not liable for Bamberger's negligence because, at the time of the collision, Bamberger was neither at work, nor working, nor pursuing any task on behalf of her employer but was pursuing personal interests, namely, going to yoga class and stopping for yogurt on the way. 1. Bamberger's conduct falls into the incidental benefit exception. The court pointed out that the rule generally exempted an employer from respondeat superior liability for any tortious acts committed by employees while on their way to and from work because employees are said to be outside the scope of employment during their daily commute. However, an exception to this rule exists when the employee's use of her own car gives some incidental benefit to the employer. 1. Marsha was liable for Bramberger's accident under respondeat superior because marsha had received an incidental benefit from Bramberger's use of her personal vehicle. 2. Marsh argued that the principal/employer should not be liable because the accident occurred while Bamberger was not on company business at the time of the accident.

Bosse v. Brinker Restaurant Do the actions of the parties result in the Chili's patron being converted to an agent of Chili's?

: Bosse was part of a group of four teenagers who fled from a Chili's restaurant without paying. A regular patron of the restaurant saw them leave without payment and followed them in his own car. The patron's car was unmarked; it bore no Chili's insignia. He wore civilian clothing and no uniform or other insignia of employment at Chili's. In the course of the high-speed chase, the teenagers collided with a cement wall and were injured. The pursuing patron left the crash scene area and was never identified. No. The court held that an agency relationship requires three elements: 1) consent, 2) right of control, and 3) the agent's conduct must benefit the principal in some way. In this case, the court ruled that the evidence was insufficient to create a genuine issue whether Chili's authorized the patron to act as a posse to conduct a chase.

Zeidman v. Fisher Was the assumption of the risk defense properly applied?

: Zeidman and Fisher were participating in golf foursome and one hole, where the fairway was partially blocked, Zeidman agreed to take the golf cart and ride ahead to see if the course was clear for the group to hit. Zeidman made his observations and was returning to his foursome to report that the course was clear when Fisher hit his shot anyway. Fisher's shot was errant and the ball struck Zeidman in the face causing serious and permanent injuries. Zeidman sued Fisher for negligence and the trial court dismissed his claim ruling that Zeidman had assumed the risk. Pennsylvania Superior Court reversed trial court's decision & ruled in favor of Zeidman. No. The Superior Court reversed the trial court's decision holding that an objectively reasonable person may have assumed that no risk existed because Ziedman had not yet completed his task of reporting back to the foursome and therefore, did not yet manifest a willingness to accept a known risk.

Tort

A civil wrong in which one party's action or inaction causes a loss to be suffered by another party

Res Ipsa Loquiter

A doctrine that allows an injured party to create a presumption that the tortfeasor was negligent by pointing to certain facts that infer negligent conduct without a showing of exactly how the tortfeasor behaved. Doctor leaves a scalpel inside of patient during surgery.

Ratification

A retroactive source of the agent's authority occurring when the principal affirms a previously unauthorized act by either 1) expressly ratifying the transactions 2) not repudiating the act via retaining the benefits while knowing that the benefits resulted from an unauthorized act by the agent When the agent does something without the permission of the principal but the principal later approves of the agreement or action

Aaris v. Las Virgenes United School District 1. What must Aaris prove in order to hold her coach and the district liable for her injuries? 2. For a defense of assumption of the risk to be successful, what must the coach and the district prove?

Aaris is injured during gym practice. Aaris told the coach they were having problems with the stunt. Aaris sues the school and coach for negligence. Coach and school assert the assumption of the risk doctrine in their defense. 1. The injured party must prove that it was foreseeable that these stunts would cause injury and that the students were the cause and proximate cause of the damages. 2. An assumption of the risk defenses requires the tortfeasor (school) to prove that the injured party knowingly assumed the risk.

Breach of duty

After duty has been established, whether the second factor in the analysis is whether or not the party has fulfilled his obligation.

Employee v. independent contractor

Agent classified based on the amount of direction and control that the principal has over the agent in terms of setting a work schedule, pay rate, and day-to-day supervision Employee: principal can control what will be done and how it will be done Independent contractor: if the principal has the right to control or direct only the result of the work and not the means and methods of accomplishing the result

Disclosure- agency

Agents have an ongoing duty to keep the principal informed and disclose any and all relevant facts to the principal throughout all phases of the relationship

Duties of agent to the principal

Agents owe a fiduciary duty to principals, requiring that the agent act accordingly to higher standards than non fiduciaries in a transaction 1. Loyalty 2. Obedience 3. Care 4. Disclosure 5. Accounting

Gratuitous agents

Agents who act on behalf of a principal without receiving any compensation Someone who agrees to assist his neighbor to the store without compensation or the expectation of anything in return.

Fradulent misrepresentation

Allows an innocent party to recover when another makes a false representation and causes a pecuniary loss as a result Elements: 1. The misrepresentation must be a material fact known to be false by the tortfeasor or was a reckless disregard for the truth 2. The tortfeasor intended to persuade an innocent party to rely on the statement and they did in fact rely on the statement 3. Damages were suffered by the innocent party

Defamation defense- Truth

An absolute defense to a charge of defamation. If the statement is truthful, no defamation has occurred.

Obedience- agency

An agent has the duty to obey lawful instructions from the principal and cannot substitute her own judgment for the judgment of the principal (unless specifically authorized)

Agent's contract liability to third parties

An agent's liability to third parties in a contract hinges on whether the agency relationship is fully disclosed, partially disclosed, or undisclosed.

Assumption of risk

Asserted when the injured party knows that a substantial and apparent risk was associated with certain conduct, and accepted the risk by moving ahead with the dangerous activity anyway.

Coker v. Walmart Is Wal-Mart liable?

Bonifak and Fordham bought a box of bullets from a Walmart in Florida. 4 hours later they robbed an autoparts store and killed Coker w the bullets. When they bought the ammunition, both B&F were under 21. Federal Gun Control act makes that illegal. Coker's wife sued Walmart. Yes, it would likely be held that Wal-Mart was negligent per se in violating the federal Gun Control Act that was intended to promote safety, and therefore was liable for harm suffered to those protected by the law.

Yost v. Wabash College 1. Did Wabash owe Yost a duty as landowner of the fraternity house? 2. Did the Local Fraternity assume a duty to act with reasonable care while hazing Yost?

Brain Yost was a student at Wabash College (Wabash) and a pledge at the local Phi Kappa Psi fraternity (Local Fraternity). During a fraternity event, a Local Fraternity member put Yost into a headlock that rendered him unconscious while he was being carried by other Local Fraternity members. Panicked, the other members dropped him. Yost suffered significant physical and psychological injuries from the incident that caused him to withdraw from college. Yost filed suit alleging his injuries were a result of negligence and sought damages from, among others: Wabash College (the owner and landlord of the fraternity house), contending that a special relationship existed, and the Local Fraternity on an assumption of duty theory. The trial court granted summary judgement to both the college and fraternity. So, Yost appealed. The Indiana Supreme Court affirmed the summary judgment for Wabash but reversed the summary judgment for the Local Fraternity. The court reversed the judgement against the fraternity because the frat had a duty and increased risk. 1. No. The landowner has no duty when a tenant is in "operational control" of the premises. 2. Perhaps. This is a question of fact for the jury and the case should not have been dismissed on summary judgment. In the case of the Local Fraternity, there was sufficient evidence to reasonably conclude that Yost may be able to show that the Local Fraternity assumed a duty and that the actions of its members increased the risk of harm to him.

Buch v. Hoffinger Industries

Bunch, an 11-year-old girl, suffered a severe injury to her spine by jumping into a four-foot-deep above-ground swimming pool. Bunch filed suit against Hoffinger as the manufacturer of the pool alleging, among other theories, that Hoffinger was liable for failing to provide adequate warnings which could have prevented the tragedy. Hoffinger argued that it did not owe any duty to warn consumers because the danger was "open and obvious." There was one warning sticker, and expert witnesses of Bunch testified that warnings to children between the ages of 7 and 12 must be concrete and spell out any consequences of diving into shallow water. Another of Bunch's experts testified that it was difficult for someone in the age group to judge the depth of a pool. Hoffinger countered that warning labels on pools were not feasible before it left the factory because they would become distorted by the stretching of the liner, and Bunch had assumed the risk because she had swum in that same pool prior to that occasion and ignored an adult present at the pool who advised against diving. Jury verdict in Bunch's favor, Hoffinger appealed. Ruling: The California Court of Appeals affirmed the judgment and verdict in favor of Bunch. The court rejected Hoffinger's contention that it owed no duty to warn Bunch of possible head injury from the open and obvious danger of diving headfirst into a shallow, above-ground pool. The expert testimony concluded that the warning used by Hoffman were below industry standards.

Burton v. MDC PGA Plaza Corp

Burton was injured in a pothole in a CVS parking lot. Buirton was employed by CVS and knew about the pothole Ruled in favor of CVS and MDC

Business competition torts

Common law torts that arise when a tortfeasor (typically a competitor) interferes with an existing contract or hinders a prospective contract between two parties.

Undisclosed agency

Created where a third party is completely unaware that an agency relationship exists and believes that the agent is acting on her own behalf in entering a contract - The agent is fully liable to perform the contract.

Fully disclosed agency

Created where the third party entering into the contract is aware of the identity of the principal and knows the agent is acting on behalf of the principal in the transaction - Only the principal is contractually obligated to the third party.

Partially disclosed agency

Created where the third party knows that the agent is representing a principal, but does not know the actual identity of the principal - Both the principal and the agent may be liable for the obligations under the contract.

Trade Libel

Creates liability when a competitor makes a false statement that disparages a competing product. Elements: 1. Must be a clear and specific reference to the product 2. Be made with the knowledge that the statement is false 3. Be communicated to a third party

Defining defect

Design of Manufacturing Defect: A product may become dangerous if it is designed improperly in that foreseeable risks of harm posed by the product could have been reduced or avoided by some alternative design; or, by some mistake made during the manufacturing process. Inadequate Warning: For products that are ostensibly safe but may carry risks unknown to a reasonable consumer, inadequate warnings and instructions may render the product unreasonably dangerous

Actual damages

Did the injured party suffer some physical harm that resulted in identifiable losses?

Why is agency important in business management

They set out the rules and standards for situations in which one party hires another party to act on the hiring party's behalf

Tortious Interference with Existing Contractual Relationships

Tortious Interference with Existing Contractual Relationships: When one party induces another party to break an existing contract with another party, the inducing party may be liable for damages suffered by the innocent party if they had specific knowledge of the contract, actively interfered with the contract, and caused identifiable damages. Interference does not occur when a competitor merely offers a better price to a competitor's customer. Sam is hired by an IT company for a large project and signs a 3 year contract with a non-compete clause. A direct competitor hires Sam after 1 year causing the first company to loose $100,000 because of trying to scramble to locate a new employee to replace Sam. The competitor hired Sam to disrupt their competitor's project.

Frolics and Detours

Frolic is another exception to the respondeat superior doctrine occurring when an agent, during a normal workday, does something purely for her own reasons that is unrelated to employment. If the conduct is a small-scale deviation that is normally expected in the workday, that is not considered a frolic, but rather a detour, which is still within the ambit of respondeat superior. Traveling to and from work: Many courts have adopted the going-and-coming rule whereby employers are generally not liable for tortious acts committed by employees while on their way to and from work

SP Midtown v. Urban Storage Why did the court find Welsh had an agency relationship with Space Place?

Getz was the co-owner of a self-storage facility called Space Place. In April 2005, Getz hired Stacy Welch as a property manager for their Houston facility. Part of Welch's employment agreement required her to maintain strict confidentiality of Space Place's business and customer information. In November of the same year, Welch accepted employment with Midtown, one of Space Place's competitors, but continued to work for Space Place for the rest of the month. Getz was unaware of Welch's employment with Midtown, but became suspicious when sales at the Houston facility dropped precipitously. An internal investigation revealed that Welch had used a variety of techniques to divert customers from Space Place to Midtown's facility. This included falsely telling inquirers that Space Place had limited availability and that Midtown's storage rates were lower. The investigation also revealed that Welch received bonuses from Midtown based on the amount of clients she referred to them. The court ruled that certain employees owe a fiduciary duty to their employers under an agent/ principal theory. Since Welch was an employee that occupied a position of confidence at Space Place, the relationship created a fiduciary relationship. Note: Space Place sues and wins because Whelsh broker her fiduciary duty to her employer (Space Place) be sending customers to Midtown and not telling Space Place about her employment Welch's position as a property manager required her to exercise judgment and have access to company files and information. Therefore, the court ruled that she was an agent-employee and owed fiduciary duties.

Gorran v. Atkins Nutritional's 1. Can a diet plan be considered a "product"? 2. Why would Gorran want to sue under the products liability theory rather than just negligence?

Gorran suffers a heart attack after being on the Atkins diet. Gorran sues Atkins because he claims the diet was defective. 1. The court held that a diet plan and accompanying books etc., is not considered a product because they were not tangible enough. 2. Gorran's most appealing option for pursuing his case is the doctrine of strict product liability because here he need not prove the five elements of negligence, rather he need only prove that the product was placed on the market and that it has a defect which resulted in injury

Physical Injury requirement

If the employee's misconduct causes physical harm to a third party's person or property, the employer is liable for both the injury and any related economic losses

Violation of Safety Statute

If the legislature has passed a statute intended to promote safety and one party violated the statute, there is a strong presumption that the party violating the statute has also committed negligence per se

Why are ABC and IRS tests important

Important in employment tax context and the benefits an employee is entitled to

Scope of Employment:

In order for the principal to be liable, the agent's tortuous conduct must have: (1) been related to her duties as an employee of the principal (2) occurred substantially within the reasonable time and space limits (3) been motivated, in part, by a purpose to serve the principal.

Employee agents

Individual employees who are authorized to transact business on behalf of the employer/ principal, and therefore the principals are liable for the employee agent's actions or omissions

False imprisonment

Intentional infliction of a confinement upon a person Guidelines: 1. Limited detention (short period of time) 2. Limited to premises (Only good if happens on the merchants property) 3. Seizure of property (Plain view to sieze merchandise but cannot "search" suspected shoplifter) 4. Coercion (Guard cannot attempt to get payment, purport to official arrest, or obtain a confession)

Accounting- agency

Unless the parties agree otherwise, the agent must keep appropriate written records for any money that the agent spends or receives in the course of the agent's representation

Maher v. Best Westen

Maher was a blind woman with a seeing eyed dog. Another customer enters the hotel with 2 unleased dogs and those dogs attack and maul Maher's service animal. Maher sues Best Western for negligence. Best Western owed a general duty of reasonable conduct and a special duty of conduct as an innkeeper to Maher as a guest. Here, this special relationship included the duty to guard against foreseeable dangers.

Negligent hiring doctrine

Most states recognize a tort-based theory of liability for employers for negligence or intentional torts of employees when the employer had reason to know that the employee may cause harm within the scope of his employment. Liability generally focuses on the employer's method of determining suitability for employment.

Turner v. Wells

NFL hired a law firm led by Theodore Wells to investigate allegations of bullying within the Miami Dolphins organization. The focus was on offensive lineman, Jonathan Martin, who left the Dolphins in 2013 and checked himself into a hospital for psychiatric treatment. The Wells Report (144 pages) concluded that bullying by other players and offensive line coach, James Turner, played a role in Martin's issues. Turner was fired by the Dolphins. Turner filed a defamation lawsuit against Wells and his firm. Trial court ruled in favor of Wells because (1) the report consisted of opinions and therefore was not actionable in a defamation suit and (2) Turner was a public figure and failed to adequately plead actual malice in his complaint. Turner appealed to the 11th Cir. Affirmed, lower court holding (1) the report was a product of careful and balanced investigation and the statements in the report were not false or misleading. And (2) Turner was a public figure and therefore had a higher hurdle to clear. Turner could not show malice or that the statements were false.

Nelson v. Tradewind Aviation

Nelson was a pilot for Tradewinds Aviation and they fired him because it was the offseason. He applied for a position at another airline. When he applied for a new job he asked TA for a reference and they told the new airline that Nelson was involuntarily removed and had performance issues. These things were never communicated to Nelson during his employment with Tradewind. Nelson sued for defamation, and Tradewinds claimed they had qualified privilege as an employee reference. Ruled in favor of Nelson. TA's statements were malicious.

Strict liability torts 6 factor test

Used to determine whether these activities trigger strict liability for any harm caused by the activity 1. high degree of risk 2. liklihood of great harm 3. exercising reasonable care 4. uniqueness of activity 5. appropriate location 6. community values that outweigh the danger

Avanti Press v. Employment Dept 1. Was Waiau an independent contractor or an employee of Avanti? 2. What if Waiau had also been paid a salary in addition to her commission?

Waiau was an employee of One Coast, a company that represented various businesses, including Avanti. In early 2009, One Coast dissolved. Waiau, who had nearly 30 years of experience as a product sales representative in the greeting card and gift industries, then entered with Avanti to sell the company's greeting cards, journals, and calendars. The Agreement provided, among other things, that: Waiau would be Avanti's exclusive sales representative for retail outlets in southwestern Oregon and would personally visit Avanti customers at their retail outlets at least once every 12 weeks for purposes of soliciting orders in accordance with the services Agreement and Avanti's policies, catalogs, supplements, and price information. Waiau had no authority to bind Avanti to any sales and had no authority to accept orders or receive payments on Avanti's behalf. Avanti reserved the right to establish and change prices, products, ways, methods, or terms of payment. Waiau had the authority to hire, fire, and train her own sales associates. Waiau would pay all employee taxes and all her own expenses. In exchange for her services, Avanti would pay Waiau a commission based on a percentage of the product invoice price. The Agreement would automatically renew for one-year terms, unless earlier terminated by 30 days' written notice from either party. During the relevant time, Waiau maintained a home office. She used the office equipment almost exclusively for business and deducted home office expenses on her personal income tax return. She also used her personal vehicle for business travel. Avanti did not reimburse Waiau for postage, travel, meals, or lodging expenses. Waiau set her own work schedule and decided how frequently to visit customers. Her commissions were based entirely on her sales, and not on the number of hours that she worked. However, Waiau did not register a business name, nor did she carry liability insurance or performance bonds, and she did not advertise or market her services as a product sales representative. During that period, she passed out business cards that stated, "Andrea Waiau, Avanti Greeting Cards." Waiau sought unemployment insurance benefits claiming that she was an employee rather than an independent contractor. 1. The court reasoned that Avanti did not have a sufficient amount of direction and control over Waiau and that she should be classified as an independent contractor. (set her own schedule and decide how often to visit customers) Court also noted that Waiau worked strictly on part-time basis, selling only at her convenience, which is typically the nature of an independent contractor 2. A salary is a strong indicator of employment status. If the salary were guaranteed and not tied to any sales performance, that would likely sway the court the other way (employee rather than IC).

Independent contractor agents

Not considered an employee and has no legal protections of employees, and therefore the principal generally has no liability for the independent contractor agent's actions or omissions Outside accountants, lawyers, contractors, and architects

Actual authority

Occurs when the parties either expressly agree to create an agency relationship or where the authority is implied based on custom or the course of past dealings The CEO of a corporation has actual authority

Apparent authority

Occurs when there is an appearance of legitimate authority to a third party and that third party was objectively reasonable in her belief that the apparent agent is in fact authorized to act for the principal 1. acts of the principal indicating the agent's authority 2. reasonable reliance upon those acts by a third party 3. a detrimental change in position by the third person as a result of that reliance When it appears the agent has the authority to act on behalf of the principal

Tortfeasor

One who commits a civil wrong against another that results in injury to person or property

Palsgarf v. Long Island Railroad Co. 1. Was the conductor's negligence the closest-in-proximity cause of Palsgraf's injury? 2. Are all of the elements of a negligence tort satisfied in this case?

Palsgraf was waiting on a platform for a train when a different train arrived on a platform 100 yards away. When the train began to depart, two commuters attempted to board the moving car and a package one of the passengers was carrying became dislodged when the conductor pulled him onboard. The package, which turned out to be fireworks, fell to the platform and exploded sending a shock with sufficient force so that large iron scales hanging over Palsgraf fell on her resulting in severe injury. Palsgraf sued the Long Island Railroad for the conductor's negligent conduct of pulling the commuter onto the train that eventually caused the explosion and her injury. 1. No. Because the conductor could not have known the man he was helping onto the train had a box full of fireworks, the actions of the conductor was not a proximate enough cause to incur liability for Palsgraf's injuries. 2. Yes. Absent the proximate cause element the other 4 elements of negligence are satisfied. (Duty) The railroad had a general duty of reasonably conduct not to impart unreasonable risk to Palsgraf. (Breach) This duty was breached when the railroad failed to fulfill their obligations and put Palsgraf in jeopardy. (Causation) But for this breach of duty by the railroad, Palsgraf would not have suffered damages. (Damages) Palsgraf suffered severe injury.

strict liablity

Provides liability in certain cases wehre neither intent nor negligence needs to be proven, primarily for abnormally dangerous activities and for defensive products

NY Times v. Sullivan

Public figure standard: if the victim of defamation is a public figure, the defamation must have been committed with malice or reckless disregard for the truth Had actual knowledge the information was false

Going-and-coming rule

Rule whereby employers are generally not liable for tortious acts committed by employees while on their way to and from work.

Doctrine of Respondeat Superior

Stands for the proposition that a principal (employer) is liable for the agent's (employee) tort when the act resulted in some physical harm or injury and occurred within the employee's scope of employment.

ABC test for determining independent contractor status

State law A) the individual is free from direction and control, applicable both under contract for the performance of service and in fact B) the service is performed outside the usual course of business of the employer C) the individual is customarily engaged in an independently established trade, occupation, profession, or business of the same nature that involved in the service performed

Assumption of duty

When one party voluntarily begins to render assistance even when there is no legal obligation to do so. It requires that the party rendering assistance must proceed with reasonable care.

Strict liability

When the tortfeasor may be held liable for an act regardless of intent or willfulness; applies generally to cases of defective products and abnormally dangerous activities

Intentional tort

When the tortfeasor was willful in bringing about a particular event that caused harm to another party

Negligence

When the tortfeasor was without willful intent in bringing about a particular event that caused harm to another party

Negligence theory of product liability

Where one who negligently manufctores a product is liable for any injuries to the persons proximately caused by the negligence (MacPherson v. Buick)

Common Law Standards of Behavior

Where the legislature has been silent, state common law governs whether or not a breach occurred under certain standards of behavior.

Loyalty- agency

The centerpiece of fiduciary obligation because the agent is obliged to advance the principal's interest over her own interests

Defamation defense- Qualified privilege

The defendant must offer evidence of good faith and be absent of malice to be shielded from liability if they are employees of media organizations, or employers providing a reference for an ex-employee. Absence of Malice-As long as media has acted in good faith and without a reckless disregard for the truth, the media will be protected from unintentionally mistakes.

Defamation defense- Absolute privilege

The defendant need not offer any further evidence to assert the defense if the defamation claim is between government officials, judicial officers during proceedings, or state legislators. Speech and Debate Clause of Constitution-members of Congress are shielded and US Ct extended to all federal officials. Also covered are judicial officers and state legislators.

Care- agency

The duty to act with due care requires the agent to act in the same careful manner when conducting the principal's affairs as a reasonable person would use in conducting her own personal affairs Gratuitous Agents: Held to a lower duty of care to the principal, whereby in order to breach his duty he must have acted so recklessly that a reasonable person would regard the conduct as grossly negligent

Comparative negligence

Whereby the injured party's conduct has played a factor in the harm suffered, a jury divides up the proportion of negligence committed by the parties in terms of percentage. Comparative Negligence is a cousin to the common law doctrine of contributory negligence, whereby even 1 percent of negligence on the part of the plaintiff was a complete bar to any plaintiff of recovery.

Wurtzel v. Starbucks 1. Was Starbucks clearly negligent without any need for witnesses?

Wurtzel purchases a cup of coffee and puts the cup in her cup holder in her car. The lid comes off and she is burned. Wurtzel sues for negligence. Res Ipsa Loquitor: Wurtzel v. Starbucks Coffee Co. [P.306] "the thing speaks for itself" No. The circumstances are not such that negligence is automatic

Tortious Interference with Prospective Advantage

The law also protects interference with potential business relationships under limited circumstances where the tortfeasor's conduct was highly anticompetitive. Hacking into a competitor's computer system to gain an advantage.

Duty

The law imposes that a general duty on all parties to act reasonably and not impart an unreasonable risk to others Landowners have special duties to prevent others from an unreasonable risks. Tenants also have the same special duties as the landlord. The landlord is responsible for the common areas, but the tenant is responsible for their unit.

Products liability

The liability of any seller of a product that, because of a defect, caused harm to a consumer

Creation of liability for the principal for acts of the agent

The power to bind the principal in a certain transaction is derived from the agent's authority. 1. Actual Authority 2. Apparent authority 3. Ratification

Tortious conduct

The wrongful action or inaction of a tortfeasor

Strict liability theory of product liability

Theory of a products liability case that holds a seller strictly liable when an article he places on the market proves to have a defect that causes injury to a human being

Warranty theory of product liability

Theory of a products liability case that protects buyers from either an express or implied warranty of the seller.

Defamation defense- Privilege defenses

u: If the injured party meets all of the requirements of a defamation claim, the defendant may still avoid liability if the defamatory statement falls into one of two categories of privileged statements: Absolute Privilege Qualified privilege