Business Law

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Negligence

Back 1

Failure to conform your behavior to the standard of care and thereby causing another to suffer injury, You must establish
1. A duty of care existed
2. There was a breach of that duty
3. Damages resulted as a result of the breach
4. The breach caused the damage

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Defense to negligence

Back 2

Superseding Cause
Assumption of risk

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Duty to Rescue

Back 3

Generally not, unless you are obligated... I.E. you try and help him and then decide to leave him

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Duty To landowners

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Landowners are held to a reasonable standard regarding dangerous situations on their property... even if trespassing

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The Reasonable Person Standard

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This means the standard is how a reasonable person would have acted under the same or similar circumstances

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Strict Liability

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Abnormally dangerous activities

Extreme risk, Risk/Harm, Dangerous animals

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Product Liability

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May be based on negligence, misrepresentation, or strict liability

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Negligence based liability

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The failure to exercise reasonable care in the making or marketing of a product that causes injury

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Manufacturing duty of care

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Due care must be exercised in the manufacture or a product

The manufacturer has a duty to warn the consumer about dangers that an ordinary person might not be aware of.

There are usually state laws that set forth what kind of warnings

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Defamation

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Wrongfully hurting another's good reputation through false statements.

Publication required (communication to a third party)

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Defamation per se (no damages required)

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Loathsome communicable disease

Professional improprieties

Crime or been imprisoned

Unmarried woman is unchaste

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Defenses to Defamation

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The truth, the whole truth, not just part.
Privileged speech (heavy confidence

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Defamation of Public Figures

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The statement is about a public figure, made in a public medium, and related to a matter of general public interest. To recover damages, a public figure must prove a statement was made with actual malice. (Knowledge of falsity or with reckless disregard of the truth)

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Trespass to Land

Back 14

Entering onto real property of another;
Without permission;
On, above, or below the surface;
Or cause anything to enter the land
Or cause anything to remain on the land;
Or permits anything to remain on it.

Trespassers are liable for any damage they do.

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Defenses to Trespass

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Trespass was warranted (emergency/accident)

Possessor of the land had no right.

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Torts

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The wrongful conduct by one person that causes injury to another. Typically the remedy for such an act is money

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Intentional Torts

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Acts that were intended, or could be expected to bring about consequences that are the basis of the tort.

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Tortfeasor

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One who commits a tort. In order to be liable of an intentional tort, the tortfeasor MUST intend to commit the tort, the consequences of which interfere with the personal or business interests of another in a way not permitted by law.

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Assault

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The Reasonable apprehension of fear of immediate harmful contact, or immediate offensive contact.

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Battery

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An intentional and harmful or offensive physical contact.

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Compensation

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A plaintiff may be compensated for emotional harm or loss of reputation resulting from a battery, as well as from physical harm.

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Defenses to assault and battery

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Consent (sports or medicine)

Self-defense (life threatening)

Defense of others (reasonable)

Defense of Property (reasonable, but not deadly)

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False imprisoment

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The intentional and wrongful deprivation of the freedom to leave a particular place. (shoplifting/public school)

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Intentional Infliction of Emotional Distress

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An intentional act that amounts to extreme and outrageous conduct resulting in severe emotional distress to another. (some states require proof of physical harm) Repeated annoyance, with threats (such as extreme methods of debt collection[example from class with big man and old woman] is one way to commit this tort

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Police Power

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As part of their sovereign powers, states possess the power to regulate private activities in order to protect or promote public order, health, safety, morals, and general welfare.

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Balancing the Commerce clause with States Police Powers:

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When state regulations impinge on interstate commerce, courts must have balance the state's interest in the merits and purposes of the regulation against the burden the regulation places on interstate commerce. Generally speaking State laws enacted to persuant to the state's police powers are presumed to be valid notwithstanding their effect on interstate commerce; however, if the state law substancially interferes with interstate commerce, it will most likely be held to violate the commerce clause (ie. to be unconstitutional.. the wheat farmer [this is very braud]

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**Federal Government**

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A form of government where states form a union and the sovereign power is divided between the national government and the various states.

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**Tri-Partite Government**

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The national government of the United States of America is composed of three separate branches, each of which acts as a check on the others' power.

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**Executive Branch**

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ie. The president; which has the power to veto legislation passed by congress and to appoint the members of the judiciary;

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**Legislative Branch**

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ie. Congress; which may override the president's veto and which may define the jurisdiction of the judiciary and must confirm judiciary appointees;

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**Judicial Branch**

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ie. The Supreme Court and the federal court system; which has the power to void the acts of the Executive and Legislative branches because they are unconstitutional.

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Commerce Clause

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Empowers Congress "[t]o regulate Commerce with foreign nations, and among several states, and with the Indian Tribes"

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Interstate Commerce

Back 33

commerce between two or more states

Supreme Court has interpreted the Commerce clause to permit Congress to regulate both

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Intrastate Commerce

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commerce in one state


Supreme Court has interpreted the Commerce clause to permit Congress to regulate both as long as the intrastate commerce issue "SUBSTANTIALLY AFFECTS" interstate commerce. (wheat example)

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Appellate Review

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appellate court after all briefs on file, will schedule an ""oral argument"" at which counsel for the parties may briefly outline their positions and at which the court may ask council pointed questions to aid the court's disposition of the appeal

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From arguments raised in briefs and/or oral argument the appellate court can

Back 36

1. Affirm the trial court's judgment and or ruling

2. reverse the trial court's judgment and or ruling and REMAND the case for further proceedings in the trial court

3. reverse the trial's court judgment and or ruling and RENDER a new judgment without further proceedings

If the party that loses before the appellate court chooses it may appeal that appellate court's ruling to the jurisdictions supreme court or equivalent

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Dispositive Motions

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Motions asking the trial court to dispose of a party's claims for affirmative relief, to alter or disregard the jury's verdict or to order a new trial

Front 38

Motion for Directed Verdict

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In a jury Trial, a motion for the judge to take the decision out of the jury's hands and direct a verdict for the moving party because the non-moving party has failed to provide sufficient evidence to prevail on its claim

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Motion for judgment notwithstanding the verdict

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In a jury trial, a motion asking the court to enter judgment in favor of the moving party. despite the jury's verdict in favor of the nonmoving party. This motion a.k.a. (motion for judgment NOV) and the motion for directed verdict have been merged under the federal rules into a motion for judgment as a matter of law.

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Motion for a new trial

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A motion asserting that the trial, whether by jury trial or a bench trial, was so fundamentally flawed- because of error by the trial judge, newly discovered evidence, prejudice, or other reasons-that a new trial is required to prevent a miscarriage of justice

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Appeal

Back 41

Losing party, Asking a court with appellate jurisdiction over the trial court to review and set-aside the judgment..

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Notice of appeal

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evidencing the party's intent to appeal the judgment and/or one or more ruling of the trial court

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Record or Transcript

Back 43

of the pleadings, motions, hearings, and trial before the trial court, and particularly the judgment and any other ruling by the trial court that is being challanged

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Brief

Back 44

outlining the LEGAL arguments supporting the appellant's request to set-aside judgment

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Law

Back 45

MONEY

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Equity

Back 46

NON MONETARY

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Courts of Law

Back 47

empowered only to award wronged parties money or other valuable compensation for their injuries or losses

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Courts of Equity

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empowered to award any manner of non monetary relief, such as ordering a person to do something or to stop doing something

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Specific Performance (courts of equity)

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Ordering a person to do something

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Injunction (courts of equity)

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Ordering a person to stop doing something

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Remedy at Law

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Money Damaged

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Remedy at Equity

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Injunctive relief (non monetary)

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Civil Law

Back 53

Protects us from each other

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Stare Decisis

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The doctrine by which judges are obligated to follow precedents established within a particular jurisdicion

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Precedent

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Prior judicial decision by judges deciding subsequent disputes involving the same or similar facts and the same jurisdiction's law

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Binding Authority

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Any primary sources of law a court MUST follow when deciding a dispute.

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Persuasive Authority

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Any primary or secondary source of law which a court MAY, but which the court is not bound to rely upon for guidance in resolving a dispute

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Legal Reasoning

Back 58

IRAC

Issue-damaged, injuries
Rule-inelegances
Analysis- why rule fits our facts
Conclusion- conclude why?

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Four primary source of domestic law

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-Constitutions
-Statutes
-Administrative Rules and
Regulations
-Common Law

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Constitutions

Back 60

set forth the fundamental rights of the people living in the US, or a given state, describing and empowering the various branches of government, and setting forth limitations on that power.

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Statutes

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enacted by Congress or the legislature or a given state and ORDINANCES adopted by a given locality

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Uniform law, or Model Act

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A given state MAY be based on a uniform law, or a Model act. Each state can depart from the uniform law or model as they see fit

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Administrative Rules and Regulations

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promulgated by federal, state, and local regulatory agencies.

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Common Law

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which is the body of judicial decisions(cases) that interpret and enforce any of the foregoing as well as those relationships among individuals or between individuals and their society which are not subject to constitutional, statutory, or administrative law.

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Hierarchy among sources of American Law

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1. The United states constitution
2.federal statutory law
3.state constitution
4.state statutory law
5.local ordinance
6.administrative rules and rulings
7.common law

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Substantive Law

Back 66

consists of all laws that define, describe, regulate, and create legal rights and obligations
(claim is based on)

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Procedural Law

Back 67

Consists of all laws that established and regulate the manner of enforcing or vindicating the rights established by substantive law
(invoking procedure)

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Criminal Law

Back 68

defines and enforces the obligations of persons to society as a whole

Front 69

Negotiation

Back 69

Informal (between the two parties with or without counsel) maybe assisted by use of, Mini-trial, Neutral Case Evaluation, Summary Jury Trial, and Conciliation

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Mini-Trial

Back 70

a short-form trial presented to a "judge" whose decision is not legally binding, but may assist the parties in evaluating their claims and or defenses

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Neutral Case Evaluation

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A third party agreed to by the parties evaluates each side's position and inform the parties of their strengths and weaknesses.

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Summary Jury Trial

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A short-form trial presented to a "jury" whose decision is not legally binding, but may assist the parties in evaluating their claims and or defences

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Conciliation

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Settlement discussions moderated by a neutral third party

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Mediation

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Non-binding procedure utilizing the services of a neutral third party to assist negotiations and recommend a resolution of the parties' dispute

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Arbitration

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A BINDING form of mediation utilizing either one person or a panel of three persons chosen by the court or agreed to by the parties (or both) GOT TO DO IT

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Jurisdiction

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The authority of a court to hear and decide a specific action. Jurisdiction has many dimensions.

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Personal Jurisdiction

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The authority of a court to hear and decide a dispute involving THE PARTICULAR PARTY before it

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Subject Matter Jurisdiction

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The authority of a court to hear and decide the particular dispute before it

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Original Jurisdiction

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The authority of a court to hear and decide a dispute in the first instance. Generally Speaking, TRIAL COURTS are courts of original jurisdiction

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Appellate Jurisdiction

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The authority of a court to review a prior decision in the same case made by another court

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Personal (or IN PERSONAM)jurisdiction

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in general is a geographic concept. Courts have personal jurisdiction over persons residing and or doing business within a particular country, district, state and sometimes anywhere in the US

Front 82

Long-arm statutes

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All states and US have these, they dictate under what terms a nonresident person or entity, who would otherwise not be subject to the court's jurisdiction, may be nonetheless be required to appear before the court

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contacts

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The key to whehter a nonresident will be subject to a court's jurisdiction is the quantity and nature of the nonresident's contact with the state within which the court sits.

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Jurisdiction over Property (or IN REM)

Back 84

pursuant to which a court's jurisdiction depends on whether the property in question resides within the county, district, or state.

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SENTENCE TO REMEMBER

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If it is relative, competent, material, and isn't excluded for procedural reasons, It goes in.

Front 86

Subject Matter Jurisdiction

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A court's subject matter jurisdiction is usually defined in the statute or constitution creating the court.. Can be limited by
1. The amount in controversy
2. The basis for the relief sought
3.In a criminal case whether the crime is alleged is a misdemeanor or felony

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Amount in Controversy

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The amount we ask for in compliant

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Relief Sought

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either equity relief, or monetary relief

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limited jurisdiction

Back 89

a court whose jurisdiction is limited by one or more of these factors

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General Jurisdiction

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if a court whose jurisdiction is not limited by any factors

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concurrent jurisdiction

Back 91

when more than one court has jurisdiction

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exclusive jurisdiction

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when only one court has jurisdiction

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Federal Question Jurisdiction

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arises if a case involves an alleged violation of the U.S. Constitution, federal statute or regulation, or a treaty between the U.s> and one or more foreign countries

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Diversity Jurisdiction

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arises if
1. the amount in controversy exceeds $75,000
2. the lawsuit is between/
a. citizens of different states
b. a foreign country and citizens of one or more states
c.citizens of a state and citizens or subject of a foreign country

Front 95

Venue

Back 95

Within a particular jurisdiction, the most appropriate location for a trial to be held and from which a jury will be selected

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Standing to Sue

Back 96

An individual or entity must have a SUFFICIENT STAKE in the controversy before he, she or it may bring suit

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Justiciable controversy

Back 97

whether standing exists depends on this.

that is, a real and substantial controversy, not one that is moot, hypothetical, or academic.

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US district Courts

Back 98

Trial Courts of general jurisdiction. Each state has at least one some up to 4

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US Courts of Appeals

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Appellate courts to which litigants in the US district courts have a right to appeal

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US Supreme Courts

Back 100

The "Supreme Court of the land"