Business Law Chapter 5 And 6

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Tort

Back 1

A wrong. There are 3 categories of torts: 1. Intentional torts, 2. Unintentional torts, (negligence) and 3. strict liability.

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intentional tort

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A category of torts that requires that te defendant possessed the intent to do the act that caused the plaintiff's injury.

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Assualt

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1. The threat of immediate harm or offensive contact, or 2. Any action that arouses reasonaable apprehension of imminent harm. Actual physical contact is not necessary.

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Battery

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Unauthorized and harmful or offensive direct or indirect physical contact with another person that causes injury.

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Transferred intent doctrine

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Applies to a situaqtion in which a person acts with the intent to injur one person and ends up injuring another. Thelaw transfers the perpetrator's intent to the actual victim of the act who can then bring a lawsuit.

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False imprisonment

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The intentional confinement or restraint of another person without authority or justification and without that person's consent.

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Merchant protection Status

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Statutes that allow merchants to stop, detain, and investigate suspected shoplifters without being held liable to false imprisonment if: 1. there are reasonable grounds for the suspicion, 2. Suspects are detained for only a reasonable time, and 3. Investigations are conducted in a reasonable manner

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Tort of misapropriation of the right to publicity

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An attempt by another person to approximate a living person's name or identity for commercial purposes. Such as whenever a person uses a celebrity's name to endorse a product without his consent. In such cases the plaintiff can recover: 1. The unauthorized profits made by the offending party, 2. obtain injunction to prevent future use.

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what type of information has no claim to the right to privacy

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If there is public information there is no claim to privacy.

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Defamation of character

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False statements made by one person about another. In court, the plaintiff must prove, 1. the defendant made an untrue statement of fact about the plaintiff and 2 the statemetn was intentionally or accidentally published to a third party.

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Libel

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A false statement that appears in a letter, newspaper, magazine, book, photograph, movie, video, and so on.

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Slander

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Oral defamation of character.

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Product disparagement

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False statements about a competitor's product, services, property, or business repurtation, also known as trade libel. Have to show: 1. Made and untrue statement about products services property or repuration, 2 published it to a third party, 3 knew the statement wasn't true, 4, made the statement aliciously.

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Intentional misrepresentation

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The intentional defrauding of a person out of money property or something else of value, also known as deceit. Conditions, 1 the wrongdoer made a false representation of material fact. 2. The wrongdoer had knowledge that the representation was false and intended to decieve the innocent party. 3. The innocent party justifiably relied on the misrepresentation. 4. The innocent party was injured.

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Intentional infliction of emotional distress.

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A tort that says a person whose extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another peroson is liable for that emotional distress. Have to prove the conduct of the defendant was " so outrageous in character andso extreme in degree that it goes beyond all possible bounds of decency to be regarded as atrocious and utterly intolerable in a civilized society.

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Malicious prosecution

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A lawsuit in which the original defendant sues the original plaintiff. In the second lawsuitm, the defendant becomes the plaintiff and vice versa. Must prove, 1. plaintiff in original lawsuit instituted or was responsible for instituting the original lawsuit. 2. There was no probable cause for the first lawsuit. (it was frivilous.) 3. The plaintiff brought the lawsuit with malice. 4. The original lawsuit was terminated in favor of the original defendant (now the plaintiff), 5 the current plaintiff suffered injury as result of the original lawsuit.

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Unintentional tort

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

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To be successful in a negligence case:

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1, The defendant must owe a duty of care to the plaintiff.
2. The defendant breached that duty of care.
3. The plaintiff suffered injury.
4. The defendant's negligent act was the actual cause of the plaintiffs injuries.
5. The defendant's negligent act was the proximate cause of the plaintiff's injuries. the defendant is liable for only forseeable consequences of her negligent acts.

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Duty of care

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The obligation people owe each other not to cause any unreasonable harm or risk.

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Breach of the duty of care

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A failure to exercise care or to act as a reasonable person would act.

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Injury

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A plaintiff's personal injury or damage to his or her property that enableshim or her to recover monetary damages for the defendant's negligence.

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Actual cause

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The acutal cause of negligence. A person who commits a negligent act is not liable unless actual cause can be prove. Also called causation in fact. But for test. But for the defendant's actions I wouldn't have been injured.

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Proximate cause

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A point along a chain of events caused by a negligent party after which this party is no longer legally responsible for the consequences of his or her actions. General test isforeseeability.

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Professional malpractice

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The liability of professional who breaches his or her duty of ordinary care.

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Negligent inflictionof emotional distress

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A tort that permits a person to recover for emotional distress caused by the defendant's negligent conduct.

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Negligence per se

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A tort in which the violation of a statute or an ordinance constitutes sthe breach of duty of care. Must prove that 1. A statute existed. 2. The statute was enacted to prevent the type of injury suffered, and 3, the plaintiff was within a class of persons meant to be protected by the statutte.

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Res ipsa loquitur

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A tort in which the presumption of negligence arises because 1, the defendant was in exclusive control of the situation and 2, the plaintiff would not have suffered injury but for someone's negligence. The burden switches to the defendant to prove that he was not negligent.

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Good Samaritan law

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A statute that relieves medical professionals from liability for ordinary negligence when they stop and render aid to victims in emergency situations.

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Superseding or intervening event

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An event for which a defendant is not responsible. The defendant is not liable for injuries caused by the superseding or intervening event.

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Assumption of risk

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A defense a defendant can use against a plaintiff who knowingly and voluntarily enters into or participates in a risky activitiy that results in injury.

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4 Defenses against negligence:

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1. Superseding or intervening event,
2. Assumption of the risk
3. Contributory negligence,
4. Comparative negligence.

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Contributory negligence

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A docrine that says a plaintiff who is partially at fault for his or her own in jury cannot recover against the negligent defendant.

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Comparative negligence

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A doctrine under which damages are apportioned according to fault.

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Strict liability

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Liability without fault. That is, a participant in a covered activity will be held liable for injuries even if they were not negligent. Holds that 1. there are certain activities that have high risk even if reasonable care is taken and 2. the public should have eans of compenstaion if such injury occurs.

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Intentional torts against persons

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1. Assualt
2. Battery
3. False Imprisonment
4. Misappropriation of the Right to Publicity
5. Invasion of privacy
6. Defamation of character.
7. Disparagement or trade libel.
8. Intentional Misrepresentation (Fraud)
9. Intentional infliction of emotional distress.
10. malicious prosecution.

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Product liability

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The liability of manufacturers, sellers, and others for the injuries caused by defective products.

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Negligence

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A tort related to defective products in which the defendant has breached a duty of due care and caused harm to the plaintiff.

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Intentional misrepresentation

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A tort in which a seller or lessor fraudulently misrepresents the quality of a prodcut and a buyer is injured thereby. Also known as fraud. Occurs when sellor 1. Affirmatively misrepresents the quality of the product or 2. conceals a defect in it.

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Strict liability when it relates to products

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A tort doctrine that makes m anufactures, distributors, wholesalers, retailers, and others in the chain of distribution of a defective product liable for the damages caused by the defect.

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Chain of distribution

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All manufacturers, distributors, wholesalers, retailers, manufacturers, lessors, and others involved in a transsaction

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Who can recover for srtict liability?

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Anyone who comes into contact with the product and suffers injury.

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What damages can be awarded under strict liability?

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Damages for personal injury, property damage, but economic losses (lost salary) generally not allowed.

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Product defect

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Something wrong, inadequate, or imporper in the manufacture, design, packaging, warning, or instructions about a product.

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when does a Defect in manufacture ocur?

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A defect that occurs when a manufacturer fails to 1. properly assemble a product, 2. properly test a product, or 3. adequately check the quality of the prodcut.

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Defect in design

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A defect that occurs when a product is improperly designed. Such as otys designed with removable parts that could be swallowed by small children.

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Crashworthiness doctrine

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A doctrine that says automobile manufacturers are under a duty to design automobiles so they take into account the possibility of harm from a person's body striking something inside the automobile in the case of a car accident.

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Failure to warn

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A defect that occurs when a manufacturere does not place a warning on the packaging of products that could cause injury if the danger is unknown.

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Defect in packaging

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A defect that occurs weh a product has been placed in packaging that is insufficiently tamperproof.

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Failure to provide adequate instructions

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

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Punitive damages

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Monetary damages that are awarded to punish a defendant who either intentionally or recklessly injured the plaintiff.

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Defenses to product liability

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Generally known dangers
Government contractor defense
Assumption of the risk
Misuse of the product
Correction of a product defect
Supervening event
Statute of limitationm
Statute of repose
Contributory negligence and comparative fault

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Generaly known dangers

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A defense that acknowledges that certain products are inherently dangerous and are known to the general population to be so.

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Government contractor defense

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A defense that says a contractor who was provided specifications by the government is not liable for any defect in the product that occurs as a result of those specifications. They must prove that 1. the preise specifications for the product were provieded by the govt., 2. the product conformed to those specifications, 3. the contractor warned the govt. of known defects/dangers of the product.

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Misuse

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A defense that relieves a seller of product liability if the user abnormally misused the product. Products must be designed to protect against frsseeable misuse.

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Assumption of risk

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Must show the plaintiff knew about the risk and voluntarily assumed it.

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Correction of a product defect

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Manufacturer must 1. notify purchasers and users of the defect, and 2. Correct the defect.
must make reasonable effort to notify them. Sending letters and placing notices in newspaper. Usually if they do this and the person doesn't see it the court still finds them liable

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Supervening event or intervening event related to product liability...

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An alteration or modification of a product by a party in the chain of distribution that absolves all prior sellers from strict liability.

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Statute of limitations

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A statute that requires an injured person to bring an action within a certain number of years from the time that he or she was injured by a defective product. Doesn't begin to run until the plaintiff usffers an injugy.

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Statute of repose

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A statute that limits the seller's liability to a certain number of years from the date when the product was first sold.

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Contributory negligence

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A defense that says that a person who is injured by a defective product but has been negligent and has contributed to his or her own injuries cannot revcover from the defendant.

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Comparative fault

Back 61

A doctrine that applies to strict liability actions that says a plaintif who is contributorily negligent for his or her injuries is responsible for a proportional share of the damages.