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113 Cards in this Set
- Front
- Back
Two notions serve as the basis of all torts:
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wrongs and compensation.
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Generally, the purpose of tort law is to
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provide remedies for the violation of various protected interests.
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Thus, tort law provides remedies for
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acts that cause physical injury or that interfere with physical security and freedom of movement.
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Society recognizes an interest in protecting property, and tort law
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property, and tort law provides remedies for acts that cause destruction of or damage to property.
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Compensatory damages
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the goal is to make the plaintiff whole and put her or him in the same position that she or he would have been in had the tort not occurred.
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Special damages
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compensate the plaintiff for quantifiable monetary losses. Such losses might include medical expenses, lost wages and benefits (now and in the future), extra costs, the loss of irreplaceable items, and the costs of repairing or replacing damaged property.
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punitive Damages .
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to punish the wrongdoer and deter others from similar wrongdoing. Punitive damages are appropriate only when the defendant’s conduct was particularly egregious (reprehensible)
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There are two broad classifications of torts:
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intentional torts and unintentional torts (torts involving negligence).
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A successful defense
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releases the defendant from partial or full liability for the tortious act.
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An intentional tort, as the term implies, requires
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intent. The tortfeasor (the one committing the tort) must intend to commit an act, the consequences of which interfere with another’s personal or business interests in a way not permitted by law. An evil or harmful motive is not required—in fact, the person committing the action may even have a beneficial motive for doing what turns out to be a tortious act.
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An assault is
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any intentional and unexcused threat of immediate harmful or offensive contact—words or acts that create a reasonably believable threat.
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it is a battery—
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an unexcused and harmful or offensive physical contact intentionally performed.
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False Imprisonment |
Moral pressure does not constitute false imprisonment. It is essential that the person being restrained does not wish to be restrained.
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limiteD by the first amenDment When the outrageous conduct consists of speech about
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a public figure, the First Amendment’s guarantee of freedom of speech also limits emotional distress claims.
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Defamation of character involves
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wrongfully hurting a person’s good reputation. The law imposes a general duty on all persons to refrain from making false, defamatory statements of fact about others.
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Defamation of character in writing or in another permanent form (such as a digital recording)
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involves the tort of libel.
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Defamation of Character orally
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involves the tort of slander.
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The tort of defamation also arises when a false statement of fact is
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made about a person’s product, business, or legal ownership rights to property.
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Damages for libel Once a defendant’s liability for libel is established,
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general damages are presumed as a matter of law.
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Damages for slanDer In contrast to cases alleging libel,
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in a case alleging slander, the plaintiff must prove special damages to establish the defendant’s liability. The plaintiff must show that the slanderous statement caused her or him to suffer actual economic or monetary losses.
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fraudulent Misrepresentation
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A misrepresentation leads another to believe in a condition that is different from the condition that actually exists.
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Abuse of process can apply to
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any person using a legal process against another in an improper manner or to accomplish a purpose for which the process was not designed.
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wrongful interference with a Business relationship--Attempting to attract customers in general
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is a legitimate business practice, whereas specifically targeting the customers of a competitor is more likely to be predatory.
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A trespass to land occurs when a person, without permission, does any of the following:
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1. Enters onto, above, or below the surface of land that is owned by another. 2. Causes anything to enter onto land owned by another. 3. Remains on land owned by another or permits anything to remain on it. Actual harm to the land is not an essential element of this tort because the tort is designed to protect the right of an owner to exclusive possession.
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Most states, for instance, allow automobile repair shops to hold a customer’s car (under what is called ____________
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an artisan’s lien) when the customer refuses to pay for repairs already completed.
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. Failure to live up to a standard of care may be an act
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(accidentally setting fire to a building) or an omission (neglecting to put out a campfire).
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The Duty to Warn Business Invitees of Risks. Retailers and other companies that explicitly or implicitly invite persons to come onto their premises have
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a duty to exercise reasonable care to protect these business invitees. The duty normally requires storeowners to warn business invitees of foreseeable risks, such as construction zones or wet floors, about which the owners knew or should have known.
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Judges use proximate cause to
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limit the scope of the defendant’s liability to a subset of the total number of potential plaintiffs that might have been harmed by the defendant’s actions.
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Negligence per se may occur if an individual
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violates a statute or an ordinance providing for a criminal penalty and that violation causes another to be injured.
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good samaritan statutes. Under these statutes, someone who is aided voluntarily by another
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cannot turn around and sue the “Good Samaritan” for negligence.
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Many states have also passed dram shop acts, under which
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a bar’s owner or bartender may be held liable for injuries caused by a person who became intoxicated while drinking at the bar. The owner or bartender may also be held responsible for continuing to serve a person who was already intoxicated.
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Defendants often defend against negligence claims by asserting that the plaintiffs have failed to prove the existence of one or more
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of the required elements for negligence. Additionally, there are three basic affirmative defenses in negligence cases (defenses that a defendant can use to avoid liability even if the facts are as the plaintiff states): assumption of risk, superseding cause, and contributory and comparative negligence.
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This is the defense of assumption of risk
A plaintiff who voluntarily enters into a risky situation, knowing the risk involved, |
will not be allowed to recover. This is the defense of assumption of risk, which requires: 1. Knowledge of the risk. 2. Voluntary assumption of the risk.
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An unforeseeable intervening event may break the causal connection between
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a wrongful act and an injury to another. If so, the intervening event acts as a superseding cause—that is, it relieves the defendant of liability for injuries caused by the intervening event.
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In the past, under the common law doctrine of contributory negligence,
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a plaintiff who was also negligent (failed to exercise a reasonable degree of care) could not recover anything from the defendant. Under this rule, no matter how insignificant the plaintiff’s negligence was relative to the defendant’s negligence, the plaintiff would be precluded from recovering any damages. Today, only a few jurisdictions still hold to this doctrine.
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Many states also have
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trademark statutes.
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Note that a famous mark may be diluted by the use of an identical mark or by the use of a similar mark.
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A similar mark is more likely to lessen the value of a famous mark when the companies using the marks provide related goods or compete against each other in the same market.
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Trademarks may be registered with
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the state or with the federal government.
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A service mark is essentially a trademark that is used to
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distinguish the services (rather than the products) of one person or company from those of another. For example, each airline has a particular mark or symbol associated with its name. Titles and character names used in radio and television are frequently registered as service marks.
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Counterfeit goods
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copy or otherwise imitate trademarked goods, but they are not the genuine trademarked goods.
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Trademarks apply to
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products. A trade name indicates part or all of a business’s name, whether the business is a sole proprietorship, a partnership, or a corporation. Generally, a trade name is directly related to a business and its goodwill.
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Trade names are protected under the common law,
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but only if they are unusual or fancifully used.
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A license in this context is an agreement,
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or contract, permitting the use of a trademark, copyright, patent, or trade secret for certain purposes.
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Patent The applicant must demonstrate to the satisfaction of the U.S. Patent and Trademark Office that |
the invention, discovery, process, or design is novel, useful, and not obvious in light of current technology.
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Now the first person to file an application for a patent on a product or process
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will receive patent protection. In addition, the new law established a nine-month limit for challenging a patent on any ground.
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In sum, almost anything is patentable, except
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the laws of nature, natural phenomena, and abstract ideas (including algorithms 14 ).
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Patent infringement may occur even though Cases (Page 326). South-Western College Pub. Kindle Edition.
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the patent owner has not put the patented product into commerce. Patent infringement may also occur even though not all features or parts of a product are copied. (To infringe the patent on a process, however, all steps or their equivalent must be copied.)
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The reproduction does not have to be exactly
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the same as the original, nor does it have to reproduce the original in its entirety. If a substantial part of the original is reproduced, the copyright has been infringed.
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An exception to liability for copyright infringement is made under
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the “fair use” doctrine. In certain circumstances, a person or organization can reproduce copyrighted material without paying royalties (fees paid to the copyright holder for the privilege of reproducing the copyrighted material).
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Not all aspects of software are protected, however. Courts typically
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have not extended copyright protection to the “look and feel”—the general appearance, command structure, video images, menus, windows, and other screen displays—of computer programs.
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technology has vastly increased the potential
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for copyright infringement via the Internet.
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. A trade secret is basically
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information of commercial value, such as customer lists, plans, and research and development. Trade secrets may also include pricing information, marketing methods, production techniques, and generally anything that makes an individual company unique and that would have value to a competitor.
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Unlike copyright and trademark protection, protection of trade secrets extends
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both to ideas and to their expression. (For this reason, and because there are no registration or filing requirements for trade secrets, trade secret protection may be well suited for software.) Of course, the secret formula, method, or other information
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Additionally, the Economic Espionage Act29 (discussed in Chapter 7) makes
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the theft of trade secrets a federal crime.
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Computer technology is undercutting many business firms’ ability
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to protect their confidential information, including trade secrets.
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Under its provisions, a U.S. company wishing to register its trademark abroad |
can submit a single application and designate other member countries in which the company would like to register its mark. The treaty was designed to reduce the costs of international trademark protection by more than 60 percent.
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border SearCheS
Under ACTA, member nations are required to |
establish border measures that allow officials, on their own initiative, to search commercial shipments of imports and exports for counterfeit goods.
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Liens can be an important tool for creditors because
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they generally take priority over other claims, except those of creditors who have a perfected security interest in the same property. (A security interest is an interest in a debtor’s personal property—called collateral—that a seller, lender, or other creditor takes to secure payment of an obligation.
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A mechanic’s lien
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creates a special type of debtor-creditor relationship in which the real estate itself becomes security for the debt.
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In contrast to a mechanic’s lien, an artisan’s lien
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is possessory.
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A writ of execution is
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an order that directs the sheriff to seize (levy) and sell any of the debtor’s nonexempt real or personal property.
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Many types of property can be garnished, including
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tax refunds, pensions, and trust funds—so long as the property is not exempt from garnishment and is in the possession of a third party.
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If the homeowner defaults, or fails to make the mortgage payments, the lender has the right to
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foreclose on the mortgaged property. Foreclosure
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The lender must strictly comply with the
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state statute governing foreclosures.
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exempted Personal Property Personal property that is most often exempt from satisfaction of judgment debts includes the following:
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1. Household furniture up to a spec. $ amount. 2. Clothing and certain personal possessions, i.e. family pictures or a Bible. 3. A vehicle for transportation (at least up to a specified dollar amount). 4. Certain classified animals, like livestock but incl. pets. 5. Equipment that the debtor uses in a business or trade, such as tools or prof instruments, up to a specified dollar amount.
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Bankruptcy proceedings are held in federal bankruptcy courts, which are under the authority of U.S. district courts. Rulings from bankruptcy courts
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can be appealed to the district courts.
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The Bankruptcy Code requires that the clerk of the court give all consumer debtors
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written notice of the general purpose, benefits, and costs of each chapter under which they might proceed. In addition, the clerk must provide consumer-debtors with information on the types of services available from credit counseling agencies.
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involuntary Bankruptcy occurs when
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the debtor’s creditors force the debtor into bankruptcy proceedings.
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When the debtor has no assets—called a “no-asset case”—
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creditors are notified of the debtor’s petition for bankruptcy but are instructed not to file a claim. In no-asset cases, the unsecured creditors will receive no payment, and most, if not all, of these debts will be discharged.
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Employment relationships have traditionally been governed by the common law doctrine of
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employment at will. Under this doctrine, either party may terminate the employment relationship at any time and for any reason, unless doing so violates an employee’s statutory or contractual rights. |
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Exceptions to the Employment-at-Will Doctrine Because of the harsh effects of the employment-atwill doctrine for employees, courts have carved out various exceptions to it. These exceptions are based on
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contract theory, tort theory, and public policy.
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The Fair Labor Standards Act (FLSA) extended
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wage-hour requirements to cover all employers engaged in interstate commerce or in producing goods for interstate commerce, plus selected other types of businesses.
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Children under fourteen years of age
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are allowed to do only certain types of work, such as deliver newspapers, work for their parents, and be employed in entertainment and (with some exceptions) agriculture. Children
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The FMLA requires employers that have fifty or more employees to provide an employee with
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up to twelve weeks of unpaid family or medical leave during any twelve-month period. The FMLA expressly covers private and public (government) employees who have worked for their employers for at least a year.
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Occupational Safety and Health Act |
The act imposes on employers a general duty to keep the workplace safe. |
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Whenever a work-related injury or disease occurs,
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employers must make reports directly to OSHA.
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WorkErs’ compEnsation rEquirEmEnts In general, the only requirements to recover benefits under state workers’ compensation laws are:
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1. The existence of an employment relationship. 2. An accidental injury that occurred on the job or in the course of employment, regardless of fault. (An injury that occurs while an employee is commuting to or from work usually is not covered because it did not occur on the job or in the course of employment.)
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Generally, deceptive advertising occurs if a reasonable consumer
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would be misled by the advertising claim. Vague generalities and obvious exaggerations are permissible. These claims are known as puffery.
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Advertising that appears to be based on factual evidence but in fact is not reasonably supported by some evidence
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will be deemed deceptive.
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Advertising that contains an endorsement by a celebrity may be deemed deceptive if
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the celebrity does not actually use the product.
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Deceptive advertising occurs
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in the online environment as well as offline.
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labels on fresh meats, vegetables, and fruits
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must indicate where the food originated so that consumers can know whether their food was imported.
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The FDA also has the responsibility of ensuring that drugs are
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safe and effective before they are marketed to the public.
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The CPSC conducts research on
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the safety of individual consumer products and maintains a clearinghouse on the risks associated with various products.
Remove from the market any products it believes to be imminently hazardous. |
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Congress enacted the Equal Credit Opportunity Act (ECOA) as an amendment to the TILA. The ECOA prohibits
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the denial of credit solely on the basis of race, religion, national origin, color, gender, marital status, or age.
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amendmenTs To CrediT-Card rules
Monthly bills must be sent to cardholders |
twentyone days before the due date.
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Fair Debt Collection Practices Act The act applies only to specialized debt-collection agencies and attorneys |
who regularly attempt to collect debts on behalf of someone else, usually for a percentage of the amount owed.
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An injured party may sue a business polluter in tort under the
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negligence and strict liability theories discussed in Chapters 12 and 13. A negligence action is based on a business’s alleged failure to use reasonable care toward a party whose injury was foreseeable and was caused by the lack of reasonable care.
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Businesses that engage in ultrahazardous activities—such as the transportation of radioactive materials—
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are strictly liable for any injuries the activities cause. In a strict liability action, the injured party does not have to prove that the business failed to exercise reasonable care.
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CO2 was a pollutant that endangered public health. ◀ The EPA later concluded that greenhouse gases, including CO2 emissions,
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do constitute a public danger.
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Violations of the clean air act Those who knowingly violate the act may be subject to criminal penalties, including fines of up to |
$1 million and imprisonment for up to two years (for false statements or failure to report violations). Corporate officers are among those who may be subject to these penalties.
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CWA Clean Water Act The CWA prohibits the filling or dredging of |
wetlands unless a permit is obtained from the Army Corps of Engineers.
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Under THe oil Pollution act, any oil facility, oil shipper, vessel owner, or vessel operator that discharges oil into navigable waters or onto an adjoining shore
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may be liable for clean-up costs, as well as damages.
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Throughout history, property has continued to be an indicator of
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family wealth and social position. In the Western world, the protection of an individual’s right to his or her property has become one of our more important rights.
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The exterior boundaries of land extend
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down to the center of the earth and up to the farthest reaches of the atmosphere (subject to certain qualifications).
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The rights that accompany a fee simple absolute include
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the right to use the land for whatever purpose the owner sees fit.
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Persons who share ownership rights simultaneously in particular property (including real property and personal property) are said to have
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concurrent ownership. There are two principal types of concurrent ownership: tenancy in common and joint tenancy. Concurrent ownership rights can also be held in a tenancy by the entirety or as community property, although these types of concurrent ownership are less common.
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The term tenancy in common refers to a form of co-ownership in which
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each of two or more persons owns an undivided interest in the property.
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In most states, it is presumed that a co-tenancy is a
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tenancy in common unless there is specific language indicating the intent to establish a joint tenancy (discussed next).
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In a joint tenancy, each of two or more persons owns
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an undivided interest in the property, but a deceased joint tenant’s interest passes to the surviving joint tenant or tenants.
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An easement is
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the right of a person to make limited use of another person’s real property without taking anything from the property.
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a profit is the
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right to go onto land owned by another and take away some part of the land itself or some product of the land.
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license In the context of real property,
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a license is the revocable right of a person to come onto another person’s land. It is a personal privilege that arises from the consent of the owner of the land and can be revoked by the owner.
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specific warranties. A sale of real estate, however, is a more complicated transaction that involves
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certain formalities that are not required in a sale of goods.
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mArketAble title The question of title to a particular parcel of property is especially important to the buyer. A grantor (seller) is obligated to transfer
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marketable title, or good title, to the grantee (buyer). Marketable title means that the grantor’s ownership is free from encumbrances (except those disclosed by the grantor) and free of defects.
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, most states imply a warranty—the implied warranty of habitability—in the sale of new homes. The seller of a new house warrants that
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it will be fit for human habitation even if the deed or contract
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A quitclaim deed offers
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the least protection against defects in the title.
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Every state has a recording statute, which allows deeds to
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be recorded in the public record. Deeds generally are recorded in the county in which the property is located. The buyer typically pays the required fee because he or she is the one who will be protected by recording the deed.
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Recording a deed gives notice to the public that
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a certain person is now the owner of a particular parcel of real estate. By putting everyone on notice as to the true owner, recording a deed prevents the previous owners from fraudulently conveying the land to other purchasers.
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an ultimate ownership right in all land in the United States. This right, known as eminent domain, is sometimes referred to as
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the condemnation power of government to take land for public use. It gives the government the right to acquire possession of real property in the manner directed by the U.S. Constitution and the laws of the state whenever the public interest requires it.
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When the government uses its power of eminent domain to acquire land owned by a private party, a taking occurs. Under the takings clause of the Fifth Amendment to the U.S. Constitution (see Appendix B), the government must
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pay “just compensation” to the owner. State constitutions contain similar provisions.
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. inverse condemnation, occurs when
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a government simply takes private property from a landowner without paying any compensation, thereby forcing the landowner to sue the government for compensation.
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The rules and regulations that collectively manage the development and use of land are known as
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zoning laws. --were first used in the US to segregate slaughterhouses, distilleries, kilns, and other businesses that might pose a nuisance to nearby residences. The growth of modern urban areas has led to an increased need to organize uses of land. Today, zoning laws enable the government of a municipality —a town, city, or county—to control the speed and type of development within its borders by creating different zones and regulating the use of property allowed in each zone.
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