Exam 3 for Legal Environmental of Business Fraud FIVE elements you need to win a fraud case ALL OF THEM a False representation of a major material fact b Knowingly made Intend to deceive c d Justifiable reliance e Damage Tort the word tort means wrong legally a tort is a civil wrong other than a breach of contract 1 Intentional tort 2 Negligent tort failure to use such care as a reasonably careful person would use under similar circumstance Elements to win a negligent case A Duty Good Samaritan statute you are not liable to rescue someone if you are negligent TWO exception of Good Samaritan stature a b If compensation is expected If there is willful misconduct Court Case Pasgraf VS Long Island Relroad 1928 Case summary http www lawnix com cases palsgraf long island railroad html Holding there is no duty owned to a unforeseeable plaintiff B Breach the duty off somebody C Proximate cause needs a rational relationship Definition must be reasonable connection between the negligent of defendant and the damages suffered by the plaintiff D Damages use damages as a result Duty owned to people who come on the property 1 Trespass one comes on to the property without permission Generally there s no duty to keep the property safe for a trespass Exception a attractive nuisance doctrine swimming pool b A willful injury 2 Licensee one who goes on the property with the owner consent You need to know the damager need to write a danger note warn note 3 Invitee one come on under protperty under business situation Possible methods to defend negligence 1 Contributory negligence defense absolutely barred the plaintiff from recovery if the plaintiff s own fault contributed to the injury in any degree however slight 2 Comparative responsibility The trend today however in the great majority of states is to offset the harsh rule of contributory negligence with the doctrine comparative responsibility Steps a The jury assign a percentage of total fault to the plaintiff b The plaintiff will recover his negligence was not greater than the defendant s c Plaintiff s award is diminished by the amount proportional to the percentage negligence of his negligence 3 Assumption of the risk Remedy the legal procedure to the enforce a right Types of remedy a Damages b Injunction a court order requiring a person to do or referring doing a particular thing Two kinds of injunction a Restraining order keep you from doing something mental abuse divorce case b Mandatory injunction specific performance to make you do something Equity will not be relieved if there is adequate remedy at law Law court damages Equity court injunction Real estate you can get injunction Damage 1 Compensatory damages damages for the actual laws suffer Eg a Medical bills b Loss of wages c Pain suffering Mitigation the non breaching party under a duty to mitigate their damages 2 Nominal a taken awarded to a legal establishment that a legal right has been valid even through there s no economic harm has been done 3 Liquidated damage amount which a party to the contract agreement must be paid in the event of branch Liquidated damage must be a reasonable amount 4 Punitive damages awarded to the plaintiff to punish the defendant for his willful malicious act Normally for intentional tort In Ohio the winner is not entitled to recover for paying the attorney fee Exception a b c d Frivolous lawsuit In conjunction with intentional tort If the contract provides for attorney fee If allowed by specific statute Criminal Law all crimes are defined by statute legislature makes the statute What is the legislature a Federal criminal statute congress b State criminal statute state legislature Ohio Columbus c Municipality criminal statute d City e The state Crimes are classified as a Misdemeanors a crime punished by less than one year in prison In Ohio less than SIX months b Felonies crime punished over ONE year in prison In Ohio more than SIX months Crime is also public record Minor misdemeanors no jury trail TWO elements for criminal offence a The act b The intent Case Mapp VS Ohio Case summary http www essortment com review mapp vs ohio 33206 html Holding All evidence obtained by searches and seizures in violation of the Constitution is inadmissible in a state court Exclusionary rule improperly attain evidence is excluded from trail Search Warrant Steps a Have to have affidavit b Issued by judge describes the things to be sealed and the places to be searched Police are also allowed to seal things that are not on the search warrant 1 Plain view 2 Items seals incident to a lawful arrest Arrest Warrant issued by a judge after probably cause established that a named person d a crime Arrested without warrant 1 Any felonies with probably cause ect 2 Misdemeanor committed in the office present Case Miroda VS Arizona Summary http www east buc k12 ia us 02 03 AG mir kc1 htm 1 The police must inform the suspect that he has the right to remain silent 2 Any statement he does make maybe used as the evident against him 3 He has the right to have an attorney present during questioning If he cant afford an attorney one would be appointed for him 4 After such warning has been giving the police may question suspect only he volunteerly knowingly intelligently waive his her rights No warning 1 No confession is obtained 2 A None custodial interrogation Custodial interrogation the suspect is deprived of his freedom of action 3 A spontaneous un solicited confession Case Gibeon VS Wainwright Summary http www pbs org wnet supremecourt rights landmark gideon html Holding in felony cases are entitled to attorney at the state expense Criminal procedure 1 Prosecutor branch of executive 2 FOUR methods to convict a Confession b c Testimony of a complex d Circumstantial evidence 1 Physical 2 Mean motive opportunity Eye witness Advantage of Corporation 1 Limited liability 2 Opportunity to raise capital 3 Connect legality 4 Perpetuate existence 5 Transfer ability of share Limited liability to the amount of investment Exception to the liability a Piercing the corporate veil the court finds the corporation was used to default or avoid obligation the shareholder maybe hold personally liable taxes Professional liability b c Disadvantage of Corporation 1 Double taxation a Corporation pay for what it earns b Shareholder pays tax on dividends 2 Cost to form a corporation 3 Additional other taxes a Social security tax b Work compensation tax c Unemployment tax To avoid the tax the owner may transfer the
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