LEB Exam II Study Guide 1 Chapter 8 The Law of Torts a NEGLIGENCE i interests in economic well being and personal safety are sufficiently important to be protected from the careless acts of others Each of us has a duty as we live our lives to exercise care not to injure others ii To establish a right of recovery 1 that the defendant owed the plaintiff a duty of due care 2 that the defendant breached that duty of due care 3 that the defendant s breach proximately caused the injury a causation in fact defendant s carelessness must be a substantial factor in bringing about the injury some courts it must be the defining cause b factual causation legal causation proximate causation 4 that the plaintiff suffered injury iii Independent Intervening 1 such a cause is one that emanates from a third party or source to disrupt the causal connection between the defendant s careless act and the plaintiff s injury iv Statue of Limitations 1 typical tort statue of limitations is two years b INTENTIONAL TORTS i to establish an assault and battery case plaintiff must prove 1 The defendant s affirmative conduct a the action must be purposeful 2 intent a intent to create an offensive contact to the plaintiff s body or the apprehension of it in the plaintiff 3 the plaintiff s injury a a threat of future contact or a threat by a defendant far away is insufficient ii Defamation 1 plaintiff must generally establish five elements to prevail a 1 defendant made a statement about the plaintiff as though it were a fact rather than an opinion b 2 the statement about plaintiff was defamatory c 3 the statement was false d 4 the statement was communicated by the defendant to at least one other person e 5 the plaintiff s reputation was harmed 2 Libel written defamation 3 Slander oral defamation 4 Statue of limitations one year c SPECIAL PROBLEMS i an employer is uniformly held liable for the torts of employees if the employees are acting within the scope of their employment at the time of the injury d BUSINESS TORTS i Intentional interference with business relationships 1 a third party who wrongfully interferes with an existing contract has committed a tort ii unfair competition 1 Lanham Act prohibits unfair competition such as misleading advertising any false description or representation 2 Chapter 9 Intellectual Property a TRADEMARKS i any distinctive word phrase symbol or design adopted for the purpose of identifying the origin of goods being offered for sale 1 protects trade dress very distinctive packaging or nonfunctional product design itself ii to be legally protectable must serve as a source identifier 1 the plaintiff mark owner has the burden of proving that the defendant s mark is so similar to the plaintiff s that the defendant s use will produce a likelihood of confusion in buyers minds as to the true origin of the goods or services iii genericide when a mark loses protection by becoming generic through usage iv anti dilution statues prohibit uses of some marks even where the goods or services are not similar and there is no likelihood of confusion 1 must prove likelihood of blurring or tarnishment b TRADE SECRETS i any type of knowledge that is not generally known and is not readily available through legal means if the knowledge gives its owner a competitive advantage over rivals who do not have the knowledge 1 when a company has knowledge cannot protect it as both a patent and trade secret ii To bring about a trade secret misappropriation case a plaintiff must prove 1 the information actually was a trade secret 2 the plaintiff had maintained reasonable measures to protect secrecy 3 the defendant improperly acquired used or disclosed the trade secret information iii Misappropriation 1 one of the most common forms is the breach of a duty of confidentiality An obligation to keep information confidential to not disclose it to others and to not use it for any purpose than to benefit the owner can be express or implied iv Doctrine of Inevitable Disclosure 1 may prevent an employee who has left Company A from working for Company B if the employee s new job duties will inevitably cause the employee to rely upon knowledge of the former employer s trade secrets c PATENT LAW i in exchange for disclosing the invention the inventor patentee receives a 20 year from the date the patent application was first filed exclusive right to make use or sell the patented invention 20 year patent is nonrenewable ii requirements for patentability 1 patentable subject matter 2 useful 3 novel 4 the result of a patent application that was originally filed within one year after certain actions that revealed the invention 5 nonobvious iii when a patent owner sues for infringement he is alleging that the defendant infringed one or more of the claims in the patent d COPYRIGHTS i currently life of the author plus 70 years ii Scenes a faire 1 standard techniques necessary to convey particular ideas such as descriptions of the stereotypical Jewish mother 2 if such stock characters are used they are not protected because they are treated as having fallen into the public domain 3 facts are not protected but certain items such as directories are protected if they meet the constitutional minimum for copyright protection if it features an original selection or arrangement a others may copy the underlying facts from the publication but not the precise words used to present them 3 Chapter 10 Nature and Classification of Contracts a NATURE OF A CONTRACT i a promise or set of promises for the breach of which the law gives a remedy or the performance of which the law in some way recognizes as a duty b CLASSIFICATION OF CONTRACTS i Bilateral most frequent and Unilateral Contracts 1 Bilateral a a promise for a promise a supplier promises to deliver 10 000 steel wheels a manufacturer agrees to a set price b offeror is the person making the promise the offeree is the one to whom it is made 2 Unilateral a phrased in such a way that they can be accepted only by the performance of a particular act i promise by a TV station to pay 5 000 to the first person who brings to its executive offices any piece of a fallen satellite b typically used in a broker relationship ii Valid Voidable and Void Contracts 1 Valid a contract in which all of the required elements are present and is enforceable against both parties 2 Voidable a contract in which one of the parties has the legal right to withdraw from it at a later time without liability a contracts in which