49 Cards in this Set
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Damages available in tort cases
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Compensative- designed to make the victim whole again
Nominal- Damages in name only. Allows plaintiff to seek punitive damages
Punitive- punishes tortfeasor for willingly engaging in harmful conduct, but to deter others from engaging in harmful conduct
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Intentional torts
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taking intentional action to harm the plaintiff
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Assault
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Intentional placing of a person in fear or apprehension of an immediate, offensive bodily contact
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Battery
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Intentional, unwanted, and offensive bodily contact
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Defamation
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Intentional publication of a false statement that is harmful to the plaintiff's reputation. (why the guy didn't get a promotion from allegedly stealing a bike)
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False Imprisonment
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intentional restraint or confinement of a person against that person's will and without justification
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Trespass to reality
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Intentionally entering the land of another or causing an object to be placed on the land of another without the landowner's permission.
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Conversion
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Intentional permanent removal of property from the rightful owner's possession and control.
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Disparagement
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Intentionally defaming a business product or service
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Intentional interference with a contract
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knowingly and successfully taking action for the purpose of enticing a third party to breach a valid contract with the plaintiff.
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Tort
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injury to another person or property; a civil wrong
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Negligence
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Failure to live up to the standard of care that a reasonable person would met to protect others from unreasonable risk of harm
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Tort of negligence
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To prove negligence of torts the plaintiff must be able to prove
1. duty
2. breach of duty
3. causation
4. damages
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Res ipsa loquitur
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"The thing speaks for itself."
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Defense to negligence
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1. Contributory negligence (both plaintiff and defendant are negligent)
2. Comparative negligence- (% of fault on both sides)
3. Assumption of the Risk (plaintiff knew the risks and voluntarily subjected him/herself to it)
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Negligence in Product Liability
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1. Defendant manufacturer owed a duty of care to the plaintiff
2. That the defendant breached that duty of care
3. That this breach of duty caused the plaintiff's injury
4. The plaintiff actually suffered compensable injury
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Defense to Negligence based product liability action
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-Allow the manufacturer to raise the defense of...
1. Contributory
2. Modified comparative
3. Pure comparative
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Defenses to a Negligence based product liability also include the terms...
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-Statute of limitations- actions arising more than a specified number of years after the cause of the action arises
-Statute of repose- arising more than a specified number of years after the product was purchased
-State-of-the-art defense- product liability defense based on adherence …
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Breach of Warranty-- Implied warranty of merchantability
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A warranty that a good is reasonably fit for ordinary use
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To meet the standard of merchantability the goods must...
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1. pass without objection
2. be fair or average quality within the description
3. be fit for the ordinary purpose for which the goods are used
4. must run with quality and quantity within each unit and among all units involved
5. must be adequately contained, packaged, and labeled
6.…
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Defenses to breach of warranty actions
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1. purchaser failed to give the seller notice within a reasonable time after s/he knew of the breach of warranty
2. The existence of a disclaimer
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Disclaimer
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disavowal of liability for breach of warranty by the manufacturer or seller of a good in advance of the sale of the good
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Market share liability--Market share theory
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A theory of recovery in liability cases according to which damages are apportioned among all the manufacturers of a product based on their market share at the time of the plaintiff's cause of action arose.
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Liability of accountants to third parties
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1. Ultramares Doctorine- rule making accountants liable only to those in a privity-of-contract relationship with the accountant
2. Restatement rule- accountants will be liable to a limited class of intended users of the information
3. Reasonable foreseeable rule- used to extend liabilit…
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Real property
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land and everything permanently attached to it
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Interests in real property
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1. Fee simple absolute
2. Conditional estate
3. Life estate
4. Future interest
5. Leasehold estates
6. Easements
7. Co-Ownership
8. Condominiums and Cooperatives
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Requirements to voluntary transfer real property
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-execution
-delivery
-acceptance
-recording
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Real property can be transferred involuntarily by...
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1. Adverse possession
2. Condemnation
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Adverse posession
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Acquiring ownership of reality by openly treating it as one's own with neither protest or permission from the real owner for a statutorily established period of time
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Condemnation
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The process whereby the government acquires the ownership of private property for public use over the protest of the owner
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Restrictions on the use of real property
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1. Restrictive covenants-promises by the owner to not use the land in particular ways
2. Zoning
3. Police power
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Personal property
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All property that is not real property; may be tangible or intangible.
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Voluntary transfer of personal property
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Title- ownership of property.
Donative Intent- transferring ownership to another at the time the donor makes actual or constructive delivery of the gift to the donee.
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Involuntary transfer of real property
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1. Abandoned property
2. Lost property
3. Mislaid property- differs from lost property by owner intentionally placing property somewhere but forgetting its location
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Types of Intellectual Property
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1. Trademarks
2. Trade secrets- information about a product unknown to the public for a company's competitive advantge
3. Patents
4. Copyrights
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Agency
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A fiduciary relationship between two persons in which one (the agent) acts on behalf of, and is subject to the control of the other (the principal).
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Types of agency relationships
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1. Principal-agent relationship: one in which the principal gives the agent expressed authority to act on the former's behalf
2. Employer- Employee relationship
3. Employer- Independent contractor
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4 manners in which agency relationships can be created
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Expressed agency: formed through oral or written agreement
-Agency by implied authority: customs and circumstances determine agent's authority
-Ratification by principal: principal accepts unauthorized agreement by agent thus ratifying the relationship
-Apparent agency:
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Principal's duty to agent
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-Duty of compensation
-Duty of Reimbursement and Idemnification
-Duty of cooperation
-Duty to provide safe working conditions
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Agent's Duty to Principal
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-Duty of loyalty
-Duty of obedience
-Duty of accounting
-Duty of performance
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Principal's and Agent's Liability to Third Parties
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Contracts
-Torts
-Criminal Activity
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Principal's and Agent's Liability to Third Parties
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-Contracts
-Torts
-Criminal Activity
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Termination of the Principal-Agent Relationship
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-Termination by Agreement
-Termination by Operation of Law (death, bankruptcy, etc...)
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Limited Liability Companies
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A hybrid corporation partnership, similar to the subchapter S corporation but with far fewer restrictions.
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Roles of groups in Governing a Corporation
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-Role of Shareholders: vote at meetings using proxies
-Role of Board of Directors: must 1.authorize and approve payment of dividends
2. select, supervise, and remove executive personnel
3. determine executives' compensation
4. adopt or appeal corporate bylaws
5. establish policie…
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Closely held corporation
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A corporation whose stock is not traded on the national securities exchange but is privately held by a small group of people
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Public corporations
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A corporation whose stock is traded on at least one national securities exchange
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Business Judgement Rule
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A rule that says corporate officers and directors are not liable for honest mistakes of business judgement
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Corporate Opportunity Doctrine
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A doctrine, established by case law, that says corporate officers, directors, and agents cannot take personal advantage of an opportunity that in all fairness should have belonged to the corporation.
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LEGS 3010: CHAPTER 12