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BCOR 320: Exam 2
Tort
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A violation of a duty imposed by the civil law
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intentional torts
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Involve harm caused by deliberate action
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Defamation
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making a false statement about someone - written or verbal
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Libel
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written defamation
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Slander
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oral defamation
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Element
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a fact that a plaintiff must prove to win a lawsuit
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Elements in a defamation case
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1. Defamatory statement - statement likely to harm another person's reputation
2. Falseness - the statement must be false
3. Communicated - the statement must be communicated to at least one other person other than the plaintiff
4. Injury - plaintiff must generally show some injury
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Slander per se
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Law is willing to assume injury by defamation without requiring the plaintiff to prove it
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Opinion
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Plaintiff must demonstrate a false statement in a defamation case. Since opinions cannot be proven true/false, an opinion is generally a valid defense in a defamation case
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Actual malice
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means that the defendant in a defamation suit knew his/her statement was false or acted with reckless disregard of the truth
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False imprisonment
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intentional restraint of another person without reasonable cause or consent. Generally a store may detain a customer/worker for alleged shoplifting provided there is a reasonable basis for the suspicion and the detention is done reasonable.
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Battery
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intentional touching of another person in a way that is harmful or offensive
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Assault
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an action that causes another person to fear an imminent battery
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Fraud
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injuring someone by deliberate deception. misrepresentation of a material fact or conditions with knowledge or reckless disregard of their falsity. Intent to induce another to rely on such facts or conditions. Damages occur and causal connection exists.
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Intentional infliction of emotional distress
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Extreme and outrageous conduct that causes serious emotional harm
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compensatory damages
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damages/amount of money that is intended to restore the plaintiff to the position he was in before the defendant's conduct caused injury
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single recovery principle
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requires a court to settle a legal case once and for all, by awarding a lump sum for past and future expenses
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punitive damages
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damages awarded with intention to punish the defendant for conduct that is extreme and outrageous
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tortious interference with a contract
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occurs when a defendant deliberately harms a contractual relationship between two other parties. Illegal interference by a 3rd party in a contract concerning 2 other parties
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intrusion
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intrusion into someone's personal life is a tort if a reasonable person would find it offensive.
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commercial exploitation
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prohibits the unauthorized use of another person's likeness or voice for business purposes
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criminal law
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behavior classified as dangerous to society. Prosecuted by the government, whether a victim wants to prosecute or not; money award goes to the government
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tort law
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based on an obligation imposed by the law with no agreement needed between parties; victim prosecutes and receives compensation or restitution
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public personalities
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public officials and public figures have a harder time winning a defamation case because they have to prove that the defendant acted with actual malice.
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Business Torts
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intentional torts that occur almost exclusively in a business setting
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Negligence
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"unintentional tort". To win a negligence case, the plaintiff must prove that the defendant failed in five areas:
1. Duty of due care
2. Breach
3. Factual Cause
4. Proximate Cause
5. Damages
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Duty of due care
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if a defendant could have foreseen injury to a particular person, he/she has a duty to him. Each of us has a duty to behave as a reasonable person would under the circumstances.
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trespasser
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a person on someone else's property without consent.
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Lowest Liability of landowners.
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Landowner only liable to a trespasser only for intentionally injuring him.
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Mid level liability of landowners
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trespassing children. If there is some manmade thing on the land that may be reasonably expected to attract children, the landowner is probably liable for any harm,
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licensee
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a person on property for her own purposes, but with the owner's permission
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Higher liability
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licensee. a social guest is a typical licensee. A licensee is entitled to a warning of hidden dangers that the owner knows about
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Highest liability
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invitee. The owner has a duty of reasonable care to an invitee.
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invitee
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a person who has a right to be on a property because it is a public place or business open to the public
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breach of duty
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a defendant breaches his duty of due care by failing to behave the way a reasonable person would under similar circumstances
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factual cause
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the defendant's breach led to the ultimate harm
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proximate cuase
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refers to a party who contributes to a loss in a way that a reasonable person could anticipate. for the defendant to be liable, the the type of harm must have been reasonably foreseeable.
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res ipsa loquitur
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"the thing speaks for itself". refers to cases where the facts imply that the defendant's negligence caused the harm. Shifts the burden of proof from plaintiff to defendant. Occurs when (1) the defendant had exclusive control of the thing that caused the harm (2) the harm normally would not have occurred without negligence and (3) the plaintiff had no role in causing the harm
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assumption of risk
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a person who voluntarily enters a situation of obvious danger if he/she is injured
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contributory negligence
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a plaintiff who is even slightly negligent recovers nothing
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comparative negligence
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a plaintiff may generally recover even if she is partially responsible
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strict liability
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a high level of liability assumed by people or corporations who engage in activities that are very dangerous
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defective products
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generally lead to strict liability
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ultrahazardous activities
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a defendant engaging in such acts is virtually always liable for resulting harm
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prosecution
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only the government can prosecute a crime and punish someone by sending him/her to prison. Any fines paid go to government, not victim.
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restitution
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when a guilty defendant must reimburse the victim for the harm suffered.
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Burden of proof for criminal case
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government must prove its case beyond a reasonable doubt
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beyond a reasonable doubt
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the very high burden of proof in a criminal trial, demanding much more certainty than required in a civil trial
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right to a jury
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criminal defendant has a right to a trial by jury for any charge that could result in a sentence of six months or longer
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felony
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serious crime, for which a defendant can be sentence to one year or more in prison
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misdemeanor
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a less serious crime, often punishable by less than a year in a county jail
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intent crime
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a crime that requires that the defendant to be found guilt of committing a criminal act with criminal intent
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actus reus
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"guilty act" - the actual performance of a criminal act
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mens rea
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"even intent" - the possession of the requisite state of mind to commit a prohibited act
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criminal procedure
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the process of investigating, interrogating, and trying a criminal defendant
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state of mind
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a defendant is not guilty of a crime if she was forced to commit it. she is not guilty if she acted under duress
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gathering evidence
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Fourth amendment prohibits the government from making illegal searches and seizures. As a general rule, the police must obtain a warrant before conducting a search.
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warrant
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Fifth amendment says that if a search is needed, police take an affidavit to a judge, who issues a warrant, giving permission to search a particular place, looking for particular evidence. Need probably cause.
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probable cause
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it is likely that evidence of a crime will be found in the place to be searched
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exclusionary rule
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evidence obtained illegally may not be used at trial
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self-incrimination
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the Fifth amendment provides that the prosecution may not use coercion to force a confession from a suspect. the suspect may refuse to answer any questions that could be used to convict him.
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Miranda Rights
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Sixth amendment guarantees the right to a lawyer at all important stages of the criminal process. Government must appoint a lawyer to represent, free of charge, to anyone who can't afford one.
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indictment
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government's formal charge that the defendant has committed a crime and must stand trial
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grand jury
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group of ordinary citizens that decides whether there is probably cause the defendant committed the crime with which she is charged
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arraignment
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the indictment is read to the suspect, who then pleads guilty or not guilty to the charges
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nolo contendre
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the accused agrees to the imposition of a penalty but does not admit guilt
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plea bargaining
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an agreement in which the defendant pleads guilty to a reduced charge, and the prosecution recommends to the judge a relatively lenient sentence
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trial and appeal
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no plea bargain, case goes to trial. prosecution must convince jury beyond a reasonable doubt. defendant may appeal
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double jeopardy
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a criminal defendant may be prosecuted only once for a particular criminal offense
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Punishment
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Eighth Amendment prohibits cruel and unusual punishment
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Patriot Act
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passed in response to 9/11. designed to give law enforcement officials greater power to investigate and prevent potential terrorist assaults.
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4 crimes that harm business
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larceny, fraud, embezzlement, arson
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larceny
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the trespassory taking of personal property with the intent to steal it
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fraud
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deception for the purpose of taking money or property from someone
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theft of honest services
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prohibits public and private employees from taking bribes or kickbacks
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arson
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malicious use of fire or explosives to destroy property
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embezzlement
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fraudulent conversion of someone else's property already in the defendant's possession
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Rachkteer Influenced and Corrupt Organization Act (RICO)
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creates both civil and criminal law liabilities. A powerful Federal statute, originally aimed at organized crime, that prohibits using two or more racketeering acts to accomplish any of these goals: (1) investing in or acquiring legitimate businesses with criminal money (2) maintaining or acquiring businesses through criminal activity or (3) operating businesses through criminal activity
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racketeering acts
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any of a long list of specified crimes, such as embezzlement, arson, mail fraud, and wire fraud.
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money laundering
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using proceeds of criminal acts either to promote crime or conceal the source of money
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Federal sentencing guidelines
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the detailed rules that judges must follow when sentencing defendants convicted of federal crimes
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compliance program
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a plan to prevent and detect criminal conduct at all levels of a company
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patent
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grant by the government permitting the inventor exclusive use of an invention for 20 years from the date of filing.
not available for laws of nature, scientific principles, or mathematical formulas or algorithms. Only for tangible applications of an idea
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nature of intellectual property
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little economic value unless it is used by many. Typically expensive to produce, but cheap to transmit, giving more profit to those who do less work.
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requirements for a patent
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Novel, nonobvious, and useful
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novel
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must not be (1) known or already used in this country (2) has been described in a publication here or overseas or (3) otherwise available to the public
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nonobvious
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not patentable if it is obvious to a person with ordinary skill
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useful
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need not necessarily be commercially valuable, but must have some current use
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utility patent
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protects inventions and significant improvements on inventions including: mechanical, electrical, chemical, process, machine, composition of matter
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design patent
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protects the appearance but not the function of an item
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plant patent
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protects a newly created plant provided the inventor can reproduce it asexually
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Priority between two inventors
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first person to file a patent application has priority after 2013. prior to 2013, first person to invent and use the product had patent
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patent troll
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someone who buys a portfolio of patents for the purpose of making patent infringement claims
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prior sale
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must apply for a patent within one year of selling the product
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provisional patent application
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shorter cheaper way to file for a patent temporarily, only lasts one year
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Paris Convention for the Protection of Industrial Property
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requires each member country to grant citizens of other member countries the same rights under patent laws that its own citizens enjoy
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Duration of patent
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patents are valid for 20 years from the date of filing the application. design patents are only good for 14 years
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infringement
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to prove a violation, the plaintiff must present evidence that the work was original and that either: the infringer actually copied the work, or the infringer had access to the original and the two works are substantially similar
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copyright
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holder of a copyright owns the particular expression of an idea, but not the underlying idea or method of operation. a work is automatically copyrighted once it is in tangible form
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duration of copyright
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valid until 70 years after the death of the work's last living author. if owned by corporation, the copyright lasts 95 years from publication or 120 years from creation
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first sale doctrine
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permits a person who owns a lawfully made copy of a copyrighted work to sell or otherwise dispose of that copt. Cannot make a copy and sell or give it away.
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fair use doctrine
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permits limited use of copyrighted material without permission of the author for purposes such as criticism, comment, news reporting, scholarship, or research
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Digital Millennium Copyright Act
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makes it illegal to delete copyright information and then distribute the work via the internet. Also illegal to circumvent encryption or scrambling devices
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International Copyright Treates
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Berne convention requires member countries to provide automatic copyright protection to any works created in another member country
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trademark
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any combination of words and symbols that a business uses to identify its products or services and distinguish them from others
First person to use a mark in a trade owns it
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Valid trademarks
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Must be distinctive. Cannot be similar to existing mark. Cannot be a generic word, descriptive word, deceptive, or a person's name alone.
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Anticybersquatting Consumer Protection Act
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permits both trademark owners and famous people to sue anyone who registers their name as a domain name in "Bad faith"
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trade secrets
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a formula, device, process, method, or compilation of information that, when used in business, gives the owner and advantage over competitors
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Characteristics of a trade secrets
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How difficult was the information to obtain?
Does it create an economic advantage?
Does the company protect it?
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Uniform Trade Secrets Act
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owner of a secret must take reasonable precaution to protect it. Defendant must have acquired a trade secret through unlawful means
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Reverse engineering
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competitor who reverse engineers a product can use trade secret but not the trade marked name of the original creator
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Economic Espionage Act
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a federal statute that makes it a crime for any person to convert a trade secret for his/her own or another's benefit, knowing or intending to cause injury to the owners of the trade secret
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Nature of real property
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land, buildings, fixtures, and plants
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fixtures
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object is fixture if a reasonable person would consider the item to be a permanent part of the property.
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Freehold estates
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owner of a freehold estate has the present right to possess the property and to use it in any lawful way
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fee simple absolute
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provides owner with greatest control
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fee simple defeasible
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may terminate upon the occurrence of some event
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life estate
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an estate for the life of some named person
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Concurrent estates
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two or more people owning property at the same time
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tenancy in common
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two or more people won the property, each with the right to convey her interests or pass it down to heirs. No survivorship
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joint tenancy
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two or more people holding equal interest in a property, with the right of survivorship
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Adverse possession
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allows someone to take the title to land if she demonstrates possession that is (1) exclusive (2) notorious (3) adverse to all others (4) continuous
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Entry and Exclusive possession
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user must take physical possession of the land and must be the only one to do so
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Open and Notorious possession
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user's presence must be visible and generally known in the area, so that the owner is on notice that his title is contested
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Claim adverse to owner
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user must clearly assert that land is his. Can't ask for permission.
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Continuous possession for statutory period
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must continuously use land for 20 years, some states 10 years, few 5 years
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zoning statues
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state laws that permit local communities to regulate building and land use
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eminent domain
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power of the government to take private property for public use, provided they give fair compensation (fifth amendment)
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tenancy by the entirety
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husband and wife each own the entire property, and they both have a right of survivorship
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community property
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property brought to marriage or given to one spouse may remain individually owned, called separate property
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condominium
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owner of the apartment typically has fee simple absolute in his unit
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cooperative
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resident generally do not own particular unit.
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easement
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gives on person the right to enter land belonging to another and make a limited use of it, without taking anything away
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profit
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gives one person the right to enter land belonging to another and take something away
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license
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gives the holder temporary permission to enter upon another's property
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mortgage
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security interest in real property, given to the institution loaning a buyer the money to buy real estate
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Seller's obligation concerning property
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most states impose an implied warranty of habitability on a builder who sells a new home
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implied warranty of habitability
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seller of a home must disclose facts that buyer does not know and connect readily observe, if they materially affect the property's value
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statement of frauds
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requires that the agreement to sell real property must be in writing
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recording a deed
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means to file deed with the official state registry
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landlord-tenant law
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owner allows another person temporary, exclusive possession of the property
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tenancy for years
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any lease for stated, fixed period
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periodic tenancy
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created for a fixed period and then automatically continues for additional periods until either party notifies the other of termination
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tenancy at sufferance
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occurs when a tenant remains on the premises, against the wishes of the landlord, after the expiration of a true tenance
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Duty to deliver possession
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landlord's first important duty to deliver possession of premises at the beginning of the tenancy
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quiet enjoyment
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all tenants are entitled to quiet enjoyment of the premises, meaning the right to use the property without the interference of the landlord
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actual eviction
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occurs when the landlord prevents the tenant from possessing the premises
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constructive eviction
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occurs when the landlord substantially interferes with the tenant's use and enjoyment of the premises
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duty to maintain premises
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landlord has a duty to deliver the premises in a habitable condition and a continuing duty to maintain the habitable condition
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