Glossary of Business Law: Tort Law
- case about janet risk and liability for this roller coaster ride and waive any claims against the operators
Other Decks By This User
- Competition that violates the law:
- unfair competition
- An attempt by another person to appropriate a living person's name or identity for commercial purposes:
- tort of misappropriation of the right to publicity
- A tort that occurs whenever one person injures another person's personal property or interferes with that person's enjoyment of his or her personal property:
- trespass to personal property
- A defendant is not liable for injuries caused by an intervening event for which he or she is not responsible:
- superseding event
- Rule that provides that social hosts are liable for injuries caused by guests who become intoxicated at a social function. States vary as to whether they have this rule in effect:
- social host liability
- A tort that interferes with an owner's right to exclusive possession of land:
- trespass to land
- Oral defamation of character:
- What is a tort and what are the 3 categories of torts?
- Tort—A wrong
(1) intentional torts
(2) unintentional torts (negligence)
(3) strict liability torts
- Liability without fault:
- strict liability
- Give 2 reasons why the presumption of negligence arises in res ipsa loquitur tort cases.
- Presumption of negligence arises because:
(1) the defendant was in exclusive control of the situation.
(2) the plaintiff would not have suffered injury but for someone's negligence. (The burden switches to the defendant to prove he was not negligent)
- A point along a chain of events caused by a negligent party after which this party is no longer legally responsible for the consequences of his or her actions:
- proximate cause or legal cause
- The liability of a professional who breaches his duty of ordinary care:
- professional malpractice
- Tort where the presumption of negligence arises because the defendant was in exclusive control of the situation and the plaintiff would not have suffered injury but for someone's negligence:
- res ipsa loquitur
- Damages that are awarded to punish the defendant, to deter the defendant from similar conduct in the future, and to set an example for others:
- punitive damages
- Who bears the burden of proof in res ipsa loquitur tort cases?
- The burden of proof switches to the defendant to prove he was not negligent.
- Unfair competition that occurs when a company tries to pass one of its products as that of a rival:
- palming off
- Tort where the violation of a statute or ordinance constitutes the breach of the duty of care:
- negligence per se
- From what must the plaintiff suffer in order to recover monetary damages for a defendant's negligence?
- The plaintiff must suffer personal injury or damage to his or her property.
- A tort that permits a person to recover for emotional distress caused by the defendant's negligent conduct:
- negligent infliction of emotional distress
- A tort that constitutes the violation of a person's right to live his or her life without being subjected to unwarranted and undesired publicity:
- invasion of the right to privacy (Ex: reading someone else's mail, wiretapping, placing someone in "false light") **The fact does not have to be untrue.
- Statute that relieves medical professionals from liability for ordinary negligence when they stop and render aid to victims in emergency situations:
- Good Samaritan law
- A false statement that appears in a letter, newspaper, magazine, book, photograph, movie, video, etc:
- A tort that arises when a third party induces a contracting party to breach the contract with another party:
- intentional interference with contractual relations
- What 2 wrongs must be committed for something to be classified as an intentional tort?
- Occurs when a person has intentionally committed a wrong against:
(1) another person or his or her character
(2) another person's property
- The plaintiff must suffer personal injury or damage to his or her property in order to recover monetary damages for the defendant's negligence:
- A tort related to defective products where the defendant has breached a duty of due care and caused harm to the plaintiff:
- Statute that provides that if a driver of a vehicle voluntarily and without compensation gives a ride to another person, the driver is not liable to the passenger for injuries caused by the driver's ordinary negligence:
- guest statute
- Tort that occurs when a wrongdoer deceives another person out of money, property, or something else of value, or when a seller or lessor fraudulently misrepresents the quality of a product and a buyer is injured thereby:
- intentional misrepresentation (also known as fraud or deceit)
- A tort that says a person whose extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another person is liable for that emotional distress:
- intentional infliction of emotional distress; e.g. "tort of outrage" (does not require any publication to a third party or physical contact between the plaintiff & defendant)
- Occurs when a person has intentionally committed a wrong against another person or another person's property:
- intentional tort
- The intentional confinement or restraint of another person without authority or justification and without that person's consent:
- false imprisonment
- A tort that deprives a true owner of the use and enjoyment of his or her personal property by taking over such property and exercising ownership rights over it:
- conversion of personal property
- A doctrine that applies to strict liability actions that says a plaintiff who is contributorily negligent for his injuries is responsible for a proportional share of the damages:
- comparative negligence
- A duty of care that goes beyond ordinary care that says common carriers and innkeepers have a responsibility to provide security to their passengers or guests:
- duty of utmost care
- The actual cause of negligence:
- causation in fact or actual cause (A person who commits a negligent act is not liable unless causation in fact can be proven)
- A doctrine that says a plaintiff who is partially at fault for his own injury cannot recover against the negligent defendant:
- contributory negligence
- False statements made by one person about another:
- defamation of character
- Doctrine that provides that a rescuer who is injured while going to someone's rescue can sue the person who caused the dangerous situation:
- "danger invites rescue" doctrine
- The duty an owner owes a trespasser to prevent intentional injury or harm to the trespasser when the trespasser is on his or her premises:
- duty not to willfully or wantonly injure
- Unauthorized and harmful or offensive physical contact with another person:
- battery (Direct physical contact is not necessary)
- A person who commits a negligent act is not liable unless what can be proven?
- causation in fact
- Statute that makes taverns and bartenders liable for injuries caused to or by patrons who are served too much alcohol:
- Dram Shop Act
- Under this implied covenant, the parties to a contract not only are held to the express terms of the contract but also are required to act in "good faith" and deal fairly in all respects in obtaining the objective of the contract:
- covenant of good faith and fair dealing
- Collecting banks are required to exercise ordinary care in presenting and sending checks for collection:
- duty of ordinary care
- In court, what 2 things must the plaintiff prove in order to prove defamation of character?
- The plaintiff must prove that:
(1) the defendant made an UNTURE STATEMENT OF FACT about the plaintiff.
(2) the statement was intentionally or accidentally PUBLISHED to a third party.
- What are the two types of causation that must be proven?
- (1) causation in fact (actual cause)
(2) proximate cause (legal cause)
- What is not a necessary element to battery?
- Direct physical contact
- A defense in which the defendant must prove that the plaintiff knew and appreciated the risk and the plaintiff voluntarily assumed the risk:
- assumption of the risk
- A person who commits a negligent act is not liable unless his act was the cause of the plaintiff's injuries:
- What 2 things must be proven to be liable of assault?
- (1) The threat of immediate harm or offensive contact. (2) any action that arouses reasonable apprehension of imminent harm. (Actual physical contact is not necessary)
- What 2 things must the defendant prove during an assumption of the risk defense?
- The defendant must prove that:
(1) the plaintiff knew and appreciated the risk.
(2) the plaintiff voluntarily assumed the risk.
- What authorizes civil lawsuits against defendants for engaging in a pattern of racketeering activities?
- The Racketeer Influenced and Corrupt Organizations Act (RICO)
- The threat of immediate harm or offensive contact or any action that arouses reasonable apprehension of imminent harm:
- What are the 4 elements of fraud (intentional misrepresentation or deceit)?
- (1) the wrongdoer made a false representation of material fact.
(2) the wrongdoer had knowledge that the representation was false and intended to deceive the innocent party (scienter).
(3) the innocent party justifiably relied on the misrepresentation.
(4) the innocent party was injured.
- What are the 4 defenses to tort liabilty?
- (1) superseding or intervening event
(2) assumption of the risk
(3) contributory negligence (4) comparative negligence
- How does the comparative negligence doctrine award damages?
- It divides damages according to fault.
- Occurs when a person's extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another person:
- Intentional infliction of emotional distress (the tort of outrage)
- What tort liability defense can a defendant use against a plaintiff who knowingly and voluntarily entered into or participated in a risky activity?
- Assumption of the risk (Ex: car racing that resulted in injury)
- The obligation we all owe to each other not to cause unreasonable harm or risk of harm:
- duty of care
- Occurs whenever one person injures another person's personal property.
- trespass to personal property
- Occurs when someone who originally is given possession of personal property fails to return it:
- conversion of personal property
- What are the 4 elements that must be proven to be liable of negligence?
- Elements of negligence include:
(1) that the defendant owed a DUTY OF CARE to the plaintiff.
(2) that the defendant BREACHED this duty of care.
(3) that the plaintiff suffered INJURY.
(4) that the defendant's act CAUSED the plaintiff's injury.
- What tort would be used if several bystanders witnessed the death or injury of a loved one that was caused by another's negligent conduct?
- Intentional infliction of emotional distress; the tort of outrage
- Interference with an owner's right to exclusive possession of land:
- trespass to land
- How do courts decide whether a duty of care is owed in specific cases?
- By applying a REASONABLE PERSON STANDARD.
- What are the 3 intentional torts against property?
- (1) trespass to land
(2) trespass to personal property
(3) conversion of personal property
- What is the "fireman's rule"?
- States that a fireman who is injured while putting out a fire may not sue the party whose negligence caused the fire.
- What special negligence doctorine would occur if a surgical instrument was left in a patient's body?
- Res ipsa loquitur
- What are dram shop acts?
- Act that make taverns and bartenders liable for injuries caused to or by patrons who are served too much alcohol.
- Provides that a rescuer who is injured while going to someone's rescue can sue the person who caused the dangerous situation:
- The "danger invites rescue" doctrine
- To whom do landowners owe a duty of ordinary care?
- They owe a duty of ordinary care to invitees and licensees, but generally do not to trespassers.
- Can public figures recover damages for defamation?
- Not unless they can prove that the defendant acted with "actual malice."
- Allow merchants to stop, detain, and investigate suspected shoplifters without being held liable for false imprisonment:
- Merchant protection statutes ("shopkeeper's privilege")
- Occurs when the defendant was in exclusive control of the situation and the plaintiff would not have suffered injury but for someone's negligence:
- Res ipsa loquitur
- During what 3 instances are merchants allowed to stop, detain, and investigate suspected shoplifters without being held liable for false imprisonment?
- (1) there are reasonable grounds for suspicion.
(2) suspects are detained for only a reasonable time.
(3) investigations are conducted in a reasonable manner.
- What are tort damages and what is their intended purpose?
- Tort damages are monetary damages that are sought from a wrongdoer. They are intended to compensate the injured party for any damages suffered.
- Refers to customers assaulting one another and the shopkeeper breaking up the fight:
- shopkeeper's privilege
- Describe what the plaintiff can get if a wrongdoer is guilty of misappropriation of the right to publicity.
- The plaintiff can recover any unauthorized profits made by the wrongdoer, and may also obtain an injunction against further unauthorized use of name or identity.
- What is the difference between trespass to personal property and conversion of personal property?
- Trespass occurs when a person injures another person's personal property, or interferes with that person's enjoyment of said property. Conversion occurs when one person takes control over another person's property for the first person's own use.
- Explain the meaning of publication when referring to defamation of character.
- In this context, publication simply means that a third person heard or saw the untrue statement. It DOES NOT just mean appearance in newspapers, magazines, or books.
- Monetary damages that are sought from the offending party:
- tort damages
- What types of tort cases might punitive damages be awarded?
- Intentional tort and strict liability cases
- What do most courts consider defamatory statements in radio and television broadcasts? Why?
- These are considered libel b/c of the permanency of the media.
- Explain the meaning of a wrongful death action.
- If the victim of a tort dies, his or her beneficiaries can bring a wrongful death action to recover damages from the defendant.
- Damages awarded to punish the defendant:
- punitive damages
- Can a woman sue her neighbor for assault if he says he is going to come to her house next week and beat her up?
- No, threats of FUTURE harm are not actionable. The threat of harm has to be immediate.
- When the intention to harm one individual inadvertently causes a second person to be hurt instead. The law then transfers the perpetrator's intent from the target to the actual victim of the act:
- Doctrine of transferred intent
- What crime is committed if a perpetrator hits a woman on the back of the head without any warning?
- Both assualt and battery
- What damages can the plaintiff recover in a tort of misappropriation of the right to publicity?
- Plaintiff can:
(1) recover the unauthorized profits made by the offending party.
(2) obtain an injunction against further unauthorized use his name or identity.
- Explain the case of Roach v. Stern.
- Stern and guest, over plaintiffs' objections, played with cremated remains of former guest on Stern's show. The incident was played on Stern's radio and television shows. Appeals court allowed suit for intentional infliction of emotional distress to go forward against Howard Stern and other parties.
- An intentional tort arising from the institution or instigation of unjustifiable and unreasonable civil or criminal litigation:
- malicious prosecution
- Consists of land and anything permanently attached to that land:
- real property
- What do the courts require the plaintiff to prove in a lawsuit for malicious prosecution?
- (1) The plaintiff in the original lawsuiit was responsible for instituting the case.
(2) there was no probable cause in the original lawsuit (it was a frivolous case).
(3) The plaintiff in the original lawsuit brought case w/ malice.
(4) The original lawsuit was terminated in favor of the original defendant.
(5) The current plaintiff suffered injury as a result of the original lawsuit.
- Consists of things that are movable, such as automobile, books, clohes, pets, etc:
- personal property
- What can Joe do if his neighbor fails to return the car that Joe let him borrow?
- Joe can sue his neighbor for conversion of personal property
- What should Sarah do if her neighbor builds a dam that causes Sarah's house to flood?
- Sarah should sue her neighbor for trespass to land (neighbor's dam caused water to enter Sarah's land).
- What is the general test of proximate cause?
- In what case was the doctrine of proximate cause defined?
- Palsgraf v. Long Island Railroad Company
- A failure to exercise care or to act as a reasonable person would act:
- breach of the duty of care
- Which federal statute addresses false advertising?
- Lanham Act
- What is the difference between defamation of character defenses and invasion of the right to privacy defenses?
- DEFAMATION OF CHARACTER: truth can be used as a defense.
INVASION OF THE RIGHT TO PRIVACY: truth cannot be used as a defense.
- Under the doctrine of negligence, a person is liable only for:
- Forseeable events
- What happens if a negligent party is found to be the actual cause of a plaintiff's injuries but not the proximate cause?
- Then the defendant is not liable to the plaintiff.
- Even if a defendant's act may have breached a duty of care to a plaintiff, the breach is not actionable unless:
- The plaintiff suffers injury.
- Explain what occured in the Roach v. Stern case:
- Stern and guest, over plaintiffs' objections, played with cremated remains of former guest on Stern's show. The incident was played on Stern's radio and television shows. Appeals court allowed suit for INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS to go forward against Howard Stern and other parties.
- Janet was shopping at Las Palmas Market when she slipped and fell on a fruit that had fallen out of its display tray; she broke her ankle. Is Las Palmas Market liable for the injury to Janet's ankle?
- Yes. Janet was a business invitee and as such required a duty of ordinary care.
- If a journalist who hated the British royal family published a purposefully defamatory article about Princess Di during the months after her death alleging that she had been a prostitute before her marriage to Prince Charles, could he be sued for defamat
- No, because Princess Di was dead when the defamatory article was published.
- When Melvin, as a joke, pulled the chair out from under his best friend's father at a dinner, the man was injured seriously. Because the joke resulted in a broken pelvis, emergency surgery, a long hospital stay, expensive rehabilitation, and two months'
- Gil, the owner of the Do-Dah Motel, did not put heavy-duty locks on his motel room doors because they were much more expensive than the ordinary domestic home locks. One of the motel's guests, Jerry, was robbed and battered by a thief, causing a serious
- Yes. Gil, as an innkeeper, owed Jerry an extremely high duty of care, defined as the duty of the utmost care, which he breached when he put in cheap locks.
- If Henry is accidentally tripped by Max while diving into a swimming pool, and breaks his leg in the fall into the pool, but is brain-injured by faulty medical treatment during his rescue, can he sue Max for his injuries?
- Max will be liable under a negligence theory for the results of his own actions. However, he will not be liable for the faulty medical care during rescue.
- Jane was injured on a roller coaster at the theme park as she participated in a wave in which passengers stood up and waved their hands while on the ride. She is suing the theme park for her injuries. Which legal theory will serve as the park's best defe
- Assumption of risk
- Mack joined a chat room on AOL, the members of which were economists. When Mack made a comment comparing President Roosevelt's job corps plans to put America back to work after the Great Depression to Hitler's work program during the same era, another ch
- No, Mack cannot sue the interactive on-line service because federal law grants immunity from liability for defamatory statements made by its users.
- An ordinary person who, when most people would have refused to cook with the bulging can of beans, served his friends chili using the bulging can and made them seriously ill, did not meet which of the standards of behavior?
- Reasonable person standard.
- Joe made a negligence claim against a dog owner for injuries sustained when the dog got loose and chased a cat up a power company's pole. Once the cat was up the pole, it got tangled in some wires. The cat caused a huge power surge through Joe's home tha
- No; Joe cannot show that the dog owner's negligence was the proximate cause of his injuries.
- Jane was injured in a negligent boating accident in which the boat she was on hit another boat. However, her injuries were made much more severe by the fact that she refused to wear life jackets or proper boating footwear. She is suing the owner of the b
- Under comparative negligence, Jane was more than 50% responsible for her own injuries.
- A professional man who does not use reasonable skills, care, knowledge and judgement in practicing his profession may be liable for:
- Professional malpractice
- Greg attended his best friend's wedding reception hosted by his friend's dad, Marvin. Marvin served champagne punch that did not smell or taste strongly of alcohol but was 30% alcohol based on the ingredients. Greg left the wedding reception and drove in
- Yes; under the social host liability rule, Marvin will be responsible for any injury to his guest or anyone the guest injures after having been served too much alcohol at his social function.
- Which of the following activities would not be covered by strict liability?
a) Storing explosives.
c) Raising pythons as pets.
d) Playing baseball.
- d) Playing baseball.
- Jim and Lola were driving home when they encountered a serious automobile accident on the roadway. They stopped to render assistance b/c they were the first people on the scene, and they pulled the driver from one of the cars. Jim performed CPR on the dr
- If Jim was a medical professional or had an advanced CPR certificate, the state's Good Samaritan Statute will probably protect him.
- Sylvia's dog bit a person in the park while off its leash. The park was in a city for which the leash law strictly requires all dogs to be on leashes in order to protect other park users from attacks and dog bites. The man bitten will sue Sylvia using wh
- Negligence per se
- A bus driver on a Metro bus allowed a passenger to carry a baseball bat onto the bus and another passenger was subsequently injured when the man started cursing and swinging the bat three stops after the man realized the bus driver hadn't stopped at his
- Yes, because a common carrier has a higher duty of care than the duty of ordinary care.
- What is the standard of conduct courts impose in negligence cases in order to determine whether duty of care is owed by the defendant?
- The reasonable person standard
- A plaintiff may recover damages for emotional distress caused by observing the negligently inflicted injury of a third person if what 3 elements are proven?
- The plaintiff:
1) Is closely related to the injury victim.
2) Is present at the scene of the injury when it occurs and & is aware that it is causing injury to the victim.
3) As a result suffers serious emotional distress.
- If a psychiatrist has an affair with one of his female patients even though all professional standards prohibit such a thing, and medical findings indicate that such a relationship will injure the patient, the psychiatrist may be liable for:
- professional malpractice
- The doctrine that imposes liability without fault:
- strict liability
- A breach of the duty of care may consist of what 2 elements?
1) An ACTION (throwing a lit match on the ground and causing a fire)
2) A FAILURE TO ACT WHEN THERE IS A DUTY TO ACT (a firefighter refusing to put out a fire)
- How do courts measure whether a duty of care is owed by a child?
- By applying a REASONABLE CHILD standard to see how a child of similar age and experience would act.
- Usually, passerby are not liable for:
- A breach of the duty of care
- How do courts measure whether a duty of care is owed by a defendant with a particular expertise or competece:
- By applying a REASONABLE PROFESSIONAL STANDARD (ex: a brain surgeon would be measured this way).
- Suppoose a business's negligence causes an explosion and fire to occur at its factory at night. No one is injured, and there is no damage to the neighbor's property. Is the business owner liable of negligence?
- No; even though the business owner might have breached his duty of care, this breach is not actionable because no one suffered any injuries.
- Determining how an objective, careful, and conscientious person would have acted in the same circumstances:
- Reasonable person standard (used to decide whether a duty of care is owed in specific cases).
- A person who has been expressly or impliedly invited onto the owner's premises for the mutual benefit of both parties:
- Invitee (e.g. guests invited for dinner, the mail carrier, customers of a business)
- Suppose a professional basketball player and a college professor are both injured in a boating accident caused by the driver's negligent behavior. What damages can each of the men recover?
- The damages that are recoverable depend on the effect of the injury on the plaintiff's life or profession. The basketball player will be awarded more damages than the professor.
- What do common carriers and innkeepers owe to their passengers and guests?
- A duty of utmost care
Ex: Innkeepers must provide security for their guests.
- What are the 3 bases for the Fireman's Rule?
- 1) People might not help if they could be held liable.
2) Firefighters, police officers, and other such workers receive special training for their jobs.
3) These workers have special medical and retirement programs paid for by the public.
- What duty does an owner have to invites and licensees?
- He owes a DUTY OF ORDINARY CARE
- Suppose a couple hits a car on the way home from a wedding reception. The woman they hit has a broken arm. There was alcohol served at the reception but the husband, the driver, consumed none. Can the woman with the broken arm sue the host of the wedding
- No; the social host liability rule only applies when alcohol is the cause of the injury, and the driver had none.
- Suppose that an avid golfer negligently hits a spectator w/ a golf ball, knocking him unconcious. While lying on the ground, the spectator is struck by a bolt of lightning and killed. What is the golfer liable for?
- The golfer is liable only for the injuries called by the golf ball. However, he is not liable for the death of the spectator, b/c the lighting bolt was an unforseen SUPERSEDING (or INTERVENING) EVENT.
- A person who, for his or her own benefit, enters onto the premises, with the express or implied consent of the owner:
- Licensee (e.g. an Avon representative, vacuum cleaner salseman)
- What 3 things must a plaintiff prove if he or she wants to file a negligence per se action?
- 1) a statute existed.
2) the statute was enacted to prevent the type of injury suffered.
3) the plaintiff was w/in a class of persons meant to be protected by the statute.
- Does an owner owe any duty to a trespasser?
- Yes; he owes a DUTY NOT TO WILFULLY OR WANTONLY INJURE A TRESPASSER (e.g. he cannot set traps to injure a burglar).
However, an owner DOES NOT owe a duty of ordinary care to trespassers.
- The Good Samaritan Statute protects medical professionals from liability for injury caused only by:
- Their ORDINARY NEGLIGENCE when they stop and render aid to victims in emergency situations, but not for injuries caused by their gross negligence or reckless or intentional conduct.
- What 2 things does the assumption of risk defense assume of the plaintiff?
- Assumes that the plaintiff:
1) had knowledge of the specific risk.
2) voluntarily assumed that risk.
- Suppose a lawyer fails to filre a document with the court on time, causing a client's case to be dismissed. Is the lawyer liable for anything?
- Yes; the lawyer is liable for LEGAL MALPRACTICE.
- TRUE OR FALSE:
The Fireman's Rule applies only to firemen.
This rule has been extended to police officers and other government workers.
- A person who has no invitation, permission, or right to be on another's property:
- Trespasser (e.g. burglar)
A driver going over the speed limit negligently hits and injures a pedestrian who is jaywalking. Suppose the jury finds that the driver is 80% responsible for the accident and the jaywalker is 20% responsible. The pedestrian suffered $100,000
- CONTRIBUTORY NEGLIGENCE:
The jaywalker cannot recover any injuries b/c he is partially at fault.
1) Pure comparative negligence - the jaywalker can recover 80% of his damages ($80,000).
- What is the one exception to the doctrine of contributary negligence?
- THE LAST CLEAR CHANCE RULE - the defendant has a duty under the law to avoid the accident if at all possible.
- What 2 qualifications must an applicant in order to obtain a particular business or professional license?
- Applicant must:
1) Meet certain educational requirements.
2) Demonstrate a certain level or proficiency in the subject matter through examination, experience, or both.
- False statements about a competitor's products, services, property, or business reputation:
- Disparagement (also known as "product disparagement", "trade libel", or "slander of title")
- For example, suppose you throw a ball that rolls down a hill; after the ball rolls down the hill, a stranger picks it up and throws it through a window, causing the glass to shatter; the glass shards hit a woman, cutting her arm. Who is liable for the wo
- The act of the stranger picking up the ball and throwing it through the window is an INTERVENING CAUSE which relieves you from the responsibility for her injury. The responsibility shifts, and the stranger's act becomes the PROXIMATE CAUSE of her injury, which makes him liable for her injuries.
- What doctrine provides that a plaintiff must be less than 50 percent responsible for causing his or her own injuries?
- Partial comparative negligence
- What 2 things must a plaintiff show to prove the tort of palming off?
- 1) The defendant used the plaintiff's logo, symbol, mark, etc.
2) There is a likelihood of confusion as to the source of the product (actual consumer confusion need not be shown).
- What laws protect business from disparaging statement made by competitors or others?
- Unfair-competition laws
- What have many states replaced the doctrine of contributory negligence with?
- The doctrine of comparative negligence, where damages are distributed according to fault.
- What prohibits false and misleading advertising?
- Section 43(a) of the Lanham Act
- What 4 things must a plaintiff show in order to prove that a defendant is liable for disparagement?
- The defendant:
1) made an untrue statement about the plaintiff's products, services, property, or business reputation;
2) published this untrue statement to a third party;
3) knew the statement was not true;
4) made the statement maliciously (w/ intent to hurt the plaintiff).
- Suppose a company implied that it was affiliated with IBM by selling computers under the IBM label. What is the company liable for?
- The company is liable for the business tort of PALMING OFF.
- What do the courts consider when deciding cases involving the last clear chance rule of contributory negligence?
- They consider the attentiveness of the parties and the amount of time each has to respond to the situation.
- What is a key element in deciding whether or not a business is liable for palming off?
- Whether or not consumers are likely to be confused as to the origin of the original product.
- What is one of the most pervasive business torts?
- Intentional misrepresentation ("fraud" or "deceit")
- What 3 elements must be shown to prove intentional interference with contractual relations?
- 1) A valid, enforceable contract between the contracting parties.
2) Third-party knowledge of this contract.
3) Third-party inducement to breach the contract.
- Give 3 reasons why punitive damages are awarded:
- 1) to punish the defendant.
2) to deter the defendant from similar conduct in the future.
3) to set an example for others.
- Is comparative advertising lawful?
- Truthful comparative advertising is lawful; however, untruthful advertising constitutes disparagement of product and misleading advertising which violate Section 43(a) of the Lanham Act.
- Fraud, intentional conduct, and other egregious conduct:
- Tortious conduct (punitive damages ARE recoverable)
- The doctrine of strict liability holds that: (2 things)
- 1) There are certain activities that can place the public at risk of injury even if reasonable care is taken.
2) The public should have some means of compensation if such
- What was first imposed for abnormally dangerous activities such as crop dusting or storing explosives?
- Strict liability
- If he sells the car and knew of the problem before he sold, he has:
- Scienter - he has knowledge of his wrongdoing
- TRUE OR FALSE:
Similar, preceding cases are used as precedent when applying the duty of utmost care.
The duty of utmost care is applied on a case-by-case basis.
- What is usually not recoverable for breach of contract?
- punitive damages
- Can a third party contract with a breaching party without becoming liable for the tort of intentional interference with contractual relations?
- Only if the contracting party has already breached the contract (This is because the third party cannot be held to have initiated a preexisting breach).
- When was strict liability first imposed?
- For ABNORMALLY DANGEROUS ACTIVITIES (e.g. crop dusting, blasting, fumigation, burning fields, storing explosives, & keeping wild animals as pets).
- Awards that are over and above actual damages:
- Punitive damages
- Suppose a contractor violated a building code when constructing a house; the house collapsed and someone was injured. What is the contractor liable for?
- The contractor breached his duty of care when he violated the building code, so he is liable for NEGLIGENCE PER SE.
- What special negligence doctrine is usually involved in commercial airplane crashes, falling elevators, etc.?
- Res ipsa loquitur
- While under anesthetic, Isabel nerve in her arm is damaged although it was not part of the surgical procedure, and she is unaware of which of a dozen medical people in the room caused the damage. Who is liable for Isabel's damaged nerve?
- Under RES IPSA LOQUITUR, all those connected with the operation are liable for negligence.
- Suppose Dr. Pam finds a wrecked car on the side of the road and administers CPR to the victim. She negligently breaks the victim's arm? How would the court be able to tell if Dr. Pam's conduct was ordinary negligence or gross negligence or recklessness?
- It is a QUESTION OF FACT for the jury.
- Suppose Sally breaks her leg after she trips on the cracked sidewalk in front of her neighbors house. Who is liable for Sally's damages?
- NEGLIGENCE PER SE:
Most cities have an ordinance that places the responsibility for fixing public sidewalks in residential areas on the homeowners, so the neighbor's would be liable.
Sally does not have to prove that the homeowner owed her a duty of care because the statute establishes that.
- What was the issue and the court's holding in the Pizza Hut v. Papa John's case?
- ISSUE: Is Papa John's slogan "Better Ingredients. Better Pizza" false advertising in violation of Section 43(a) of the Lanham Act?
HOLDING: No - Papa John's trademarked slogan is merely puffery & a statement of opinion that does not violate Section 43(a).
- What was the court's ruling on John McCollum's suicide?
- John's suicide, while listening to Osbourne's music, was not a reasonably foreseeable risk or consequence of the defendant's (Ozzie) artistic acivities.
- Was Estrada entitled under the law to recover damages for negligent infliction of emotional distress in the Estrada v. Aeronaves de Mexico, S.A. case?
- Yes - even though Estrada was missing one of the 3 elements needed to recover damages for negligent infliction of emotional distress (she wasn't present at the scene of injury), the court ruled that she had established the elements necessary b/c she arrived at home to see her house in flames.
- Was the plaintiff (Cheong) allowed to receive damages even though there was an assumption of risk while he was skiing?
- No - the court held that the doctrine of assumption of risk excluded recovery in this case b/c the defendant's conduct did not intentionally or recklessly injure the plaintiff during the skiing.
- Does an "as-is" clause protect a seller from liability?
- Even though the "as-is" clause protects the seller from unknown defects, it does not allow him to misrepresent the condition of the property, or fail to repair an observable defect. If a buyer is expected to discover a defect upon an inspection, the buyer will be charged with notice; otherwise, the seller is responsible of informing the buyer of the defect.
You must Login or Register to add cards