Glossary of Business Law Chapter 5

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Define tort.
A civil wrong resulting in injury to a person or property.
Compare and contrast a tort with a crime.
A tort is a civil wrong that results in injury to a person or property. A tort case is brought by the injured party to obtain compensation for the wrong done. A crime, by contrast, is a wrong to society that is prosecuted by the state. Even though a crime may be perpetrated against an individual, the victim is not a party to a criminal action.
Define the concept of an intentional tort.
Intentional torts require the plaintiff to prove (1) Actual or implied intent (2) a voluntary act by the defendent (3) causation (4) injury or harm.
Define intent.
The subjective desire to cause the consequences of an act.
Define the term tortfeasor.
it is the term for the defendent, or accused, party.
Explain the elements required for a prima facie case of assault.
An intentional, nonconsensual act that gives rise to the apprehension that a harmful or offensive contact is imminent. Requires an act, such as a threatening gesture, and the ability to follow through immediately with a battery.
Explain the elements required for a prima facie case of battery.
Battery is intentional, nonconsensual, harmful, or offensive contact with the plaintiff's body or with something in contact with it.
Explain the elements required for a prima facie case of false imprisonment.
Intentional, nonconsensual confinement by physical barriers or by physical force or threats of force. Requires that the plaintiff either knew he or she was confined or suffered harm as a result of the confinement.
Explain the elements required for a prima facie case of intentional infliction of emotional distress.
A plaintiff must show 1. outrageous conduct by the defendent 2. intent to cause, or reckless disregard of the probability of causing, emotional distress 3. severe emotional suffering 4. actual and proximate (or legal) causation of the emotional distress.
Explain the elements required for a prima facie case of defamation.
Defamation is the communication to a third party of an untrue statement, asserted as fact, that injures the plaintiff's reputation by exposing him to "hatred, ridicule, or contempt." Libel is written defamation, and slander is spoken defamation. In an action for slander, the plaintiff must prove that he or she has suffered actual harm. Slander per se means that the words are slanderous in and of themselves. In an action for libel, the law presumes injury; that is, no actual harm need be shown unless the statement on its face is not damaging.
Explain the elements required for a prima facie case of intrusion.
Intrusion is objectionable prying, such as eavesdropping or unauthorized rifling through files. There must be reasonable expectation of privacy in the thing into which there is intrusion.
Explain the elements required for a prima facie case of fraudulent misrepresentation.
Fraud requires proof that the defendent either 1. intentionally misled the plaintiff by making a material misrepresentation of fact upon which the plaintiff relied or 2. omitted to state a material fact when the defendent had a duty to speak because of a special relationship with the plaintiff.
Explain the elements required for a prima facie case of wrongful interference with a contractual relationship.
Courts usually require that the defendent induce the contracting party to breach, rather than merely create the opportunity for the breach. The defendent must know of the existence of the contract between the plaintiff and the other person, or there must be sufficient facts that would lead a reasonable person to believe there was such a contract.
Explain the elements required for a prima facie case of wrongful interference with a business relationship.
The plaintiff must prove that the defendent interfered with a relationship the plaintiff sought to develop and that the interference caused the plaintiff's loss.
Define and explain disparagement of property.
Disparagement is the publication of statements derogatory to the quality of the plaintiff's business, to the business in general, or even to the plaintiff's personal affairs, in order to discourage others from dealing with him.
Explain the elements required for a prima facie case of trespass to land.
Trespass to land is an interference with a property right. The land need not be injured by the trespass. The intent required is the intent to enter the property, not the intent to trespass.
Explain the elements required for a prima facie case of trespass to personal property.
When personal property is interfered with but not converted. No wrongful motive need be shown. The intent required is the intent to exercise control over the plaintiff's personal property.
Explain the elements for a prima facie case of conversion.
conversion is the exercise of dominion and control over the personal property, rather than the real property of another. This is the tort claim a plaintiff would assert to recover the value of property stolen, destroyed, or substantially altered by the defendent.
Compare and contrast trespass with conversion.
Trespass is when property is interfered with but not substantially altered. Conversion is when the property is stolen, damaged or significantly altered.
Explain the defenses of the intentional torts.
The most frequently raised defense is consent. The law may also imply consent. The defendent may also be absolved of liability by a claim of self-defense or defense of others. Defamation: if the defendent has an absolute priviledge, he or she can publish with impunity a statement he or she knows to be false. Absolute priviledge is limited to situations in which 1. the plaintiff has consented to the publication 2. the statement is a political broadcast made under the federal "equal time" statute 3. the statement is made by a government official in the performance of governmental duties 4. the statement is made by participants in judicial proceedings, or 5. the statement is made between spouses. There is a qualified priviledge to make statements to protect one's own personal interests, including statements to a peer review committee. There is also a qualified priviledge to make statements to protect legitimate business interests, or to provide information for the public interest. A qualified priviledge can be lost is the person abuses the priviledge. Truth is an absolute defense. These defenses also apply to injurious falsehood.
Define contributory negligence.
If the plaintiff was also negligent in any manner, he or she cannot recover any damages from the defendent.
Explain toxic torts.
A toxic tort is a wrongful act that causes injury by exposure to a harmful, hazardous, or poisonous substance.
Explain the significance of res ipsa loquitur "the thing speaks for itself".
The doctrine that allows a plaintiff to prove breach and causation indirectly.
Explain the significance of professional negligence.
The issue of duty takes on a special significance when the plaintiff asserts a claim of professional negligence. Although a professional clearly owes a duty to his or her client, a professional may not have a duty to a third party with whom he or she does not have a contractual relationship.
Define punitive damages.
May be awarded to punish the defendent and deter others from engaging in similar conduct. Punitive damages are only awarded in cases of outrageous conduct.
Explain the significance of proximate cause.
Proximate cause is a reasonably forseeable consequence of the defendent's negligence, without which no injury would have occurred. "but for"
Explain the significance of comparative negligence.
the doctrine by which courts decide amount of award to be given a plaintiff based on the amount (percentage) of negligence plaintiff demonstrated when injured by defendent.
Define zone of danger.
The area in which an individual is physically close enough to a victim of an accident as to also be in personal danger.
Explain the elements required for a prima facie case of appropriation.
Appropriation is using someone's name without their permission.
Explain the elements required for a prima facie case of "false light."
False light is when you attribute views to someone that they do not hold, and that puts them in a false light.
Discuss the components of nuisance, public nuisance, and private nuisance.
A nuisance is a thing or activity that unreasonably and substantially interferes with an owner's use and enjoyment of owner's property. A public nuisance is an unreasonable and substantial interference with the public health, safety, peace, comfort, convenience, or utilization of land. A private nuisance is interference with a person's use and enjoyment of his or her land and water.
Discuss the difference between an invitee and a licensee.
An invitee is a business visitor, someone who enters the premises for purposes of the possessor's business. A licensee is anyone who is on the land of another person with the possessor's express or implied consent.
Explain the significance of reasonable care.
Under this standard, courts require all landowners to act in a reasonable manner with respect to entrants on their land, with liability hinging on the forseeability of harm. All people, whether they are trespassors, invitees, or licensees, are treated the same.
Discuss strict liability.
Strict liability without fault, that is, without either intent or negligence. Strict liability is imposed in two circimstances:
1. in product liability cases
2. in cases involving abnormally dangerous activities.
Define public figure.
Individuals, who, by reason of their achievements or the vigor and success with which they seek the public's attention, are injected into the public eye.
Define undue influence.
Sufficient influence and power over another as to make genuine assent impossible.
Explain the tort of fraudulent misrepresentation.
Deceit; intentionally misleading by making material misrepresentation of fact that the plaintiff relied on that cause injury to the plaintiff.
Explain the concept of bad faith.
The plaintiff must show that the insurer failed to excercise good faith in the processing of a claim and that its refusal to pay the claim was not predicated upon a reasonable justification.
Discuss the duty to rescue.
The law does not impose a general duty to rescue. However, once one undertakes a rescue, the law imposes a duty to act as a reasonable person and not to abandon the rescue effort unreasonably. A special relationship between two people may create a duty to rescue: husband, wife, child, parent, employer, employee, inkeeper, guest, teacher, student, common carrier, team members, hunting partners, or hiking partners.
Discuss assumption of risk.
The assumption of risk defense requires that the plaintiff 1. knew the risk was present and understood its nature 2. voluntarily chose to incur the risk. It applies when the plaintiff, in advance of the defendent's wrongdoing, expressly or impliedly consented to take his or her chances of injury from the defendent's actions.
Define respondeat superior.
"let the master answer" The doctrine under which an employer may be held vicariously or secondarily liable for the negligent or intentional conduct of the employee that is committed in the scope of the employee's employment.
Explain the concept of ultrahazardous activities.
An activity is ultrahazardous if it 1. necessarily involves a risk of serious harm to persons or property that cannot be eliminated by the exercise of utmost care and 2. is not a matter of common usage.
Define the term equitable relief.
An injunction issued by the court to prohibit a defendent from continuing in a certain course of activity or to require a defendent to perform a certain activity.
Define replevin.
The law that allows you to repossess your property, as long as you do so without breaching the peace.
What is the defense of shopkeepers priviledge?
It is the defense that allows a shopkeeper to hold someone for a reasonable amount of time if they are suspected of shoplifting.
Landowner's duty to Invitee.
warn, inspect, and repair
landowner's duty to licensee.
Landowner's duty to trespasser.
no duty
landowner's duty to infant trespasser.
must take reasonable care if the cost is less than the danger.
Vehicle duties
Passenger- somone who has helped pay for the ride, you owe them more duty
Guest- less duty than a passenger.

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