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Blaw 275 Exam 2


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Warranty theory of product liability
A product purchaser can sue the firm from which he or she purchased the product and the manufacturer in product liability.
Strict liability
3. There are six requirements:
a. The product must be in a defective condition when the defendant sells it.
b. The defendant must normally be engaged in the business of selling (or otherwise distributing) that product.
c. The product must be unreasonably dangerous to the user or consumer because of its defective condition (in most states).
d. The plaintiff must incur physical harm to self or property by use or injury or damage.
e. The defective condition must be the proximate cause of injury or damage.
f. The goods must not have been substantially changed from the time the product was sold to the time the injury was sustained.
Copyrightable material
It must be an original work and either a literary work, musical work, dramatic work, pantomime and choreographic work, pictoral, graphic, and sculptural work, film and other audiovisual work, or a sound recording. It must be "fixed in a durable medium" from which it can be perceived, reproduced, or communicated.
Restatement (Third) of Torts: Product Liability and Design Defects
5. The restatement defines the three types of product defects that have traditionally been recognized in product liability law:
a. Manufacturing defects - A product contains a manufacturing defect when the product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product. This statement imposes liability on the manufacturer, wholesaler, and retailer regardless of whether the manufacturer acted reasonably. This is strict liability, or liability without fault.
b. Design defects - A product is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product not reasonably safe. A plaintiff must show that there is a reasonably alternative design to succeed in a product suit. Consumer expectations is a factor, and they are liable only when the harm was reasonably preventable.
c. Warning defects - A product is defective because of inadequate instructions or warnings by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the instructions or warnings renders the product not reasonably safe.
Names and trademarks
A trademark is a distinctive mark, motto, device, or emblem that a manufacturer stamps, prints, or otherwise affixes to the goods it produces so that they can be identified on the market and their origins made known. Once a trademark is established (under the common law or through registration), the owner is entitled to its exclusive use. It is NOT protected under federal law and CAN'T be registered with the federal government UNLESS it is the same as the business's trademarked product.
Role of administrative law judges
One who presides over an administrative agency hearing and who has the power to administer oaths, take testimony, rule on questions of evidence, and make determination of fact. The ALJ works for the agency, but they must be unbiased. The agency attempts to control this by separating them from the agency's investigative and prosecutorial staff. The ALJ is not allowed to have ex parte communications which means no one can have a conversation with the judge without the other side being there. If there is no appeal, the ALJ decision is the final order. This is all in the Administrative Procedure Act.
Invasion of privacy
8. There are four acts:
a. The use of a person's name, picture, or other likeness for commercial purposes without permission.
b. Intrusion in an individuals affairs or seclusion: invading one's home, eavesdropping by wiretap, unauthorized scanning of bank account, and window peeping.
c. Publication of information that places a person in a false light
d. Public disclosure of private facts about an individual that an ordinary person would find objectionable.
TRIPS agreement
Trade-Related Aspects of Intellectual Property Rights in 1994. It established standards for the international protection of intellectual property rights, including patents, trademarks, and copyrights for movies, computer programs, books, and music. It is signed by representatives of more than one hundred nations. The TRIPS agreement provides that each member country must include in its domestic laws broad intellectual property rights and effective remedies (including civil and criminal penalties) for violations of these rights. It offers the same protection for foreign companies as domestic companies.
Elements of negligence
10. It is failure to live up to a required duty of care that a reasonable person would exercise in similar circumstances. Individuals with superior knowledge, skill, or intelligence have a higher standard of care. There are four questions to figure out if someone is guilty of negligence. A breach is considered an act or an omission; intentional or careless, and it is unavoidably dangerous.
a. Did the defendant owe a duty of care to the plaintiff?
b. Did the defendant breach that duty?
c. Did the plaintiff suffer a legally recognizable injury as a result of the defendant's breach of duty of care?
d. Did the defendant's breach cause the plaintiff's injury? (causation)
Causation in fact - was it foreseeable? Causation in fact is if an injury would not have occurred without the breach. The But-for test is But for the wrongful act, an injury would not have occurred.
Legal causation - would they have been hurt if it wasn't for this event?
Proximate cause is a question of the law. Is connection between an act and an injury strong enough to justify imposing liability?
You have a duty to protect business invitees. If you have a duty to do something, and you don't fulfill that, it can be considered a breach. A person can receive compensatory and punitive damages. Punitive damages are huge amounts of damages as punishment. You must either have injuries or damages in order to recover something.
Defenses to torts
Intentional Torts Against Persons
a. Defenses to Assault and Battery
i. Consent - only so long as the defendant remains within boundaries of consent given
ii. Self-defense - whatever force is reasonably necessary to prevent harmful contact. It ends when danger passes.
iii. Defense of others.
iv. Defense of property - not force that causes death or great bodily harm. People are entailed to use reasonable force against any battery against them.
b. Defamation
i. Truth
ii. Privilege (e.g. judge during trial)
iii. Lack of actual malice - as to public figures in the press
Intentional Torts Against Property
c. Trespass to Land - Trespass warranted to help one in danger
d. Trespass to Personal Property - warranted trespass is conversion, when the purported owner has no rights or necessity.
Unintentional Torts
e. Negligence
i. Assumption of the risk: injured party knew of the risk and voluntarily assumed it
ii. Superceding intervening force
iii. Contributory negligence (last clear chance)
iv. Comparative negligence (where two parties are involved)
Product liability based on negligence
Negligence is the failure to exercise the degree of care that a reasonable, prudent person would have exercised under the circumstances. Due care must be exercised in designing the product, selecting the materials, using the appropriate production process, assembling the product, placing adequate warnings on the label informing the user or dangers of which an ordinary person might not be aware, and inspection and testing. A manufacturer is liable for its failure to exercise due care to any person who sustains an injury proximately caused by a negligently made (defective) product, regardless of whether the injured person is in privity of contract with the negligent defendant manufacturer or lesser.
A person can sue for injuries incurred from a product that was negligently manufactured.
Delegation doctrine
It allows Congress to delegate some power and to establish administrative agencies that can create rules and implement laws.
Motives in intentional torts
The person must intend to commit an act, the consequences of which interfere with the personal or business interests of another in a way not permitted by law. Intent is when the actor intended the consequences of his or her act or knew with substantial certainty that certain consequences would result form the act. One normally intends the normal consequences of his or her actions. An evil or harmful motive is not required.
16. The actions undertaken by administrative agencies when formally adopting new regulations or amending old ones. Under the Administrative Procedure Act, there are 3 steps for notice-and-comment rulemaking, the most common procedure:
a. Notice of the proposed rulemaking - The notice is published in the Federal Register. It states where and when proceedings will be held and state agency's authority for making the rule. It states the term or subject matter.
b. Comment period - They must allow ample time for persons to comment on the proposed rule. The agency may accept comments after the comment period is closed. The agency should summarize these ex parte (private, off the record) comments for possible review. Comments must either be submitted in writing or at a hearing. The agency must respond in modification of the rule or explanation.
c. Final rule - After the comments are reviewed, the final rule is drafted and published in the Federal Register and the Code of Federal Regulations (C.F.R.). Final rules have binding legal effect unless the courts later overturn them.
In criminal law, a defense in which the defendant claims that he or she was induced by a public official - usually an undercover agent or police officer - to commit a crime that he or she would otherwise not have committed. For entrapment to be considered a defense, both the suggestion and the inducement must take place.
Comparative negligence
A theory in tort law under which the liability for injuries resulting from negligent acts is shared by all persons who were guilty of negligence, on the basis of each person's proportionate carelessness. It enables both the plaintiff's and the defendant's negligence to be computed and the liability for damages distributed accordingly.
Contributory negligence
A theory in tort law under which a complaining party's own negligence contributed to or caused his or her injuries. In some cases this is an absolute bar to recovering damages. No matter how insignificant the plaintiff's negligence is relative to the defendant's negligence, the plaintiff will be precluded from recovering any damages. An exception may be if the defendant failed to take advantage of an opportunity to avoid causing the damage.
Coca-Cola vs. Koke
Coca Cola company brought an action in a federal district court to prevent other beverage companies from using the words Koke and Dope for the defendants products. The defendants contended that the Coca Cola Trademark was a fraudulent representation and that Coca Cola was therefore not entitled to any help from the courts. Defendants alleged the coca cola company represented that the beverage contained cocaine. The us supreme court upheld the coca cola name, and prevented other companies from using the name koke. The us supreme court made it clear that trademarks and trade names are in common use receive protection under the common law.
Theft of trade secrets via the Internet
emailing of secrets, transfer to disk
Congressional authority over administrative agencies
Through enabling legislation, Congress gives power to an agency. Congress can take away that power or even abolish an agency. Congress has the authority to investigate agencies and how they are implementing the laws. Congress also funds the agencies.
Exceptions to copyright protection
Anything that is not an original expression will not qualify for copyright protection. Facts widely known to the public are not copyrightable. An idea is not copyrightable, only the expression of that idea. Fair use doctrine - EXCEPTION - purpose and character of use, nature of work, amount and substantiality of portion used, effect of use upon potential market
Mail fraud
It is a federal crime to use mails to defraud the public. Illegal use of the mails must involve mailing or causing someone else to mail a writing - something written, printed, or photocopied - for the purpose of executing a scheme to defraud and a contemplated or an organized scheme to defraud by false pretenses. Any kind of fraud you commit by using the mail.
wire fraud
to use wire (ex. telephone), radio, and tv transmissions to defraud, any kind of fraud you commit by an electronic method.
Elements of crimes
Criminal Act
a. Actus reus is the guilty act.
b. Some acts of omission are crimes.
c. Attempting certain acts may be crimes. They require substantial steps toward criminal objective.
d. Theft act is taking another person's property.
Criminal Intent
e. Mens rea is the wrongful mental state.
f. It varies according to act.
g. Mental state is knowledge that the property is another's and the person has an intent to deprive.
The wrongful taking and carrying away of another person's personal property with the intent to permanently deprive the owner of the property. Some states classify larceny as either grand or petit, depending on the property's value.
It is giving someone something they want in exchange for money. This is illegal. Business entertainment is right on the line of bribery.
The fraudulent making or altering of any writing in a way that changes the legal rights and liabilities of another. It is pretending to be someone else.
The act of forcefully and unlawfully taking personal property of any value from another; force and intimidation is usually necessary for an act of theft to be considered a robbery. It is considered a violent crime. There are usually more severe penalties for aggravated robbery, which is robbery with the use of a deadly weapon.
The fraudulent appropriation of funds or other property by a person to whom such items have been entrusted. It typically involves an employee who steals funds from a company.
Registration of trademarks
Trademarks may be registered with the state or federal government. To register for protection under federal trademark law, a person must file an application with the U.S. Patent and Trademark Office in Washington, D.C. Under current law, a mark can be registered if it is currently in commerce, or if the applicant intends to put the mark into commerce within six months. Registration is renewable between the fifth and sixth years after the initial registration and every twenty years thereafter.
Assumption of the risk
A doctrine whereby a plaintiff may not recover for injuries or damages suffered from risks he or she knew of and voluntarily assumed. Risks are not deemed to be assumed in situations involving emergencies. Neither are they assumed when a statute protects a class of people from harm and a member of the class is injured by the harm. This relates to product defects; if someone knows that a product has a defect and still uses it, this is assumption of the risk.
Product misuse
Injured party does NOT know that the product is dangerous for a particular use, but the use is not the one for which the product was designed. This is limitedly applicable. Even if the injured party does not know about the inherent danger of using the product in a wrong way, if the misuse is foreseeable, the seller must take measures to guard against it.
Anything published or publicly spoken that causes injury to another's good name, reputation, or character. Breaching this duty orally involves the tort of slander; breaching it in writing (or some quality of permanence) involves the tort of libel. The tort of defamation also arises when a false statement is made about a person's product, business, or title to property. There are four types of false utterances that are considered slander per se (there doesn't need to be proof): A statement that another has a loathsome communicable disease, A statement that another has committed improprieties while engaging in a profession or trade, A statement that another has committed or has been imprisoned for a serious crime, and a statement that a woman is unchaste. Slander per se is when there is no proof of damages. If a third party overhears defamation, the courts will usually hold that this constitutes publication (libel). Any individual who republishes or repeats defamatory statements is liable even if that person reveals the source of those statements. Truth is a defense. The defendant can say that they were privileged communications. Privileged communication either has to absolute or qualified. Statements made about public figures are considered privileged if they are made without actual malice.
Assault and battery
Assault is any word or action intended to make another person fearful of immediate physical harm; a reasonably believable threat. Battery is the completion of the act that caused apprehension. It is the unprivileged, intentional touching of another. There are four main defenses to assault and battery. They are consent, self-defense, defense of others, and defense of property. The victim doesn't need to be afraid, just apprehensive. Right to personal security and safety, contact can be with any part of body or anything attached to it, including the automobile in which one is sitting. Contact can be by a force defendant sets in motion. Damages - physical harm, emotional, or reputation. Defenses to assault and battery are consent, only so long as defendant remains within the boundaries of consent given. Self-defense is whatever force is reasonably necessary to prevent harmful contact. Real and apparent danger is another defense - this ends when danger passes. Defense of property . This cannot be a force that causes death or great bodily harm. You are entitled to use reasonable force against any battery against you.
Statutes of limitations
This is for civil wrongs. Statute of limitations is when you have a certain amount of time to bring a person to justice, if after this time period they can admit that they did it and they can't be prosecuted.
Statutes of repose
It is a variation on the statutes of limitations. They are laws that place time limits on some claims so that defendants will not be vulnerable to lawsuits indefinitely.
Independent administrative agencies
An administrative agency that is not considered part of the government's executive branch and is not subject to the president's authority, even though he/she has the power to influence. Agency officials served fixed terms and cannot be removed without a cause. (ex. Federal Trade Commission, Federal Reserve)
Executive administrative agencies
An administrative agency that is either a cabinet department or a subagency within a cabinet department. Executive agencies fall under the authority of the president, who has the power to appoint and remove federal officers. (ex. Department of Labor, Occupational Safety and Health Administration)
Berne Convention
It is an international copyright agreement. If a citizen of a country that has signed the agreement writes a book, her or his copyright in the book must be recognized by every country that has signed this agreement. Also, if a citizen of a country that has not signed the convention first publishes a book in a country that has signed it, all other countries that have signed it must recognize the author's copyright. It was in 1886.
Exclusionary rule
In a criminal procedure, a rule under which any evidence obtained in violation of the accused's constitutional rights guaranteed by the Fourth, Fifth, and Sixth Amendments, as well as any evidence derived from illegally obtained evidence, will not be admissible in court. The purpose of the exclusionary rule is to deter police from conducting warrantless searches and from engaging in other misconduct.
Standards of care in negligence cases
Duty is measured by reasonableness. How would a reasonable person act in the same circumstances? Individuals with superior knowledge, skill, or intelligence have higher standards of care. Due care must be exercised in designing the product, selecting the materials, using the appropriate production process, assembling the product, and placing adequate warnings on the label informing the use of dangers of which an ordinary person might not be aware. The duty of care also extends to the inspection and testing of any purchased products that are used in the final product sold by the manufacturer.
Certification marks
A certification mark is used by one or more persons other than the owner to certify the region, materials, mode of manufacture, quality or accuracy of the owner's goods or services.
Collective marks
when used by members of a cooperative, association, or other organization.
Service marks
A mark used in the sale or advertising of services to distinguish the services of one person or company from those of others.
Trade dress
The image and overall appearance of a product, for ex, the distinctive décor, menu, layout, and style of service of a particular restaurant. Basically, trade dress is subject to the same protection as trademarks. What is questioned is whether the consumers are likely to be confused by the allegedly infringing use.
Defamation over the internet
ISP's are not liable for defamatory material under the Communications Decency Act of 1996. ISPs can disclose information about their customers only when ordered to do so by a court. Lawsuits are beginning against John Does and then with the authority of the court, they can find out the identity of the person who made the defamatory message.
Court review of administrative agencies
The APA provides for judicial review of most agency's decisions. Parties seeking review must demonstrate that they meet certain requirements: the action must be reviewable by the court, the party must have standing to sue the agency, the party must have exhausted all possible administrative remedies, and there must be an actual controversy at issue. The courts are reluctant to review the factual findings of agencies. The court normally considers the following types of issues: whether the agency has exceeded its authority under its enabling legislation, whether the agency has properly interpreted laws applicable to the agency action under review, whether the agency has violated any constitutional provisions, whether the agency has acted in accordance with procedural requirements of the law, whether the agency's actions were arbitrary, capricious, or an abuse of discretion, and whether any conclusions drawn by the agency are not supported by substantial evidence.
51. Before a person can be a trespasser, the owner must establish that person as a trespasser. Any person who enters onto your property to commit an illegal act is established impliedly as a trespasser, without posted signs.
a. Trespass to Land -
i. The entry onto, above, or below the surface of land owned by another without the owner's permission or legal authorization.
ii. Remaining or permitting anything to remain on the land
iii. Harm to the land is not required.
iv. Reasonable intrusions are permitted.
v. Guests who are asked to leave are considered trespassers.
vi. Trespasser assumes the risks of the premises - except for traps. Children do not assume the risks of the premises if they are attracted to the premises by some object.
vii. Trespassers can be removed by reasonable force.
b. Trespass to Personal Property -
i. The unlawful taking or harming of another's personal property; interference with another's right to the exclusive possession of his or her personal property.
ii. Includes acts of damage, dispossession, or both.
c. Defenses
i. Trespasser enters to assist someone in danger
ii. Had a license to come onto the land
iii. Warranted trespass
Patent infringement
If a firm makes, uses, or sells another's patented design, product, or process without the patent owner's permission, it commits the tort of patent infringement. All of the parts don't need to be copied for patent infringement.
Product liability based on misrepresentation
fraudulent misrepresentations resulting in an injury. An example is intentional mislabeling of packaged cosmetics and intentional concealment of product's defects. Nonfraudulent misrepresentation - merchant innocently misrepresents character or quality of goods - not knowingly. In either case, misrepresentation must be of a MATERIAL fact. Quality, nature, or appropriate use. Intent to induce buyer's reliance. Buyer's reliance - must be reasonable, if buyer is not aware of misrepresentation or it doesn't influence the transaction - NO LIABILITY.
Investigation powers of administrative agencies
A typical agency investigation occurs during the rulemaking process to obtain information about a certain individual, firm, or industry. This is to try and issue a rule based on relevant factors. After final rules are issued agencies conduct investigations to monitor compliance with those rules. Agencies use inspections and tests to prove regulatory violations or to show the need to correct or prevent an undesirable condition. Inspections and tests are in place of a formal hearing, and agency can use subpoenas or search warrants. They can't investigate for no good reason - they have to be consistent and follow their rules, and not investigate one person but not another. Limits to subpoenas- purpose of investigation, and relevancy, specificity of the demand, and burden of the demand. Subpoena is an order directing someone to appear at a certain place. Ad testificandum is coming to testify and duces tecum is to bring something like record or documents, can't ask them to provide information about something that the agency isn't even investigating. Search warrants are generally required, exception is for highly regulated industries, hazardous operations, and emergencies.

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