question

Tort

answer

a violation of a duty imposed by the civil law

question

Intentional Tort

answer

Harm caused by a deliberate action

question

Defamation

answer

Concerns false statements that harm someone's reputation

question

Libel

answer

Written defamation

question

Slander

answer

Oral defamation

question

Elements in a defamation case

answer

Defamatory statement (likely to harm another person's reputation) Statement must be FALSE Communicated to at least one other person other than plaintiff Plaintiff must show some INJURY

question

5 Categories of Intentional Torts

answer

Defamation False Imprisonment Intentional Infliction of Emotional Distress Battery and Assault Trespass, Conversion, and Fraud

question

What are two valid defenses to a claim of defamation?

answer

Opinion Public Personalities

question

Slander per se

answer

statements that are so harsh and potentially damaging that the plaintiff is assumed to be damaged and does not have to prove injury

question

How does opinion relate to the allegation of defamation?

answer

Opinions generally cannot be proven true or false and since plaintiffs must demonstrate a "false" statement, they usually don't amount to defamation

question

Who classifies as public figures?

answer

Government officials, actors, athletes

question

Do public figures get more or less protection from defamation?

answer

LESS

question

Actual malice

answer

the defendant knew the statement was false or acted with reckless disregard of the truth

question

Communications Decency Act (CDA)

answer

provides some immunity to online defamation suits, since it is impossible for service providers to screen each of their million postings for possible problems

question

False Imprisonment

answer

the intentional restraint of another person without reasonable cause and without consent Ex: chaining a customer to a display counter for 3 hours in a retail store because he was suspected of shoplifting

question

Intentional Infliction of Emotional Distress

answer

an intentional tort in which the harm results from extreme and outrageous conduct that causes serious emotional harm

question

Battery

answer

intentional touching of another person in a way that is harmful or offensive

question

Assault

answer

an act that makes a person reasonably fear an imminent battery

question

Trespass

answer

intentionally entering land that belongs to someone else or remaining on the land after being asked to leave

question

Fraud

answer

injuring another person by deliberate deception

question

Conversion

answer

taking or using someone's personal property without consent Ex: Sammy sails away on Jib's boat and keeps it all summer

question

Compensatory damages

answer

an amount of money that the court believes will restore him to the position he was in before the defendant's conduct caused injury

question

What is included in compensatory damages? (examples)

answer

lost wages, past/future medical expenses, pain and suffering

question

Single Recovery Rule

answer

requires a court to settle the matter once and for all by awarding a lump sum for past AND future expenses (if there will be any)

question

Punitive Damages

answer

damages that are intended to punish the defendant for conduct that is extreme and outrageous

question

What must the court consider before awarding punitive damages?

answer

1. the reprehensibility of the defendant's conduct 2. the ratio between the harm suffered and the award 3. the difference between the punitive award and any civil penalties used in similar cases

question

Tortious Interference with Business Relations

answer

an intentional tort in which the defendant improperly induced a third party to breach a contract with the plaintiff

question

What are the elements of tortious interference with a contract?

answer

1. There was a contract 2. The defendant knew of the contract 3. The defendant improperly INDUCED the third party to breach the contract or made performance of the contract impossible 4. There was injury to the plaintiff

question

Justification

answer

a defense to tortious interference with contract claim

question

Tortuous interference with the perspective advantage

answer

malicious interference with a developing economic relationship

question

Intrusion

answer

a tort in which a reasonable person would find the invasion of her private life offensive Ex: peeping through someone's windows

question

Commercial exploitation

answer

the right to commercial exploitation prohibits the use of someone's likeness or voice for commercial purposes without permission Ex: Ford Motor Co. hired singer to imitate Bette Midler's version of a popular song

question

Lanham Act

answer

provides broad protection against false statements intended to hurt another business

question

What must the plaintiff prove to win a Lanham Act case?

answer

1. That the defendant made false or misleading fact statements about the plaintiff's business 2. That the defendants used the statements in commercial advertising or promotion 3. That statements created the likelihood of harm to the plaintiff

question

Negligence

answer

UNINTENTIONAL tort; concerns harm that arises by accident

question

What must the plaintiff prove to win a negligence case?

answer

1. Duty of due care 2. Breach of duty 3. Factual Cause 4. Proximate Cause 5. Damages

question

Duty of due care

answer

- defendant had a legal responsibility to the plaintiff - each of us has a duty to behave as a reasonable person would under the circumstances

question

What is the significance of the Hernandez v. Arizona Board of Regents case?

answer

it decided that anyone serving alcohol to a minor is liable for injuries that result to a third part, and most states follow this to a degree

question

Dram act

answer

a law that makes businesses liable for serving drinks to intoxicated customers who later cause harm - applies to liquor stores, bars, and restaurants that have alcohol

question

Lowest Liability of Landowners?

answer

Trespassing Adults - landowners are only liable if they intentionally injure the trespasser

question

Mid-level liability of landowners?

answer

Trespassing Children - liable if there is some manmade thing on the land that may be reasonable expected to attract children

question

Higher liability of landowners?

answer

Licensees - liable only for injuries caused by hidden dangers or dangers the landowner knows about but does not provide warning

question

Highest liability for landowners?

answer

Invitees - liable even if you had no idea that something on your property posed a hidden danger

question

Landowner's Duty to Social Guests?

answer

social guests are classified as licensees, so landowners have a higher liability for them

question

What special duty does a professional have?

answer

Professionals must act as a reasonable person in their profession while on the job

question

What is the employer's special duty regarding hiring and retention of employees?

answer

Companies can be liable if they know or should know an employee's criminal history and if they are negligent for acting upon an employee who is threatening dangerous things

question

Breach of duty

answer

if the defendant did not meet the legal obligations/duty of care for the plaintiff

question

Negligence per se

answer

when a legislature sets a minimum standard of care for a particular activity, in order to protect a certain group of people, and a violation of the statute injures a member of that group Ex: sniffing glue example

question

Causation

answer

plaintiff must show that the defendant's breach of duty CAUSED the plaintiff's harm

question

Factual Cause

answer

if the defendant's breach led to the ultimate harm

question

Proximate Cause

answer

for the defendant to be liable, the type of harm must have been reasonably foreseeable

question

Res ipsa loquitur

answer

the facts IMPLY that the defendant's negligence caused the accident

question

When does res ipsa loquitur apply?

answer

1. When the defendant had exclusive control of the thing that caused the harm 2. When the harm normally would not have occurred without negligence 3. When the plaintiff had no role in causing the harm

question

Damages

answer

The plaintiff must persuade the court that he has suffered harm that is genuine, not speculative

question

Contributory negligence

answer

if the plaintiff is even slightly negligent, she recovers nothing

question

Comparative negligence

answer

a plaintiff may generally recover even if she is partially responsible

question

Assumption of the Risk

answer

a person who voluntarily enters a situation that has an obvious danger cannot complain if she is injured

question

Strict liability

answer

a branch of tort law that imposes a much higher level of liability, when harm results from ultra-hazardous acts or defective products

question

Ultra-hazardous activity

answer

using harmful chemicals, operating explosives, keeping wild animals, bringing dangerous substances onto property, and similar activities where the danger to the general public is especially great

question

What is the rule about defendant liability for injuries resulting from ultra-hazardous activities?

answer

A defendant engaging in an ultra-hazardous activity is almost always liable for any harm that results - Plaintiff does not have to prove duty or breach or foreseeable harm (proximate cause)

question

Criminal procedure

answer

the process by which criminals are accused, tried, and sentenced

question

What is the purpose of criminal law?

answer

to prohibit and punish conduct that threatens public safety and welfare

question

Restitution

answer

a court order that a guilty defendant reimburse the victim for the harm suffered

question

Beyond a reasonable doubt

answer

the very high burden of proof in a criminal trial, demanding much more certainty than required in a civil trial

question

When does a criminal defendant have a right to a jury trial?

answer

A criminal defendant has a right to a trial by jury for any charge that could result in a sentence of 6 months or longer

question

Felony

answer

a serious crime for which a defendant can be sentenced to 1 year or more in prison

question

Misdemeanor

answer

a less serious crime, often punishable by less than a year in a county jail

question

How are crimes "created"?

answer

by statute; prosecution must demonstrate to the court that the defendant's conduct is indeed outlawed by a statute

question

The Fifth and Fourteenth Amendments require that language of criminal statutes be clear and definite enough that....

answer

1. ordinary people can understand what conduct is prohibited 2. police are discouraged from arbitrary and discriminatory enforcement

question

A defendant is not guilty if she acted under ________

answer

duress (if she was forced to commit the crime)

question

Entrapment

answer

when the government induces the defendant to break the law - then the prosecution must prove beyond a reasonable doubt that the defendant was predisposed to commit the crime

question

Fourth Amendment of the Constitution

answer

prohibits government from making illegal searches and seizures of individuals, corporations, partnerships, and other organizations

question

What must a warrant specify with reasonable certainty?

answer

the place to be searched and the items to be seized

question

Probable Cause

answer

it is likely that evidence of crime will be found in the place to be searched

question

What are the 7 circumstances under which the police may search without a warrant?

answer

1. Plain View 2. Stop and Frisk 3. Emergencies 4. Automobiles 5. Lawful Arrest 6. Consent 7. No Expectation of Privacy

question

Exclusionary rule

answer

evidence obtained illegally may not be used at trial - if police force a confession, this rule prohibits prosecution from using it or any information they obtain as a result of what the defendant has said

question

What are the 2 exceptions to the exclusionary rule?

answer

1. Inevitable Discovery - evidence would have been inevitably discovered without illegal search 2. Good Faith Exception

question

Due process

answer

requires fundamental fairness at all stages of a case

question

Fifth Amendment of the Constitution

answer

bars government from forcing any person to provide evidence against himself

question

Miranda Rights

answer

1. Police cannot legally force suspect to provide evidence against himself 2. Police must remind suspects of their rights

question

What are the 6 stages in the prosecution process after a defendant has been arrested?

answer

1. Indictment 2. Arraignment 3. Discovery 4. Plea Bargaining 5. Trial and Appeal 6. Punishment

question

Double Jeopardy

answer

a criminal defendant may be prosecuted only once for a particular criminal offense

question

Eighth Amendment of the Constitution

answer

prohibits cruel and unusual punishment

question

Larceny

answer

the trespassery taking or personal property with the intent to steal it

question

Fraud

answer

deception for the purpose of obtaining money or property

question

Wire and Mail Fraud

answer

the use of interstate mail, telegram, telephone, radio, or television to obtain property by deceit

question

Theft of Honest Services

answer

prohibits public and private employees from taking bribes or kickbacks

question

Swoop and squat insurance fraud scheme

answer

when people work together hoping to cause an accident with someone else

question

Arson

answer

the malicious use of fire or explosives to damage or destroy real estate or personal property

question

Embezzlement

answer

the fraudulent conversion of property already in the defendant's possession

question

Under what circumstances can a company be held liable for the criminal act of an employee?

answer

The company is liable if an agent commits a criminal act within the scope of his employment and with the intent to benefit the corporation

question

RICO

answer

a powerful Federal statute originally aimed at organized crime, now used in many criminal prosecutions and civil lawsuits

question

What does RICO prohibit?

answer

using 2 or more racketeering acts to accomplish... 1. investing in or acquiring legitimate business with criminal money 2. maintaining or acquiring businesses through criminal activity 3. operating businesses through criminal activity

question

Money laundering

answer

using the proceeds of criminal acts either to promote crime or conceal the source of the money

question

If a corporation commits a crime, how is it punished?

answer

usually with a fine

question

Compliance program

answer

a plan to prevent and detect criminal conduct at all levels of the company

Business Law Chapters 6-8 – Flashcards

Unlock all answers in this set

Haven't found what you were looking for?

Search for samples, answers to your questions and flashcards