Business Law Unit 3 - Flashcards

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Stiles is much stronger than Ben and threatens to beat Ben, then punches him in the face, and knocks out a tooth. Ben will probably bring a lawsuit against Stiles

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for assault and battery because there was both threat and a harmful action.

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Which of the following has nothing to do with false imprisonment?

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You are made fearful of unwanted and possibly harmful contact with another person.

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Hank may be able to sue his neighbor Larson for ______ if Larson sends Hank a text message telling him that his wife was killed in a car accident even though Hank knew that it was untrue

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infliction of emotional distress

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Defamation (libel or SLANDER): Invasion of Privacy

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A false statement of fact, not made under PRIVILEGE, that is communicated to a third person and that causes damage to a person's reputation. For public figures, the plaintiff must also prove that the statement was made with actual MALICE. Publishing or otherwise making known or using information relating to a person's PRIVATE life and affairs, with which the public has no legitimate concern, without that person's PERMISSION or approval.

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The basic purpose of tort law is to punish criminal wrongdoers.

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False

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Assault

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Any intentional and unexcused threat of immediate harmful or offensive contact

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Battery

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An unexcused and harmful or offensive physical contact intentionally performed.

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General Damages

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Intended to compensate individuals (but not companies) for the nonmonetary aspects of the harm suffered from a tort, such as pain and suffering

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Special Damages

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Intended to compensate the plaintiff for quantifiable monetary losses, such as medical expenses

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Punitive Damages

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Awarded in tort cases to punish the wrongdoer and to deter others from similar wrongdoing

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Compensatory Damages

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Intended to compensate or reimburse a plaintiff for actual losses

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Order of Main elements of fraudulent misrepresenation

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1. A misrepresentation of materials facts with knowledge of their falsity 2. An intent to cause another party to rely on the misrepresentation 3. Justifiable reliance on the misrepresentation 4. Damages suffered as a result of that reliance 5. A causal connection between the misrepresentation and the injury suffered

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There are two broad classications of torts:

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intentional torts; and unintentional torts

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Because an intentional tort requires intent, a harmful motive is required.

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False

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A person who commits a tort is known as a:

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tortfeasor

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Trespass to land has nothing to do with obtaining permission for use of that land.

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False

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Trespass to land requires that a person ______on the land.

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Remains

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For trespass to land occur you have to ________onto, above, or below the land surface owned by another.

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enter

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A real property owner must ______that a person is a trespasser.

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establish

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A guest in your home is typically ______ a trespasser.

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not

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In our freely competitive economy, businesses have no limits on how they can attract customers.

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false

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When you borrow a friend's tablet device and refuse to give it back, you have committed trespass to land.

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False

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Which of the following acts normally do NOT constitute a conversion?

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Temporarily borrowing a friend's textbook and then returning it.

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Disparagement of Property

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Occurs when economically injurious falsehoods are made about another's product or property

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Slander of Title

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Publishing false information about another's legal ownership of property that results in financial loss to the property's owner

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Which of the following is NOT an element of the tort of wrongful interference with a contractual relationship.

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A third party must unintentionally cause one of the parties to break the contract.

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Competing via aggressive marketing and advertising strategies is ______interference with a business relationship.

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usually permissible

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You are given permission to use Alvie's land for a one-day four-wheeled drive event. Your own truck breaks down during the event so you leave it on Alvie's property. Most likely you have committed

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trespass to land.

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The reasonable person standard concerns itself with how a particular person would act and not with how an ordinarily prudent person should act.

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False

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Contributory Negligence

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A theory in tort law in which a complaining party's own negligence contributed to or cased his or her injuries.

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Comparative Negligence

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A theory in tort law under which the liability for injuries resulting from negligent acts is shared by all parties who were negligent (including the injured party), on the basis of each person's proportionate negligence.

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Cooktop, Inc., manufactures cooktops on which Juarez burns his fingers. Has Cooktop, Inc. unreasonably violated its standard duty of care?

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No, because stoves get hot and some people get burned when they are careless.

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Which of the following questions does a court NOT ask to determine whether the requirement of causation is met?

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Was there intent?

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An intervening event that acts as a superseding (overriding) cause may relieve the defendant of liability for injuries caused by the intervening event.

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True

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Assumption of risk does NOT require

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seeking out the riskiest activities.

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Order of elements required to succeed in a negligence action

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Duty>Breach>Causation>Damages

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Negligence ________may occur if an individual violates a statute providing for a criminal penalty if that violation causes another to be harmed.

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per se

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______ statutes exist to protect, as an example, medical personnel who volunteer their services in emergency situations.

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Good Samaritan

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_____ -shop acts imposes liability on bartenders who have served too much alcohol to those who are involved in accidents after leaving the bar.

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Dram

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The difference between intentional torts and torts involving negligence is that, in torts involving negligence, the tortfeaser does NOT wish to bring about the consequence of the act, nor does she or he believe that they will occur.

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True

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You accidentally bump into someone on the sidewalk and that person falls, but is unharmed. Nonetheless, that person usually can successfully sue you for damages?

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False

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Those who enter retail premises are called business_____ .

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invitees

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Storeowners must warn business invitees of ______risks.

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foreseeable

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A landowner has a duty to discover and remove any _____ dangers to customers or other invitees.

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hidden

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When risks are so ______, owners need not warn of them.

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obvious

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Austin, Texas has passed a local ordinance that provides all motor vehicles must provide at least three feet of clearance when passing a bicycle. Ted is driving his vehicle and accidentally hits Zoey. His actions of violating the local ordinance and hitting Zoey constitute

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negligence per se.

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Andy decides to go skydiving for his 40th birthday. He signs a waiver, boards the plane and prepares for the jump. Everything is going smoothly until just before landing a down draft forces Andy down at a much faster rate into the ground, causing injury to both of his legs. Andy will likely not be able to recover for his injuries under the defense of

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assumption of the risk.

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Mark is a famous syndicated radio personality for TalkRadio. He has a distinctive voice and manner of speaking. MoreTalk hires Gordon, who sounds nearly identical to Mark, to host a competing show. MoreTalk encourages Gordon to imitate Mark as closely as possible while on the air. MoreTalk is most likely to be liable for

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appropriation

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Doug obtains permission to be on Nathan's land for one day to hold a four-wheeling event. Doug's truck breaks down, and instead of removing it, he leaves it on Nathan's property for several days after the event. Doug has most likely committed

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trespass to land.

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The members of the City High soccer team have been training with Hanson, a personal trainer who charges by the hour, for several years. Bob, the soccer coach, tells the team members that they must now train with Martin, not Hanson, or they will be kicked off the team. All of Hanson's clients immediately stop training with Hanson. Bob is most likely to have committed

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wrongful interference with a business relationship.

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The state of Texas has placed caps on noneconomic damages in medical malpractice causes of action. This type of limitation on damages is

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an example of tort reform.

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While Jessica, Ashley, and Bryan are snowboarding, they ignore warning signs indicating that they have left the marked trail and are entering dangerous territory. They become lost, and a rescue effort begins. Climbing the mountain, a snowplow accidentally cuts a nearby town's main electrical cable. Due to the loss of her electric heat, Ethel, an elderly woman, dies of hypothermia. The boarders' negligence in ignoring the warning signs is

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the causation in fact, but not the proximate cause, of Ethel's death.

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Cory opens a small jewelry store but has difficulty competing with Bling Jewels, a much larger firm. In his newspaper ad, Cory includes the false statement, "Bling Jewels sells stolen diamonds." Bling experiences an immediate decrease in sales. Cory has most likely committed the tort of

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slander of title.

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Mel sent Jasper an e-mail message telling Jasper that his wife had been killed in a car accident, and Mel knew this was untrue. Jasper may be able to sue Mel for

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infliction of emotional distress.

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Theories on which product liability may NOT normally be based

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invasion of privacy; unconstitutionality

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Privity of contract refers to the relationship that exists between the parties to a contract.

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True

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Privity of contract is required when a person injured by a defective product sues the manufacturer or seller.

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False

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When a user or customer is injured because of fraudulent misrepresentation, the basis of liability may be the tort of fraud.

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True

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Today, the doctrine of strict liability has NOT yet been accepted in America.

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False

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The best definition of strict liability is _______ .

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liability without fault

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What is the one area in the list below in which manufacturers do NOT have to use due care?

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Using adequate test marketing.

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The modern concept of strict liability traces its origins, in part, to what famous English case?

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Rylands v. Fletcher

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Exon owned a gas station in Virginia that had five underground storage tanks that were not properly maintained. ABC, Inc., buys the property and discovers gasoline contamination of the soil. ABC sues, contending that Exon should be held strictly liable for cleaning up. ABC will prevail.

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False

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Examples of abnormally dangerous activities for the purpose of applying the doctrine of strict liability:

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Storing explosives in a tool shed; blasting large rocks to clear land; demolition of a large apartment building in the city

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The landmark case in strict product liability was:

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Greenman v. Yuba Power Products, Inc.

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The doctrine of strict product liability does NOT apply to which of the following?

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Advertising agencies

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In a strict product liability lawsuit, the product must be in a defective condition when the defendant sells it.

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True

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In a strict product liability lawsuit, the plaintiff has to show why or in what manner the product became defective.

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False

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Because many products cannot be made 100 percent safe for all uses, sellers are only liable for products that are

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unreasonably dangerous

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Jake buys and uses a large broom. The handle breaks while in use but does not harm Jake. Therefore, he can sue under the doctrine of strict product liability and win:

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he cannot sue because he did not incur physical harm

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Jake's son unscrews the broom handle and uses it to load gunpowder into a small cannon. The broom handle breaks and injures the boy. Why can't Jake sue the broom manufacturer?

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Because the broom handle was substantially changed from its initial purpose

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When a manufacturer argues that it engaged in reasonable quality control efforts, that argument will act as a sufficient defense in a strict product liability lawsuit.

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False

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A reasonable _______ design was available.

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alternative

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The defendant's failure to ______ the alternative design rendered to product _______ reasonably ________.

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adopt; not; safe

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________ occurs when courts look at the risk of harm from a product as designed compared to the utility to the user and to the public.

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Risk-utility analysis

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Gunter installs a large glass door in his house and then runs into it, breaking his nose. Gunter sues the manufacturer because he was not warned about the possibility of such an injury. Will Gunter prevail in his lawsuit?

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No, because everyone knows that glass doors can be run into and therefore the manufacturer does not have to provide such a warning.

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Haslo, Inc. manufactures outdoor games for children ages 10 to 12. Any warnings placed on the games should be bright, bold, and presented on simple labels.

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True

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There is no _____to warn about risks that are commonly known.

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duty

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A seller must warn those who purchase its product of the harm that can result from the _______misuse of the product.

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foreseeable

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Courts apply a ___________ test to determine if the warnings adequately alert consumers to the product's risks.

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reasonableness

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Market share liability is a theory used to require that an injury was caused by a specific defendant.

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False

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The doctrine of strict product liability applies to suppliers of component parts.

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True

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One good defense against strict product liability is that ____ .

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the goods were altered after they were sold

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Individuals who frequently buy and consume supersized portions of food will not succeed in lawsuits against the manufacturers if they become overweight.

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True

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Statutes of repose often allow for unlimited liability for manufacturers of defective products, no matter how far in the past.

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False

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Halogenics, Inc., manufactures a medical device that is heavily regulated by the government and has to undergo a rigorous pre-market approval process. Halogenics can use the following defense if it is sued:

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Preemption

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In product liability suits, statutes of limitations normally are set by

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state law

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Product misuse obviously occurs when a product is used for a purpose other than what it was intended for. The courts recognize this defense in almost all lawsuits today.

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False

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When the defense of comparative negligence is successful at trial, it completely absolves the defendant of liability.

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False

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Monsanto sends out registered letters, e-mails, and places ads in local newspapers where it sold a defective weed killer. Huntington knows of the recall but ignores it, applies the weed killer to his crops, and suffers damages. Which defense can Monsanto use at trial?

answer

Assumption of risk

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Why can't you sue the manufacturer when a sharp knife cuts you?

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Because there is a commonly known danger of cutting oneself when using a knife.

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Sometimes the defense of assumption of risk may work in a product liability action.

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True

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Glen is a dairy farmer who owns 500 milk cows. His fences are in poor repair, and his cows are often found eating the grass on Hank's land. Hank believes that Glen is responsible for damages to Hank's land on a theory of strict liability. The court will most likely find that Glen is

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none of the other choices are correct.

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David's family purchased a trampoline in 2000. They sold the trampoline at a garage sale in 2010 to Zac's family. In 2012, Zac's son is injury while jumping on the trampoline when it collapses. If they sue the trampoline manufacturer in 2013, their lawsuit will likely be dismissed based on the

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statute of repose.

question

Harvey is driving while intoxicated in his new truck when his tire blows out. He loses control of the truck and crashes into a tree causing injury to himself and to his vehicle. The tire is determined to be defective. Which of the following defenses would be the most viable to be raised by the tire manufacturer in a product liability cause of action?

answer

Comparative negligence.

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Martha is walking from her office building to her car in a torrential downpour with an umbrella manufactured by Umbrellas USA, Inc. She is struck by lightening, and files suit claiming the manufacturer failed to include a warning. A court would likely find that

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there is no duty to warn about risks that are obvious or commonly known, such as the risk of lightening occurring during a rainstorm.

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Exxon owned a gasoline station in Virginia that it used for years. The station had five underground gasoline storage tanks that were not properly maintained. The property was sold to AFA, which discovered gasoline contamination of the soil. AFA filed a lawsuit in Virginia state court contending that Exxon should be held strictly liable for the cost of cleaning up the property. The court most likely found that Exxon was

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not liable, because gasoline storage is not an abnormally dangerous activity.

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Pierre has a radio show in the evening that he calls "Pierre in the PM" and he uses that label in print ads. Pierre most likely can register "Pierre in the PM" as a

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service mark

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A chain of organic fast food restaurants uses the same distinctive colors, furniture, labels, logos, and employee uniforms. This unique ambiance is known as trade dress, which is NOT, however, as good as trademark protection.

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False

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Unless a trade name is used as a trademark or service mark, it cannot be registered with the federal government.

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True

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A patent lasts for _________ years.

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20

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The most important statutory protection for trademarks is the:

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Lanham Act

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Under the Trademark Dilution Revision Act, to state a claim for trademark dilution, a plaintiff must prove that:

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1. The plaintiff owns a FAMOUS mark that is distinctive, 2. The defendant has begun using a mark in commence that allegedly is DILUTING the famous mark. 3. The similarity between the defendant's mark and the famous mark gives rise to an ASSOCIATION between the marks. 4. The association is likely to IMPAIR the DISTINCTIVENESS of the famous mark or harm its REPUTATION.

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A trademark is a distinctive mark or motto that a manufacturer stamps, prints, or otherwise affixes to its own goods.

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True

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Subsequent to the America Invents Act (2011), the first person to file a patent application receives patent protection.

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True

question

Which example in the following list is unrelated to the concept of intellectual property.

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Land

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To be patentable, an invention, discovery, process, or design must be:

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novel, useful, and not obvious.

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Patent infringement is a crime.

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False

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Pick which of the following names probably will NOT obtain trademark protection.

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Fast Speed

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Certification Mark

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A mark used by one or more persons, other than the owners, to certify the region, materials, mode of manufacture, quality, or accuracy of the owner's goods or services.

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Service Mark

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A mark used in the sale or the advertising of services, such as to distinguish the services of one person from the services of others.

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Collective Mark

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A mark used by members of a cooperative, association, or other organization to certify the region, materials, mode of manufacture, quality or accuracy of the specific goods or services.

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Syrup Company creates a drink with coffee and chocolate and sells it under the name MochaMerge. Alpha Corporation starts selling a similar product under the name MokaMerge. This is most likely a matter of

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trademark infringement

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Silverado Foods, Inc., wishes to obtain trademark protection for a product it sells that it has named Salad Dressing, but will probably be unable to do so because the phrase is generic.

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True

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A color scheme can never qualify for trademark protection.

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False

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_______________________ is NOT copyrightable.

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An original idea

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In 2014, Sven writes his memoirs called My Life in Lapland. Sven does not register a copyright. Under federal copyright laws, Sven's book is:

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protected for his life, plus 70 years.

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The white pages of a telephone directory cannot be copyrighted, but the yellow pages might qualify for copyright protection because the:

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yellow page information is usually selected and arranged in an original way.

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In determining "fair use" of copyrighted material, the effect of that use upon the potential market for or value of the copyrighted work is often the most important factor for the courts to consider.

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True

question

Because the Copyright Act has a first-sale doctrine, once you buy a book, you are NOT allowed to resell it.

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False

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In 1980, Congress passed the _____________ , which amended the Copyright Act to include computer programs.

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Computer Software Copyright Act

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A copyright is an intangible property right, meaning that you can touch and feel it.

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False

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_____________works (including newspaper and magazine articles, computer and training manuals, catalogues, brochures, and print advertisements).

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literary

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________ works and accompanying words (including advertising jingles).

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musical

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_________works and accompanying music.

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dramatic

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Pantomimes and ________ works (including ballets and other forms of dance).

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choreographic

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Pictorial, ________, and sculptural works (including cartoons, maps, posters, statues, and even stuffed animals).

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graphic

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Motion pictures and other ________works (including multimedia works).

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audiovisual

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recordings.

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sound

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works.

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architectural

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Under the ___________ , when a U.S. citizen writes a book, every signatory to that convention recognizes the U.S. author's copyright.

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Berne Convention

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The _______Agreement established standards for international protection of patents, trademarks, and copyrights.

answer

TRIPS

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The _______Protocol allows a U.S. company to register its trademark abroad by submitting a single application and designating in which other countries the trademark shall be registered.

answer

Madrid

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In 2011, a number of nations signed The __________ Trade Agreement to combat piracy and global counterfeiting.

answer

Anti-Counterfeiting

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Under all circumstances, the duration of trade secrets is forever.

answer

False

question

Choose which from the following list is NOT a trade secret:

answer

A marketing logo

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GameBuilder, Inc., has an idea for a new massively multiplayer online game and assigns Tina the task of programming it, which she undertakes. Tina then quits, goes to work for a competitor, and takes the files she has developed. Under trade secrecy laws, GameBuilder, Inc., has protection for:

answer

the information in the files and Tina's ideas for the game design

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Because there is no contract between an outsider who steals confidential business data by industrial espionage, there can be no violation of trade secrets.

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False

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Most states laws with respect to protection of information of a commercial value are based on the:

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Uniform Trade Secrets Act.

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If a business process and information relating to that process cannot be patented, copyrighted, or trademarked against appropriation by competitors, there is nothing that a business can do.

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False

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Rachel has just finished the business plan for a franchise that she expects to have international appeal. She is concerned about protecting the trade name of the business. Which of the following provides her an avenue for registering a trade name internationally?

answer

The Madrid Protocol.

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Without permission, Sally copies photographs from Isaiah's book Mount Everest: Top of the World and uses them in a new book. Sally's book is about photography, not mountains. Sally's use of the photos is

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an infringement of Isaiah's copyright.

question

Hot Products owns a patent for a fan motor that it uses in ceiling fans. Allied Electric uses a fan motor that is identical to Hot's in the air conditioners it manufactures. Allied does not have Hot's permission to use the motor. Can Hot sue Allied for patent infringement?

answer

Yes, because Allied infringed on Hot's patent,

question

Alpha Corp. creates a syrup that is flavored with coffee and chocolate and sells it under the name MochaMerge. Beta Co. begins to sell a similar product under the name MokaMerge. This is most likely a matter of

answer

trademark infringement.

question

On the Border Mexican restaurants all have the same terracotta and turquoise color scheme, with posters of bullfighters and maps of Mexico on the walls. The restaurants also have identical furniture and menus, the wait staff wear similar types of clothing, and the same music plays in the background. The restaurants have a unique ambience, known in legal terms as their

answer

trade dress

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Cason thinks of a new concept for a palm-sized computer notebook. He also thinks of a new, faster process for producing the notebooks. Federal copyright law protects

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neither Cason's concept nor his process.

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A&O is the software designer of the most popular video game in the country. A&O decides to develop the game into a series and have its best designer, Laz, head the team of programmers working on the next game. Laz quits and goes to work for GameWare, taking some files for the new game with him. Under trade secret laws, A&O has protection for

answer

the information in the files and Laz's ideas for the game design.

Business Law Unit 3 – Flashcards

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