Business Law Critical

Assault and Battery
any unexcused and intentional act that causes another person to be apprehensive of immediate harm is an assault.
Assault
is an intentional, unexcused act that creates a reasonable apprehension of fear of immediate, harmful, or offensive contact. It is the threat of harm. No contact is required
Battery
is the completion of the assault; harmful, offensive, or unwelcome physical contact.
Defamation
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 statement was made with actual malice.
Invasion of privacy
Publishing or otherwise making known or using information relation to a person’s private life and affairs, with which the public has no legitimate concern, without that person’s permission or approval.
Appropriation
in the tort law, the use by one person of another person’s name, likeness, or other identifying characteristic without permission and for the benefit of the user
Wrongful interference with a business relationship
Generally, the plaintiff must prove that the defendant used predatory methods to intentionally harm an established business relationship or prospective economic advantage. The plaintiff must also prove that the defendant’s interference caused the plaintiff to suffer economic harm.
Trespass to land
the invasion of another’s real property without consent or privilege. Once a person is expressly or impliedly established as a trespasser, the property owner has specific rights, which may include the right to detain or remove the trespasser.
Conversion
the wrongful possession or use of another person’s personal property without just cause
The Duty of Professionals
professionals may owe a higher duty of care based on special education, skill or training.
Strict liability
based on abnormally dangerous activities: blasting, storing explosive materials, transporting or storing toxic chemicals or radioactive material.
Product liability based on negligence
based on the manufacturer’s breach of the reasonable standard of care in the design, selection of materials, production processes, assembling and testing, adequate warnings, inspection, and testing.
Design defects
the foreseeable risk of harm from the product could have been reduced or avoided by the adoption of a reasonable alternative design. The plaintiff has to show that a reasonable alternative design was available.
Statues of limitations
restrict the time within which an action may be brought
Statues of repose
which place outer time limits on product liability actions.
Trademark
is a distinctive mark, motto, or device or emblem that a manufacturer stamps, prints or otherwise affixes to the good it produces. The purpose it to distinguish the product or service from goods of other manufacturers and merchants
Certification mark
certifies the region, materials, and mode of manufacture, quality of specific goods or services. UL (Underwriters laboratories), Good Housekeeping, and Champagne are examples of certification marks.
Service mark
distinguishes services of one person/company from another (airline logos).
Trade name
used to indicate part or a business’s entire name. Distinguished from a trademark, which applies to products
Meta tags
words inserted into a Wed site’s keywords field to increase the site’s appearance in search engine results
Patent Infringement
if a firm or person makes, uses, or sells another’s patented design, product, or process without permission the firm commits the tort
Privity
the relationship that exists between the promisor and the promise of a contract
Misrepresentation
must be a material fact, and the seller must have intended to induce the buyer’s reliance on the misrepresentation. Misrepresentation on a label or advertisement is enough to show intent to induce the reliance of anyone who may use the product. In addition, the buyer must have relied on the misrepresentation
Copyright
the exclusive rights of authors to publish, print, or sell an intellectual production for a statutory period of time. A copyright has the same monopolistic nature as a patent or trademark, but it differs in that it applies exclusively to works of art, literature, and other works of authorship, including computer programs.
Trade secret
is basically information of commercial value, such as customer lists, plans, and research and development. Trade secrets may also include pricing information, marketing methods, production techniques, and generally anything that makes an individual company unique and that would have value to a computer.
Lien
an encumbrance (claim upon) property to satisfy a debt or protect a claim for payment of a debt
Artisan’s lien
security for collecting debts incurred for labor and materials in the repair of personal property. This is a possessory lien.
Writ of execution
a court order to the sheriff to seize and sell the judgment debtor’s nonexempt property to satisfy the creditor’s judgment. This is a post-judgment procedure.
Composition agreement
a contract between the creditor and debtor that discharges the debt owed at less than the full amount.
Effect of Discharge
voids, or sets aside any judgment against the debtor and prohibits any future collection efforts.
Homestead exemption
a law permitting a debtor to retain the family home, either in its entirely or up to a specified dollar amount, free from the claims of unsecured creditors or trustees in bankruptcy.
Trademark registration
the mark is currently being used in business or the applicant intends to put the mark in use within 6 months. Registration allows the use of “R” symbol. Registration of the mark gives national notice.
Licensing
an agreement (contract) permitting the use of a trademark, patent, copyright or trade secret for specified purposes.
Copyrights in digital information
when files are stored on a computer or server and shared with others, there could be copyright infringement.
Identifying unreasonably dangerous products
if it is dangerous beyond the expectations of the ordinary consumer or a less dangerous alternative was economically feasible for the manufacturer, but the manufacturer failed to produce the alternative product.
Defenses against trespass to personal property
if it can be shown that trespass to personal property was warranted, and then a complete defense exists. Most states, for instance, allow automobile repair shops to hold a customer’s car (under what is called an artisan’s lien) when the customer refuses to pay for repairs already completed.
Duty to Rescue
you have no duty to rescue someone from doing something that could harm them can not be sued. ( Even if you know him.)
Titles and character names
used in the media are often registered as service marks.
Trade name
cannot be registered unless it is also used as a trademark or service mark.
Exceptions to discharge
claims for income or gross receipts taxes owed to federal, state, or local gov’ts accrued within 3 years prior to the filing of the petition for bankruptcy
Actions releasing a surety or guarantor
1.material change to the contract between debtor and creditor without consent of the surety or guarantor, surety discharged completely or to the extent the surety suffers a loss 2.principal obligation is paid or valid tender is made 3. surrender or impairment of collateral without the guarantor’s consent this action on the part of the creditor releases the surety to the extent of any loss suffered
Digital Millennium Copyright Act 1998
is illegal to circumvent encryption software. The liability of the ISP (internet service provider) is limited. There are fair use exceptions for libraries and universities.
Requirements for strict product liability
The product must be defective when sold.
Defendant is in the business of selling the product.
Product must be unreasonably dangerous.
Plaintiff must be physically harmed.
Defect must be the proximate cause of the injury.
The product has not been altered.
Privileged Speech
has two types: absolute and qualified.
Absolute Privileged Speech
Only in judicial proceedings and certain government proceedings is an absolute privilege granted. Thus, statements made by attorneys and judges in the courtroom during a trial are absolutely privileged, as are statements made by government officials during legislative debate.
Qualified Privileged Speech
a person will not be liable for defamatory statements because he or she has a qualified, or conditional privilege. An employer’s statements in written evaluations of employees, for instance, are protected by a qualified privilege. Generally, if the statements are made in good faith and the publication is limited to those who have a legitimate interest in the communication, the statements fall within the area of qualified privilege.
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
trespass to land
John becomes seriously ill while vacationing at a remote island resort. Dr. Smith is vacationing at the same resort. Because it is an emergency and no one else is available, the doctor treats John until he can be flown to the mainland. John’s illness is outside of Dr. Smith’s area of expertise, and the treatment she provides causes permanent damage to Frank. If John sues Dr. Smith, he can defend himself under
Good Samaritan statutes.
In our freely competitive economy, business HAVE limits on how they can attract customers
TRUE
Competing via aggressive marketing and advertising strategies is BLANK interference with a business relationship
usually permissible
Trespass to land has nothing to do with obtaining permission for use of that land
False
Trespass to land required that a person BLANK on the land.
remain
For trespass to land occur you have to BLANK onto, above, or below the land surface owned by another
enter
A real property owner must BLANK that a person is a trespasser.
establish
A guest in your home is typically BLANK a trespasser.
not
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
trespass to land.
When you borrow a friend’s tablet device and refuse to give it back, you have committed trespass to land
false
The state of Texas has placed caps on noneconomic damages in medical malpractice causes of action. This type of limitation on damages is
an example of tort reform.
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
wrongful interference with a business relationship.
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 accidently hits Zoey. His actions of violating the local ordinance and hitting Zoey constitute:
negligence per se.
Ted is running down the sidewalk at a high rate a speed and bumps into Robin, knocking her down. She jumps back up and continues on. In a negligence action, all of the following elements would be met except
damages
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 craft 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
assumption of the risk.
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.
true
The reasonable person standard concerns itself with how a particular person would act and not with how an ordinarily prudent person should act.
False
Those who enter retail premises are called business
invitees
Storeowners must warn business invitees of BLANK risks
foreseeable
A landowner has a duty to discover and remove any BlANK damages to customers or other invitees.
hidden
When risks are so BLANK, owners need not warn of them
obvious
An attorney’s conduct is judged by the reasonable person standard
False
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?
False
Negligence BLANK may occur if an individual violates a statute providing for a criminal penalty if that violation causes another to be harmed.
per se
BLANK statutes exist to protect, as an example, medical personnel who volunteer their services in emergency situations.
Good Samaritan
Assumption of risk does NOT require:
seeking out the riskiest activities.
An intervening event that acts as a superseding (overriding) cause may relieve the defendant of liability for injuries caused by the intervening event
True
Contributory Negligence
a theory in tort law in which a complaining party’s own negligence contributed to or caused his or her injuries.
Comparative Negligence
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.
Mel sent Jasper an e-mal 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
infliction of emotional distress.
United Tires uses a faulty design in designing its tires that causes them to blowout after 50,000 miles. Jessa is injured when her right-rear tire incurs a blowout. She can sue United Tires under:
Design defect.
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?
Comparative Negligence
West Agriculture Service, Inc. (“WAS”) stores approximately 100,000 pounds of ammonium nitrate on its property in three storage tanks for use in agriculture fertilizer, and is highly explosive if it comes into contact with an ignition source. WAS has taken all necessary precautions to prevent any explosions. If an explosion were to occur with resulting injuries, WAS could be liable under the strict liability theory for damages proximately caused by:
an abnormally dangerous activity
Ginger is retired schoolteacher to bakes goods in her spare time. She often delivers a batch of her cookies to the neighborhood restaurant to be sold at the cash register. One of her batches of cookies causes more than 20 people to become extremely sick with food poisoning. Which of the following statements is applicable?
Ginger can be sued under the strict product liability theory of product liability.
A fast-food chain restaurant would not be liable for the failure to disclose the adverse health effects of eating its food based on the defense of:
the knowledgeable user
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 injured 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:
statute of repose.
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:
there is no duty to warn about risks that are obvious or commonly known, such as the risk of lightening occurring during a rainstorm.
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 Exon was
not liable, because gasoline storage is not an abnormally dangerous activity.
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 stuff 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:
trade dress.
Alpha Corp. creates syrup that is flavored with coffee and chocolate and sells it under the name MochaMerge. Beta Co. beings to sell a similar product under the name MokaMerge. This is most likely a matter of:
trademark infringement.
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:
the information in the files and Laz’s ideas for the game design.
Carson thinks of a new concept for a palm-sized computer notebook. He also thinks o a new, faster process for producing the notebooks. Federal copyright law protects
: neither Carson’s concept nor his process.
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 manufacturers. Allied does not have Hot’s permission to use the motor. Can Hot sue allied for patent infringement?
Yes, because Allied infringed on Hot’s patent.
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?
The Madrid Protocol.
Buster invents a new camp grill that he names Buster’s Biaster. He writes specific instructions about how to use it in a manual that comes with every grill. Buster can obtain a trademark for
the name only.
In 2010, Mugaba wrote her memoirs, My Life in the Congo. Mugaba did not register a copyright. Under federal copyright law, Mugaba’s book
is protected for her life plus seventy years.
Amy Mendoza is a local radio personality who goes by the name “Amy in the A.M.” on the air. She also uses that label in print ads to help radio listeners distinguish her show from the other morning radio shows in her town. Amy would be most likely to register her name as a
service mark.
Without permission, Sally copies photographs from Isaiah’s book Mount Everst: 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
an infringement of Isaiah’s copyright.
Rick agrees to customize Melissa’s wedding ring. The cost is $10,000. After the job is complete, Melissa refuses to pay. As long as Rick retains possession of the ring, he may seek to recover the cost of the labor with:
an artisan’s lien.
Carl has been sued and is concerned about losing his house if the plaintiff wins. He consults with an attorney who reviews his case and tells him not to worry because of the:
homestead exemption.
Lindsey promises Mountain State Bank that she will be responsible for a loan taken out by her niece, Emma. The agreement is that at the moment the debt is due, Mountain State may demand repayment from Lindsey. This is known as a:
suretyship.
To start his business, Neil borrows money from every source available to him. Including all his credit cards and a line of credit at his bank. The business fails, and Neil files a voluntary Chapter 7 petition in good faith to discharge his debts. He returns to work as an attorney, where he makes over twice the median family income in his state, Neil’s debts will most likely:
be paid, at least in part, after his case is converted to a Chapter 13 repayment plan.
Alex files a petition for bankruptcy under Chapter 7. He owes $2.37 million to assorted creditors. Two months before filing, he sold his beach house, which was valued at $600,00, to his brother Jonah for $150,000. If the trustee objects to the sale, most likely:
the trustee will avoid the transfer and take back the house as part of Alex’s estate.
Rosie hired Donald to perform repairs on some farm equipment she owned. Donald allowed Rosie to have the equipment before she paid for the repairs. When it became obvious that Rosie was not going to pay him, Donald successfully sued her for breach of contract. Rosie did not pay the judgment, and the tractor was destroyed in a fire. Rosie has no other valuable property that can be seized to satisfy the judgment, but she does have a job. Donald:
may seek an order for garnishment.
Michael opens an upscale men’s clothing store. He borrows money to rent space and buys inventory on credit. Unfortunately, business is weak. He promises his creditors that he will be able to pay them after the next season. Business does not improve, and two years later, his creditors seek to force him into Chapter 7 bankruptcy through:
an involuntary bankruptcy.
Bartell contracts with LaRonda to remodel and retile a bathroom. LaRonda finishes the job and gives Bartell a bill for $14,000 for labor and materials. Bartell refuses to pay. In this case, LaRonda may seek:
a mechanic’s lien.
Voluntary bankruptcy
A list of both secured and unsecured creditor’s their addressing and the amount of debt owed to each.
A statement of the financial affairs of the debtor.
Voluntary bankruptcy (part 2)
A list of all property owned by the debtor, including property that the debtor claims is exempt.
A list of current income and expenses & A certificate of credit counseling.
voluntary bankruptcy (part 3)
Proof of payments received from employers within 60 days prior to the filing of the petition.
A statement of the amount of monthly income, itemized to show how the amounts is calculated.
A copy of the debtor’s federal income tax return for the most recent year ening immediately before the filing of the petition.
Means Test
to keep under-income people from abusing the bankruptcy process by filing for chapter 7 (discharge), as was thought to have happened in the past. So instead forcing them to file for chapter 13 (repayment plan).
Individual Repayment Plans
repayment plans offer some advantages because they are less expensive and less complicated than reorganization or liquidity proceedings.
Discharge under an individual repayment plan
Allowed claims not produced for by the plan.
Certain long-term debts provided for by the plan.
Certain tax claims and payments on retirement accounts.
Claims for domestic-support obligations.
Debts related to injury or property damage caused while driving under the influence of alcohol or drugs.
Intentional infliction of emotional distress in most jurisdictions
-involves intentional act that amounts to extreme and outrageous conduct resulting in serve emotional distress to another.
-Must show you also were physically impacted.

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