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MGMT > Chapter 5 > Flashcards

Chapter 5 Flashcards

1
Q

What is a Tort?

A
  • Civil wrong other than breach of contract for which the law provides a remedy in the form of damages
  • Purpose is to punish by hitting defendant in the pocket book
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2
Q

Intentional Tort

A
  • deliberate action resulting in a harm

- meant to do the act, but not necessarily meant to harm the innocent party

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3
Q

Negligence/Unintentional Tort

A
  • arises due to failing to use reasonable care
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4
Q

Strict Liability

A
  • Liability without fault

- usually reserved for abnormally dangerous activities

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5
Q

Assault

A
  • Personal Intentional Tort
  • intentional act placing a person in fear or apprehension of immediate bodily harm or offensive contact
  • Fear can be legitimate even if threat cannot be carried out (eg. unloaded gun)
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6
Q

Hill v. Western Union Telegraph

A
  • Defendant worked for Western Union Telegraph and was under contract to fix Plaintiff/Hill’s clock
  • Employee, Sapp, was drunk and told Hill “If you … let me love and pet you, I will fix your clock” while standing behind counter
  • Won at trial court bot lost at the appellate level as the employee did not act within the scope of his employment
  • Appellate Court did say that there certainly could have been an assault
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7
Q

Battery

A
  • Intentional act of physical contact or offensive touching of someone else without his or her permission
  • physical harm not required, but physical contact is required
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8
Q

Defenses to Assault or Battery

A
  • Consent
  • Privilege (eg. cop pulls gun on a suspect, or searches suspect)
  • Self-Defense (w/ reasonable amount of force - deadly force allowed only if deadly force first used against you)
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9
Q

False Imprisonment

A
  • intentional holding or detaining of a person within boundaries if the person is harmed by such detention
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10
Q

Shopkeepers Privilege

A
  • Common Law
  • merchant has the right to reasonably detain suspected thief on business premises for a reasonable amount of time
  • Illinois has this as a statutory protection for the Merchant
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11
Q

Intentional Infliction of Mental Distress

A
  • usually requires manifestation of physical harm (eg heart attack or stroke)
  • more than just obscene and abusive language
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12
Q

Tidelands Automobile Club v. Walters

A
  • rare victory in Intentional Infliction of Mental Distress
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13
Q

Invasion of Privacy

A
  • invasion of a person’s right to solitude, an unwarranted public exposure
  • must have public disclosure of a private fact that is offensive to the ordinary person, BUT public figures lose a lot of their right to privacy
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14
Q

Galella v. Onassis

A

Public figures do not lose all of their rights of privacy - they still have a right of privacy as to the details of their private life

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15
Q

Defamation

A
  • publication of a false statement that tends to injure a person’s reputation or good name causing the public to hold that person up to hatred, contempt, or ridicule, or cause him/her to be shunned or avoided
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16
Q

Constitutional Privileges

A
  • statements made by legislators and other public officials
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17
Q

Hutchinson v. Proxmire

A
  • Constitutional privileges are limited
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18
Q

Conditional or Qualified Privileges

A
  • a statement made in good faith with proper motives are protected
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19
Q

Malicious Prosecution

A
  • wrongful use of legal proceeding, civil or criminal
  • difficult to win, because you must win all lawsuits against you and then prove that the opposing party had NO probable cause and prove malicious conduct
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20
Q

Unique Requirement for Texas Malicious Prosecution

A
  • Special damages or special injures
  • the alleged Malicious Prosecution must have interfered with a person or his property in the form of an arrest, attachment, injunction, or sequestration
  • supposed to assure good faith litigants without fear of intimidation by a countersuit for malicious prosecution
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21
Q

Abuse of Process

A
  • recognized in Texas
  • a party maliciously misuses or misapplies regularly issued civil or criminal process for a purpose and thereby obtains a result not lawfully warranted
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22
Q

Disparagement

A
  • form of defamation against a Business

untrue statement made, while knowingly false, with malice, causing special damages

  • slander of title, or slander of quality
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23
Q

Intentional Interference with Contractual Relations

A
  • est. in England 1853

- 3rd party induces one of two original parties to break original contract and damage other original party

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24
Q

Texaco v. Pennzoil

A

“Ten Billion Dollar Jury Award”

  • Getty Oil Company, Pennzoil Co., Texaco Inc.
  • Getty and Pennzoil were original contracting parties, until Getty broke the original contract and sold to Texaco
  • Getty knew that they had a contract with Pennzoil and had Texaco indemnify them - jury awarded Pennzoil damage request of $7.32 Billion and an additional $3 Billion in punitive damages
  • Texaco filed for Bankruptcy, and case eventually settled for $3 Billion
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25
Q

Defenses to Trespass

A
  • A trespasser enters to assist someone in danger even if that person is a trespasser
  • trespasser enters to protect property
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26
Q

Advantages to Registering Copyright

A
  • can only sue infringers if the copyright is registered
  • establishes a public record
  • can have an impact on damages
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27
Q

Rylands v. Fletcher

A

Introduced Liability without fault

  • applies to “abnormal” or “ultra-hazardous” activities, but not so unreasonable as to be prohibited altogether
  • expanded to food and drinks, manufacturers who sell defective products, some areas of Products Liability
28
Q

Components of Negligence

A
  • Duty
  • Breach
  • Causation
  • Harm
29
Q

Contributory Negligence

A

If party accused of negligence can prove that the accusing party contributed to the negligence AT ALL - then the accused party is not liable.

30
Q

Last Clear Chance Doctrine

A
  • the party who had the final chance to prevent the accident is liable for negligence
31
Q

Comparative Negligence

A
  • all parties held liable, by percentage of their negligence

- Texas has 50% rule, where if you caused >50% then you were not compensated at all

32
Q

Superseding Cause

A
  • something other than the negligence caused the harm
33
Q

Standard of Proof for Torts

A
  • “more likely than not”
34
Q

Compensatory Damages for Torts

A
  • purpose is to make innocent party whole again

- medical expenses, economic loss, pain and suffering, etc.

35
Q

Punitive Damages

A
  • damages designed to punish the defendant

- 8th amendment usually does not apply

36
Q

When are Punitive Damages awarded?

A
  • for “Gross negligence” or “Willful and wanton” disregard for safety
37
Q

Browning-Ferris-Industries of Vermont, Inc. v. Kelco

A
  • Court started saying that Punitive Damages violated the spirit of the 8th amendment
  • led to a reform, giving a statutory limitation on punitive damages of, usually, a multiple of the actual compensatory damages
38
Q

Victoria Osteen Case

A

Case of a woman flight attendant suing a celebrity for assault and battery, celebrity was excused

39
Q

Defenses for Defamation

A
  • you told the truth

- Privilege (such as testifying in court as to what you think is true)

40
Q

Interference with Prospective Economic Advantage

A
  • steal customers during negotiations

- Texas does not recognize this tort

41
Q

Texas Nuisance laws

A
  • 2 year Statute of Limitations
42
Q

City of Dallas v. Stewart

A
  • the city cannot allow an appointed administrative board to have the final decision on destruction of abandoned property
43
Q

When is copyright automatic?

A
  • something written by author

- NOT Inventions or ideas

44
Q

USPTO

A
  • U.S. Patent and Trademark Office

- patents are not automatic, and must be registered here

45
Q

Trademark labels

A
  • arbitrary or fanciful
  • Suggestive (denied if too specific)
  • Descriptive (denied if too descriptive)
  • Generic (too common, rare)
46
Q

Current use vs. Intent to use Trademark filing

A
  • current use must prove date of first use in commerce

- intent must have true intent and requires additional fees and paperwork

47
Q

Marks that cannot be registered

A
  • Immoral
  • Flag or coat or arms of US or foreign nations
  • name, portrait, or signature of a living person without consent
  • portrait of deceased President during life of Widow without widow’s consent
48
Q

Ways to lose a Trademark

A
  • failure to renew after 10 years in timely manner
  • abandoned by owner for 3 years
  • allowing others to use your trademark, and the trademark thereby becoming generic
49
Q

Cybersquatting

A
  • registering someone else’s trademark or a famous person’s name as a domain name in bad faith, and with intent to make a profit by selling back to the rightful owner
  • federal felony
50
Q

Caveat emptor

A

“Buyer Beware”

51
Q

Causes for move from “Caveat emptor” in Food and Drugs

A
  • Spanish American War

- “The Jungle” by Upton Sinclair

52
Q

MacPherson v. Buick

A
  • est. Products liability based on negligence
  • MacPherson was injured when a wooden spoke wheel on his Buick broke
  • Buick held liable by negligently putting a defective product on the market, even though MacPherson bought through a dealer
53
Q

Duty of Car in Products Liability

A
  • Duty owed to all persons within foreseeable zone of danger
  • Buyer
  • Buyer’s household
  • Innocent bystanders
  • Product must be proven defective, and have been the actual cause
54
Q

Baxter v. Ford Motor Company

A
  • Ford claimed non-shatterable glass

- glass shattered, and Baxter lost his left eye and received injuries to his right eye

55
Q

Henningsen v. Bloomfield Motors

A
  • 10 days after Mr. Henningsen bought 1955 Plymouth, car broke down and caused a crash with his wife at the wheel
  • product so damaged that proof of a defect could not be found
  • court held that there was an implied warranty of merchantability
56
Q

Caveat veditor

A

“Let the seller beware”

57
Q

The Restatement (Third) of Torts

A
  • suggests doing away with distinctions between Negligence, Warranty, or Strict Liability
  • wants to replace liability rules based on Design, Manufacturing, and “Inadequate Instruction on Warnings”
  • Texas does not seem on board
58
Q

Sindell v. Abbott Laboratories

A
  • DES case
  • generic drug, couldn’t prove who made pills causing injury
  • liability shared through manufacturers by percentage
59
Q

Being sued in Court is an example of what type of major function of the legal system?

A

Dispute Resolution

60
Q

How was Judicial Review Created?

A

Marbury v Madison and the Supreme Court

61
Q

Which Texas Court must have an attorney in good standing as the judge?

A

County Court AT LAW

And District Court

62
Q

What is an application for Writ of Certiorari?

A

Asking for admittance to the US Supreme Court

63
Q

Which Criminal Texas Court is elected?

A

Court of Criminal Appeals

64
Q

What are Requests for Admission

A

Statements that the party to the lawsuit is required to either admit or deny

65
Q

What does the Lanham Act cover?

A

Trademarks

MGMT (4 decks)

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