Exam 2 Contents Flashcards
Torts
come down to wrongs (injury) and
compensations
– It is designed to compensate those who have
suffered injury or loss due to another’s actions
Purpose of Torts
provide relief/remedies for the
violations of protected interests (personal
safety, physical injury or freedom of
movement property)
* Damages- refers to $ for injury/harm
Types of damages
- Compensatory: To compensate/reimburse the plaintiff for actual loss/damage
- Punitive: Punish the defendant/wrong doer and deter others; reserved for truly egregious behavior
Two types of torts
-Intentional (throwing a punch during a fight)
-Unintentional (Acting wild and carelessly swinging arms)
Damages for Defamation
Libel (written): if established general damages are presumed as a matter of law
- Need NOT show harmed in a specific way
Slander (spoken): the plaintiff must establish special damages to recover
-Must show actual economic harm or loss
Categories of intentional torts
Assault- Any intentional and unexcused threat of immediate harm or contact
Battery- unexcused and harmful or offensive physical contact intentionally performed
Categories of intentional torts continued
False Imprisonment
Intentional infliction of emotional distress
Defamation
To establish a tort for defamation, plaintiff must show:
-The defendant made a false statement of fact
-Abt the plaintiff, intent to cause harm
-The statement was made to at least one other person excluding the plaintiff
Slander Per Se
type of defamation that refers to a false statement that is so obviously harmful that the law presumes it damaged the plaintiff’s reputation
If established, does not require the plaintiff to establish special damages to recover.
Invasion of Privacy
A person has a right to solitude and freedom from prying public eyes - Privacy
- A person must establish reasonable expectation of privacy and the invasion` must be highly offensive
Fraudulent Misrepresentations
Leads one to believe an condition that is different from the condition that exists
-Involves intentional deceit for personal gains
Abusive or Frivolous Litigation
Recognizes that people have the right not to be sued without a legally just and proper reason, and this protects this right:
Malicious Prosecution
Abuse of process
Business Torts
Involve wrongful interference with another’s business rights
2 Categories:
- Wrongful interference with a contractual right
- Wrongful interference with a business relationship
Intentional Torts against property
International Torts include the following
* Trespass to real property-land/home
* Trespass to Personal Property-$, securities, cars
* Conversion-use without authority
* Disparagement of property
Trespass to land occurs when
– Entry upon the land by another;
* Onto, above, or below the surface
– Causes anything to enter onto the land by another;
– Remains on land owned by another or permits anything to remain on the land
– Actual harm to the land is no essential- owners exclusive property
Establishing a trespass
The owner or legal occupant of the land must establish the
person as a trespasser
– Posting signs/Asking an individuals to leave
– It can be implied- illegal act
Trespasser to Personal Property &
Conversion
Trespass to Chattel/personality- is when an individual wrongfully takes or harms the personal property of another or interferes with its use and enjoyment
Conversion- is any act that deprives an owner of personal Property w/out the owners permission
– If conversion occurs very often a trespass has occurred
Disparagement of Property
This occurs when economically injurious falsehoods are made about another’s property
- Slander of Quality or Trade libel: publication of false information about another’s
product or alleging it cannot perform as the owner claims.
- Slander of Title: when a publication falsely denies, or casts doubt
on the another’s legal ownership of the property
Unintentional Torts
Negligence: Occurs when someone is injured because of another’s failure to live up to a duty of care
- Does not require intent
Plaintiff must show:
There was a duty of care than the defendant broke, resulting in a causation that ended in damages.
Duty of Care
- In determining whether a duty of care has been breached courts will look at:
– The nature of the act; - Outrageous or common place
– The way the act was performed; - Cautiously or heedlessly
– The nature of injury - Serious or slight
Causation
The person must have caused the harm
Courts ask 2 questions to determine causation:
- Causation in fact: did the bad act act cause the injury or would it have happened anyway
-Legal or proximate cause: looks what was foreseeable, it asks the question whether or nor the the injuries sustained were foreseeable tor were to remotely connected to the incident to trigger liability
Injury requirement and damages
The plaintiff must have suffered a legally recognizable injury
- suffer some loss, harm, wrong or invasion to recover
Good Samaritan Laws
protect individuals from liability who aid
voluntarily
– These laws were passed to protect medical professional who volunteer
in emergency situations
Dram shops act
Bar owners and bartenders liable when intoxicated
individuals cause injuries
– Social hosts statutes- people hosting parties may be liable for injuries
caused by guests
Defenses
Two theories
- Failed to establish a cause of action
- Affirmative defenses
Abnormally Dangerous Activity
the doctrine applies to
situations b/c of the extreme risk of the activity.
– Examples include blasting and/or storing explosives
* Even if extreme care is taken then is risk of injury
Strict liability and animals
Wild animals - Tigers and Lions will qualify
Some domestic animals may qualify
- Danger or propensity to bite/attack
- Certain dog breeds may qualify (pit bulls)
Application of Strict Liability to
Product Liability
Strict liability may apply to manufacturers and
sellers of harmful and defective products.
* Application depends upon 2 factors:
– The Manufacturer can better bear the cost of
injury b/c increasing cost of goods and services
– The Manufacturer is making a profit from its
activity and therefore should bear the cost
* Cost of doing business
Product Liability
Individuals/corporations who make, sell, or lease goods can be held liable for harm caused by their products to consumers, or by standers
-Product liability may based torts theory of negligence, misrepresentation, strict liability, breach of warranty
Negligence
as discussed is the failure to exercise a reasonable degree of care
Cause in fact
In any action involving negligence the plaintiff must show that the defendant’s conduct was the “cause in fact” of the harm
– “Cause in fact” requires the showing that “but for” the
defendant’s action would not have occurred.
– Plaintiff must show that the defendant’s act was the
proximate cause.
Proximate Cause
Focuses on the foreseeability of the consequences if the act.
– Defective automobile cause an accident between vehicle A& B. Vehicle B crashes into a gas station’s gas pump causes an explosives damaging Person C’s nearby home.
* Is the car manufacturer responsible for the damage to C’s
home? But for? Proximate cause?
Misrepresentation
If a defendant is injured as a result of a manufacturer’s/sellers fraudulent misrepresentation - it is TORT of FRAUD
-Mislabeling of packages - “organic”
-Intentional concealment of a product’s defect
Misrepresentation must be
- A material fact
-The seller must intend to induce the reliance on the misrepresentation
Strict product liability
Strict Product Liability as a matter of public policy; a 3-part test/rationale:
– Consumers should be protected against unsafe products;
– Manufacturer/distributors cannot avoid liability b/c no privity of contract
– Manufacturer/distributors are better equipped to bear the cost
* California was the 1st state to impose strict liability
– Greenman v Yuba Power Tools- Ct imposed tort law instead of contract law
6 requirements for strict product liability
– Product must be defective when sold
– Defendant must be engaged in the business of selling that product
– Product must be unreasonably dangerous to the user/consumer b/c of the condition
– Plaintiff must incur physical harm to self/property by use of the product
– Defective condition must have been the proximate cause of harm/damage
– Product must not have been substantially altered after sale and before injury
* If proven damages could be limitless
Strict product Liability cont.
Unreasonably dangerous products: It is understood that certain products cannot be made entirely safe for all users
- Hence only liable for unreasonably dangerous products
Product Defects
There are three type of product defects
-Manufacturing
-Design
-Inadequate Warning
Manufacturing Defect
When the product departs from its intended design even though all possible care was exercised in the preparation and marketing
Quality Control
Essential but not defense to liability
- Rationale behind strict liability in manufacturing to encourage greater investment in product safety and stringent quality control
Design Defects
the product is made in conformity with specifications, but the product or design is defective.
For design defects a plaintiff must show:
- a reasonable alternative design was available
- The defendant’s failure to adopt the alternative design made the product unreasonably unsafe
Inadequate Warnings
A product will be considered defective when the foreseeable risks could have
been reduced or avoided if there was reasonable instructions or warnings
given AND the omission of the instructions/warnings renders the products
unsafe.
– Plaintiff must show that inadequate warning was the proximate cause of the harm
– Sellers must also warn consumers of harm caused by reasonable misuse of the
product
Defenses
- Failure to meet a statutory requirement/element of the cause of action
- Other defenses include:
– Preemption
– Assumption of Risk
– Product Misuse
– Comparative Negligence (Fault)
– Commonly Known Dangers
– Knowledgeable user (User error)
– SOL and Repose
Assumptions of Risk
– Plaintiff knew and appreciated the risk created by the defect; and
– The plaintiff voluntarily assumed the risk by expressed agreement/words/conduct even though it
was unreasonable
Defenses Continued
Product Misuse- using the product outside of its intended use
– Only available as a defense when intended use was not foreseeable
* A foreseeable is a question for the jury- Using a lawnmower to trim trees
* Comparative Negligence
– Negligence use on behalf of the plaintiff could limit defendant’s liability
* Limit not negate liability
Trademarks
A Trademark is a distinctive mark, motto, device, or implement that a manufacturer stamps, prints, or otherwise affixes to the goods so that they can be identified.
- It is a source indicator
- Must be registered with either a state or with the federal to be eligible for protections
Trademark Infringement
Registration of a trademark with US gives notice nationwide that the trademark belongs exclusively to the registrant
- The registrant is allowed to use “Circled R” to indicate that the mark has been registered
To sue for infringement, the plaintiff must show:
- The defendant’s use of the mark created a likelihood of confusion about the origins of the defendant good and services
- Does not need to show intent
-Most common remedies: Injunction
Dilution vs. Infringement
Dilution laws protect trademark owners, infringement protects consumers
Distinctiveness of the Mark
- They must be distinctive enough to enable consumers to identify the product and competing products.
Distinctiveness cont’d
- Secondary Meaning- descriptive terms, geographic terms, and personal
names are not inherently distinctive and do not receive protection until they
have acquired secondary meaning.
– Acquired distinctiveness - I’m love it; 12th Man; Chanel; Pizza Hut; Red Lobster; Lite
Generic terms
refer to an entire class of products- bicycle, phone, computer- they receive no protections
Trademarks must be careful not to be generic terms, they will lose their protection.
* Cornflakes, escalator, linoleum
* Xerox and Kleenex- are very guarded that they are brand of photocopiers and tissues
Counterfeit Goods
copy or imitate trademarked goods but are not the real thing.
– Bad for legit business and potentially dangerous for consumers
SCMGA
was enacted to stop counterfeiting goods. It is a crime to:
– Traffic in or attempt to traffic in counterfeit goods or services; or
– Knowing use a counterfeit mark on or in connection with goods and
services
Licensing
is an agreement permitting the use of a
trademark, copyright, patent, for certain purposes.
The licensee pays fees or royalties for the privilege of using the intellectual property
– TAMU arrangement with the Seattle Seahawks for the use “12”
– The rights of the licensee are spelled out in the agreement
Patents
Patent is a grant from the government that gives an inventor the exclusive right to make,
use, or sell their invention for a period of 20 years (inventions).
– Designs is 14 years
– US law was first person to invent not file received the patent.
* Changed in 2011 to first to file and 9-month challenge period on any grounds
Copyright
an intangible property right granted by Federal Statute (Copyright Act of 1976) to the author or creator of a literary or artistic
production.
Registration
copyrights can be registered with the US Copyright
Office; Once copyrighted they are protected against:
– Reproduction of the work
– Development of derivative works
– Distribution of the work
– Public display of the work
Protected Expression
Copyrighted material include books, records, film, artwork, architectural
plans, menus music, videos, software, photography
Fair Use
Section 107 is very broad; issues are decided on a case-by-case basis;
– Anyone using copyright material maybe committing a violation
– Court generally hold the 4th factor as the most important
Trade Secrets
are basically information of commercial value, such as customers lists, plans, and R&D.
– May also include pricing info; marketing mythology/strategy; production techniques
– Trade secrets extend to ideas and expressions
– No filing or registration for trade secrets
Companies must protect trade secrets
– Need to know basis
– Kept under lock and key
– Confidentiality agreement
International Protection for IP
Berne Convention-176 Countries have recognized and agree to enforce
copyrights-after 3/1/89
* TRIPS Agreement- 100 nations signed 1994
– Established international standard protections for IP rights covering patents,
trademarks, and copyrights.
– Also forbids nations from discriminating against foreign owners of IP rights in the
administration, regulation, or adjudication of rights
* Cannot favor own nationals
