Exam 2 Review Flashcards
What is designed to compensate those who have suffered injury or loss due to another’s
actions; comes down to wrongs (injury) and compensations?
Torts
What’s purpose is to provide relief/remedies for the violations of protected interests
(personal safety, physical injury, freedom of movement; property)?
Torts
What refers to $ for injury/harm?
Damages
What type of damage compensates/reimburses the plaintiff for actual loss / damage;
“make whole”?
Compensatory Damages
What type of compensatory damages is for quantifiable loss (lost wages, medical
expenses, replacement items)?
Special Damages
What type of compensatory damages are for non-quantifiable losses (pain & suffering;
physical & emotional damage; loss of companionship; loss of consortium; disfigurement;
loss of reputation)?
General Damages
What type of damages punish the defendant/wrongdoer and deter others; only reserved for truly egregious behavior or reprehensible behavior; usually involving intentional torts; excessive amounts may involve due process issues?
Punitive Damages
It is not uncommon for who to limit punitive damages awarded on constitutional grounds
- “no legitimate purpose”?
Appellate Courts
What do some states have that limit the amount of damages (both punitive and genera)
that can be awarded for various claims?
Legislative Caps
What type of tort would be throwing a punch during a fight?
Intentional
In what type of cases are there usually legislative caps or even bans on damages; big
consideration on diversity of citizenship issues (250K and 500k non-special damages);
battles of lobbyists (insurance companies and trial attorneys)?
Medical Malpractice
Cases
What type of tort involves negligence/breach of duty to act reasonable (acting wild and
carelessly swinging your arms)?
Unintentional
What are the two types of torts?
Intentional and Unintentional
What can vary depending on the nature of the tort claim?
Defenses
What are the common defenses for torts?
Consent (most common)
- Comparative Negligence
- Statute of Limitations
What type of tort defense is when the plaintiff agreed to the act that caused an injury
and as a result there is no liability for the defendant?
Consent (Most common)
What type of tort defense determines who was most at fault for the injury; assessing
proper blame?
Comparative Negligence
What type of tort defense involves the time limits for bringing an action?
Statute of
Limitations
Who is the one committing the act leading to a tort?
The Tortfeasor
What type of tort is where the tortfeasor must intent to commit the act in question
leading to damage?
Intentional Tort
What means that the person intended the consequences of their actions or knew with
substantial certainty that specific consequences would result from the actions?
Intent
What may intentional torts be on top of being compensatory?
May be criminal
What can be transferred when an individual intends to hurt one person but
unintentionally hurts someone else (throwing a punch at person A but missing and
striking person B)?
Intent (Transferred Intent)
What is any intentional and unexcused threat of immediate harm or contact; no physical
contact needed - just a reasonable apprehension of imminent harm?
Assault
What is unexcused and harmful or offensive physical contact intentionally performed;
physical injury NOT needed; “offensive?” is judged by reasonable person standard - just
of fact (jury)?
Battery
What is the intentional confinement or restraint of another person’s activity without
justification; could involve physical barriers, physical restraint, or threats of physical
violence; common issue is with shoplifters (reasonable force and probable cause);
consent negates all liability?
False Imprisonment
What are acts that are so extreme and outrageous resulting in emotional distress; may
be protected by free speech (hustler case)?
Intentional Infliction of Emotional
Distress
What is it called when defamation is done orally?
Slander
What involves the wrongful hurting of one’s character or reputation; the law imposes a
general duty on all people to refrain from knowingly making false, defamatory
statements of fact about others?
Defamation
What must a plaintiff show to establish a tortious action for defamation?
- The defendant made a false statement of fact
- About the plaintiff with the intent to cause harm
- The statement was made to at least one other person (not the plaintiff) and
- If the plaintiff is a public figure it needs actual malice
What is the general legal issue with defamation; opinions are generally protected under
the 1st Amendment?
Statement of Fact
What part of defamation says that the statements need to be communicated to another
person; 3rd party merely by chance overhears the statement is probably not actionable
(no publication); restating a publication can be actionable against both individuals
(retweeting / forwarding emails)?
Publication Requirement
What is it called when defamation is done in written format?
Libel
What type of damages are presumed as a matter of law if libel is established;
individuals can be compensated for nonspecific harms (disgrace of dishonor,
humiliation, emotional distress); need not show harmed in a specific way (do not have to
quantify the harm suffered)?
General Damages
What type of damages must the plaintiff establish in order to recover under slander;
must show actual economic harm or $ loss; rational (loss is temporary and generally not
as deliberate)?
Special Damages
What is an exception to the proving of special damages for slander; if established, it
does not require the plaintiff to establish special damages to recover?
Slander Per
Se
What is an absolute defense for Defamation?
The Truth
What are the types of defenses to defamation?
- The Truth (absolute)
- Privileged Communications
- Public Figures (politicians, entertainers, athletes are regarded as fair game)
What type of privileged communication applies to good faith and publication is limited to those who have a legitimate interest in the communication (an employment evaluation,
employment reference)?
Qualified or Conditional Privilege
What type of privileged communication applies to court proceedings or legislative
hearings / debates?
Absolute Privilege
When dealing with defenses for defamation involving public figures, what must the
plaintiff show; this is a statement with either knowledge of its falsity or a reckless
disregard for truth; rational - matter of public interest and means to correct absurdities?
Actual malice
What says that a person has a right to solitude and freedom from prying public eyes?
Privacy
Who has held that there is an implied right of privacy in the Constitution?
The Courts
To recover damages from an invasion of privacy, what must a person establish?
a reasonable expectation of privacy and the invasion must be highly offensive
What are the 4 circumstances in which Invasion of Privacy appears in Common Law?
1.) Intrusion into individual’s affairs or seclusions
2.) False Light
3.) Public disclosure of private facts that a private person would find objectionable or
embarrassing
- Appropriation of Identity
What type of Common Law Invasion of Privacy Circumstance involves breaking &
entering into an individual’s home; accessing one’s laptop; wiretaps or eavesdropping;
peeping tom?
Intrusion into an individual’s affairs or seclusions
What type of Common Law Invasion of Privacy Circumstance is the publication of
information that places an individual in false light; ex.) attributing racial statements to an
individual?
False Light
What type of Common Law Invasion of Privacy Circumstance involves the publication of
medical or financial information (doesn’t matter if true)?
Public Disclosure of Private
Facts that a private person would find objectionable or embarrassing
What type of Common Law Invasion of Privacy Circumstance involves using a person’s
name, image, or likeness for commercial purposes without permission (hiring a look-alike for advertising purposes); most states have codified the common law but differ on
degree for which it may be used?
Appropriation of Identity
What leads one to believe in a condition that is different from the condition that exists?
Misrepresentation
What involves intentional deceit for personal gain; need to establish this to recover
damages?
Fraudulent Misrepresentation
What are the elements of Fraudulent Misrepresentation?
Misrepresentation of a
false material fact/condition or reckless disregard for the truth
- An intent to induce another party to rely on misrepresentation
- a justifiable reliance on the misrepresentation by the deceived party
- Damage suffered by the reliance
- Connection between the misrepresentation and injury suffered
What do you need more than to prove fraudulent misrepresentation?
Need more
than puffery (seller’s talk) - requires knowledge of untruth
What are normally not actionable under fraudulent misrepresentation; however, certain
opinions may be perceived as fact given the individual making the statement (ex. an
attorney advising a client on opinion of law?
Opinions
What tort recognized that people have the right not to be sued without a legally just and
proper reason, and this protects this right?
Abusive or Frivolous Litigation
What type of fraudulent misrepresentation is where the defendant has no knowledge of
its falsity, but the defendant still had a duty of care to supply correct information?
Negligent Misrepresentation
What type of frivolous litigation is if a party sues with malicious intent and without a
legitimate legal reason and loses they can be sued for this (constantly bring frivolous
claims)?
Malicious Prosecution
What type of frivolous litigation is using the legal process against someone outside of
the intended purpose as a form of punishment / harassment; does not require prior
litigation of proving malice (consistent and unreasonable subpoenas / depositions)?
Abuse of Process
What type of tort involves wrongful interference with another’s business rights; public
policy favors free competition?
Business Torts
What are the 2 categories that business torts fall in?
Wrongful interference with a
contractual right
- Wrongful interference with a business relationship
What are the defenses to business torts?
Justified and Reasonable (Marketing &
Advertisement can lead to the interference or breach of contract
What are the steps to prove that there is interference with a contractual right?
Valid contract between 2 parties
- 3rd party must know of the contract
- 3rd party must intentionally induce a party to breach the contract
What is unreasonably interfering with another’s business to gain a great market share
(competitive v. predatory behavior); often involves non-compete agreements and
aggressive marketing?
Interference with a Business Relationship
What do intentional torts against property include?
Trespass to real property
(land/home)
- Trespass to personal property ($, securities, cars)
- Conversion (use without authority)
- Disparagement of Property
Trespass to land occurs when without permission any one of the following occurs?
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 not essential (owners exclusive property)
How can the owner or legal occupant of the land establish the person as a trespasser
(must do this)?
Posting signs / asking individuals to leave
- It can be implied (illegal act)
What is the liability for harm today on an owner’s land?
Today the owner has a
reasonable duty of care & attractive nuisance doctrine to consider
What says that under common law someone is liable for harm caused to the land & the
trespasser could not sue the owner if injured?
Liability for Harm
Owners can use what to remove trespassers?
Reasonable Force
What are the defenses to trespass?
Warranted/needed (exigent circumstances)
- Licensee (invited on the land or ticket holder; licenses are revokable)
What is when an individual wrongfully takes or harms the personal property of another
or interferes with its use and enjoyment; harm can mean destruction or reduction in
value, condition, or quality; also includes barring an owner access to the property
(exceptions are mechanic liens; failure to retrieve)?
Trespass to Chattel / Personal
Property
What is any act that deprives the owner of personal property without the owner’s
permission; if this occurs then very often a trespass has occurred; the civil side of theft
crimes, however, theft is not necessary; can be borrowing and not returning; intention is
not a defense (receiving stolen goods?
Conversion
What occurs when economically injurious falsehoods are made about another’s
property
Disparagement of Property
What is the difference between trespass and conversion?
Original taking is trespass
and failure to return is conversion
What are the 2 different theories of disparagement of property?
Slander of quality
or trade libel
- Slander of title
What theory of disparagement of property is the publication of false information about
another’s product or alleging it cannot perform as the owner claims; plaintiff must show
that the improper publication caused a 3rd party to refrain from dealing with the plaintiff;
must show economic harm; must also trigger a defamation of character claim?
Slander of quality
What theory of disparagement of property is when a publication falsely denies, or casts
doubt on another’s legal ownership of the property; someone publishes an untrue story
about the ownership of another’s property with the intent to persuade others from
dealing with the plaintiff (auto parts business - inventory is all stolen)?
Slander of
Title
What unintentional tort occurs when someone is injured because of another’s failure to
live up to a duty of care; does not require intent (a person’s behavior creates the risk of
injury)?
Negligence
What will the courts look at in determining whether a duty of care has been breached?
The nature of the act (outrageous or common place)
- The way the act was performed (cautiously or heedlessly)
- The nature of the injury (serious or slight)
What must a plaintiff show to prove negligence?
- Breach (broke that duty of care)
- Causation (that break caused the plaintiff’s injury)
- Damages (injury)
What is where the courts asks how would a reasonable person act in the same
circumstances; degree of care can vary based upon occupation or relationship to
plaintiff; decided on a case-by-case basis?
Reasonable Person Standard
What is it called where landowners are expected to exercise reasonable care to protect
individuals coming onto their land; may extend to trespassers?
Duty of Landowners
What is it called where business owners have a duty to exercise reasonable care to
protect customers or business invitees; owner has a duty to discover and remove
hidden damages that might cause injury to a customer (wet caution signs)?
Duty to
Warn
What is it called where people who possess a superior knowledge, skill, or training, are
held to a higher standard of care; lawyers are held to a reasonable lawyer standard (if
breached is malpractice)?
The Duty of Professionals
What is where the person must have caused the harm?
Causation
What 2 questions do the courts ask to determine causation?
Causation in Fact
- Legal or proximate cause
What type of causation uses the “but for” test; cause and effect - did the bad act cause
the injury or would it have happened anyway
Causation in Fact
What type of causation looks at what was foreseeable; asks the question whether or not
the injuries sustained were foreseeable or were too remotely connected to the incident
to trigger liability?
Proximate Cause
Both questions of causation need to be what in order to recover?
Answered in the
affirmative
What says that if it was not foreseeable there is no causation?
✅Foreseeability
What requires the plaintiff to have suffered a legally recognizable injury; some loss,
harm, wrong or invasion to recover (carelessly bumping into someone); punitive
damages are the only type recoverable?
Injury Requirement and Damages
What protects individuals from liability who aid voluntarily; these laws were passed to
protect medical professionals who volunteer in emergency situations (medical
emergency on a plane)?
Good Samaritan Laws
What says that bar owners and bartenders are liable when intoxicated individuals cause
injuries?
Dram Shop Acts
What says that people hosting parties may be liable for injuries caused by guests
(overly intoxicated individuals); there is strict liability if underage drinking?
Social
Hosts Statutes
What are the 2 theories of defenses?
- Failed to establish a cause of action (did not
meet one of the 4 elements) - Affirmative Defenses
What are the 2 elements required to prove assumption of risk?
Knowledge of the
risk
- Voluntary assumption of the risk (skydiving and skiing; attending a baseball game)
What is where an individual voluntarily enters a risky situation?
Assumption of risk
What is an unforeseen intervening event (just after libelous statement is published the
plaintiff dies)?
Superseding Cause
What is where individuals must exercise a duty of care to themselves; under common
law if the plaintiff was negligent, they could not recover?
Contributory Negligence
What type of comparative negligence says that if you are 80% at fault, you still collect
20% in damages?
Pure form
What type of comparative negligence says that if you must be less than 50% at fault to
collect damages (Texas follows this)?
✅Modified Form (50% rule)
What says that each is assessed relative negligence; has the pure form modified form
(50% rule)?
Comparative Negligence
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
Ethan is larger and stronger than Nate. Ethan threatens to beat Nate, punches Nate in
the face, and knocks out Nate’s tooth. Nate may bring a lawsuit against Ethan:
For
assault and battery
Baylee is driving her friend Sarah to the movies. Baylee loses control of the car and
crashes into a fence. The vehicle’s airbags deploy, and both Sarah and Baylee are
shaken up but not physically injured. Sarah threatens to sue Baylee for negligence.
Sarah’s lawsuit is likely to be:
Unsuccessful, because Sarah was not injured
Stephanie stands in front of her home with a bullhorn shouting that her new neighbor,
Kyle, has just been released from prison for child molestation. Stephanie knows this
statement is false. Under what legal theory may Kyle recover damages from Stephanie?
✅Slander Per Se
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:
The causation in fact, but not the proximate cause of
Ethel’s Death
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:
Infliction
of Emotional Distress
Modern Railways Co. operates a cargo railroad service between New York and Boston.
A train owned by Modern Railways derails due to a rare maintenance problem. The train
collides with a delivery truck owned by CraftCo, shattering $100,000 worth of porcelain
inside. If CraftCo sues Modern Railways Co. for negligence, CraftCo may be able to
recover:
Special Damages
Wilhelm has an argument with his apartment roommate, Arthur. Wilhelm tells Arthur that
if he leaves their apartment, Wilhelm will lock Arthur in his room when he returns.
Arthur, frustrated with Wilhelm, leaves the apartment to take a walk. If Arthur were to
sue Wilhelm for false imprisonment, Arthur would most likely:
Not be successful,
because threats of future harm do not constitute false imprisonment
Melissa’s tugboat accidentally collides with Tyler’s yacht, and Tyler sues Melissa for
negligence. A federal jury finds Melissa liable and awards Tyler $5,000 in compensatory
damages and $50 million in punitive damages. Melissa appeals to the United States
Supreme Court challenging the punitive damage award. If the court heard the case, it
would likely:
Overturn the punitive damage award as grossly excessive
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:
Appropriation
What type of liability applies to an abnormally dangerous activity - the doctrine applies
to situations because of the extreme risk of the activity; ex.) blasting and/or storing
explosives (even if extreme care is taken to prevent risk of injury)?
Strict Liability
What may also qualify as strict liability?
✅Owning animals (wild animals like tigers and
lions and even some domestic animals if they have a danger or propensity to
bite/attack; certain dog breeds like pit bulls)
What may also apply to manufacturers and sellers of harmful and defective products?
Strict Liability
What are the 2 factors that the application of strict liability depend on?
The
manufacturer can better bear the cost of injury because 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)
What is the rationale of strict liability with manufacturers?
✅Society is ensuring that
manufacturers are not “cutting corners” and protecting “innocent members of society”
What is liability regardless of fault; may be imposed on defendants in cases involving
abnormally dangerous activities, dangerous animals, or defective products?
Strict
Liability
What type of liability applies to individuals/corporations who make, sell, or lease goods
and says they can be held liable for harm caused by their products to consumers, users,
or bystanders; may be based on torts theory of negligence, misrepresentation, strict
liability, breach or warranty?
Product Liability
What is the failure to exercise a reasonable degree of care?
Negligence
What may a manufacturer be responsible for if they fail to exercise due care to make
product safe and a person is injured by the product?
Responsible for the
harm/damage done
Due care must be exercise in what areas?
Design; selecting materials; production
process; assembly and testing; adequate warnings; inspecting and testing any purchase
components
What is not required to prove negligence or failure to exercise due care;
manufacturer/seller is liable for failure to exercise due care to anyone who sustains an
injury cased by the negligent (defective) product?
Privity of Contract
What must the plaintiff show in any action involving negligence?
That the defendant’s
conduct was the “cause in fact” of the harm
What requires the showing that “but for” the defendant’s action would not have
occurred?
Cause in Fact
What focuses on the foreseeability of the consequences of the act; the plaintiff must
show the defendant’s act was this?
Proximate Cause
What type of tort is it if a defendant is injured as a result of a manufacturer’s/seller’s
fraudulent misrepresentation; ex.) mislabeling of packages as “organic”; intentional
concealment of a product’s defect?
Tort of Fraud
What must the misrepresentation be to be a tort of fraud?
A material fact
- The seller must intend to induce the reliance on the misrepresentation (label or
advertisement is enough to show an intent to induce; the plaintiff must show reliance on
misrepresentation)
What are the 6 requirements for Strict Product Liability?
1.) Product must be
defective when sold
2.) Defendant must be engaged in the business of selling that product
3.) Product must be unreasonably dangerous to the user/consumer b/c of the condition
4.) Plaintiff must incur physical harm to self/property by use of the product
5.) Defective condition must have been the proximate cause of harm/damage
6.) Product must not have been substantially altered after sale and before injury (if
proven, damages could be limitless)
As a matter of public policy, what is a 3-part test for strict liability?
1.) Consumers
should be protected against unsafe products
2.) Manufacturer / distributors cannot avoid liability b/c no privity of contract
3.) Manufacturer / distributors are better equipped to bear the cost
What must the plaintiff show to induce strict product liability?
Product was defective
when sold and the defect made in unreasonably dangerous to user
What says that it is understood that certain products cannot be made entirely safe for all
users (hence only liable for these products)?
Unreasonably dangerous products
What are the tests for unreasonably dangerous products (either criteria is applicable)?
- The product was dangerous beyond expectation of the ordinary consumer; or
- A less dangerous alternative was economically feasible for the manufacturer but failed
to produce it
What are the three types of product defects?
- Manufacturing
- Design
- Inadequate warning
What is when the product departs from its intended design even though all possible
care was exercised in the preparation and marketing; results in a product that is flawed,
damaged, or incorrectly assembled; defects occur when a manufacturer fails to
assemble, test, or check a product?
Manufacturing Defect
What is essential but not a defense to liability?
Quality Control
What is the rationale behind strict liability in manufacturing?
Encourage greater
investment in product safety and stringent quality control
What is it called when the product is made in conformity with specifications, but the
product design is defective?
Design Defects
What must the plaintiff show for design defect action?
A reasonable alternative
design was available; and
- The defendant’s failure to adopt the alternative design made the product unreasonably
safe (basically the harm was preventable)
What are the wide-range of factors a court could consider in deciding design cases?
✅Magnitude & probability of risk; advantages / disadvantages of product before and
after adjustments to the design
What is it called where a court examines if the risk of harm from the product as
designed outweighs its utility to the user/public?
Risk-utility analysis
What says that a product is unreasonably dangerous when it fails to perform in the
manner that would reasonably be expected by an ordinary consumer?
Consumer
Test Exception
What will a product be considered when the foreseeable risks could have been reduced
or avoided if there was reasonable instruction or warnings given AND the omission of
the instructions/warnings renders the product unsafe?
Defective due to Inadequate
Warnings
What must the plaintiff show when dealing with a defective product due to inadequate
warning?
The inadequate warning was the proximate cause of the harm
Who must also warn consumers of harm caused by reasonable misuse of the product
(warning on hot coffee cups and lawnmowers)?
Sellers
What do the courts look at in terms of contents of the warning?
Risk of the product
- Content & comprehensibility
- Intensity of expression of warning and instructions
- Characteristics of the expected user group (courts apply a reasonableness test to
determine if the users understand the warning)
What is there no duty to warn about since too many warnings can be an issue as well?
Obvious Risks
What are still applicable when considering inadequate warnings; these must not violate
Federal Law?
State Laws and Constitutions
What is a way for the courts to hold an industry liable and assign liability based upon
market share; happens in rare circumstances when the plaintiff is unable to prove which
of the many suppliers of the product provided the actual product; not recognized in
every jurisdiction?
Market-share liability
What does strict product liability also apply to; both the manufacturer and this can be
held strictly liable?
Suppliers of component parts
What does strict liability cover; innocent bystanders can sue manufacturers and sellers
under strict liability; does not require privity of contract?
✅Covers 3rd parties
What is a common defense for strict liability?
Failure to meet a statutory requirement
/ element of the cause of action
What are other defenses for strict liability
Preemption; assumption of risk; product
misuse; comparative negligence (fault); commonly known dangers; knowledgeable user
(user error); SOL and Repose
What is the defense saying that government regulation that preempts claims for product
liability (medical devices); some courts have refused to extend this to drug maker’s
liability?
Preemption
What are the elements of assumption of risk defenses?
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 (some states don’t recognize this as a defense; against
public policy)
What is the defense saying that the plaintiff used the product outside of its intended use;
only available as a defense when intended use was not foreseeable (this is a question
for the jury); ex.) lawnmower to trim trees?
Product Misuse
What type of strict liability defense that says negligent use on behalf of the plaintiff could
limit defendant’s liability (limit not negate)?
Comparative Negligence
What type of strict liability defense says that using products that obviously are
dangerous whereby manufacturers need not warn users?
Commonly Known
Dangers (knives sharp, hammers hard)
What places limits on how long suits can be brought; all future claims must be brought
within 10 years?
Statute of Repose
What type of strict liability defense is if a danger is or should be commonly known by
user of a product so there is no need to warn?
Knowledgeable User
What type of strict liability defense is when the SOL can be tolled until the party harmed
discovered it or should have discovered the defect
Statute of Limitations & Repose
John purchases a blender from JuiceMart. A crack in the plastic casing causes the
blade to swing out of control and nearly injure John’s arm. John is shaken up by the
incident but otherwise uninjured. John’s strict product liability suit will most likely:
Fail, because John did not incur physical harm to self or property
Carl sues Goldman Manufacturing, alleging he suffered injuries as a result of a design
defect in Goldman’s food processor. To prevail in this lawsuit, Carl must show that
Goldman
Had a reasonable alternative design available, which it failed to use
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
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
Fred sued Document Security Company, alleging he had suffered injuries to his hands
as a result of attempting to fix a jam in one of Document Security’s paper shredders.
Fred alleged the shredder was defective because it failed to contain warnings regarding
the dangers to fingers and hands while attempting to fix jams. To succeed on a strict
liability claim, Fred will have to show:
Foreseeable risks of harm could have been
reduced or avoided by the provision of reasonable instructions or warnings by the seller
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 lightning 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 lighting occurring during a rainstorm
Harry discovers that a chemical compound has had an adverse impact on his land. The
chemical compound is manufactured by five companies. Harry cannot identify which
manufacturer’s chemical caused the adverse impact to his land. Harry files a product
liability lawsuit against all five companies. Harry’s case will:
Not be dismissed against
any manufacturer, because of market-share liability
Emily, while driving a car manufactured by Toyosan, suffered a side impact collision
from another driver. When Toyosan’s air bag deployed, it caused damage to Emily’s
face and teeth as she hit her head against the steering wheel. If Emily sued Toyosan for
strict product liability, the court would likely conclude that:
Toyosan’s air bag was
defective because of the consumer-expectations test
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 is injured while jumping on the trampoline
when it collapses. If Zac’s family sues the trampoline manufacturer in 2013, their lawsuit
will likely be dismissed based on the:
✅Statute of Repose
With his parents’ permission, David, a ten-year-old, purchased a plastic snow sled from
Kmart. He went sledding, lost control, hit a tree, and was injured. David’s parents filed a
negligence lawsuit in a state court against Kmart, alleging that the store should not have
sold this type of sled because it was difficult to steer and had no brakes, making it
unreasonably dangerous. Kmart contended that sledding is an inherently dangerous
activity and that David assumed the risks involved when he went sledding. The court
probably found that Kmart was:
✅Not liable, because David and his parents assumed
the risks of sledding
What is a distinctive mark, motto, devise, or implement that a manufacturer stamps,
prints, or otherwise affixes to the goods so that they can be identified; it is a source
indicator?
Trademark
What must an applicant show to register a trademark with the Feds?
The mark is
used in commerce; or
- Will be within 6 months
What gives notice nationwide that the trademark belongs exclusively to the registrant?
✅Registration of a trademark with the US
What is the registrant allowed to use on a trademark to indicate that the mark has been
registered; if the mark is used or copied by another, the trademark has been infringed
upon?
“Circled R”
What must the plaintiff show to sue for infringement?
The defendant’s use of the
mark created a likelihood of confusion about the origin of the defendant goods and
services
- Does not need to show intent
What is the most common remedy to trademark infringement?
Injunction
What says that the trademark must be distinctive enough to enable consumers to
identify the product and competing products?
✅Distinctiveness of the Mark
What is the difference between dilution and infringement
Dilution laws protect
trademark owners (must show actual proof of dilution); infringement protects consumers
Under the Lanham act, what can the plaintiff recover from trademark infringement
Actual damages plus profits from the defendant for its use
- Court can order destruction of infringed goods and/or attorney fees
What type of trademarks are fanciful, arbitrary, or suggestive and generally receive
automatic protection; they identify the product, not the type of product (Budweiser as
opposed to American Beer)?
Strong
What type of trademarks involve invented words like Pepsi, Nike, Rolex, or Clorox?
Fanciful Marks
What type of trademarks use common words in uncommon ways (Apple computes,
Camel cigarettes, Target, Dove, Shell Gas)?
Arbitrary
What type of trademarks indicate something about the product’s nature, quality, or
characteristics without describing the product directly (Netflix, Copper Tone, Under
Armour)?
✅Suggestive Trademarks
Descriptive terms, geographic terms, and personal names are not inherently distinctive
and do not receive protection until they have acquired what; “acquired distinctiveness”;
(“I’m Lovin it”, 12th Man, Chanel, Pizza Hut, Red Lobster)?
Secondary Meaning
What refers to an entire class of products (bicycles, phone, computer) and receives no
protections; trademarks must be careful not to be this because if they are they will lose
their protection (Cornflakes, Escalator, Linoleum)?
Generic Terms
What is a trademark that is used to distinguish services
Service mark
What refers to the image and overall appearance of the packaging, labeling, product configuration, color scheme, layout
Trade dress
What copy or imitate trademark goods but are not the real thing; bad for legit business
and potentially dangerous for consumers?
Counterfeit Goods
What was enacted to stop counterfeiting goods; says that it is a crime to traffic in or
attempt to traffic in counterfeit goods or services; knowingly use a counterfeit mark on or
in connection with goods and services; this closed the loophole where someone could
create and ship counterfeit labels or packaging bearing another’s trademark?
✅SCMGA (Stop Counterfeiting in Manufactured Goods Act)
What are the penalties under SCMGA?
10 years in prison and up to 2 million fine
- Counterfeit property destroyed; property used to make the counterfeit is forfeited; pay
restitution to trademark holder (actual loss)
What can you do to combat foreign counterfeiters?
Cannot prosecute, but have been
able to shutdown websites
What indicates part of the business’ name; directly related to a business and its
goodwill; unless this is also a trademark or service mark, it cannot be registered with the
federal government (Coca-Cola, Nike, H-E-B)?
Trade Name
What can you do to combat foreign counterfeiters?
Cannot prosecute, but have been
able to shutdown websites
What is an agreement permitting the use of a trademark, copyright, or patent for certain
purposes; the licensee pays fees or royalties for the privilege or using the intellectual
property (TAMU arrangement with Seattle Seahawks for the use of “12th Man”); the
rights of the licensee are spelled out in the agreement?
✅Licensing
What is a grant from the government that gives an inventor the exclusive right o make,
use, or sell their invention for a period of 20 years or their design for a period of 14
years?
Patent
What was the US law regarding patents and how has it changed?
- 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
Who has a searchable patent databased covering all US Patents back to 1976?
US
Patent Office
What is patentable?
✅The applicant must prove that the invention, discovery, process,
or design is novel, useful, and not obvious considering current technology (very broad)
What is when another makes, uses, or sells another’s patent without the owner’s
permission (Tort of Patent Infringement); patent owners must be vigilant or stand to lose
a lot of money?
✅Patent Infringement
What is the general rule of Patent Infringement?
No violation of US law when a
patented product is made and sold outside of the US; foreign companies may apply for
US Patent Protections and vice versa
What do the remedies for Patent Infringement include?
Injunction, royalties, lost
profits, potentially attorney’s fees
What is an intangible property right granted by Federal Statute (Copyright Act of 1976)
to the author or creator of a literary or artistic production?
Copyright
Works created after 1977 are automatically given statutory protection for how long?
Life of author plus 70 years
Copyrights owned by a publishing house expire when?
95 years from publication or
120 years from the date of creation, whichever comes first
What happens to copyrights after expiration?
They enter the public domain and
belong to everyone (Beethoven, Sherlock Holmes, Good Night Moon, Ice Cream Song)
What is it called when copyrights are registered with the US Copyright Office?
✅Registration
Once something is copyrighted, what is it protected against?
Reproduction of the
work
- Development of derivative works
- Distribution of the work
- Public Display of the work
What are some examples of copyrighted material?
Books, records, film, artwork,
architectural plans, menus, music videos, software, photography
What are copyrighted under Section 102 once they are fixed in a durable medium?
✅Literary works, musical works, dramatic works and accompanying music,
choreographic works (ballets and dances); pictorial, graphic, and sculptural works;
motion pictures (multimedia works); sounds recording; architectural works
What says that generally anything that is not an original expression will not qualify for
copyright protection (facts or mathematical calculations commonly known will not be
copyrightable)?
Section 102 Exclusions
In terms of Section 102 exclusions, what are copyrightable?
✅Compilation of Facts
(Guinness Book of World Records)
Can you copyright an idea?
No, but you can copyright the way the idea is expressed
(idea and expression must be separable - formulas and algorithms)
What does not have to be the same as the original, nor does it have to reproduce the
original in full?
Reproduction of the copyright
What are the remedies for copyright infringement?
Actual damages (based upon
harm caused
- Statutory Damages (up to 150k)
- Permanent Injunction
- Criminal Penalties (fines and/or imprisonment)
What is the Fair Use Exception for copyrights under Section 107?
The purpose &
character of the use (commercial/nonprofit use)
- The nature of the copyright
- Amount of the copyrighted material used
- Effect of the use upon potential market value of the copyrighted work
How are issues of fair use decided since Section 107 is very broad?
On a case-by-case basis
Under Section 109, what provides that the owner of a particular item that is copyrighted
can without authority of the copyright owner sell or dispose of it (a person who buys a
copyrighted book can sell it to anyone without permission?
✅First Sale Doctrine
What amended the Copyright Act to include computer programs and provide copyright
protection for software; copyright protection extends to high level source codes and
binary language object code?
Computer Software Act
What are basically information of commercial value, such as customer lists, plans, and
R&D; may also include pricing info, marketing methodology/strategy, production
techniques; this CAN extend to ideas and expressions; no filing or registration for this?
✅Trade Secrets
How do companies protect trade secrets?
- Need to know basis
- Kept under lock and key
- Confidentiality agreement (Coca-Cola formula, KFC blend of 11 herbs and spices)
Disclosing trade secrets without authorization are liable if all of the following are true?
Discovered the secret by improper means; or
- Disclosure or use constitutes a breach of a duty owed to the other party (corporate
espionage is violation by itself - B&E, wiretapping)
What is making it very difficult to protect trade secrets?
Computer technology
What is the convention where 176 countries have recognized and agree to enforce
copyrights after 3/1/1989?
Berne Convention
What did 100 nations sign in 1994 that established international standard protections for
Intellectual Property (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)?
TRIPS Agreement
What is an international treaty designed to reduce the cost of international trademark
protections; US companies can submit a single application to register a trademark
abroad (one filing instead of hundreds)?
✅Madrid Protocol
What is an international treaty to combat global counterfeiting and piracy; goals are to
increase international cooperation, facilitate best law enforcement practices, and
provide a legal framework to combat counterfeiting; permits border searches where
member nations are required to establish border measures that allow officials to search
for counterfeit goods?
✅Anti-Counterfeiting Trade Agreement
Roger McDonald decides to open up a series of liquor stores in his home state. He calls
his chain McDonald’s and uses a large, blue, curvy M as his logo. McDonald’s
Corporation, the famous fast food restaurant chain, wants him to stop using the curvy
M, as it resembles McDonald’s Corporation’s famous golden arches. Association with a
liquor store would likely harm McDonald’s Corporation’s reputation. Can McDonald’s
Corporation stop Roger from using his large, blue, curvy M logo?
Mcdonalds can stop Roger form using the blue M if the similarity between the marks creates an
association between them
John invents a new type of automobile-tracking system on January 1 but does not file a
patent application for it until June 30. Meanwhile, on March 10, Susan invented a very
similar system and filed a patent application on March 15. Under the America Invents
Act, who holds the valid patent?
Susan, because she filed a patent application first
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
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
Trademark Infringement
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 win a patent infringement
case against Allied?
✅Yes, because Allied infringed on Hot’s Patent
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:
✅An infringement of Isaiah’s copyright
On the Border Mexican restaurants all have the same terra-cotta 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:
✅Trade Dress
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:
Neither Cason’s concept nor his process
BKS, Inc., has a research and development (R&D) facility in the Arizona desert. Only
authorized persons are allowed in the facility and all employees and guests must sign a
non-disclosure agreement. BKS likely considers the ideas of the people in their R&D
division to be:
✅Trade Secrets
In 2014, 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
70 years
For those who have suffered injuries as a result of the wrongful conduct of others,
through tort law, society supports?
Compensation
Serena invents a new, unique, long-life battery. A grant from the government that gives
Serena the exclusive right to make and sell the battery for a certain period of time is:?
Patent
Steps & Rungs Inc. makes ladders. Ty discovers that his Steps & Rungs ladder is
defective and sues the maker for product liability based on strict liability. To win, Ty
must show that:
The ladder was in a defective condition when Steps & Rungs sold it
