Final

Question 1

Tort

Answer 1

A civil wrong, NOT arising from a breach of contract or other agreement or a breach of a legal duty, proximately causing another person harm or injury.

Question 2

Purpose of tort law

Answer 2

To provide a remedy (damages) for injury to a protected interest.

Question 3

Damages available in tort action:

Compensatory

Answer 3

Reimburse plaintiff for actual losses

Question 4

Damages available in tort action:

Special

Answer 4

For quantifiable losses, such as medical expenses, lost wages, and benefits.

Question 5

Damages available in tort action:

General

Answer 5

For non monetary aspects, such as pain, suffering, and reputation

Question 6

Damages available in tort action:

Punitive

Answer 6

Punish the wrongdoer and deter similar conduct in the future

Question 7

Intentional tort

Answer 7

The tortfeasor (person committing the tort) must “intend” to commit the act.

• he intended the consequences of his act
• he knew with substantial certainty that certain consequences would result

Question 8

Transferred intent

Answer 8

Intent of tortfeasor is transferred when he intends to harm person “A” but unintentionally harms person “B” as well.

Question 9

Assault

Answer 9

Any intentional and unexcused threat of immediate harmful or offensive contact-whether words or acts- that create a responsibly believable threat. (No physical contact is necessary)

Question 10

Battery

Answer 10

Battery is the completion of the assault.

• It is unexcused and harmful or offensive physical contact intentionally performed.
• the contact can be made by the defendant or by some force set in motion by the defendant.

Question 11

Defamation

Answer 11

Involves wrongfully hurting a persons good reputation. The statement must be a fact. Statements of opinions are protected speech under the first amendment and not actionable

Question 12

Slander

Answer 12

Orally breaching the duty to refrain from making false statements of facts about others (defamation)

Question 13

Libel

Answer 13

Breaching the duty to refrain from making false statements of facts about others (defamation) in print or media

Question 14

To establish defamation the following must be proved true

Answer 14

• the defendant made a false statement of fact
• the statement was understood as being about the plaintiff and tended to harm the plaintiffs reputation
• the statement was published to at least one person other than the plaintiff
• if the plaintiff is a public figure, she or he must also prove actual malice

Question 15

Damages for libel

Answer 15

General damages are presumed and the plaintiff does not have to prove actual injury. Damages include compensation for disgrace, dishonor, humiliation, injury to reputation, and emotional distress

Question 16

Damages for slander

Answer 16

The plaintiff must prove special damages (actual economic loss)

Question 17

Slander per se

Answer 17

Is an exception and no proof of damages is necessary when the statement involves a loathsome communicable disease, business improprieties, serious crime, or serious sexual misconduct

Question 18

Defenses to defamation:

Truth

Answer 18

Truth is generally an absolute defense for defamation

Question 19

Defenses to defamation:

Absence of malice

Answer 19

False and defamatory statements made about public figures are privileged unless they are made with actual malice (knowledge of falsity or reckless discard of the truth or falsity)

Question 20

Appropriation in terms of invasion of privacy

Answer 20

Use of another’s name, likeness, or other identifying characteristic for commercial purposes without the owners consent

Question 21

Fraudulent misrepresentation (fraud)

Answer 21

Intentional deceiving, usually for personal gain.

• misrepresentation of material fact
• intent to induce another to rely on the misrepresentation
• justifiable reliance by innocent party

Question 22

Puffery

Answer 22

“Sellers talk”

Freud is more than just puffery

Question 23

Abusive or frivolous litigation

Answer 23

The filing of a lawsuit without legitimate ground and with malice. Alternatively, the use of a legal process in an improper manner.

Question 24

Conversion

Answer 24

Wrongful possession or use of property without permission

Question 25

Disparagement of property:

Slander of quality

Answer 25

Publication of false information about another’s product (trade libel)

Question 26

Disparagement of property:

Slander of title

Answer 26

Publication falsely denies or casts doubt in another’s legal ownership of property, resulting in financial loss.

Question 27

Disparagement of property

Answer 27

Any economically injurious falsehood that is made about another’s product or property: an inclusive term for the torts of slander of quality and slander of title

Question 28

Unintentional tort

Answer 28

A wrongful act the tortfeasor committed without knowing its wrongfulness or without intending to commit the act

Question 29

Negligence

Answer 29

Failure to live up to a required duty of care that a reasonable person would exercise in similar circumstances. Intent is not required, only the creation of risk of the consequences experienced by the plaintiff.

Question 30

Causation

Answer 30

Even though a tortfeasor (person committing the tort) owes a duty of care and breaches the duty of care, the act must have caused the plaintiffs injuries.

Question 31

Causation in fact

Answer 31

Did the injury occur because of the defendants act or would the injury have occurred anyway?
“But for” test

Question 32

Proximate cause

Answer 32

When the causal connection between the act and injury is strong enough to impose liability

Question 33

Superseding cause

Answer 33

An unforeseeable, intervening act that breaks the causal link between defendants act and plaintiffs injury, relieving defendant of liability

Question 34

Contributory negligence

Answer 34

Under common law doctrine of contributory negligence, if the plaintiffs own negligence caused his injury in any way, reduces the amount of damage (money)

Question 35

Pure comparative negligence

Answer 35

Allows plaintiff to recover even if his liability is greater than that of the defendant

Question 36

Modified comparative negligence

Answer 36

Percentage of damages that the plaintiff causes are subtracted from the total award.

• 50% rule: plaintiff recovers only if liability is less than 50%
• 51% rule: plaintiff recovers nothing if liability is greater than 50%

Question 37

Strict liability

Answer 37

Liability regardless of fault. A person who engages in certain activities can be held responsible for any harm that results to others, even if the person used the utmost car (doctors)

Question 38

Product liability

Answer 38

A manufacturers, sellers, or lessors liability to consumers, users, and bystanders for physical harm or property damages that is caused by the goods

Question 39

Strict product liability

Answer 39

Hold people liable for results of their acts, regardless of their intentions or exercise of reasonable care

Question 40

Preemption

Answer 40

Government regulations prevent claims of product liability

Question 41

Statute of limitation for product liability

Answer 41

Typically 2 to 4 years

Question 42

Statute of repose

Answer 42

Place outer time limits on product liability actions so that sellers and manufacturers are not left vulnerable to lawsuits indefinitely

Question 43

False imprisonment

Answer 43

• the intentional confinement of another person or restraint of another persons activities without justification.
• the confinement may occur through the use of physical barriers, physical restraint, or threats of physical force.

Question 44

Comparative negligence

Answer 44

Plaintiffs own negligence or wrongful acts contributed to her injury.

Question 45

Intellectual property

Answer 45

Any property resulting from intellectual, creative processes-the products of one or more individuals minds.
Ex. The apps for your iPhone, iPad, or Samsung galaxy, the movies you see, and the music you listen to are all forms of intellectual property.

Question 46

Trademark

Answer 46

A distinctive mark, motto, device, or emblem that a manufacturer stamps, prints, or otherwise affixes to the goods it produces so that they can be identified on the market and their origins made known.

Ex. The coca-cola co. Vs the koke co. In this case the defendant argued that the coca-cola trademark was entitled to no protection under the law because the term did not accurately represent the product.

Question 47

Trademark dilution

Answer 47

Creates federal cause of action even when unlikely to confuse consumers. Protects “distinctive” or “famous” marks such as McDonald’s, Dell, Apple, and Starbucks.

Question 48

Trademark infringement

Answer 48

Use of a protected trademark- or copying it to a substantial degree- without permission. Most common remedy is an injunction (stopping) against further infringement.

Infringed (used without authorization)

Question 49

Fanciful marks

Answer 49

Use invented words (google)

Question 50

Arbitrary marks

Answer 50

Use common words in an uncommon way (“Dutch boy” for paint).

Question 51

Suggestive trademarks

Answer 51

Suggest something about products nature or quality (Blue-ray DVD)

Question 52

Distinctiveness of the mark

Answer 52

Fanciful, arbitrary, or suggestive trademarks are usually considered to be he most distinctive (strongest) trademarks.

Question 53

Secondary meaning

Answer 53

Descriptive, geographical terms are usually not protected, unless there is a secondary meaning.
Ex. “London Fog” coats

Question 54

Generic terms

Answer 54

Receive no protection.

Ex. Bicycle, aspirin, and computer

Question 55

Service mark

Answer 55

Is essentially a trademark that is used to distinguish the services (rather than the products) of one person or company from those of another.
Ex. Each airline has a particular mark or symbol associated with its name.

Question 56

Certification mark

Answer 56

Is used by one or more persons, other than the owner, to certify the region, materials, mode of manufacture, quality, or other characteristic of specific goods or services.
Ex, woolmark logo is used to certify that goods are 100% wool

Question 57

Collective mark

Answer 57

When used by members of a cooperative, association, or other organization, a certification mark is referred to as a collective mark.
Ex. Collective marks appear at the ends of motion picture credits to indicate the various associations and organizations that participated in the making of the films.

Question 58

Trade dress

Answer 58

The image of overall appearance of the product or service. Trade dress is given the same protection as trademark.
Ex. Distinctive shop décor or packaging

Question 59

Counterfeit goods

Answer 59

Are those that copy or otherwise imitate trademarked goods.

Ex. Nutritional supplements and drugs

Question 60

Stop counterfeiting in manufactured goods act (2006) penalties

Answer 60

Up to $2 million and 10 years in prison.

Question 61

Trade names

Answer 61

A term used to indicate part or all of a business’s name, whether the business is a sole proprietorship, a partnership, or a cooperation. Is directly related to the business’s reputation and goodwill.

Question 62

License

Answer 62

Agreement or contract permitting the use of a trademark, copyright, patent, or trade secret for certain purposes.

Question 63

Licensor

Answer 63

Party that owns the intellectual property rights.

Question 64

Licensee

Answer 64

Party obtaining the license who generally pays fees (royalties) for the use of the intellectual property.

Question 65

Patent

Answer 65

A grant from the government giving an inventor the exclusive right or privilege to make, use, or sell his invention for a set period of time.

A patent may protect an invention, product, process, or design.