The flashcards below were created by user
on FreezingBlue Flashcards.
What is a tort?
a civil wrong arising from a breach of duty that proximately causes harm or injury to another.
What are the duties that are imposed on us?
- 1. action to act
- 2. act of omission (not to act)
How do we repair an injury caused to a person?
damages are rewarded
What are the two types of reparations to damages?
- compensitory - monetary award equivalent to damages
- punitive - punishment damages designed to punish a defendant and to deter future similar conduct
What are the two classifications of torts?
- intentional torts
- unintentional torts
Intentional torts can be against (2)
- against a person
- against property
What are the intentional torts against a person? (7)
- assault & battery
- false imprisonment
- intentional infliction of emotional distress
- invasion of privacy
- fraudulent misrepresentation
What are the intentional torts against property? (3)
- Trespass to Land
- Trespass to Personal Property
- Disparagement of Property
What is considered to be an assault?
any word or action intended to make another person fearful of immediate physical harm
What is considered to be battery?
the unexcused, harmful or offensive, intentional touching of another
What is false imprisonment?
the intentional confinement or restraint of another person's activities without justification
What is the intentional infliction of emotional distress on a person?
an intentional act involving extreme and outrageous conduct that results in severe emotional distress to another
What is considered to be actionable?
- capable of serving as the basis of a lawsuit
- the action must be so extreme that it exceeds the bounds of decency accepted by society
What is considered to be defamation?
Anything published that causes injury to another's good name, reputation, or character
Breaching a defamation duty in writing or other permanent form involves the tort of ____.
Breaching a defamation duty orally involves the tort of _______.
Statements of _____ normally are not actionable because they are protected under the 1st Amendment.
What are the two tests (requirements) to be considered defamation?
- statement of fact requirement (not just a statement of opinion)
- the publication requirement (communicated to person's other than the defamed party)
What are the requirements for damages for slander?
plantiff must show that the slanderous statement caused the plantiff to suffer actual economic or monetary losses
What is a privilege?
a legal right, exemption, or immunity granted to a person or a class of persons
To be made with actual malice, a statement must be made with ___________________.
- either knowledge of falsity or
- a reckless disregard of the truth
What is a person's right to privacy?
A person has a right to solitude and freedom from prying, public eyes
What are the four acts that qualify as an invasion of privacy?
- intrusion into an individual's affairs or seclusion
- false light
- public disclosure of private facts
- appropriation of identity
What is appropriation?
in 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
What is fraudulent misrepresentation?
A misrepresentation leads another to believe in a condition that is different from the condition that actually exists. Involves intentional deceit for personal gain
What elements must exist to be considered fraudulent misrepresentation?
- the misrepresentation of facts or conditions with knowledge that they are false or with reckless disregard for the truth
- an intent to induce another to rely on the misrepresentation
- justifiable reliance by the deceived party
- injuries suffered as a result of the reliance
- a causal connection between the misrepresentation and the injury suffered
What is puffery?
a salesperson's often exaggerated claims concerning the quality of property offered for sale (not fraudulent misrepresentation)
When is it considered a trespass to land?
the entry onto, above, or below the surface of land owned by another without the owner's permission
Who is considered to be a trespasser?
- a person who ignores posted trespass signs and enters the property
- any person who enters onto your property to commit an illegal act (without posted signs)
What are the defenses against trespass to land?
- claim that the trespass was warranted (assist someone is danger on the property)
- trespasser has a license to come onto the land (read an electric meter)
What is considered trespass to personal property?
the unlawful taking or harming of another's personal property or the interference with another's right to the exclusive possession of his or her personal property
What is considered to be disparagement of property?
an economically injurious falsehood made about another's product or property
What is the difference between slander of quality and slander of title?
- quality: the publication of a statement that denies or casts doubt on another's legal ownership of any property, causing financial loss to the property's owner
- title: the publication of a statement that denies or casts doubt on another's legal ownership of any property, causing financial loss to that property's owner
(Unintentional tort) What is negligence?
the failure to exercise the standard of care that a reasonable person would exercise in similar circumstances
To be considered negligence, a _____ must be created and it must be ______.
What are the requirements to be considered negligence?
- duty - the defendant owed a duty of care to plantiff
- breach - the defendant breached that duty
- causation - the defendant's breach caused the plantiff's injury
- damages - the plantiff suffered a legally recognizable injury
What is duty of care (negligence)?
the duty of all persons, as established by tort law, to exercise a reasonable amount of care in their dealings with others
What is the reasonable person standard (negligence)?
the standard of behavior expected of a hypothetical "reasonable person"
What is a causation in fact? (negligence)
an act or omission without which an event would not have occured
what is proximate cause?
legal cause, which exists when the connection between an act and an injury is strong enough to justify imposing liability
To recover damages for negligence, the plantiff must have suffered some _____, ______, _____, or _______.
- or invasion of a protected interest
What are the defenses of negligence?
- comparative fault
- third party fault
- Force Majuere (Act of God)
What is comparative fault? (negligence)
- comparing the fault of the plantiff with the fault of the defendant.
- plantiff is 70% responsible
- defendant is 30% responsible
- Whatever the reward of the case is, the defendant only pays their percentage
What is third party fault (negligence)?
someone that has not been named in the suit, but has caused harm or damage
What is Force Majuere/Act of God (negligence)?
(weather conditions) anything beyond the control of the person or entity being sued.
Strict liability (non-intentional tort 2) is _____ based.
What are the types (3) of strict liability?
What are the requirements for custodial strict liability?
- You may not own it, but you have custodial possession of it
- the thing you have custody of causes "unreasonable risk of harm"
- custodian knew or should have known of the risk of harm and failed to remedy it within a reasonable period of time
- the thing caused injury or damage
What is considered "unreasonable risk of harm"?
- means defective
- weigh the social utility (usefulness of the object) against the harm it presents
What is the difference between actual knowledge and constructive knowledge? (custodial strict liability)
- actual - knew the thing was defective
- constructive - anything short of actual knowledge
Federal Agencies (FDA, EPA) administrative law
- executive administrative agencies
- - under control of POTUS
- - each cabinent position has an associated admin agency
What are Independent Admin Agencies?
- anything that is not executive admin agencies
- ex: Sec. & Exchange commission, Fed. Trade Commission
Federal Administration Agencies have the ability to enact rules which once enacted, has the same force as a _______.
(Fed Admin Agencies) What is the Delegation Doctrine Article I Sect 8?
provision of U.S. Constitution which provides the agencies to enact these laws
What is the Administrative Procedure Act?
requires federal agencies to follow certain procedures to carry out their functions
What are the functions of Admin Agencies?
- rule making
- enforcement of the rules
Any decision that is rendered in the Adjudication process must be appealed in Federal courts. What are the challenge standards?
- whether the admin agency in its rule-making was arbitrary and capricious
- abuse of discretion
- not in accord with applicable law
What are the factors of Arbitrary & Capricious?
- failure to provide an explanation for the action of the decision
- agency changed its prior policy w/o explanation or justification
- agency considered legally inappropriate factors
- agency rendered a decision plainly contrary to the evidence
What is the major function of an admin agency?
What does the rule-making in admin agencies require?
notification and publication
What is the process of rule-making in Admin Agencies?
- rule is proposed
- it's published in Federal Register (notice period)
- takes the form of a public hearing, specific time allotment to submit comments in writing (comment period)
- rule is often revised based on comments
- final rule is published in the Federal Register
- once the rule is adopted it becomes law and is published in the Code of Federal Regulations (CFRs)
- subject to review by the courts
(Enforcement) IRS has subpoena power/no judge signature on site. What are the two types of subpoenas?
- subpoena testification - requires the appearance of a person or individual
- duces tecum - requires the production of documents
What are the factors of adjudication?
- a hearing w/ relaxed rules of evidence
- constitutes a judicial decision
- settlements are favored and often occur
What is the Freedom of Information Act?
(Federal Statute) allows any U.S. citizen to request any information from a federal agency possessing information (in letter form) regarding a particular issue
What is the Sunshine Law?
(Open Meeting Law)(a state law) no public admin agency can meet w/o first publishing its agenda 24 hrs in advanced of scheduled meeting on the door or window where the meeting will take place
What are the types of businesses?
- sole proprietorship
What is a sole proprietorship?
- one person ownership
- no tax benefit/no benefit from liability
- best for low risk, cash only business
What is a partnership? What are the two types?
- at least two individuals or entities
- -general partnership
- -limited partnership
What is a general partnership?
- the income (profits) given to partners in equal shares
- each partner is liable for the obligation
- partners are liable individually from a liabilities standpoint
What is dissociation in reference to general partnerships?
- when a partner ceases to be associated w/ carrying on the partnership business
- remaining partners continue to carry on that business
What is a limited partnership?
- there is a partner who contributes capital to the business, but has no right to participate in the management or operations in the business
- the limited partner is not responsible for the obligations (debt or management)
Why does one establish a corporation?
- to protect from liabilities
- keep personal assets protected
What are the two types of corporations?
What is an INC?
- risk of harm in running business is high risk
- must have a president and a sec treasurer
- file Articles of Inc (Initial Report and Designation for Agent of Service)
- articles specify how many shares issued purpose of the corporation, and generally the organization
What is an LLC?
- lower risk
- no officers per say
- can serve as a sub chapter "s"
- has lucrative tax benefits
- file Articles of Organization (Initial report & Designation for Agent of Service)
What is the Designation for Agent of Service?
the individual who will be served with the suit
The day by day operations of an Inc must have rules. What are By-Laws?
- spell out what individuals in offices can do
- how shares can be transferred
- how assets can be liquidated
The organization of LLCs is not reflected by shares of stock but by ______
The day by day operations of an LLC must have rules. What are Operating Agreements?
higher points make that individual's decisions weightier
An Inc is managed by ________ who are elected by ______.
- Board of Directors
The dividends of an INC are __________.
distributed to shareholders
The % of the dividends of an INC depends on ___________.
the # of shares
What are reinvestments?
retained earnings(profits) not distributed to shareholders but reinvested in company
What is a franchise?
an agreement by which an owner of a tradename, trademark, or copyright licenses to another the use of ↖↑↗ in the selling of goods or services
What are the types of franchises?
- chain-style business operation
- manufacturing or processing plant agreement
What is a distributorship?
when a manufacturer licenses a dealer to sell their product (Kraftman only sold in Sears)
What is a chain-style business operation?
When a business operates under the franchisor's name (McD's, Burger King, Pizza Hut)
What is a manufacturing or processing plant agreement?
when franchisor transmits to the franchisee the essential ingredients or formula to make a particular product (Coca Cola, [Popeyes is a combo of chain-style and manufacturing because of recipe])
A franchise agreement specifies ____ & _____.
- premises (location)
- organization (whether you can lease or purchase it)
what are the designations of corporations (3)?
- domestic - corp is formed under state laws under which it is domiciled or conducting business (Inc & LLCs)
- foreign - formed under laws of another state that is doing business elsewhere
- alien - corp formed outside of the U.S. but is doing business within the U.S.
What are the characteristics of a shareholder?
- (Inc) equity in a corp
- no managerial resp.
- elects board of dir who do have man resp.
- must approve any fundamental change
- must be 50% present to pass a proposal
- issuing more shares of stock dilutes % of existing stock
What are preemptive rights?
right of a shareholder to purchase newly issued stock/shares in an amount equal to the % of shares he/she already owns
what is watered stock?
shared that are issued by a corporation for which the corporation receives as payment less than the stated value for the stock
What is a derivative law?
lawsuit against a 3rd party
Are shareholders personally liable for the debts of a corporation?
What is piercing the corporate veil?
going after personal assets
What are the factors to piercing the corporate veil?
- did you properly capitalize (put enough cash into business)
- co-mingling (money belonging to corp shouldn't be used for personal)
- alter-ego (can't tell the difference between the shareholders and the corporation)