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Ch. 6 MGMT
MGMT Exam 2
| Question | Answer |
|---|---|
| Torts | a civl wrong, not arising from a breach of contract or other agreement |
| Damages Available in Torts | Compensatory Punitive Damages Caps |
| Special damages | monetary; quantifiable damages; loss wages, medical bills, hard damages that can be proven |
| General damages | soft damages pain and suffering mental anguish |
| How do you prove mental anguish? | Get a dr or therapist |
| Punitive damages | to punish the person who is responsible |
| Compensatory Damages | Special General |
| Damages Caps | general damages and punitive damages (medical malpractice); cap damages deterrent for plaintiffs to file suit |
| Classifications of torts | Intentional Negligence Strict Liability |
| Intentional | tortfeasor or defendant, must knowingly "intend" to commit the act |
| Negligence | Unintentional act (careless or reckless) |
| Strict Liability | liability without regard for fault |
| Defenses for Torts | Statue of limitations Consent |
| Statute of limitations (torts) | may be asserted as a defense to any cause of action generally 2 years |
| Consent (torts) | plaintiff is suing the defendant and defendant says well you consented (signed a contract) |
| Intentional Torts | intent is required to do the act that causes the harm INTENDED consequences substantial certainty |
| Tortfeasor | person committing the tort |
| Assault and Battery | D acted affirmatively and intentionally P suffered injury |
| Assault | an intentional, unexcused act that creates in another person a reasonable apprehension or fear of immediate harmful or offensive contact; apprehension of bodily contact that is imminent and offensive |
| Is contact necessary for assault | no contact necessary, but must be imminent |
| Battery | an unexcused and harmful or offensive physical contact intentionally performed no malice necessary |
| Defenses to Assault and Battery | consent plaintiff consents to the act that damages him or her 1) reasonable defense in both real and apparent danger 2) Force used must be reasonably necessary |
| False Imprisonment (defense to assault and battery) | P confined or restrained D acted intentionally P did not consent P suffered injury |
| Shoplifters | some states statutorily give businesses defense to allow them to detain shoplifters for a reasonable time and in a reasonable manner if the business has probable cause to justify the delay |
| Intentional Infliction of Emotional Distress | D acted Intentionally D actions were "extreme and outrageous" P suffered injury- severe and emotional distress |
| Intentional Infliction of Emotional Distress (Cont.) | Need truly outrageous conduct may have to show evidence of physical symptoms or illness or emotional disturbance documented by medical or psychiatric evidence |
| Outrageous conduct Defense | used by media speech about public figures: 1st Amendment Freedom of Speech |
| Examples of outrageous conduct | Medical details Harassing collection methods |
| Defamation | wrongfully harming a person’s good reputation. Anything published or publicly spoken that injures another’s character, reputation, or good name |
| Types of Defamation | Libel Slander |
| Libel | written reduced to a medium, radio, television, more permanent |
| Slander | oral, just saying something to another person |
| Elements of Prima Facie Case of Defamation | Defendant made a false statement as a fact not an opinion The statement was understood as being about P and intended to harm Ps reputation Published to a third party If Plaintiff is a public figure must also prove actual malice |
| Damages for Libel | proof of the libel; general damages are presumed; proof of special damages is not necessary |
| Damages for Slander | Plaintiff must prove that he suffered special damages before Defendant is liable |
| Exception- Slander Per se | false statement is actionable without proof of special damages. Someone makes a slanderous comment about one of these areas |
| 4 types of false statements are Per Se slanderous | Statement that person has loathsome, communicable disease Statement that person has committed improprieties in their profession or trade Statement that person has committed or been imprisoned for a serious crime Statement that unmarried woman is unchas |
| Defense on Defamation | Truth an absolute defense, if its true its not defamatory |
| Privileged Speech | Absolute Qualified (conditional) |
| Absolute | judicial proceedings legislative proceedings |
| Qualified (conditional) | made in good faith made to those with legitimate interest in the communication example: employee evaluations |
| Public Figure Plaintiffs | public figures have higher burden in proving defamation must prove actual malice |
| Actual Malice | knowledge of falsity reckless disregard whether statement was true or false |
| Statute of Limitations of Defamatory | One year from the date to sue statement was written |
| Compensatory damages (Defamatory) | to compensate (general or special) not capped |
| Privacy | broader term physical seclusion protection of personal information |
| Confidentiality | narrower refers to the protection of personal information medical context -> duty not to disclose information |
| Invasion of the Right to Privacy | right to solitude and freedom from prying public eyes. |
| 4 acts qualify (privacy) | Intrusion False light Public disclosure of private facts Appropriation of identity |
| Intrusion | D intrudes where P has reasonable expectation of privacy |
| False light | publicly placing P in a “false light”, two-year statute of limitations |
| Public disclosure of private facts | disclosing embarrassing or private facts (Revenge porn) |
| Appropriation of Identity | use of a p’s name, picture, likeness or other identifiable characteristic for commercial purposes without permission. Individual’s right to privacy includes the right to the exclusive use of his or her identity. Appropriation Statutes |
| Fraudulent Misrepresentation | Misrepresentation of material facts or conditions with knowledge that they are false or with reckless disregard for the truth Intent to induce another to rely on the misrepresentation. Justifiable reliance by the deceived party |
| Fraudulent Misrepresentation (cont.) | Damages suffered as a result of the reliance. A causal connection between the misrepresentation and the injury |
| More than mere "puffery" (Fraudulent Misrepresentation) | only involves subjective terms, opinions rather than facts. |
| Negligent Misrepresentation (Fraudulent Misrepresentation) | instead of intentional its where the defendant negligently made the statement, did not have a reasonable basis for believing the statement was true |
| Abusive or Frivolous Litigation (Fraudulent Misrepresentation) | filing a lawsuit without a legitimate basis for a cause of action Often used as a counterclaim by defendant (saying you abused the system with a frivolous lawsuit) |
| Intentional Torts against Business Interests (Business Torts) | Wrongful Interference with a Contractual Relationship must be intentional Any lawful contract can be the basis for this action Plaintiff must prove that defendant actually knew of the contract existence and induced the breach of the contractual relatio |
| Three elements of Intentional Torts against Business Interests | Valid, enforceable contracts between 2 parties Third party must know of the contract Third party must intentionally cause either of the two parties to break the contract |
| Wrongful Interference with a Business Relationship | Individuals may not interfere unreasonably with another’s business to gain a share of the market. Predatory behavior – soliciting only those customers who have already shown an interest in the similar product |
| 3 Elements of Wrongful Interference with a Business Relationship | Established business relationship Tortfeasor uses predatory behavior and intentionally causes the business relationship to end; and Plaintiff suffered damages |
| Defenses to Wrongful Interference | Bona fide competitive behavior. Aggressive marketing and advertising strategies. |
| Intentional Torts against Property (Property Torts) | Wrong is committed against the individual who has legally recognized rights with regard to real or personal property. |
| Property Types | Real Property Personal Property |
| Real property | includes land plus the buildings and fixtures permanently attached to it |
| Personal property | is property that is not permanently affixed to land: e.g., equipment, furniture, tools and computers |
| Trespass to Land | a person, without permission, enters onto, above, or below the surface of land that is owned by another; causes anything to enter onto the land; or remains on the land or permits anythi |
| Trespass to Land (cont.) | No harm to the land is necessary reasonable intrusion into air space is permitted D Acted Affirmatively & intentionally D Entered Land (includes above or below the surface) |
| Trespass to Land, owner must | implicitly or expressly establish that the person is a trespasser |
| Expressly | 1) tell a guest to leave and they won’t. 2) post “no trespassing” signs. |
| Implicitly | anyone on the property to commit an illegal act |
| Trespasser is | is liable for damages caused to the property and generally cannot hold the owner liable for injuries that the trespasser sustains |
| Reasonable Duty | Some jurisdictions, by statute, are replacing common law rule with a “reasonable duty” rule that varies depending on the status of the parties. In other words, the owner would have a duty to warn in certain circumstances. |
| Attractive Nuisance Doctrine | young children do not assume the risk if they are attracted to the premises by some object. |
| Owner can remove | trespasser from the premises through the use of reasonable force without being liable for assault and battery |
| Defenses to Trespass to Land | Trespasser enters to assist someone in danger even if that person is a trespasser. Trespasser enters to protect property. Consent Legal right (licensee) |
| Trespass to Personal Property | wrongfully harming or interfering with the personal property owner’s right to the exclusive possession and enjoyment of their property Involves intentional meddling |
| Defense to Trespass to Personal Property | if the meddling was warranted Mechanic's lien |
| Mechanic's Lien | a security interest in the title to property for the benefit of those who have supplied labor or materials that improve the property. The lien exists for both real property and personal property |
| Conversion | any act that deprives an owner of personal property without the owner's permission and without just cause that places the property in the service of the trespasser or other person |
| Conversion can be | civil theft, but cases aren't limited to theft can include action for Trespass to Personal Property |
| Non-defenses for conversion | good intentions the good you purchased was stolen |
| Negligence (Unintentional Tort) | no intent merely carelessness |
| Negligence (Elements) | Duty: Actor (defendant) must owe a duty of care to the injured party (plaintiff). Breach: Defendant must breach that duty. Causation: Defendant’s breach must cause plaintiff’s injury. Damages: Plaintiff must suffer a legally recognizable injury. |
| Negligence is always | a state-based claim not a federal Q |
| Duty | D owes duty to protect P from foreseeable risks -> those risks that could typically occur |
| Breach | D fails to act as a "Reasonable Person" under similar circumstances |
| Duty of Care and its Breach | Objective standard- not how you personally would act Reasonable Person Standard |
| Duty of Landowners: | Landowners must exercise reasonable care to protect business invitees from harm, including: 1) Foreseeable risks that the owner knew about. 2) Risks the owner should have known about. |
| Obvious dangers | Generally, no duty to warn, but still may be liable for failure to maintain safe premises. Exception – may have duty to warn children. |
| Duty of Professionals | Professional held to higher standard Violation of duty of care leads to malpractice |
| Duty of Employers | Negligent Hiring/Retention |
| No duty to Rescue | It is not necessary to go to the aid of a stranger. Exceptions – you put them in the situation. |
| Causation | Causation in fact burden of proof is preponderance of the evidence on party claiming harm proximate cause- was the harm foreseeable? |
| Independent Intervening Cause | breaks the causal chain |
| Causation (Is there cause in fact?) | "But for" test- but for the breach of duty, the injury would not have occurred Burden on party claiming harm by preponderance of the evidence |
| Causation (Is there proximate cause?) | Is there causal connection between an act and an injury strong enough to justify imposing legal liability? Foreseeability is the test for proximate cause after if no proximate cause, no legal liability |
| Palsgraf | if the consequences of the harm done to the victim of the harm is unforeseeable, no proximate cause |
| Injury Requirement and Damages | Must have legally recognizable injury (suffer some loss, harm, wrong, or invasion of a protected interest). No injury, no recovery. |
| Damage types (Injury Requirement and Damages) | Compensatory Special General Punitive |
| Compensatory | reimburse the plaintiff |
| Punitive | to punish for "gross negligence"- so bad it is egregious shocks the consequence |
| Dram Shop Act | If bar owner or bartender serves drinks to an intoxicated person, he may be liable to persons who are injured by the intoxicated person |
| Dram Shop Act (2) | Social hosts – people hosting parties may be liable for injuries caused by guests who became intoxicated at the host’s home |
| Good Samaritan Statute | Persons who are aided voluntarily by others cannot sue the person who aided them for negligence. Passed primarily to encourage health care professionals to voluntarily stop and render aid at accident without fear of liability |
| Defenses to Negligence | Assumption of the Risk Superseding Intervening Force Contributory Negligence Comparative Negligence |
| Assumption of the Risk | If voluntarily enter a risky situation knowing the risk involved, you are not allowed to recover damages you may incur. Requirements: knowledge of the risk and voluntarily assume the risk Can be by expressed agreement. Can be implied by actions. |
| Some statutes protect classes of people Example (Assumption of the Risk) | Employees cannot assume the risk of employer's safety violation |
| Assumption of the Risk (2) | Only assume normal risk carried by the activity. Risks are not deemed assumed in emergencies. |
| Superseding Intervening Force | can break the casual chain, normally dealing with malpractice for medicine |
| Contributory Negligence | If plaintiff is also negligent, then plaintiff has breached a duty and does not recover anything. Only a minority of states use this defense. |
| Comparative Negligence | Abolishes contributory negligence. Rule in majority of states. |
| Comparative Negligence (2) | Trier of fact (judge or jury) determines both the plaintiff and the defendant’s negligence percentage and the liability for damages is assessed accordingly |
| Pure form (Comparative Negligence) | where the P can recover any dollar amount to the extent of the D’s negligence |
| 50% Rule (Comparative Negligence) | the P can recover to the extent of D’s negligence BUT if the P is more than 50% at fault P recovers NOTHING |
| Texas (Comparative Negligence) | follows 50% rule |
Created by:
bella_grace11
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