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| civil wrong other than breach of contract; |
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| victim of this has right to compensation in the form of money damages; not a crime, but may lead to criminal proceedings |
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Against A Person: Battery/Assault, Intentional Infliction of Emotional Distress, False Imprisonment, Defamation, Deceit, Invasion of Privacy
Against Property: Disparagement, Palming Off , Interference with Contract, Trespass, Nuisance
Against Property with Person: Wrongful Discharge |
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| Vicious Animals, Defective Products, Abnormally dangerous activities |
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| damages intended to punish the offender, and further compensates victim; damages awarded above and beyond the compensatory damages |
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| medical expenses, loss of wages, disability and pain and suffering |
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| protects a person’s interest in his/her reputation and good name; occurs when there is damage to the reputation of the victim |
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| Defamation (5 requirements) |
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Definition
1.) Defamatory statement
2.) Intent to communicate statement
3.) Comment identifies victim
4.) Comment made to a third party
5.) Damage to plaintiff’s reputation |
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| Defense against defamation |
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| same requirements as fraud; knowing and intentional misrepresentation of a material fact (victim must believe it, and it must lead to damages) |
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1. False representation of material fact
2. Knowledge by the person making the representation that is false
3. An intent to induce the listener to rely on the representation
4. Justifiable reliance on the representation by the listener
5. Damage to the duped party resulting from such reliance |
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| no physical contact; threatening |
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| physical intrusion onto real property that causes damage |
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| the unreasonable, unwarranted, or unlawful use of one's property in a manner that substantially interferes with the enjoyment or use of another individual's property, without an actual trespass or physical invasion to the land |
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| What do trespassing and Nuisance have in common? |
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Definition
| both interfere with an owners right to use his/her property. |
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1.)existence of duty and care
2.)breach of that duty by performing under “reasonably prudent person”
3.)breach was proximate cause of injury
4.)there was an actual injury |
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| defenses to intentional torts |
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| unintentional tort; conduct that is culpable because it falls short of what a reasonable person would do to protect another individual from foreseeable risks of harm |
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1.)injured party within scope of people that law was meant to protect
2.)injury within the scope of injuries protected against by statute |
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| switches the burden of proof from the plaintiff to the defendant 1.) Instrumentality causing injury solely within defendant’s control 2.) Event normally would not occur without defendant’s negligence 3.) Plaintiff must remove other possible causes |
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| assumption of risk, contributory negligence, comparative negligence |
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| defense used to either eliminate or reduce damages; if the plaintiff contributed to the injury, however slight, this bar’s recovery (and defendant is completely off the hook) |
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| plaintiff’s recovery is reduced by plaintiff’s percentage of negligence; the paying defendants each pay an amount equal to plaintiff’s recovery multiplied by an amount equal to the defendant’s percentage of negligence divided by the sum of the negligence percentages of all paying defendants |
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| Recovert for 3 types of product defects |
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Definition
| Construction, Design, Labeling |
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Definition
| product falls short of the manufacturer’s own established standards (item not of fair average quality) |
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| product meets the manufacturer’s standards, but the standards are inferior (design of product makes it dangerous- Pinto auto) |
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| manufacturer fails to provide adequate warnings of the risk associated with product exposure or proper procedures for using the product (failure to warn of side effects) |
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| In Product liability cases, plaintiff must prove... |
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Definition
1.) Product was defective (proof usually requires an expert, failure to warn buyer of hidden danger may also be defective)
2.) Product left the defendant’s control in a defective condition
3.) Defect caused the product to be unreasonably dangerous(defectively manufactured tire is a classic case for strict liability; food, drugs, automobiles, power tools, water heaters, gas stoves unreasonably dangerous if defective)
4.) Defect was the proximate cause of injury (injury must be directly attributable to the defective product; based on forseeability) |
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| Defense to product liability |
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Definition
1.) Misuse or alteration of product
2.) Item is known to have defect but you continue to use it |
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| based on economics; generally, injured plaintiff must identify the specific defendant who caused injury; in cases when whole industry has produced defective homogenous products, liability is proportionally allocated according to the share of the market that each defendant enjoyed; case of DES |
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| Express,Implied, Warranty of Fitness for a Particular Purpose |
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| guarantee is directly stated in writing |
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| warranty of merchantability, where the merchant warrants that the product is fit for its intended purpose; |
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| warranty of fitness for a particular purpose |
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Definition
| - the warranty must be in writing, and warrants that the product will do something that may not be within the warranty of merchantability; Example: an individual needing a vehicle that would pull a camper of a given number of pounds. |
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| Consumer Product Safety Commission |
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Definition
| independent regulatory agency established by the Consumer Product Safety Act, consists of 5 commissioners appointed by the president for 7-year terms |
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| Consumer Product Safety Commission (purpose) |
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Definition
| investigate the adequacy of consumer protection against unreasonable risks caused by hazardous household products; took note of products presenting unreasonable hazards, including color tv sets, fireworks, glass bottles, infant furniture, lawn mowers, and unvented gas heaters |
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Definition
| prohibits the use of “any false description or representation” in connection with any goods or services introduced into commerce; provides a claim for any competitor likely to be damaged by false representation; enables ones competitor to sue another for misrepresentation of a product; allows merchants to bring actions against other merchants where there is false description or representation of the goods |
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| Federal Trade Commission Act |
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Definition
| Unfair methods of competition… and unfair or deceptive acts or practices… are hereby declared unlawful |
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Term
| Deceptive Price Advertising |
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Definition
| deceptive if the advertiser recovers the cost of the free merchandise by marking up the price of the merchandise to be bought; “2 for 1” items must be sold at the regular price of one unit before the ad was run. |
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Definition
| one product is advertized to lure customers into a store to buy another, more expensive product when the advertiser has no intention of selling the advertized product |
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| how advertisers counter the distortion of poor transmission of real products, or improve effectiveness of ads; Because advertisements are considered to be warranties, use of mock-ups must be disclosed |
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| There is a line between acceptable “trade puffing” and deceptive advertising; quality claims must be provable; |
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Term
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Definition
| land and anything that is permanently attached to land |
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| moveable, no fixed site ; can be tangible (clothing, plates), or intangible (patents, stocks, bonds; usually acquired through purchase, but can be through matter of law |
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Term
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Definition
| personal property that are considered real property because they become attached to real property; degree of attachment and intent of the parties are especially important for fixtures; if buying or selling a home, the best way to handle fixtures is to write a contract on what is and is not included in the sale |
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Term
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Definition
| tenant can remove them as long as the tenant restores the building as nearly as possible to the original condition. |
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Term
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Definition
| owner voluntarily and intentionally surrenders property, property is unowned at this time; anyone can take this property and become the true owner. |
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| involuntarily left somewhere; the person who finds it has good title to the property against everyone except the true owner; finder has obligation to return to true owner finder usually becomes owner of the property after the find is made public, a certain period of time elapses, and the true owner fails to claim the property; Very little legal duty you have as a finder |
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Term
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Definition
| ordinarily treated as lost property, owner has superior title to the property to everyone else; property still belongs to true owner, and the theif theoritcally hold the property in trust for the true owner |
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Definition
| individual/entity gives something to another person/entity without any consideration |
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Term
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Definition
Living Gift
1.) intent to give gift, 2.) Delivery of gift, 3.) Acceptance of gift |
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| Causa Mortis (anticipates deaht) |
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| 1.) intent to give gift, 2.) Delivery of gift, 3.) Acceptance of gift 4.) if donor recovers from immediate threat of death, donor may revoke gift |
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Term
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Definition
| occurs when one person (the Bailor) transfers personal property to another (the Bailee) with instructions to return it or otherwise dispose of it; entrustment of personal property does not pass ownership |
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| Gratuitous Bailments” Bailee has a high degree of care; example: when being lent a car, bailee must return car in same condition and is liable for all damages |
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Term
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Definition
| most common types of bailment, Bailee’s lien (drycleaners sometimes sell stuff if it has been left too long and they are trying to make up the cost of the cleaning fee)- ordinary degree of care; example: rent |
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| slight duty of care by bailee, example: friend agrees to temporarily store furniture |
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warehouse, innkeeper, common carrier): are deemed professional bailees and are subject to special rules and are strictly liable for damage or loss of goods, with these exceptions:
1.) Unexpected “act of God”
2.) Act of war by a foreign power
3.) Bailor negligence
4.) Natural spoilage
5.) By contract |
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Term
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Definition
| parking garage, garage not liable for damage to your car (unless garage collapses or something); key issues is control; valet parking creates a bailment relationship, because control of the vehicle is turned over. Park and Lock parking, like at Gateway, does not create a bailment relationship. |
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Term
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Definition
| owner in fee may use the property as he or she sees fit, subject so local zoning laws, nuisance laws, and other laws; has fullest interest in the bundle of rights (has power to sell, lease, improve, destroy and pass property to heirs; most property today is owned in fee simple absolute |
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Term
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Definition
| in interest in land; the right of use and enjoyment of land as measured by the life of that person or another person; at the death of the person whose life determines the length of estate, the fee simple interest reverts to the grantor or to others, known as remainderman |
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Definition
| an interest in land created by a contract called a lease; obtains the right to use the property for a specific purpose, usually for a specific amount of time, in return for periodic cash payment (known as rent) |
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| gives right to use the land of another for a specified purpose but not to own the land (use someone else’s driveway if it is the only way for you to reach the street.) |
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Definition
| gives one the right to remove something from another’s land, such as trees or oil; interest in the land |
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| right to enter land for a particular purpose (example: right to play golf on the owner’s course) |
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| each co-owner has an undivided fractional interest in the property, potential interests need not be equal; tenant has right to possess the property; tenant may sell his or her share to another entity without affecting the existence of the tenancy-in-common; used in time-share arrangements; can sell interests without disturbing tenancy-in-common; when tenant dies, his or her share passes to heirs |
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Term
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Definition
| upon the death of one joint tenant, his or her share passes to the other joint tenants, transfer of one tenant’s shares makes the tenancy a tenancy-in-common; each tenant owns an equal undivided share in the property; tenancy by the entities—form of joint tenancy between husband and wife |
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Term
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Definition
| an instrument that transfers all the right, title, and interest that an individual has in a property to another individual, but that there no guarantees as to what that interest is; often used in matrimonial situations; a legal instrument by which the owner of a piece of real property, called the grantor, transfers his interest to a recipient, called the grantee. The owner/grantor terminates (“quits”) his right and claim to the property, thereby allowing claim to transfer to the recipient/grantee. |
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| a style of ownership, not a style of building; individuals own their units as they would own houses, and the common areas are owned by all unit owners as tenants-in-common, and each owns an undivided share equal to their percentage share of the land compromising the individual units individuals own units of a larger parcel in fee simple, and are tenants-in-common with other owners in the parcel as to common areas such as elevators, swimming pools, and land; share costs of maintaining the common areas; owners own the units in fee simple, they have the right to mortgage their property interests or the right to transfer title to their units; developer has a Declaration of Condominiums which describes the land on which the condo is developed and includes rules for how the condo is to operate; once a certain number of units are sold, the unit owners form their own condo association which governs the affairs of the condo. |
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Term
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Definition
| - building that is placed in the name of a cooperation, and each unit in the building is represented by a share of stock; established for an apartment or office building; building owned by one entity, such as a corporation; individuals purchase shares in the corporation, which allows them the right to lease units in the cooperative; not an ownership interest in land, consequently, the shareholders cannot obtain a mortgage loan to finance the purchase of their units. |
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| Resource Conservation and Recovery Act (RCRA |
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Definition
| addresses the special problems of hazardous waste sites; handlers (those who generate, transport, treat, or store) of hazardous waste (waste that contributes significantly to serious, irreversible illnesses or pose hazards to human health) must conform to specified standards |
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Definition
| deals with uncontrollable releases of hazardous wastes; creates a fund (superfund) that can be tapped by the EPA and state and local governments to clean up hazardous waste sites listed by the EPA on the National Priorities List (NPL); generators, transporters, current AND previous owners and operators (potentially responsible parties, PRP) of hazardous waste sites are strictly liable for the cost of the clean-up; where PRPs are identified, they can be ordered to perform cleanup, sued for cost of government cleanup, can enter into voluntary settlements with government concerning cleanup costs; existence of superfund enables the government to go on with cleanups where the PRP is not willing, is unavailable, or is insolvent to undertake work; liability is not imposed where the hazardous material release results from an act of God, an act of war, or the act of omission from a third party; Because previous and current holders can be held responsible, it is important to have a Phase I inspection if there is any question |
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Definition
| each area (water, air, etc) has its own pollution standards, and each company has an allowed amount of pollution, a polluter can sell that right to pollute to another company |
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| Second part of Partnership dissolution |
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Definition
| Winding Up: 1) Creditors paid, 2)Partners who are creditors are paid, 3) invested capital is returned, 4) Any extra money (profits), is paid to partners proportionally. |
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Definition
| one individual acts on behalf of another pursuant to an agreement that is either express or implied; agents ordinarily have authority to bind their principals, and may enter into contracts on behalf of their principals; agent is liable to the principle for entering into unauthorized contracts and for the agent’s torts; usually arise by mutual consent |
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Definition
| power of attorney (written); one of the more common agencies created orally and is express is the employer-employee relationship. |
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Definition
| can be reasonably implied by circumstances; office manage will have implied authority to order stationary on behalf of the company even if that right is not directly stated |
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| exists when a principal gives third parties the impression that an agent has authority to act, even if there is not an agency relationship |
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| Fair Debt Collection Practices Act: |
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Definition
| prohibits certain unfair practices by bill collectors; applies to entities collecting obligations on behalf of others; collectors can not call at times known to be inconvenient, and only between 8am-9pm; they can only talk to the debtor, and may not identify themselves to anyone but the debtor; if the collector becomes aware that the debtor is represented by counsel, communication must cease; if the debtor requests no contact from the agency, the agency must stop communication; collectors may not harass consumers in any way, nor can they make false or misleading statements; attempt to collect more than is due; threaten to take action that the collector can not lawfully take; can not indicate on an envelope that it comes from a collection agency |
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Definition
| gives the consumer the right to dispute a charge; when this happens, the credit provider must investigate the dispute |
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| Fair Credit Reporting Act- |
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Definition
| regulates credit reporting agencies; a consumer may dispute the accuracy of information, and the credit agency must investigate the claim; If the information cannot be revalidated, the information must be dropped; if the consumer continues to dispute the information, the consumer may put a written response in the credit report; if the credit agencies are negligent, that can face civil liability to the consumer |
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| Equal Credit Opportunity Act |
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Definition
requires that certain questions may not be asked, and that credit givers must not discriminate in the granting of credit
• If an individual is denied credit, he/she must receive information as to the reasons for the adverse result. |
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| 3-Day Right of Remission: |
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Definition
| consumer has three days to cancel any purchase made pursuant to a home solicitation—so if an individual comes to your door to sell you something, and you buy, you have three days to cancel the transaction (only applies if you have been solicited at your home |
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Term
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Definition
| requires a disclosure from the lender of what the APR (annual percentage rate) is on any loan, and requires disclosure of the amount financed, the total amount of payments, and the total interest charges; insures that consumers have adequate information about the cost of credit; also has a provision that for any home loan other than a purchase-money mortgage ( money used to pay for home), the borrower has 3-days to cancel loan. |
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