Final - Dec 10th
Recognize a contract issue when it comes up. What are the red flags that you need to look out for.
Not all agreements are contracts. Some are not binding. Definition of a contract: An agreement between two or more parties, the breach of which, the law affords a remedy.
A void contract is not a contract. Some contracts are "voidable", may or may not be void. Ex: contracts by minors. Lacks capacity to enter into a contract. If its for a luxury item (ex: car), it's void. If, after the minor reaches the age of 18, the person continues with the contract, it becomes valid.
Oral agreements for purchase of real property is unenforceable. Must be in writing. Other important, unique or unusual types of agreements must also be in writing. Ex: Sale of more than $500, to pay debts of other people, marriage.
Two bodies of law cover contracts: common law and Article II of Uniform Commercial Code (UCC) covers contracts for the sale of goods.
Quasi-contract: It's a contract remedy. Prevents unjust enrichment. "As if there were a contract". Ex: Painters paint your house with your knowledge, but it's the wrong house. This is a quasi-contract, because you were knowingly and unjustly enriched and took advantage of it. Quasi-contract allows the painters to get a remedy (payment) from you.
Unsolicited books, newspapers (etc) don't create a quasi-contract with the recipients.
There must be a "meeting of the minds" - manifistation of mutual assent. Both parties agree to be bound by the contract. Requires an offer and an acceptance. What constitutes an offer/acceptance? Offer must be communicated directly by the offeror to the offeree. Indirect is not sufficient (unless through an agent). Requires intent. Clear, concise, definite. Never in the form of a question. "Would you like to buy my car for $60k?" does not consistute an offer.
If an advertisement is definite, it may be an offer. But courts sometimes consider it an invitation for the customer to make an offer. "We'll beat any competitor's price" or "Come in and make an offer" are not offers.
See Lefkowitz v Great Minneapolis Surplus Store. Quantity, price and other terms were specified, so GMSS had to honor it. It was an offer.
Words can constitute an offer, even if you didn't mean it. It's an objective test - what would an ordinary, reasonable person mean in such a case?
Common law: quantity, price, identify the item.
UCC: some terms can be left open. you can even leave off the price sometimes. "price to be determined at the time of delivery"
How long is an offer good for? If stated in the contract, that is what's binding. It might be able to be revocation or rejection or counter-offer or death/insanity of either party or subsequent illegality. Otherwise, after a "reasonable" amount of time.
Revocation: an offer can be revoked by the offeror at any time even if the offeror had promised to keep it open for longer. Even if the offeror is revoking it because he got a better offer from someone else. However, this can't be done if someone puts a down payment on it. It's an option contract. That under common law.
Under UCC, which covers moveable items, an option contract is called a firm merchant's offer rule - if a merchant puts an offer in writing and promises not to revoke it, that offer is irrevokable for the stated time, not to exceed 3 months.
Rejection - If offeree rejects and offer, it kills the offer. It cannot be revived (unless the offeror agrees). Must be definite.
Counter-offer - rejection by the offeree and then the offeree becomes the offeror. it kills the original offer.
A: I'll give you my car for 60k.
B: I'll give you 50k.
A: No.
B: Ok, I'll give you 60k.
A: No. The offer is gone.
The offer is gone because the counter-offer killed it.
Counter offer must be definite and certain, otherwise, it's not a counteroffer and the original offer is still in force.
Always get agreements in writing. If not, people will lie in court.
Offer dies if any of the parties dies while the offer is pending.
Contracts don't die with the parties, unless it's for personal services. Option contracts don't die with one of the parties.
If the subject matter is destroyed, the contract dies. After the time of delivery, the buyer must still pay.
Subsequent illegality: ex: sporting goods contract with smith & wesson when chicago made it illegal. contract was dead.
Acceptance. Must be definite, certain and unequivocal. Not a question. Simply "I accept".
Under common law, we have mirror image rule. must be an exact restatement of the offer. Under UCC, changes in the terms, do not constitute a counter-offer so long as the terms are not material.
Do the additional terms become part of the contract? Not necessarily. But if both are merchants, the party has 10 days to object or accept additional terms.
When does the acceptance form a contract? When it is sent, as long as it is sent by an authorized means of communication. i.e. the means that the offeror requires or the means either equal to or faster than the offer. if offer is first class mail and acceptance is first class mail, the contract is in effect the minute the acceptance is mailed.
If the acceptance is sent by unauthorized means of communication, it is only considered a contract when it is received by the offeror.
Rejection kills an offer only when received. If you mailed a rejection and you want to revoke the rejection, you have to send the acceptance and it must be received before the rejection.
Tuesday, November 24, 2009
Thursday, November 19, 2009
Class 22 - Trademarks and Intro to Contracts
Trademarks are an important part of business.
You don't have to copy the trademarked name or logo directly to get sued. Even if you just hint at the name, like "McDoofus", you may be in violation of the law. Even if you use your own name. E.g. Hyatt Legal Services, Gerber Foods.
Trademark Dilution - See pg 204-205. Certain trade names are so recognized that no matter what you use the name for, you must cease and desist. E.g. Coca-Cola Motels.
Servicemarks - "Home of the Whopper"
Patents and other intellectual property - trade secrets. Trade espionage is a federal crime. Coca-cola has HFCS, not sugar. KFC just moved their secret recipe to a new safe.
See pg 215 trade secret:
1. not known by competition
2. business would lose its advantage if the competition were to obtain it
3. owner has taken reasonable steps to protect the secret
You make more money from suing infringers than from a patent itself.
Main thing is: you have to be careful when you use a logo or name.
Companies protect their trademark because if they don't, they can lose the right to use it exclusively.
Even if you alter the logo, like taking off the letters from the BMW logo, you can still get sued for infringement.
Intro to Contracts
Your rights and liabilities under agreements.
A contract is an agreement between two or more parties (individuals, corps, partnerships, govts), the breach of which the law affords a remedy.
Not all agreements are enforceable. Not all are legal.
Manifestation of mutual assent. Offer. Acceptance. Must be voluntary. Duress. Undue influence. Must be legal - have a legal purpose. Sometimes people need to be licensed. If not, if the contract enforceable?
Contractual capacity - parties must have capacity, i.e. be 18 yrs old and have mental capacity.
Some contracts must be in writing. Some can be oral or in writing.
Consideration: The quid pro quo. A contract must have consideration. Promises to make gifts are generally not enforceable. Consideration is a legal detriment. the legal sufficiency of consideration.
What happens if you want to change an executed contract.
Every day of your life, you're in a contract.
The owner of property owes a duty of care to invitees for their safety. Ex: Old Orchard shopping center could they be sued when a crime happened there? Did they need to add more security guards? No. Because there had only been 2 violent crimes (one at Mario Tricocci and one food court murder by a fired employee) in the past. Neither was foreseeable, so the owner wasn't liable. You only need to provide the necessary security to protect against foreseeable incidents. See Campisi v Acme Markets when a blind employee with a cane caused a customer to trip.
Bloomingdales in Hartford, CT. It's a high-crime area. A woman was raped and murdered. The family sued Bloomingdales. Bloomies was found to be negligent. Similar situation with a Fotomat.
Trademarks
See page 201. BMW vigorously protects their logo. See the program Illicit (PBS special) about trademark infringement.
Classification of Trademarks:
Arbitrary & Fanciful (preferred by the courts)
Suggestive
Descriptive
Generic
If you don't enforce your trademark, it can become generic. Ex: Aspirin (was originally owned by Bayer).
On Thursday, we will start contracts. This is important!
You don't have to copy the trademarked name or logo directly to get sued. Even if you just hint at the name, like "McDoofus", you may be in violation of the law. Even if you use your own name. E.g. Hyatt Legal Services, Gerber Foods.
Trademark Dilution - See pg 204-205. Certain trade names are so recognized that no matter what you use the name for, you must cease and desist. E.g. Coca-Cola Motels.
Servicemarks - "Home of the Whopper"
Patents and other intellectual property - trade secrets. Trade espionage is a federal crime. Coca-cola has HFCS, not sugar. KFC just moved their secret recipe to a new safe.
See pg 215 trade secret:
1. not known by competition
2. business would lose its advantage if the competition were to obtain it
3. owner has taken reasonable steps to protect the secret
You make more money from suing infringers than from a patent itself.
Main thing is: you have to be careful when you use a logo or name.
Companies protect their trademark because if they don't, they can lose the right to use it exclusively.
Even if you alter the logo, like taking off the letters from the BMW logo, you can still get sued for infringement.
Intro to Contracts
Your rights and liabilities under agreements.
A contract is an agreement between two or more parties (individuals, corps, partnerships, govts), the breach of which the law affords a remedy.
Not all agreements are enforceable. Not all are legal.
Manifestation of mutual assent. Offer. Acceptance. Must be voluntary. Duress. Undue influence. Must be legal - have a legal purpose. Sometimes people need to be licensed. If not, if the contract enforceable?
Contractual capacity - parties must have capacity, i.e. be 18 yrs old and have mental capacity.
Some contracts must be in writing. Some can be oral or in writing.
Consideration: The quid pro quo. A contract must have consideration. Promises to make gifts are generally not enforceable. Consideration is a legal detriment. the legal sufficiency of consideration.
What happens if you want to change an executed contract.
Every day of your life, you're in a contract.
The owner of property owes a duty of care to invitees for their safety. Ex: Old Orchard shopping center could they be sued when a crime happened there? Did they need to add more security guards? No. Because there had only been 2 violent crimes (one at Mario Tricocci and one food court murder by a fired employee) in the past. Neither was foreseeable, so the owner wasn't liable. You only need to provide the necessary security to protect against foreseeable incidents. See Campisi v Acme Markets when a blind employee with a cane caused a customer to trip.
Bloomingdales in Hartford, CT. It's a high-crime area. A woman was raped and murdered. The family sued Bloomingdales. Bloomies was found to be negligent. Similar situation with a Fotomat.
Trademarks
See page 201. BMW vigorously protects their logo. See the program Illicit (PBS special) about trademark infringement.
Classification of Trademarks:
Arbitrary & Fanciful (preferred by the courts)
Suggestive
Descriptive
Generic
If you don't enforce your trademark, it can become generic. Ex: Aspirin (was originally owned by Bayer).
On Thursday, we will start contracts. This is important!
Tuesday, November 17, 2009
Class 21
An oral lease is not a lease. A lease must be writing to be valid. See page 182-193.
Unless it's prohibited by the terms of the lease, you can sublease.
Lease must state where it is, for how long, and for how much. Can be month-to-month. Can include other terms also. Tenant can't abuse the property or change it. Can't let it fall into disrepair.
Most leases are based on Uniform Residential Landlord and Tenant Act.
Security deposit cannot be retained because of normal wear and tear. Only if you misuse, damage or allow to fall into disrepair. If landlord tries to retain it, you get 3x back.
Lease can state intended use.
Nielsen v. Gold's Gym - terms were ambiguous. If it's not clear, the court can't do anything with it.
Public Control - Eminent Domain - 5th amendment says govt can take private property for public use. Even if they take or limit your ability to use your property (like an easement), they must pay you for that. Ex: land in Florida taken to be a wildlife refuge.
Zoning laws
Torts against Property:
Trespass to land - unlawful intrusion by a person or thing on land belonging to another. Even if the trespasser didn't realize it. In criminal law, it's only if they know about it. "You can't shoot a trespasser."
Common types - dumping, hunting, building on someone else's property (fence over the property line). two choices: give it to the other person or tear it down. if it's a big structure, buy the property.
Nuisance
Private nuisance: Anything that interferes with the use and enjoyment of the land.
Public nuisance: interference with the public health and welfare.
Ex: neighbor from hell. wrigley night games. midway and ohare airport expansions. barking dogs at nw corner of estes and washtenaw.
businesses that detract from neighboring businesses. ex: boutique next to aerobic dance studio.
Trespass to Personal Property
Conversion - intention, unlawful control or appropriation of the personal property of another. civil side of theft. if you rent a dvd and never return it, after a while, you own it. also, changing the character of the property. ex: loan of a car and then put many miles on it.
Premises Liability
slip and fall cases. if it's not safe, it's negligent.
It's no longer true that if you don't clean the snow, it's not your fault, but if you do, it is. Now, you must keep the property clean and safe.
Unless it's prohibited by the terms of the lease, you can sublease.
Lease must state where it is, for how long, and for how much. Can be month-to-month. Can include other terms also. Tenant can't abuse the property or change it. Can't let it fall into disrepair.
Most leases are based on Uniform Residential Landlord and Tenant Act.
Security deposit cannot be retained because of normal wear and tear. Only if you misuse, damage or allow to fall into disrepair. If landlord tries to retain it, you get 3x back.
Lease can state intended use.
Nielsen v. Gold's Gym - terms were ambiguous. If it's not clear, the court can't do anything with it.
Public Control - Eminent Domain - 5th amendment says govt can take private property for public use. Even if they take or limit your ability to use your property (like an easement), they must pay you for that. Ex: land in Florida taken to be a wildlife refuge.
Zoning laws
Torts against Property:
Trespass to land - unlawful intrusion by a person or thing on land belonging to another. Even if the trespasser didn't realize it. In criminal law, it's only if they know about it. "You can't shoot a trespasser."
Common types - dumping, hunting, building on someone else's property (fence over the property line). two choices: give it to the other person or tear it down. if it's a big structure, buy the property.
Nuisance
Private nuisance: Anything that interferes with the use and enjoyment of the land.
Public nuisance: interference with the public health and welfare.
Ex: neighbor from hell. wrigley night games. midway and ohare airport expansions. barking dogs at nw corner of estes and washtenaw.
businesses that detract from neighboring businesses. ex: boutique next to aerobic dance studio.
Trespass to Personal Property
Conversion - intention, unlawful control or appropriation of the personal property of another. civil side of theft. if you rent a dvd and never return it, after a while, you own it. also, changing the character of the property. ex: loan of a car and then put many miles on it.
Premises Liability
slip and fall cases. if it's not safe, it's negligent.
It's no longer true that if you don't clean the snow, it's not your fault, but if you do, it is. Now, you must keep the property clean and safe.
Tuesday, November 10, 2009
Class 20 - Product Liability (cont)
History of Product Liability Law
Before 1900 there was little or no protection for a consumer from defective products. You had to show a direct contractual relationship - privity of contract. Also, there was a rule of caveat emptor.
After industrialization, it was impossible to determine if something was defective when you took possession of it. McPherson v Buick Motors eliminated the direct contract requirement. It established the concept of Negligence in Tort. I.e. if you can show that the manufacturer owed a duty of care, that there was a breach of that duty, that the damage was directly caused ("but for") and that the damage was foreseeable, you could sue the mftr even without a direct contract.
It was ruled that you could also go after the producer for defects due to breach of contract. There is implicit contract that the product is Fit For Use. Strict liability for breach of implied liability. This was especially important in food cases. Must be in original container. Still had to show a defect in the product - not just that you got sick or were otherwise injured.
There is also Strict liability for breach of an express warranty. Specific words in the contract or in advertisements, brochures, billboards, etc. Express warranties are statements of fact, not opinions or sales techniques ("puffing"). Something factual used to induce you to buy the product. Ex: Baxter v Ford Motors. Sales brochures said that the glass was shatter-proof. They claimed it was only a brochure, but it was ruled to constitute a warranty.
See Oldsmobile case where they had Chevy engines. That was a breach of an express warranty.
No negligence required.
See Greenman v Yuba Power Products pg 161. Greenman recovered due to the principle of strict liability in tort, not negligence. He was using it as intended, the product was defective. In such a case, the injured party can recover, even without negligence.
Section 402 - Restatement of the law of torts. Every major area of law has a "restatement". Judges collect major cases periodically. Here, they added a section - 402a - with the strict liability concept. It applies to merchants. It applies even if the merchant exercised all possible care. It applies even though there is no direct contract with the user.
You don't even need to be the purchaser. You could even be just a user. The manufacturer is liable even many years later, if the defect existed when the item was first sold/delivered.
402a - read it!
Primary areas of product liability law:
See Parish v ICON. Trampoline user breaks his neck. Trial court granted summary judgement for the manufacturer. affirmed by appeals and supreme courts.
Morales v American Honda. Warnings were given to the parents, but since it was a child's product, the warnings were considered inadequate. Warnings must be directed toward the user.
See examples of failure to warn on pg 165.
Rhys Syndrome - do not give aspirin to flu-like symptoms. Warnings were not written in Spanish and the manufacturer was held liable.
Design Defects
Product could have been made safer with a different design. See examples on pg 166.
See http://www.altlaw.org/v1/cases/414780 for the fryer/object falling from shirt pocket.
Next, we will cover:
Property, landlord tenant law
Trademarks
No class next Thursday, 11/12.
Before 1900 there was little or no protection for a consumer from defective products. You had to show a direct contractual relationship - privity of contract. Also, there was a rule of caveat emptor.
After industrialization, it was impossible to determine if something was defective when you took possession of it. McPherson v Buick Motors eliminated the direct contract requirement. It established the concept of Negligence in Tort. I.e. if you can show that the manufacturer owed a duty of care, that there was a breach of that duty, that the damage was directly caused ("but for") and that the damage was foreseeable, you could sue the mftr even without a direct contract.
It was ruled that you could also go after the producer for defects due to breach of contract. There is implicit contract that the product is Fit For Use. Strict liability for breach of implied liability. This was especially important in food cases. Must be in original container. Still had to show a defect in the product - not just that you got sick or were otherwise injured.
There is also Strict liability for breach of an express warranty. Specific words in the contract or in advertisements, brochures, billboards, etc. Express warranties are statements of fact, not opinions or sales techniques ("puffing"). Something factual used to induce you to buy the product. Ex: Baxter v Ford Motors. Sales brochures said that the glass was shatter-proof. They claimed it was only a brochure, but it was ruled to constitute a warranty.
See Oldsmobile case where they had Chevy engines. That was a breach of an express warranty.
No negligence required.
See Greenman v Yuba Power Products pg 161. Greenman recovered due to the principle of strict liability in tort, not negligence. He was using it as intended, the product was defective. In such a case, the injured party can recover, even without negligence.
Section 402 - Restatement of the law of torts. Every major area of law has a "restatement". Judges collect major cases periodically. Here, they added a section - 402a - with the strict liability concept. It applies to merchants. It applies even if the merchant exercised all possible care. It applies even though there is no direct contract with the user.
You don't even need to be the purchaser. You could even be just a user. The manufacturer is liable even many years later, if the defect existed when the item was first sold/delivered.
402a - read it!
Primary areas of product liability law:
- defect in the product
- design defect
- failure to warn
See Parish v ICON. Trampoline user breaks his neck. Trial court granted summary judgement for the manufacturer. affirmed by appeals and supreme courts.
Morales v American Honda. Warnings were given to the parents, but since it was a child's product, the warnings were considered inadequate. Warnings must be directed toward the user.
See examples of failure to warn on pg 165.
Rhys Syndrome - do not give aspirin to flu-like symptoms. Warnings were not written in Spanish and the manufacturer was held liable.
Design Defects
Product could have been made safer with a different design. See examples on pg 166.
See http://www.altlaw.org/v1/cases/414780 for the fryer/object falling from shirt pocket.
Next, we will cover:
Property, landlord tenant law
Trademarks
No class next Thursday, 11/12.
Thursday, November 5, 2009
Class 19 - Business Torts
Business Torts (Chapter 7)
Reminder: Read the book in conjunction with the brilliant, charismatic lectures. :)
Words of wisdom: You don't take classes; you take instructors.
Tort reform. Usually insurance companies want it. Granted, there are abuses of the system. But the tort system gives access to the courts to anyone because lawyers will take cases on a contingent basis. (Briskman brothers)
Intentional interference with contractual relations.
A 3rd party tries to interfer with one of the parties to a contract, usually to get them to break the contract. Ex: restaurant with a contract to buy meat from an exclusive distributor/supplier. Another supplier offers a lower price and to cover any breach of contract lawsuits. This is illegal and constitutes intentional interference with contractual relations.
Question: don't cell phone do this all the time? No. as long as the cell phone provider doesn't initiate the contact, they're not guilty of interference.
Interference with prospective advantage
No contract, but someone is trying to take away your potential business in a predatory behavior manner such as blocking the entrance to a store and urging customers to go to another vendor.
See AM77 Baking Company case.
Product Liability
Four bases for product liability suits
negligence
defectively made product
design defect
faliure to warn
Product liability laws were developed after the industrial revolution and the proliferation of technologically advanced products. Prior to that, you had to have a direct contract with the manufacturer, which was extremely rare. Therefore, there were very few suits. Even with a contract, the principle of caveat emptor - let the buy beware - applied and the buyer was expected to inspect the product and discover any defects before using it.
First major case: Mcpherson vs. Buick Motor company 1916
Wheel fell off.
It established the doctrine of Negligence in Tort. If a manufacturer produces a product negligently, they can be held liable for damage that results from that negligence, even without a direct contract or caveat emptor.
Still, the injured party must show:
1. that a duty of care is owed
2. act breach of duty of care (here, they didn't test wheels produced by 3rd party)
3. but-for
4. foreseeable
Strict liability under contract law - defect in the goods, damage was done. regardless of how careful the manufacturer was in production.
Big step for consumer protection.
Implied warranty - there is always an implied warranty that the product is safe and fit for its intended use.
First came about from food/drink. See Mazetti v Armour (pg 160 text). If it's in the original container, there's an implied warranty that it's safe to consume.
Express warranty - simple sales talk is not a warranty. saying or representation of any statements of fact about the product are considered an express warranty. Ex: rebuilt engine, low mileage, etc. See case of Baxter v Ford Motor (pg 160 text) - shatterproof glass was advertised, but not in warranties. Pebble hit the window and shattered the window, blinding the driver. The advertisement was determined to constitute an express warranty.
Reminder: Read the book in conjunction with the brilliant, charismatic lectures. :)
Words of wisdom: You don't take classes; you take instructors.
Tort reform. Usually insurance companies want it. Granted, there are abuses of the system. But the tort system gives access to the courts to anyone because lawyers will take cases on a contingent basis. (Briskman brothers)
Intentional interference with contractual relations.
A 3rd party tries to interfer with one of the parties to a contract, usually to get them to break the contract. Ex: restaurant with a contract to buy meat from an exclusive distributor/supplier. Another supplier offers a lower price and to cover any breach of contract lawsuits. This is illegal and constitutes intentional interference with contractual relations.
Question: don't cell phone do this all the time? No. as long as the cell phone provider doesn't initiate the contact, they're not guilty of interference.
Interference with prospective advantage
No contract, but someone is trying to take away your potential business in a predatory behavior manner such as blocking the entrance to a store and urging customers to go to another vendor.
See AM77 Baking Company case.
Product Liability
Four bases for product liability suits
negligence
defectively made product
design defect
faliure to warn
Product liability laws were developed after the industrial revolution and the proliferation of technologically advanced products. Prior to that, you had to have a direct contract with the manufacturer, which was extremely rare. Therefore, there were very few suits. Even with a contract, the principle of caveat emptor - let the buy beware - applied and the buyer was expected to inspect the product and discover any defects before using it.
First major case: Mcpherson vs. Buick Motor company 1916
Wheel fell off.
It established the doctrine of Negligence in Tort. If a manufacturer produces a product negligently, they can be held liable for damage that results from that negligence, even without a direct contract or caveat emptor.
Still, the injured party must show:
1. that a duty of care is owed
2. act breach of duty of care (here, they didn't test wheels produced by 3rd party)
3. but-for
4. foreseeable
Strict liability under contract law - defect in the goods, damage was done. regardless of how careful the manufacturer was in production.
Big step for consumer protection.
Implied warranty - there is always an implied warranty that the product is safe and fit for its intended use.
First came about from food/drink. See Mazetti v Armour (pg 160 text). If it's in the original container, there's an implied warranty that it's safe to consume.
Express warranty - simple sales talk is not a warranty. saying or representation of any statements of fact about the product are considered an express warranty. Ex: rebuilt engine, low mileage, etc. See case of Baxter v Ford Motor (pg 160 text) - shatterproof glass was advertised, but not in warranties. Pebble hit the window and shattered the window, blinding the driver. The advertisement was determined to constitute an express warranty.
Tuesday, November 3, 2009
Class 18
Negligent Torts (recap)
5 elements
Duty
Breach of Duty
Cause in Fact
Proximate Cause
Actual Harm
Major diff btw intentional torts and ngelignece, you must allege and prove actual harm - real injury. Intentional torts don't need real injury. It can be offensive.
Foreseeability. You owe a duty of care to those whom you can foreseeably injure.
Expansion of duty of care. Ex: Accounting firm (E&W) doctored the books of EL Jackson in order for them to buy steel on credit from Bethlehem Steel. BS sued E&W for negligence. Supreme court of Tennessee ruled that it was foreseeable that Bethlehem Steel and like companies may be injured by the negligent actions of E&W.
In certain situations, it's difficult to establish negligence. Especially, medical malpractice. If the instrumentality that caused harm is under the sole control of the accused and if the harm normally doesn't occur unless someone is negligent, then the rule of res ipsa loquitur applies and the burden of proof shifts to the accused - to prove that s/he was not negligence.
"But for" analysis. Prove that but-for the negligence, the person would not have been harmed.
Contributory/comparative negligence - we'll talk about that later.
Proximate cause is not the same as cause in fact. Proximate cause refers to foreseeability of the type of harm. Classic case: Palsgraf. There was no foreseeability of that harm happening. Another example: Chicago fire, caused by Mrs. O'leary's cow. That much harm was not foreseeable.
Intervening Conduct - if the causal connection is broken. Goldberg v Florida Power (pg 131) See also the Jay-Z example on pg 133.
Attractive nuisance - a nuisance that creates a danger. An uncovered swimming pool. An open construction site.
Defenses To Negligence
Assumption of Risk - it is a defense to negligence. by engaging in certain conduct, you assume some risk. But the accused person must prove that you knew of the risk.
Some places require that people assume risk by signing a waiver. Exculpatory clause. Ex: paintball case McCune v Myrtle Beach Indoor Shooting Range. Ex: drag racing, riding shotgun. Ex: smoking cigarettes with warning labels.
Exculpatory clause: you can't negate your own responsibility for your own negligence. Ex: apartment lease - landlord not responsible for any negligence. These clauses are invalid. Ex: Valet parking. It's a bailment and they're responsible at a higher level of care if you're paying them.
Comparative negligence: not so much a defense as it is a reduction of damages. Illinois was formerly (thru mid 1970s) a contributory negligence state. If the injured party was in any way negligent, they would not be able to recover anything. Ex: if you were walking against the light and a reckless driver hits you, you couldn't recover anythign from the driver. Now, Illinois goes according to comparative negligence where they judge the percentage of responsibility and recovery goes according to the percentage.
See wassell v adams. Wassell was 97% negligent, but recovered 3%. Current law is that if you are more than half negligent yourself, you can't collect any damages at all.
Preview:
Chapter 7: Business Torts: fraud, product liability. Under current law, the manufacturer, distributor, or seller may be liable for product liability.
defective product
failure to warn
design defect
5 elements
Duty
Breach of Duty
Cause in Fact
Proximate Cause
Actual Harm
Major diff btw intentional torts and ngelignece, you must allege and prove actual harm - real injury. Intentional torts don't need real injury. It can be offensive.
Foreseeability. You owe a duty of care to those whom you can foreseeably injure.
Expansion of duty of care. Ex: Accounting firm (E&W) doctored the books of EL Jackson in order for them to buy steel on credit from Bethlehem Steel. BS sued E&W for negligence. Supreme court of Tennessee ruled that it was foreseeable that Bethlehem Steel and like companies may be injured by the negligent actions of E&W.
In certain situations, it's difficult to establish negligence. Especially, medical malpractice. If the instrumentality that caused harm is under the sole control of the accused and if the harm normally doesn't occur unless someone is negligent, then the rule of res ipsa loquitur applies and the burden of proof shifts to the accused - to prove that s/he was not negligence.
"But for" analysis. Prove that but-for the negligence, the person would not have been harmed.
Contributory/comparative negligence - we'll talk about that later.
Proximate cause is not the same as cause in fact. Proximate cause refers to foreseeability of the type of harm. Classic case: Palsgraf. There was no foreseeability of that harm happening. Another example: Chicago fire, caused by Mrs. O'leary's cow. That much harm was not foreseeable.
Intervening Conduct - if the causal connection is broken. Goldberg v Florida Power (pg 131) See also the Jay-Z example on pg 133.
Attractive nuisance - a nuisance that creates a danger. An uncovered swimming pool. An open construction site.
Defenses To Negligence
Assumption of Risk - it is a defense to negligence. by engaging in certain conduct, you assume some risk. But the accused person must prove that you knew of the risk.
Some places require that people assume risk by signing a waiver. Exculpatory clause. Ex: paintball case McCune v Myrtle Beach Indoor Shooting Range. Ex: drag racing, riding shotgun. Ex: smoking cigarettes with warning labels.
Exculpatory clause: you can't negate your own responsibility for your own negligence. Ex: apartment lease - landlord not responsible for any negligence. These clauses are invalid. Ex: Valet parking. It's a bailment and they're responsible at a higher level of care if you're paying them.
Comparative negligence: not so much a defense as it is a reduction of damages. Illinois was formerly (thru mid 1970s) a contributory negligence state. If the injured party was in any way negligent, they would not be able to recover anything. Ex: if you were walking against the light and a reckless driver hits you, you couldn't recover anythign from the driver. Now, Illinois goes according to comparative negligence where they judge the percentage of responsibility and recovery goes according to the percentage.
See wassell v adams. Wassell was 97% negligent, but recovered 3%. Current law is that if you are more than half negligent yourself, you can't collect any damages at all.
Preview:
Chapter 7: Business Torts: fraud, product liability. Under current law, the manufacturer, distributor, or seller may be liable for product liability.
defective product
failure to warn
design defect
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