Final review - Business Law: Principles for Today\'s Commercial Environment David P. Twomey, PDF

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Business Law: Principles for Today's Commercial Environment David P. Twomey, Marianne Jennings, and Ronald Taylor. Chapter 8,9, 11-14, 39.
Ch. 8 – No text cases (although know the “Palsgraf” rule) and know the Torts handout cases: Winn Dixie v Benton & Scott v Alpha Beta cases. From class n...

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Multiple Choice: 20 from torts + contract; ch 11-14; ch 13 IRAC: 2-3 questions; ch 8,9,39 Chapter 8 → Torts. Palsgraf rule, Winn Dixie v Benton, Scott v Alpha Beta, School case, Walmart case, negligence rules and defenses ● Tort→ wrong that arises from the violation of personal duty; interference with someone’s personal property ○ Three types: intentional, negligence and strict liability ○ The plaintiff proves that 'but for' the other's actions they would not have suffered damage ○ A trade off occurs for risks and precaution → incentive precaution activity ○ Want to go after president → $$$ ○ Psychological and emotional damages are hard to put a number on ○ Duty to act like a reasonable person ○ breech= civil failure; based on what should have been done ○ No defense to strict liability ○ Tort law is pro plaintiff ● Negligence→ causing loss by failure to take reasonable care when there is a duty to do so. There was a breach of that duty of care; In consequence, the plaintiff suffered injury, damage or loss". How to make injured parties whole. ○ Duty, breach of duty, causation, damages ● Ignat V Yum! Brands, Inc → Whether or not Ignat's private facts were disclosed by her manager to her coworkers. Whether or not oral disclosure of private facts is an invasion of privacy since it was not written but spread by word of mouth. ○ Oral word of mouth is still an invasion of privacy to public ● False imprisonment/ shopkeepers privilege→ permits shop keeper to detain a person under reasonable suspicion ● Orthopedic Systems, Inc. v. Schlein→ OSI uses Schlein's name to their advantage without his consent ○ The injured party may recover either amount of damages specified in the statute or actual damages, whichever is greater, as well as profits from unauthorized use ● Defamation → Untrue Statement by one party about another to a third party. ○ slander→ Defamation of character by spoken words or gestures; speech ○ libel→ Written or visual defamation without legal justification; written ○ Truth is a defense to this; can only win if the posted something that they knew to be untrue → negligence defamation ○ This is not to say that every statement of opinion is protected. If a statement

implies some false underlying facts, it could be defamatory. For example, stating that "in my opinion, the mayor killed her husband" is not likely to be a protected opinion. Couching false statements of fact as opinion or within quotes from other sources generally won’t protect you either. Nor will trying to cover yourself by saying that a politician “allegedly” is a drug dealer, or that your neighbor said the politician “is a drug dealer,” or that in your opinion, the politician is a drug dealer. ● Palsgraf v. LIRR→ train worker helps man on train, has fireworks in brown bag and they explode, weights fall on Mrs. Palsgraf from explosion ○ sues for negligence ○ no causation because of foreseeability; guards are not liable for damages plaintiff endured ○ Palsgraf rule→ negligent conduct resulting in injury will result in a liability only if the actor could have reasonably foreseen that the conduct would injure the victim. ● Hardesty V American Seating→ Hardesty brought a personal injury negligence action against the shipper. American seating co. responded that hardesty was contributorily negligent, thus barring his negligence claim ● Winn Dixie v Benton ○ Benton slipped in one of the grocery aisles from a long milk spill, there was also a long trail of visible milk. The store had not checked the aisles in a long time and thus aisle, soiled by the spilt milk, posed an unnecessary danger. Crux of the issue is was Winn Dixie taking due care ○ Due care/diligence refers to the effort made by an ordinarily prudent or reasonable party to avoid harm to another, taking the circumstances into account. ○ COMPARATIVE NEGLIGENCE RULE: Benton should have been more careful ○ Store was LIABLE for injury → responsible for cleaning up milk ○ Comparatively negligent and assumed the risk ○ jury found that the store was negligent for not mopping up the spill sooner than it actually did. the store's delay was unreasonable ● Scott v. Alpha Beta ○ Whether both parties were comparatively negligent ○ Ruling: BOTH were negligent ○ Alpha Beta should have put up a wet-caution sign ○ Scott was handicapped and should have been more careful ● School Case ○ 1) Sexual assault claim against VP ○ 2) VP resigns to avoid charges + good transfer letter from superintendent ○ 3) VP transfers ○ 4) Same VP accused of sexual assault at new school

○ FORESEEABLE REASONALITY ● Walmart case ○ Whether Walmart was negligent by not hiring a security guard, resulting in robbing in parking lot ○ Ruling: Walmart was negligent ○ Robbery was reasonably foreseeable ○ Already had a "Danger Zone" → they were aware of the problem ● negligence rules and defenses ○ Contributory→ Negligence (careless) conduct by a person who is harmed by another person's negligence; a plaintiff's failure to be careful that is a part of the cause of his or her injury when the defendant's failure to be careful is also part of the cause. ■ if Father L is 1% negligent, he gets $0 ○ comparative→ A legal rule, used in many states, by which the amount of fault on each side of an accident is measured and the side with less fault is given damages (money) according to the difference between the magnitude of each side's faults. ■ if Father L is more than 51% negligent, he gets $0, -if Father L is less than 51% negligent, he gets the offset of his own negligence ○ Assumption of the risk → Knowingly and willingly exposing yourself (or your property) to the possibility of harm. In most states, a person who assumes a risk of harm cannot win a negligence lawsuit against the person responsible for the harm because assumption of risk is a valid affirmative defense. Ex: ski resorts, adventurousness ○ Proximate cause → The legal cause of an accident or other injury (which may have several actual causes). ○ Last-Clear-Chance Doctrine → if the defendant has an opportunity that is unavailable to the plaintiff to prevent the harm that occurs and does not take advantage of it, the defendant will remain liable despite the plaintiff's contributory negligence ● Strict liability→ dangerous activities (e.g., blasting), intrusion onto another's land by livestock, and ownership of wild animals. ● sovereign immunity→ a sovereign or state cannot commit a legal wrong and is immune from civil suit or criminal prosecution, strictly speaking in modern texts in its own courts. No one can sue the government without having the government's consent ○ you generally can't sue any level of government—including public school

districts and their employees—unless the government says you can. ● statutory immunity → immunity covered by law ● Hadley rule→ A party may recover compensation for lost profits upon a breach of contract by the other party if such damages where in the contemplation of the parties at the time of the contract, as a probable result of the breach of it.

Chapter 9→ Intellectual Property Rights. Harley Davidson ● Harley-Davidson, Inc. v. Grottanelli → Use of the word hog is not infringement on Harley-Davidson's trademark, as it is a public word. However, the use of the bar and shield logo is a form of infringement. The first amendment parody defense does not hold up, as it is still used to promote his own sales. The disclaimer defense also does not hold up, as simply putting "UNAUTHORIZED" on the bar and shield can still divert traffic. ○ If a term has a secondary meaning → CANT be copyrighted ● The law provides property rights in trademarks, copyrights, patents, and trade secrets ● Trade markes→ A trademark is any word, symbol, design, or combination of these things used to identify a product. Trademarked terms are one of the following: 1. Generic 2. Descriptive 3. Suggestive 4. Arbitrary or fanciful ○ Generic terms are not registrable ○ If a descriptive term (in rare cases, even with a geographic term) has acquired a secondary meaning it is registrable (e.g. Philadelphia Cream Cheese, Boston Beer) ○ Suggestive and arbitrary marks are registrable (Coppertone, Penguin, Apple, Exxon, Cadillac) ○ Arbitrary marks (like the picture of an apple with a bite mark or the word Exxon) have no other meaning in the English language that one would relate to the product except for the trademark association ○ To win a case for trademark infringement, plaintiffs need to prove the use by another was “confusingly similar” and / or that there was a “likelihood of confusion.” Protection of consumers and their expectations in getting what they expect and want when making a purchase is an important consideration for courts, in addition to protecting the trademark holder. ○ Plaintiffs would send a “cease and desist” letter to the alleging infringer and would seek an injunction in court, whereby the court can order the defendant to

immediately stop using the confusingly similar mark. ○ Parties can recover for lost profits, lost royalties, attorney’s fees (in exceptional cases) ● II. Copyrights ○ A copyright is an exclusive right given to the creator of a literary or artistic work to use, reproduce, or display the work ○ Copyrights last for the life of the creator plus 70 years (after the creator’s death) ○ *A copyright protects not the idea itself but the way or manner in which the idea is expressed. ○ To win a case for Copyright infringement under IP rules, plaintiffs need to prove the work was original, independently created by the author and at least some degree of creativity. ○ Defenses to Copyright infringement claims are based on First Amendment or “fair use” defenses (courts are wary of monopoly powers) such as: the purpose of the use (if for non-profit or educational use), the amount of copyrighted material used, the effect on the market, etc. Was the use part of commentary and / or criticism, parody or caricature? If so, may be protectable. ○ Can ask for damages, royalty and profit loss ● III. Patents ○ A patent gives an inventor an exclusive right for 20 years from the date of the application to make, use, or sell an invention (limited for 20 years) ○ The 20-year rule promotes competition and gives the patent holder time to perfect and make earn their substantial investment of time, $$ and resources back. ○ A patentable invention has to be new, not obvious, and reveal a ‘spark of genius.’ ● IV. Trade Secrets ○ Trade secrets (recipe for Coke) are protectable for an unlimited period of time ○ Example - protection of computer programs and/or the design of computer chips may be protectable ○ To win a case for trademark infringement under IP rules, plaintiffs need to prove the use by another was “confusingly similar” and / or that there was a “likelihood of confusion” ○ Plaintiffs would send a “cease and desist” letter to the alleging infringer and would seek an injunction in court, whereby the court can order the defendant to immediately stop using the confusingly similar mark. ○ Parties can recover for lost profits, lost royalties, attorney’s fees (in exceptional cases) Chapter 39→ Equal Employment Opportunity Law → Griggs (v important) , Ricci, Burlington Northern, Vance, Rhodes. pages 780-799, Theories of Discrimination; Title VII; Workplace Practices and How to Avoid Liability. All should brief the Griggs v Duke Power case

(p. 780), the Vance case (p 784); read the Thinking Things Through section on p. 790, brief the UAW case (p. 791) and the Rhodes case (p. 795). ● Discrimination → can be sued even if ther eis no evidence ○ Hiring can be discriminatory IF it relates to job ● Disparate treatment→ claim exists where an employer treats come individuals less favorably than others because of their race, color, religion, sex, or national origin. Proof of the employer's discriminatory motive is essential in this kind of case. Ex: Chris said “this is a man’s work” so hires a man ● Disparate impact→ exists when an employer's facially neutral employment practices, such as hiring or promotion examinations, although neutrally applied and making no reference to race, color, religion, sex, or national origin, have a significantly adverse or disparate impact on a protected group. In addition, the employment practice in question is not shown by the employer to be job-related and consistent with business necessity. Do NOT need to prove employer intent. Ex: 5”8” people accepted which eliminates most women. Diploma and test required. ○ Requires proof of effect not intent ● Griggs v Duke Power co. → The employer required hs diploma and hs tests ○ The employer doesn't have to be shown to have intentionally discriminated only if discrimination took place ○ all employment practices must be job-related, or everything required to perform a job must make sense ○ The burden of proof on the employer to prove a requirement that is stated is truly needed for a job ● Equal employment opportunity commission (EEOC) → establishes equal employment opportunity policy under the law it administers ○ Damages → provide the court in its discretion allow the prevailing party a reasonable attorney's fee ● Vance v Ball State University→ narrowly defined supervisor as the person who may take tangible employment actions such as demotion or termination of employment. ○ Employer not liable because not a supervisor (if it was then they are strictly liable) ○ Should have sued for negligence of controlling environment ● Disability → means with respect to an individual that (1) a physical or mental impairment that substantially limits one or more major life activities of such individual (2) a record of such impairment or (3) beinging regarded as having such an impairment

● An employer who is subject to the Americans with Disabilities Act can refuse to accommodate an employee who needs to provide periodic care for his disabled spouse. → True. The duty of reasonable accommodation applies just to employees or applicants with disabilities. ● religious organizations may discriminate in connection with the selection and employment of their own clergy ● Bona fide occupational qualification (BFOQ)→ employment qualifications that employers are allowed to consider while making decisions about hiring and retention of employees. The qualification should relate to an essential job duty and is

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considered necessary for the operation of a particular business. ○ Male clothing designers could legally advertise for male models only, retirement age for piolets Title VII applies to employers in both the private and public sectors that have 15 or more employees ○ prohibits discrimination by covered employers on the basis of race, color, religion, sex or national origin Quid pro quo→ a favor for a favor Allowed discrimination: religious, business necessity, seniority system, Bona fide occupational qualification, after-acquired misconduct ○ Ex: These industries include the fashion industry, any religious organization, and the entertainment industry. ○ They may not say that young attractive personnel will bring in more customers, and therefore, they will not hire anyone that is considered unattractive or old. This would be grounds for discrimination. Rhodes v. Guiberson Oil ToolAge discrimination case. The jury found that the justifications for the man's firing were false. He was fired and younger was rehired-not allowed. Ricci v Destefano → Reverse discrimination, new haven Connecticut with firefighters was looking to promote firefighters to captain. The city chose not to have interviews to avoid discrimination, and make them take a written test. Highest score gets captain. White test takers significantly out performed the black test takers. The city went to the an attorney and said what do we do? And he said if you don't certify based on the test, then white people will sue for disparate treatment. And if you do, then the black people will hit you with disparate impact. ○ They threw out the test results and white people sued, court found in favor of the city. The white people appealed and supreme court found in favor of the white firefighters. RACE/COLOR DISCRIMINATON ○ John DeStefano, and other city officials under Title VII of the Civil Rights Act of 1964 ("Title VII"), alleging violation of the Equal Protection Clause. The federal

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district court granted DeStefano summary judgment, dismissing Ricci's Title VII and equal protection claims Holmes v. Petrovich Development Company ○ She signed an employee handbook which stated that employees couldn't use company email for personal matters and that the company could inspect all messages at any time for any reason at its discretion ○ Holmes informed Petrovich in July of 2004 that she was pregnant and her due date was December 7 ○ She sued for literally everything, but the main issue is whether she had a reasonable expectation of privacy in her emails ○ This would determine whether the company would've been allowed to access her emails with the lawyer ○ No reasonable jury could objectively find that Petrovich created a hostile environment for a reasonable pregnant woman ○ The company computer was not a means by which to communicate in confidence any information to her attorney; "emails sent via company computer were akin to consulting her lawyer in her employer's conference room, in a loud voice, with the door open" ○ No objectively reasonable expectation of privacy ○ Even though used a private password and deleted the emails, she had no reasonable expectation of privacy, and was not in an intolerable environment Retaliation → Punishment of an employee by an employer for engaging in legally protected activity such as making a complaint of harassment or participating in workplace investigations Burlington Northern v. White (p 789)→ title xii and retaliation ○ whether Sheila White suffered retaliatory discrimination by her employer under Title VII of the Civil Rights Act of 1964. ○ Sheila white was the only female worker in the department; she was then moved and reassigned to a new job, where she was suspended without pay because she couldn't do the task. She was put back to her position. She filed a court suit for unlawful retaliation suspending without pay. ○ The court found Burlington Northern and Santa Fe Railroad Co. guilty of violating Shelia White's rights under the anti retaliation ban in the The Civil Rights Act, which prohibits an employer from interfering with an employee's efforts to secure or advance enforcement of the Act's basic guarantees. Pg 782

Chapter 11 → Nature and Classes of Contracts. pages 205-214. Read the entire chapter & try to answer the end of chapter Case Problems: 9, 10.

● Quasi contracts → not true contracts but obligations imposed by law. prevent a party from being unjustly enriched, or from benefiting from the situation when he does not deserve to do so. ○ Ex: Green house built. It would be unfair for Teresa to benefit from the new greenhouse at John’s expense, even though she never intended to enter into a contract with him ● Elements of a contract: (1) agreement (2) capacity (3) genuine assent (4) consideration (5) legality of agreement (6) in the form required by law → meeting of the minds, value for value ○ Contract terms are not applied by heavens, they are agreed to ○ Contract law is pro sophisticated party ○ Offer valid after reasonable time if not stated ● Informal contracts → are enforceable not because of the form of the transaction but because they represent agreement of the parties ● Implied contract → the agreement is shown not by words, written or spoken, but by the acts and conduct of the parties. Such contracts arise when (1) a person renders services under circumstances indicating that payment for them is expected (2) the other person knowing such circumstances accepts the benefit of those services ● Voidable contract → an agreement that is otherwise binding and enforceable but because of the circumstances surrounding its execution of the lack of capacity of one of the parties, it may be rejected at the option of one of the parties; legal but party can cancel ● Executory contract → an agreement in which something remains to be done by one or both parties;...