Torts

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					Law and Justice
Chapter 14: Torts

Torts: A Civil Wrong
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Definitions
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Plaintiff
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Harmed individual in a civil suit Accused wrongdoer Court order affecting a Defendant

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Defendant
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Judgment
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Damages
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Compensation ordered through a judgment to be paid, usually money
Legal responsibility for harm Made by decisions of judges over time and in various courts - precedents

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Liability
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Common Law
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Types of torts
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Intentional Wrong
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Occurs when a person acts with the intent of injuring a person, their property, or both Occurs when a person‟s failure to use reasonable care causes harm Applies when the defendant is involved in activity so dangerous that there is a risk of harm even with the utmost care
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Negligence
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Strict Liability
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Three groups of people face strict liability
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Owners of dangerous animals People who engage in highly dangerous activities Manufacturers and sellers of defective consumer products

Taking your case to court
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Tort law is Civil Law
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Deals with disputes between individuals and groups of individuals
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Differs from criminal cases in that the victim brings the suit against a defendant, not the state Much less than criminal Civil cases only need a preponderance of the evidence
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Standard of Proof
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7 of 12 jurors to win vs. 12 of 12 in criminal

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Who can be sued?
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Almost Anyone
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Individuals, groups, businesses, organizations, governments, countries, and yes… even children

Taking your case to court
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Immunity
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Certain entities have some immunity from torts
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Parents vs. Children or vice versa Federal and State Governments
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Through Federal Tort Claims Act they can be sued for some acts of negligence or omissions Completely immune from liability for acts carried out within the scope of their duties

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President, Federal Judges, and members of Congress
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The Plaintiff
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Can sometimes be more than one person
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In some cases it may be hundreds or thousands of people This is called a class action
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Any settlement is divided amongst all the plaintiffs

Taking your case to court
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Lawyers
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Because of the complexity of case law, most civil suits require an attorney Most civil attorneys work for a contingency fee
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This means the lawyer does not get paid unless they win

Insurance
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Liability Insurance
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Contract between 2 entities
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Insured agrees to pay a premium and the insuring company agrees to pay for damages caused by the insured for the length of the contract

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Malpractice
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Type of liability insurance
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Usually carried by doctors, lawyers and other professionals Provides financial protection against claims that they provided services in a negligent manner

Insurance
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Insuring a Car
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Most important liability insurance for young people
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In 2001 there were 6.3 million auto accidents Resulted in 42,000 deaths
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41 percent of which involved alcohol

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3 million injuries $230 billion in total losses Number of insured people Number of accidents x average loss Profit margin – damages paid Rate increase… not just for one, but for all

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So lets break that down….
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Insurance
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ND State Liability Minimums
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25/50/25
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$25,000 in personal injury $50,000 per accident $25,000 property damage It means that those values are the most that your insurance company will pay for an accident or an injury STBY Carry more insurance – I carry 100/300/100 More insurance raises your premium

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What does that mean?
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What if the accident costs more?
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How do I protect myself?
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Insurance
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Medical Coverage
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Pays for your own medical expenses resulting from auto accidents

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Collision Coverage
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This is what gets your vehicle fixed in an accident where you are at fault
Protects you against damage to your car from causes other than collisions Protects you from others driving without liability insurance

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Comprehensive Coverage
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Uninsured motorist
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Workers Compensation
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Workers Comp
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Pays employees who are injured on the job Employers make regular contributions to a state fund or pay for private insurance Most states have „idiot protection‟
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They can refuse to compensate say a welder who goes blind after ignoring repeated warnings to wear safety goggles This means that workers cannot usually recover any additional damages from the employer through a tort action Depends on your average weekly wage, type of injury, and how long you will be out of work

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Workers Comp is the exclusive Remedy for on the job injuries
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How much can I get from Workers Comp?
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Intentional Torts
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There are 2 different kinds of Intentional Torts
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Those causing injury to people Those causing damage to property A person who proves another intentionally caused harm can recover certain monetary awards compensatory damages
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Types of Damages
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Can include medical bills, lost wages and pain & suffering
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These damages pay for actual costs

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Nominal Damages
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Token award of money to show the claim was justified
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Small amounts usually

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Punitive Damages
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Amounts of money awarded to punish the defendant
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They serve as a warning to others – don‟t do this or else

Torts that Injure Persons
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Battery
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Occurs when a person intentionally causes harmful or offensive contact with another person
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The law considers offensive in the following way
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Whatever would offend an average person in society

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Assault
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When a person intentionally goes beyond words
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The fear of harmful or offensive contact must be reasonable or well founded

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Emotional distress – only recognized since about 1940
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Words or actions meant to scare someone or cause them anxiety or emotional distress
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Defendant‟s conduct must be proven to be outrageous Insults are not enough unless the totality of the circumstances meets the criteria
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Calling someone a name is not emotional distress  Repeated teasing over a period of time is

Situations
Chance is a successful – and very rich – bank robber. He is also very careful not to harm bank tellers. In fact, he always uses weapons that are unloaded. Unfortunately for Chance, he holds up one bank too many, and the police catch him. The day before he is caught he stuck an unloaded gun into the face of Cynthia, the teller at the Last National Bank. Cynthia wants to bring a civil suit against Chance for assault. Will she be successful?

The tort of battery can be committed against someone who is asleep or unconscious, but the tort of assault cannot. Explain.

Torts that Injure Persons
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False imprisonment
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Be free from unreasonable restraint
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Does not mean being in jail Kidnapping, held somewhere against your will Shoplifters – sometimes sue storekeepers

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The courts balance an individual‟s right to be free from confinement with a shopkeepers right to protect his/her property from theft
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The law recognizes a shopkeeper‟s privilege to temporarily detain a person suspected of shoplifting They must act reasonably, using no more restraint than is necessary

The Captured Shoplifter
Katie, 17, is in a music store. As she passes a rack of CDs, she slips one under her jacket. Thinking no one has noticed, she turns to leave the store. The store manager, however, has been watching her on a closed circuit television. As she passes the cash register, he stops her as she is leaving the store. The following are all scenarios which the store owner might follow. For each, determine whether or not any false imprisonment has occurred. 1. The manager yells “Stop You Thief!” as he runs after Katie. He walks her back to his office, still shouting at her. Then he calls her parents and tells them he is taking her to the police station immediately. 2. The manager tells an assistant to keep Katie in the backroom until the police arrive. The assistant is called away, and ties Katie‟s hands and feet together so she cannot run away. 3. The manager calls the police and keeps Katie in his office until they come. 4. The Manager locks Katie in a storage room for 7 hours until he is ready to close the shop. Then he takes her to the police station. 5. The store manager tells his security guard to arrest Katie. The guard pulls a gun, takes her to the back of the store, and calls the police.

Torts that Injure Persons
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Defamation of character
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Defamation
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Acts that harm a person‟s reputation and can be classified as oral or written Again, totality of the circumstances
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Can you harm the reputation of someone who has none?

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Slander
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Oral statements – usually on TV or in public before an audience The statement must be heard! Written statements – usually in newspapers or magazines

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Libel
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It is a defense that the statement is true!
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Peter Zenger Note that the law protects opinions – a movie critic can give his/her feelings

Torts that harm Property
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Tort law protects your property in 2 ways
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It protects against interference with the owners use of the property It protects against the property being taken or damaged Real property
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Three kinds of property are protected
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Land and items attached to it (house, crops, fences)

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Personal property
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Property that can be moved (cars, clothes, appliances)
Ownership of creations within a person‟s mind

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Intellectual property
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Real Property
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Real Property
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Trespass
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Occurs when a person enters another person‟s property without permission The law protects the owners exclusive right to that property
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Owner can recover damages even if there is no harm to the property
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Technically trespass occurs every time you cut across a neighbors lawn

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In general – you are not liable when someone is injured on your property
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Example: person walks across your lawn and trips on a sprinkler Law requires landowners to use reasonable care when the condition presents an unreasonable risk of injury where children are likely to trespass

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Exceptions to the rule…
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Real Property
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This is known as the - Attractive Nuisance
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Trampoline in the yard Construction sites – why they are usually fenced in

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Duty of Property Owners
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You have a duty to warn people of unsafe conditions
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If your front porch is being worked on – put up a sign Most people on your property are not trespassers, but guests They have a duty to inspect their property to make sure it is safe
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Business owners have a higher standard
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They not only need to warn people about a slippery sidewalk, but must take reasonable care to make the sidewalk safe (shovel, sand, salt)

The Unfenced Swimming Pool
The Garcia family built a large swimming pool in their backyard. The pool was two feet deep in the shallow end and nine feet at the deep end. They placed lights around the pool that turned on automatically at dusk. They also placed four large signs around all sides of the pool that read “Danger – Deep Water”.

How should this case be decided? Suppose the Garcia's had fenced in the pool and the child had climbed the fence and drowned. Should the child‟s parents be able to recover damages in that situation?

One day, a four year old who lived a block away wandered onto their property, entered the pool, and drowned. The child‟s parents sued the Garcia family for not fencing in the pool.

Real Property
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Nuisance
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Laws that protect against harm caused by someone who never physically enters your property A nuisance occurs when there is an unreasonable interference with your ability to use and enjoy your property
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Your neighbor has a bbq in the backyard and turns on a ballgame for the people there… even if it bothers you, this is not a nuisance Same neighbor.. Mows his lawn at 5AM every Sunday – this is a nuisance You can also get a court order requiring the defendant to stop the activity This is called an injunction

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You can recover damages if you win a nuisance suit
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Personal Property
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Tort law provides compensation for lost personal property
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Conversion
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Occurs when someone unlawfully exercises control over the personal property of another How much force depends on the circumstances Generally deadly force cannot be used to protect personal property
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Reasonable force can be used to protect personal property
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Self defense allows the use of deadly force to protect a person if serious bodily harm is threatened

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Make My Day Law
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Allows the use of any degree of force including deadly force
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If the occupant believes that an intruder might use any force at all against any occupant of the dwelling AL, AK, AZ, CO, FL, GA, ID, IN, KS, KY, MS, MO, OK, SC, SD Proposed – MD, MN, OH, PN, TN, VA, WI, WY

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The following states have passed these laws
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A Bitten Burglar
The Kings own a small store in a crime-ridden section of town. They have been the victims of break-ins in the past. To protect their family and store, they purchase a guard dog. The dog is trained to attack on command. The dog also stays in the store from 11PM to 7AM, while the store is closed. One night, a person breaks into the store and is attacked by the dog. The police catch the person, and he is convicted of burglary. After the judge gives him a suspended sentence, the burglar sues the Kings for the injuries caused by the guard dog. How would you decide this case? What if the state had a make my day law?

Intellectual Property
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Protection of ideas is very important
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If we couldn‟t protect our work from being stolen, what incentive is there to create or show new things Recognize your ownership of the invention Recognizes your ownership of an expression
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Patents
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Copyright
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Book, movie, song etc..

Patents
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Patents
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Protect inventions such as processes, machines, and new products Only given to inventors who think of something that has never been invented before The idea must be novel (truly new)
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Notebooks are sold with 3 & 5 section.. So you probably couldn‟t get a patent for a 4 division notebook Patents protect you for 20 years, after that the idea becomes public domain and anyone can use, sell or profit from the idea

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Getting patents requires a lengthy & sometimes expensive process
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Copyrights
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Copyrights
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Protect any expression that is fixed (book, painting, computer program, etc.) They last much longer than patents
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Life of the holder + 70 years Works similar to the first
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They give the owner the right to create & sell Derivative Works
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Think of a series of novels

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Exceptions
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Exclusive rights of the copyright extend to the First Sale
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This means that once the holder sells a work, the buyer may resell that copy – but only that copy
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You may not reproduce it This is how used book stores operate – and used videos

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Fair Use
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Allows limited legal reproduction of copyrighted material for noncommercial purposes – like education

The Home Computer
Gloria has a computer at home that she uses for schoolwork and entertainment. In some situations, she must decide what to do with certain content she finds on the internet. Consider the law and ethics involved and advise her on what she should do in each of the following situations.

She sees a website that advertises unlimited downloading of the top 50 songs for $9.95 a month.
Her friend Janet sends her a copy of a DVD of a new movie on which Janet worked. Her friend Alex wants her to help him start a business in which the two would buy music CDs, copy them, and sell the copies for $5. Gloria is doing a homework assignment and wishes to download a photograph from a television network‟s website to use in her report.

Defenses to Intentional Torts
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Consent
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Means the plaintiff agreed to the harmful conduct
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Boxers consent to being punched Children on a playground sometimes push each other over You are injured in an auto accident and taken to the hospital – unconscious, it is assumed that you give permission to be treated

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Consent can be spoken, written, or assumed based on a situation
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Privilege
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Justifies conduct that would otherwise be a tort
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Police officers can restrain/detain people – not false imprisonment Owners can use reasonable force to protect their property – not assault

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Self Defense
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You can use force to protect yourself
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Be careful – defenders who take control of a situation and become aggressors have no claim of self defense

Negligence
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Negligent torts
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Contain many kinds of wrongful conduct – not black and white like intentional Each of the following elements must be proven
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Duty – defendant owed a duty of care to the plaintiff Breach of Duty – defendant‟s conduct violated that duty Causation – defendant‟s conduct caused harm Damages – plaintiff suffered actual injuries or losses Everyone has a legal obligation to exercise reasonable care toward other persons and their property Negligence law is concerned with someone who breaches that duty
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Duty and Breach
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Someone is harmed by action or inaction

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Action – mechanic fixes your brakes, the repair is faulty, and you have an accident because of it Inaction – lifeguard fails to act when someone is drowning

The Reasonable Person Standard
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Everyone has a duty toward everyone else in society: The duty to act reasonable The law has developed an imaginary creature
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“The reasonable person or ordinary prudence or carefulness”
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This „person‟ acts the way a community should act, not necessarily how it does act

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How does this „person‟ behave?
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The „person‟ considers how likely harm is to occur, how serious the harm would be, how difficult would it be to avoid the harm The likelihood and seriousness of the harm are balanced against the burden of avoiding the harm

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Examples…..

The Reasonable Person Standard
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Assume a pedestrian is about to cross a road where there is little traffic – the harm to be avoided – being hit by a car
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Our reasonable person asks
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How likely is it that such an accident would occur? – not likely How serious would the harm be if it did? - very serious How difficult would it be to avoid the harm? – not very difficult just look both ways

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A reasonable person therefore, would look both ways before crossing the street

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Give me examples of other dangers

Causation
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Once a plaintiff proves that the defendant owes him/her a duty and that this duty was violated – there must be proof that the defendant‟s breach caused harm Cause in fact
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Causation has two separate issues
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The harm would not have occurred without the wrongful act There must be a close connection between the wrongful act and the harm caused – it must be a foreseeable result of the act or acts Assume your car wrongfully crosses the center line and collides with a truck. The truck is carrying dynamite, which explodes and kills a person two blocks away. Your negligent crossing of the yellow line is the cause in fact of the harm to that person. However, most courts would say that your negligence was not the proximate cause of his death. (crossing a yellow line does not normally result in harm two blocks away.)

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Proximate cause
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Example
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Damages
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Damages
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Must be proven by a plaintiff who proves duty, breach, and both forms of causation The basic idea is that the plaintiff should be restored to his or her pre-injury condition to the extent that this can be achieved by money Courts allow plaintiffs to recover hospital bills, lost wages, damage to property, reduced future earnings, and other economic harm Plaintiffs may also recover for non-economic harm
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Pain and suffering, emotional distress, permanent physical losses (blindness, limbs etc)

Defenses to Negligent Suits
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Contributory Negligence
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As the plaintiff, you cannot recover damages if your own negligence somehow contributed to the harm suffered
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Suppose a train station attendant warns a passenger not to walk in an area where ice has formed. The passenger walks there anyway, falls, and is hurt.
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The passenger sues the railroad for allowing ice to remain on the platform However, by ignoring the warning and stepping on the ice, the passenger breached the duty to act responsibly. The breach was the cause, both cause in fact and proximate, of the harm

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Comparative Negligence
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Dividing the loss according to the degree to which each person is at fault
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Auto accidents are common for this type of defense Say Paul sues John for $20,000 in damages. The court finds that Paul was 30% at fault and John was 70%
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Then Paul recovers $14,000 – or 70% of the original $20,000

Defenses to Negligent Suits
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If the court were to find Paul at 60% fault and John 40%...
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Then John could turn around and sue Paul for damages  This is called a counterclaim

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Assumption of Risk
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Used when a person encounters a known danger and decides to accept the risk of that danger
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Buying a ticket to a hockey game – you assume the risk of being hit by a puck Picking up a knife – you assume the risk of being cut

Strict Liability Torts
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Strict Liability
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Means the defendant is liable to the plaintiff regardless of fault Activities where harm cannot be eliminated even by using the utmost care
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Dangerous Activities
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Demolition of a building for example

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Toxic Torts
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Companies, through pollution and dumping, causing harm
Owners of wild animals or even tamed wild animals are liable for any harm caused Non wild pets – owners are not liable unless they knew or should have known that their pet was dangerous or destructive
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Animals
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If you do know – you are liable

Strict Liability Torts
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Defective Products
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Product Liability
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Legal responsibility of manufacturers for injuries caused by defective products If your product, through design or use, causes injury you are liable
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Testing doesn‟t matter
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Doesn‟t mean you are liable for peoples decisions  S&W cannot be sued because Bob shot Joe


				
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