Questions and Answers of Law business personal use

2. Preston purchased a box labeled “Generic Breakfast Cereal” from Riteway Supermarket. While he was eating it, he broke a tooth on a stone which the product contained. The product sold by
1. Prescott, who owned an appliance repair shop, was at a cocktail party when he saw Dresden, one of his competitors. Approaching Dresden, Prescott said, “I’m glad to run into you. I was hoping
QUESTION 4: Prime Textiles Corporation purchased a 30-year-old building in an industrial section of Amesville in late 1999 and converted its interior to a plant for the manufacture of brightly
QUESTION 3: In the early 1990’s the Dow Drug Company developed a compound called XYZ, which its researchers hoped would prove effective in treating certain unusual blood diseases. By 2004, after
QUESTION 2: During his 63rd year, defendant D’s wife died and he retired on his social security and a small pension. He moved out of the house he had lived in with his family for 35 years, into a
QUESTION 1: At points where a trail entered his property in a sparsely settled area, Farmer posted signs warning, “No trespassing.Snowmobilers and other unauthorized persons keep off. Violators
Interference with prospective advantage: If due to D’s interference, P loses the benefits of prospective, potential contracts (as opposed to existing contracts), P can sue for “interference with
Interference with contract: The tort of “interference with contract” protects P’s interest in having others perform existing contracts which they have with her. The claim is against one who
Injurious falsehood: The action for “injurious falsehood” protects P against certain false statements made against his business, product or property (e.g., D makes false statements disparaging
“Business torts”: There are three related torts that protect business interests:
Abuse of process: “Abuse of process” occurs where a person involved in criminal or civil proceedings uses various litigation devices (e.g., subpoenas) for improper purposes.
Wrongful institution of civil proceedings: The tort of “wrongful institution of civil proceedings”is similar to “malicious prosecution,” except that the original proceedings are civil rather
Malicious prosecution: The tort of “malicious prosecution” protects P’s interest in not having wrongfully instigated a criminal proceeding against him.
Misuse of legal procedure: Three related tort actions protect P’s interest in not being subjected to unwarranted judicial proceedings:
False light: “False light” occurs where D publishes false statements about P which, although not defamatory, would be highly offensive to a reasonable person in P’s position.
Publicity of private life: “Publicity of private life” or “public disclosure” occurs where D publicly discloses a non-public detail of P’s private life, where the effect would be highly
Intrusion on solitude: “Intrusion on solitude” occurs where D invades P’s private space in a manner which would be highly offensive to a reasonable person in P’s position.
Misappropriation of identity: “Misappropriation of identity” occurs where P’s name or likeness has been used by D for D’s financial benefit, without P’s consent.
Invasion of privacy: The tort of “invasion of privacy” is actually a cluster of four different, but related, torts.
93. Newspaper, a local paper in the town of Chippewa, publishes an article called “Police Blotter” in every day’s paper. The Blotter purports to be a reprinting of crimes handled by the local
92. Newspaper, in a story on the general subject of how organized crime figures have infiltrated legitimate business, states, “And Joe’s Casino, the big Atlantic City casino, is probably
91. In Smalltown USA, Martha Washington tells her neighbor, Betsy Ross, “Dolly Madison told me Benedict Arnold is a Communist.”Arnold is not a Communist, and he sues Washington for defamation.
90. Mrs. Tolstoy is jealous of the beautiful and popular Anna Karenina. In an effort to destroy her reputation, Mrs. Tolstoy circulates the story that Anna is an adulteress — she’s having an
89. Dumbo, a home-loving elephant who teaches piano for a living, likes to keep to himself. While reading the local paper one day, he’s horrified to see an item in the gossip column, saying that he
88. Gil Ibble, reporter for the Washington Rag during the Lincoln administration, hears a guy in a bar say: “The only way Abe Lincoln got elected was by stuffing ballot boxes!” Ibble figures this
87. Pierre Exposee, a reporter for the Paris Clarion du Jour, publishes a story that the Emperor Napoleon falsified his war record. Pierre has heard the story from a friend, and actually believes it.
86. Socrates is up for parole. Defamitus testifies to the parole board that the parole should be denied because Socrates is a menace to society —he has been known to solicit sexual favors from
85. Clara Bow is an up-and-coming Hollywood starlet. Brunhilda, jealous of Clara’s success, spreads the lie that Clara has been intimate with an entire college football squad. When Clara sues
84. Ratso is a small-time criminal who likes to hang around with shady types. John Dillinger circulates the lie that Ratso is a “stoolie” who’s ratted on various local criminals to the police.
Publication: A communicating of that statement to a person other than P (a “publication”);Fault: Fault on the part of D, amounting to at least negligence if D is a media defendant, and either
Libel vs. slander: Libel is caused by a written statement, and slander is caused by an oral statement.Most of the rules governing the two tort actions are identical.Defamation generally: To establish
83. Pia is contemplating the purchase of a painting which the seller represents to be by the great master Rubens. Pia brings the painting to her friend Dimitrius, who Pia knows to be one of the
82. Darlene owns a five-story apartment building in Pound City. Darlene offers the building for sale to Percy. She gives Percy a sheet she has prepared, which states, “The current rent roll is
81. E. F. Mutton, the hottest stock broker in New Zealand, is at a cocktail party in the U.S. Yves Dropper, another guest at the party, overhears Mutton telling a third guest, Little Lamb, that,
80. Nysen Shiny, travelling cookware salesman, knocks on the door of the Gingerbread House, where Wicked Witch lives. She invites him in.When he tells her he sells cookware, she says, “Oh, good. Do
79. Betty Omen is considering buying passage on the first voyage of the Titanic. She is at a cocktail party and sees Captain Smith, who is going to command the voyage. Betty walks over and asks the
78. Noah and Judas are neighbors, who frequently do each other favors. One night, Judas is visiting Noah, and, as he leaves, Noah says: “I’ll come out with you as far as the barn. It looks like
Strict liability: Generally, a person has no liability for an “innocent” misrepresentation — that is, there is no strict liability. But there are some exceptions (e.g., where two parties are
Liability to third persons: The maker of a negligent misrepresentation is liable to a much narrower class of third persons than is the maker of a fraudulent statement. In most courts, D is liable for
Business relationship: However, most courts add the requirement that D’s statements be made in the course of his business or profession, and that D have had a pecuniary interest in the transaction.
Same requirements: Most requirements for a negligent misrepresentation action are the same as for intentional misrepresentation.
Damage: Damage to P, stemming from the reliance.Negligent misrepresentation: Today, most courts also allow recovery for “negligent misrepresentation,” even where P suffers only intangible
Reliance: Justifiable reliance by P; and
Intent: An intent to induce P’s reliance on the misrepresentation;Third-party recovery: Even if D did not intend to influence P, however, P can recover if she can show that she is a member of a
Scienter: Scienter (i.e., a culpable state of mind — either knowledge of the statement’s falsity or reckless indifference to the truth);
77. Eyyon, a large oil refiner, owns a large tanker, the SS Eyyon. As the SS Eyyon, filled with oil, is approaching the port of Zedlav, its captain fails to notice a large iceberg in the ship’s
76. Ghosts have become a serious problem to society, including Phantasm Town. The town is happy when the Ghostbusters open up their ghost collection facility there, primarily because it creates jobs
75. Gore ‘N Guts Byproducts opens a factory in which it processes entrails into pet food. Next door is the home of Charles Nifferoo, a fragrance analyst with a necessarily ultra-sensitive nose.
Requirements: The plaintiff in a private nuisance action must show two things: (1) that he has an interest in land that has been substantially and unreasonably interfered with; and (2) that D behaved
Private nuisance: A “private nuisance” is an unreasonable and substantial interference with P’s use and enjoyment of his land.
Public nuisance: A “public nuisance” is an interference with a right common to the general public. If D releases noxious odors or harmful chemicals into the air, cuts off the use of a public
74. United Automobile Corp. manufactures a 1998 Weep four-wheel-drive vehicle, and sells it to Dealer, who resells it to Tim. The car comes with no express warranties by United, and with whatever
73. Frieda is driving her 1999 Newmobile when she is struck from the side by a speeding driver who drives away and is never found. The impact on Frieda’s car is great enough that it causes the car
72. Campfire Soup Company is in the business of making canned soups. It uses only the latest, state-of-the-art machinery to blend, cook, and can the soups; it maintains high safety standards; and it
71. Scrubby Dubdub Inc. manufactures equipment for automatic car washes. Spit ‘N’ Polish reconditions old car wash equipment, rebuilds it, and resells it. The Hot Wax Car Wash buys reconditioned
70. Americus Gothic is justly famous in his neighborhood for his delectable acorn jelly. He’s not in the retail business, but occasionally he sells a jar to a lucky neighbor. Although Gothic is
69. Count Dracula enters the hospital for an operation to correct internal hemorrhaging. During the operation he receives a transfusion of blood infected with the HIV virus, and as a result he
68. Slip ‘N’ Slide Floor Polish, which is poisonous, looks like Flopsy Cola, a popular soft drink, and comes in a soda-like bottle with an easily removable lid. The bottle has a warning, reading:
Who may be a defendant: Courts differ in the details of who may be liable under the various theories.Special questions arise, for instance, with respect to sellers of used goods, lessors of goods,
Non-manufacturer: Strict product liability applies not only to the product’s manufacturer, but also to its retailer, and any other person in the distributive chain (e.g., a wholesaler).Unavoidably
Strict liability: Virtually all states apply the doctrine of “strict product liability.” Under that doctrine, a seller of a product is liable without fault for personal injuries (or other
Merchantability: Most importantly, a merchant in goods of a particular type is held to automatically warrant that they are “merchantable” (i.e., “fit for the ordinary purposes for which such
Implied warranty: Alternatively, an implied warranty about the quality of the goods can come into existence from the mere fact that the seller has offered the good for sale.
Warranty: There are two main ways in which a seller of goods may be liable under a warranty theory when the item causes injuries:Express warranties: A seller may expressly warrant that her goods have
Privity: A negligent manufacturer is liable to a “remote” purchaser (one who bought from some intermediary in the distribution channel), or to a “user” or “bystander.” In other words,
Negligence: The general rules of negligence apply to one who sells a product. Most commonly, negligence theory is used to make a manufacturer liable where he failed to use reasonable care in
who is injured: (1) negligence; (2) warranty; and (3) strict liability.
Importance: Products liability is the fastest-growing, and probably now the most economically significant, branch of tort law.Three theories: There are three main theories under which a seller of a
67. Guy Fawkes carefully burns a pile of leaves in his backyard; he moves all flammable objects away from the area, keeps a fire extinguisher on hand, and douses the flames occasionally to keep them
66. Bugs and Daffy are neighbors. Bugs keeps a Tasmanian Devil as a pet — a mean, vicious beast with slavering jaws. Bugs keeps the Devil in a heavy steel cage in the basement. One day, the Devil
Basis for: The basis for strict liability is that those who engage in certain kinds of activities do so at their own peril, and must pay for any damage that foreseeably results, even if the activity
65. Cosa Nostra Collectors, Inc. runs a debt collection service. All employees of Cosa are instructed that they should never use violence, or even threats of violence, in attempting to collect a
64. Allnever Tell gives his four-year-old son, Willie, a real bow and arrow set for Christmas. Willie takes it outside and fires an arrow at his neighbor, Captain Hook, hitting him in the arm. Will
63. The Plen-Tee O’Food Company organizes and runs country fairs. For the Lonornament County Fair, Plen-Tee contracts with Les Fingers, a highly respected fireworks specialist, to stage a fireworks
62. Harvey Bangbang owns the Shoot ‘M Up Gun Store. He strictly instructs his employees not to load guns before demonstrating them to customers. One employee, Annie Oakleaf, is having a hard time
Joint enterprise: When two or more people engage in an activity “in concert,” each can be held liable for the other’s torts. This is the “joint enterprise” doctrine.
Unusually dangerous: But there is an exception: if the work to be done by the contractor is unusually dangerous, then the person engaging the contractor will be vicariously liable.
Independent contractors: Normally, a person who engages an independent contractor is not liable for torts committed by the contractor.
Scope of employment: The employer is only liable for torts committed by the employee “during the scope of the employment.” Normally, this means that there will be liability only when the employee
Who is an “employee”: A will be deemed B’s employee if B gets to control the details of how A does his work.
Employers: An employer is normally vicariously liable for torts committed by his employees.
61. The courts of New York have held that, as a common law matter, any operator of a baseball stadium must furnish each patron with a screened seat so that that patron will not be hit by batted
60. Jay Walker, a pedestrian who is in a hurry, crosses a busy street from between two parked cars in the middle of the street, rather than at a crosswalk. Although this is an act of negligence, it
59. Perry, an avid hiker, negligently wears very thin-soled shoes, which are inadequate protection for the sharp stones on the mountain trail that he plans to navigate. About halfway up the trail,
58. Paul Revere and William Dawes are each on a casual midnight horseback ride. They run into each other; each is thrown from his respective horse and each is injured. Each sues the other for
57. Diamond Jim Potluck visits the N-Palatable Diner. As he walks to the counter, he studies the menu board on the wall, looking for the meatloaf of the day. He does not notice that the cellar door,
56. Al Bundy drives his car to the Mr. Walletwrench Service Station to get the oil changed. He drives the car into the garage, fumbles around in the back seat to get a newspaper, and opens the door
55. The Hit & Run Railroad Company has tracks running adjacent to Old MacDonald’s Farm. It negligently fails to erect fences on either side of the tracks; as a result, Old MacDonald is worried that
Immunities: The common law recognizes certain immunities from negligence actions, including: (1)various intra-family immunities (e.g., between spouses, and between parent and child); (2) immunity of
Effect of comparative negligence statute: The existence of a comparative negligence statute eliminates certain types of assumption of risk, but maintains the “core” variety as a defense. Thus if
Express and implied: P can assume the risk either “expressly” or “implicitly.” The latter occurs when P indicates by her conduct (rather than by her express words) that she knows of the risk
Comparative negligence: Most states have replaced contributory negligence with “comparative negligence.” The comparative negligence system rejects the all-or-nothing approach of contributory
Contributory negligence: At common law, the doctrine of contributory negligence applies. The doctrine provides that a plaintiff who is negligent, and whose negligence is a proximate cause of his
Wrongful death and survivor actions: Most states provide that when an accident victim dies, his estate may sue for those elements of damage that the victim himself could have sued for (a
Recovery by spouse or children: Most states allow the spouse, parent or child of an injured person to recover for the losses that they have suffered. (For instance, a spouse of the injured person may
Punitive damages: Punitive damages can be awarded to penalize a defendant whose conduct is peculiarly outrageous. In a negligence case, D’s conduct must generally be “reckless” or “willful
Mitigation: P has a “duty to mitigate.” That is, P cannot recover for any harm which, by the exercise of reasonable care, he could have avoided (e.g., any harm caused by P’s failure to seek
The collateral source rule: Under the “collateral source rule,” P is entitled to recover her out-of-pocket expenses, even if she was reimbursed for these losses by some third party (e.g., an
Actual injury required: In a negligence action, P must generally show that he suffered some sort of physical harm (so that he cannot recover damages if he suffered only mental harm with no physical
Lessors: In general, a lessor (landlord) is not liable in tort once he transfers possession to the lessee. However, there are some important exceptions.

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