Week 3: Current Article Analysis

Q.1 Choose a current article related to this week's material. Review and analyze the article.   

This assignment should be written in APA style and should include:

· Two pages in length (not including the title page and reference page)

· Double-spaced

· 12-point font

Week 3: Reading

Chapter 9: Torts and Products Liability

Chapter 21: Warranties and Consumer Protection Law

Chapter 23: Personal Property, Real Property, and Land Use Law

Chapter 24: Intellectual Property

(Notes: Please find the attached e-Book and read) and read below as well.

Week 3: Introduction & Lesson

Negligence, Product Liability, Property Law, and Intellectual Property

Introduction

We begin Week 3 with a study of civil wrongs, or individuals or organizations committing intentional or negligent acts that harm others. This category can include a wrongful attack on you with a baseball bat by your neighbor or a consumer product that malfunctions and causes you serious injury.

In the realm of product liability and business torts, the question of liability is problematic for most businesses that sell products. Strict product liability for the manufacturer developed in the mid 1930s with a famous case against Buick Motors.  It is essential for businesses to have strategies in place to protect those who use their products. But we first need to learn what the sources of potential liability are. Throughout this unit, we will explore the theories of product liability and potential defenses to claims involving product liability.

We will also define and recognize the various types of property a business must deal with in its operations. The most recognizable types of business property include: (1) real property (anything associated with land), (2) tangible property (various types of mechanical equipment, computers, trucks, etc.), and (3) intangible property (items with no physical being).

Tort Law and the Protection It Provides

Specifically from our text, the precise definition of a tort is, “a civil wrong that causes injury to another’s person or property.” Torts, more than any other area of the law, are a constantly evolving set of responsibility choices that will reflect the styles of a time. Many states are constantly enacting new legislation that establishes new criteria for punishing people or companies whose actions lead to personal injury or property damage. The specific goal of such tort laws is to compensate the injured persons and those whose property was damaged by the actions of another.

The intent of tort law is to deter future actions by the wrongdoer; this aim is accomplished by compensation paid to the offended party. It forces the party responsible for the injury to pay for making the injured person or damaged property whole. Note that although some wrongful actions that constitute tortuous acts can also be considered crimes, in this lesson, we are only considering civil actions and the financial restitution that follows. The financial payments that can be recovered are defined by the classification of damages by the court.

· Compensatory damages: Sufficient funds to cover all noted losses and put the injured party in the position he or she would have been in had the tortfeasor not committed the offense

· Nominal damages: A nominal amount awarded, usually $1, $5, or $10, to recognize that the plaintiff had been wronged, but that no specific or definable injury occurred.

· Punitive damages: Determined by the severity of the wrongful conduct, and designed to punish the defendant to ensure no reoccurrence.

Classification of Torts: Intentional or Negligent

Our study of tort law now moves to a classification of the various types of torts.

The first type of tort we will consider is intentional torts—purposeful actions that result in harm.

· Against persons: Assault and battery, defamation of character, invasion of privacy, false imprisonment, and intentional infliction of emotional distress.

· Against property: Trespass to real property, and trespass that leads to wrongful conversion.

· Against economic interests: Disparaging communication, intentional interference with a contract, unfair competition, and misappropriation of property

The next type of tort we will consider is negligent torts, defined as careless actions that result in harm. The key to successful prosecution of a tort of negligence involves proof of its four elements. A failure to establish any of the four following elements prevents recovery by the plaintiff.

1. Duty of care (requirements of a reasonable person in that position)

2. Breach of that duty

3. Causation (two parts): a. Actual cause (Cause in Fact) (but for the action of defendant, plaintiff would not have been harmed) b. Proximate cause (foreseeability of injury in most States)

4. Damages result

The last type of tort we will consider is strict liability. This involves being engaged in some type of activity that is so inherently dangerous that any type of injury to person or property that results must be compensated. Examples include

· hauling dynamite;

· destroying a building with explosives; or

· disposing of toxic chemicals.

Strict Product Liability

Early in our industrial development, our legal system protected an emerging manufacturing economy by adhering to traditional notions of caveat emptor, which means “let the buyer beware.” But as our industrial development matured, as quality management concepts improved, and as consumer rights became more of a concern, the pendulum began to shift away from traditional notions. The growth of legal doctrines, such as strict product liability in torts and implied warranties, recognized that the consumer had become king, and that it was the manufacturer-distributor who should bear the costs of faulty products.

The ultimate responsibility of the manufacturer for a product came to life with the 1916 case MacPherson v. Buick Motor Co. Mr. MacPherson bought a new Buick from the local Buick car dealer. During the first week of its use, a wheel on the Buick shattered into pieces and Mr. MacPherson lost control and was badly injured. Mr. MacPherson sued Buick Motor Co. for his injuries and the damage to the vehicle. Buick defended by noting that (1) the local dealer should be the defendant for breach of contract, and (2) the manufacturer of the wheel, not Buick, was responsible for the improper construction that caused the accident. However, the final court decision found that Buick Motor Co., as the assembler of the complete automobile, was in the best position to detect such problems, and was therefore liable for Mr. MacPherson’s injuries. As our legal system moved forward thereafter, the final or complete assembler of a manufactured product became the primary defendant in product malfunction.

The legal structure of strict product liability developed into three theories for recovery by the injured party.

· Negligence: Failure to warn, improper design, poor manufacture, failure to test, and false advertising

· Breach of warranty: Both express and implied

· Failure to comply with Section 402A, Restatement (third) of torts (defective product liability)

This restatement (third) of torts requires products to perform as an ordinary consumer would expect.

Definition of Land and Types of Interest or Ownership and Use

Real property is defined as land and anything connected to it: fixtures, such as buildings, homes, and to a lesser extent, even things like ceiling cranes in a manufacturing building. The extent of ownership of real property also extends to items like mineral rights. The various types of ownership interest include the following.

· Fee simple: Complete and ultimate ownership through a deed.

· Conditional estate: Complete ownership, but subject to some type of condition for the land's use.

· Life estate: Complete ownership, but one that terminates upon the death of the owner.

· Future interest: The right to complete ownership based on some future event.

· Easement: The right to enter and utilize the land for some specific purpose (e.g., install electric power lines across the back of your yard).

Other issues that control property use and transfer of ownership include

· general warranty deeds;

· quitclaim deeds;

· adverse positions;

· condemnation; and

· zoning and other types of restrictive covenants.

Global Dimensions of Property Law

There are major risks involved with an American citizen buying land in a foreign country. The laws concerning ownership of land vary greatly from one country to another. Further, a number of countries, including those of the European Union and Mexico, have adverse restrictions on ownership of land by a person who or an organization that is not a citizen of the country where the land is located. Further, American banks and mortgage companies generally will not fund the purchase of land in foreign countries.

Government Classification and Registration of Types of Intellectual Property

Intellectual property is a dominant factor in today's high-tech industrial world. In many cases, it is the difference between profitable operations and just churning out products with little or no profit margin. The U.S. government formally recognizes protection of intellectual property in the Constitution (Article 1, Section 8, Clause 8) and identifies four types of intellectual property.

· Trademark: A distinctive mark, word, picture, and so on that represents an organization or product and has been registered in every country where it is to be protected. A trademark must be used, or the right for it to be protected will be lost.

· Patent: An exclusive right issued by the U.S. Patent Office to use a newly developed product, process, invention, machine, and so on. The right to exclusive use is normally for a period of 20 years, and the originator can bring legal action to prevent illegal use by another party.

· Copyright: The right to exclusive ownership of writing or artistry, which is valid for the life of the author plus 70 years. The copyright is generated automatically upon production of the item, but in order to bring legal action to protect one's copyright, it must be registered at the U.S. Patent and Copyright Office.

· Trade secret: A process, method of operation, or compilation of information that is not known to the public. It must bestow a competitive advantage to its owner or originator. A trade secret does not require registration with the government.

Global Dimensions of Intellectual Property Law: Patents and Copyright Protection, Plagiarism, and More

The major treaty protecting intellectual property through the international arena is the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), as negotiated in the Uruguay round of negotiation (1986-1994) and administered by the World Trade Organization (WTO).