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MindMap Gallery Types of Infringement Behaviors
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Types of Infringement Behaviors
This template covers various infringement behaviors, including intentional and unintentional acts. Designed for legal professionals, students, and those interested in intellectual property rights, it provides a structured framework for analyzing and discussing infringement cases. From Edraw, a trusted mind mapping tool.
Edited at 2024-03-01 03:28:13
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Tort Law
Basic Features
Addresses Wrongs
Latin Root “tortum” (something twisted, wrong, or crooked).
The party that suffered a wrong seeks redress, usually in the form of money damages.
Civil Law (not Criminal Law)
Between private parties (rather than between the state and a defendant).
At most, the outcome is that the defendant pays money to plaintiff (not jail)
Common Law (not Statutory Law)
Evolves case by case.
Made by judges (rather than by Congress or state legislatures).
State Law (not Federal Law)
Rules may vary from state to state
Rules may evolve over time.
No hard and fast rules. No Supreme Court of torts or official Tort Code.
Two Branches
Intentional Torts
Battery
DefinitionThe intentional touching of the person of another, causing harm or offense, without consent. e.g. One person kicking another.
Intent
Some states: Intent to touch. (Example: In Vosburg v. Putney, Putney intended to lightly kick Vosburg's leg but not to harm him. In some states, Putney is still liable for battery.)
Other states: Intent not only to touch but to harm or offend.
Touch
e.g.Blowing tobacco smoke (particulate matter) in someone else’s face, as in Leichtman v. WLW Jacor Communications.
Person of Another
Includes another’s physical body, but also the things that are connected to them.
e.g.Grabbing another’s jacket that they are wearing, knocking their hat off their head, hitting a cane that they’re holding, or striking a horse that they’re riding.
Harm
Offend
Usual Test: Would a reasonable person be offended?
But if the defendant knows that the plaintiff is unusually sensitive, then that sort of touch can be a battery, as well. (Example: Sneaking pork onto the plate of a religious Muslim or Jew, knowing they will be offended by consumption of pork.)
Without Consent
Consent is a common issue of focus in battery cases.
e.g. A patient consents to operation by one doctor but is actually operated on by a different doctor, or a blood donor receives a counterfeit bill in exchange for donating their plasma.
Trespass
Intentional entry upon the land of another without consent.e.g. Walking across someone else’s property without their permission, or breaking into someone else’s house.
Intentional
Trespass is a single intent tort. You must intend “to enter,” but you do not need to intend “to enter onto the land of another.”
e.g.I build a shed behind my house, thinking it’s on my side of the property line, and it turns out to be on your side of the property line.
Entry
e.g. Walking across someone else’s property.
e.g.Hunter lets his dogs run onto neighbor’s land, knowing that his dogs would enter the neighbor’s land, because they had done so repeatedly in the past. Even if the hunter, himself, does not cross over onto the neighbor’s land, he is still considered to have entered because his dogs (an appendage of him) did. (Pegg v. Gray)
Non-Example: If patrons at a golf club repeatedly hit balls onto a neighbor’s property, this does not count as entering because the golfers did not know that their golf balls would go there, and they did not intend for their golf balls to go there. (Malouf v. Dallas Athletic Club)
Land of Another
Common Law Rule: “Ad coelum, ad inferos”Meaning “Whosever is the soil, it’s theirs all the way to heaven and all the way to hell.”
“Ad inferos” (all the way to hell)•Whatever is in the direct line between the surface of the land and the center of the Earth belongs to the owner of the surface.•So, if someone else digs a tunnel under your land, that is trespass.
“Ad coelum” (all the way to heaven)•Congress has established a government right to all airspace above 500 feet. So airplanes flying more than 500 feet above the soil are not trespassing on the property beneath them.•The airspace beneath 500 feet above one’s land, however, remains in controversy. (e.g., If someone flies a drone over your land, have they trespassed? It is unclear. Courts are still figuring this out.)
Consent
Consent under a misimpression still equals consent.•E.g.Reporters pretended to be patients to expose insurance fraud at a clinic. However, the court held that failure to identify themselves as reporters did not count as fraudulent entry, so they had not committed a trespass. (Desnick v. ABC)•If a person pretends to be your friend, but really just wants a dinner invitation, they have really just obtained your consent under a misimpression (rather than consent procured by fraud). As such, they did, in fact, still have your actual consent, so they have not committed trespass.
Consent procured by fraud does not equal consent.•E.g.If a person pretends to be a meter reader, but really just wants to get inside your basement, this is fraudulent entry. This means that they did not actually have your consent, so they have committed trespass.
Privileged TrespassA trespass may sometimes be allowed (in other words, “privileged"), such as in cases of necessity or emergency.
Private Necessity
In cases of an emergency to you or your property, you are allowed to trespass onto the property of another, and you are not liable for the trespass itself. However, you must pay for any damages that you cause to the other person’s property.
e.g. If I run onto your property while trying to escape a vicious dog, my trespass will be privileged, and I will not be held liable for it.
Non-e.g.If someone experiencing homelessness squats on your vacant lot, that is trespass. Generally, this is not considered to be a situation of private necessity (and thus, not privileged, meaning that the defendant could be held liable for it). However, as noted in Property Lesson 2.2, the Magadini decision suggests a move towards considering the possibility of allowing a necessity defense in some circumstances.
e.g.If I moor my boat to your dock in order to avoid sinking at sea during a storm, that is “privileged” trespass, and I will not be held liable for it. However, if my boat does damage to your dock, then I will owe you money to compensate for that damage.
Public Necessity
In cases of an emergency, you are allowed to trespass onto the property of another in order to protect a broader group of people, and you are not liable for the trespass itself. Unlike private necessity, in cases of public necessity, you do not have to pay for damages that you cause to the other person’s property.
e.g. The mayor of San Francisco knocked down someone’s house in order to create a fire wall during a fire in San Francisco. The mayor was not liable for the damages that he brought upon that person’s property when he trespassed upon it in order to protect the people of the city from the fire.
False Imprisonment
Elements
Intent to ConfineThe defendant must have acted intending to confine the plaintiff or a third person within boundaries fixed by the defendant.
Actual ConfinementThe defendant’s acts must have directly or indirectly resulted in the confinement of the plaintiff.
Plaintiff Conscious of Confinement or Harmed by ItThe plaintiff must have been conscious of the confinement or harmed by it. Non-E.g.If you lock me in my room while I’m sleeping, and you unlock the door before I wake up, that’s not false imprisonment because I was not harmed by the confinement, and I was never conscious of the confinement.
Complete ConfinementFor false imprisonment, confinement must be complete.
Reasonable Exit Routes
•If there is a reasonable exit route that the plaintiff knows about, then that is not complete confinement.
•If there is a reasonable exit route but the plaintiff does not know about it, then that is complete confinement.
Area of Confinement
•Complete confinement can be to a room, a house, an entire town, or even a state.
Method of Confinement
•Complete confinement does not necessarily need to involve locking someone in an area. e.g., it can involve taking away their means of egress. It could even involve taking away a cane from someone who needs their cane to walk.
Exceptions
Lawful Arrest
Lawful arrest is not false imprisonment. So, if a police officer lawfully arrests a criminal suspect, that is not false imprisonment.
Shopkeeper’s Privilege
When a shopkeeper appropriately exercises their shopkeeper’s privilege to detain an alleged shoplifter, that is not false imprisonment.
Appropriate exercise of the shopkeeper’s privilege requires that the following “four reasonablenesses” be satisfied:
1.Reasonable Cause
The shopkeeper must have reasonable cause to believe that the alleged shoplifter is shoplifting.
2.Reasonable Force
The shopkeeper can use only reasonable force to detain the alleged shoplifter.
3.Reasonable Search
The shopkeeper can conduct only a reasonable search of the alleged shoplifter.
4.Reasonable Amount of Time
The shopkeeper can detain the alleged shoplifter only for a reasonable amount of time (i.e., the amount of time necessary to figure out whether the person is or isn’t shoplifting).
Parent Detaining an Adult Child: Peterson v. Sorlien
Facts of the Case
•A young woman went to college and joined The Way, which her parents considered to be a cult. At the end of the school year, her father picked her up from school and drove her to a deprogramming center.
•The deprogramming center held the young woman in a basement for a day, telling her that she would be committed to a mental hospital if she refused to cooperate. After a day of resisting, the young woman decided to cooperate.
•The young woman cooperated for two weeks before stepping outside to flag down a police car, escape the deprogramming center, and rejoin The Way.
•The young woman sued her parents and the deprogramming center.
The Court’s Decision
•In this case, the Minnesota Supreme Court found that even though the elements of false imprisonment were met, there was no liability here.
•The court said that parents can restrict the movement of adult children whose judgment is impaired, if the adult child subsequently assents.
•Here, the court found that the young woman’s judgment was impaired by what the majority opinion of the court considered to be a cult, and the young woman did assent when she decided to participate in the deprogramming activities for two weeks, even though she later decided to leave. So, the defendants were not liable for false imprisonment.
The Dissent
•The dissent argued that this was an incursion on the young woman’s liberty.
•Some courts have sided with the dissent from Peterson v. Sorlien on this issue.
Quarantine: Creighton v. Larrabee
Facts of the Case
•A woman was put under quarantine by the Syracuse Board of Health out of worry that she might have had contact with a neighbor who was infected with smallpox.
•The woman sued Syracuse Board of Health for false imprisonment.
The Court’s Decision
•In this case, the New York Court of Appeals found that even though the elements of false imprisonment were met, there was no liability for false imprisonment here.
•The court said that when an officer acts pursuant to a reasonable and valid health regulation, that officer will not be liable for false imprisonment.
•Here, the court found that the officer was acting pursuant to a health regulation allowing for the quarantine of individuals who were suspected to have had contact with patients who were infectious with smallpox, which the court found to be a reasonable and valid health regulation, so the officer was not liable for false imprisonment.
Qualified Immunity
•Qualified immunity arises when a public official takes a discretionary action in her official capacity, unless the action violates clearly established law.
•The rationale behind qualified immunity is that we don’t want to hold police officers liable for arresting criminal suspects who turn out not to have committed a crime. And we don’t want to hold prosecutors liable for prosecuting suspects who, after conviction, turn out to have been wrongfully convicted.
•So, unless the public officer violates a clearly established law, or overrides a clearly established right of the plaintiff, the plaintiff cannot pursue a claim against the officer for false imprisonment.
Assault
Definition
For assault, the defendant must have acted intending to cause a harmful or offensive contact or to put another in imminent apprehension of a harmful or offensive contact. And then, the plaintiff must actually have been put in such imminent apprehension.
Assault & Battery
Sometimes, assault and battery go together.
E.g.If I threatened to punch you and then I punch you, I have committed both assault and battery.
Sometimes assault can be committed without a battery.
E.g.If I threaten to punch you and try to punch you but miss, I have committed assault, but I have not committed battery because battery requires the intentional touching of the person of another.
Sometimes battery can be committed without assault.
E.g.If I hit you from behind, I have committed a battery, but I have not committed an assault because you were never in imminent apprehension of a harmful or offensive contact.
Restatement (Second) of Torts
The Restatement (Second) of Torts is a compilation of cases that professors and judges and lawyers have put together of decisions across many different states about the elements of a tort.
E.g. of assault from the Restatement:
An expert knife thrower throws a knife at his friend, purposely missing. The expert knife thrower intends to frighten his friend. However, the expert knife thrower knows that the knife will not hit his friend. The friend lacks the same confidence that the knife will not hit him, so he is in imminent apprehension of a harmful or offensive contact.
Here, there is no battery, because the friend was not hit by the knife. However, there is an assault because the knife thrower intended to put his friend in imminent apprehension of being hit by the knife (a harmful or offensive contact), and then the friend was actually put in such imminent apprehension.
“Imminent” Element of Assault
According to the elements of assault, the harmful or offensive contact must be imminent. Fear of a future harmful or offensive contact isn’t enough.
Brower v. Ackley
a. Facts of the Case
•Brower and the Ackley brothers were in a dispute over a billboard in Seattle.
•Brower received a call (ultimately traced back to the Ackley brothers) in which the caller told Brower that the caller knew where Brower lived and that the caller would find Brower and kick his rear end.
b. The Court’s Decision
•Here, the court said there was no assault because although the Ackley brothers threatened to kick Brower’s rear, the harmful or offensive contact that was threatened was further off in the future. It was not imminent, as it was not going to be done immediately.
Tuberville v. Savage
a. Facts of the Case
•In 1669 in England, Savage said something offensive to Tuberville during an argument. In response, Tuberville put his hand on his sword and said that if court were not in session (which it currently was at that particular time), Tuberville would not tolerate such language from Savage.
•Thinking that Tuberville might draw his sword, Savage attacked Tuberville, causing Tuberville to lose his eye.
•Tuberville sued Savage for battery. Savage responded that Tuberville had committed assault.
b. The Court’s Decision
•In this case, the court found Savage guilty of battery. However, the court did not find Tuberville guilty of assault. The court reasoned that in saying that if the court were not in session he would not tolerate such language from Savage, at most Tuberville had threatened harmful or offensive contact against Savage at a far-off time (rather than an immediate threat).
Distinction from Assault in Criminal Law
In criminal law, assault often encompasses cases of actual contact, whereas in tort law, there is a distinction between battery (cases involving contact) and assault (cases of imminent apprehension).
Unintentional Torts
Negligence
Breach of a duty of care (i.e., carelessness)., causing damagese.g. Car accidents, medical malpractice, or product malfunctions.
Elements
Duty, An obligation to act with care, so as not to cause harm to others.
i. Duty of Care When Acting
Generally, you have a duty of care when taking action.
E.g.Once a doctor or hospital has begun treatment of a patient, the duty of care attaches. They must follow through on the treatment, and not be careless in that treatment. (O’Neill v. Montefiore)
ii. No Duty to Rescue
However, there is generally no duty to actually take action. As such, there is generally no liability for inaction. Thus, at common law, there is no duty to rescue.
E.g.If someone jumps into the water and starts to drown, you do not have a duty to rescue them. (Yania v. Bigan)
Even doctors do not have a duty to rescue if they have not begun treatment of a patient. (Hurley v. Eddingfield)
c. Policy Bases: The general “no duty to rescue” rule is based on policy considerations.
The duty to rescue would have no end.
There is already a moral duty to rescue, so no legal duty to rescue is needed.
We do not want to incentivize more rescue attempts, given that so many rescue attempts go awry.
Still, some states are unpersuaded by these policy bases and have statutes that obligate individuals to rescue when they can intervene with no harm to themselves.
Exceptions: There are some exceptions to the “no duty to rescue” rule at common law.
i. Special Relationship
If there is a special relationship between the plaintiff and the defendant, then the defendant may have a duty to rescue.
E.g.If I put someone in a position of danger (such as if I hit them with my car), then I have a duty to rescue.
E.g.From the special relationship between therapist and patient arises a duty to rescue if the patient tells the therapist that there’s a particular individual whom that patient wants to harm. (Tarasoff v. Regents of the University of California)
Breach
Determining Breach
i. Hand Formula
•Widely taught method of determining whether there was a breach of the duty of care.
•Proposed by Justice Learned Hand in United States v. Carroll Towing
A. Facts of the Case
•A barge is moored to a dock in NY Harbor, where there is high activity.
•The barge becomes unmoored. It sinks, and the cargo is lost. No one was on board the barge, during the day, to prevent the barge from sinking.
B. Issue
•Was the owner negligent for failing to have someone on board the barge during the day?
C. Hand Formula
•Compare the burden of the precaution to the probability of the loss times the loss.
•In other words, compare (B) to (P x L).
•If (B) is greater than (P x L), there is no obligation to take the precaution.
•If (B) is less than (P x L), there is an obligation to take the precaution. Failure to take the precaution in this situation is a breach of a duty of care.
D. Hand Formula Applied to the Facts of the Case
•Burden of the Precaution: Small (having someone on board the barge during the day)
•Probability of the Loss: High (frequent activity on the harbor)
•The Loss: High (valuable cargo)
•B < (P x L), so the owner’s failure to take the precaution of having someone on board the barge during the day meant that the defendant had breached the duty of care.
E.g. Crosswalk,Imagine you are walking down the sidewalk, deciding whether to cross the street, or whether to instead go all the way to the crosswalk and wait for a walk sign.
A. Burden of the Precaution
•The relevant precaution, here, is for you to go to the crosswalk and wait to cross there.
•The burden of this precaution is that it will require you to walk a bit farther, and it will take more time.
•To some extent, the burden will depend on the circumstances, such as the distance between you and the crosswalk, how long you will have to wait for the walk sign, and how much of a hurry you are in.
B. The Loss
•The relevant loss is the pain, injury, and/or death that may result if you were to be hit by a car when crossing outside of the crosswalk.
C. Probability of the Loss
•The probability of this loss happening depends on circumstances, such as traffic and time of day.
D. Compare B to (P x L)
•If the burden of walking to the crosswalk and waiting for the walk signal is lower than the risk of death or injury from being hit by a car times the probability of being hit by a car, then failing to walk to the crosswalk and wait for the walk signal would be a breach of the duty of care.
E.g.Vending Machine Peanut M&M’s, There is a vending machine outside the instructor’s office. He sometimes buys Peanut M&M’s from it. Sometimes, if there is only one bag left in the vending machine, when he puts his money into the vending machine, the bag of Peanut M&M’s does not fall down. In this situation, he could shake the machine to make the bag fall out, so he can eat the Peanut M&M’s.
A. Burden of the Precaution
•The relevant precaution is to not shake the machine, and, thus, to not get to eat the Peanut M&M’s.
•The burden of the precaution is the value of the Peanut M&M’s. The value of the Peanut M&M’s is not necessarily the price of the M&M’s (which in this vending machine is 75 cents). Rather, the value of the Peanut M&M’s is how much the instructor would be willing to pay for some Peanut M&M’s (i.e., how much value he personally places upon them). The value of the Peanut M&M’s, to him, may depend on the circumstances, such as how hungry he is, how much longer until dinner, etc.
B. The Loss
•The relevant loss is the potential loss of life, which has an estimated value of about $10 million.
C. Probability of the Loss
•The probability of this loss of life is about 1 in 10 million.
D. Probability of the Loss Times the Loss
•The loss times the probability of the loss (P x L) = $10,000,000 x (1/10,000,000) = $1.
E. Compare B to (P x L)
•If the instructor is willing to pay more than $1 for the Peanut M&M’s, then B > (P x L), so it would not be a breach of the duty of care (and, thus, it would not be negligent), in this situation, to fail to take the precaution of not shaking the vending machine. In other words, it is not negligent of him to shake the vending machine in this particular situation.
•However, if the instructor is not willing to pay more than $1 for the Peanut M&M’s, then B < (P x L), so it would be a breach of the duty of care (and, thus, negligent), in this situation, to fail to take the precaution of not shaking the vending machine. In other words, in this situation, it would be negligent of him to shake the vending machine.
Custom
A. Why we can use custom as a shortcut for breach
•Custom is made up of practices that are developed over time, that seem to work, and that are probably prudent. So, custom can tell us how the ordinary prudent person would act in a certain situation.
B. How we can use custom as a shortcut for breach
•We can compare a particular individual’s behavior in a certain situation to the relevant custom.
•If the individual adhered to the relevant custom then they haven’t breached the duty of care.
•If the individual failed to adhere to the relevant custom, then that’s one piece of evidence that they’ve breached the duty of care.
•In the context of medical malpractice, the old rule (the “Locality Rule”) looked to the custom of doctors in the relevant specialty, in the relevant area. Now, however, we look to custom not just in the locality, but nationwide, as noted in Brune v. Belinkoff
A. Facts of the Case
Belinkoff (an anesthesiologist) overprescribed an anesthetic to a patient.
B. Problem
None of the other anesthesiologists in the local area would testify as to what the custom was in these situations.
C. Court Decision
The court decided that when determining breach, we should look to custom not just locally, but nationwide.
•Sometimes, however, industry custom may be behind the times. In those situations, the court can override custom and do its own Hand Formula analysis, as noted in The T.J. Hooper
A. Facts of the Case
A tugboat took a barge to sea where a storm caused them to sink (along with the barge’s cargo).
B. Issue
The owners of the barge claimed that the owner of the tugboat should have taken the precaution of having a radio on board. A radio would have allowed them to know whether a storm was coming, allowing them to decide whether to remain ashore.
C. Court Decision
It may not have yet been customary for tugboats to have radios. However, if the custom of the industry is behind the times (as it may be in this case), then the court can override custom and do its own Hand Formula analysis.
Negligence Per Se
a. Definition
•A party is negligent per se if they violate a safety statute that was intended to protect against the particular harm from which the plaintiff suffered.
•This means that when a party violates a safety statute, inflicting against another the type of harm against which that particular statute was intended to protect, that party is presumed to have committed a breach of the duty of care (ie. they are negligent per se). This basic definition of negligence per se is illustrated in the section below on Martin v. Herzog.
Facts of the Case
•Herzog (who is driving a car) hits Martin (who was driving a buggy with the lights off late at night).
•There is a law in that jurisdiction saying that if you’re driving a buggy at night, you must have the lights on.
•Even though Herzog crashed into Martin, Martin was the one who was negligent because Martin had violated a safety-related statute.
ii. Court Decision
•The court found that Martin was negligent per se for violating that statute.
•As Tedla v. Ellman, this presumption can be overridden if the party argues that whatever they were doing (when they violated the law) was actually the safe course of action in those particular circumstances.
i. Facts of the Case
•The law in this particular jurisdiction said that you need to drive on the right side of the road and walk on the left.
•Tedla was walking on the right side of the road and collided with a car.
•Tedla said that there was a wider shoulder on the right side of the road. Because of the way traffic was coming, it was actually safer to walk on the right than on the left.
ii. Court Decision
•The court said that Tedla’s violation of the statute gave rise to a presumption of the breach of the duty of care (negligence per se). However, the court said that Tedla could override that presumption by showing that what he did was actually the safer way to proceed, under the circumstances.
•As Selger v. Steven Brothers, there is wiggle room for the court to determine what harm a statute was intended to protect against (and, thus, whether there was negligence per se).
i. Facts of the Case
•Ms. Selger was looking in the window of the Steven Brothers store when she slipped on a pile of dog poop and fell, severely injuring herself.
•The law in that jurisdiction said that stores need to clean the sidewalks outside of the store. The Steven Brothers store had violated this statute by failing to clean up the dog poop on the sidewalk outside the front of the store.
ii. Court Decision
•The court said that slipping on dog poop was not the harm that the statute at issue was intended to prevent. The statute here was about aesthetics, not safety. As a result, there is no presumption of breach of the duty of care (ie. there is no negligence per se).
b. Conceptualizing “Negligence Per Se” as “Breach Per Se”
•The instructor refers to “negligence per se” as “breach per se,” since the doctrine actually has to do with breach.
•The term “breach per se” may also make more sense, since establishing violation of a relevant statute does not, alone, completely establish negligence. There are still various arguments that the party can raise to avoid liability for breach (and overall liability for negligence). And, even once negligence per se (ie. breach per se) is established, duty, causation, and damages are still required in order for there to be liability.
Causation