- Alternative Dispute Resolution
- American With Disabilities Act (ADA)
- Animal Liability
- Arbitration
- Assault
- Battery
- Business and Commercial Law
- Consumer Protection
- Contracts
- Corporations
- Defamation
- Estate Planning
- False Imprisonment
- Family Medical Leave Act (FMLA)
- Formation of a Business
- Fraud and Misrepresentation
- Health Care Directive
- Ice and Snow
- Interference with a Contractual Relationship
- Invasion of Privacy
- Limited Liability Companies and Limited Liability Partnerships
- Liquor Liability
- Mechanic’s Lien
- Mediation
- Medical Malpractice
- Minnesota Human Rights Act (MHRA)
- Negligence
- Partnerships
- Power of
- Products Liability
- Recreational Use Statute
- Sole Proprietorship
- Uniform Commercial Code
- Warranties
- Will
- Workers’ Compensation
In 1994 the Minnesota Legislature enacted a law requiring
most civil litigants to engage in mandatory alternative
dispute resolution (ADR). ADR usually consists of
arbitration or mediation. The use of ADR especially in early
stages of litigation tends to lead to an early disposition
of most cases. ADR is commonly used in cases involving
commercial disputes, motor vehicle accidents, employment
disputes, construction litigation, medical malpractice
claims, and dissolution matters.
Arbitration involves the
submission of a case to a neutral decision maker selected by
the parties. The arbitrator is selected based on his or her
expertise in a particular subject area. The arbitrator,
after hearing the evidence presented in the case, decides
the issues presented and makes a determination or an award.
An arbitrator’s decision may be binding or nonbinding
depending upon the agreement of the parties.
Mediation is a means of
resolving civil disputes. A mediator is an independent third
person selected by the parties to facilitate settlement
discussions. Unlike an arbitrator, a mediator is not a
decision maker. The mediator’s function is to bring the
parties together to facilitate discussions in an attempt to
resolve disputes.
Defamation consists of a false statement communicated to
a third party that tends to harm the reputation, tends to
injure the character, subjects the subject to ridicule,
contempt or distrust, or tends to degrade or disgrace the
subject in the eyes of others. Publication is an essential
element of defamation. There must be a communication to
someone else other than the individual defamed.
Libel is defamation in a
permanent form, including written, photographic, and other
tangible means of communication.
Slander is generally oral
defamation, but it may take the form of conduct such as
gestures or signals.
Invasion of privacy was recently recognized as an
independent tort in Minnesota for intrusion upon seclusion,
appropriation of a name or likeness, or publication of
private facts. Intrusion upon seclusion is the intentional
intrusion, physical or otherwise, upon the solitude and
seclusion of another or his private affairs or concerns
which is highly offensive to a reasonable person.
Appropriation of a name or likeness occurs when a person
appropriates to his own use or benefit the name or likeness
of another.
Publication of private facts is publicity given to a matter
concerning the private life of another if the matter
publicized is of a kind that would be highly offensive to a
reasonable person, and is not a legitimate concern to the
public.
Fraud and misrepresentation involve false representation of material fact, past or present, for the purpose of inducing another to rely and act in reliance upon the representation and as a result thereof, suffers damage.
AssaultAn assault is defined as an unlawful threat to do bodily harm to another with the present ability to carry out the threat. Assault is commonly alleged in a claim where other torts such as battery are also alleged to have occurred.
Battery involves an unlawful intentional touching of another.
Negligence is the failure to use reasonable care. Reasonable care is that care which a like person under like circumstances would exercise under similar or like conditions. It is the doing of something which a reasonable person would not do, or the failure to do something which a reasonable person would do under the same or similar circumstances. One of the most commonly recognized negligence actions involves automobile accidents. The fact that a collision has occurred in and of itself does not mean that someone has been negligent. However, violations of traffic statutes is evidence of negligence.
Minnesota law provides no alcoholic beverages shall be sold or bartered for any purpose to any person who is obviously intoxicated, to a minor, or for other illegal sale. By statute, a spouse, child, or guardian or other person injured in person, property, or means of support by an intoxicated person or the intoxication of another person, has a right of action for damages sustained against the person or persons who caused the intoxication by illegally selling alcoholic beverages.
A medical malpractice claim is a negligence claim against
a hospital, physician, or other medical provider for the
failure to use reasonable care. In performing professional
services for a patient, a medical professional must use that
skill and care which is normally possessed and used by
others similarly situated in good standing and in a similar
practice under like circumstances. A medical provider is not
negligent simply because their efforts prove unsuccessful
when the treatment chosen was an accepted treatment.
Medical malpractice claims are generally based on a theory
of negligence. The elements necessary to prove such a claim
include: (1) a duty to use reasonable care; (2) a breach of
the duty to use reasonable care; (3) the breach of duty must
be a substantial factor in bringing about or causing damage
or harm to the patient; and (4) damages.
Along with the benefit of owning a pet is the potential liability in the event the pet causes injury to someone. The scope of liability encompasses both common law and statutory causes of action. Minnesota statutes create strict liability for dog bites and injuries permitting a person attacked by a dog to recover damages simply by proving the statute has been violated. If the elements set forth in the statute are satisfied, the statute imposes liability without fault or upon the owner of the dog. The requirements of the statute are: (a) the dog acts without provocation; (b) the dog attacks or injures a person; (c) the victim is acting peaceably in a place where he or she may lawfully be; and the (d) defendant is the owner of the dog or is a person who is harboring or keeping the dog.
The elements of a claim of ice or snow and injuries
related therefrom are essentially the same elements as in a
general negligence case. The typical cause of action
includes a "duty to exercise reasonable care."
A possessor of land or land owner has a duty to use
reasonable care to inspect and repair his or her premises,
and to warn persons coming upon the premises to protect them
from an unreasonable risk of harm caused by a condition of
the premises while he or she is on the premises. In
considering reasonable care of a land owner, a number of
factors may be considered, including the purpose for which
the entrant entered the premises, the circumstances under
which the entrant entered the premises, the use to which the
premises is put or expected to be put, the foreseeability or
possibility of harm, the reasonableness of inspection,
repair or warning, and the opportunity and ease of repair or
correction or providing a warning.
An owner of land has a duty to remove ice and snow or to
take other appropriate action within a reasonable time after
a storm has abated.
Ice and snow claims may also be based on artificial
conditions or uses of the premises such as improperly
designed or maintained gutters or drains or other conditions
which change the natural freeze-thaw cycle or drainage
patterns.
Minnesota’s recreational use statute generally provides that an owner who offers land for public recreational use such as hunting, fishing, swimming, or snowmobiling, without charge, is not liable to those who use the property.
Strict liability is a concept that has been applied to
various product sellers including manufacturers as well as
other product distributors. It imposes liability to
manufacturers and those in the chain of distribution for a
defective condition of a product.
A manufacturer has a duty to use reasonable care when
designing a product to avoid any unreasonable risk of harm
to anyone who is likely to be exposed to harm when the
product is put to its intended use or to any unintended use
which is reasonably foreseeable. What constitutes reasonable
care may vary with the surrounding circumstances including,
among others, the likelihood and seriousness of the harm
against the feasibility and burden of any precaution which
would be effective to avoid the harm.
In some circumstances, a manufacturer or seller may be
liable for the failure to warn of a product that is
unreasonably dangerous. A product is in a defective
condition and unreasonably dangerous if the manufacturer
knew or reasonably could have discovered the danger involved
in the use of the product, and if the product was not
accompanied by an adequate warning or instruction.
Manufacturers and sellers are obligated to keep informed of
scientific knowledge and discoveries in their field and must
provide adequate warnings of dangers inherent in the
improper use of a product once the manufacturer or seller
should reasonably foresee the improper use of the product.
False imprisonment is the intentional restriction of the physical liberty of a person by words or act. The restraint may be caused by words or acts including the use of physical barriers, the use of physical force, or threats of immediate use of physical force.
Express warranty is any affirmation of fact made by the
seller to the buyer which relates to the goods and becomes
part of the basis of the bargain. An affirmation of fact may
be a factual statement relating to the subject matter of the
sale, a description of the goods, or a sample or model.
Implied warranty arises by operation of law from a sales
transaction. It does not depend on affirmative intention of
the parties. A warranty that the goods shall be merchantable
is implied in a contract for the sale if the seller is a
merchant with respect to the goods of that kind. When a
purchase is made the seller warrants or guarantees that the
goods purchased would pass without objection in the trade,
are the average quality within the description, and are fit
for the ordinary purposes for which such goods are used. An
implied warranty may also arise from a course of dealing.
Course of dealing involves the sequence of previous conduct
between the parties to a particular transaction.
An implied warranty of fitness for a particular purpose may
arise where the seller, at the time of sale, has reason to
know any particular purpose for which the goods are
required, and that the buyer is relying on the seller’s
skill and judgment to select and furnish suitable goods.
Under certain circumstances, warranties may be excluded or
modified. An implied warranty of merchantability may be
excluded or modified if at the time of sale the seller makes
known to the buyer that the warranty of merchantability is
excluded or modified. Implied warranty of fitness for a
particular purpose may be excluded or modified by notice in
writing under certain circumstances. By statute of
limitation, modification of some warranties must be clear,
unambiguous and conspicuous to be effective.
Interference with a Contractual Relationship
Minnesota appellate courts have recognized the tort of interference with a contractual relationship. There are five elements to a claim for intentional interference with a contractual relationship: (1) a contract existed; (2) the alleged tortfeasor knew of the contract; (3) the tortfeasor intentionally interfered with the contract or intentionally procured its breach; (4) the tortfeasor’s actions were not justified; and (5) damages resulted.
Collections and repossessions are remedies available to
creditors against debtors who have defaulted on their loan
obligations. Where a creditor has a security interest in
specific collateral, creditors may, in the event of default,
attempt to repossess and seize the collateral to satisfy the
debt. The collateral is sold, and in some instances if the
collateral sold does not cover the debt, the debtor may be
personally responsible for the delinquent amount.
In come instances, creditors who loan money may repossess
the collateral without a court order when collateral is
pledged as security for the debt. The right of repossession
is governed by the financing agreements and state law.
The Fair Credit Debt Collection Practices Act (FCDCPA) bars
collection agencies from using unfair collection practices
when a debt is incurred for personal family and household
purposes. Unfair collection practices include harassment and
intimidation. Further, the Act provides limitations on
collection agencies from contacting third parties.
A creditor has several remedies available to collect the
debt. Once a judgment is entered, a creditor may attempt to
recover the money owed by having the debtor’s property
levied upon and sold. A creditor may also seek garnishment
of the debtor’s wages, or levy and execute on bank accounts.
Contracts may be written or
oral. Some contracts must be in writing in order to be valid
and binding, such as real estate sales, contracts that take
longer than a year to complete, and real estate leases for
more than year. To ensure the parties to the contract
understand their legal obligations, it is advisable to put
the contract in a written form.
Consumer Protection. At the
federal level, the Consumer Product Safety Commission and
the Federal Trade Commission provide protection to consumers
from deceptive defective or dangerous products by
establishing manufacturing standards, and in the advertising
and labeling of products.
The State of Minnesota and the federal government have
enacted laws providing certain consumer protection for the
purpose of consumer goods. These laws ban deceptive trade
practices, set standards for advertising, product quality,
and other consumer transactions.
Back To Top
Uniform Commercial Code. The
Uniform Commercial Code was created by statute and covers
commercial transactions involving the sale and leasing of
goods between businesses or between businesses and
consumers. It is applicable to commercial paper such as
checks, certificates of deposit, promissory notes, letters
of credit, and secured transactions. In business and
commercial transactions it is important to know and
understand the requirements of the Uniform Commercial Code.
Formation of a Business. A
wide variety of business forms are available to one
establishing a new business. In considering the form of the
new business, it is important to consider personal liability
and tax consequences as well as numerous other
considerations.
Sole Proprietorship. A sole
proprietorship is a business owned and managed by one
person. Profits are passed directly to the owner and taxed
at the owner’s personal rate.
Partnerships. A
partnership involves two or more owners. Generally, partners
are held personally liable for the business obligations. A
partnership has some tax advantage. The owner receives
profits from the business as income. Some partnerships have
limited liability protection.
Corporations. A
corporation is a separate legal entity. Owners or
shareholders have limited liability. Generally, corporations
insulate owner/shareholders from personal responsibility. A
corporation files its own tax returns and pays its own
taxes. Shareholders pay taxes on dividends received from the
corporation on their personal tax returns.
Limited Liability Companies and Limited
Liability Partnerships provide some tax benefits to
partnerships with some limited liability available to a
corporation.
Back To Top
A mechanic’s lien is a creature of statute applicable to
the building construction trade and related professions
engaged in services to improve real property. The mechanic’s
lien was created to provide security for the payment of
those whose efforts contribute to the improvement of real
property of another. The law provides a lien for any person
who performs engineering or land survey services with
respect to real estate, or who contributes to the
improvement of real estate by performing labor, furnishing
skill, material, or machinery. The work or material must
contribute to the improvement of the real estate or no lien
is allowed. The statute mandates specific requirements for
notification. Failure to comply with the statutory
requirement may invalidate the lien.
The construction contract between the contractor and owner
establishes the terms and conditions of the contract between
the parties with the construction specifications being
incorporated into the contract.
Back To Top
American With Disabilities Act.
(ADA)
protects qualified individuals with a disability from
discrimination and employment. The federal statute provides
a qualified individual is an individual with a disability
who with or without reasonable accommodations can perform
essential functions of the employment position held by the
employee. ADA defines disability to include a physical or
mental impairment that substantially limits one or more of
the major life activities of an individual. The Act does not
cover all employment settings. Generally, employers
employing 15 or more employees are covered by the Act. The
specific requirements for a covered employee are in the Act.
The Act provides that an employer has an affirmative duty to
provide a "reasonable accommodation" to a qualified
individual with a disability unless doing so would impose an
undue hardship on the employer.
Minnesota Human Rights Act.
(MHRA)
protects a qualified disabled person from discrimination in
employment. Employers with one or more employees are covered
by the Act. Employers with 15 or more employees are subject
to the statute’s reasonable accommodation provision. A
disabled person under MHRA is a person who has a physical,
sensory, or mental impairment which materially limits one or
more major life activities.
Workers’ Compensation. The
Minnesota Workers’ Compensation Act protects workers injured
in the course and scope of employment and provides they
recover indemnity payments including wage loss, medical
benefits, and rehabilitation benefits. Any person who
employs another individual to perform services for hire is
covered by the Act. Eligible employees include all employees
injured in the course and scope of employment subject to
several specific limited exceptions.
Family Medical Leave Act. The
Family Medical Leave Act (FMLA)
entitles certain qualified employees to leave employment for
a serious health condition of the employee or the employee’s
spouse, children or parents, birth and care of a newborn,
and adoption or foster care of a child. The statute provides
that employers with 50 employees or more for 20 or more
calendar weeks are covered by the Act. The leave is unpaid
unless the employee chooses to substitute accrued paid leave
for unpaid FMLA leave. The employer may require an employee
to substitute paid leave for unpaid leave under certain
situations.
Back To Top
A will is a written instrument
by which a person disposes of his or her property at the
time of death. A will can be modified anytime prior to death
as long as the person is legally competent.
A health care directive is a
document that provides a person (the principal) an
opportunity to express, in advance, the type of medical
treatment they wish to receive in the event they are unable
to make their wishes known. The health care directive must
be in writing, dated, state the principal’s name, and be
properly executed. It may include health care instructions
and/or a health care agent.
A power of attorney is an
instrument authorizing another person to act as one’s agent
or attorney. The authority of the attorney-in-fact may be
general or limited. The power of the attorney-in-fact may be
revoked by the principal during life and ceases at the time
of the principal’s death.