MINNESOTA LEGAL TERMINOLOGY

 

Alternative Dispute Resolution

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.
 

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Defamation

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.


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Invasion of Privacy

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.


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Fraud and Misrepresentation

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.

Assault

An 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.


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Battery

Battery involves an unlawful intentional touching of another.

 

Negligence

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.


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Liquor Liability

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.


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Medical Malpractice

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.

 

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Animal Liability

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.


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Ice and Snow

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.


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Recreational Use Statute

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.

 

Products Liability

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.


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False Imprisonment

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.

 

Warranties

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.

 

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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.

 

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Business and Commercial Law

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.


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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.


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Mechanic’s Lien

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.


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Employment

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.


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Estate Planning

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.


 

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