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BMGT 380 class notes 1/30 Chapter 1 the nature of law Young v Beck(defendant) Parents give car to son

n under their name and insurance policy o Only was allowed to use the car under certain circumstances Violated circumstances and was revoked privileges o One night drove car and egged houses and was driving reckless and hit Young Young sued son and parents under family purpose doctrine o Vicarious liability: liable based on the relationship Parents are negligent because they gave the car to him At lower courts o They ruled in favor of Young but Beck appealed the decision(at first level appeallet court) and they ruled in favor of Beck o They finally take the case to the Arizona Supreme Court and they appealed the lower court decision Defendants 2 arguments: o They argued to get rid of the family purpose doctrine therefore they wont be liable The court declined this Keeping the doctrine supplements the requirement that everyone should have insurance Not all states have the family purpose doctrine Court said most do though and there has been no statute passed to do otherwise No compelling reason to change the common law on this issue The precedence is good o The doctrine is misapplied to this case They said it was unreasonable because the son was disobeying his parents rules Court rejected this argument because if they agreed with the Becks, this would undermine the doctrine Arizona Supreme Court affirmed the lower courts rejection of the Becks argument Review Plaintiffs can sue for: Money damages, an injunction, or a specific performance(suing for contract) Saldano(Villanova) v Daniels(defendant Happy Jacko Saloon(bar where his father was sued) owner of circle inn) Vicarious liability Being sued because employee was charged with wrongful death Bars have substantial duties to their patrons

Saldonos son is suing for the wrongful death of his father o Just because theres a criminal suit doesnt mean there cant be a civil suit Many times it is impractical o Saldonos son does not want to bother with suing Mr. Villanueva(killer) 3rd Party was a good Samaritan o good Samaritan asked to either let him use the phone to call the police or if the bartender could call for him o the refusal of the bar to let the 3rd party to make the call or make the call themselves caused Saldonos fathers death Judge dismissed the case and said they could decide the case on the law and the son cannot go forward until he gets this ruling reversed o Ruling was reversed because when its an o Distinguished these facts from the typical coming to the aid case This a case of someone impeding the process of a 3rd party trying to come to the aid It was a business open during business hours and it was no cost to them to let the 3rd party to use their phone This decision gives Saldanos son the right to go to trial o In order to win, Saldanos son must prove that the probable response time of the police would be shorter than the time it took for Villanueva to shoot his father If it was shorter, then the bartenders acts caused the death of his father If the response time is typically longer than the time, then the bartender is not considered to be responsible Must be during normal business hours or private residence?

Felder(owner of the bar) v Butler Dram shop liability Argued that bar should have civil liability o 30 year precedent says no civil liability o State v ? Bar served Hawkins when she was visibly drunk When they go to court, the lower court dismissed the case At MD court of appeals, they dont approve her request to change the law o She argued that the law was outdated o Doesnt convince the MD courts to change the law Suggested that she should go to the legislature Decent: one or more judges who would do something different o Davidson wanted to change the common law Felder loses o Maryland court of appeals revisited this case in 2013

2/4 ATT Case o Freedom of information act Exceptions: National security, confidential info submitted to the government, matters related to personal privacy Often used by news media o ATT competitors wanted access to the settlement that was not public information The bureau reasoned that the statute didnt apply to ATT because they dont have personal privacy ATT appealed to US 3rd circuit to overturn the decision They said that the law applies to personal information of corporations Corporations have personal privacy and SCC doesnt have to release the information Supreme Court granted certiorari and reversed the case They said they did not have personal privacy as far as freedom of information act because of the difference between person and personal o Review Chapter 2 You need 2 things for a law suit: o subject matter jurisdiction you must be in the right court getting into state court is, it is harder to get into federal court you must have a matter that's of federal question, federal statute, federal actor(hit by a post truck) most cases in federal court involve citizens in different states litigating matters of state law you must have diversity of citizenship and claim must be worth more than $75k advantage of being in federal court instead of state court citizens of different states may encounter prejudice in the other state judges in states can be subject to political elections federal court has tougher rules for class action and different rules for jury selection o personal jurisdiction over a defendant(p28-29) personal service is a way of starting litigation a states legal process cant be invoked against someone in another state unless they get due process if the defendant has NO contact with a state they shouldnt be sued there if the defendant has MINIMAL contact within that state, they have enough minimum contact to satisfy the due process clause long arm statute: specify the requirements that will get you sued in another state you send the process to a foreign defendant there is no federal long arm statute only states

Knowles v. Modglin Modglin preformed the autopsy on Knowles(dead husband) Ablert Knowles died in California and his body was taken to Hems funeral home for autopsy and they flew the body from California back to Alabama(where hes from) o They mailed her the autopsy report o Hems funeral home sold her funeral processing services and solicited payment Mrs. Knowles read autopsy report and it didnt sound like her husband so they exumed the body o When they dig him up, they found that he was naked and improperly took care of the body o Wasnt embalmed and was buried in a body bag She wants to sue them in Alabama o She must establish that there was minimum contact with the defendants in Alabama The trial court granted Damons motion to dismiss and denied Hems Alabama Supreme Course got the case and they affirmed the lower courts decision o Said Damon did not have sufficient contact because they only mailed the autopsy report o Said Damon had sufficient contact because they sent the body and solicited payment for preparing the body and the casket Burger King They attended a training session in FL and mailed checks to FL o Headquarters was in Michigan They agreed to maintain BKs rigid standards for 20 years Contract said if any disputes arose they would be settled by Florida law They breached their contract with BK and continued to sell their merchandise o They were essentially selling bootleg whoppers BK wanted to sue them in Florida because of convenience for BK and inconvenience for the defendants o Lower court said they had sufficient contact in FL o Appeals court reversed the original decision o SC reversed the reversal original decision is still in tact voluntary acceptance of a long term relationship o relationships were highly structural and long term Hertz Case Hertz is incorporated in NJ and lower court says their principle place of business if California o They want to be tried in California State Court so they wanted to say their citizenship was in Cali o Use nerve center of corporate operation, therefore they are citizens of NJ, therefore they are going to federal court o Flesh out case Cases to recognize BK Other ones come from ch 3

2/6 Bombliss v. Cornelsen It is a civil wrong to interfere with someones possible future customers o You can sue for punitive damages The defendants initiated a phone call to Illinois and the court said this was not enough o They also sent papers to IL and this was also not enough o The website was on the middle of the spectrum and was not enough in combination with the first 2 o The chat room posts were the most important because the chat room postings were personally directed at the IL business and therefore had an effect on the business of them in IL This combined with the other 3 contacts was enough Subject matter jurisdiction Personal jurisdiction over the defendant Personal service Specific/ general types personal jurisdiction minimal contacts long arm statute Foreign Corporation/Alien Corporation Global Business Environment Handout Civil Procedure the plaintiff must prove his or her case with quality evidence and prove the criminal burden of proof in a civil trial, if you cannot afford an attorney, too bad pleas: the filing in a law suit notice pleading: put the parties on notice that theyve been sued and a broad outline of the lawsuit attorney client privilege you can keep out documents that are purpose of legal advice o the presence of a third party destroys the privilege it must be relevant to a claim or defense 2/11 Discovery if you have a situation where one party has withheld or destroyed evidence, they will be brought to a judge/jury and the evidence will be read to the benefit of the other party very few things you cant answer in a deposition o objection: if you think something isnt relevant or admissible

WWP v WWFS WWP is suing for an injunction and damages for consumer fraud WWFS appealed because of the expert witness and WWP said WWFS was unjustly enriched because people thought they were the same as WWP Court awarded WWP 1.7 mil and a permanent injunction o The figure was come to by using a forensic account WWFS wanted all of WWPs donor information o WWFS was upset they didnt present the checks and lower courts denied their requests and the upper courts affirmed this o They said their request was too broad and needed to make it more towards a narrower claim If there had been a counter claim filed, the request wouldve been different Just a burdensome request Forensic accountant: o Looked at memos and looked at WWFS spike in donations before and after the name change WWFS said that he was not an expert because he was doing simple calculations o The expert was used to make sense of a huge bunch of documents Motion of summary of judgment o Get from book and handout If you dont request a jury trial, your fate will be decided by a judge o Jury has to be drawn from a pool that is representative of the broad community Hearsay: outside court declarations not under oath in order to prove the matters attested o Typically keep this out of trials because its typically not reliable o Exception to the general rule(not letting it in): if it is a dying declaration Tends to be more reliable o Exception to the exception: if it was in immanent contemplation of death If you say it while you think you were dying This would be admissible Motion for new trial o Attorney misconduct Class action suits If there are common issues of law in fact among the class, they are grouped into one suit o Broader class of similarly issued people o They are then aggregated and represented by a small number of plaintiffs Normally settled pretty cheaply but attorneys get a huge cash cut Work better for contract and fraud issues Arbitration Binding or non binding You agree to be bound and there are very narrow grounds to get it overturned o Corruption of the arbitrator

Business to business arbitration New: business to consumer arbitration o If you have an issue with an employer, you will not go to court o Instead, you will petition before a arbitration panel You have to pay for the arbitration panel Save time and money because theres no discovery Lose or pay clause: if you lose the arbitration, you pay the costs Sometimes you can arbitrate a case before going to trial o Helps deflate inflated expectations before the actual trial

2/18 ch 6: Crimes and torts tort: civil wrong, not a breach of a contract; contemplates civil liability Torts spectrum o Intentional torts(crimes)negligence strict liability Lost income and future wages can be part of pain and suffering Punitive damages: not intended to compensate tort victims for their losses o Designed to punish flagrant wrongdoers and deter them from engaging in similar behavior in the future o Most commonly issued in intentional torts o Very seldom in negligence and strict liability torts

Mathias v. Accor Economy Lodging (Motel 6) Plaintiffs knowingly disregarded clear evidence of a bedbug infestation problem o Sought punitive and compensatory damages o Were granted $186,000 in punitive and $5,000 in compensatory damages Defendant appeals o Arguments: punitive damages were too high Said that the SC said only single digits times compensatory(10) They allowed 36 times compensatory because it showed willful and wanton conduct Also, this was done to reduce the profits they had made in the past while selling rooms that were infested Also these would be equal to damages if they had been fined Battery: the intentional and harmful or offensive touching of another without his consent Contact is harmful if it produces bodily injury Q2 2/20 Element of a tort: what does it take for a plaintiff to prove his or her case

The intent to make someone apprehensive of a potential battery is enough for accidentally battery Howard Vs Wilson o Statute of limitations o You can only sue for battery within a year Some charge for negligence once the statute has run out o No such thing as a negligent intentional act Transferred intent: law presumes the intent to batter one person is transferred to the person that you accidentally batter o If you mean to hit one person but hit someone else, they can charge you with battery Defenses to battery: o You can consent to be battered, you cannot consent to be killed Ex: prize fighting o Self defense: You can use deadly force to defend against deadly force You cannot use deadly force to protect your property As a matter of law, theres no retreat from a gun Intentional infliction of emotional distress: children calling innocent families in the middle of the night threatening to hurt them

Roach v Stern Howard Stern called Roach a space lesbian Once Roach died, her sister had her cremated and had her ashes given to a friend(Hayden) but there were still chunks of bones out o Stern convinced Hayden to bring ashes onto show o Her brother called and told show not to do it o They made rude comments on the show about how there were chunks of bones in the ashes Her brother sued for intentional infliction of emotional distress o Sued stern, his broadcast company, and Hayden He likes to ask questions about which state of the process the case is in Lourcey v. Estate of Scarlett Lourcey works for the postal service and saw a woman having a seizure so she called 911 o Her husband proceeds to kill wife and then turns towards Lourcey with the gun and then turns and shoots himself The trials courts dismissed her claim, the appeals court reversed this, and the state supreme court affirmed the reversal Incident caused her stress and related problems Tennessee law requires the tort to be directed at the plaintiff o Satisfied when Scarlett looked at her while holding the gun and after shooting someone

Pope v Russell To the security guard, it seemed like Pope was shoplifting from the grocery store Security guard asked her to lift up her shirt as she was leaving the store and she said this was racial profiling She never tested the outlines of her confinement She said it felt like she had to stay The cops come and look in her shirt and nothing was there and she left PA law granted the defendant the motion for summary law Faniel v Chesapeake and Potomac Telephone Co. Faniel said she was falsely imprisoned in the van on the way home The phone company moves for judgment not withstanding because Faniel couldnt make out that she was physically restrained in the vehicle o She made no expression to get out of the car o She argued that even if she did agree to go to her house, she didnt agree to the detour Court said even though she didnt consent, she still never requested to get out of the car Defamation: Liable: written or printed. Anything committed to permanent form o Damages are presumed because statements are in a permanent form Slander: verbal o You have to prove damages because slander is transitive o 4 types are exceptions where you dont have to prove damages: slander per say finish o CBC p 203 read lightly 2/25 chapter 6 contin You cant liable a group o As a member of a group you cant sue as a plaintiff Publication must be widespread but there are exceptions o The person who repeats a false and defamatory statement is liable for defamation o You can sue publishers but not distributors(Barnes and noble) Unless a chat board has substantial role in creating the content, the chat board is not responsible for liable, the poster is. o Neutral boards arent liable Absolute privilege: cant sue for defamation Invasion of privacy o Intrusion on solitude or seclusion o Public disclosure of private facts Doesnt have to be false o False light publicity o Commercial appropriation of name or likeness Private nuisance

o Not associated with physical matters o Involves some interference with the plaintiffs use and enjoyment of her land o Does not involve any physical invasion of property Chapter 7 Negligence and Strict Liability Proving negligence o Defendant owed a duty to the plaintiff o Breached that duty o Defendants break was the actual(but for) cause and the proximate (legal) cause of plaintiffs injury Actual(but for cause) injury wouldnt have occurred but for the facts of the case Defendants cause is responsible for the injury to the plaintiff It is social policy to limit the liability of defendants o Intervening force/cause comes in and makes the original defendant no longer liable Stackler v Ford Go read Intervening superseding cause breaks the chain Foreseeability o You premises liability Williams v Cingular Wireless(didnt read) o Cingular filed a motion to dismiss and the motion was granted o On appeal, the decision was affirmed o Cingular doesnt owe her duty because there was no relationship between the two o Williams wasnt a Cingular customer o Court concludes drivers frequently use cellphones without having accidents No foreseeability that they would have accidents due to the sale of a cell phone Currie v Chevron (didnt read) o Jury said she couldve avoided the accident o Chevron was the one at fault but she bared some of the responsibility because she didnt make efforts to get away o Jury said the conduct of the clerk created a climate of danger o Chevron was liable because of the scope of its employees 2/27 Martin v Walmart Slipped on pellets in a walmart aisle in the sporting goods section There were 2 people assigned to patrol the aisles but only one person was there The floors made it hard to see a small pellet Went to federal court using Missouri state law Know actual knowledge (of hazards) and constructive knowledge(of hazards) France v US

o We sent France seeds and fertilizer in an effort to get them to vote anti communism o The fertilizer was considered a fire hazard, not an explosive hazard o People who got burned tried to sue the US The US gave them money and made them relinquish their right to sue the French government o French said they were liable for the fire because they were negligent Youre liable only for the natural and probable consequences, not freak accidents Res Ipsa Loquitur o Prove defendant had control over what caused the harm o The harm that occurred would not ordinarily occur in the absence of negligence o The plaintiff was in no way responsible for his own injury Negligence defenses o Any fault on the part of the plaintiff prevents them from recovering anything This is an old law o New system is that judge assigns a percentage of fault In mixed states, if plaintiff is under 50% at fault, then the fault can be split between the two Over 50% means the plaintiff recovers nothing o Pure states will let plaintiffs recover even if theyre 50% at fault o Defense of assumption risk : you assume the risk of your conduct and you are responsible for your injuries

3/6 ch 20 handout negligence and strict liability for defective products are based on stronger societal duties because its a contract, a seller can limit their liability under warranty liability Strict liability for defective, unreasonably products o 2nd restatement of torts1965 manufacturing defect/negligence failure to warn defect/negligence design defect/negligence

Liriano v Hobart you don't have to warn about obvious and open notorious dangers your duty to warn that there is a safer way if you misrepresent your product, thats a tort(portraying unhealthy food as healthy food) 3/11 Hong v Marriott Hong sued Marriott claiming permanent injuries and great physical and emotional upset from biting into what she thought was a worm Hong sued Marriott for 500k in federal district court under the implied warranty of merchantability

Expert testimony said the object was not a worm and was probably one of the chickens major blood vessels or its trachea o Marriott moved for summary judgment b/c it said the case involved no disputed issues of material fact and that there was no breach of the implied warranty of merchantability o They said that there could be no recovery unless the offending item was a foreign object(not part of the chicken) In previous cases, recovery had been denied for cases where the item was reasonably to be expected in the dish by a reasonable consumer o The court cannot conclude that the trachea in chicken is to be reasonably expected o The jury has to determine whether a piece of fried chicken is merchantable if it contains an inedible part of the chicken Summary judgment denied

Simo v Mitsubishi P suffered severe injuries when the Montero Sport rolled over and he was stuck by a FedEx truck He sustained injuries that left him with $277,000 in medical bills Filed a strict liability lawsuit in the US district court for the district of SC against Mitsubishi o Claimed car was unreasonably dangerous because its center of gravity was to high causing it to roll over in certain circumstances on flat dry pavement David Bilek said that had the car been wider and a few inches shorter, the untripped rollover danger wouldnt be present o A reasonable manufacturer would have tested its vehicles to prevent this He argued that designing a vehicle that would not easily flip was not difficult McCabe said that Simo couldve play 15 years in Europe and make from 3-10 million D moved for a directed verdict at the close of all evidence o Denied and allowed claim to go to jury o Jury returned verdict of $7 mil in compensatory damages and the judge reduced it to $6 mil b/c of damages he had already received against other parties D appealed to the US court of appeals Ds argument o Simo failed to establish the existence of an alternative feasible design and court erred in denying its motion They disagree P must show He was injured by the product The injury occurred because the product was in a defective condition The product at the time of the accident was in essentially the same condition as when it left the hands of the defendant o D contends that the district court erred in admitting expert testimony from Bilek They disagree

He was experienced and had specialized knowledge D said Bilek was not qualified to offer expert testimony concerning whether his notion of designing the car to be lower and wider could be feasibly implement He didnt try to offer this testimony? o Court erred in admitting McCabes testimony b/c it violated the standard of admissibility Court said that it was within its discretion in admitting the testimony Damages did not require certainty about the future Only requires that damages are not based wholly on speculation and conjecture Sufficient if there is a certain standard or fixed method by which profits sought to be recovered may be estimated and determined with a fair degree of accuracy District courts judgment in favor of Simo affirmed

Royal Indemnity Co v Tyco In a 2003 fire, Tycos sprinkler heads failed to activate and Royal(the insurer) paid for damages caused by the fire Claimed sprinklers failure to activate constituted a breach of an express warranty of future performance o Stemmed from a technical data sheet that Tyco provided at installation o Breach created because corrosion had developed on parts of the sprinkler heads and the corrosion caused the sprinkler heads not to activate Court rejected the contention that the technical data sheet contained an express warranty of future performance Theres no evidence showing that it became part of the basis of the bargain so that it may be an express warranty of future performance o Language just says how the sprinkler head operates o Statute runs 4 years from where it was discovered o Tyco doesnt promise how long the heads will operate properly If tyco wished to show any further warranty it would have added additional language Trial courts dismissal of express warranty claim affirmed Exam 1 3. how is it battery if they said that they meant no harm Super fine product, inc. files a lawsuit against global software corporation. Jay is a witness for super fine. Kim is a witness for global software. Super fine may direct interrogatories to: Global software only Peter could successfully sue sally for battery because the consent given by peter was for hip surgery 3/11 express warranties are created by the seller

implied warranties are imposed by law and can be limited by the seller dramatically o you can disclaim them but you must give them the prominence from when you created them fungible good o a good that is sold based on a commodity description o food thats sold in a resteraunt or for takeout or delivery is considered a good not merchantable if there is a foreign substance in your food merchantable if it was a natural substance

3/25/14 Lambert v Barron Lambert was the chairman of the state board and Barron was a construction contractor Barron had problematic construction projects Lambert said while standing on the runway, he and Barron contracted for Lambert to provide consulting service and his minimum contract is for one year In late 200 lambert billed barron for 34,100 o Barron contested saying that he remembers lambert showing him a list of people who paid him 3100 but did not want to be on that list and also had not asked for any advice from lambert since Lambert sued for breach of contract and it was dismissed and he appealed For a contract to be valid o It can be made orally, in writing, or by action or inaction that under the circumstances is clearly indicative of consent Accepted that he never orally accepted the offer and there was no writing to reflect consent o A fimly setting or close riendship requires the finder of fact to determine the offerees acceptance of an contract and the offerors reasonable belief that the contract has been formed Concluded that there was no clear agreement o Absent of direct oral or written acceptance by barron, lamberts proof of the contract rests on is receipt of certain documentation of Barrons troubled construction projects and invoices for consulting fees sent to Barron Barron provided lambert that documentation without any indication that his friends review of the projects would require compensation Further documentation was provided and transmitted by fax without any request for specific services Barrons attorney never consulted lambert and lambert never responded in writing to Barron regarding any substance concerning the status of the construction project disputes during that time friend helping friends

Aceves v US bank Aceves got a loan from option one mortgage to buy a house secured by a deed on her home for $845,000 and the rate became adjustable after 2 years In 2008, option one transferred its interest to the US bank and she could no longer afford the payments o She filed for bankruptcy under ch 7 which imposed an automatic stay on foreclosure proceedings When she did this, the bank said they would work with her on mortgage reinstatement and loan modifications o She intended to switch to a ch 13 which would allow her to reinstate the original loan paments, pay the arrears over time, avoid foreclosure, and retain the home She forwent this because of the banks offer The bank motioned to lift the stay so it could proceed with the foreclosure and she did not oppose the motion and did not seek relief under ch 13 On 12/9, although no one contacted aceves, her house was put up for public auction in a month o When she contacted them, she was told a negotiator would contact her Didn't contact her lawyer until the day before it was due to be sold New bal 965k and montly payments of 7200 o She did not accept this offer On 1/9/09 her house was sold and she had 3 days to vacate She filed suit against the bank including a claim of promissory estoppel o She said bank never inded to work with her to reinstate and modify the loan Promised only to do so that she would forego bankruptcy proceedings and they could proceed in the foreclosure Bank filed a demurrer and the court ruled in favor of the bank and Aceves appealed Elements of promissory estoppel 1)clear and unambiguous promise Her estoppel claim is based on a promise to negotiate in an attempt o reach a mutally agreeable loan modification 2) reliance on the promise Relied on the promise by declining to convert her ch 7 to ch 13 not relying on her busbands financial assistance by not opposing their motion to lift bankruptcy stay 3) reasonable and foreseeable reliance US bank expected her to rely on the promise and it was foreseeable that she would do so They promised to help her reinstate and modify the loan o Bank provided her with a compelling reason to opt for negotiations with the bank instead of seeking bankruptcy relief 4) detriment Sacrificed the right to pay back reasonable time(max 5 years) to make up the arrears Reversed in favor of Aceves on her promissory estoppel claim

3/27 Lucy v. Zehmer -Zehmers subject intent doesnt matter Leonard v Pepsico Q3,4,10 Ch 10 and 11 on tues 4/1 common law contracts: must be mirror image in all terms if anything is different it is considered a counteroffer EXAM Cutoff for exam is Ch 13 Economic direst Warranty part of ch 20 then 9-13 Ch 7 247-250 Ch 20 Ch 9-13 Primarily contracts Warranty parts of ch 20 Tort part of ch 20 is very low emphasis(2-3 qs) Good faith wont be extensive; recognize when you see it Only know UCC section 2207 by number EXAM 3 MATERIAL STARTS HERE 4/22 usury: above the legal limit