BLAW 639Spring 2019

Assignment No 1.

Q1.Donald and Gloria Bowden hosted a cookout at their home in South Carolina, inviting mostly business acquaintances.Justin Parks, who was nineteen years old, attended the party.Alcoholic beverages were available to all of the guests, even those who, like Parks, were between the ages of eighteen and twenty-one.Park consumed alcohol at the party and left with other guests.One of these guests at the party detained Parks at the guest's home to give Parks time to "sober up."Park then drove himself from the guest's home and was killed in a one-car accident.At the time of his death, he had a blood alcohol content of 0.29 percent, which exceeded the states limit for driving a motor vehicle.Linda Marcum, Parks mother filed suit in a South Carolina State court against the Bowdens and others, alleging that they were negligent. Is she correct? Discuss.

Q2.While driving under the influence of alcohol, Joe runs off the road and wrecks his car.As the car turns over, the protruding door latch hits the ground and the door flies open.Joe who is not wearing his seat belt is thrown from the car and is badly hurt.Joe sues the car manufacturer, asserting that the door latch was defectively designed.Discuss the legal issues raised by these facts.

The case above is the true question below are examples

Example and instructions:

ANALYZING A CASE

When presented with a case problem to analyze, use the following format:

1)Briefly summarize the facts of the case- restating the facts in a clear and concise manner ( You must understand the facts of a case before you can attempt to resolve it)

2)Identify the major issue(s) that flow from the facts (Legal issue).Sometimes this process indicates the various avenues of litigation open to the plaintiff.For instance, the issues identified can suggest that both Negligence and Strict Liability may be pursued.

3)Identify the elements of each issue (Determine the relevant elements of each issue.For instance Negligence has: Existence of Duty of care, Breach of that Duty, Proof of Injury and Causation or Proximate Cause).

Sometimes the elements of the Legal Issue may not be very apparent or obvious.In that case DEFINE or DESCRIBE the issue as best as you can according to the text.

4)Discuss the elements of each issue as they apply to the case or apply the description to the facts.

5)Apply the relevant law (Make a decision based on the relevant law).

6)Cite a supporting case (As this is common law, briefly state the facts of the supporting case and show how it can serve as a precedent to your case problem).You can find cases at : Findlaw.com, Westlaw.com, Lexisnexis.com, Lawnix.com, Lawteacher.net. Google Scholar, or even Wikipedia, the online Encyclopedia.

Example:

Sample Assignment and Answer Following Case Analysis Method

A.Duty to Business Invitees

Flora Gonzalez visited a Wal-Mart store. While walking in a busy aisle from the store's cafeteria toward a refrigerator, Gonzalez stepped on some macaroni that came from the cafeteria.She slipped and fell, sustaining injuries to her back, shoulder, and knee.She filed a suit in a TexasState Court against Wal-Mart, alleging that the store was negligent.She presented evidence that the macaroni had "a lot of dirt" and tracks through it and testified that the macaroni "seemed like it had been there awhile."What duty does a business have to protect its patrons from dangerous conditions? In Gonzalez's case, should Wal-Mart be held liable for a breach of that duty? Why or Why not? [Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934 (Tex. Sup. 1998)]

B.Tort Theories

The Yommers operated a gasoline station. In December 1967 their neighbors, the McKenzies, noticed a smell in their well water, which proved to be caused by gasoline in the water.McKenzie complained to the Yommers, who arranged to have one of their underground storage tanks replaced. Nevertheless, the McKenzies were unable to use their water for cooking or bathing until they had a filter and water softener installed.At the time of the trial, in December 1968, they were still bringing in drinking water from an outside source.The McKenzies sued the Yommers for damages. The Yommers claimed that the McKenzies had not proved that there was any intentional wrongdoing or negligence on their part and that therefore they should not be held liable. Under what theory might the McKenzies recover damages even in the absence of any negligence in the Yommers' part? Explain [Yommer V. McKenzie, 255 Md. 220, 257 A.2d 138 1969)]

1. Misrepresentation

In selling a house, Matt tells Ann that the wiring fixtures and appliances are of a certain quality.Matt knows nothing about the quality, but it is not as specified.Ann buys the house.On learning the true quality, Ann confronts Matt.He says he wasn't trying to fool her; he was only trying to make a sale.Can she rescind the deal?Why or why not?

ANSWERS

A.Duty to Business Invitees

1)Flora Gonzalez injured her back, shoulder, and knee when she slipped and fell on some macaroni that was on the floor of a busy aisle inside of a Wal-Mart. Claiming that the store was negligent, she filed a suit against the store in a Texas State Court.

2)From these facts, the plaintiff has cause and may pursue a suit of negligence against the company for the compensation of her sustained injuries.

3)The elements of negligence include the defendant owing a duty of care to the plaintiff, the defendant's breach of that duty, a legally recognizable injury suffered by the plaintiff, and proof that the plaintiff's injury was caused by the defendant's breach of duty.

4)Existence of Duty of Care-Retailers and other firms that explicitly or implicitly invite persons to come onto their premises are usually charged with a duty to exercise reasonable care to protect their business invitees.

Breach of Duty-A court would hold that a business owner is negligent if they failed to exercise a reasonable degree of care in protecting the store's customers against foreseeable risks about which the owner knew or should have known. Flora presented evidence that the macaroni had "a lot of dirt" and testified that it "seemed like it had been there awhile." A foreseeable risk that a patron might slip on macaroni coming from the cafeteria and be injured should have been realized by the owner who then had a dutyto avoid it and/or warn their customer's of the risk.

Proof of Injury-To recover damages, the plaintiff in a tort lawsuit must prove that the suffered a legally recognizable injury. Since Flora sustained back, shoulder, and knee injuries, the proof exists in this case.

Causation or Proximate Cause-If an injury would not have occurred without the defendant's act then there is causation in fact. Proximate cause exists when the connection between an act and an injury is strong enough to justify an imposing liability. If Ms. Gonzalez had not stepped on the macaroni she most likely would not have slipped, fallen, or gotten injured. The store should have been aware of the debris and taken exercised care to warn its customers and then cleaned it up.

5)Based on the facts of the case, the store should be held liable for its negligence and Flora should be awarded damages for her injuries.

6)Supporting Case-Martin v. Wal-Mart Stores, Inc. Harold Martin was walking past a display of shotgun shells when he slipped on loose shells and fell. Mr. Martin permanently lost the sensation and control of the front half of his left foot and he filed a suit against Wal-Mart seeking damages for his injury. Both a federal district court and the U.S. Court of Appeals for the Eighth Circuit found in favor of the plaintiff on the basis that the store had actual or constructive notice of the debris in the aisle and was therefore liable.

B.Tort Theories

1)The McKenzies, who are neighbors to the Yommers' gas station, sued the Yommers after their well water became contaminated by gasoline which had escaped from a defective or broken underground storage tank. The Yommers claim that the McKenzies fail to prove that they were negligent or that there was any intentional wrongdoing so they should not be held liable.

2)In this case, although neither an intentional tort nor negligence may be pursued, strict liability remains a possible avenue for the plaintiffs to attempt to recover compensation.

3)Strict liability by definition is liability without fault. One application of strict liability is that of abnormally dangerous activities which exists in this case. The three characteristics of these activities are that the activity involves potential harm of a serious nature to persons or property, involves a high degree of risk that cannot be completely guarded against by the exercise of reasonable care, and it is not commonly performed in the community or area.

4)The Yommers have taken on a business that does not seem to be common in the area, especially being located so closely to residents of the community. The activity of storing gasoline underground near wells does involve potential harm to persons or property and it also cannot be guarded by the exercise of reasonable care because harmful accidents still have the potential to occur since the gasoline is stored out of reach.

5)In reviewing the facts of the case and applying the characteristics of abnormally dangerous activities under strict liability, I think the verdict should rule in favor of the plaintiffs. The McKenzies should receive compensation and be awarded damages for the occurrence.

6)Supporting Case-The case of Rylands v. Fletcher where the Rylands constructed a reservoir on their land which broke through a filled-in shaft and flooded the passageways of an active coal mine owned by Fletcher. Fletcher sued and the Rylands were held liable on the basis of strict liability.

1. Misrepresentation

1.Matt and Ann are involved in a real estate sale where Matt sells a house to Ann. Matt had told Ann that the wiring fixtures and appliances were of a certain quality, however in truth Matt does actually not know about the quality. After the sale Ann discovers the quality of the wiring fixtures and appliances were not of the quality that Matt had indicated prior to the sale.

2.In this case Ann may seek to rescind the sale or seek damages due to Matthew's fraudulent misrepresentation and claim material breach of contract.

3.In contract law, fraudulent misrepresentation refers to misrepresentation that is consciously false and is intended to mislead another. Typically there are four elements involved in fraudulent misrepresentation: 1) A misrepresentation of material fact must occur, 2) there must be intent to deceive, 3) the innocent party must justifiably rely on the misrepresentation, 4) to collect damages a party must have been harmed as a result of the misrepresentation. In most cases the innocent party can rescind the contract and be restored to his or her original position or enforce the contact and seek damages for any harms resulting from the fraud.

4.A misrepresentation of material fact did occur when Matt represented that a certain quality of wiring fixtures and appliances actually existed when they did not. 2) Intent to deceive can be demonstrated as Matt had hoped that Ann would rely on this information to purchase the property.3) Ann did rely on the information presented by Matt to make the purchase 4) Subsequent to the purchase, Ann discovered that the fixtures and appliances were not as represented by Matt and hence suffered damages as she was now saddled with property that needed to be repaired.

5.Based on the above discussion, one can conclude that Matt fraudulently misrepresented the sale and therefore the sale should be rescinded or Ann be paid damages in other to make the necessary repairs.

6.Supporting Case- Reilly v. Gottleb, 43 Wash. 9. Riley purchased land from Gottleb. Gottleb made representations of the land purchased that turned out to be false. Because these representations were not simply matters of opinion but of fact, the Supreme Court of Washington found in favor of Riley, determining that the purchaser is entitled to a rescission of the saleon the ground of fraud and false representations.