The Sheriff of Polk County employed Prison Health Services (PHS) to provide total health care services for inmates and detainees housed in the Polk County Jail.In 1992, employees of the Sheriff's office booked Cherry into the jail to begin serving a 30-day sentence for driving under the influence of alcohol.At the time of his incarceration, Cherry informed the PHS medical staff that he consumed approximately a case of beer daily.Over the next two days, Cherry repeatedly requested medical attention for symptoms of alcohol withdrawal.Cherry's wife notified a Sheriff's office employee that her husband had a history of delirium tremens during alcohol withdrawal and that he was in immediate need of a doctor's attention.About two hours later, the inmates sharing Cherry's cell asked the Sheriff's office to check on Cherry's condition.The employees found Cherry in his cell hallucinating and shaking violently.The employee notified PHS Nurse Gill, who examined Cherry and reported his symptoms to PHS Nurse Smith.Nurse Smith requested that Cherry be sent to the infirmary for observation.At the infirmary, a Sheriff's office employee, with the knowledge and acquiescence of Nurse Smith, shackled the still-hallucinating Cherry to his bed.The next morning, while still suffering from hallucinations associated with delirium tremens, Cherry either walked or jumped off the end of his bed.Because the leg shackle did not allow his feet to advance beyond the top of the bed, Cherry landed head first on the concrete floor.Cherry died five days later as a result of his injuries.Cherry's estate filed suit against PHS, Nurse Smith, and the Sheriff's office for breach of contract, alleging that Cherry was a third-party beneficiary to the contract between the Sheriff and PHS.

Answer and discuss the following questions in your first post:

• Do you thinkCherry was a third-party beneficiary? Why or why not?Be sure you discuss the different types of beneficiaries.

Answer and discuss the following questions in your remaining posts:(As always, a minimum of 3 posts is required)

• Do you think Cherry's estate will win its lawsuit?Why or why not?

BUS LAW I CHAPTER 17 ( RIGHHTS FOR THIRD PARTY)

Creditor Beneficiaries

If the promisor's performance is intended to satisfy a legal duty that the promisee owes to a third party, the third party is a creditor beneficiary. The creditor beneficiary has rights against both the promisee (because of the original obligation) and the promisor.For example, Smith buys a car on credit from Jones Auto Sales. Smith later sells the car to Carmichael, who agrees to pay the balance due on the car to Jones Auto Sales. (Note that Smith is delegating his duty to pay toCarmichael, and Carmichael is assuming the personal obligation to do so.) In this case, Jones Auto Sales is a creditor beneficiary of the contract between Smith and Carmichael. It has rights against both Carmichael and Smith if Carmichael does not perform.

the fact that a nonparty may expect to derive advantage from the performance of a contract, the general rule is that no one but the parties to a contract or their assignees can enforce it. In some situations, however, parties contract for the purpose of benefiting some third person. In such cases, the benefit to the third person is an essential part of the contract, not just an incidental result of a contract that was really designed to benefit the parties. Where the parties to a contractintendedto benefit a third party, courts will give effect to their intent and permit the third party to enforce the contract. Such third parties are calledthird-party beneficiaries.

Intended Beneficiaries versus Incidental Beneficiaries

For a third person (other than an assignee) to have the right to enforce a contract, she must be able to establish that the contract was made with the intent to benefit her.A few courts have required that both parties must have intended to benefit the third party. Most courts, however, have found it to be sufficient if the person to whom the promise to perform was made (thepromisee) intended to benefit the third party. In ascertaining intent to benefit the third party, a court will look at the language used by the parties and all the surrounding circumstances. One factor that is frequently important in determining intent to benefit is whether the party making the promise to perform (thepromisor) was to render performance directly to the third party.For example, if Allison contracts with Jones Florist to deliver flowers to Kirsch, the fact that performance was to be rendered to Kirsch would be good evidence that the parties intended to benefit Kirsch. This factor is not conclusive, however. There are some cases in which intent to benefit a third party has been found even though performance was to be rendered to the promisee rather than to the third party.Intended beneficiaries are often classified as eithercreditorordonee beneficiaries. These classifications are discussed in greater detail below.

A third party who is unable to establish that the contract was made with the intent to benefit her is called anincidental beneficiary. A third party is classified as an incidental beneficiary when the benefit derived by that third party was merely an unintended by-product of a contract that was created for the benefit of those who were parties to it. Incidental

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beneficiaries acquire no rights under a contract.For example, Hutton contracts with Long Construction Company to build a valuable structure on his land. The performance of the contract would constitute a benefit to Keller, Hutton's next-door neighbor, by increasing the value of Keller's land. The contract between Hutton and Longwas made for the purpose of benefiting themselves, however. Any advantage derived by Keller is purely incidental to their primary purpose. Thus, Keller could not sue and recover damages if either Hutton or Long breaches the contract.