LEB 320F Midterm #2

Corporate social responsibility (CSR)

"Doing well by doing good." Sustainable development - "meets the needs of the present without compromising the ability of future generations to meet its needs." Agents of capital view = shareholder value Agents of society view = social contract International norms

tort case for negligence - duty

(can be tricky) - Is there a duty? - general rule: we each owe a duty to every person who we can reasonably foresee might be injured by our carelessness. See Otis Engineering Corp. v. Clark Duty of landowners: invitee vs licensee vs trespassor Cannot take lethal action to defend property.

what can you put in a contract and what is negotiable in a contract?

(virtually) anything

tort

- "wrong" in French - any non contractual civil wrong committed upon the person or property of another. - any wrong excluding breaches of contract and crimes.

How to get employees to act ethically

- Hire ethical people - the most important!!!!! Problem - How do you determine who is ethical? Companies use psychological testing Example: Whole Foods - 60 day probationary period and team evaluation - Treating employees well (moral spillover) - Code of ethics - Ethics Training - Whistleblowers - Compensation

Take your victim as you find them

- brittle bones - you have to pay up no matter what - Walmart case is false imprisonment, gave consent but not exactly genuine

Employer's Right to Discharge

- can fire you for no reason and you can quit for no reason - but cant violate title 7 (sex, age, religion etc)

Two forms of discrimination (eeoc) claims you can make:

- disparate treatment - disparate impact

Voidable Contracts - lack of consent category includes

- fraud, mistakes, duress and undue influence

company insurance vs workers comp

- if you fall at restaraunt as a guest they will use insurance - if you fall at restaraunt as a worker they will use workers comp

exceptions in which minors are bound by contracts

- necessities (food, lodging, clothing etc) - common carriers (airlines, trains busses etc)

fireworks example

- people pushing people onto train, suitcase falls fireworks explode entire thing shakes and someone falls and dies or something this wasn't reasonably foresable that this would happen. This is factual causation or "but for" causation or entire seattle story is also but for causation

FMLA (Family and Medical Leave Act)

-Grants 12 weeks unpaid job protected leave to men or women after birth of child, adoption, or illness in immediate family -Only affects businesses with 50+ employees

duty of landowner

-Invitee - coming over for benefit of owner or occupier. may sue under ordinary rules of negligence -Licensee - come over for their own benefit. salesman or neighbor. may sue for hidden dangers or intentional tort -Adult trespasser - no duty of care, they had no right to be there. may sue for intentional tort only

intentional tort - trespass

1. affirmative conduct by the defendant 2. with intent to enter onto realty in the possession of another 3. resulting in actual entry

duress

1. any wrongful act of one person that compels a manifestation of apparent assent by another to a transaction without his violation 2. any wrongful threat of one person by words or other conduct that induces another to enter into a transaction under the influence voidable ex: held at gunpoint

torts - in order to prove negligence case you have to prove the following:

1. duty 2. breach 3. causation 4. damages

intentional tort - false imprisonment

1. intentionally confined or restrained plaintiff 2. without the plaintiffs consent 3. without lawful authority or in an unreasonable manner 4. "injured the plaintiff can be false imprisoned anywehre

Requirements of a Valid offer

1. manifestation of intent to contract 2. a reasonably definite indication of what the offeror and offeree are to do 3. communication of the proposal

what is required for a valid contract?

1. offer 2. acceptance 3. considerations

Brown v. PCOM

?

exculpatory clause

A clause that releases a contractual party from liability in the event of monetary or physical injury, no matter who is at fault. negligence is covered - im a horseback riding place and one of my saddles breaks and you fall off horse - this is fine gross negligence or recklessness is not okay - im a skydiving place and im supposed to check parachutes twice a week and only do it twice a month and someone dies

Valid Contract

A contract in which all the required elements are present. It is enforceable against both parties.

Promissory Estoppel

A doctrine that applies when a promisor makes a clear and definite promise on which the promisee justifiably relies; such a promise is binding if justice will be better served by the enforcement of the promise. engagement ring. man can ask for it back bc its a promise you will marry me. if given on holiday, ring could be considered gift and not have to be given back

Pure Comparative Negligence

A plaintiff can recover whatever portion of its damages are attributable to the defendant's negligence (e.g., plaintiff 99%; defendant 1%) damages are $100 but you are responsible for 70% negligence, you only get $30

Comparative Negligence

A plaintiff's own negligence that proportionally reduces damages recoverable from a defendant. pure comparative negligence modified comparative negligence

Most common way an offer is terminated

A rejection and then a counter offer. this is negotiating. you are now the offerer and they are now the offeree

Constructive Discharge

A termination of employment brought about by making the employee's working conditions so intolerable that the employee reasonably feels compelled to leave. make your life a living hell, could be form of sexual harrasment

Void Contract

According to the law, these contracts never existed at all. This can happen for 2 reasons: One of the parties is wholly incompetent at the time of the contracting (Ex. those who are legally declared insane) The purpose of the contract is totally illegal (Ex. criminal - selling drugs)

ADEA

Age Discrimination in Employment Act for 40 or over age must be motivating factor

what is a contract?

An agreement that the court will enforce Requirements: Offer, Acceptance, Consideration

Types of intentional torts

Assault and battery, false imprisonment, defamation, trespass

intentional tort example - katko v briney - trespass

Because spring gun was set in unoccupied house, D was not privileged to use deadly/serious bodily harm force since life is more valuable than property. fruit jar case

Disparate impact - BFOQ

Bona fide occupational qualification - Does not apply to RACE it applies to gender. lets emplyers have a reason to discriminate gender ex: need male boxer model, female L&D nurses, mens bathroom attendant hooters is technically breaking the law bc wont hire male servers

Employment Practices Liability Insurance (EPLI)

Company will not defend harassers; however, sometimes obtains EPLI to mitigate sexual harassment claims impact. Designed to cover sexual harassment claims. Pay monthly premium to insurance company.Insurance company defends them.Mr.Q did not purchase this and none of his clients have purchased this. SLIMEY

corporation is not a moral agent

Corporation is like a robot. The Corporation is merely an aggregation of legally binding documents such as a state charter and the corporate bylaws, organizational charts, operating procedures, and customs. The human cogs in this machine are role players. Moreover they are replaceable and often virtually interchangeable. Rule govern activities in impersonal operating procedures prevent the application for even the hint of more responsibility social only duty is to shareholders

epli vs workers comp

EPLI insurance is for companies that think they have a decent chance of being sued for sexual harassment / workers comp is for on the job insurance for employees

UCC (Uniform Commercial Code)

Governs the sale of goods. Goods are tangible, movable objects.

is company liable for sexual assault?

If the company knew about the harassment and did not take appropriate action the company may be liable for damages. If perpetrated by someone of authority - the entire company is liable for damages. If perpetrated by a peer - the company is liable if the supervision should have known but did not take action. Example: circumstantial evidence, Why does everyone call Bob "Dirty Bob"? Company can assert a special defense but must have these three things: 1- no tangible job detriment to employee (bar not very high) "It wasn't that bad" 2- company has a policy with clear procedures, and "We have procedures to speak up" 3- employee did not use the procedures. "They didn't tell us"

Types of torts

Intentional - not as common Negligence - most common

Common Law

Major governing body over contract law. Monitors the sale of services and real estate.

disparate treatment - prima facie

Must check all the boxes

dickering

NOT an offer "id like to get $4000 for this car" "man id sure would be happy to buy this car" CONTEXT matters - if someone was kidding leonard v pepsico

Quasi Contract

Only in exceptional circumstances when a court feels compelled to impose an obligation upon one person regardless of whether he or she had any intention of making a contract. Where the failure to impose such an obligation would result in one party receiving an "unjust enrichment". Ex. A doctor who helps an unconscious stranger then sends him the bill for his services. element of acceptance is missing

Title 7 applies to

PRIVATE COMPAINES employer, employment agencies ,and labor unions. An employer must have 15 or more employees and is engaged in business that affects interstate commerce.State and local gov are within the definition of an employer.Employment and federal practices are covered by title 7. Civil rights act of 1964 does not apply to a tiny person shop but that doesnt mean discrimination is allowed. Mr.Q- if he works for UT which means the government.The civil rights act of 1964 applies.

Joint and several liability

Plaintiffs can collect awarded damages from one or another or both (employee and employer).

two kinds of sexual harassment

Quid pro quo (give and take) - if you do this for me, I'll do this for you Hostile environment - Alters the term and conditions of employment for an employee who has been targeted (ex: language, repeated advances)

statute of frauds

Requires certain types of contracts to be in writing in order to be enforceable. Each state has their own, but many require it if the contract is over $500. Ex. Property, prenups, estates - land - if job cannot be performed within a year - to pay debt - promise made in consideration of marriage "prenup" - pay debt of estate - over $500

Shareholder Theory vs. Stakeholder Theory (Roundtable letter)

Shareholder - only focus is to operate within the laws and give your shareholders, those that own the company, the highest rate of return or the highest shareholder value like in that's your focus anything more than that it's outside the bounds for a business manager. Stakeholder - Need to focus on profitability and shareholder value shareholder return and the shareholders are a very important stakeholder but they're one of many stakeholders that we should focus on. We need to focus on our employees, vendors, community, environment, NGO's, etc. mindfull of all Business rountable is going to be adopting a stakeholder view to focus on all employees

unions

Since the early 80s as union membership has gone down, real wages for the overall workforce have gone down or trailed economic growth. Mr.Q belief about Unions- he would be proud to stand with unions and not proud to stand with some unions.Some unions are great some unions aren't great.If you think Unions are terrible or unions are good you are mistaken.

negligence tort example - Otis Engineering Corp. v. Clark - duty

Summary: Matheson, an employee of defendant Otis Engineering Corporation was drunk driving after leaving work and killed the wives of Larry and Clifford Clark (plaintiffs). The court dismissed the case holding that Otis could not be liable because Matheson was not acting within the scope of his employment at the time of the accident. Result: Intermediate court of appeals reversed (appellate court declares the decision needs to be reversed) and Otis appealed to the Texas Supreme Court. Supreme Court Decision: The finder of fact in this case should be left free to decide whether Otis acted as a reasonable and caring employer considering: 1.The availability of the nurses' aid station (on the plant site) 2.A possible call to mrs. Matheson 3.Another employee driving Matheson home 4.The consequences of matheson's driving upon a public street in his condition. Affirm Judgment of court of appeals and Remand (Case is sent back to conduct again) company was liable

Unenforceable contract

When a contract was valid at the time it was signed but now is rendered unenforceable because of the application of some special law. Eg: Death of a person giving personal services

voidable contract

When one of the parties has the legal right to withdraw from a contract at a later time without liability. Contracts with fraud and contracts with minors fall under this category. lack of capacity = doesnt understand, has problems mentally, drunk, minors etc lack of consent = did not give genuine consent still have all 3 elements present! its just the lack of part voidable on their end (minor, drunk) etc bc YOU knew what you were doing

okoli v baltimore

When the secretary went to the mayor of Baltimore to complain about being sexually harassed, they fired her for "typos." They actually fired her because she spoke up (retaliation). The district court judge said that all these things that happened "did not" rise to the level of sexual harassment. 12 accusations

adhesion contract

Where one party usually having superior bargaining power than the other prepares the terms of a contract and presents it to the other party on a take-it-or-leave-it basis. (opposed to negotiation or "dickering") Generally enforceable unless the terms are shockingly one sided in nature that it's unconscionable Ex. apartment leases, hospital forms

Implied Contract

Where the promises (intentions) of the parties have to be inferred primarily from their conduct and from the circumstances in which it occurred. Ex. You won't negotiate the price of a haircut, the price is usually understood.

McDonalds coffee tort case

Woman spilled hot coffee on her lap causing burns. She admitted she was partially to blame for the injuries. She wanted her medical bill paid for. McDonalds offered a small settlement that was rejected. Court case revealed McDonalds made coffee really hot to ensure coffee was always hot for customers. Court awarded women penalties.

employer safety and welfare

Workers compensation Required and every state is different. Exception: Texas. Sometimes benefits the employer more like business friendly Texas, sometimes it benefits employees more like employee friendly California. - insurance for job related accidents for workers Occupational Safety and Health Administration (OSHA) - regulates workplace standards Fair Labor Standards Act (FLSA) - no child labor

consideration is not

a gift! gifts do not make valid contracts therefore if there is no consideration but there was offer and acceptance, that is a gift

bad faith

advertising to entice you to want item A, when item A is not available, in order to get you in the door hoping you'll buy other items.

How much consideration is enough?

any amount

objective intent

apparent inent

intentional tort - assault and battery

assault = aprehension of battery right now batter = contact, bodily harm, unwanted contact, intentional you need affirmative conduct, intent, injury guy who is facing you tries to punch you and succeeds = assault and batter guy who is facing you tries to punch you and misses but you saw and flinched = assault guy hits you from behind you didnt see it coming = battery means to punch you but hits someone else - transfer intent - still battery

disparate treatment - sexual harassment

because the act is intentional (not an accident) and because the sexual nature of the behavior is outlawed by title VII.

Types of Contracts

bilateral = promise in exchange for another promise unilateral (i promise to pay you $100 to star in my new movie) unilateral = A promise in exchange for doing an act. The apparent intent of the the offeror is that the offer could only be accepted by the actual performance of the requested act by the offeree. Ex. Lost dog, $1000 reward IF found and express, implied and quasi contracts

Sports Contracts

bilateral in nature (ill give you $25 mil to play for my team) AND have a unilateral clause (ill add an extra $5mil if you get MVP)

intentional torts can get negligence torts can get

compensatory and punitive damages only punitive damages

corporation is a moral agent

corporations must not evade moral responsibility. Ultimately it arguably makes sense to visit responsibility and accountability upon corporations and other artificial business actors because that will increase the likelihood that their owners and controllers will take actions to prevent individual employees or groups of employees from making unethical decisions. The organizational form tends to disperse responsibility in such a way that individual employees do not feel personally to blame for illicit conduct. To counteract that effect, society can visit more responsibility and perhaps legal liability upon the firm hoping that its managers will act to minimize wrongdoing that could injure the firm.

Leonard v. Pepsico, Inc.

court case: company advertises winning "points" for buying its product; 7 million points wins a jet; consumer takes on challenge to win jet, then sues when company says they won't actually give it to him. court holds that it was obvious it was a joke and not valid offer

Unconcionable Contract

courts dont really care about fairness of contracts unless its a "shock to ones concious" or extremeley unfair

Modified Comparative Negligence

defendant must be more than 50% at fault before the plaintiff can recover meaning you the plaintiff cant be almost the entire reason for the accident and still get a reward. each state has their own percent

promissory estoppel example

did they rely or not, im gonna give you $20000 don't apply to the student loans you were going to, so she doesn't, I change my mind - she reasonably relied on that promise. Relied to her detriment

express contracts

expressed in some way, could be sign language

tort case for negligence - breach

general rule: a breach occurs when the defendant fails to exercise the same care as a "reasonable person under similar circumstances" would have exercised.

tort case for negligence - causation

general rule: plaintiff in negligence action must demonstrate that the breach proximately caused the plaintiff's alleged injuries. 2 requirements: Factual causation - "but for" the defendant's act the injuries would not have happened (or actions were a substantial factor). Legal causation - (proximate cause) reasonable foreseeability of the resulting harm.

tort case for negligence - damages

general rule: plaintiff must prove injury to person or property - some ability to recover for mental distress (doesn't have to be physical injury). Comparative negligence Compensatory damages - "normal" damages Punitive damages - generally not allowed for regular negligence (usually for intentional torts). add on punishment "Take your victims as you find them"

constituional law protects you from ___, title 7 protects you from ___

government private companies

frauds - superior knowledge

if one party has superior knowledge, it is their duty to disclose it oklahoma man buys land from rancher knowing there was an oil strike near by but doesnt tell the rancher so he gets a good deal for it

undue influence

influence is undue (excessive) where one party so dominates the will of the other that the latters volition actually is destroyed ex: elder abuse

option contract

instead of revocation "ill sell you this pen for $1" "if you keep that offer open for 24 hours i will pay you 5c right now" once 5c is accepted, that offer cannot be revoked for 24 hours houses do this

disparate tratment

intentional discrimination - only need to show race/gender/etc was a substantial contributing factor - preponderance of the evidence

Communication of the offer

is a primary rule that an offer has no effect until it has legally reached the offeree.

intentional tort - defamation

libel (written) / slander (spoken) making something up about someone elements: need all 1. D made statement about P as though it were a fact 2. statement was defamatory 3. statement was false 4. statement was communicated by defendant 5. P's repuation was harmed celebrities have much higher bar in defamation case

respondeat superior vs vicarious liability

most important "acting within the scope of employment" vicarious liability = I am liable through my child for their actions, business owner is vicariously liable for the action of their employees, example of vicarious liability is respondiat superior which is the business one

acceptance

must mirror original offer 1. definite, present, intent to accept the offer 2. must be unconditional and not add any terms that are additional to or different from offer 3. must be legally communicated to the offeror or to the offerors agent

Disparate Impact

neutral on its face Policy that's neutral on its face and needs to demonstrate a business necessity example: hiring "smaller people" because the job requires employees to crawl in very small spaces. For a violation of Title VII, a plaintiff has to show that the consequence of this policy is discriminatory. Example: only hiring tall people because files and books are stored in high places. Employees rebuttal-must be a business necessity to achieve an important business objective(I need small people to fit in a small chimney).Practice also achieves this objective. ends up having negative effect on someone

is an advertisement a valid offer?

no. unless - "While supplies last" - If the inventory exists then whatever deal they extended then becomes an offer. - "First 100 people in the door" - If the inventory exists then whatever deal they extended then becomes an offer.

termination

offer can be terminated by 1. revocation (withdrawal of offer by offeror) 2. rejection 3. or lapse of time

ADA

persons with disabilites physical or mental impairment that substaintally affects one or more major life activites

pre existing obligations

pool contractor saying he needs more money than original contract states.

advertisements are usually considered to be ___

preliminary negotiations rather than offers. this is based on the fact that 1. most advertisements are silent on other material matters such as available quantities and credit terms 2. sellers have a right to choose their vendor 3. merchandiser cannot predict volume of responses

disparate impact - business necessity

prove 1. the challenged employment practice was necessary to achieve an important business objective 2. practice actually achieves the objective cant say my chimney sweepers have to pass an iq test bc that has nothing to do with being able to sweep chimneys, but being short does

work place discrimination

relating to laws that protect workers from a private employer. Civil Rights Act - Title VII Prohibits employment discrimination of race, color, religion, sex, or national orgin. Now includes sexual orientation. Religious organizations can discriminate based on religion. Religious organizations- can't discriminate against skin color. Private business cant discriminate against religion Reasonable accommodations for private businesses-ex. Allowing religious days off If you feel you are being discriminated before you file a lawsuit, file a claim with the EEOC - Procedures - EEOC Can't go directly to court Once a court finds that Title VII has been violated, the court is empowered to grant an injunction prohibiting future violations and correcting past actions Can file suit after EEOC and/or state agency have concluded investigation Proving discrimation - disparate treatment v. disparate impact

Employer Liability

respondeat superior: an employer is uniformly held liable for the torts of employees if the employees are acting "within the scope of their employment" at time of injury - pizza hut employs matt to deliver pizzas, while on delivery matt tbones jose, jose sues matt and pizza hut (joint liability)

subjective intent

secret intent

Tragedy of the Commons

situation in which people acting individually and in their own interest use up commonly available but limited resources, creating disaster for the entire community

Recklessness/Gross Negligence

taking negligence to a higher level of claim for damages.

definiteness

terms of an agreement must be definite enough that a court can determine if both parties lived up to their promises if an issue arises

Bargained for exchange (consideration)

the consideration given by the promisor must induce the promisee to incur a legal detriment and/or provide a legal benefit to the promisor

prima facie

this type of case is established when the EEOC or an individual plaintiff proves facts that permit an inference that intentional discrimination on the basis of race, national origin, gender, or religion was the employers motivation for a negative action

golden rule

treat others the way THEY want to be treated In order to do so, you need to understand the other person.

fraud

tricking people, lying, being deceitful elements of fraud 1. D made a misrepresentation of material fact. (does not include opinion, but does include warranties) libhart v copeland 2. statement was made with intent to decieve 3. that plaintiff reasonably relied on misrepresentation 4. Plaintiff suffered an injury as a result considerations - future predictions are not fraud - opinion statements are not fraud - caveat emptor (let the buyer beware) silence, people do not have a duty to say something unless its hidden defects, fiduciary relationship, superior knowledge

mistakes

unilateral mistake - only one party is mistaken (construction example - typo?) mutual mistake - general principle that a contract can be set aside if there is a mutual mistake example is bugs life

lack of consideration example

wife tries to decapetate husband with axe, bystander stops it and gets his hand cut off, husband says he will pay bystander $1000 for saving his life, he never pays, bystander tries to sue but cant be there was no consideration so therefore no contract he didnt say "hey ill save you IF you pay me $1000", he just did it

when proving causation in a tort case

you have to have both factual AND legal causation!!!!! Was it reasonably foreseeable? If you cant say yes you don't have causation and you need that (duty, breach, causation, damages) so no tort case

expressed and implied

· Agreed upon a price before the haircut = expressed contract. If you communicated about the [rice at all (thumbs up) its expressed. Implied you get haircut and don't talk about price at all before

BFOQ

· BFOQ know court examples of what they will allow. (female nurses working in l&d department, male bathroom attendant, woman working in lingerie department) these are not necessarily universal. Hooters can keep hiring only female servers

engagement ring

· Engagement ring is a conditional gift. You are promising to say I do at the altar. So if gf breaks off engagement IN TEXAs you have to bring that ring back bc you never fulfilled your promise. BUT if its Christmas morning and you give ring and propose its problem bc is it engagement ring or Christmas gift? Don't have to give it back if its Christmas gift

Negligence v recklessness

· driving 32 in a 30 and rear end someone that's negligence. If your going 92 in a 30 and hits someone that is no longer negligence. Still didn't mean to hit someone but now its recklessness (or gross negligence its same) damages will be higher