blaw 280 exam 2

Golfer hits spectator in the head with gold ball. Spectator while unconscious waiting for ambulance is struck by a bolt of lightning and is killed. Is golfer liable for Spectator's death? Why or why not?

No proximate cause---not natural and probable consequence of golfer's negligence that the string of unusual events would occur resulting in death by lightning strike.

T/F: A firm offer for the sale of goods requires consideration to be given in exchange for the offeror's promise to keep the offer open.

False

T/F: A revocation is effective at the time it is dispatched by the offeror.

False

T/F: Contracts in which both sides have completely performed their duties are executory.

False

T/F: Every promise is legally enforceable

False

T/F: The UCC applies to the sale of goods and services

False

T/F: The main element of a contract is fairness

False

T/F: When determining the presence of the intent to accept, a subjective standard is used.

False

Groups

If D's statement concerns a group and P is a member of that group, P can recover only if group is relatively small - Corporations: Yes - Dead: No

T/F: Acceptances by instantaneous forms of communication are effective immediately upon communication to the offeror.

True

T/F: In a bilateral contract, two parties make promises to one another

True

T/F: The UCC is statutory law in every state

True

"False":

Truth is a complete defense in a defamation case

Sally wanted to replace the old carpet in her home. She entered into a contract with Good Carpet Co. (GCC) for the purchase and installation of a new carpet. The price of the carpet was $3,000 and the cost of the labor to install the carpet was $150. Later Sally became dissatisfied with this transaction and wants to sue GCC. Sally wants to apply the contract rules of the UCC, but GCC wants to apply the contract rules of the common law. Which source of law should governs this case?

UCC clearly predominates.

UCC:

"Gap fillers" fill in open terms (including price, quantity, delivery, and time for payment)

Alleged defamatory statement must be...

"of and concerning" the P (i.e., the alleged statement of fact must be about and "bear upon the reputation" of P

Invasion of privacy refers for 4 distinct torts:

(1) Intrusions on Solitude or Seclusion (2) False Light Publicity (3) Public Disclosure of Private Facts (4) Commercial Misappropriation (aka Commercial Appropriation of Name or Likeliness)

Forms of indirect rejection:

(1) Lapse of Time (2) Counteroffer (3) Conditional Acceptance (4) Additional/Different Terms to Offer

Firm offer for sale of goods:

(1) Offer by merchant; (2) contained in signed writing; and (3) giving assurances that offer will be kept open - No consideration needed - Cannot exceed 3 months

Defamation rule

(1) Unprivileged (2) Publication of (3) False and defamatory (4) Statement of fact ("of and concerning") another person.

Option K:

(1) offeror promises to keep offer open for stated time (2) in exchange for some valuable consideration

A statute require homeowners to fix sidewalks adjacent to their homes. Pedestrian trips and is injured because of unrepaired sidewalk. Is there any special doctrine or rule that allows Pedestrian to bypass the requirement to establish that homeowner owed Pedestrian a duty of care and also that the homeowner was negligent (failed to act with reasonable care)? Will Pedestrian be able to use this special rule in this case?

(a) Negligence per se (b) Yes, because most likely the Pedestrian is within the class of persons protected by the statute and the harm suffered was the type that the statute was designed to protect against.

Intrusion on Solitude or Seclusion

(i) D intentionall intrudes on P's solitude (ii) Intrusion if "highly offensive" to TARP; and (iii) P had a RX expectation of privacy.

Public Disclosure of Private Facts

(i) D's widespread publication; (ii) Of highly offensive (to TARP) private information.

Common issues with statements of facts about another person

(i) Supposed defamation of a group (ii) Pure opinion v. mixed opinion-fact (iii) Fictional accounts (iv) Humor, satire and hyperbole

False Light Publicity

(i) Widespread publication of (ii) Highly offensive (to TARP) (iii) Information portraying P in a false or misleading light (iv) With actual malice by D - Some statutes do not recognize "False Light" tort due to substantial overlap with defamation - "Defamation by implication..."

Counteroffer

(versus "mere bargaining") - Inquiry regarding terms NOT counteroffer. - Is offeree's response in the form of question? If so, most likely mere bargaining.

Conditional Acceptance

- "I accept only if...", "I accept on the condition that..." - If offer does not specify method, it may be accepted in any RX manner.

Qualified (Conditional) Privilege

- (1) Statements made to protect legitimate interest of another (e.g., employment reference) - (2) Intracorporate statements promoting common interest - Conditional privileges ineffective if abused (i.e., actual malice or excessive publication)

Causation

- Actual Cause: "But For" Test (or "Butterfly Effect") - Proximate Cause: P's damages were the "natural and probable" consequence of D's breach

Slander per se

- Crime, - Loathsome disease; - Sexual misconduct; or - Professionally incompetent / guilty of professional misconduct

Terms of Offer

- If there is an offer, what are its terms? - Offerees bound to terms of offer of which they had actual or reasonable notice.

What role does the First Amendment play in defamation cases?

- Imposes fault requirement (negligence for private figures; actual malice for public figures)

Predominant Factor Test

- Language of Parties' K; - Nature of Business of the Supplier of Goods/Services; - Reason the Parties Entered into K; and - Respective Amounts Charged

Absolute privileges

- Legislative privilege - Judicial privilege - Executive privilege - Domestic privilege

How does defamation differ from the other eight torts?

- Liability is imposed based on D's speech, not conduct - First Amendment plays a role

3 requirements for an offer:

- Objective present intent to contract; - Definiteness of the terms; and - Communication of offer to offeree. # Offeror had power to specify how, when, and where offer is to be accepted # Offeror has power to dictate who may accept the offer.

Exceptions to Revocation:

- Option K - Offer for unilateral K - Firm offer for sale of goods - Promissory estoppel circumstances

Damages

- P must show actual harm (PI or PD) - General + Special Damages (No Punitive) - Defenses: (i) Assumption of Risk (ii) Comparative Negligence

Two competing interests at stake:

- P's interest in reputation protection; and - D's interest in freedom of speech

Sometimes the law enforces and obligation to pay for certain losses or benefits even in the absence of mutual agreement and exchange of value; the court then applies:

- Quasi-contract (avoids unjust enrichment) - Promissory estoppel (protects reliance)

Termination of Offers (cont'd)

- Rejection # Express # Implied (counteroffer) - Rejection only effective when received by offeror - Death or Insanity of Either Party - Destruction of Subject Matter - Intervening Illegality

Statutory Privileges

- Section 230 of CDA - Section 125 of ATSA

How definite must terms be?

- Traditional Common Law - Restatement - UCC

Traditional Common Law:

All essential terms must be stated in offer (parties, price, description of subject matter, quantity, time for performance)

Concise Promissory Estoppel Rule:

1. A promise; 2. Which the promisor should foresee will induce reliance by promisee; 3. Actual reliance by promisee; and 4. Injustice to promisee.

4 Elements of Negligence

1. Duty 2. Breach 3. Causation 4. Damages

Termination of Offers

1. Lapse of Time - Time Stated in Offer - No Time Stated = RX Time 2. Revocation - Generally, offers are revocable at any time prior to acceptance (even if offeror promises to hold offer open) - Revocations only effective when they are received by offeree

Elements of a Contract

1. Offer 2. Acceptance 3. Consideration Defenses: - Statute of Frauds - Capacity - Illegality - Misrepresentation, Fraud, Mistake

Unjust Enrichment

1. P confers benefit on D; 2. D accepts and retains benefit; 3. It is unjust to keep benefits w/o paying.

Acceptance

A "manifestation of assent to the terms of the offer in the manner required by offer." - Courts look at (1) present objective intent of offeree to enter into K; (2) whether offeree accepted on the offeror's terms; (3) offeree's communication of acceptance to offeror.

Able Co. entered into a contract with Baker Co. for the sale of goods. Both parties are merchants under the UCC and each party used its own form as an offer and acceptance. On the reverse of each form, there were minor terms that conflicted with each other. What is impact of these minor differences in terms in the forms on the contract?

A contract does exist and it includes the terms agreed upon plus gap-fillers from the UCC.

Promissory Estoppel

A court may apply doctrine of promissory estoppel when one party relies upon another party's promise to his or her detriment (detrimental reliance), but there's no contract - Court will force promisor to fulfill promise or pay compensation

Void:

Agreement without legal effect because prohibited by law

Commercial Misappropriation

AKA "Commercial Appropriation of Name or Likeness" 1. Unauthorized Use 2. Of P's Name or Likeness 3. For Commercial Purposes Defenses - First Amendment (Artistic Expression and "Transformative" Use - Incidental Use - In some states, "commercial" = "advertising"

"Hybrid contracts"

AKA "mixed contracts", contracts involving the sale of both goods AND services

Advertisement rewards

Advertisements offering rewards for lost property, information, or capture of criminals are offer for unilateral Ks. - To accept offer and receive the reward, offeree must perform the requested act

Implied:

Agreement not shown by words, buy by acts and conduct of parties (formed by conduct)

Express:

Agreement of parties manife by words, written or oral (formed by language)

Is the installation of carpet in a house subject to Article 2 of the UCC or to the common law of contracts? Why?

As we discussed in class, this is close to 50/50, although I would side with the UCC since goods (the carpet itself) most likely predominates the contract. Remember the 4 factor test!

Which of the following is the kind of contract in which each party offers as consideration a promise to do something?

Bilateral

Valid =

Binding & enforceable agreement

Traditionally, landowners owe the highest duty of care to

Business invitees

Two bodies of law that govern contracts:

Common Law and Uniform Commercial Code (UCC)

Publication is...

D's communication of defamatory statement to a third person - Does not equal widespread - "Self-Publication" exception - Repeater's liability

Wendy Witness testified for the plaintiff in a suit against Dan Defendant in which he was charged with fraud. The jury found for Dan. Dan wants to sue Wendy for defamation because the statements she made about him on the witness stand were found to be untrue. What result?

Dan cannot sue Wendy for defamation because she had an absolute privilege as a trial witness.

Competitor falsely claims that one of the ingredients used in the manufacture of Hungry Dog dog food contains melanine, which is poisonous to animals. Competitor has committed the tort of __________ against Hungry Dog.

Defamation

Ashley says to Ford, "I'd like to buy your house," and Ford responds, "You've got a deal". This exchange lacks _____.

Definiteness

Definiteness of Terms

Definiteness shows intent to contact and gives the court the ability to calculate a remedy; indefiniteness shows parties still negotiating.

Breach

Did D Act as TARP? Factors: - Foreseeablility of Harm - Magnitude of Possible Harm - Burden on Defendant to Avoid Harm - Utility of Defendant's Conduct Negligence Per Se Duty + Breach = Wrongfulness of D's conduct

Bilateral contracts:

Each side makes a promise to one another (offeror's promise and offeree's return promise - a promise for a promise)

Advertisement rule

Exception: Highly specific ad = (1) particular quantity of goods offered at advertised price; and (2) specific steps needed for offeree to accept.

Ellen has a contract with Sue to buy her riding lawn mower for $200. Ellen has given Sue $200 in cash, and Sue has given Ellen possession of the mower. What is the status of this contract between Sue and Ellen?

Executed

UCC Article 2

Expressly applied to contrats for the sale of goods - Goods are tangible, moveable, personal property - Does not apply to sale of services, intangible property (stocks, intellectual property), or real estate - Special rules apply for "merchants" # "Merchants" regularly deal in certain types of goods. # UCC applies regardless of merchant status.

Executed:

Fully performed by both parties to the contract.

Advertisements

Generally, advertisements are not offers, but merely invitations to deal. e.g. Signs, flyers, handbills, catalogs, price quotes, "for sale" ads in newspaper.

Bilateral vs. Unilateral K

If the K isn't clearly unilateral, it IS bilateral. - Unilateral K offer can only be accepted by performance Unilateral Ks are, in reality, rare.

Under the traditional common law, what is the legal status of an improperly dispatched acceptance that was sent by a means of communication that was nonauthorized by the offeror?

It is effective when received.

Which of the following conditions characterizes a firm offer regarding the sale of goods?

It must be made by an offeror who is a merchant.

Which of the following is true regarding promissory estoppel?

It requires that the promisor should reasonably expect to induce the promisee's action or forbearance.

Creation of contract rule

In determining if an offeree accepted an offer and created an contract, a court will look for evidence of three factors: (1) the offeree intended to enter the contract, (2) the offeree accepted on the terms proposed by the offeror, and (3) the offeree communicated acceptance to the offeror.

Driver exceeds speed limit and negligently hits pedestrian who is jaywalking against a DON'T WALK sign. Suppose jury finds driver is 20% responsible and jaywalker 80% responsible. Assume pedestrian suffered $100,000 in damages and sues. What will pedestrian recover?

In pure state, $20,000; in mixed state, $0

Saddle Ranch operates a mechanical bull for patrons. John paid $5 charge, rode the bull and was thrown onto head fracturing his skull. John sues Saddle Ranch for negligence. Will he win?

Most likely, no, because John probably either expressly or impliely assumed the risk of harm --- voluntary and known risk of harm.

Assume that Sussex County has a law requiring that all passenger elevators be inspected every six months. Local Hospital failed to have its passenger elevator inspected when required, and a door that malfunctioned injured a hospital visitor. Visitor's attorney will use the doctrine of _________________ to show that Local Hospital breached a duty of care.

Negligence per se

Valerie Vet accidentally left the back door to her pet clinic open and Cuddles, a canine patient, escaped. Cuddles ran around in the road and in an adjacent field until she was found and returned to the clinic half an hour later, completely unharmed. Is Valerie liable to Cuddles' owner for negligence?

No because Cuddles suffered no injury while she was free.

Carneal was 14 year old freshman who regularly played "Doom, "Rampage", "Resident Evil" and "Final Fantasy." Carneal took gun to school and shot and killed three students and wounded others. Families of dead and wounded sued producers of video games. Do producers owe duty of care?

No because the victims are not foreseeable plaintiffs according to almost all courts.

Smoker negligently tosses lit cigarette close to a house. Cigarette starts fire which burns down the house. Fire jumps and burns down adjacent house, and eventually a third house. Fire eventually burns down 100 houses in the City. Can all 100 homeowner's prevail in a negligence lawsuit?

No, again no proximate cause etc. It is natural an probable that one, two or even a few houses may burn down. Not 100.

Mary saw two boys swimming across a river she knew had a deep and dangerous channel. She did not warn the boys or try to stop them. If one of the boys were injured, could Mary be sued for negligence?

No, because Mary had no duty of care to the boys

Corporation negligently pollutes plaintiff's drinking water. Plaintiff dies of a heart attack. If autopsy revealed that Plaintiff's heart attack primarily related to hardening of the arteries, can Plaintiff still prevail in a negligence lawsuit against corporation?

No, because the corporation's negligence was not the actual cause of plaintiff's death; BUT FOR the corporation's negligence, Plaintiff would still have died of a heart attack.

Effect of Acceptance

Offer + Acceptance = Agreement

The person who makes an offer to form a contract is the ______________.

Offeror

Offeror is...

Offeror is the "master of the offer." - If offer specifies manner of acceptance, offeree must comply in order to have valid acceptance. - If offer does not specify manner of acceptance, offeree may accept in any manner RX under the circumstances.

Offer for unilateral K:

Once offeree begins performance, offeror cannot revoke for time RX necessary for offeror to complete

Executory:

One or both parties still have contractual obligations to perform.

When can the offeror effectively revoke his/her offer?

Only before an effective acceptance.

Unilateral contracts:

Only one party makes a promise and demands a performance, not a return promise (offeror's promise and promisee's performance - a promise for an act)

Slander =

Oral defamation - P must show special damages unless slander per se

Voidable:

Otherwise valid K, but due to circumstances surrounding formation of agreement, K may be rejected at option of one party

Iris was at fault in a car crash in which Phil was injured. As they waited for the EMT's to arrive, a place, which was part of a nearby air show, crashed into Phil significantly increasing his injuries. Iris will not be liable for this second set of injuries because the plane crash was a(n) _______________ cause.

Suspending or Intervening

Duty

Owed to All Foreseeable Plaintiffs - Judge Decides Whether Duty Exists (interpreted broadly) TARP

K =

Parties themselves agree to duties

How to determine what law applies?

Predominant factor test (aka predominant purpose test)

Greene's Lawn Service was tending to a client's yard when it noticed that the lawn next door was high and the shrubs needed trimming. Neighbor was not home. Greene's cut the lawn and trimmed the shrubs anyway and then sent Neighbor a bill for $200. Must Neighbor pay this bill? Why or why not?

Probably no quasi-contract/quantum meruit because although Greenes's conferred a benefit on Neighbor, it is probably not unjust for him to keep the benefit since he did not voluntarily and knowingly accept the benefit.

What types of harm and what damages can P recover for in defamation cases?

Reputation harm and related emotional distress - Actual damages for proven harm - Presumed damages - Punitive damages

Restatement:

Terms must be "reasonably certain."

Anti-Slapp Statutes

Special Motion to Dismiss

"Defamatory":

Statement that (1) harms P's reputation in P's community; or (2) deters others from associating or dealing with P

Tort =

Statutes and common law impose duties upon people

Uniform Commercial Code (UCC)

Statutory law in every state, but the common law of contracts is evolving. Contains nine articles.

Non-contract obligations include all of the following except:

The CISG doctrine

John bought a dishwasher from Local Appliance Store. What type of law governs the contract between John and Local?

The Uniform Commercial Code

The offer is terminated if...

The offeree directly or indirectly rejects offer.

Ian Kendler makes Brian Hyson an offer for a plot of land. In the offer, Kendler stipulates that the acceptance of the offer must be sent by registered mail but Hyson mails his acceptance through the regular postal service. Which of the following is true?

There is no acceptance and no contract.

Firm offer rule

To be a firm offer, an offer must (1) be made by an offeror who is a merchant, (2) be contained in a signed writing, and (3) give assurances that the offer will be kept open.

Offer made rule

To prove that an offer was made, a party must show (1) the offeror intended to make an offer, (2) the terms of the offer were clear and definite, and (3) the offeror communicated the essential terms of the offer to the offeree.

Mirror Image Rule

Traditional common law rule required acceptance to be the mirror image of the offer

Comparative Fault:

Trier of fact collectively determines P's and D's relative shares of "fault" (including both comparative negligence and implied assumption of risk) that caused P's injuries.

Liz read the following announcement in the newspaper: "$100 reward for the return of my lost dog, Duffy." This announcement is an offer to form what type of contract?

Unilateral

Nellie Neighbor made the following offer to two students who lived next door: "I will give you each $50 only if you actually show up at my house and move some furniture for me on Saturday at noon." This is an offer to form what type of contract?

Unilateral

Unenforceable =

Valid agreement, but for some reason, the law cannot enforce it

A void contract refers to an agreement that is:

Without legal effect because prohibited by law

Humor, satire, and hyperbole

Would RX reader believe real events described?

Fiction

Would RX reader identify P as subject of story?

Objective standard:

Would TARP (in the position of the offeree) believe that the offeror intended to K? - Look at words, acts and circumstances

Libel =

Written defamation (presumed damages)

Beth invited friends for a BBQ and touch football game in her backyard. Roger, one of her guests, broke his ankle when his foot slipped into a hole as he ran out for a pass. Several malfunctioning sprinkler head have been removed form the lawn for repairs, leaving dangerous, but hidden, holes. In common law, would Beth be liable to Roger for his injuries?

Yes, she had a duty to warn him of hidden dangers.

Advertisements for the sale of goods at specific prices are considered to be:

invitations to deal.