BUL 3310 FINAL

Extraordinary Force of Nature Defense

"If the natural condition or force that affects the negligent act or omission is unusual or extraordinary, the negligent party will not, in general, be held to have known of or contemplated it, unless the circumstances of the particular negligent act or omission are such that the negligent party should have known of or contemplated the probable appearance and effect of such unusual or extraordinary natural condition or force. If the injury was caused by some extraordinary or unusual natural force or condition that could not have been foreseen, or that would have caused the injury if there had been no negligence, the negligence is not the proximate cause of the injury." - Benedict Pineapple Co. v. Atlantic Coast Line Railroad Co., 46 So. 732, 737 (Fla. 1908).

Contract

"Legally binding agreement between two or more parties who agree to perform or to refrain from performing some act now or in the future."

402A. Special Liability of Seller of Product for Physical Harm to User or Consumer

(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer, or to his property, is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property if: (a) the seller is engaged in the business of selling such a product, and (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold. Plaintiff only needs to prove that: 1) A product was defective, 2) This defect caused the product to be unreasonably dangerous, 3) The product has not been changed or modified by the plaintiff, and 4) The Plaintiff suffered damage using the product. Strict liability is imposed on manufacturers and designers of goods, as well as on the seller of the goods. The general rule is that strict liability does not apply to the sellers of used goods that are not in the regular course of business of selling goods.

Defenses to Strict Liability: Statute of Repose

A statute that requires a plaintiff to file a lawsuit within a specific time period after a wrongful act by a defendant, such as improper construction of a building, regardless of when the injury occurred or was discovered. Example: A toy is manufactured in 2000, and the state of Iowa has a 12 year statute of repose for actions in product liability. In 2014, that toy allegedly causes a physical injury. Since the statute of repose starts tolling when the allegedly defective manufacturing occurs (2000), the latest the manufacturer would potentially be liable for an action involving product liability would be 2012.

2. Capitol City Beverages, Inc. manufactures Armadillo Ale, a popular brand of beer. A consumer of the beer, Tom, falls ill. His physician discovers that the beer Tom consumed contained a poisonous substance. Tom sues Capitol City Beverages, Inc. under a strict products liability theory. What is the best defense that Capitol City Beverages, Inc. could offer?

A. Beer is an inherently but not unreasonably dangerous product. ***B. The poisonous substance was injected into Tom's beer by the retailer who sold it to him. C. Tom assumed the risk of injury when he consumed the beer. D. There is no defense to strict products liability claims.

Which of the following is tortious conduct?

A. Beth agrees to sell 100 whistles to May for $1 each. On the day of delivery, Beth tenders 50 whistles. B. Andre intentionally fails to report a substantial amount of income subject to federal tax. C. Pops promises to give David a car for his birthday but forgets to. **D. Maggie abducts Ron at gunpoint and holds him for ransom.

What Cannot be Copyrighted

Any "idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied."

Legal Right

Correlative of the phrase legal duty. A person has a legal right if, upon the breach of the corresponding legal duty, that person can secure a remedy in a judicial proceeding.

Defenses to Strict Liability: Knowledgeable User

If a particular danger (such as electrical shock) is or should be commonly known by users of a product (such as electricians), the manufacturer need not warn these users of the danger.

Defenses to Strict Liability: Statute of Limitations

In most product liability cases, a plaintiff must file a lawsuit within 2 to 4 years of the discovery of an injury.

VOID CONTRACTS Habitual Drunkards:

In some states, a court can adjudge someone as a habitual drunkard. If this is the case, contracts of that individual are void.

reasonable person test

Negligence presumes a uniform standard of behavior. This standard is that of a reasonable, prudent person using ordinary care and skill. The standard that is applied for negligence is asking this question: "What would the reasonable person do under these circumstances?"

Copyright

Protects the property rights of authors and originators of original work that is "fixed" in a durable medium of expression.

Contracts for the Sale of Goods

Statute applies if the sale of goods involves $500 or more.

When does acceptance take effect?

upon receipt by the offeror, or dispatch by the offeree

Strict Liability

-Defendants are held liable for harm irrespective of fault. Early Cases: Owners of dangerous animals, such as bears, lions, and alligators, were held strictly liable for any damages those animals caused. Liability then expanded into "abnormally dangerous activities," and then, most recently, products liability.

Elements of a Contract:

1. Agreement (Offer and Acceptance); 2. Consideration; 3. Legal capacity; and 4. Legal purpose consistent with law and sound public policy.

What Can be Copyrighted

1. Literary works; 2. Musical works and accompanying music; 3. Dramatic works and accompanying music; 4. Pantomimes and choreographic works; 5. Pictorial, graphic, and sculptural works; 6. Motion pictures and other audiovisual works; 7. Sound recordings; 8. Architectural works.

VOIDABLE CONTRACTS Minors:

A minor (under the age of 18) generally has the right to disaffirm contracts and thus are voidable at the minor's option. A minor can also ratify a contract after attaining the age of majority. Exceptions to Disaffirming: Purchase of life insurance and contracts entered into with colleges or universities.

Doctrine of Negligence Per Se

A person is negligent, including situations where one acts or fails to act, where the actor violates a statute or ordinance that gives rise to the injury. Plaintiff must prove that: 1) The plaintiff is within the class of persons intended to be protected by the statute; 2) The plaintiff suffers the type of harm the statute was intended to prevent; and 3) The breach of the statute caused the injury.

Manufacturing Defect

A product "contains a manufacturing defect when the product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product." In essence, a manufacturing defect is a departure from a product's design specifications that results in products that are physical flawed, damaged, or incorrectly assembled. Liability is imposed only on the manufacturer (and on the wholesaler and retailer) regardless of whether the manufacturer's quality control efforts were "reasonable."

Lack of Consideration - Past Consideration RULE:

A promise to pay for services received in the past is usually not held to be supported by consideration. Example: Rod gives emergency care to Mike's adult son while the son is ill. After Rod gives the emergency care, Mike promises to pay Rod for his services. Mike's promise is nonbinding since there is no bargained-for exchange present.

John sees that Bobby is about to step into the path of an oncoming bus. If John does not warn Bobby of the danger, John is liable

A. Only if Bobby is injured. B. Only if Bobby is not injured. C. Regardless of whether Bobby is injured. ***D. Under no circumstances, unless a special relationship exists between John and Bobby.

Susan owns and operates a gift shop. Which of the following standards of care does Susan owe to patrons of her store?

A. Patrons take the store as they find it; Susan need only avoid actively harming them. B. Susan must exercise extra special care to make the premises safe for patrons. **C. Susan must take steps to ensure that the premises are reasonably safe. D. Susan is not obligated to warn patrons of known hidden hazards.

1.Abnormally dangerous activities that could result in liability under the doctrine of strict liability include:

A.Keeping household cleaners under the kitchen sink. B. Storing fireworks in one's garage only. ***C. Using dynamite on one's land only. D. All of the above.

Stop Counterfeiting in Manufactured Goods Act (SCMGA)

Act makes it a crime to traffic intentionally in or attempt to traffic in counterfeit goods or services, or to knowingly use a counterfeit mark on or in connection with goods or services.

VOIDABLE CONTRACTS Intoxication:

An individual in an intoxicated state can avoid a contract if he/she cannot understand the nature of the transaction when intoxicated.

Revocation

An offeror may revoke the offer at any time before the offeree accepts - revocation is not effective until actually received by the offeree.

Introduction to Statute of Frauds General Rule:

An oral contract is just as valid and enforceable as a written contract. However, some oral contracts are unenforceable under a law known as the statute of frauds.

Contract Law and Ethics Part I Facts: On Brenda Sniezek's first day of work for the Kansas City Chiefs Football Club, she signed a document that purported to compel arbitration of any disputes she might have with the Chiefs. In the document, Sniezek agreed to comply at all times with and be bound by the constitution and bylaws of the National Football League (NFL). She agreed to refer all disputes to the NFL Commissioner for a binding decision. On the Commissioner's decision, she agreed to release the Chiefs and others from any related claims. Nowhere in the document did the Chiefs agree to do anything. Was there consideration for the arbitration provision? Was it ethical for the Chiefs to have Sniezek sign the document?

Answer: Under these facts, the Missouri Court of Appeals held for the employee in Sniezek v. Kansas City Chiefs Football Club, 402 S.W.3d 580 (Mo. App. W.D. 2013). The Court noted that the Chiefs did not mention the arbitration provision when they offered her the job and the evidence indicated that the offer was not conditioned upon signing the agreement. Thus, there was no consideration to make the provision valid.

VOID CONTRACTS Persons Under Guardianship:

Any contracts of a person under guardianship are of no legal effect.

Advertisements

As a general rule, advertisements are NOT offers, unless the offer contains a definite promise of something in exchange for something else and confers a power of acceptance upon a specified person or a class of persons. Leonard v. Pepsico, 88 F. Supp.2d 116 (S.D. N.Y. 1999). COMPARE WITH: Leftkowitz v. Great Minneapolis Surplus Store, 86 N.W.2d 689 (Minnesota 1957) (holding an advertisement was an offer when the advertisement stated the following: "Saturday 9 AM Sharp, 2 Brand New Fur Coats, Worth to $100.00, First Come First Served, $1 Each."

Goes w/ Actual Cause: Intervening Act (Superseding Cause)

Can disrupt causation. An intervening act is an act, independent of an original act, that breaks the chain of causation and sets a new chain of events in motion that causes harm. Example: A speeding motorist's negligent driving knocks down a tree on the side of the road. An enterprising motorist the next day stops to cut branches for firewood and injures himself with a hand saw. The act of the enterprising motorist is not directly connected with the car accident.

Starbucks Corp. v. Lundberg, 2005 WL 3183858 (D. Or. 2005).

Coffee shop owner in Oregon operated a business called "Sambuck's Coffeehouse." Starbucks Corporation filed a lawsuit against the owner of Sambuck's alleging trademark dilution. The Federal District Court for the District of Oregon held in favor of Starbucks because it created confusion for consumers. To be protected under federal trademark law, a trademark must be registered with the United States Patent and Trademark Office. The trademark can be registered 1) if it is currently in commerce or 2) if the applicant intends to put it into commerce within six months.

legal duty

Concept that a person/entity must meet certain standards of conduct to protect others against unreasonable risks. Example: Landowner's have a duty to make the premises reasonably safe for business visitors.

Contract "Within the Statute of Frauds"

Contract that requires written proof. If written proof is not required, then it is "outside the statute of frauds."

Illegal Contracts, Contracts to Commit a Crime: Example:

Contract to sell illegal drugs in violation of criminal laws.

Doctrine of Mistake General Rule:

Courts are likely to grant relief only when there has been a mutual mistake of material fact as to the quality of an item (both parties mistaken) as contrasted with a unilateral mistake (one party mistaken) or a bilateral mistake of value. Example: A case out of 1880s Michigan involved the sale of a cow thought to be "barren" (sterile). The seller was about to sell the cow for $80, and both parties thought the cow was sterile. Right before the cow was delivered, the seller discovered the cow was pregnant (the value of a breeding cow in that time was approximately $750), and the seller refused to deliver the cow. Who wins? In the case of Sherwood v. Walker, 33 N.W. 919 (Mich. 1887), the Michigan Supreme Court found that the mistake went "to the very nature of the thing" and the seller won. Example 2: A decedent's estate sells two oil paintings for $60. The buyer likes the paintings and believes they are not originals, but buys them anyway. Later, the buyer finds out the paintings are in fact originals and worth over $1 million. The decedent's estate would like to rescind the contract. Who wins? In the case of Nelson v. Rice, 12 P.3d 238 (Ariz. App. 2000), the Arizona Court of Appeals ruled for the buyer. The court reasoned that the Estate had every opportunity to investigate the paintings and assumed the risk of the mistake.

Lack of Consideration - Illusory Promise RULE:

Courts require that there be a possibility that the promisor will incur legal detriment; otherwise, the promisor's promise is illusory. Example: If a promise is conditioned on a fortuitous event (something beyond either party's control), the promise is not illusory. Example: "I promise to buy your car for $4,500 if it rains tomorrow or if I am hired by TNT Corporation or if the Tampa Bay Rays win the next World Series." Since it is possible that it will rain or that I will get the job or Tampa Bay may win, there is a possibility I will have to buy your car (and incur a legal detriment). Example: If the condition is within the total control of the promisor, then the promise is illusory. "If I decide to buy a car, I'll buy yours" "I'll buy your car if I am fully satisfied with its performance" "I'll buy your car, but I can cancel at any time" These promises are illusory since all are within the promisor's control.

Intellectual Property and Ethics

Custom Copies, Inc., prepares and sells coursepacks, which contain compilations of readings for college courses. A teacher selects the readings and delivers a syllabus to the copy shop, which obtains the materials from a library, copies them, and binds the copies. Blackwell Publishing, Inc., which owns the copyright to some of the materials, filed a suit, alleging copyright infringement. Custom Copies filed a motion to dismiss for failure to state a claim. Question: Does a copy shop violate copyright law if it only copies materials for coursepacks? Does the copying fall under the "fair use" exception? Should the court grant the defendant's motion to dismiss?

Defenses to Strict Liability: Assumption of Risk

Defendant must prove that the plaintiff 1) knew and appreciated the risk created by the product defect, and 2) the plaintiff voluntarily assumed the risk, even though it was unreasonable to do so. Example: If a buyer failed to heed a seller's product recall, the buyer may be deemed to have assumed the risk of the product defect that the seller offered to cure.

Trademark

Distinctive mark, motto, device, or implement that a manufacturer stamps, prints, or otherwise affixes to the goods it produces so that they can be identified on the market and their origins made known. Essentially, a trademark is a source indicator and must be distinctive.

Res Ipsa Loquitur

Doctrine of Res Ipsa Loquitur: "The thing speaks for itself"; creates a rebuttable presumption that a defendant is negligent. This doctrine is used in cases where injury would not have occurred unless someone was negligent and the defendant is the only logical one that could have responsibility. Example: Female plaintiff underwent abdominal surgery and, following the surgery, suffered nerve damage in her spine near the area of the operation. She was unable to walk or stand for months, and even though she regained some use of her legs through physical therapy, her mobility was impaired and she experienced pain. The female plaintiff is likely to satisfy the burden of proof that the doctor was negligent by using the res ipsa loquitur doctrine.

Defenses: Contributory Negligence

Early doctrine which bars Plaintiffs from recovery if Plaintiff's own fault contributed to the injury; even the slightest amount of negligence on the part of the Plaintiff would prevent recovery. Most states have abolished this rule.

Consideration

Element of bargained-for exchange - it can be a promise for a promise, a promise for performance, or a promise for a forbearance to act.

Actual Cause (Cause in Fact)

Element of the tort of negligence that requires the Plaintiff show a cause/effect relationship.

VOID CONTRACTS Duress by Physical Compulsion:

Example is where a person is compelled to sign a contract at gunpoint. This contract is void.

Contracts for the Sale of Land or an Interest in Land

Examples include the sale of an entire interest in land; contracts involving interests for a person's lifetime (life estates), mortgages, easements, and leases in excess of one year.

Ethics and Tort Law - Social Host Liability

Facts: 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. Parks consumed alcohol at the party and left with other guests. One of these guests detained Parks at the guest's home to give Parks time to "sober up." Parks then drove himself from his guest's home and was killed in a one-car accident. At the time of death, he had a blood alcohol content of 0.291 percent, which exceeded the state's limit for driving a motor vehicle. Linda Marcum, Parks' mother, filed a suit in a South Carolina state court against the Bowdens and others, alleging that they were negligent. Should the mother win her lawsuit? Discuss social host liability; dram shop statutes.

Foreseeability - Palsgraf v. Long Island R.R. Co., 162 N.E. 99 (N.Y. 1928)

Facts: Man running to board the Defendant's train seemed about to fall; one of the Defendant's employees, attempting to push him onto the train from behind, dislodged a package from the passenger's arms. The package, unbeknownst to anyone (except perhaps the passenger) contained fireworks, which exploded when they fell. The shock of the explosion made some scales at the other end of the platform fall down, hitting the plaintiff. Issue: Did the actions of the Defendant's employee involve any foreseeable risk of harm to the Plaintiff, standing far away? Holding: The Court, in a decision by Judge Cardozo, held the Defendant was not liable. "The conduct of the Defendant's guard, if a wrong in its relation to the holder of the package, was not a wrong in its relation to the plaintiff, standing far away. Relatively to her it was not negligence at all. Nothing in this situation gave notice that the fallen package had in it the potency of peril to persons thus removed .... The plaintiff sues in her own right for a wrong personal to her, and not as the vicarious beneficiary of a breach of duty to another." Contemporary Example of the Foreseeability Problem - Lawn-Mower Injuries

Ethics and Strict Liability

Facts: Medicis Pharmaceutical Corp. makes Solodyn, a prescription oral antibiotic. Medicis warns physicians that "autoimmune syndromes, including drug-induced lupus-like syndrome," may be associated with use of the drug. Amanda Watts had chronic acne. Her physician prescribed Solodyn. Information included with the drug did not mention the risk of autoimmune disorders, and Watts was not otherwise advised of it. She was prescribed the drug twice, each time for twenty weeks. Later, she experienced debilitating joint pain and, after being hospitalized, was diagnosed with lupus. On what basis can Watts recover from Medicis in an action grounded in strict liability?

Contract Law and Ethics Part II

Facts: Sue Ann Apolinar hired a guide through Arkansas Valley Adventures, LLC, for a rafting excursion on the Arkansas River. At the outfitter's office, Apolinar signed a release that detailed potential hazards and risks, including "overturning," "unpredictable currents," "obstacles" in the water, and "drowning." The release clearly stated that her signature discharged Arkansas Valley from liability for all claims arising in connection with the trip. On the river, while attempting to maneuver around a rapid, the raft capsized. The current swept Apolinar into a logjam where, despite efforts to save her, she drowned. Her son, Jesus Espinoza, Jr., filed a suit in a federal district court against the rafting company, alleging negligence. Question: What are the arguments for and against enforcing the release that Apolinar signed? Answer: In Espinoza v. Arkansas Valley Adventures, LLC, 809 F.3d 1150 (10th Cir. 2016), the Tenth Circuit Court of Appeals upheld the validity of the release.

Is it a Trademark?

Fanciful, Arbitrary, and Suggestive Trademarks: Are inherently distinctive. Secondary Meaning: Descriptive terms, geographic terms, and personal names are not inherently distinctive and do not receive protection under the law until they acquire a secondary meaning. Generic Terms: Generally do not receive trademark protection. Colors? What about green for a tractor?

Contracts to Pay Another's Debt (Guaranty Contracts): Example:

Father says to auto dealer concerning a son's car purchase, "Deliver the car to my son. If he does not pay for it, then I promise to pay." The son has the primary obligation for the debt; the father has a secondary obligation to pay. Note that the son's promise is not within the statute of frauds; HOWEVER, the father's promise is since it is a secondary obligation.

Modern Application of Strict Liability - Food Products

How should the "defectiveness" of food be measured? Foreign/Natural Distinction: Some courts have made a distinction between "foreign" material and "natural" material in the food. Under this approach, there is strict liability for "foreign" matter found in food (e.g., a piece of metal inside a can of tuna fish), but no strict liability for the vendor's failure to remove a naturally-occurring substance from the food (e.g., bone fragments in canned tuna, or pits in cherries). Mexicali Rose v. Superior Court, 822 P.2d 1292 (Cal. 1992) (no strict liability for chicken bone in enchilada, because the injury-producing substance "is natural to the preparation of the food served, [and therefore] was reasonably expected by its very nature [so that] the food cannot be determined unfit or defective.") "Consumer Expectation Test" - Most courts, however, have applied a "consumer expectation" test, under which the food product is defective if and only if it contains an ingredient that a reasonable consumer would not expect it to contain.

Contract Law Hypothetical

Hypothetical: You are on the market looking for a new home in Tallahassee. You purchase the home, contract all completed, but soon thereafter learn the house has the reputation of being haunted. The seller did not disclose the fact the house had a "reputation" for being haunted before the contract was completed. Should this contract be rescinded? Why or why not? Note: These facts are based upon the actual facts of a New York case, Stambovsky v. Ackley, 169 A.D.2d 254 (N.Y. App. Div. 1991). Although New York generally follows the caveat emptor rule and a buyer is required to inspect the house for any defects, in this particular case the court found the buyer probably would not have been able to discover that the house was haunted had he inspected it. Furthermore, the seller knew of the reputation for the house and did not disclose this fact to the buyer. The Court held that the buyer was entitled to rescind the contract for sale.

Modified Comparative Fault (50 percent rule - most states)

If Plaintiff's contribution is less than 50%, Plaintiff can recover. If a jury finds Plaintiff 25% responsible, and Defendant 75% responsible, Plaintiff only recovers 75% of the total damages suffered.

Mailbox Rule

If mail is the authorized medium, the acceptance letter is effective the moment it is mailed, even if the offeror never receives the letter of acceptance. However, the offeror can work around the mailbox rule by simply stating in the offer that the acceptance is not effective until it is actually received.

Trade Dress

Image and overall appearance of a product. It can include either all or part of the total image or overall impression created by a product or its packaging. Trade dress is subject to the same protection as trademarks. -Examples: The distinctive decor, menu, layout, and style of service of a particular restaurant may be regarded as trade dress. Trade dress can also include the layout and appearance of a catalogue, the use of a lighthouse as part of the design of a golf hole, the fish shape of a cracker, or the G-shaped design of a Gucci watch.

Market Share Liability

Imposes liability upon ALL parties in cases where a plaintiff cannot prove which manufacturer produces the defective product or cannot prove which distributor supplied the defective product which caused the injuries. Example: John Smith, a resident of Hawaii, was a hemophiliac. Because of his condition, Smith received injections of a blood protein known as anti-hemophiliac factor (AHF) concentrate. Smith later tested positive for the acquired immune deficiency syndrome (AIDS) virus. Because it was not known which manufacturer was responsible for the particular AHF received by Smith, the court held that all of the manufacturers could be held liable under the theory of market share liability.

Fair Use Exception

In some cases, individuals or organizations can produce copyrighted works without paying royalties to the copyright holder. "[T]he fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by [Section 106 of the Copyright Act], for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright." 4 Part Test: 1. The purpose and character of the use; 2. The nature of the copyrighted work; 3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and 4. The effect of the use upon the potential market for or value of the copyrighted work. Parodies: Generally protected by "fair use" doctrine.

VOIDABLE CONTRACTS Those Who Claim Mental Incompetence

Individual must be unable to comprehend the subject matter of the contract, its nature, and probable consequences.

penalties of counterfeit goods

Individuals found guilty of violations may be fined of up to $2 million or imprisoned for up to 10 years (or more for repeat violations). The court must also order the defendant to forfeit the counterfeit products (which are then destroyed), as well as any property used in the commission of the crime. The defendant must also pay restitution to the trademark holder or victim in an amount equal to the victim's actual loss.

Defenses to Strict Liability: Comparative Fault

Is a defense that is available in cases involving strict liability. For the purposes of comparative fault, negligence of the Plaintiff is not a defense when such negligence consists merely of a failure to discover the defect in the product or to guard against the possibility of its existence.

Illegal Contracts, Contracts with Unlicensed Practitioners

Licensing statutes are designed to protect the public against unqualified persons from practicing certain professions. As a general rule, personal service agreements are unenforceable if the party performing the service is not legally entitled to do so. Doctors, dentists, pharmacists, architects, lawyers, accountants, surveyors, real estate brokers, and others who perform professional services must be licensed by the appropriate body before they are allowed to contract with the general public. Example: Professor Marzen is licensed to practice law in Nebraska and Iowa, but not North Dakota. He impermissibly gives someone legal advice in North Dakota and sends a bill to the client, a state where he is not licensed. The client of Professor Marzen would be able to successfully refuse to pay on the basis that the contract for legal services is illegal.

Collective Mark

Mark used by members of a cooperative, association, or other organization.

3. Pat Plaintiff is injured by an allegedly defective fishing pole while out fishing on a lake in 2008. The fishing pole was manufactured in 1995 and the state in which the injury incident occurs has a 10-year statute of repose. Pat Plaintiff files a lawsuit in 2010. The state has a 3-year statute of limitations. Should the manufacturer of the allegedly defective fishing pole be held liable by a court for strict liability?

NO

Due Care

Negligence: failure to exercise due care. A person usually has no duty to avoid injuring through lack of action (i.e., failure to rescue). There is no affirmative duty to rescue, unless a special type of relationship exists (i.e., doctor who passes scene of accident).

Preliminary Negotiation

Offers must be distinguished from preliminary negotiations. Example: A writes B, "I am eager to sell my house. I would consider $200,000." B responds, "I will buy your house for $200,000." A has not made an offer, and there is no contract. B should reasonably have understood that A was merely soliciting bids, or starting negotiations, and was not ready to bind himself to the $200,000 price. However, if A writes B, "I will sell my house for $200,000," these words indicate present commitment/undertaking.

Pure Comparative Fault (some states)

Plaintiff can recover damages even if Plaintiff's negligence is greater than that of the Defendant. If a jury finds Plaintiff 95% responsible, and Defendant 5% responsible, Plaintiff recovers 5% of the total damages suffered.

Contracts That Cannot Be Performed Within One Year From the Date of Making

Please note that the statute of frauds does not apply if there is a slight possibility the contract could be performed within one year. Example: An oral contract to pay $10,000 "when cars are no longer polluting the air" is enforceable since it is remotely possible cars may not pollute the air within one year.

Professional negligence

Professional negligence is NOT subject to the reasonable-person standard. The standard for professionals is: The knowledge, skill, and judgment usually possessed by members of that same profession in that community. Example: The standard of care for a lawyer is judged by the knowledge, skill, and judgment possessed by lawyers in that same community.

offer

Promise or commitment to do or refrain from doing some specified action in the future. Offers must be distinguished from preliminary negotiations, price quotations, most general advertisements, social invitations, and "offers" made in excitement or jest.

Lack of Consideration - Gifts RULE:

Promises to make gifts are generally unenforceable due to lack of consideration. The reason for this is because no "detriment" is suffered by the promisee. Example: Relative says to A, "I will give you my diamond engagement ring when I die." If the relative dies, and gives the diamond engagement ring to B, A cannot enforce the promise in court to obtain the ring. Question: A promises his nephew $5,000 if the nephew will refrain from smoking, drinking and gambling until he reaches the age of 21. The nephew abstains. Is there consideration? Answer: In the case of Hamer v. Sidway, 124 N.Y. 538 (1891 New York), the New York Court of Appeals held the uncle's promise was supported by consideration and was "bargained for." Even though the uncle did not economically benefit from the promise, he obtained something in exchange from the nephew that was desirable (his relative's health).

Contracts in Consideration of Marriage: Example

Promises to pay money or property if someone marries or promises to marry a person. Contracts by Executors of Decedents' Estates to Pay Estate Debts from Executors' Own Personal Funds

Federal Trademark Dilution Act of 1995

Protects "distinctive" or "famous" trademarks and allows trademark owners to bring suit in federal court against unauthorized use of an identical or similar mark. In 2006, Congress further amended the law by passage of the Trademark Dilution Revision Act (TDRA). Under the TDRA, a plaintiff must prove the following: 1) The plaintiff owns a famous mark that is distinctive; 2) The defendant has begun using a mark in commerce that allegedly is diluting the famous mark; 3) The similarity between the defendant's mark and the famous mark gives rise to an association between the marks; 4) The association is likely to impair the distinctiveness of the famous mark or harm its reputation.

Lanham Act

Protects trademarks at the federal statutory level

How to Obtain Copyright

Registering copyright with U.S. copyright office, mailing the item to one's own address. What about placing the copyright symbol on the work?

First Sale Doctrine

Section 109(a) of the Copyright Act provides that the owner of a particular item that is copyrighted can, without the authority of the copyright owner, sell or otherwise dispose of it. This is known as the "first sale" doctrine. Under this doctrine, once a copyright owner sells or gives away a particular copy of a work, the copyright owner no longer has the right to control the distribution of that copy. Thus, for instance, a person who buys a copyrighted book can sell it to someone else.

Social Invitations

Social invitations are also not offers. If a person receives a social invitation, and the social event is canceled, then the recipient of the invitation has no legal remedy. "Offers" Made in Excitement or Jest: Promises made under excitement or jest are NOT offers. Example: A person's car breaks down on the way to BUL 3310 class. The person screams, "I will sell this car to anyone for a dollar!" A bystander comes up and hands the person a dollar. There is NO contract, since a reasonable person in the bystander's position would have recognized the excited statement as a nonbinding utterance.

Abnormally Dangerous Activities

Strict liability is typically imposed in cases of "abnormally dangerous activities" 1. Use and storage of explosives? Yes - a party who uses or stores explosives is generally held strictly liable for any damages that may result. 2. Crop dusting or spraying? Yes 3. Airplane Accidents? Generally no - in cases of a suit by a passenger against an airline carrier. It is necessary for the plaintiff to show negligence, either on the part of the pilot, the maintenance crew, the manufacturer, etc. 4. The running of a nuclear reactor? Yes 5. Toxic Chemicals and Flammable Liquids? Maybe. Transporters of gasoline and propane have often been held strictly liable for spills and explosions (Siegler v. Kuhlman, spillage of gasoline from a truck). But some courts have denied strict liability in this situation, either on the grounds that the activity is not all that unusual, or on the grounds that the risk could be eliminated by the exercise of reasonable care. (Indiana Harbor Belt Co. v. American Cyanamid Co., holding that a negligence standard would adequately handle the problem of spillage of flammable materials during transportation). 6. Manufacturers of Fireworks? Yes.

Example of First Sale Doctrine: Kirtsaeng v. John Wiley & Sons, 133 S. Ct. 1351 (U.S. 2013)

Supap Kirtsaeng, a citizen of Thailand, was a graduate student at the University of Southern California. He enlisted friends and family in Thailand to buy copies of textbooks there and ship them to him in the United States. Kirtsaeng resold the textbooks on eBay, where he eventually made about $100,000. John Wiley & Sons, Inc., had printed eight of those textbooks in Asia. Wiley sued Kirtsaeng in federal district court for copyright infringement. Kirtsaeng argued that Section 109(a) of the Copyright Act allows the first purchaser-owner of a book to sell it without the copyright owner's permission. The trial court held in favor of Wiley, and that decision was affirmed on appeal. Kirtsaeng then appealed to the United States Supreme Court, which ruled in Kirtsaeng's favor. The first sale doctrine applies even to goods purchased abroad and resold in the United States.

Defenses: Comparative Fault

The Plaintiff's contribution of fault does not bar recovery; it is just compared with the fault of the Defendant.

Restatement Third of Torts: Products Liability: Design Defects, Manufacturing Defects, and Failure to Warn Defects

The Third Restatement reflects trends in interpretation of strict liability/products liability form the 1960s to 1990s. It categorizes three types of defects: manufacturing defects, design defects, and warning defects.

Proximate Cause (Legal Cause)

The act or the omission complained of must be close to injury or damage in order for the law to allow recovery for negligence. Policy limitations limit a defendant's responsibility to immediate, or foreseeable, harm. Example: Plaintiff suffers a heart attack when informed that her daughter and granddaughter are killed in an auto accident. The Plaintiff probably could not collect from the party at fault in the auto accident because her injury was not foreseeable and predictable. There is no proximate cause, although actual cause (cause-in-fact) is present.

Defenses to Strict Liability: Commonly Known Dangers

The dangers associated with certain products (such as matches and sharp knives) are so commonly known, manufacturers need not warn users of those dangers.

Silence as Acceptance?

The general rule is that mere silence of the offeree does not amount to acceptance of an offer. However, there is an exception in the case of previous dealings between an offeror-offeree where silence has previously constituted acceptance.

Design Defect

The product corresponds to the design, and the manufacturer built the product exactly as intended, but the design itself is faulty, and the injury has resulted from the design defect. To successfully assert a design defect, a plaintiff has to show that a reasonable alternative design was available and that the defendant's failure to adopt the alternative design rendered the product not reasonably safe.

Failure to Warn Defect

The product is defective in neither design nor manufacture, but it poses some inherent danger about which the manufacturer has failed to provide adequate warning. Courts apply a "reasonableness" test to determine if the warnings adequately alert consumers to the product's risks. For example, children will likely respond to bright, bold, simple warning labels, whereas educated adults might need more detailed information.

VOIDABLE CONTRACTS Duress by Improper Threats:

The use of improper threats or acts, including economic and social coercion, to compel a person to enter into a contract. This type of contract is VOIDABLE at the coerced party's option. Example: P works for D under an at-will arrangement, by which the employment may be terminated at any time at the option of either party. D threatens to fire P unless he agrees to sell shares of stock in D back to the company. This would probably be found to constitute duress, even though D theoretically has the right to fire P for no reason. Therefore, if P sold (or agreed to sell) the shares to D under these circumstances, a court would probably void the transaction.

Service Mark

Trademark that is used to distinguish the services (rather than the products) of one person or company from those of another.

VOIDABLE CONTRACTS Continued...

Undue influence may be rounds for rescission of a contract. This is where one person overpowers the will of another by use of moral, social or domestic force. This frequently arises in situations involving the elderly. A contract induced by undue influence on the part of the stronger party is VOIDABLE at the option of the weaker party. "Undue influence, as it is required for invalidation of a will, must amount to over-persuasion, duress, force, coercion, or artful or fraudulent contrivances to such a degree that there is destruction of the free agency and will power of the one making the will. Mere affection, kindness, or attachment of one person for another may not of itself constitute undue influence." - Heasley v. Evans, 104 So.2d 854, 857 (Fla. App. 1958).

Certification Mark

Used by one or more persons, other than the owner, to certify the region, materials, mode of manufacture, quality, or other characteristics of specific goods or services. -Example: "Good Housekeeping Seal of Approval"

Acceptance

Voluntary act by the offeree that shows assent (agreement) to the terms of an offer.

Defenses to Strict Liability: Product Misuse

When a product is used for a purpose for which it was not intended. Even if the injured party does not know about the inherent danger of using the product in a wrong way, if a misuse is reasonably foreseeable the seller must take measures to guard against it.

Lack of Consideration - Preexisting Duty RULE:

When one promises to do what one is already legally obligated to do or promises to refrain from what one legally cannot do, then the promisor incurs no legal detriment. Example: The Plaintiffs, a group of workers, sign contracts at a fixed rate to work on Defendant's ship during the salmon canning season, as the ship goes from San Francisco to Alaska and back. When the ship arrives in Alaska, the workers tell Defendant that they will not do any more work unless Defendant gives them a very substantial increase in salary. Since Defendant has nowhere to get replacement workers, it agrees; the Plaintiffs work on the way back to San Francisco. Defendant then refuses to pay the extra money, and the Plaintiffs sue. The 9th Circuit Court of Appeals held in Alaska Packers Association v. Domenico, 117 Fed. 99 (9th Cir. 1902) that the agreement to pay the extra money was without consideration, since by agreeing to work on the way back to San Francisco, the Plaintiffs were simply agreeing to do what they were already bound to do under the contract. Furthermore, the Plaintiffs conduct was coercive.

Assumption of the Risk

Where Plaintiff voluntarily assumes a known risk of harm. Requires Defendant to Show: 1. Plaintiff knew of the risk associated with a particular activity; and 2. Voluntarily agreed to assume that risk.

Ownership of Copyrights

Who owns copyrights? The author of a work owns the copyright in it, but can transfer some or all of the rights associated in it. If it is a "joint work," both authors own a single copyright in the work. Exception - "Work for hire" Collective Works: Where a work consists of separate, independent, individual works of authorship. Each of the authors in a collective work enjoy copyright in their individual work. Transfer: A copyright ownership may be transferred, but it must be in writing and signed by the transferor. In some cases, one may transfer non-exclusive rights to a work, which would not be a transfer of copyright ownership, but rather the granting of a license. The granting of a license can be either through writing or verbal.

Duration of Copyrights

Works created after January 1, 1978, are given protection for the life of the author plus 70 years. After this time expires, the work enters the public domain.

Elements of Negligence

duty, breach of the duty, actual causation, proximate causation, damages.