Friday, November 7, 2008
What happened to the Blawg?
Just to let everyone know, I've left the law school community for now, and the blawg is going dark for a bit. I'll leave it up, of course, but as the last month may have clued you in, there won't be much in the way of updates. Best of luck to all of you!
Wednesday, September 17, 2008
Chaffin v. Brame
Chaffin v. Brame
233 N.C. 377, 64 S.E.2d 276 (1951)
Facts: Plaintiff was driving on a highway when defendant approached from the opposite direction. Defendant refused to dim his lights, temporarily blinding plaintiff; plaintiff then ran into an unlit truck that had been blocking the whole right lane.
Procedure: Trial found for the plaintiff; defendant appeals.
Issue: Was plaintiff guilty of contributory negligence as a matter of law?
Holding: No.
Reasoning: Since he was blinded by the lights and reacted reasonably by slowing down, the whole don't-drive-faster-than-your-lights doctrine doesn't apply.
233 N.C. 377, 64 S.E.2d 276 (1951)
Facts: Plaintiff was driving on a highway when defendant approached from the opposite direction. Defendant refused to dim his lights, temporarily blinding plaintiff; plaintiff then ran into an unlit truck that had been blocking the whole right lane.
Procedure: Trial found for the plaintiff; defendant appeals.
Issue: Was plaintiff guilty of contributory negligence as a matter of law?
Holding: No.
Reasoning: Since he was blinded by the lights and reacted reasonably by slowing down, the whole don't-drive-faster-than-your-lights doctrine doesn't apply.
Marshall v. Southern Railway Co.
Marshall v. Southern Railway Co.
233 N.C. 38, 62 S.E.2d 489 (1950)
Facts: Defendant's train tracks had supports by a road; plaintiff ran into them because he was distracted by another driver's brights.
Procedure: Trial judge sustained defendant's motion for nonsuit.
Issue: Was there a suit?
Holding: No.
Reasoning: Plaintiff failed to exercise due care as a driver.
233 N.C. 38, 62 S.E.2d 489 (1950)
Facts: Defendant's train tracks had supports by a road; plaintiff ran into them because he was distracted by another driver's brights.
Procedure: Trial judge sustained defendant's motion for nonsuit.
Issue: Was there a suit?
Holding: No.
Reasoning: Plaintiff failed to exercise due care as a driver.
Tuesday, September 16, 2008
Brown Machine, Inc. v. Hercules, Inc.
Brown Machine, Inc. v. Hercules, Inc.
Missouri Court of Appeals
770 S.W.2d 416 (1989)
Facts: Oi... the companies did the same old rigamarole of ignoring each other's forms. Brown sold a machine to Hercules using this amazing process. A Hercules employee sued Brown for injuries sustained working at the machine in Hercules' plant. Case turns on which form was the contract or held the controlling terms, since that would indicate who could be held liable. Brown settled the case and then sued Hercules, saying that Hercules should have been liable by the "contract."
Procedure: Trial court found for Brown; Hercules appeals.
Issue: Did Brown's acknowledgment containing the indemnity provision constitute a counter offer, of an acceptance of Hercules' offer with additional/different terms?
Holding: Yes.
Reasoning: Brown's machine order acknowledgment is not a counter offer, so it must be an acceptance with different terms. Since Hercules' purchase order specifically limited it to the stated terms, Brown's terms fall into the abyss.
Monday, September 15, 2008
Princess Cruises, Inc. v. General Electric Co.
Princess Cruises, Inc. v. General Electric Co.
United States Court of Appeals
143 F.3d 828 (4th Cir. 1998)
Facts: Princess scheduled a inspection and repair stop with GE. They negotiated on the terms and settled on GE's last proposal. During the course of repairs, there were delays that caused Princess to have to cancel a Christmas and Easter cruise. Princess sued for breach of contract.
Procedure: Trial court found for Princess. GE renewed a motion for a verdict as a matter of law and was denied; GE appeals.
Issue: Should a court rely on the UCC for a contract primarily for services?
Holding: No, common law applies.
Reasoning: UCC doesn't apply to admiralty law regardless of the nature of the transaction, i.e. goods v. services matters. The contract was in fact primarily for services. Thus, common law principles of form apply, so GE's form was the only one the jury should have used in calculating damages, and that form limited GE's liability. "We reverse the district court's decision denying GE's motion for judgement as a matter of law and remand for entry of judgment against GE in the amount of $231,925.00, interest to accumulate from the date of the original judgment.
United States Court of Appeals
143 F.3d 828 (4th Cir. 1998)
Facts: Princess scheduled a inspection and repair stop with GE. They negotiated on the terms and settled on GE's last proposal. During the course of repairs, there were delays that caused Princess to have to cancel a Christmas and Easter cruise. Princess sued for breach of contract.
Procedure: Trial court found for Princess. GE renewed a motion for a verdict as a matter of law and was denied; GE appeals.
Issue: Should a court rely on the UCC for a contract primarily for services?
Holding: No, common law applies.
Reasoning: UCC doesn't apply to admiralty law regardless of the nature of the transaction, i.e. goods v. services matters. The contract was in fact primarily for services. Thus, common law principles of form apply, so GE's form was the only one the jury should have used in calculating damages, and that form limited GE's liability. "We reverse the district court's decision denying GE's motion for judgement as a matter of law and remand for entry of judgment against GE in the amount of $231,925.00, interest to accumulate from the date of the original judgment.
Hudson-Connor v. Putney
Hudson-Connor v. Putney
192 Or. App. 488, 86 P.3d 106 (2004)
Facts: Defendant allowed an 11 year old boy to drive her golf cart. The boy made a mistake and hit the plaintiff, breaking her leg.
Procedure: Trial court found for the defendant.
Issue: Should the defendant be held to an adult standard of care?
Holding: No.
Reasoning: Since golf carts are not inherently dangerous and the operation of one by a minor is not an adult activity, the handing over of one to another minor is also not an adult activity.
192 Or. App. 488, 86 P.3d 106 (2004)
Facts: Defendant allowed an 11 year old boy to drive her golf cart. The boy made a mistake and hit the plaintiff, breaking her leg.
Procedure: Trial court found for the defendant.
Issue: Should the defendant be held to an adult standard of care?
Holding: No.
Reasoning: Since golf carts are not inherently dangerous and the operation of one by a minor is not an adult activity, the handing over of one to another minor is also not an adult activity.
Robinson v. Lindsay
Robinson v. Lindsay
92 Wash.2d 410, 598 P.2d 392 (1979)
Facts: Robinson got her thumb injured by Anderson while he was operating a snowmobile.
Procedure: Trial court found for Anderson; they then ordered a new trial since the jury instructions should have included something about adult standard of care. Appeal is over that decision.
Issue: Should a minor operating a snowmobile be held to an adult standard of care?
Holding: Yes.
Reasoning: When involved in dangerous activities, minors should be held to an adult standard of care. Though accidents can occur
92 Wash.2d 410, 598 P.2d 392 (1979)
Facts: Robinson got her thumb injured by Anderson while he was operating a snowmobile.
Procedure: Trial court found for Anderson; they then ordered a new trial since the jury instructions should have included something about adult standard of care. Appeal is over that decision.
Issue: Should a minor operating a snowmobile be held to an adult standard of care?
Holding: Yes.
Reasoning: When involved in dangerous activities, minors should be held to an adult standard of care. Though accidents can occur
Wilson v. Sibert
Wilson v. Sibert
535 P.ed 1034 (Alaska 1975)
Facts: Plaintiff, Wilson, pulled up behind defendant, Sibert, at a drive-in window. When the car in front of Sibert suddenly reversed, Sibert reacted by shifting into reverse and driving backwards, thus slamming into Wilson's car.
Procedure: Trial court found that Sibert was not negligent; Plaintiff appeals.
Issue: Did the court err in denying a motion for directed verdict? Did it err in adding the sudden emergency doctrine to the jury instructions (by prejudicing the jury)?
Holding: No and No.
Reasoning: The motion was correctly denied because the facts allowed for a reasonable diversity of opinions. Jury instructions are left up to the trial court unless there is evidence of an abuse of discretion.
535 P.ed 1034 (Alaska 1975)
Facts: Plaintiff, Wilson, pulled up behind defendant, Sibert, at a drive-in window. When the car in front of Sibert suddenly reversed, Sibert reacted by shifting into reverse and driving backwards, thus slamming into Wilson's car.
Procedure: Trial court found that Sibert was not negligent; Plaintiff appeals.
Issue: Did the court err in denying a motion for directed verdict? Did it err in adding the sudden emergency doctrine to the jury instructions (by prejudicing the jury)?
Holding: No and No.
Reasoning: The motion was correctly denied because the facts allowed for a reasonable diversity of opinions. Jury instructions are left up to the trial court unless there is evidence of an abuse of discretion.
Stewart v. Motts
Stewart v. Motts
539 Pa. 596, 654 A.2d 535 (1995)
Facts: Plaintiff, Stewart, stopped at defendant's auto shop and offered to help the defendant, Motts, repair an automobile fuel tank. The plaintiff suggested a course of action; the defendant agreed. The exact sequence of events is contested, but the car backfired and burned the plaintiff. The plaintiff argues on appeal that the judge should have instructed the jury that the circumstances required a "high degree of care."
Procedure: Trial court found for the defendant; plaintiff appeals.
Issue: Should the defendant have used a "high degree of care" in handling gasoline?
Holding: No.
Reasoning: The standard of "reasonable care" never varies; only what is reasonable under the circumstances. Reasonable care is always proportionate to the danger of the act.
539 Pa. 596, 654 A.2d 535 (1995)
Facts: Plaintiff, Stewart, stopped at defendant's auto shop and offered to help the defendant, Motts, repair an automobile fuel tank. The plaintiff suggested a course of action; the defendant agreed. The exact sequence of events is contested, but the car backfired and burned the plaintiff. The plaintiff argues on appeal that the judge should have instructed the jury that the circumstances required a "high degree of care."
Procedure: Trial court found for the defendant; plaintiff appeals.
Issue: Should the defendant have used a "high degree of care" in handling gasoline?
Holding: No.
Reasoning: The standard of "reasonable care" never varies; only what is reasonable under the circumstances. Reasonable care is always proportionate to the danger of the act.
Friday, September 12, 2008
Thursday, September 11, 2008
McCulloch v. Maryland
McCulloch v. Maryland
17 U.S. (4 Wheat.) 316 (1819)
Facts: Maryland tried to tax the federal bank; the bank refused to pay. (McCulloch worked for the bank).
Procedure: James v. McCulloch was the trial, which was decided for the plaintiff.
Issue: (a) Can the federal government/congress charter a bank? (b) Can the states tax it?
Holding: (a) Yes and (b) no.
Reasoning: (a) The fed gov't has the ability to use the means to pursue it's constitutional powers, unless those means have been specifically prohibited/restricted by the constitution. (b) The federal gov't is not a subject of the states, it is the government of the states; also the other states are indirectly taxed by Maryland's federal tax, which is taxation without representation or recourse.
17 U.S. (4 Wheat.) 316 (1819)
Facts: Maryland tried to tax the federal bank; the bank refused to pay. (McCulloch worked for the bank).
Procedure: James v. McCulloch was the trial, which was decided for the plaintiff.
Issue: (a) Can the federal government/congress charter a bank? (b) Can the states tax it?
Holding: (a) Yes and (b) no.
Reasoning: (a) The fed gov't has the ability to use the means to pursue it's constitutional powers, unless those means have been specifically prohibited/restricted by the constitution. (b) The federal gov't is not a subject of the states, it is the government of the states; also the other states are indirectly taxed by Maryland's federal tax, which is taxation without representation or recourse.
Record Time?
Whoa! Over 100 posts already. Maybe I'll wait until 500 to celebrate.
(Three weeks and I've already killed the digital equivalent of a one-subject notebook...)
(Three weeks and I've already killed the digital equivalent of a one-subject notebook...)
World-Wide Volkswagen Corp. v. Woodson
World-Wide Volkswagen Corp. v. Woodson
Supreme Court of the United States, 1980
444 U.S. 286, 100 S.Ct. 559, 62 L.Ed. 2d 490.
Facts: The Robinsons bought a car in New York. A year later they moved to Arizona. On the way, in Oklahoma, they got rear-ended which started a fire that severely burned Kay Robinison and the children. The Robinsons brought a product-liability action in the District Court for Creek County, OK against the World-Wide Volkswagen (among others).
Procedure: The current plaintiff tried to get the trail judge of the Robinson case to admit that there was no jurisdiction over them under the Due Process clause. When the judge refused, they sought a writ of prohibition from the Supreme Court of Oklahoma. The supreme court denied, and so they appealed.
Issue: Does the Due Process clause of the Fourteenth amendment allow for in personam jurisdiction in a case where the only connection to the location is that the accident happened there?
Holding: No.
Reasoning: There are no contacts with the state and the mere "forseeability" of one of it's products passing through it is not enough.
Supreme Court of the United States, 1980
444 U.S. 286, 100 S.Ct. 559, 62 L.Ed. 2d 490.
Facts: The Robinsons bought a car in New York. A year later they moved to Arizona. On the way, in Oklahoma, they got rear-ended which started a fire that severely burned Kay Robinison and the children. The Robinsons brought a product-liability action in the District Court for Creek County, OK against the World-Wide Volkswagen (among others).
Procedure: The current plaintiff tried to get the trail judge of the Robinson case to admit that there was no jurisdiction over them under the Due Process clause. When the judge refused, they sought a writ of prohibition from the Supreme Court of Oklahoma. The supreme court denied, and so they appealed.
Issue: Does the Due Process clause of the Fourteenth amendment allow for in personam jurisdiction in a case where the only connection to the location is that the accident happened there?
Holding: No.
Reasoning: There are no contacts with the state and the mere "forseeability" of one of it's products passing through it is not enough.
Vincent v. Lake Erie Transportation Co.
Vincent v. Lake Erie Transportation Co.
109 Minn. 456, 124 N.W. 221 (1910)
Facts: Defendant's ship was moored at Plaintiff's dock during a storm, which cause some $500 in damages to the dock.
Procedure: Jury trial court found for the plaintiff.
Issue: Does necessity defense apply?
Holding: No.
Reasoning: Yes, there was necessity, but they should still pay because their act caused the damages (sort of no-fault-ish). It was calculated to save the ship at the expense of the dock, and the expense of the dock will be paid.
109 Minn. 456, 124 N.W. 221 (1910)
Facts: Defendant's ship was moored at Plaintiff's dock during a storm, which cause some $500 in damages to the dock.
Procedure: Jury trial court found for the plaintiff.
Issue: Does necessity defense apply?
Holding: No.
Reasoning: Yes, there was necessity, but they should still pay because their act caused the damages (sort of no-fault-ish). It was calculated to save the ship at the expense of the dock, and the expense of the dock will be paid.
Ploof v. Putnam
Ploof v. Putnam
81 Vt. 471, 71 A. 188 (1908)
Facts: A storm came up on Lake Champlain, and the plaintiff moored his boat on the defendant's dock. The defendant through his servant unmoored the boat, which destroyed the boat and harmed the plaintiff and his family. Plaintiff claims that necessity made his mooring not a trespass, and that defendant shouldn't have unmoored him.
Procedure: Not clear.
Issue: Was there a trespass?
Holding: No, so the unmooring was therefore not a defense of property.
Reasoning: Necessity, especially to preserve lives, certainly allows people to pass onto a property without trespass.
81 Vt. 471, 71 A. 188 (1908)
Facts: A storm came up on Lake Champlain, and the plaintiff moored his boat on the defendant's dock. The defendant through his servant unmoored the boat, which destroyed the boat and harmed the plaintiff and his family. Plaintiff claims that necessity made his mooring not a trespass, and that defendant shouldn't have unmoored him.
Procedure: Not clear.
Issue: Was there a trespass?
Holding: No, so the unmooring was therefore not a defense of property.
Reasoning: Necessity, especially to preserve lives, certainly allows people to pass onto a property without trespass.
Wegner v. Milwaukee Mutual Ins. Co.
Wegner v. Milwaukee Mutual Ins. Co.
479 N.W.2d 38 (Minn. 1991)
Facts: In an attempt to flush out a suspect, cops tore up Wegner's house pretty bad. Wegner sued both the city and Milwaukee Mutual to recover damages for the destruction.
Procedure: Trial court and then appellate...
Issue: Does the necessity defense apply?
Holding: No.
Reasoning: The defense is a common law one, while the statute requiring recovery is a statute and therefore controlling.
479 N.W.2d 38 (Minn. 1991)
Facts: In an attempt to flush out a suspect, cops tore up Wegner's house pretty bad. Wegner sued both the city and Milwaukee Mutual to recover damages for the destruction.
Procedure: Trial court and then appellate...
Issue: Does the necessity defense apply?
Holding: No.
Reasoning: The defense is a common law one, while the statute requiring recovery is a statute and therefore controlling.
Surocco v. Geary
Surocco v. Geary
3 Cal. 69 (1853)
Facts: Geary, acting for the city of San Fransisco, blew up Surocco's house to make a fire break "in the conflagration then raging." Plaintiff was removing his goods prior to this and could have continued if not for being stopped by the destruction of his house.
Procedure: Trial court found for plaintiffs.
Issue: Can a person be held liable for acting out of necessity?
Holding: Not if necessity is clearly shown.
Reasoning: The well-being of the city is of more import than the individual's property rights, but this necessity must be determined on a case-by-case basis.
3 Cal. 69 (1853)
Facts: Geary, acting for the city of San Fransisco, blew up Surocco's house to make a fire break "in the conflagration then raging." Plaintiff was removing his goods prior to this and could have continued if not for being stopped by the destruction of his house.
Procedure: Trial court found for plaintiffs.
Issue: Can a person be held liable for acting out of necessity?
Holding: Not if necessity is clearly shown.
Reasoning: The well-being of the city is of more import than the individual's property rights, but this necessity must be determined on a case-by-case basis.
Wednesday, September 10, 2008
Tuesday, September 9, 2008
Drennan v. Star Paving Co.
Drennan v. Star Paving Co.
California Supreme Court
51 Cal. 2d 409, 333 P.2d 757 (1958)
Facts: Defendant, a sub-contractor, made a bid to do some paving for a contracting job. Contractor/plaintiff then made their own bid for the job and won based on their price. The next day (after the bids went through), the defendant showed up at the plaintiff's office and said there was a mistake, and they could only do it for double the price they'd bid. Since they refused to do it for less, the plaintiff shopped around and found someone who would do it for cheaper, but it was still more than the price of the defendant's original bid. Plaintiff sued the defendant for breach of contract, to the amount of the difference between their bid and what the plaintiff ultimately paid.
Procedure: Trial court found for plaintiff.
Issue: Did plaintiff's reliance make the defendant's offer irrevocable?
Holding: Yes.
Reasoning: It was analogous to a unilateral contract, i.e. substantial effort or reliance makes the contract whole. Plaintiff bound themselves to act based on the defendant's terms, so the defendant should also be bound. Affirmed.
California Supreme Court
51 Cal. 2d 409, 333 P.2d 757 (1958)
Facts: Defendant, a sub-contractor, made a bid to do some paving for a contracting job. Contractor/plaintiff then made their own bid for the job and won based on their price. The next day (after the bids went through), the defendant showed up at the plaintiff's office and said there was a mistake, and they could only do it for double the price they'd bid. Since they refused to do it for less, the plaintiff shopped around and found someone who would do it for cheaper, but it was still more than the price of the defendant's original bid. Plaintiff sued the defendant for breach of contract, to the amount of the difference between their bid and what the plaintiff ultimately paid.
Procedure: Trial court found for plaintiff.
Issue: Did plaintiff's reliance make the defendant's offer irrevocable?
Holding: Yes.
Reasoning: It was analogous to a unilateral contract, i.e. substantial effort or reliance makes the contract whole. Plaintiff bound themselves to act based on the defendant's terms, so the defendant should also be bound. Affirmed.
James Baird Co. v. Gimbel Bros., Inc.
eJames Baird Co. v. Gimbel Bros., Inc.
United States Court of Appeals
64 F.2d 344 (2d Cir. 1933)
Facts: Gimbel Bros. (the defendant) heard that there was a contract being bid on in Pennsylvania to build a public building; defendant calculated the amount of linoleum required for the building and sent an offer to the bidders on the contract, saying that whomever won the contract with PA could buy their linoleum at one of two price points (varying by quality). Unfortunately, the defendants had underestimated the amount by half. The plaintiff got the offer, and then sent a bid to the PA group based on the amounts stated, and then received the telegram from defendants saying that they were revoking their offer due to the miscalculation and would send one out later for about double the price. (The plaintiff received the offer and such on the 28th of December). On Dec. 30th PA accepted the plaintiff's bid. On the 31st, the plaintiff received the letter of withdrawl (of the offer?) from the defendant. The plaintiff formally accepted the original offer of the defendant, and when the defendant insisted there was no contract, sued for damages.
Procedure: Trial judge found for the defense; plaintiff appealed.
Issue: Was there a contract?
Holding: No.
Reasoning: Using the offer in the course of bidding does not count as relying on it in a meaniful legal way, especially since in the language of the offer you could only accept after you had won the contract from PA.
United States Court of Appeals
64 F.2d 344 (2d Cir. 1933)
Facts: Gimbel Bros. (the defendant) heard that there was a contract being bid on in Pennsylvania to build a public building; defendant calculated the amount of linoleum required for the building and sent an offer to the bidders on the contract, saying that whomever won the contract with PA could buy their linoleum at one of two price points (varying by quality). Unfortunately, the defendants had underestimated the amount by half. The plaintiff got the offer, and then sent a bid to the PA group based on the amounts stated, and then received the telegram from defendants saying that they were revoking their offer due to the miscalculation and would send one out later for about double the price. (The plaintiff received the offer and such on the 28th of December). On Dec. 30th PA accepted the plaintiff's bid. On the 31st, the plaintiff received the letter of withdrawl (of the offer?) from the defendant. The plaintiff formally accepted the original offer of the defendant, and when the defendant insisted there was no contract, sued for damages.
Procedure: Trial judge found for the defense; plaintiff appealed.
Issue: Was there a contract?
Holding: No.
Reasoning: Using the offer in the course of bidding does not count as relying on it in a meaniful legal way, especially since in the language of the offer you could only accept after you had won the contract from PA.
Plowman v. Indian Refining Co.
Plowman v. Indian Refining Co.
United States District Court
20 F. Supp. 1 (E.D. Ill. 1937)
Facts: Several employees were relieved of their duties at IR Co. but remained on the payroll in respect for their long service to the company (they were downsizing for economic reasons). The company maintains that the extended payroll was a gift; the employees maintain that it was contract and supposed to last their entire life. Controverted fact is whether anyone ever mentioned that the payments would go on for life.
Procedure: District Court level.
Issue: Do the past actions of the employees count as consideration?
Holding: No.
Reasoning: It cannot be consideration for a new contract if it has already been given and without reference to the contract. Plus traveling to the office to pick up the check was simply a condition, not consideration.
United States District Court
20 F. Supp. 1 (E.D. Ill. 1937)
Facts: Several employees were relieved of their duties at IR Co. but remained on the payroll in respect for their long service to the company (they were downsizing for economic reasons). The company maintains that the extended payroll was a gift; the employees maintain that it was contract and supposed to last their entire life. Controverted fact is whether anyone ever mentioned that the payments would go on for life.
Procedure: District Court level.
Issue: Do the past actions of the employees count as consideration?
Holding: No.
Reasoning: It cannot be consideration for a new contract if it has already been given and without reference to the contract. Plus traveling to the office to pick up the check was simply a condition, not consideration.
Monday, September 8, 2008
Doe v. Johnson
Doe v. Johnson
817 F.Supp. 1382 (W.D. Mich. 1993)
Facts: Johnson transmitted HIV to Jane Doe through consensual sexual contact. He didn't warn her that he might have it or use a condom.
Procedure: Considering a motion to dismiss at the trial level.
Issue: Was it a battery?
Holding: Yes.
Reasoning: One who knows he has a venereal disease and knows his partner doesn't know, commits a tort by having intercourse, consensual or not.
817 F.Supp. 1382 (W.D. Mich. 1993)
Facts: Johnson transmitted HIV to Jane Doe through consensual sexual contact. He didn't warn her that he might have it or use a condom.
Procedure: Considering a motion to dismiss at the trial level.
Issue: Was it a battery?
Holding: Yes.
Reasoning: One who knows he has a venereal disease and knows his partner doesn't know, commits a tort by having intercourse, consensual or not.
Kennedy v. Parrott
Kennedy v. Parrott
243 N.C. 355, 90 S.E.2d 754 (1956)
Facts: Plaintiff consented to an appendectomy; her doctor, while operating, the doc noticed some cysts and operated on them too. After the operation, the plaintiff developed phlebitis in her leg and sued the doctor for battery (thinking the vein cut while operating on the cysts led to blood clots).
Procedure: Trial level held a nonsuit for the defendant.
Issue: Did her consent cover the extended touching?
Holding: Yes.
Reasoning: When a surgeon is acting in a professional capacity, consent should be construed as broadly as possible (as a matter of policy). (PS- no longer good law.)
243 N.C. 355, 90 S.E.2d 754 (1956)
Facts: Plaintiff consented to an appendectomy; her doctor, while operating, the doc noticed some cysts and operated on them too. After the operation, the plaintiff developed phlebitis in her leg and sued the doctor for battery (thinking the vein cut while operating on the cysts led to blood clots).
Procedure: Trial level held a nonsuit for the defendant.
Issue: Did her consent cover the extended touching?
Holding: Yes.
Reasoning: When a surgeon is acting in a professional capacity, consent should be construed as broadly as possible (as a matter of policy). (PS- no longer good law.)
Ashcraft v. King
Ashcraft v. King
228 Cal.App.3d 604, 278 Cal.Rptr. 900 (1991)
Facts: Woman consented to an operation as long as any required blood transfusions were made from family donated blood; hospital took family blood but used the hospital stores anyway. Woman got AIDS from the HIV positive blood the hospital used.
Procedure: (It's an appellate court, but the procedural history isn't explicit.)
Issue: Was it a battery, or did she consent?
Holding: Battery.
Reasoning: Her consent had limits; their behavior went beyond it.
228 Cal.App.3d 604, 278 Cal.Rptr. 900 (1991)
Facts: Woman consented to an operation as long as any required blood transfusions were made from family donated blood; hospital took family blood but used the hospital stores anyway. Woman got AIDS from the HIV positive blood the hospital used.
Procedure: (It's an appellate court, but the procedural history isn't explicit.)
Issue: Was it a battery, or did she consent?
Holding: Battery.
Reasoning: Her consent had limits; their behavior went beyond it.
Reavis v. Slominski
Reavis v. Slominski
250 Neb. 711, 551 N.W.2d 528 (1996)
Facts: Reavis was the employee of Slominski. They'd had prior sexual relations during a prior period of her employment with him, however the incident in question was the first since she'd resumed working for him. Both were at least somewhat intoxicated and alone with each other when Slominski locked a door and started kissing her. Reavis said no, but eventually went along because she felt she couldn't do anything and that Slominski would just laugh. The intercourse hurt her. She sued for battery since her actions didn't amount to consent, and even if they did, they wouldn't count because she had an abnormal ability to refuse sexual intercourse as a result of childhood sexual abuse.
Procedure: Trial court jury found for Reavis. Appealed by Slominski.
Issue: Did her words and actions amount to consent?
Holding: Perhaps; remanded for new trial.
Reasoning: The trial court erred in refusing to tell the jury that (a) incapacity only cancels out consent if that incapacity affects her ability to understand and judge her conduct and (b) the defendant has to have knowledge of that incapacity.
250 Neb. 711, 551 N.W.2d 528 (1996)
Facts: Reavis was the employee of Slominski. They'd had prior sexual relations during a prior period of her employment with him, however the incident in question was the first since she'd resumed working for him. Both were at least somewhat intoxicated and alone with each other when Slominski locked a door and started kissing her. Reavis said no, but eventually went along because she felt she couldn't do anything and that Slominski would just laugh. The intercourse hurt her. She sued for battery since her actions didn't amount to consent, and even if they did, they wouldn't count because she had an abnormal ability to refuse sexual intercourse as a result of childhood sexual abuse.
Procedure: Trial court jury found for Reavis. Appealed by Slominski.
Issue: Did her words and actions amount to consent?
Holding: Perhaps; remanded for new trial.
Reasoning: The trial court erred in refusing to tell the jury that (a) incapacity only cancels out consent if that incapacity affects her ability to understand and judge her conduct and (b) the defendant has to have knowledge of that incapacity.
Baksakis v. Demotsis
Baksakis v. Demotsis
Texas Court of Civil Appeals
226 S.W.2d 673 (1949)
Facts: Defendant borrowed some money from plaintiff during the war; it is claimed that there was no consideration, so it wasn't paid back. (The amount delivered to the plaintiff was worth $25 US Dollars, but the letter in question treats it at worth $2k US Dollars).
Procedure: Plaintiff sued to recover the $2k with interest. Trial court (without a jury) found in favor for the plaintiff to the amount of $750, with interest. Plaintiff appealed.
Issue: Was there consideration?
Holding: Yes.
Reasoning: Just because the consideration was inadequate does not mean it is not consideration. "Defendant got exactly what she contracted for."
Texas Court of Civil Appeals
226 S.W.2d 673 (1949)
Facts: Defendant borrowed some money from plaintiff during the war; it is claimed that there was no consideration, so it wasn't paid back. (The amount delivered to the plaintiff was worth $25 US Dollars, but the letter in question treats it at worth $2k US Dollars).
Procedure: Plaintiff sued to recover the $2k with interest. Trial court (without a jury) found in favor for the plaintiff to the amount of $750, with interest. Plaintiff appealed.
Issue: Was there consideration?
Holding: Yes.
Reasoning: Just because the consideration was inadequate does not mean it is not consideration. "Defendant got exactly what she contracted for."
Saturday, September 6, 2008
Dougherty v. Salt
Dougherty v. Salt
New York Court of Appeals
227 N.Y. 200, 125 N.E. 94 (1919)
Facts: Aunt gives a boy a note for $3k, payable on her death or any time before.
Procedure: Trial judge found for the defendant; appellate court reversed the dismissal; defendant appeals.
Issue: Is there a consideration if the giver of a gift/promise says so?
Holding: No.
Reasoning: The consideration must exist in reality somewhere, and besides, the story pretty much proves that it was just a gift.
New York Court of Appeals
227 N.Y. 200, 125 N.E. 94 (1919)
Facts: Aunt gives a boy a note for $3k, payable on her death or any time before.
Procedure: Trial judge found for the defendant; appellate court reversed the dismissal; defendant appeals.
Issue: Is there a consideration if the giver of a gift/promise says so?
Holding: No.
Reasoning: The consideration must exist in reality somewhere, and besides, the story pretty much proves that it was just a gift.
Pennsy Supply, Inc. v. American Ash Recycling Corp. of Pennsylvania
Pennsy Supply, Inc. v. American Ash Recycling Corp. of Pennsylvania
Pennsylvania Superior Court
895 A.2d 595 (2006)
Facts: Pennsy Supply was subcontracted to do some paving; the people who put up the contract mentioned that American Ash had some free AggRite for the project. Pennsy used it; the paving cracked, and they had to redo it and dispose of the AggRite, which is classed as toxic waste. Pennsy sued American Ash for the disposal costs, which it only incurred because the product was defective, and which it saved American Ash by using it for the project.
Procedure: Trial court dismissed; Pennsy appealed.
Issue: Was there consideration?
Holding: Yes. (Remanded for further proceedings.)
Reasoning: It wasn't a gift because American Ash received a benefit from the arrangement, which was the reason they were offering it free in the first place. "Complaint alleges facts which, if proven, would show the promise induced the detriment and the detriment induced the promise. This would be consideration."
Pennsylvania Superior Court
895 A.2d 595 (2006)
Facts: Pennsy Supply was subcontracted to do some paving; the people who put up the contract mentioned that American Ash had some free AggRite for the project. Pennsy used it; the paving cracked, and they had to redo it and dispose of the AggRite, which is classed as toxic waste. Pennsy sued American Ash for the disposal costs, which it only incurred because the product was defective, and which it saved American Ash by using it for the project.
Procedure: Trial court dismissed; Pennsy appealed.
Issue: Was there consideration?
Holding: Yes. (Remanded for further proceedings.)
Reasoning: It wasn't a gift because American Ash received a benefit from the arrangement, which was the reason they were offering it free in the first place. "Complaint alleges facts which, if proven, would show the promise induced the detriment and the detriment induced the promise. This would be consideration."
Hamer v. Sidway
Hamer v. Sidway
New York Court of Appeals
124 N.Y. 538, 27 N.E. 256 (1891)
Facts: A boy's uncle said that if refrained from certain vices until his 21st birthday, the uncle would give him $5k. Upon the boy's 21st birthday, the uncle said that he would hold it with interest for the boy until some unspecified time; he then died. The boy brought the suit against his uncle's estate.
Procedure: New York trial court found for the estate; special term of the trial court found for the boy; estate appealed.
Issue: Was the giving up of a legal right which may never the less benefited the one who gave it up a consideration?
Holding: Yes.
Reasoning: Giving up a legal right is a consideration, no matter if the act of giving it up confers some "benefit."
New York Court of Appeals
124 N.Y. 538, 27 N.E. 256 (1891)
Facts: A boy's uncle said that if refrained from certain vices until his 21st birthday, the uncle would give him $5k. Upon the boy's 21st birthday, the uncle said that he would hold it with interest for the boy until some unspecified time; he then died. The boy brought the suit against his uncle's estate.
Procedure: New York trial court found for the estate; special term of the trial court found for the boy; estate appealed.
Issue: Was the giving up of a legal right which may never the less benefited the one who gave it up a consideration?
Holding: Yes.
Reasoning: Giving up a legal right is a consideration, no matter if the act of giving it up confers some "benefit."
McGee v. International Life Ins. Co.
McGee v. International Life Ins. Co.
355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957)
Facts: McGee, a California resident, received a judgment in her favor against International Life Ins. Co. in a California court. (There was a law in California saying that if a foreign corporation has insurance contracts with state residents, it can be sued in California even if the corporation could not be served in California). Since McGee couldn't collect in California, she went to a Texas court, which refused to honor the suit under the 14th amendment.
Procedure: McGee sued I.L.I. Co. in California, tried to have the Texas courts enforce it, and they refused. McGee appealed.
Issue: Did the California courts have jurisdiction?
Holding: Yes
Reasoning: The trend has been towards expanding the power of the states' ability to exercise jurisdiction over foreign corporations; the SC believes this is a good thing and that the contract with a resident is enough for minimum contact.
355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957)
Facts: McGee, a California resident, received a judgment in her favor against International Life Ins. Co. in a California court. (There was a law in California saying that if a foreign corporation has insurance contracts with state residents, it can be sued in California even if the corporation could not be served in California). Since McGee couldn't collect in California, she went to a Texas court, which refused to honor the suit under the 14th amendment.
Procedure: McGee sued I.L.I. Co. in California, tried to have the Texas courts enforce it, and they refused. McGee appealed.
Issue: Did the California courts have jurisdiction?
Holding: Yes
Reasoning: The trend has been towards expanding the power of the states' ability to exercise jurisdiction over foreign corporations; the SC believes this is a good thing and that the contract with a resident is enough for minimum contact.
Friday, September 5, 2008
Thursday, September 4, 2008
International Shoe Co. v. Washington
International Shoe Co. v. Washington
Supreme Court of the United States, 1945.
326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95.
Facts: Washington had a statute that required employers to pay a certain amount per year into a state unemployment fund. (The amount is a percentage of the wages paid annually by an employer for his employees' "services in the state.") International Shoe Co., a Delaware corporation, never made those contributions. Washington personally served a sales solicitor employed by I.S. Co. in the state, and mailed a copy to the St. Louis, Missouri address of I.S. Co. I.S. Co. refused to pay, and claimed that service upon the salesman wasn't proper service to I.S. Co., and that the company was not based in Washington nor doing business there, nor employing anyone there within the meaning of the statute.
Procedure: I.S. Co. appeared before the office of unemployment to appeal, and the unemployment tribunal ruled against I.S. Co.; the Commissioner affirmed (the Commissioner was also a party to that tribunal?). Both the Superior Court and the Supreme Court of Washington affirmed. Appellant, I.S. Co., says the statutes as applied infringe the 14th Amendment's due process clause and the commerce clause.
Issue: Did the appellant submit themselves to Washington's jurisdiction via the 14th Amendment? And, is the statute (as applied) even legal via the 14th Amendment?
Holding: Yes and yes.
Reasoning: It's difficult to see where the line is drawn for substantial behavior within a state, but the amount of time and consistency of behavior involved seems to put I.S. Co on the substantial behavior side of it- so yes, there was jurisdiction. And no, the statute is not being pursued in such a way to violate either due the process or commerce clause.
Supreme Court of the United States, 1945.
326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95.
Facts: Washington had a statute that required employers to pay a certain amount per year into a state unemployment fund. (The amount is a percentage of the wages paid annually by an employer for his employees' "services in the state.") International Shoe Co., a Delaware corporation, never made those contributions. Washington personally served a sales solicitor employed by I.S. Co. in the state, and mailed a copy to the St. Louis, Missouri address of I.S. Co. I.S. Co. refused to pay, and claimed that service upon the salesman wasn't proper service to I.S. Co., and that the company was not based in Washington nor doing business there, nor employing anyone there within the meaning of the statute.
Procedure: I.S. Co. appeared before the office of unemployment to appeal, and the unemployment tribunal ruled against I.S. Co.; the Commissioner affirmed (the Commissioner was also a party to that tribunal?). Both the Superior Court and the Supreme Court of Washington affirmed. Appellant, I.S. Co., says the statutes as applied infringe the 14th Amendment's due process clause and the commerce clause.
Issue: Did the appellant submit themselves to Washington's jurisdiction via the 14th Amendment? And, is the statute (as applied) even legal via the 14th Amendment?
Holding: Yes and yes.
Reasoning: It's difficult to see where the line is drawn for substantial behavior within a state, but the amount of time and consistency of behavior involved seems to put I.S. Co on the substantial behavior side of it- so yes, there was jurisdiction. And no, the statute is not being pursued in such a way to violate either due the process or commerce clause.
Wednesday, September 3, 2008
Brown v. Martinez
Brown v. Martinez
68 N.M. 271, 361 P.2d 152 (1961)
Facts: Some kids entered a garden; the landowner shot away from them, hoping to scare them, and actually hit a kid running in the other direction.
Procedure: Trial court dismissed claim for damages by Brown; he (on behalf of his son) appealed.
Issue: Can you shoot somebody for being on your property?
Holding: No.
Reasoning: People > property.
68 N.M. 271, 361 P.2d 152 (1961)
Facts: Some kids entered a garden; the landowner shot away from them, hoping to scare them, and actually hit a kid running in the other direction.
Procedure: Trial court dismissed claim for damages by Brown; he (on behalf of his son) appealed.
Issue: Can you shoot somebody for being on your property?
Holding: No.
Reasoning: People > property.
Katko v. Briney
Katko v. Briney
C183 N.W.2d 657 (Iowa 1971)
Facts: The owners of an abandoned farmhouse (the Brineys) were tired of break ins and set up a spring-gun trap. Two people broke in, and one of them got shot (Katko).
Procedure: Trial court found for plaintiff and awarded damages.
Issue: Is protection of property a legit defense for shooting?
Holding: No.
Reasoning: People's lives and well being are not worth less than a misdemeanor.
C183 N.W.2d 657 (Iowa 1971)
Facts: The owners of an abandoned farmhouse (the Brineys) were tired of break ins and set up a spring-gun trap. Two people broke in, and one of them got shot (Katko).
Procedure: Trial court found for plaintiff and awarded damages.
Issue: Is protection of property a legit defense for shooting?
Holding: No.
Reasoning: People's lives and well being are not worth less than a misdemeanor.
Great Atlantic & Pacific Tea Co. v. Paul
Great Atlantic & Pacific Tea Co. v. Paul
256 Md. 643, 261 A.2d 731 (1970)
Facts: Paul, an elderly man just getting over a heart attack, was shopping in an odd way (he would leave his cart at the end of the aisle and relay goods from the aisle back to the cart). An assistant manager saw him and thought he'd stolen something; the assistant manager marched Paul to the manager's office and had him searched. Paul claimed that this incident aggravated his heart condition and caused him pain and suffering.
Procedure: Jury found for Paul; A&P appeals. A&P argues that Maryland should adopt the Restatement (Second) of Torts, § 120A (1965), where it is not a false imprisonment if you believed someone to have stolen from you.
Issue: Should Maryland adopt the restatement? (and if they did, would it mean the false imprisonment charge was in error?)
Holding: No (and no)
Reasoning: The shopkeeper can detain people he suspects of theft, but if he is wrong, then it is a tort; the shopkeeper has both that privilege and that risk. (Furthermore, the store had no probable cause anyway).
256 Md. 643, 261 A.2d 731 (1970)
Facts: Paul, an elderly man just getting over a heart attack, was shopping in an odd way (he would leave his cart at the end of the aisle and relay goods from the aisle back to the cart). An assistant manager saw him and thought he'd stolen something; the assistant manager marched Paul to the manager's office and had him searched. Paul claimed that this incident aggravated his heart condition and caused him pain and suffering.
Procedure: Jury found for Paul; A&P appeals. A&P argues that Maryland should adopt the Restatement (Second) of Torts, § 120A (1965), where it is not a false imprisonment if you believed someone to have stolen from you.
Issue: Should Maryland adopt the restatement? (and if they did, would it mean the false imprisonment charge was in error?)
Holding: No (and no)
Reasoning: The shopkeeper can detain people he suspects of theft, but if he is wrong, then it is a tort; the shopkeeper has both that privilege and that risk. (Furthermore, the store had no probable cause anyway).
Tuesday, September 2, 2008
Harlow & Jones, Inc. v. Advance Steel Co.
Harlow & Jones, Inc. v. Advance Steel Co.
United States District Court
424 F.Supp. 770 (E.D. Mich. 1976)
Facts: Through an intermediary, Stewart (president of Advance Steel) found that he could purchase 1000 tons of steel from Harlow (whose president was Greve). Stewart/Advance indicated that he was interested on July 2, 1974. On July 9, 1974, Greve/Harlow mailed Stewart/Advance a sales form confirming a sale. That same day, Greve/Harlow placed an order with Centro Stahlhandel for the steel and included a copy of the form that they had sent Stewart/Advance. Stewart/Advance did receive the form, but never signed or returned the copy as requested. On July 19, 1974, Stewart prepared and mailed Advance's purchase order to Greve/Harlow (with some minor revisions on the shipping dates from Greve/Harlow's form); this purchase order was never signed or returned.
The steel was delivered in three shipments; Advance rejected the last shipment, claiming it was late. Harlow insisted they had to buy it and that it wasn't late. Harlow claims that Advance accepted their offer when they sent the purchase order. Advance says their purchase order was a counteroffer which Harlow accepted when they sent the first two shipments.
Procedure: District Court/trial level
Issue: When was a contract entered into? Which terms are correct?
Holding: Orally, at the beginning of the interaction between the companies; everything afterwords was just working out the particulars. The particulars will include what they agreed on and none of what they didn't.
Reasoning: Not only is that how it's usually done in international steel transactions, but both parties acted as if it were done that way. This, combined with the evidence, shows that there was no material delay. (Part of the evidence includes the usual standards of international steel trade.)
United States District Court
424 F.Supp. 770 (E.D. Mich. 1976)
Facts: Through an intermediary, Stewart (president of Advance Steel) found that he could purchase 1000 tons of steel from Harlow (whose president was Greve). Stewart/Advance indicated that he was interested on July 2, 1974. On July 9, 1974, Greve/Harlow mailed Stewart/Advance a sales form confirming a sale. That same day, Greve/Harlow placed an order with Centro Stahlhandel for the steel and included a copy of the form that they had sent Stewart/Advance. Stewart/Advance did receive the form, but never signed or returned the copy as requested. On July 19, 1974, Stewart prepared and mailed Advance's purchase order to Greve/Harlow (with some minor revisions on the shipping dates from Greve/Harlow's form); this purchase order was never signed or returned.
The steel was delivered in three shipments; Advance rejected the last shipment, claiming it was late. Harlow insisted they had to buy it and that it wasn't late. Harlow claims that Advance accepted their offer when they sent the purchase order. Advance says their purchase order was a counteroffer which Harlow accepted when they sent the first two shipments.
Procedure: District Court/trial level
Issue: When was a contract entered into? Which terms are correct?
Holding: Orally, at the beginning of the interaction between the companies; everything afterwords was just working out the particulars. The particulars will include what they agreed on and none of what they didn't.
Reasoning: Not only is that how it's usually done in international steel transactions, but both parties acted as if it were done that way. This, combined with the evidence, shows that there was no material delay. (Part of the evidence includes the usual standards of international steel trade.)
McCann v. Wal-Mart Stores, Inc.
McCann v. Walmart Stores, Inc.
210 F.3d 51 (1st Cir. 2000).
Facts: The McCann mother and her sons were shopping at a Wal-Mart when they were mistaken for another family who had been forbidden to shop there (the other family had a son who'd been caught shoplifting). The Wal-Mart employees detained the family, saying that they had to stay and that they were calling the police. The McCanns were there at Wal-Mart's behest for about an hour.
Procedure: The McCanns sued for false imprisonment. Jury awarded them $20k; Wal-Mart appeals.
Issue: Were the McCanns actually confined?
Holding: Yes.
Reasoning: Among other things, confinement can be based on a false assertion of legal authority to confine. Wal-Mart asserts that there must be actual, physical restraint, quoting Kowlton v. Ross; the judge says that the language is taken out of context and was simply used to illustrate that in no way was the plaintiff in that case restrained.
210 F.3d 51 (1st Cir. 2000).
Facts: The McCann mother and her sons were shopping at a Wal-Mart when they were mistaken for another family who had been forbidden to shop there (the other family had a son who'd been caught shoplifting). The Wal-Mart employees detained the family, saying that they had to stay and that they were calling the police. The McCanns were there at Wal-Mart's behest for about an hour.
Procedure: The McCanns sued for false imprisonment. Jury awarded them $20k; Wal-Mart appeals.
Issue: Were the McCanns actually confined?
Holding: Yes.
Reasoning: Among other things, confinement can be based on a false assertion of legal authority to confine. Wal-Mart asserts that there must be actual, physical restraint, quoting Kowlton v. Ross; the judge says that the language is taken out of context and was simply used to illustrate that in no way was the plaintiff in that case restrained.
Monday, September 1, 2008
Saturday, August 30, 2008
Koffman v. Garnett
Koffman v. Garnett
265 Va. 12, 574 S.E.2d 258 (2003)
Facts: Koffman, a 13-year-old student, was tackled by a coach in the course of a demonstration in practice. (No coach had used physical force to instruct prior to this.)
Procedure: Trial court dismissed Koffman's separate claims of assault and battery.
Issue: Did the coach commit assault? Battery?
Holding: No and yes.
Reasoning: Koffman could not have known that this was going to happen until the battery was in progress, so it is not an assault. It could have been a battery, depending on whether the jury finds that he consented to being tackled by coaches as well as the players.
265 Va. 12, 574 S.E.2d 258 (2003)
Facts: Koffman, a 13-year-old student, was tackled by a coach in the course of a demonstration in practice. (No coach had used physical force to instruct prior to this.)
Procedure: Trial court dismissed Koffman's separate claims of assault and battery.
Issue: Did the coach commit assault? Battery?
Holding: No and yes.
Reasoning: Koffman could not have known that this was going to happen until the battery was in progress, so it is not an assault. It could have been a battery, depending on whether the jury finds that he consented to being tackled by coaches as well as the players.
Cullison v. Medley
Cullison v. Medley
570 N.E.2d 27 (Ind. 1991)
Facts: Cullison flirted with Sandy Medley. Later that evening, Sandy and her mother, father, brother, and brother-in-law showed up at Cullison's door, threatening him and telling him to leave Sandy alone. Father, Ernest, was on crutches but had a holster with a gun on his thigh; Mother, Doris, kept her hand in her pocket but implied that she had a pistol as well. Ernest never drew the gun but he certainly threatened to.
Procedure: Trial court entered a summary judgment for the Medleys; Cullison appealed. Appeals court affirmed, saying that since Ernest never removed his gun from its holster and never explicitly threatened to shoot Cullison, it was not an assault.
Issue: Did Ernest commit an assault (by the standards of summary judgment)?
Holding: Yes.
Reasoning: "It is the right to be free from the apprehension of a battery which is protected by the tort action which we call an assault." "The tort is complete with the invasion of the plaintiff's mental peace." (Court also held that you can recover for emotional trauma with an assault claim.)
570 N.E.2d 27 (Ind. 1991)
Facts: Cullison flirted with Sandy Medley. Later that evening, Sandy and her mother, father, brother, and brother-in-law showed up at Cullison's door, threatening him and telling him to leave Sandy alone. Father, Ernest, was on crutches but had a holster with a gun on his thigh; Mother, Doris, kept her hand in her pocket but implied that she had a pistol as well. Ernest never drew the gun but he certainly threatened to.
Procedure: Trial court entered a summary judgment for the Medleys; Cullison appealed. Appeals court affirmed, saying that since Ernest never removed his gun from its holster and never explicitly threatened to shoot Cullison, it was not an assault.
Issue: Did Ernest commit an assault (by the standards of summary judgment)?
Holding: Yes.
Reasoning: "It is the right to be free from the apprehension of a battery which is protected by the tort action which we call an assault." "The tort is complete with the invasion of the plaintiff's mental peace." (Court also held that you can recover for emotional trauma with an assault claim.)
Friday, August 29, 2008
Hess v Pawloski
Hess v. Powloski
274 U.S. 352, 47 S.Ct. 632, 71 L.Ed. 1091 (1927)
Facts: Plaintiff sues defendant, a Pennsylvania resident, in Massachusetts. (Car accident on Mass. highway.)
Procedure: Trial court said they had jurisdiction due to laws appointing a registrar as agent for out of state drivers.
Issue: Did they have jurisdiction?
Holding: Yes
Reasoning: Implied consent to the registrar-agent thing is enough to give jurisdiction. Plus, cars are dangerous so we have to come up with some way of dealing with these sorts of problems.
274 U.S. 352, 47 S.Ct. 632, 71 L.Ed. 1091 (1927)
Facts: Plaintiff sues defendant, a Pennsylvania resident, in Massachusetts. (Car accident on Mass. highway.)
Procedure: Trial court said they had jurisdiction due to laws appointing a registrar as agent for out of state drivers.
Issue: Did they have jurisdiction?
Holding: Yes
Reasoning: Implied consent to the registrar-agent thing is enough to give jurisdiction. Plus, cars are dangerous so we have to come up with some way of dealing with these sorts of problems.
Thursday, August 28, 2008
Pennoyer v. Neff
Pennoyer v. Neff
Supreme Court of the United States, 1877.
95 U.S. (5 OTTO) 714, 24 L.Ed. 565.
Facts: In a prior suit, Mitchell sued Neff in the Circuit Court of Multnomah County, Oregon. Mitchell claimed Neff was a California resident but didn't know where he lived; the court decided to serve by publication. (It was an option in Oregon when the defendant's address was not known). When Neff failed to answer, Mitchell was awarded default judgment. A month later, Neff bought a tract of land in Oregon; Mitchell executed against it and bought it at the sheriff's sale for $341.60, "presumably the amount of the judgment plus interest and costs." Three days later, Mitchell transferred title to Pennoyer. (End Oregon's courts involvement).
Neff sued Pennoyer to recover the land, contending that the judgment in Mitchell's suit was invalid because the Oregon court didn't have jurisdiction.
Procedure: Pennoyer loses Neff's suit (in federal court), and Pennoyer appeals.
Issue: Did Oregon have jurisdiction?
Holding: No
Reasoning: The property they acted on was not acted on during the trial; a court may act on a defendant's property (in rem) in the state if it's specified at the beginning of the trail, but not after! Certainly not property acquired after.
Supreme Court of the United States, 1877.
95 U.S. (5 OTTO) 714, 24 L.Ed. 565.
Facts: In a prior suit, Mitchell sued Neff in the Circuit Court of Multnomah County, Oregon. Mitchell claimed Neff was a California resident but didn't know where he lived; the court decided to serve by publication. (It was an option in Oregon when the defendant's address was not known). When Neff failed to answer, Mitchell was awarded default judgment. A month later, Neff bought a tract of land in Oregon; Mitchell executed against it and bought it at the sheriff's sale for $341.60, "presumably the amount of the judgment plus interest and costs." Three days later, Mitchell transferred title to Pennoyer. (End Oregon's courts involvement).
Neff sued Pennoyer to recover the land, contending that the judgment in Mitchell's suit was invalid because the Oregon court didn't have jurisdiction.
Procedure: Pennoyer loses Neff's suit (in federal court), and Pennoyer appeals.
Issue: Did Oregon have jurisdiction?
Holding: No
Reasoning: The property they acted on was not acted on during the trial; a court may act on a defendant's property (in rem) in the state if it's specified at the beginning of the trail, but not after! Certainly not property acquired after.
Wednesday, August 27, 2008
Kothe v. Smith
Kothe v. Smith
United States Court of Appeals, Second Circuit, 1985.
771 F.2d 667.
Facts: Kothe brought a malpractice suit against four defendants; three settled out of court. The judge tried to coerce the parties into settling before it reached court by threatening a fine if they settled during trial for an amount similar to the amount he named. They settled during the trial, and the judge fined defendant Smith.
Procedure: District (trial) court directed the defendant to pay $1k to the plaintiff-appellee's attorney, $1k to the p-a's medical witness, and $480 to the clerk of the court. Defendant appealed.
Issue: Can the judge coerce council/litigants?
Holding: No.
Reasoning: There is a rule that tries to encourage settlement outside of court, but this is not what they meant. Furthermore, case law indicates that pressure tactics are in no way permissible.
United States Court of Appeals, Second Circuit, 1985.
771 F.2d 667.
Facts: Kothe brought a malpractice suit against four defendants; three settled out of court. The judge tried to coerce the parties into settling before it reached court by threatening a fine if they settled during trial for an amount similar to the amount he named. They settled during the trial, and the judge fined defendant Smith.
Procedure: District (trial) court directed the defendant to pay $1k to the plaintiff-appellee's attorney, $1k to the p-a's medical witness, and $480 to the clerk of the court. Defendant appealed.
Issue: Can the judge coerce council/litigants?
Holding: No.
Reasoning: There is a rule that tries to encourage settlement outside of court, but this is not what they meant. Furthermore, case law indicates that pressure tactics are in no way permissible.
Band's Refuse Removal, Inc. v. Borough of Fair Lawn
Band's Refuse Removal, Inc. v. Borough of Fair Lawn
Superior Court of New Jersey, Appellate Division, 1960.
62 N.J.Super. 522, 163 A.2d 465
Facts: (Defendants include Fair Lawn and Capasso.) Borough of Fair Lawn advertised for bids to collect trash in the town. Capasso won. The town enacted ordinance 688, which said that only a person who held a contract with the town could be granted a permit to collect trash in it. Band's RR had a contract to collect garbage from the Western Electric plant in town, so it applied for a permit and was denied under the ordinance. Band's RR filed a complaint alleging that ordinance 688 was arbitrary, discriminatory, unconstitutional, and ultra vires. A whole heap of procedural actions followed, but mainly, the judge started acting like an advocate.
Procedure: Trial court found the defendants, Capasso's contract void from the start, and ordinance 688 illegal, and awarded the borough moneys. (?) Capasso appealed.
Issue: Was the ordinance valid? Was the way the trial judged behaved correct?
Holding: Yes, and no.
Reasoning: The trial judge was clearly advocating, which a judge cannot do. A judge can do many of the things this judge did, but not to this decree and not for his reasons (i.e. a crusade). Also, when the plaintiffs amended their accusations, the judge did not grant the defense any time to investigate or prepare to face these new accusations, which violates due process.
Superior Court of New Jersey, Appellate Division, 1960.
62 N.J.Super. 522, 163 A.2d 465
Facts: (Defendants include Fair Lawn and Capasso.) Borough of Fair Lawn advertised for bids to collect trash in the town. Capasso won. The town enacted ordinance 688, which said that only a person who held a contract with the town could be granted a permit to collect trash in it. Band's RR had a contract to collect garbage from the Western Electric plant in town, so it applied for a permit and was denied under the ordinance. Band's RR filed a complaint alleging that ordinance 688 was arbitrary, discriminatory, unconstitutional, and ultra vires. A whole heap of procedural actions followed, but mainly, the judge started acting like an advocate.
Procedure: Trial court found the defendants, Capasso's contract void from the start, and ordinance 688 illegal, and awarded the borough moneys. (?) Capasso appealed.
Issue: Was the ordinance valid? Was the way the trial judged behaved correct?
Holding: Yes, and no.
Reasoning: The trial judge was clearly advocating, which a judge cannot do. A judge can do many of the things this judge did, but not to this decree and not for his reasons (i.e. a crusade). Also, when the plaintiffs amended their accusations, the judge did not grant the defense any time to investigate or prepare to face these new accusations, which violates due process.
White v. Muniz
White v. Muniz
999 P.2d 814 (Colo. 2000)
Facts: White is the rep of Everly, her grandmother. Everly stuck Muniz while the latter was attempting to change her adult diaper (Muniz had thought she was going to cooperate). Everly has been diagnosed with dementia. The trial judge instructed the jury that dementia does not preclude intent, but that she must have appreciated the offensiveness of her conduct; Muniz said those directions misstated the law.
Procedure: The jury found for White. Court of Appeals reversed because of the instructions. White appealed.
Issue: Does an intentional tort require proof that the tortfeasor not only intended contact, but also harm or offense?
Holding: Yes.
Reasoning: Colorado law requires dual intent.
999 P.2d 814 (Colo. 2000)
Facts: White is the rep of Everly, her grandmother. Everly stuck Muniz while the latter was attempting to change her adult diaper (Muniz had thought she was going to cooperate). Everly has been diagnosed with dementia. The trial judge instructed the jury that dementia does not preclude intent, but that she must have appreciated the offensiveness of her conduct; Muniz said those directions misstated the law.
Procedure: The jury found for White. Court of Appeals reversed because of the instructions. White appealed.
Issue: Does an intentional tort require proof that the tortfeasor not only intended contact, but also harm or offense?
Holding: Yes.
Reasoning: Colorado law requires dual intent.
Polmatier v. Russ
Polmatier v. Russ
206 Conn. 229, 537 A.2d 468 (1988)
Facts: Defendant beat the ever living daylights out of and then shot Mr. Palmatier, the plaintiff's husband. Defendant was declared legally insane.
Procedure: Trial court found for the plaintiff; Defendant appealed.
Issue: Did the defendant have intent?
Holding: Yes
Reasoning: You can have intent and irrational reasons- this is distinct from uncontrollable muscle spasms. Also, insane persons can be held civilly liable. (Wrongful death statute doesn't require intent; some policy reasons about punishing the actor if both parties are innocent, reduce fraud, and increase family responsibility.)
206 Conn. 229, 537 A.2d 468 (1988)
Facts: Defendant beat the ever living daylights out of and then shot Mr. Palmatier, the plaintiff's husband. Defendant was declared legally insane.
Procedure: Trial court found for the plaintiff; Defendant appealed.
Issue: Did the defendant have intent?
Holding: Yes
Reasoning: You can have intent and irrational reasons- this is distinct from uncontrollable muscle spasms. Also, insane persons can be held civilly liable. (Wrongful death statute doesn't require intent; some policy reasons about punishing the actor if both parties are innocent, reduce fraud, and increase family responsibility.)
Hall v. McBryde
Hall v. McBryde
919 P.2d 910 (Colo. App. 1996)
Facts: Defendant got caught in a drive-by and shot back at the car (though he claims not at the people in it). Plaintiff was next door and claims he was injured by one of the defendant's bullets. Plaintiff brought a charge of battery against the defendant.
Procedure: Trial court judged in favor of the defendant.
Issue: Did a battery occur?
Holding: If defendant's bullet was indeed the one that struck plaintiff, then yes.
Reasoning: It didn't matter that the defendant wasn't trying to hit the people in the car; it is enough that he was trying to make them think he was. This sort of liability continues if, in the process of act the batterer hits a third party instead of his target.
919 P.2d 910 (Colo. App. 1996)
Facts: Defendant got caught in a drive-by and shot back at the car (though he claims not at the people in it). Plaintiff was next door and claims he was injured by one of the defendant's bullets. Plaintiff brought a charge of battery against the defendant.
Procedure: Trial court judged in favor of the defendant.
Issue: Did a battery occur?
Holding: If defendant's bullet was indeed the one that struck plaintiff, then yes.
Reasoning: It didn't matter that the defendant wasn't trying to hit the people in the car; it is enough that he was trying to make them think he was. This sort of liability continues if, in the process of act the batterer hits a third party instead of his target.
Garratt v. Dailey
Garratt v. Dailey
46 Wash.2d 197, 279 P.2d 1091 (1955)
Facts: Defendant, a five year old boy named Brian Dailey, took a chair at a lawn party and sat in it. He then saw the plaintiff, Garratt, in the motion of sitting where the chair had been and attempted to return the chair (he failed because, well, he's five).
Procedure: Trial court dismissed the action.
Issue: Did Dailey commit battery?
Holding: Perhaps.
Reasoning: If Dailey knew that Garratt was going to sit where the chair had been, then it can be battery, but we don't know that because it wasn't established by the trial court. The case is remanded to determine that fact. (They erred in dismissing before determining that fact).
46 Wash.2d 197, 279 P.2d 1091 (1955)
Facts: Defendant, a five year old boy named Brian Dailey, took a chair at a lawn party and sat in it. He then saw the plaintiff, Garratt, in the motion of sitting where the chair had been and attempted to return the chair (he failed because, well, he's five).
Procedure: Trial court dismissed the action.
Issue: Did Dailey commit battery?
Holding: Perhaps.
Reasoning: If Dailey knew that Garratt was going to sit where the chair had been, then it can be battery, but we don't know that because it wasn't established by the trial court. The case is remanded to determine that fact. (They erred in dismissing before determining that fact).
A.R.B. v. Elkin
A.R.B. v. Elkin
98 S.W.3d 99 (Mo. App. 2003)
Facts: A male and female brought an action for battery against their father alleging sexual abuse.
Procedure: The trial judge rejected claims for compensatory damage because paperwork wasn't properly filed and rejected pain and suffering since there was no medical proof submitted for it.
Issue:Is the trial judge a *&%$(* ? Should the plaintiffs have been compensated?
Holding: Yes.
Reasoning: You don't have to show proof for pain and suffering, the damages are whatever seems reasonable. Also, punitive damages should have been considered.
98 S.W.3d 99 (Mo. App. 2003)
Facts: A male and female brought an action for battery against their father alleging sexual abuse.
Procedure: The trial judge rejected claims for compensatory damage because paperwork wasn't properly filed and rejected pain and suffering since there was no medical proof submitted for it.
Issue:
Holding: Yes.
Reasoning: You don't have to show proof for pain and suffering, the damages are whatever seems reasonable. Also, punitive damages should have been considered.
Leichtman v. WLW Jacor Communications, Inc.
Leichtman v. WLW Jacor Communications, Inc.
92 Ohio App.3d 232, 634 N.E.2d
Facts: Plaintiff claims to be known as an anti-smoking advocate; he was invited to the defendant's (employee's) radio show, where the defendant smoked a cigar and blew the smoke into the plaintiff's face.
Procedure: Trial court dismissed the battery claim; plaintiff appealed.
Issue: Does the plaintiff have a battery claim?
Holding: Yes.
Reasoning: There was intent, offense, and touching.
92 Ohio App.3d 232, 634 N.E.2d
Facts: Plaintiff claims to be known as an anti-smoking advocate; he was invited to the defendant's (employee's) radio show, where the defendant smoked a cigar and blew the smoke into the plaintiff's face.
Procedure: Trial court dismissed the battery claim; plaintiff appealed.
Issue: Does the plaintiff have a battery claim?
Holding: Yes.
Reasoning: There was intent, offense, and touching.
Cook v. Coldwell Banker/Frank Laiben Realty Co.
Cook v. Coldwell Banker/Frank Laiben Realty Co.
Missouri Court of Appeals
967 S.W.2d 654 (1998)
Facts: Plaintiff, Cook, worked for the defendant. Defendant announced a bonus program where agents who earned $15k would earn a $500 bonus payable immediately, agents who earned between $15k and $25k would get a 22% bonus, and agents earning above $25k would get a 30% bonus. Bonuses beyond the first $500 would be paid at the end of the year. Later, defendant said that the bonuses would be awarded in March instead (after the year in which the earnings were calculated). Plaintiff left before March but after the end of the bonus year and requested her bonus; defendants denied her.
Procedure: Trial court awarded the defendant's former sales person (plaintiff) damages for a breach of a bonus agreement. Defendant appeals, claiming the plaintiff failed to make a submissible case in that she did not accept the bonus offer before it was revoked.
Issue: Can the defendant revoke its offer in a unilateral contract while the offeree is attempting to accept/perform?
Holding: No.
Reasoning: If the offeree in a unilateral contract performs a significant portion of promised performance, the offer becomes binding (see restatements in text).
Missouri Court of Appeals
967 S.W.2d 654 (1998)
Facts: Plaintiff, Cook, worked for the defendant. Defendant announced a bonus program where agents who earned $15k would earn a $500 bonus payable immediately, agents who earned between $15k and $25k would get a 22% bonus, and agents earning above $25k would get a 30% bonus. Bonuses beyond the first $500 would be paid at the end of the year. Later, defendant said that the bonuses would be awarded in March instead (after the year in which the earnings were calculated). Plaintiff left before March but after the end of the bonus year and requested her bonus; defendants denied her.
Procedure: Trial court awarded the defendant's former sales person (plaintiff) damages for a breach of a bonus agreement. Defendant appeals, claiming the plaintiff failed to make a submissible case in that she did not accept the bonus offer before it was revoked.
Issue: Can the defendant revoke its offer in a unilateral contract while the offeree is attempting to accept/perform?
Holding: No.
Reasoning: If the offeree in a unilateral contract performs a significant portion of promised performance, the offer becomes binding (see restatements in text).
Tuesday, August 26, 2008
Cohen v. Smith
Cohen v. Smith
269 Ill.App.3d 1087, 207 Ill.Dec. 873, 648 N.E.2d 329 (1995)
Facts: Cohen was a woman whose religious beliefs forbid her from being seen unclothed by a male. When it came up that she would need a c-section, Cohen and her husband informed her doctor, who informed the hospital staff, and informed the Cohens that their beliefs would be respected. During the course of her c-section, a male nurse allegedly saw and touched her naked body. The Cohens sued the hospital.
Procedure: Trial court allowed defendants' motion to dismiss.
Issue: Did the plaintiffs fail to state a cause of action?
Holding: No.
Reasoning: The plaintiffs' beliefs made the nurse's action battery (and the nurse had been informed, according to the way you treat alleged facts when a motion to dismiss is made).
269 Ill.App.3d 1087, 207 Ill.Dec. 873, 648 N.E.2d 329 (1995)
Facts: Cohen was a woman whose religious beliefs forbid her from being seen unclothed by a male. When it came up that she would need a c-section, Cohen and her husband informed her doctor, who informed the hospital staff, and informed the Cohens that their beliefs would be respected. During the course of her c-section, a male nurse allegedly saw and touched her naked body. The Cohens sued the hospital.
Procedure: Trial court allowed defendants' motion to dismiss.
Issue: Did the plaintiffs fail to state a cause of action?
Holding: No.
Reasoning: The plaintiffs' beliefs made the nurse's action battery (and the nurse had been informed, according to the way you treat alleged facts when a motion to dismiss is made).
Snyder v. Turk
Snyder v. Turk
90 Ohio App.3d 18, 627 N.E.2d 1053 (1993)
Facts: Defendant, a surgeon, became frustrated with the plaintiff, a nurse. When she handed him an instrument he found inappropriate, he grabbed her by the shoulder, pull her face down near the surgical hole, and yelled at her.
Procedure: Complaint, answer, motion for directed verdict (D says P doesn't have proof of intent to injure)
Issue: Did defendant commit an offensive contact? Is that battery?
Holding: Yes and yes.
Reasoning: Reasonable mind test under a motion for directed verdict.
90 Ohio App.3d 18, 627 N.E.2d 1053 (1993)
Facts: Defendant, a surgeon, became frustrated with the plaintiff, a nurse. When she handed him an instrument he found inappropriate, he grabbed her by the shoulder, pull her face down near the surgical hole, and yelled at her.
Procedure: Complaint, answer, motion for directed verdict (D says P doesn't have proof of intent to injure)
Issue: Did defendant commit an offensive contact? Is that battery?
Holding: Yes and yes.
Reasoning: Reasonable mind test under a motion for directed verdict.
Van Camp v. McAfoos
Van Camp v. McAfoos
261 Iowa 1124, 156 N.W.2d 878 (1968)
Facts: A little boy runs into a lady on the sidewalk. The lady required surgery because of it, and sued the boy.
Procedure: The trial court sustained a motion to dismiss stating that since the plaintiff alleges neither fault nor negligence, there is no cause of action. Plaintiff appealed.
Issue: Is there a cause of action?
Holding: No.
Reasoning: There are cases where a young child was held at fault, but she is not claiming fault. Lack of fault or negligence makes it a strict liability case. There is no previous law of any kind suggesting that strict liability should apply for such a child, and the court doesn't want to start one.
261 Iowa 1124, 156 N.W.2d 878 (1968)
Facts: A little boy runs into a lady on the sidewalk. The lady required surgery because of it, and sued the boy.
Procedure: The trial court sustained a motion to dismiss stating that since the plaintiff alleges neither fault nor negligence, there is no cause of action. Plaintiff appealed.
Issue: Is there a cause of action?
Holding: No.
Reasoning: There are cases where a young child was held at fault, but she is not claiming fault. Lack of fault or negligence makes it a strict liability case. There is no previous law of any kind suggesting that strict liability should apply for such a child, and the court doesn't want to start one.
Petterson v. Pattberg
Petterson v. Pattberg
New York Court of Appeals
248 N.Y. 86, 161 N.E. 428
Facts: "I hereby agree to accept cash for the mortgage which I hold... I will allow you $780 providing said mortgage is paid on or before May 31, 1924, and the regular quarterly payment due April... is paid when due." Defendant sent this letter to the plaintiff. After the April bill was paid but before the rest of the mortgage was paid off, defendant sold the mortgage. Since plaintiff had entered into a contract to sell the land free and clear of the mortgage, he had to pay the $780 to the new mortgage owner. Plaintiff claims the loss against the defendant.
Procedure: Trial court awarded the recovery of the sum plus interest. An Appellate court affirmed.
Issue: Can the offerer in a unilateral contract change his mind while the offeree is midway through the requested action (fulfilling the condition)?
Ruling: Yes (a reversal of the trial and appellate decisions)
Reasoning: The offerer can revoke their offer at any time before the acceptance of the offer- so say otherwise violates the nature of a uni contract. (Dissent- "The question in this case is not whether payment of the mortgage is a condition precedent to the performance of a promise made by the defendant, but, rather, whether at the time the defendant refused the offer of payment, he had assumed any binding obligation, even though subject to condition." Since the only reason the plaintiff couldn't complete the uni contract was that the defendant stopped him, she shouldn't be allowed to take advantage of it).
New York Court of Appeals
248 N.Y. 86, 161 N.E. 428
Facts: "I hereby agree to accept cash for the mortgage which I hold... I will allow you $780 providing said mortgage is paid on or before May 31, 1924, and the regular quarterly payment due April... is paid when due." Defendant sent this letter to the plaintiff. After the April bill was paid but before the rest of the mortgage was paid off, defendant sold the mortgage. Since plaintiff had entered into a contract to sell the land free and clear of the mortgage, he had to pay the $780 to the new mortgage owner. Plaintiff claims the loss against the defendant.
Procedure: Trial court awarded the recovery of the sum plus interest. An Appellate court affirmed.
Issue: Can the offerer in a unilateral contract change his mind while the offeree is midway through the requested action (fulfilling the condition)?
Ruling: Yes (a reversal of the trial and appellate decisions)
Reasoning: The offerer can revoke their offer at any time before the acceptance of the offer- so say otherwise violates the nature of a uni contract. (Dissent- "The question in this case is not whether payment of the mortgage is a condition precedent to the performance of a promise made by the defendant, but, rather, whether at the time the defendant refused the offer of payment, he had assumed any binding obligation, even though subject to condition." Since the only reason the plaintiff couldn't complete the uni contract was that the defendant stopped him, she shouldn't be allowed to take advantage of it).
Normile v. Miller
Normile v. Miller
Supreme Court of North Carolina
313 N.C. 98, 326 S.E.2d 11 (1985)
Facts: Defendant put a piece of real estate up for sale. Plaintiffs Normile and Kurniawan made an offer (on the condition it was accepted by 5pm Aug. 5th 1980); Defendant Miller made a counteroffer. Plaintiffs N&K considered the offer, but their agent thought they rejected it and found another buyer, Plaintiff Segal. Plaintiff Segal made an offer (similar to the Defendant's earlier counteroffer) that the defendant accepted on the 5th. After this, at 2 pm, the agent told N&K that the defendant had revoked her offer (he said "You snooze, you lose; the property has been sold"). Prior to 5 pm, N&K had signed and initialed the counteroffer and put down the deposit.
Procedure: Trial court ordered defendant to convey the property to plaintiff Segal (in a summary judgement; both sets of plaintiffs had moved for summary judgment). Plaintiffs N&K appealed on their motion for summary judgment being denied; Court of Appeals unanimously affirmed the trial court's actions. This court is reviewing N&K's petition.
Issue: Did the time limit in the initial offer create an option? Also, "If a seller rejects a prospective purchaser's offer to purchase but makes a counteroffer that is not accepted by the prospective purchaser, does the prospective purchaser have the power to accept after he receives notice that the counteroffer has been revoked?"
Holding: No and no.
Reasoning: The time limit evaporated when D rejected the offer and created a counteroffer. Since the Ps did not respond, they certainly did not accept the counteroffer and they had no option on the property, so it was legitimately sold to a third party.
Supreme Court of North Carolina
313 N.C. 98, 326 S.E.2d 11 (1985)
Facts: Defendant put a piece of real estate up for sale. Plaintiffs Normile and Kurniawan made an offer (on the condition it was accepted by 5pm Aug. 5th 1980); Defendant Miller made a counteroffer. Plaintiffs N&K considered the offer, but their agent thought they rejected it and found another buyer, Plaintiff Segal. Plaintiff Segal made an offer (similar to the Defendant's earlier counteroffer) that the defendant accepted on the 5th. After this, at 2 pm, the agent told N&K that the defendant had revoked her offer (he said "You snooze, you lose; the property has been sold"). Prior to 5 pm, N&K had signed and initialed the counteroffer and put down the deposit.
Procedure: Trial court ordered defendant to convey the property to plaintiff Segal (in a summary judgement; both sets of plaintiffs had moved for summary judgment). Plaintiffs N&K appealed on their motion for summary judgment being denied; Court of Appeals unanimously affirmed the trial court's actions. This court is reviewing N&K's petition.
Issue: Did the time limit in the initial offer create an option? Also, "If a seller rejects a prospective purchaser's offer to purchase but makes a counteroffer that is not accepted by the prospective purchaser, does the prospective purchaser have the power to accept after he receives notice that the counteroffer has been revoked?"
Holding: No and no.
Reasoning: The time limit evaporated when D rejected the offer and created a counteroffer. Since the Ps did not respond, they certainly did not accept the counteroffer and they had no option on the property, so it was legitimately sold to a third party.
Lonergan v. Scolnick
Lonergan v. Scolnick
California District Court of Appeal
129 Cal. App. 2d 179, 276 P.2d 8 (1954)
Facts: The defendant put up an ad to sell his land. Plaintiff replied, and they exchanged correspondence about the land, including a discussion of which bank to us for escrow (plaintiff suggested one and the defendant agreed- D also said that if P was really interested, he should hurry). D then sold land to a third party. Plaintiff says they broke contract, Defendant says there was never a contract.
Procedure: Trial court found for the defendant, saying that the plaintiff did not respond promptly which was a condition of the offer. Thus, the defendant did not enter into a contract. Plaintiff appealed.
Issue: Did the defendant enter into a contract? Was it an offer?
Holding: No
Reasoning: The defendant had never made an offer in the first place.
California District Court of Appeal
129 Cal. App. 2d 179, 276 P.2d 8 (1954)
Facts: The defendant put up an ad to sell his land. Plaintiff replied, and they exchanged correspondence about the land, including a discussion of which bank to us for escrow (plaintiff suggested one and the defendant agreed- D also said that if P was really interested, he should hurry). D then sold land to a third party. Plaintiff says they broke contract, Defendant says there was never a contract.
Procedure: Trial court found for the defendant, saying that the plaintiff did not respond promptly which was a condition of the offer. Thus, the defendant did not enter into a contract. Plaintiff appealed.
Issue: Did the defendant enter into a contract? Was it an offer?
Holding: No
Reasoning: The defendant had never made an offer in the first place.
Lucy v. Zehmer
Lucy v. Zehmer
Supreme Court of Appeals of Virginia
84 S.E.2d 516 (Va. 1954)
Facts: Lucy and Zehmer got drunk. They discussed the sale of the Ferguson Farm, which Zehmer owned. Zehmer wrote a contract which he and his wife signed agreeing to sell the farm to Lucy for $50k. Zehmer protests that he was "higher than a Georgia pine" and that he was kidding, so the contract is void.
Procedure: Trial court held that the complainants (the Lucys) failed to establish their right to specific performance. "The assignment of error is to this action of the court."
Issue: Was the contract legit?
Holding: Yes
Reasoning: Zehmer was not too drunk; The document was produced as a serious piece of business; In the field of contracts, as generally elsewhere, “We must look to the outward expression of a person as manifesting his intention rather than to his secret and unexpressed intention. ‘The law imputes to a person an intention corresponding to the reasonable meaning of his words and acts.’” First Nat. Bank v. Roanoke Oil Co., 169 Va. 99, 114, 192 S.E. 764, 770;
Supreme Court of Appeals of Virginia
84 S.E.2d 516 (Va. 1954)
Facts: Lucy and Zehmer got drunk. They discussed the sale of the Ferguson Farm, which Zehmer owned. Zehmer wrote a contract which he and his wife signed agreeing to sell the farm to Lucy for $50k. Zehmer protests that he was "higher than a Georgia pine" and that he was kidding, so the contract is void.
Procedure: Trial court held that the complainants (the Lucys) failed to establish their right to specific performance. "The assignment of error is to this action of the court."
Issue: Was the contract legit?
Holding: Yes
Reasoning: Zehmer was not too drunk; The document was produced as a serious piece of business; In the field of contracts, as generally elsewhere, “We must look to the outward expression of a person as manifesting his intention rather than to his secret and unexpressed intention. ‘The law imputes to a person an intention corresponding to the reasonable meaning of his words and acts.’” First Nat. Bank v. Roanoke Oil Co., 169 Va. 99, 114, 192 S.E. 764, 770;
Monday, August 25, 2008
Estevez v. United States
Estevez v. United States
72 F.Supp.2d 205 (S.D.N.Y. 1999).
Facts: Joseph Estevez, a two year old, was injured in a collision with a postal truck for which the defendant was responsible.
Procedure: Trial court judge found the postal driver negligent.
Issue: How much of which kind of damages should Joseph be awarded?
Holding: A lot- costs to date, loss of work-life expectancy (but not average income), and pretty much all medical costs for his lifespan besides a surgery that was never given a cost.
Reasoning: It varies on the evidence given- the judge is acting as a jury, so he is concerned with fact finding a little more than rules. He does state that he is entitled to future lost earnings (though argues with what they'd be), future pain and suffering, future medical expenses, pain and suffering up to trial, and medical expenses up to trial that weren't covered by insurance.
72 F.Supp.2d 205 (S.D.N.Y. 1999).
Facts: Joseph Estevez, a two year old, was injured in a collision with a postal truck for which the defendant was responsible.
Procedure: Trial court judge found the postal driver negligent.
Issue: How much of which kind of damages should Joseph be awarded?
Holding: A lot- costs to date, loss of work-life expectancy (but not average income), and pretty much all medical costs for his lifespan besides a surgery that was never given a cost.
Reasoning: It varies on the evidence given- the judge is acting as a jury, so he is concerned with fact finding a little more than rules. He does state that he is entitled to future lost earnings (though argues with what they'd be), future pain and suffering, future medical expenses, pain and suffering up to trial, and medical expenses up to trial that weren't covered by insurance.
Holden v. Wal-Mart Stores, Inc.
Holden v. Wal-Mart Stores, Inc.
259 Neb. 78, 608 N.W.2d 187 (2000).
Facts: Holden, a lady with bad knees, stepped out of her vehicle in a handicap parking space of the Wal-Mart parking lot and tripped on a hole in that parking lot. She had to get knee surgery (which otherwise could have waited between 5-10 years). The cost of things related to the surgery was about $25k, and a second knee surgery that would be required later on would probably cost between $40k and $50k.
Procedure: Trial jury found 40 percent negligence on Holden's part and 60 percent on Wal-Mart's part. The jury found the total damages to be $6k, so Holden recovered $3,600. Holden appealed basically on the grounds that the number was outrageously low.
Issues: Was the reward amount the result of a mistake?
Holding: No.
Reasoning: She had a pre-existing condition that gave the jury a reasonable amount of room to decide how much of the costs were due to the incident and how many would have existed anyway. See the bit about her probably needing knee surgery in the next decade anyway.
259 Neb. 78, 608 N.W.2d 187 (2000).
Facts: Holden, a lady with bad knees, stepped out of her vehicle in a handicap parking space of the Wal-Mart parking lot and tripped on a hole in that parking lot. She had to get knee surgery (which otherwise could have waited between 5-10 years). The cost of things related to the surgery was about $25k, and a second knee surgery that would be required later on would probably cost between $40k and $50k.
Procedure: Trial jury found 40 percent negligence on Holden's part and 60 percent on Wal-Mart's part. The jury found the total damages to be $6k, so Holden recovered $3,600. Holden appealed basically on the grounds that the number was outrageously low.
Issues: Was the reward amount the result of a mistake?
Holding: No.
Reasoning: She had a pre-existing condition that gave the jury a reasonable amount of room to decide how much of the costs were due to the incident and how many would have existed anyway. See the bit about her probably needing knee surgery in the next decade anyway.
Prosser v. Keeton
Prosser v. Keeton
143 Unrep. Case 1113.
Facts: Prosser's watch was stolen by Thurlow. Thurlow sells it to Keeton (who had reason to believe the deal was legit). About a month later, Prosser sees Keeton wearing it and demands it back; Keeton refuses.
Procedure: Trial judge held that Keeton was a converter and liable to return the watch or pay its reasonable value.
Issue: Is Keeton liable to return the watch (or its value)?
Holding: No (2-1)
Rationale:
143 Unrep. Case 1113.
Facts: Prosser's watch was stolen by Thurlow. Thurlow sells it to Keeton (who had reason to believe the deal was legit). About a month later, Prosser sees Keeton wearing it and demands it back; Keeton refuses.
Procedure: Trial judge held that Keeton was a converter and liable to return the watch or pay its reasonable value.
Issue: Is Keeton liable to return the watch (or its value)?
Holding: No (2-1)
Rationale:
- Allen, J. (the dissent) - The thief could not transfer a title which he did not in fact have, so Keeton is a converter and is liable.
- Bateman, J. - Justice requires that Keeton keep the watch, since neither of them are guilty of wrongdoing, but Prosser was in the better position to prevent the loss.
- Compton, J. - Policy requires that Keeton keep the watch, since if every buyer were liable for their purchases capitalism would grind to a halt. There is no evidence, btw, that watch owners are better able to prevent thefts than watch buyers are able to detect them.
Torts pg 2-34
Chapter 1
Tort Law: Aims, Approaches, and Processes
§ 1. What is Tort Law?
Tort as wrongdoing- Torts are wrongs that are recognized as grounds for a lawsuit. Usually the defendant is at fault in some way, either through intentional harm or unreasonable risk.
Harm required- The wrong must result in some sort of harm to the plaintiff. Usually the harm is physical, but it can be commercial or intangible (i.e. loss of reputation).
Torts, crimes, and contracts- Contracts are usually not considered torts. There is some overlap between torts and crimes, but criminal law is about public interests, while tort law is about individual interests, so there are a lot of places where they don't overlap.
Non-tort systems- There are other systems of recourse for personal injuries besides tort law. Workers' comp is mentioned as one.
Common questions in tort law- (1) What conduct counts as tortious or wrongful? (2) Did the conduct cause the kind of harm the law will recognize? (3) What defenses can be raised against liability if the defendant has committed a tort?
§ 2. The Aims and Approaches in Tort Law- Justice and Policy, Compensation and Deterrence
a. Some Broad (and Conflicting) Aims
(Dobbs, The Law of Torts §§ 8-11 & § 13)
Section 8- Justice, Policy, and Process Aims of Tort Law
Morality or corrective justice- The idea that tort law should right individual wrongs.
Social utility or policy- The idea that tort law should provide a system of rules that are good for society in general (as opposed to individuals).
Process- This is a kind of social utility or policy. The focus is on improving the litigation process (and the assumption is that the litigation process is fundamentally a good thing).
Potential conflicts- The first two are pretty antithetical to each other. Process can sometimes conflict with the first two as well (the most efficient answer for the courts may not serve justice or policy).
Section 9- Ideas of Corrective Justice
Fault and corrective justice- Tort law imposes liability for conduct the law treats as wrong- this pretty much goes with corrective justice ideas. However, corrective justice thinks that in cases where the defendant is not at fault for causing the plaintiff's harm, the defendant should not be held liable.
Strict liability and corrective justice- Strict liability means you can be held liable even if you aren't at fault. This can go along with corrective justice if by some custom you would be held responsible anyway. [Why does the existence of a custom change the idea of justice?]
Uniting the potential for gains and losses- Some people think that strict liability is morally based (and therefore a part of corrective justice). The general idea is that if you are entitled to the gains you receive from a certain course of action, then you should also be responsible for the losses. This doesn't always work with corrective justice when the actors are two humans in a no fault situation.
Fault again- Most of tort law cases turn on the idea that the defendant is at fault. At least for these cases, tort law starts with corrective justice ideas even if they are influenced by pragmatic, process or policy considerations.
Section 10- Compensation, Risk Distribution, Fault
Risk distribution or loss spreading- The idea that tort liability should be strict or expansive in order to secure compensation for more injured persons. Some defendants should be liable for all harms they cause regardless of fault because they have the means to distribute the risk- i.e. corporations.
Limited acceptance of risk distribution arguments- Common law of tort has not generally adopted the idea that compensation is more important than justice or that liability should be strict; the latter are still rare.
Moral and policy reasons for limiting compensation to cases of fault- The legislatures may be better suited to determining risk compensation and enacting it (i.e. workers' comp). If compensation is guaranteed, it may actually reduce the deterrent effect. Third, the tort system is certainly not the most cost-effective way to secure compensation.
Section 11- Fostering Freedom, Deterring Unsafe Conduct; Economic Analysis
Deterrence- If people know certain actions have negative consequences, they will usually avoid them.
Deterrence in corrective justice and social policy systems- Each approach wants to deter different sorts of things.
Economic analysis- A particular kind of social policy consideration which weighs the good of the economy and encouraging enterprise against individual complaints.
Section 13- Process Values in Tort Law
Adopting, formulating, and applying tort rules- Rules adopted must be seen understood and applied at the least by litigation professionals. Without rules, the judges would suspect and the system in a sense unjust.
Process goals- No authoritative list of process values guides judges, but some are: justice/policy, treating people like humans, and practical concerns.
Loose rule formulation that diminishes judicial accountability- Rules that are too abstract make it easy for judges to simply do whatever they like. Published opinion subject judges to peer review.
Tight rule formulation that eliminates needed flexibility- Too tight a rule just prevents judges from doing their jobs- that is, using their judgment.
Rules guiding lawyers' investigation and arguments- "Rules often attempt to reflect the way people should behave even if they have not read the statutes and the cases." Since the people who actually read the rules are lawyers, the judge must write the rules with them in mind as well. [Ask for clarification... how does this guide investigation?]
Rules failing to specify provable facts- Rules suck when they call for evidence that can't reasonably be proved- like someone's subjective state of mind.
b. Applying Some Approaches
Prosser v. Keeton
143 Unrep. Case 1113.
§ 3. Implementing Tort Law Purposes with Damages Awards
Holden v. Wal-Mart Stores, Inc.
259 Neb. 78, 608 N.W.2d 187 (2000).
Estevez v. United States
72 F.Supp.2d 205 (S.D.N.Y. 1999).
Tort Law: Aims, Approaches, and Processes
§ 1. What is Tort Law?
Tort as wrongdoing- Torts are wrongs that are recognized as grounds for a lawsuit. Usually the defendant is at fault in some way, either through intentional harm or unreasonable risk.
Harm required- The wrong must result in some sort of harm to the plaintiff. Usually the harm is physical, but it can be commercial or intangible (i.e. loss of reputation).
Torts, crimes, and contracts- Contracts are usually not considered torts. There is some overlap between torts and crimes, but criminal law is about public interests, while tort law is about individual interests, so there are a lot of places where they don't overlap.
Non-tort systems- There are other systems of recourse for personal injuries besides tort law. Workers' comp is mentioned as one.
Common questions in tort law- (1) What conduct counts as tortious or wrongful? (2) Did the conduct cause the kind of harm the law will recognize? (3) What defenses can be raised against liability if the defendant has committed a tort?
§ 2. The Aims and Approaches in Tort Law- Justice and Policy, Compensation and Deterrence
a. Some Broad (and Conflicting) Aims
(Dobbs, The Law of Torts §§ 8-11 & § 13)
Section 8- Justice, Policy, and Process Aims of Tort Law
Morality or corrective justice- The idea that tort law should right individual wrongs.
Social utility or policy- The idea that tort law should provide a system of rules that are good for society in general (as opposed to individuals).
Process- This is a kind of social utility or policy. The focus is on improving the litigation process (and the assumption is that the litigation process is fundamentally a good thing).
Potential conflicts- The first two are pretty antithetical to each other. Process can sometimes conflict with the first two as well (the most efficient answer for the courts may not serve justice or policy).
Section 9- Ideas of Corrective Justice
Fault and corrective justice- Tort law imposes liability for conduct the law treats as wrong- this pretty much goes with corrective justice ideas. However, corrective justice thinks that in cases where the defendant is not at fault for causing the plaintiff's harm, the defendant should not be held liable.
Strict liability and corrective justice- Strict liability means you can be held liable even if you aren't at fault. This can go along with corrective justice if by some custom you would be held responsible anyway. [Why does the existence of a custom change the idea of justice?]
Uniting the potential for gains and losses- Some people think that strict liability is morally based (and therefore a part of corrective justice). The general idea is that if you are entitled to the gains you receive from a certain course of action, then you should also be responsible for the losses. This doesn't always work with corrective justice when the actors are two humans in a no fault situation.
Fault again- Most of tort law cases turn on the idea that the defendant is at fault. At least for these cases, tort law starts with corrective justice ideas even if they are influenced by pragmatic, process or policy considerations.
Section 10- Compensation, Risk Distribution, Fault
Risk distribution or loss spreading- The idea that tort liability should be strict or expansive in order to secure compensation for more injured persons. Some defendants should be liable for all harms they cause regardless of fault because they have the means to distribute the risk- i.e. corporations.
Limited acceptance of risk distribution arguments- Common law of tort has not generally adopted the idea that compensation is more important than justice or that liability should be strict; the latter are still rare.
Moral and policy reasons for limiting compensation to cases of fault- The legislatures may be better suited to determining risk compensation and enacting it (i.e. workers' comp). If compensation is guaranteed, it may actually reduce the deterrent effect. Third, the tort system is certainly not the most cost-effective way to secure compensation.
Section 11- Fostering Freedom, Deterring Unsafe Conduct; Economic Analysis
Deterrence- If people know certain actions have negative consequences, they will usually avoid them.
Deterrence in corrective justice and social policy systems- Each approach wants to deter different sorts of things.
Economic analysis- A particular kind of social policy consideration which weighs the good of the economy and encouraging enterprise against individual complaints.
Section 13- Process Values in Tort Law
Adopting, formulating, and applying tort rules- Rules adopted must be seen understood and applied at the least by litigation professionals. Without rules, the judges would suspect and the system in a sense unjust.
Process goals- No authoritative list of process values guides judges, but some are: justice/policy, treating people like humans, and practical concerns.
Loose rule formulation that diminishes judicial accountability- Rules that are too abstract make it easy for judges to simply do whatever they like. Published opinion subject judges to peer review.
Tight rule formulation that eliminates needed flexibility- Too tight a rule just prevents judges from doing their jobs- that is, using their judgment.
Rules guiding lawyers' investigation and arguments- "Rules often attempt to reflect the way people should behave even if they have not read the statutes and the cases." Since the people who actually read the rules are lawyers, the judge must write the rules with them in mind as well. [Ask for clarification... how does this guide investigation?]
Rules failing to specify provable facts- Rules suck when they call for evidence that can't reasonably be proved- like someone's subjective state of mind.
b. Applying Some Approaches
Prosser v. Keeton
143 Unrep. Case 1113.
§ 3. Implementing Tort Law Purposes with Damages Awards
Holden v. Wal-Mart Stores, Inc.
259 Neb. 78, 608 N.W.2d 187 (2000).
Estevez v. United States
72 F.Supp.2d 205 (S.D.N.Y. 1999).
Chapter 2
Reading Torts Cases: Trial Procedures
§ 1. Looking for Facts, Rules and Reasons
Reading cases to understand principles and predict law- The skills involved in briefing a case are important.
Rules- Sometimes judges state the rules they are using; more often they simply state the part of the rule at issue in a case. Context is key.
Reasoning- You can interpret by following the judge's reasoning- what they emphasize can tell you a great deal about what the rule is and isn't.
Facts- The facts of a case can influence a judge's reasoning- for instance, in a case about a young child, speaking of "a child's liability" may really be speaking of a very young child.
Process and issues- How did we get to this point and why are we here? Also, the spheres of judges and juries are important and often a main issue.
Application of rules- is not easy. How does the rule apply? How does the rule interact with other rules?
Rules point lawyers to evidence required and arguments available- 'Nuff said.
§ 2. Procedures at Trial
1. Complaint
2. Answer
3. Selection of a jury
4. Opening statements
5. Plaintiff's case
6. Defendant's case
7. Closing arguments
8. Instruction to the jury.
§ 3. Procedures Raising Legal Issues
a. The Motion to Dismiss or Demurrer "Take all the facts stated in the complaint as if they were proved; even so, they do not show a valid legal claim." Defendant's motion; comes early in a case, before the answer is filed.
b. The Motion for Summary Judgment is based on (a) a showing of new facts in addition to those stated in the complaint and possibly in contradiction of them; (b) a showing that there is no real dispute about these new facts; and (c) a showing that on these new facts, the law compels judgment for the moving party. Usually made by the defendant, saying the legal rules do not permit the plaintiff to win.
c. Objections to Evidence and Offers of Evidence Evidence that is not relevant should be excluded, especially if it is likely to mislead or prejudice a jury. Attorneys must raise this point; if they fail to do so, they cannot complain later on. Every time a judge sustains or overrules, they are making a quick statement on the rule (even if they never explain).
d. The Motion for Directed Verdict is usually done by a defendant after the plaintiff's evidence and again after the defendant's evidence. "Such motions assert that the proof offered by the plaintiff is legally insufficient to warrant a jury's verdict for the plaintiff." Can be done if no reasonable person could disagree on the pertinent facts. Based on evidence produced in full at the trial, not initial allegations or the claim that the evidence is undisputed.
e. Proposed Instructions and Objections to Them Instructions are statements of law to the jury. "The substantive legal issue raised by an instruction, then, is whether it correctly states the law." Lawyers have the burden to object.
f. The Motion N.O.V. - A Post-trial Motion for Judgment as a Matter of Law The same as a motion for directed verdict (that is, based on the same things), but submitted after the trial. Turns on legal issues, not factual ones. The judge does not have to give a direct verdict during the trial; the judge can change their mind later if presented with this motion.
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