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A Case Studies Workbook in Business & Consumer Law

Student WorkbookSeries No. 1

Michael K. Glucksman, Esq.

PUBLISHED BY

You Be the Judge! • Student WorkbookISBN: 978-1-934422-23-6 (Print)ISBN: 978-1-934422-73-1 (eText - School License)ISBN: 978-1-626890-53-4 (eText - District License)

Copyright ©2011 by B.E. Publishing, Inc.

All Rights Reserved. No part of this work covered by copyright hereon may be reproduced or used in any form or by any means—including but not limited to graphic, electronic, or mechanical, including photocopying, recording, taping, Web distribution, or information storage and retrieval systems—without the expressed written permission of the publisher.

AuthorMichael K. Glucksman, Esq.

EditorsGina Simonelli Baxter, Esq.Kathleen HicksDiane SilviaLinda Viveiros

DesignFernando Botelho

PermissionsTo use materials from this text, please contact us:

B.E. Publishing, Inc.P.O. Box 8558Warwick, RI 02888U.S.A.

Tel: 888.781.6921Fax: 401.781.7608E-mail: [email protected]

All references made to specific software applications and/or companies used within this book are registered trademarks of their respective companies.

Printed in the U.S.A.

About the AuthorMichael K. Glucksman, Esq., is currently a licensed, practicing attorney in the states of Rhode Island and Massachusetts, as well as in the Federal Courts. Mr. Glucksman has extensive legal expertise in a variety of civil and criminal law areas, and also serves as a City Solicitor and Assistant Prosecutor where he oversees municipal, contract, and labor issues. Mr. Glucksman also serves as an adjunct faculty member at the university level where he teaches Business, Criminal, and Employment law courses. Mr. Glucksman obtained his Law Degree from the University of Miami School of Law.

Student WorkbookSeries No. 1

A Case Studies Workbook in Business & Consumer Law

iiiYou Be the Judge!You Be the Judge!

Contents

Introduction� v

Curriculum�Guide� viii

Commonwealth�v.�Snyder� 1

M.D.,�a�minor,�v.�Morgan�Hill�Unified�School�District� 9

State�v.�Stallman� 17

People�v.�William�D.� 25

Mattel,�Inc.�v.�MGA�Entertainment,�Inc.� 33

Sharon�v.�City�of�Newton� 41

Bowling�v.�Sperry� 49

Holmes�v.�Lerner� 57

Selwyn�v.�Ward� 65

Tobin�v.�Norwood�Country�Club,�Inc.� 73

Johnston�v.�Poulin�� 81

Volpe�v.�Gallagher�� 89

Nicholson�v.�Bd.�of�Educ.�of�the�City�of�New�York� 97

Nivens�v.�7-11�Hoagy’s�Corner� 105

Medley�v.�Home�Depot,�Inc.� 113

Sollami�v.�Eaton�� 121

Malletier�v.�Dooney�&�Bourke,�Inc.� 129

Abercrombie�&�Fitch�Stores,�Inc.�v.�American�Eagle�Outfitters� 137

Lacoste�Alligator,�S.A.�v.�Bluestein’s�Men’s�Wear,�Inc.� 145

American�Heart�Association�v.�County�of�Greenville� 153

vYou Be the Judge!You Be the Judge!

IntroductionWelcome�to�a�new�and�exciting�approach�to�learning�business�and�consumer�law,�one�of�the�most�important�topics�you�will�study�in�today’s�changing�world.�Every�student�throughout�his�or�her�lifetime�can�benefit�from�the�knowledge�of�contracts,�intellectual�property,�partnerships,�liability,�and�negligence.�And�whether�you�decide�on�a�career�in�accounting,�finance,�economics,�or�even�medicine,�you�should�have�at�least�a�general�understanding�of�business�and�consumer�law�in�order�to�function�in�the�real�world.

One�of�the�best�ways�to�learn�about�the�law�is�to�analyze�court�cases.�You Be the Judge!�contains�a�comprehensive�collection�of�real-world�case�studies�where�you,�based�on�your�knowledge�of�the�law,�act�as�the�judge�and�render�a�decision�as�to�what�you�think�the�outcome�should�be.

Your Role in You Be the Judge!As�the�judge�in�each�case,�you�act�as�the�decision-maker,�as�you�decide�which�party�should�win�and�which�party�should�lose.�You�will�base�your�decision�on�the�facts�of�each�case,�the�rule�of�law,�and�the�distinct�issue�that�you�must�consider.�To�get�started�with�each�case,�you�will�be�provided�with�a�brief�background�of�the�facts,�a�summary�of�the�terms�and�law�pertinent�to�the�particular�case,�and�the�essential�question�or�issue�that�you�will�ultimately�have�to�answer.

The Skills You Will Be Drawing on Throughout This BookWhile�reading�each�case,�you�will�determine�which�party�is�more�credible,�and�whether�the�plaintiff�has�enough�facts�to�prove�their�case!�The�following�is�a�list�of�the�skills�you�will�be�drawing�on�throuhgout�this�case�studies�workbook:

•�Understanding�law�concepts•�Decision-making•�Critical�thinking•�Applying�rules�of�law•�Reading�comprehension•�Analytical�skills�(case�analysis)

Prerequisite SkillsThis�workbook�should�be�used�as�a�supplement�in�conjunction�with�a�Business�and�Consumer�Law�textbook.�It�is�assumed�that�you�have�a�clear�working�knowledge�of�concepts�and�laws�included�in�the�cases�within�this�workbook.�Although�terms�and�definitions�have�been�provided�to�you�at�the�beginning�of�each�case,�these�should�be�used�only�for�quick�reference�and�not�as�a�replacement�to�a�more�thorough�learning�of�the�subject.

Copyright Notice About the Cases in This Book�The�cases�in�this�workbook�are�real�court�cases�that�have�been,�or�in�the�process�of�being,�decided�in�a�court�of�law.�Exact�extractions�from�the�actual�published�decisions�have�been�used�in�this�workbook;�however,�for�ease�of�reading�purposes,�many�times�the�format�and�the�language�used�have�been�modified.�

vi You Be the Judge!You Be the Judge!

Introduction

3

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iSSue Before THe courTWhether the warrantless search of a student’s locker for marijuana was reasonable under the circumstances of the case.

THe facTS

You Be the Judge!You Be the Judge!

The Fourth Amendment

to the U.S. Constitution

guards against

unreasonable searches

and seizures when the

searched party has a

“reasonable expectation

of privacy.”

On December 21, at 12:45 pm, Linda Day, the principal of Monu-ment Mountain Regional High School in Great Barrington, Massa-chusetts, was told by a faculty member that a student reported being approached by Je rey Snyder to purchase marijuana for $25. � e reporting faculty member had worked at the school for approximately 15 years, had extensive contact with students, and many times had provided reliable information to school administrators.

Principal Day asked John F. Canning, the assistant principal, to join her and the faculty member in her o� ce, whereupon the faculty member repeated the information. � e faculty member added that the student had reported the attempted sale at about 10:30 am. � e student said that Je rey showed him a videocassette case that con-tained three bags of marijuana and that he then put the videocassette case in his book bag.

� e administrators decided to locate Je rey. Assistant Principal Canning found Je rey in the student center, which was crowded with students. From a distance, Canning could not see Je rey’s book bag. Since he did not know if other students were involved, he did not want to arouse suspicion by approaching Je rey in the student center. � e two administrators decided to wait until the beginning of the next period (about 1:20 pm) when Je rey was scheduled to be in a class and to search his locker for the book bag at that time. It is important to note that the school’s student code stated that each student had the right not to have his/her locker subject to an “unreasonable” search.

At approximately 1:20 pm, the two administrators opened the locker using the combination to the locker that was available at the school’s main o� ce. � ey found the book bag, the videocassette case, and three bags containing marijuana. � ey took these items to Princi-pal Day’s o� ce and concealed them behind her desk.

Principal Day located Je rey and brought him to her o� ce. � ere,

2

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Background• AteacherinformedtheprincipalofahighschoolthatJeffreySnyder,astudentattheschool,

attemptedtosellillegaldrugs(marijuana)toanotherstudent.

• WithoutinformingJeffrey,theprincipalauthorizedasearchofhislockerwhilehewasinclass.Schooladministratorsfoundmarijuanainhislocker.

• Baseduponthesearch,Jeffreywascalledintotheprincipal’soffice.Whenconfrontedwiththemarijuanafoundinhislocker,heconfessedtopossessionofmarijuanawithintenttoselltootherstudents.

• JeffreyclaimedthattheschoolviolatedtheFourthAmendmentoftheUnitedStatesConstitutionby failing to obtain a search warrant before seizing the illegal drugs from his locker.

Before you Begin


RR What is the Fourth Amendment of the United States Constitution? TheFourthAmendmentprotectspersonsaccusedofcrimesbyrequiringasearchwarrantbeforegovernmentofficialscansearchaperson,ahome,oranyplacewhereapersonhasa“reasonableexpectationofprivacy.”

RR What is a “reasonable expectation of privacy”?UndertheFourthAmendment,theU.S.SupremeCourtassertsthatapersonhasa“reasonableexpectationofprivacy”when:(1)theindividualSUBJECTIVELYbelievesthataparticularareaisprivate,suchasacar,a locker, a pocketbook, or a home, and (2)OBJECTIVELY,whethersocietyrecognizesthatexpectationasreasonable.Assuch,thecourtlookstothesubjectiveintentofthepersonbeingsearched(forexample,didthepersoninfactbelievethatacertainareawasprivate?)andtotheobjectiveintentastowhetherthatperson’sbeliefofprivacywillberecognizedbysocietyasawhole.

RR What is a search warrant? Inthemajorityofcases,beforesearchingareaswhereapersonhasareasonableexpectationofprivacy,thegovernment(thepolice)mustobtainwrittenpermissionfromajudgetoconductasearch.Thepolicemustsupporttheirrequestwithfactsthatshowtheyhaveextremelygoodreasons,or“probablecause,”toconductasearch.Ifpermissionisgranted,thecourtissuesasearchwarrant.

RR What is Balancing School Safety/Disciplinary Policies with Students’ Constitutional Rights?Incasesofsearchingstudents’lockers,thelawrequiresthecourttobalancetheconstitutionalrightsofthestudentagainsttheneedforschoolofficialstokeeptheschoolsafeandorderlyforallstudents.

Commonwealth v. SnyderFourth Amendment Protection Against Unreasonable Searches and Seizures

1

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Constitutional Law


Case 1: High School

Locker Search

Fourth Amendment Protection Against Unreasonable Searches and Seizures

oBJecTiVeTo understand how the Fourth Amendment of the United States Constitution protects against warrantless searches and whether this protection extends to a locker search of a high school student.

ToPicS coVeredRR Fourth Amendment of the United States Constitution

RR Students’ Reasonable Expectation of Privacy

RR Search Warrants Supported by Probable Cause

RR Balancing School Safety/Disciplinary Policies with Students’ Constitutional Rights

Commonwealth v. Snyder

4

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1


Sources

Thecasebriefingabovecontainsexcerptsanddirectextractionsfromthesourcesnotedbelowthathavebeencombinedwiththeauthor’sownexpertlegalinput.Thecasehasbeencondensedandformattedfromitsoriginalcontentforpurposesofthisworkbook.

Commonwealthv.Snyder,413Mass.521,597N.E.2d1363(1992).SupremeJudicialCourtofMassachusetts,BerkshireAugust25,1992.OpinionwrittenbytheHonorableHerbertP.Wilkins.

In the U.S., the police (or other law

enforcement offi cials) cannot simply search

someone for no reason. If proper legal steps are not followed, that

search can be classifi ed as unreasonable.

Probable Cause: Evidence that would lead a reasonable person to believe that a crime was or is being committed by the person being accused.

in Assistant Principal Canning’s presence, Principal Day asked Je rey if it was true, as reported to her, that he had o ered to sell marijuana in the school. Je rey admitted that he had. Je rey, who was very upset, said that he could not believe this was happening and had never before engaged in this type of activity.

Je rey explained that a friend had given him the marijuana to sell, that he had become troubled about doing it, and he had called his friend to come to the school at 2 pm to take back what he had not sold. Je rey admitted that the book bag, the videocassette case, and the bags of marijuana belonged to him. Je rey said there were four bags of marijuana but he had sold one for $25 to a student. Principal Day called Je rey’s mother, who came to the school, while Assistant Principal Canning called the police.

At trial, Snyder argued that since he had a legitimate expectation of privacy in his locker as per the school code, all evidence taken was illegally seized and not admissable against him.

� e Commonwealth argued that there was no reasonable expec-tation of privacy as to his locker and in the alternative, even if there was, the locker search was valid as school administrators conducted a search of the locker that was reasonable under all the circumstances. In other words, while school administrators must be “reasonable,” they are not restricted by the probable cause or warrant requirements of the Fourth Amendment.

Case Title

Provides�the�title�of�the�case.

objective

The�objective�of�the�case.

Topics Covered

A�list�of�the�law�concepts�covered�in�the�case.

Background

Provides�a�brief�background�summary�of�the�case.

Before You Begin

Terms�and�defi�nitions�of�the�laws�and�key�concepts�pertinent�to�the�case.

issue Before the Court

The�essential�question�that�is�being�asked�of�the�court.

The Facts

Provides�the�detailed�facts�of�the�case.

side Notes

Additional�law�concepts�and�fun�facts�related�to�the�case.

sources

Identifi�es�the�source(s)�of�the�case.

Understanding the Format of This BookThis�workbook�has�been�organized�into�an�easy-to-read�format�to�help�you�make�a�decision�in�each�case.�To�prepare�you�in�the�decision�making�process,�each�case�has�been�divided�into�a�series�of�individual�sections.�The�following�is�a�brief�explanation�of�the�individual�sections�that�make�up�the�parts�of�each�case.

viiYou Be the Judge!You Be the Judge!

Introduction

The Answer FormsFollowing�“The�Facts”�section�of�each�case,�there�are�a�series�of�forms�that�you�must�complete.�The�answers�on�the�fi�rst�form,�“Review�the�Case,”�will�come�directly�from�“The�Facts”�section.�To�complete�the�“Make�the�Argument”�form,�you�will�make�conclusions,�based�upon�your�answers�in�the�“Review�the�Case”�form.�Finally,�you�will�decide�what�you�think�the�outcome�should�be�by�completing�the�“You�Be�the�Judge”�form.

review the Case Form

The�“Review�the�Case”�form�requires�you�to�answer�a�series�of�factual�questions�with�defi�nitive�answers�derived�from�“The�Facts”�section�of�the�

case.�These�questions�have�a�twofold�purpose:�(1)�to�test�your�knowledge�of�the�case;�and,�(2)�to�help�you�understand�a�detailed�fact�pattern�by�

going�through�the�question�and�answer�process.

You Be the Judge Form

Finally,�the�“You�Be�the�Judge”�form�requires�you�to�reach�a�conclusion�

based�upon�your�answers�from�the�“Make�the�Argument”�form.�Upon�

completion�of�this�form,�you�will�have�decided�what�you�think�the�outcome�of�the�case�should�be.�You�will�answer�the�

question,�“Who�should�win�the�case?”

NAME DATE

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Decision for the Plaintiff Decision for the Defendant

You Be the Judge

Havingreviewedthecaseandconsideredthequestionsinvolved,decidethecaseforeitherthePlaintiffortheDefendant:


Jeffrey SnyderCommonwealth of Massachusetts

NAME DATE

5

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Review the Case

AfterreadingCommonwealthv.Snyder,answerthefollowing:


1. IdentifythePlaintiff(s)inthecase.

2. IdentifytheDefendant(s)inthecase.

3. Isthisacriminalproceedingoracivilproceeding?Explain.

4. HowdidtheschooladministratorsinitiallydiscoverthatJeffreymightbesellingmarijuana?

5. WhydidPrincipalDaygivecredibilitytothereportingteacherregardingJeffrey’spossessionofmarijuana?

6. Explainthereason(s)theprincipalandassistantprincipaldidnotapproachJeffreyinthestudentcenter.

7. WheredidtheadministratorsfindthecombinationtoJeffrey’slocker?

NAME DATE

7

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Make the Argument

Inorderforthejudgeorjurytorenderadecision,thefollowingaresomeofthequestionsthatmustbeconsidered:


1. Wastheinformationreceivedbytheschooladministratorsreliable?Explain.

2. DidJeffreyhavean“expectationofprivacy”inhislockeratschool?Explain.

3. Wastheschool’ssearchofthelockerjustifiedandreasonable?Explain.

4. Didtheschoolhaveareasonablesuspicionthatacrimewasbeingcommitted?Explain.

5. Didtheschool’sinteresttoenforceschoolpoliciesandadequatelydisciplineitsstudentsoverridetheimportanceofJeffrey’sprivacyinhislocker?

6. DidthestudenthandbookstatethattheDefendanthadanexpectationofprivacyinhislocker?

NAME DATE

6

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Review the Case (continued)


8. Whatdidtheschool’sstudentpolicysayaboutsearchesofstudentlockers?

9. WhatdidtheprincipalandassistantprincipalfindduringtheirsearchofJeffrey’slocker?

10. WhatdidJeffreydowhenhewasconfrontedwiththeevidenceagainsthim?

Make the argument Form

In�order�to�complete�the�“Make�the�Argument”�form,�you�must�fi�rst�complete�

the�“Review�the�Case”�form.�Similar�to�a�jury�form�in�a�real�court�case,�you�will�use�your�answers�from�the�“Review�the�Case”�

form�to�answer�the�analytical�questions�on�the�“Make�the�Argument”�form.

viii You Be the Judge!You Be the Judge!

Curriculum Guide

Case TopiCs Covered

1 Commonwealth v. Snyder

Constitutional�Law

Fourth�Amendment�of�the�U.S.�ConstitutionStudents’�Reasonable�Expectation�of�PrivacySearch�Warrants�Supported�by�Probable�CauseBalancing�School�Safety/Disciplinary�Policies�with�Students’�Constitutional�Rights

2 M.D., a minor, v. Morgan Hill Unified School District

Constitutional�Law

First�Amendment�of�the�U.S.�ConstitutionFreedom�of�SpeechBalancing�School�Safety/Disciplinary�Policies�with�Students’�Constitutional�Rights

3 State v. Stallman Constitutional�Law

OrdinanceMisdemeanorIntrastate�TravelDefining�“Unconstitutional”Police�Power�and�Constitutional�Standards/Test

4 People v. William D. Criminal�Law Assault�and�BatteryDefense�of�OthersReasonable�Force

5 Mattel, Inc. v. MGA Entertainment, Inc.

Contract�Law Employment�contractsNon-compete�clausesEmployee’s�“duty�of�loyalty”�to�employer�“Fair�and�just”�non-compete�clauses

6 Sharon v. City of Newton

Contract�Law Contract�Not�to�SueCapacity�of�a�Minor�Child�to�Enter�into�a�ContractValidity�of�Release�as�Condition�to�Participation�in�Extra-curricular�ActivitiesParental�Consent

7 Bowling v. Sperry Contract�Law Capacity�of�a�Minor�to�Enter�into�a�ContractVoidable�ContractsMinor’s�Disaffirmance�of�ContractsContracts�for�Necessities

8 Holmes v. Lerner Business�Law:�Partnerships

Business�OrganizationsPartnershipsVerbal�Contracts

9 Selwyn v. Ward Tort�Law:�Negligence�and�Strict�Liability

Dram�Shop�ActNegligence�ActionStrict�Product�LiabilityUltrahazardous�Activity

10 Tobin v. Norwood Country Club, Inc

Tort�Law:�Negligence

Dram�Shop�ActDuty�of�CareReasonable�Care

ixYou Be the Judge!You Be the Judge!

Curriculum Guide (continued)

Case TopiCs Covered

11 Johnston v. Poulin Tort�Law:�Strict�Liability

Strict�Liability�for�Roaming�AnimalsRoaming�or�“At�Large”�Animals

12 Volpe v. Gallagher Tort�Law:�Negligence

Landowner’s�duty�of�care�to�prevent�criminal�acts�of�third�persons�“licensees”�on�his/her�propertyException�to�rule�of�landowner’s�duty�of�care�to�prevent�criminal�acts�of�third�person�“licensees”�on�his/her�propertyDuty�to�Inspect�Property

13 Nicholson v. Bd. of Educ. of the City of New York


Municipality’s�duty�of�care�to�maintain�school�playgroundsMunicipality’s�liability�for�criminal�activities�at�school�playgroundsMunicipality’s�duty�to�provide�supervision�at�school�playgrounds

14 Nivens v. 7-11 Hoagy’s Corner


NegligenceBusiness�InviteeDuty�of�Care�for�Criminal�Acts�of�Third�PersonsSpecial�Relationship�Exception�to�the�Duty�of�Care�for�Criminal�Acts�of�Third�PersonsForseeable�Act

15 Medley v. Home Depot, Inc.


NegligenceSlip�and�Fall�InjuryBusiness�InviteeA�Business�Owner’s�Duty�to�Inspect

16 Sollami v. Eaton Consumer�Law:�Product�Liability

Product�LiabilityUnreasonably�Dangerous�ProductDuty�to�WarnDefense�to�Product�Liability,�the�“Open�and�Obvious”�Doctrine

17 Malletier v. Dooney & Bourke, Inc.

Trademark�Law TrademarkTrademark�InfringementInjunction

18 Abercrombie & Fitch Stores, Inc. v. AmericanEagle Outfitters

Trademark�Law Intentional�TortTrademarkTrademark�InfringementTrade�Dress

19 Lacoste Alligator, S.A. v. Bluestein’s Men’s Wear, Inc.

Trademark�Law Intentional�TortTrademarkTrademark�InfringementExclusive�Licensee�of�a�Trademark

20 American Heart Association v. County of Greenville

Family�and�Probate�Law

Last�Will�&�TestamentProbateExecutorProbate�Property/EstatePublic�Document

1

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Constitutional Law


Case 1: High School

Locker Search

Fourth Amendment Protection Against Unreasonable Searches and Seizures

oBJecTiVeTo understand how the Fourth Amendment of the United States Constitution protects against warrantless searches and whether this protection extends to a locker search of a high school student.

ToPicS coVeredRR Fourth Amendment of the United States Constitution

RR Students’ Reasonable Expectation of Privacy

RR Search Warrants Supported by Probable Cause


Commonwealth v. Snyder

2

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Background•� A�teacher�informed�the�principal�of�a�high�school�that�Jeffrey�Snyder,�a�student�at�the�school,�

attempted�to�sell�illegal�drugs�(marijuana)�to�another�student.

•� Without�informing�Jeffrey,�the�principal�authorized�a�search�of�his�locker�while�he�was�in�class.�School�administrators�found�marijuana�in�his�locker.

•� Based�upon�the�search,�Jeffrey�was�called�into�the�principal’s�office.�When�confronted�with�the�marijuana�found�in�his�locker,�he�confessed�to�possession�of�marijuana�with�intent�to�sell�to�other�students.

•� Jeffrey�claimed�that�the�school�violated�the�Fourth�Amendment�of�the�United�States�Constitution�by�failing�to�obtain�a�search�warrant�before�seizing�the�illegal�drugs�from�his�locker.

Before you Begin


RR What is the Fourth Amendment of the United States Constitution? The�Fourth�Amendment�protects�persons�accused�of�crimes�by�requiring�a�search�warrant�before�government�officials�can�search�a�person,�a�home,�or�any�place�where�a�person�has�a�“reasonable�expectation�of�privacy.”

RR What is a “reasonable expectation of privacy”?Under�the�Fourth�Amendment,�the�U.S.�Supreme�Court�asserts�that�a�person�has�a�“reasonable�expectation�of�privacy”�when:�(1)�the�individual�SUBJECTIVELY�believes�that�a�particular�area�is�private,�such�as�a�car,�a�locker,�a�pocketbook,�or�a�home,�and�(2)�OBJECTIVELY,��whether�society�recognizes�that�expectation�as�reasonable.�As�such,�the�court�looks�to�the�subjective�intent�of�the�person�being�searched�(for�example,�did�the�person�in�fact�believe�that�a�certain�area�was�private?)�and�to�the�objective�intent�as�to�whether�that�person’s�belief�of�privacy�will�be�recognized�by�society�as�a�whole.

RR What is a search warrant? In�the�majority�of�cases,�before�searching�areas�where�a�person�has�a�reasonable�expectation�of�privacy,�the�government�(the�police)�must�obtain�written�permission�from�a�judge�to�conduct�a�search.�The�police�must�support�their�request�with�facts�that�show�they�have�extremely�good�reasons,�or�“probable�cause,”�to�conduct�a�search.�If�permission�is�granted,�the�court�issues�a�search�warrant.

RR What is Balancing School Safety/Disciplinary Policies with Students’ Constitutional Rights?In�cases�of�searching�students’�lockers,�the�law�requires�the�court�to�balance�the�constitutional�rights�of�the�student�against�the�need�for�school�officials�to�keep�the�school�safe�and�orderly�for�all�students.

Commonwealth v. SnyderFourth Amendment Protection Against Unreasonable Searches and Seizures

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iSSue Before THe courTWhether the warrantless search of a student’s locker for marijuana was reasonable under the circumstances of the case.

THe facTS


The Fourth Amendment

to the U.S. Constitution

guards against

unreasonable searches

and seizures when the

searched party has a

“reasonable expectation

of privacy.”

On December 21, at 12:45 pm, Linda Day, the principal of Monu-ment Mountain Regional High School in Great Barrington, Massa-chusetts, was told by a faculty member that a student reported being approached by Jeff rey Snyder to purchase marijuana for $25. Th e reporting faculty member had worked at the school for approximately 15 years, had extensive contact with students, and many times had provided reliable information to school administrators.

Principal Day asked John F. Canning, the assistant principal, to join her and the faculty member in her offi ce, whereupon the faculty member repeated the information. Th e faculty member added that the student had reported the attempted sale at about 10:30 am. Th e student said that Jeff rey showed him a videocassette case that con-tained three bags of marijuana and that he then put the videocassette case in his book bag.

Th e administrators decided to locate Jeff rey. Assistant Principal Canning found Jeff rey in the student center, which was crowded with students. From a distance, Canning could not see Jeff rey’s book bag. Since he did not know if other students were involved, he did not want to arouse suspicion by approaching Jeff rey in the student center. Th e two administrators decided to wait until the beginning of the next period (about 1:20 pm) when Jeff rey was scheduled to be in a class and to search his locker for the book bag at that time. It is important to note that the school’s student code stated that each student had the right not to have his/her locker subject to an “unreasonable” search.

At approximately 1:20 pm, the two administrators opened the locker using the combination to the locker that was available at the school’s main offi ce. Th ey found the book bag, the videocassette case, and three bags containing marijuana. Th ey took these items to Princi-pal Day’s offi ce and concealed them behind her desk.

Principal Day located Jeff rey and brought him to her offi ce. Th ere,

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Sources

The�case�briefi�ng�above�contains�excerpts�and�direct�extractions�from�the�sources�noted�below�that�have�been�combined�with�the�author’s�own�expert�legal�input.�The�case�has�been�condensed�and�formatted�from�its�original�content�for�purposes�of�this�workbook.

Commonwealth�v.�Snyder,�413�Mass.�521,�597�N.E.�2d�1363�(1992).Supreme�Judicial�Court�of�Massachusetts,�BerkshireAugust�25,�1992.�Opinion�written�by�the�Honorable�Herbert�P.�Wilkins.

In the U.S., the police (or other law

enforcement offi cials) cannot simply search

someone for no reason. If proper legal steps are not followed, that

search can be classifi ed as unreasonable.

Probable Cause: Evidence that would lead a reasonable person to believe that a crime was or is being committed by the person being accused.

in Assistant Principal Canning’s presence, Principal Day asked Jeff rey if it was true, as reported to her, that he had off ered to sell marijuana in the school. Jeff rey admitted that he had. Jeff rey, who was very upset, said that he could not believe this was happening and had never before engaged in this type of activity.

Jeff rey explained that a friend had given him the marijuana to sell, that he had become troubled about doing it, and he had called his friend to come to the school at 2 pm to take back what he had not sold. Jeff rey admitted that the book bag, the videocassette case, and the bags of marijuana belonged to him. Jeff rey said there were four bags of marijuana but he had sold one for $25 to a student. Principal Day called Jeff rey’s mother, who came to the school, while Assistant Principal Canning called the police.

At trial, Snyder argued that since he had a legitimate expectation of privacy in his locker as per the school code, all evidence taken was illegally seized and not admissable against him.

Th e Commonwealth argued that there was no reasonable expec-tation of privacy as to his locker and in the alternative, even if there was, the locker search was valid as school administrators conducted a search of the locker that was reasonable under all the circumstances. In other words, while school administrators must be “reasonable,” they are not restricted by the probable cause or warrant requirements of the Fourth Amendment.

NAME DATE

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Review the Case

After�reading�Commonwealth�v.�Snyder,�answer�the�following:


1. Identify�the�Plaintiff(s)�in�the�case.�

2. Identify�the�Defendant(s)�in�the�case.

3. Is�this�a�criminal�proceeding�or�a�civil�proceeding?�Explain.�

4. How�did�the�school�administrators�initially�discover�that�Jeffrey�might�be�selling�marijuana?�

5. Why�did�Principal�Day�give�credibility�to�the�reporting�teacher�regarding�Jeffrey’s�possession�of�marijuana?

6. Explain�the�reason(s)�the�principal�and�assistant�principal�did�not�approach�Jeffrey�in�the�student�center.�

7. Where�did�the�administrators�find�the�combination�to�Jeffrey’s�locker?�

NAME DATE

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8. What�did�the�school’s�student�policy�say�about�searches�of�student�lockers?�

9. What�did�the�principal�and�assistant�principal�find�during�their�search�of�Jeffrey’s�locker?�

10. What�did�Jeffrey�do�when�he�was�confronted�with�the�evidence�against�him?�

NAME DATE

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Make the Argument

In�order�for�the�judge�or�jury�to�render�a�decision,�the�following�are�some�of�the�questions�that��must�be�considered:�


1. Was�the�information�received�by�the�school�administrators�reliable?�Explain.

2. Did�Jeffrey�have�an�“expectation�of�privacy”�in�his�locker�at�school?�Explain.

3. Was�the�school’s�search�of�the�locker�justified�and�reasonable?�Explain.

4. Did�the�school�have�a�reasonable�suspicion�that�a�crime�was�being�committed?�Explain.

5. �Did�the�school’s�interest�to�enforce�school�policies�and�adequately�discipline�its�students�override�the�importance�of�Jeffrey’s�privacy�in�his�locker?

6. �Did�the�student�handbook�state�that�the�Defendant�had�an�expectation�of�privacy�in�his�locker?

NAME DATE

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You Be the Judge

Having�reviewed�the�case�and�considered�the�questions�involved,�decide�the�case�for�either�the�plaintiff�or�the�defendant:�


Jeffrey SnyderCommonwealth of Massachusetts

9

Constitutional Law

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First Amendment and Freedom of Speech

oBJecTiVeTo understand the First Amendment of the United States Constitution and how it applies to “Freedom of Speech” in a school setting.

ToPicS coVeredRR First Amendment of the United States Constitution

RR Freedom of Speech


M.D., a minor, v. Morgan Hill Unified School District

Case 2: “You Can‛t

Wear That to School”

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Background•� On�May�5,�“Cinco�de�Mayo,”�a�holiday�celebrated�in�Mexico,�five�teenage�students,�wearing�

American�flag�t-shirts�and�bandannas,�were�sitting�at�a�table�outside�Live�Oak�High�School�in�Morgan�Hill,�California.�The�Assistant�Principal,�Miguel�Rodriguez,�asked�two�of�the�students�to�remove�their�American�flag�bandannas.�

•� The�five�students�were�also�told�that�although�it�would�not�be�considered�a�suspension,�they�must�turn�their�American�flag�t-shirts�inside�out�or�be�sent�home.�Due�to�the�large�Mexican-American�student�population�at�Live�Oak�High�School,�school�administration�feared�that�fights�would�break�out�between�Mexican-American�students�celebrating�their�heritage�day�and�those�students�wearing�clothing�with�American�flags.

•� The�teenagers�refused�to�turn�their�shirts�inside�out�as�they�felt�it�was�disrespectful�to�the�United�States�of�America,�so�the�school�administrators�asked�the�students’�parents�to�take�them�home.

Before you Begin


RR What is the First Amendment of the United States Constitution?The�First�Amendment�is�the�first�of�the�original�13�amendments�called�the�“Bill�of�Rights.”�The�First�Amendment�gives�American�citizens�the�right�to�Freedom�of�Speech.

RR What is Freedom of Speech?The�First�Amendment�prohibits�Congress�from�enacting�any�laws�that�prohibit�a�citizen’s�right�to�free�speech.�The�United�States�Supreme�Court�qualified�this�freedom�of�speech�in�several�cases.�Examples�of�restricted�speech�include�instances�when�a�person:�(a)�uses�“fighting�words,”�(b)�makes�threatening�speech�toward�another�individual,�(c)�engages�in�“defamatory”�speech�(words�meant�to�injure�another�person’s�reputation�in�the�community),�and�(d)�uses�“obscene”�speech�(words�or�actions�that�are�not�appropriate�for�the�average�citizen).

RR What is Balancing School Safety/Disciplinary Policy with Students’ Constitutional Rights?In�cases�involving�students’�Freedom�of�Speech,�the�law�requires�the�court�to�balance�the�constitutional�rights�of�the�student�against�the�need�for�the�school�officials�to�keep�the�school�safe�and�orderly�for�all�students.

M.D., a minor v. Morgan Hill Unified School DistrictFirst Amendment and Freedom of Speech

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iSSue Before THe courTWhether a public school can limit a student’s choice to wear American flag clothing or accessories to school without violating the First Amendment of the United States Constitution.

THe facTS


Constitutional Law is a

body of law dealing with

the distribution and

exercise of government

power.

On May 5, 2010, “Cinco de Mayo,” a Mexican holiday, fi ve stu-dents of Live Oak High School in Morgan Hill, California, were approached by the school’s Assistant Principal Miguel Rodriguez. Th e students were dressed in American fl ag t-shirts and American fl ag bandannas on their heads. Mr. Rodriguez asked two of the students to remove their American fl ag bandannas. Although the students com-plied, they were asked to accompany Mr. Rodriguez to the principal’s offi ce aft er one of the students questioned his request.

According to the complaint fi led by the students, Rodriguez told the fi ve students, including minors M.D., D.M., and D.G., that they must turn their American fl ag t-shirts inside out or they would be sent home for the day without suspension. He explained to the stu-dents that there is a large Mexican-American population at Live Oak High School, and he did not want to risk any fi ghts breaking out between Mexican-American students celebrating their heritage and the students wearing American fl ags. Th ere had not been any fi ghting issues in the past, and on this particular day, the students had been on school grounds for three hours without any incident.

While in the principal’s offi ce, the teenagers told Rodriguez and school Principal Nick Boden that turning their t-shirts inside out was disrespectful to the citizens of the United States of America. So, school offi cials contacted their parents, and the students were sent home.

While the school’s dress code policy banned the wearing of bandannas of any color, the policy did not contain references to American fl ag clothing. Th e school policy did prohibit students from wearing any clothing or decoration that detracted from the school’s learning environment. As such, the school claimed it had

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Sources


M.D.,�a�minor�v.�Morgan�Hill�Unifi�ed�School�District,�CV-10-02745.Complaint�prepared�and�fi�led�by�William�J.�Becker,�The�Becker�Law�Firm,�and�affi��liatedwith�the�Thomas�More�Law�Center,�and�Robert�J.�Muise,�the�Thomas�More�Law�Center.

Freedom of Speech is the right to express information, ideas, or opinions free of government restrictions based on content.

the right to request that any student dressed inappropriately for school must either: (a) change into other clothes, (b) go home to change, and/or (c) be subject to disciplinary action.

Th e students brought a civil case against Morgan Hill Unifi ed School District claiming that Live Oak High School violated the students’ right to Freedom of Speech under the First Amendment to the Constitution, which provides its citizens with various protections, such as, in this case, the right to Freedom of Speech.

Morgan Hill Unifi ed School District defended itself by stating that keeping the students of Live Oak High School safe was more impor-tant than the disciplined students’ right to Freedom of Speech.

NAME DATE

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Review the Case

After�reading�M.D.,�a�minor,�v.�Morgan�Hill�Unified�School�District,�answer�the�following:


1. Identify�one�of�the�Plaintiff(s)�in�the�case.�

2. Identify�the�Defendant(s)�in�the�case.�

3. What�is�Cinco�de�Mayo?�

4. What�was�the�school�policy�regarding�bandannas?�

5. What�was�the�school�policy�regarding�wearing�American�flag�clothing?�

6. Explain�Vice�Principal�Rodriguez’s�reason�for�requesting�that�the�students�turn�their�t-shirts�inside�out.�

7. How�long�had�the�students�been�on�school�grounds�when�they�were�approached�by�Vice�Principal�Rodriguez?�

8. Why�did�the�teenagers�refuse�to�turn�their�American�flag�t-shirts�inside�out?�

NAME DATE

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9. Was�there�any�evidence�that�the�American�flag�t-shirts�were�disrupting�the�classrooms?�

10. Were�there�any�past�incidents,�like�fighting,�at�the�school�that�stemmed�from�students�wearing�the�American�flag�t-shirts�on�Cinco�De�Mayo?�

11. BONUS:�Do�you�agree�with�the�school�that�wearing�an�American�flag�t-shirt�on�Cinco�de�Mayo�is�inappropriate?�

NAME DATE

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Make the Argument


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1. Did�the�students�wear�American�flag�clothing�on�school�grounds?

2. Does�wearing�the�American�flag�clothing�fall�within�the�protections�afforded�under�the�First�Amendment�of�the�United�States�Constitution�as�“free�speech”?

3. Was�there�any�evidence�that�the�flags�actually�caused�violence�at�Live�Oak�High�School�or�disrupted�learning�at�the�school?

4. Does�the�school’s�interest�to�enforce�school�policies�and�adequately�discipline�its�students�override�the�importance�of�the�students’�freedom�of�speech?

NAME DATE

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You Be the Judge



CA

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Morgan Hill Unified School DistrictM.D., a minor

17

Constitutional Law

CA

SE:

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The Constitutional “Right to Travel”

oBJecTiVeTo understand the constitutional right to liberty with respect to the right to travel about the United States.

ToPicS coVeredRR Ordinance

RR Misdemeanor

RR Intrastate Travel

RR Unconstitutional

RR Police Power and Constitutional Standards/Test

State v. Stallman

Case 3: To Cruise or Not to Cruise!

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Background•� The�City�of�Anoka,�Minnesota�passed�an�ordinance�which�restricted�driving�in�certain�designated�

areas�of�the�city�called�“no�cruising�zones.”��This�“anti-cruising”�ordinance�was�targeted�at�teenagers�who�would�cruise�up�and�down�certain�roads�causing�traffic�congestion�and�public�disturbances,�such�as�fighting,�underage�drinking,�vandalism,�and�other�more�serious�criminal�offenses.

•� Jason�Edward�Stallman�drove�his�car�in�a�“no�cruising�zone”�when�he�was�stopped�and�charged�with�the�misdemeanor�crime�of�violating�the�“anti-cruising”�ordinance.�He�challenged�the�charge�as�an�unconstitutional�infringement�on�his�liberty�and�right�to�intrastate�travel.

•� Anoka�Police�alleged�that�the�ordinance�was�a�necessary�tool�of�their�police�power�to�keep�order�in�the�city.

Before you Begin


State v. StallmanThe Constitutional “Right to Travel”

RR What is an ordinance?An�ordinance�is�a�law�enacted�by�a�city�or�a�town�by�its�governing�body—usually�a�mayor,�a�city�council,�or�a�town�council.

RR What is a misdemeanor?A�misdemeanor�is�a�minor�criminal�offense�usually�punishable�by�less�than�a�$500�fine�and/or�less�than�one�year�in�jail.

RR What is intrastate travel?Intrastate�travel�is�traveling�within�the�borders�of�a�city�or�state.�Although�the�United�States�Supreme�Court�has�not�addressed�the�issue�of�whether�the�constitutional�right�to�interstate�travel�(traveling�to�different�states)�includes�the�right�to�intrastate�travel,�both�lower�federal�courts�and�state�courts�have�found�a�fundamental�right�to�intrastate�travel.

RR What does unconstitutional mean?An�unconstitutional�law�is�a�law�or�an�action�pursuant�to�that�law�that�conflicts�with�the�United�States�Constitution—the�supreme�law�of�the�United�States�of�America.�No�state�law�shall�conflict�with�the�Constitution.�In�this�case,�the�Defendant�challenges�the�“anti-cruising”�ordinance�as�an�unconstitutional�infringement�on�the�right�to�travel�within�the�borders�of�a�state.�

RR What is Police Power and Constitutional Standards/Test?While�a�government�has�authority�to�pass�laws�to�keep�its�citizens�safe�from�harm,�these�laws�need�to�meet�constitutional�requirements.�Here,�an�“anti-cruising”�ordinance�must�be�narrowly�tailored�to�meet�significant�city�objectives�of�protecting�the�general�public.

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iSSue Before THe courTDoes Anoka’s “anti-cruising” ordinance violate a fundamental right to intrastate travel? Is Anoka’s “anti-cruising” ordinance unconstitutional?

THe facTS


The right to travel

asserts that a citizen of

a state has the liberty

to travel, reside in, and/

or work in any part of

the state where one

pleases (with respect

for the rights of

others).

“Cruising” has been a part of our culture for decades and was made famous by the 1973 movie “American Graffi ti.” For years, teen-agers have been driving cars aft er school and on weekends cruising on city streets and meeting at various destinations.

On May 6, at approximately 9 pm, an offi cer of the Anoka Police Department selected a traffi c control point within the city’s “no cruising zone” and began monitoring. About 30 minutes later, the offi cer observed a red Mercury operated by Jason Edward Stallman drive past the traffi c control point.

Th e offi cer observed Stallman’s vehicle travel past him four times within approximately ten minutes. Th e police offi cer stopped the vehicle and Stallman was issued a misdemeanor citation for “cruising” in violation of Anoka’s “anti-cruising” ordinance. Th e Anoka City Council passed the ordinance as a response to the increase in fi ghting, underage drinking, vandalism, traffi c violations, drug traffi cking, and traffi c congestion around its main streets.

Th e police department argued that the traffi c congestion created a safety hazard. Emergency vehicles had had diffi culty getting through the congestion, and had to use alternate, less direct routes to respond to emergency calls, delaying their response time.

Th e Anoka Chief of Police stated that on a typical Saturday night between 400 and 500 teenagers milled about provoking petty crimes, such as fi ghts, traffi c violations, underage drinking, and vandalism, which escalated to more serious crimes, such as physical/sexual as-saults and drug traffi cking.

Th e ordinance stated:

1) “Cruising” means the operation of a motor vehicle, other than commercial, emergency, or buses, driving past a “traffi c control point” three or more times, between the hours of 9 pm

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Sources


State�v.�Stallman,�519�N.W.2d�903�(Minn.�App.�1994).Court�of�Appeals�of�MinnesotaJuly�26,�1994.�Opinion�written�by�the�Honorable�Justice�R.A.�Randall.

Anti-cruising ordinances were designed to alleviate traffi c in

specifi c areas. They prohibited cars from

cruising between certain checkpoints more than

two times within a given time frame.

To remain in or hang around an area for no obvious purpose is known as loitering.

and 2 am in a “No Cruising Zone.”

2) “Traffi c Control Point” means any point or points within a “No Cruising Zone” where cruising is monitored by police.

3) “Cruising is prohibited and no person shall operate a motor vehicle in such a manner so as to constitute cruising. A viola-tion of this section shall constitute a petty misdemeanor.”

Th e city council established “no cruising zones” at Main Street and one block on each side of Main Street, from a park at one end to the Anoka city limits.

Large signs leading into Anoka read, “Cruising and Loitering Ordinances Are Enforced.” On Main Street, signs read “No Cruis-ing 9 pm to 2 am.” Th e signs did not indicate the boundaries of the zone. Th e signs did not indicate that a traffi c control point was at any intersection or at any other point where the police selected to set up temporary monitoring. Th e Anoka Police Department had the discretion to choose a traffi c control point at any location during the pertinent time frame. Th e offi cer could arbitrarily choose to be at the point for minutes or hours. Although ensuring the safe passage of emergency vehicles was one of the reasons for the ordinance, nothing in the ordinance expressly or impliedly directed those areas to be traf-fi c control points.

Stallman argued that the “anti-cruising” ordinance was unconsti-tutional becasue it impermissibly restricted intrastate travel. Th e city argued that the ordinance was a necessary tool of its police powers to control traffi c and crime in Anoka.

NAME DATE

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Review the Case

After�reading�State�v.�Stallman,�answer�the�following:




3. How�many�times�did�Stallman�drive�past�the�police�officer�and�in�what�span�of�time?�

4. How�does�the�city�ordinance�define��“cruising”?�

5. How�does�the�city�ordinance�define�a�“traffic�control�point”?�

6. How�does�a�police�officer�choose�a�“traffic�control�point”?�

7. State�the�reasons�the�city�council�established�an�“anti-cruising”�ordinance�around�its�main�streets?�

NAME DATE

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8. What�type�of�notices�did�drivers�receive�regarding�the�“no�cruising”�law�in�Anoka?�

9. Did�the�notices�explain�“cruising”�to�the�driver�entering�a�“no�cruise”�zone?�

10. Did�the�notice�explain�to�drivers�the�consequences�of�traveling�past�a�traffic�control�point�within�the�five-hour�period?�

11. What�is�“intrastate�travel”?�

12. Did�the�ordinance�allow�a�suspected�driver�to�offer�a�lawful�explanation�for�why�he/she�drove�past�the�traffic�control�points�three�or�more�times�within�the�five-hour�period?�

13. Why�did�Stallman�believe�the�“anti-cruising”�ordinance�was�unconstitutional?��

NAME DATE

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Make the Argument


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1. Did�the�ordinance�sufficiently�define�“cruising”?

2. Were�the�“traffic�control�point”�signs�adequate�to�give�drivers�notice�of�exactly�where�the�zones�were�located?

3. Did�the�signs�give�adequate�notice�to�drivers�of�the�consequences�of�passing�a�police�vehicle�three�times�at�a�traffic�control�point�within�the�five-hour�period?

4. �Was�the�“anti-cruising”�ordinance�narrowly�tailored�to�meet�significant�city�objectives?�In�other�words,�was�the�City�of�Anoka’s�objective�in�reducing�traffic�congestion,�eliminating�safety�hazards,�ensuring�clear�passage�for�emergency�vehicles,�and�reducing�the�criminal�activity�resolved�by�this�ordinance�at�the�expense�of�infringing�on�legitimate�rights�to�travel�in�the�affected�areas?�

NAME DATE

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You Be the Judge


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State of Minnesota Jason Edward Stallman

25

Criminal Law

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Case 4: Don‛t Mess With My Friends

People v. William D.

The “Defense of Others” Defense

oBJecTiVeTo understand the use of “defense of others” as a defense to the charge of assault and battery in a school fight.

ToPicS coVeredRR Assault and Battery

RR Defense of Others

RR Reasonable Force

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Background•� The�victim,�Fabrizio,�a�6-foot�tall�high�school�student,�was�engaged�in�conversation�with�Danny,�

a�5-foot�3-inch�student,�regarding�an�incident�in�the�high�school�lunchroom�where�Danny�threw�food�at�Fabrizio.�

•� William�D.,�the�Defendant,�was�also�a�student�at�the�high�school,�and�Danny’s�friend.�

•� William�D.�allegedly�threatened�and�then�punched�Fabrizio�in�the�face�when�Fabrizio�was�about�to�strike�Danny,�and�as�such,�was�defending�Danny.�

•� William�D.�was�charged�with�assault�and�battery�against�Fabrizio.�William�D.�did�not�dispute�that�he�punched�Fabrizio,�but�claimed�that�he�was�using�reasonable�force�in�defense�of�others,�namely,�Danny.

Before you Begin


RR What is Assault and Battery?Assault�and�battery�are�two�separate�crimes.�Assault�is�an�act�that�creates�an�apprehension�or�fear�in�another�person�of�an�imminent�harmful�or�offensive�contact.�The�“act”�consists�of�a�threat�of�harm�accompanied�by�an�apparent,�present�ability�to�carry�out�the�threat.�Battery�is�a�harmful�or�offensive�touching�of�another,�typically�considered�the�defendant’s�“following�through”�with�the�assault.

RR What is the “Defense of Others” Defense?A�person�may�defend�another�against�an�imminent�assault�or�battery�by�use�of�force�against�an�attacker.�Reasonable�force�is�justified�when�a�person�reasonably�believes�that�it�is�necessary�to�prevent�harm�to�himself�or�another�person.�A�person�must�use�no�more�force�than�appears�reasonably�necessary�under�the�circumstances.

RR What is Reasonable Force?Reasonable�force�is�the�amount�of�force�necessary�to�protect�oneself�or�one’s�property.�Reasonable�force�is�a�term�associated�with�defending�one’s�person�or�property�from�a�violent�attack,�theft,�or�other�type�of�unlawful�aggression.�If�one�uses�excessive�force,�or�more�than�the�force�necessary�for�such�protection,�he�or�she�may�be�considered�to�have�forfeited�the�right�to�defense.�Reasonable�force�is�also�known�as�“legal�force.”

People v. William D.The “Defense of Others” Defense

27

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iSSue Before THe courTWas Danny in imminent danger when the Defendant intervened in the argument between Danny and Fabrizio? Was the level of force that the Defendant used “reasonable” to prevent injury to Danny, or was the force “excessive” under the circumstances?

THe facTS


In order to claim

“defense of others,”

the Defendant must

believe that there was

a defi nite need for

intervention, and the

person who is aided,

must have a legitimate

claim to self defense.

William D., Danny, and Fabrizio were all students at La Jolla High School in California. On September 19, 2003, aft er a lunchroom inci-dent, William D. punched Fabrizio in the face. Th e punch fractured Fabrizio’s left malar bone and required his hospitalization. William D. was criminally charged with assault and battery.

Fabrizio testifi ed that the incident began when Fabrizio accused Danny of throwing food at him in the school lunchroom. Later that day, Fabrizio approached Danny and asked, “What was that all about?” Danny began calling Fabrizio names and protested that he never threw food at him. Fabrizio believed Danny was trying to get him angry by calling him names, and stated that he refrained from action because of their size diff erence (Fabrizio is 6 feet tall and Dan-ny is 5 feet 3 inches tall). Fabrizio walked away from the confrontation to cool off . William then approached Fabrizio and told him “not to mess with his friends” and punched him.

Several students witnessed the incident and, based on the friend-ships, had diff ering versions of what took place.

Th ree of Fabrizio’s friends testifi ed that Danny taunted Fabrizio, then Fabrizio and Danny pushed each other, and William punched Fabrizio.

Two of William’s friends testifi ed that Fabrizio and Danny were arguing, Fabrizio said he wanted to go elsewhere and fi ght Danny, Danny looked intimidated, and Fabrizio shoved Danny. William arrived and told Fabrizio not to mess with his friends. Fabrizio ap-proached William with his fi st clenched, and William punched Fabrizio.

William was charged as a juvenile for assault and battery. William argued that he used reasonable force to defend Danny, in other words, the “defense of others” defense.

28

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Sources

The�case�briefing�above�contains�excerpts�and�direct�extractions�from�the�sources�noted�below�that�have�been�combined�with�the�author’s�own�expert�legal�input.�The�case�has�been�condensed�and�formatted�from�its�original�content�for�purposes�of�this�workbook.

People�v.�William�D.,�2005�Cal.�App.�Unpub.�LEXIS�3563.Court�of�Appeals�of�California,�Fourth�Appellate�District,�Division�One�April�22,�2005.�Opinion�written�by�Judge�McDonald.�Published�by�Lexis�Nexis

NAME DATE

29

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4

Review the Case

After�reading�People�v.�William�D.,�answer�the�following:


1. Identify�the�Plantiff(s)�in�the�case.


3. What�injuries�did�Fabrizio�suffer?�

4. How�many�times�did�William�D.�hit�Fabrizio?�

5. What�is�the�size�difference�between�Fabrizio�and�Danny?�

6. In�Fabrizio’s�opinion,�what�was�Danny�trying�to�do�when�Fabrizio�confronted�him?�

7. According�to�Fabrizio,�what�did�he�plan�to�do�after�he�confronted�Danny?�

8. According�to�the�testimony,�what�did�William�say�when�he�approached�Fabrizio?�

NAME DATE

30


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9. According�to�William’s�friends,�how�did�Fabrizio�approach�William?�

10. Fabrizio’s�friends�offer�a�different�version�of�events�than�William’s.�In�Fabrizio’s�friends’�version,�what�occurred�immediately�prior�to�the�punch?�Does�their�version�help�or�hurt�William’s�case�of�defense�of�others?�Why?

NAME DATE

31

Make the Argument


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1. Was�Fabrizio�in�fear�of�imminent�bodily�harm�when�William�D.�approached�him?�Explain.

2. Did�William�D.�hit�Fabrizio�with�the�intention�to�injure�him?�Explain.

3. Was�Danny�afraid�that�Fabrizio�was�going�to�attack�him�at�the�time�William�punched�Fabrizio?�Explain.

4. Did�William�use�reasonable�force�to�protect�Danny�from�Fabrizio?�Explain.

NAME DATE

32


You Be the Judge


CA

SE:

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William D.State of California

33

Contract Law

CA

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5


Employment Contracts and Non-Compete Clauses

oBJecTiVeTo understand the use of an employment contract that includes a non-compete clause between an employer and an employee and the concept of an employee’s “duty of loyalty” to an employer.

ToPicS coVeredRR Employment contracts

RR Non-compete clauses

RR Employee’s “duty of loyalty” to employer

RR “Fair and just” non-compete clauses

Mattel, Inc. v. MGA Entertainment, Inc.

Case 5: Barbie v.

Bratz

34

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Background•� Mattel,�the�creator�of�Barbie�dolls,�sued�its�former�employee,�Carter�Bryant,�and�his�employer,�

MGA�Entertainment,�Inc.,�manufacturer�of�Bratz�dolls,�for�breach�of�an�employment�contract.

•� Carter�Bryant�signed�an�employment�contract,�which�included�a�non-compete�clause,�with�Mattel.�Under�this�contract,�the�parties�agreed�that�anything�Carter�Bryant�created�while�working�for�Mattel�was�the�property�of�Mattel.�The�contract�prohibited�Carter�Bryant�from�working�for�any�of�Mattel’s�competitors�during�the�term�of�the�contract.

•� Mattel�claimed�that�Carter�Bryant�violated�the�employment�contract�and�his�“duty�of�loyalty”�to�Mattel�by�developing�the�Bratz�doll�while�still�employed�by�Mattel.�Mattel�also�alleged�that�Carter�Bryant�then�conspired�with�MGA�Entertainment,�Inc.,�a�competitor,�to�manufacture�and�distribute�the�Bratz�doll.

Before you Begin


RR What is an employment contract? An�employment�contract�is�a�document�that�exchanges�promises�between�an�employer�and�an�employee�and�describes�the�terms�and�obligations�of�each�party�during�the�employment.

RR What is a non-compete clause in an employment contract? A�non-compete�clause,�when�included�in�an�employment�contract,�prohibits�an�employee�from�working�with�a�competitor�of�the�employer�while�employed�by�the�employer�and�for�a�period�of�time�after�employment.�

RR What is the purpose of a non-compete clause? One�of�the�purposes�of�a�non-compete�clause�is�to�protect�confidential�information�of�the�employer.

RR What is an employee’s “duty of loyalty” to his employer? An�employee,�as�an�agent�of�an�employer,�has�a�“duty�of�loyalty”�to�his�employer�to�work�in�the�best�interest�of�the�employer�and�not�for�his�own�self-interest.

RR What is a “fair and just” non-compete clause? For�a�non-compete�clause�to�be�enforced,�it�must�be�fair�and�just�to�the�employee�and�must�not�unfairly�restrict�the�employee�trying�to�pursue�his�profession.�Courts�balance�the�rights�of�business�owners�to�protect�their�assets�and�the�rights�of�the�employee�to�earn�a�living.

Mattel, Inc. v. MGA Entertainment, Inc.Employment Contracts and Non-Compete Clauses

35

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iSSue Before THe courTWhether a signed employment contract that includes a non-compete clause is enforceable by an employer to protect confidential designs created by an employee from being sold to a competitor.

THe facTS


One of the most

common causes of

breach of employment

contract lawsuits is

the difference in

interpretation of the

terms and conditions of

the agreement.

In 2004, the Plaintiff , Mattel, Inc. (Mattel), the world’s largest toy manufacturer and the owner of Barbie dolls, fi led a complaint against its former employee, Carter Bryant (Bryant), the creator of the Bratz line of dolls and MGA Entertainment, Inc. (MGA Entertainment), the manufacturer of the Bratz dolls. Bratz toys were fi rst introduced in June 2001, and had since become one of the world’s premiere toy lines and girls’ lifestyle brands. Bratz dolls have pouty lips and edgy, urban clothes that have drawn young girls to estimated annual sales of $500 million.

Mattel claimed ownership rights to the Bratz line because it al-leged that Bratz’ creator, Bryant, developed the sketches while work-ing for Mattel. Mattel asserted claims against the Defendants for: (1) breach of contract, (2) breach of duty of loyalty, and (3) wrongful interference with a contract. Mattel sought money damages and a court order preventing MGA Entertainment from making future Bratz dolls and related products.

Mattel employed Bryant as a product designer twice from Sep-tember 1995 through April 1998 and January 1999 through October 2000. Upon starting his second term, Bryant signed an Employee Confi dential Information and Inventions Agreement in which he agreed not to engage in any employment or business other than with Mattel or to assist any competing business of Mattel. Bryant assigned to Mattel all rights, title, and interest in any inventions he conceived of during his employment. In exchange, he was paid a salary without any royalties.

Bryant also completed Mattel’s Confl ict of Interest Questionnaire. Bryant certifi ed that he had not worked for any of Mattel’s competi-tors in the prior 12 months and had not engaged in any business deal-ings creating a confl ict of interest. Bryant agreed to notify Mattel of

36

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Sources


Mattel,�Inc.�v.�MGA�Entertainment,�Inc.,�616�F.3d�904�(9th�Cir.�2010).United�States�Court�of�Appeals,�9th�CircuitJuly�22,�2010.�Opinion�written�by�the�Honorable�Chief�Justice�Alex�Kozinski.

Ruth Handler, creator of Barbie and Ken, named

the dolls after her daughter Barbara and

son Kenneth.

A situation which has a potential to undermine the impartiality of a person because of the possibility of a clash between the person‛s self-interest and professional interest is known as confl ict of interest.

any future events that raised a question of confl ict of interest.

Aft er Bryant left employment, Mattel’s CEO alleged that he had received an anonymous letter stating that Bryant had created the Bratz doll while working at Mattel and that Bryant had taken a vaca-tion day from Mattel to discuss the doll with MGA Entertainment. As evidence, Mattel produced a new employment agreement between Bryant and MGA Entertainment that Bryant signed September 18, 2000, while Bryant was still employed by Mattel.

Pursuant to MGA Entertainment’s employment agreement, Bryant agreed to provide product design services for MGA’s line of Bratz dolls. In return, MGA Entertainment agreed to pay Bryant $5,500 per month for the fi rst six months and $5,000 per month for the next three months. In addition, MGA Entertainment also agreed to pay Bryant a 3% royalty on the future sales of the Bratz line.

Bryant testifi ed during trial that the sketches he showed MGA Entertainment in 2000 were transferred from originals he made in the summer of 1998 in between his two periods of employment with Mattel. Bryant testifi ed that observing students walking from school, browsing through Steve Madden shoe ads in Seventeen, and look-ing at the cover of the Dixie Chicks album “Chicks With Attitude” inspired the sketches. Bryant claimed that since he was a clothing designer for Barbie, the sketches at issue had nothing to do with his work at Mattel.

NAME DATE

37

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Review the Case

After�reading�Mattel,�Inc.�v.�MGA�Entertainment,�Inc.,�answer�the�following:


1. Identify�the�Plaintiff(s)�in�the�case.

2. Identify�two�of�the�Defendant(s)�in�the�case.

3. Is�the�Plaintiff�seeking�money�damages?�

4. Is�the�Plaintiff�seeking�any�other�type�of�court�order?

5. What�is�a�non-compete�clause?�How�does�this�clause�protect�Mattel’s�business?�

6. Explain�Bryant’s�duties�under�the�employment�contract�with�Mattel.

7. How�did�Mattel�compensate�Bryant�under�the�employment�agreement?

NAME DATE

38


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8. �Bryant�completed�a�Conflict�of�Interest�Questionnaire�for�Mattel.�What�did�Bryant�certify�in�the�questionnaire?

9. What�are�the�dates�that�Bryant�worked�for�Mattel?�

10. According�to�Mattel,�explain�how�Bryant�violated�the�terms�of�his�employment�contract.�

11. When�did�Bryant�claim�that�he�developed�the�Bratz�doll?

12. �What�inspired�Bryant�to�develop�the�Bratz�doll?

13. �What�were�Bryant’s�duties�under�the�MGA�Entertainment�Employment�Contract?

14. According�to�their�employment�contract,�how�was�Bryant�compensated�by�MGA�Entertainment?

15. BONUS:�Based�on�this�case,�do�you�believe�employment�contracts�are�fair�to�employees?�Explain.�

NAME DATE

39

Make the Argument


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SE:

5


1. Did�the�Defendant,�Bryant,�sign�an�employment�contract�with�the�Plaintiff?

2. Did�the�Defendant,�Bryant,�violate�the�terms�of�the�employment�contract�by�entering�into�an�agreement�with�MGA�Entertainment?

3. Is�the�enforcement�of�Bryant’s�employment�contract�fair�and�just�to�all�parties?�

NAME DATE

40


You Be the Judge


CA

SE:

5


Mattel, Inc. MGA Entertainment, Inc. and Carter Bryant

41

Contract Law

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SE:

6


Case 6: The Tumbled

Cheerleader

Contracts Not to Sue

oBJecTiVeTo understand the use of a release to limit a party’s liability for injuries caused by its own alleged negligent acts.

ToPicS coVeredRR Contract Not to Sue

RR Capacity of a Minor Child to Enter into a Contract

RR Validity of Release as Condition to Participation in Extra-curricular Activities

RR Parental Consent

Sharon v. City of Newton

42

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Background•� Merav�Sharon,�a�high�school�junior,�had�been�a�cheerleader�for�her�school’s�football�and�

basketball�teams�since�her�freshman�year.

•� During�her�junior�year,�while�still�a�minor,�the�high�school�she�attended�required�all�students�and�at�least�one�parent/guardian�to�sign�a�release�in�the�event�a�student�was�injured�during�a�voluntary�extra-curricular�activity.

•� Merav�and�her�father�signed�the�release.

•� Merav�fell�from�a�teammate’s�shoulders�while�rehearsing�a�pyramid�formation�cheer�and�sustained�a�severe�injury�to�her�left�arm�ultimately�resulting�in�surgery.�

•� Merav�alleged�that�the�high�school�was�negligent�in�its�failure�to�train�and�supervise�the�cheerleaders.

•� The�school�argued�that�since�Merav�and�her�father�signed�a�parental�consent�release,�the�school�was�not�responsible�for�her�injuries.

Before you Begin


Sharon v. City of NewtonContracts Not to Sue

RR What is a contract? A�contract�is�an�agreement�between�two�or�more�competent�parties�to�perform�or�to�refrain�from�performing�some�legal�act.�If�one�party�breaches�the�contract,�the�other�party�can�attempt�to�enforce�their�contractual�rights�in�a�court�of�law.

RR What is a parental consent release? In�the�absence�of�fraud,�a�person,�or�parent/guardian�on�behalf�of�a�minor,�may�enter�into�a�contract�with�another�party�which�releases�the�party�(school)�from�any�liability�caused�by�its�own�alleged�negligent�acts.�

RR Can a minor enter into a contract? A�contract�cannot�be�entered�into�by�a�minor�(a�person�17�or�younger).�If�a�minor�signs�a�contract,�that�contract�will�not�be�enforceable�against�the�minor�unless�a�parent�or�guardian�represented�the�minor�at�the�time�of�the�contract�formation.�A�parent/guardian�acting�in�the�best�interest�of�the�child�has�a�fundamental�right�to�make�decisions�regarding�the�minor’s�health�and�safety.

RR Is a release valid as a condition to participate in extra-curricular activities?Yes,�releases�are�widely�used�by�educational�institutions�to�protect�the�school�from�lawsuits�by�students�who�are�injured�during�participation�in�these�activities.

43

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iSSue Before THe courTWhether a release signed by the parent of a minor child for the purpose of permitting the child to engage in public school extra-curricular sports activities is a valid way to protect the school from liability where a student gets injured while engaged in the activities.

THe facTS


A covenant not to sue is

an agreement entered

into by a person who

may have a legal claim

against another in the

future, but agrees not

to pursue the claim.

On November 8, 1995, 16-year-old Merav Sharon was injured while participating in cheerleading practice at Newton North High School in Massachusetts. Merav fell from a teammate’s shoulders while rehearsing a pyramid formation cheer and sustained a serious compound fracture to her left arm that required surgery. At the time of her injury, Merav had four seasons of cheerleading experience at the high school level.

On November 5, 1998, having reached the age of majority (18 years old), Merav fi led a lawsuit against the City of Newton, alleging negligence and the negligent hiring and retention of the cheerleading coach. Merav sued for money damages resulting from her injury.

In late October 1999, the city produced a document entitled “Parental Consent Release from Liability and Indemnity Agreement” signed by Merav and her father in August 1995, three months prior to the injury. Th e relevant part of the release read as follows:

“I, the undersigned [father of] . . . Merav Sharon, a minor, do hereby consent to [her] participation in voluntary athletic pro-grams and do forever RELEASE, acquit, discharge, and cov-enant to hold harmless the City of Newton . . . from any and all actions, causes of action, [and] claims . . . [for] personal injuries or property damage which [I] may now or hereaft er have as the parent . . . of said minor, and also all claims or right of action for damages which said minor has or hereaft er may acquire, either before or aft er [she] has reached [her] majority resulting . . . from [her] participation in the Newton Public Schools Physi-cal Education Department’s athletic programs. . .”

Merav argued that neither she nor her father realized that by sign-ing the release they were waiving their future claims against the school.

44

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Sources


Sharon�v.�City�of�Newton,�437�Mass.�99,�769�N.E.2d�738�(Mass.�2002).Supreme�Judicial�Court�of�Massachusetts,�MiddlesexJune�10,�2002.�Opinion�written�by�the�Honorable�Justice�Robert�J.�Cordy.

Studies have shown that cheerleading is the number one cause of catastrophic injuries among high school and college athletes.

Merav and her father both signed the front of the release, which they indicated was for the sport of cheerleading. In addition, they fi lled out the back of the release that called for information regarding Merav’s address, date of birth, health insurance provider, and emer-gency contacts, and provided the opportunity for them to purchase student accidental insurance through the school (an option which they explicitly declined on the form). Merav’s father signed the back of the release giving parental consent to a physical examination of Merav prior to her participation in the cheerleading program.

Th e City of Newton argued that the release was a clearly labeled, two-sided document, which Merav brought home from school for her parents to review. As such, both Merav and her father had ample time to read and understand the release before signing it, and they should be deemed to have understood the release was a waiver of liability against the school.

NAME DATE

45

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Review the Case

After�reading�Sharon�v.�City�of�Newton,�answer�the�following:




3. Is�the�Plaintiff�seeking�money�for�her�injuries?�

4. Describe�the�incident�in�which�Merav�was�injured.�

5. Describe�Merav’s�injuries�from�her�fall.�

6. What�was�Merav’s�cheerleading�experience�at�the�time�of�her�injury?�

7. What�is�a�parental�consent�release�form?�

NAME DATE

46


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8. Explain�the�City�of�Newton’s�reason(s)�for�asking�the�court�to�enforce�the�parental�consent�release.�

9. List�the�facts�that�support�the�school’s�argument�that�Merav�and�her�father�understood�the�terms�of�the�parental�consent�release.�

10. Did�Merav�voluntarily�assume�any�risks�associated�with�cheerleading?�

11. BONUS:�What�is�your�school’s�policy�on�extracurricular�activities?�Are�parents/guardians�required�to�sign�a�release�prior�to�participation?�Explain.

NAME DATE

47

Make the Argument

In�order�for�the�judge�or�jury�to�render�a�decision,�the�following�are�some�of�the�questions�that��must�be�considered:� C

ASE

: 6


1. Did�the�Plaintiff�and�one�of�her�parents�sign�a�parental�consent�release?

2. Did�the�Plaintiff�and�at�least�one�of�her�parents�understand�the�parental�consent�release?�

3. Should�the�school�be�permitted�to�protect�itself�against�lawsuits�by�having�parents/guardians�sign�parental�consent�release�forms?�

NAME DATE

48

You Be the Judge



CA

SE:

6


City of NewtonMerav Sharon

49

Contract Law

CA

SE:

7


Minor’s Capacity to Enter Into Contracts

oBJecTiVeTo understand the concept of a minor’s “capacity to contract” and under what circumstances a minor can “disaffirm” a contract.

ToPicS coVeredRR Capacity of a Minor to Enter into a Contract

RR Voidable Contracts

RR Minor’s Disaffirmance of Contracts

RR Contracts for Necessities

Bowling v. Sperry

Case 7: Teen‛s First

Car

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Background•� The�Plaintiff,�Larry�Bowling,�was�a�16-year-old�high�school�student�who�purchased�his�first�car�

from�a�used�car�lot�owned�by�the�Defendant,�Sperry�Ford�Sales.

•� A�short�time�after�the�purchase,�the�car�broke�down�and�Bowling�wanted�to�return�the�vehicle�to�Sperry�Ford�Sales.

•� Bowling�claimed�that�he�did�not�have�contractual�capacity�to�enter�into�the�contract,�and�as�such,�the�contract�was�voidable�thus�allowing�him�to�disaffirm�the�contract.

•� Sperry�argued�that�because�the�contract�was�for�necessities,�the�minor�had�no�right�to�disaffirm�the�contract.

Before you Begin


RR Capacity to ContractIn�order�to�enter�into�a�binding�contract,�each�party�must�have�legal�contractual�“capacity.”�To�have�legal�capacity�to�enter�into�a�contract,�each�of�the�parties�must�have�reached�the�“age�of�majority.”�In�other�words,�18�years�old.

RR Voidable ContractsContracts�that�are�entered�into�by�minors�are�“voidable”�at�the�option�of�the�minor,�unless�a�parent�or�guardian�represented�the�minor�at�the�time�of�the�contract�formation.�While�minors�may�cancel�a�contract�that�they�entered�into,�the�other�party�to�the�contract�does�not�have�the�same�right�to�cancel�an�otherwise�valid�contract.�

RR DisaffirmanceWhere�a�minor�cancels,�or�disaffirms,�a�contract�before�he�or�she�reaches�18�years�of�age.

RR Contracts for NecessitiesAn�exception�to�a�minor’s�right�to�disaffirm�a�contract�is�in�the�case�of�a�contract�for�necessities,�for�example,�food,�clothing,�and�shelter.�Minors�cannot�cancel�these�types�of�contracts.�The�court�looks�to�whether�the�item,�in�this�case�a�“car,”�is�so�needed�by�a�minor,�in�view�of�his�situation�in�life,�his�social�status,�and�financial�position,�that�he�could�not�maintain�that�lifestyle�without�it.

Bowling v. SperryMinor’s Capacity to Enter Into Contracts

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iSSue Before THe courTWhether a minor, when accompanied by an adult, who purchases an automobile from a car dealer, may disaffirm the sale after the automobile breaks down and needs repair.

Whether an automobile was a necessity for the minor.

THe facTS


$140 for an automobile

in 1947 is the equivalent

of approximately

$2,500 for a car today.

Th e Plaintiff , Larry Bowling, a minor, sued the Defendant, Max E. Sperry (Sperry Ford Sales), in an eff ort to disaffi rm and set aside a contract for the purchase of an automobile on the grounds that he was a minor when he entered into the contract.

Larry, a 16-year-old high school student from Cromwell, Indiana, worked at a restaurant in Syracuse, Indiana. Because this summer job was at a restaurant eight to nine miles away from his home, he de-cided to buy a car.

On June 29, 1957, Larry went to the local car dealer, Sperry Ford Sales, with his aunt and grandmother. Larry had lived with his grand-mother for most of his life. He decided to purchase a 1947 Plymouth automobile for the sum of $140 from Sperry Ford Sales. He put $50 down on that day and returned July 1 to pay the balance of $90 and take possession of the car.

Th e acting manager for Sperry Ford Sales, who sold Larry the car, testifi ed that when Larry’s aunt and grandmother came to the sales lot on June 29, “they” said Larry needed something for him to get back and forth to work. Larry then selected the car, and his aunt drove the car around the lot at that time.

Sperry delivered to Larry a certifi cate of title and a written re-ceipt in Larry’s name alone. Th is receipt stated that as of June 29, 1957, Sperry Ford Sales sold to Larry Bowling a 1947 Plymouth for the amount of $140 paid in full. Sperry was fully aware of Larry’s age when the sale was negotiated.

Larry drove the car several times during the following week and discovered that the main bearing was burned out. He brought the car back to Sperry’s where Larry learned it would cost $45 to $95 to make

52

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Sources


Bowling,�etc.�v.�Sperry,�etc.,�133�Ind.�App.�692,�184�N.E.2d�901�(1962).Court�of�Appeals�IndianaSeptember�10,�1962.�Opinion�written�by�the�Honorable�Justice�Walter�Myers,�Jr.

An automobile can be considered a necessity in the modern world.

repairs. He refused to pay this amount and left the car on Sperry’s lot. Subsequently, he mailed a letter to Sperry to the eff ect that he disaffi rmed the contract of purchase and demanded the return of his money. Upon Sperry’s refusal to pay back the $140, this lawsuit fol-lowed.

At trial, Sperry defended the action on grounds that Larry was with his grandmother and aunt on the day he purchased the car and that his aunt actually paid for the car.

It was also revealed at trial that Larry’s aunt loaned him $90 in order to make fi nal payment on the car and that he began paying his aunt back at $10 a week.

Larry testifi ed that during the short period of time he had pos-session of the 1947 Plymouth, he only used it for pleasure and did not drive it to work.

NAME DATE

53

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Review the Case

After�reading�Bowling�v.�Sperry,�answer�the�following:




3. What�remedy�did�the�Plaintiff�seek�from�the�court?��

4. How�old�was�Larry�Bowling�when�he�purchased�the�vehicle?

5. Who�did�Larry�live�with�at�home?�

6. Who�accompanied�Larry�when�he�went�to�Sperry�Ford�Sales?�

7. Why�did�Larry�need�a�car?�

8. Did�Larry�purchase�a�car?�If�so,�what�model�did�he�buy�and�for�how�much�money?�

NAME DATE

54


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9. Did�Larry�test�drive�the�car�before�he�purchased�it?�

10. What�problems�did�Larry�discover�the�car�had?�How�much�would�it�cost�to�fix�the�car?�

11. What�did�Larry�do�when�he�was�told�about�the�price�of�repair?�

12. Did�Larry�use�the�car�to�drive�to�work�while�it�was�in�his�possession?�

13. What�is�Sperry�Ford’s�defense�to�Larry�canceling�the�contract�and�demanding�his�money�back?�

14. Bonus:�Do�you�believe�that�a�teenager�owning�his/her�own�car�is�as�necessary�as�food,�clothing,�or�living�in�a�home�or�apartment?

NAME DATE

55

Make the Argument


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1. Did�a�contract�exist�between�Larry�and�Sperry�Ford�Sales?

2. Was�Larry�a�minor�at�the�time�he�entered�into�the�contract?

3. Did�Larry�use�the�car�for�pleasure�or�for�work?�Was�it�a�necessity�in�view�of�his�situation�in�life,�his�social�status,�and�his�financial�condition,�so�that�he�could�not�maintain�his�lifestyle�without�it?

NAME DATE

56

You Be the Judge



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Larry Bowling Sperry Ford Sales

57

Business Law: Partnerships

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8


Business Law: Partnerships

A Case in Partnership Formation

oBJecTiVeTo understand the basic formation of a partnership between two individuals.

ToPicS coVeredRR Business Organizations

RR Partnerships

RR Verbal Contracts

Holmes v. Lerner

Case 8: Makeup

Madness!

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Background•� Two�friends,�Patricia�Holmes,�a�horse�trainer,�and�Sandra�Kruger�Lerner,�a�multi-millionaire�

businesswoman,�agreed�to�form�a�business�organization�to�start�a�cosmetics�company�known�as�“Urban�Decay.”

•� After�returning�from�a�trip�to�England�to�purchase�horses,�the�two�friends�began�experimenting�with�different�colors�for�nail�polish.�This�experiment�blossomed�into�selecting�names�for�the�colors,�securing�funding�for�market�research�and�product�development,�and�naming�their�company�“Urban�Decay.”

•� Holmes�claimed�that�the�two�friends�formed�a�partnership,�and�as�the�business�began�to�succeed,�Lerner�pushed�her�out�of�this�business.

•� Lerner�claimed�that�there�was�no�partnership,�and�although�Holmes�helped�with�the�original�idea,�it�was�Lerner’s�business�experience�and�financial�connections�that�made�the�business�successful.

Before you Begin


RR What is a business organization? A�business�organization�is�an�entity�formed�to�make�a�profit.�The�entity�may�be�in�the�form�of�a�sole�proprietorship,�a�partnership,�a�limited�liability�company,�or�a�corporation.

RR What is a partnership? A�partnership�is�an�association�of�two�or�more�persons�to�carry�on�as�co-owners�of�a�business�for�profit.�The�partners�must�“intend”�to�form�a�partnership.�This�requires�the�court�to�look�at�the�“terms”�of�their�agreement,�their�conduct,�the�sharing�of�profits,�and�any�other�surrounding�circumstances�that�are�relevant�to�the�case.

RR Can a contract be verbal? A�contract�can�be�verbal�or�in�writing.�Some�contracts�are�required�to�be�in�writing;�for�example,�contracts�for�the�sale�of�goods�over�$500,�contracts�for�the�sale�of�real�estate,�contracts�that�require�over�a�year�to�complete,�contracts�in�contemplation�of�marriage,�and�contracts�where�one�person�guarantees�to�pay�for�the�debt�of�another.

Holmes v. LernerA Case in Partnership Formation

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iSSue Before THe courTWhether there are sufficient facts to prove that a partnership existed between two individuals.

THe facTS


Dysfunctional

partnerships are

a major source of

business failure.

Sandra Kruger Lerner was a successful entrepreneur and an expe-rienced businesswoman. She and her husband, Len Bosack, were the original founders of Cisco Systems, a very successful computer company. When she sold her interest in that company, she received a substantial amount of money, and her net worth was in excess of $47 million at the time of the trial.

Patricia Holmes was a horse trainer when she met Lerner in late 1993. Lerner visited Holmes’ horse training facility to arrange for the training and boarding of two horses she imported from England. Holmes and Lerner became friends, and aft er an initial six-month training contract expired, Holmes continued to train Lerner’s horses without a contract and without cost.

In 1995, Lerner asked Holmes to travel to England with her to attend a horse show and to buy horses with her. While in England, Lerner decided that she wanted to celebrate her 40th birthday by going out to pubs in Dublin, Ireland.

As the two got dressed in Lerner’s mansion outside of London, Lerner gave Holmes a manicuring kit, telling her to fi nd a color Hol-mes could wear. Lerner wore what Holmes termed “alternative clothes” with black nail polish and encouraged Holmes to do the same. Holmes, however, did not like black nail polish and was unable to fi nd a suitable color in the English stores. Holmes looked through the kit, tried diff erent colors, and eventually developed her own color by layering a raspberry color over black nail polish. Th is produced a purple color that Holmes liked. Holmes showed the new color to Lerner, who also liked it.

On July 31, 1995, the two friends returned from England. While sitting at the kitchen table in Lerner’s posh West Hollywood condo-minium, they discussed nail polish and colors. Lerner’s husband was in and out of the room during the conversation.

For almost two hours, Lerner and Holmes worked to try to recre-

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Sources


Holmes�v.�Lerner,�74�Cal.�App.�4th�442,�88�Cal.�Rptr.2d.�130�(1999).California�Court�of�Appeals,�First�District,�Division�OneSeptember�7,�1999.�Opinion�written�by�the�Honorable�Justice�James�J.�Marchiano.

Urban Decay‛s colors were inspired by the unique hues of America‛s modern edgy urban scene.

ate the purple color Holmes had made in England. Lerner made a dif-ferent shade of purple, and Holmes commented that it looked just like a bruise and called it “Plague.” Holmes had been reading about 16th century England and how people with the plague developed purple sores. She thought the color looked like the plague sores.

Lerner and Holmes decided to create names with an urban theme, such as “bruise,” “plague,” “mildew,” “smog,” “uzi,” and “oil slick.” Len Bosack heard the conversation about the urban theme and suggested “decay.” Th e two women liked the idea and decided that Urban Decay was a good name for their concept. Lerner stated, “Th is seems like a good thing; it’s something that we both like and it isn’t out there. Do you think we should start a company?” Holmes responded, “Yes, I think it’s a great idea.”

Lerner’s housekeeper testifi ed that she heard Lerner tell Holmes, “It’s going to be our baby, and we’re going to work on it together. It was all Pat’s idea over in England, but I’ve got the money to make it work.” Lerner also told her housekeeper that she hoped to sell Urban Decay to Estee Lauder for $50 million.

Neither woman had experience in cosmetics, but they began to work on their idea immediately. Holmes and Lerner did market re-search by going to stores, talking with people about nail polish, check-ing what nail polishes were available, and buying samples to bring back to discuss with each other. Using Lerner’s home as a laboratory, they experimented with nail colors, taking pictures of various color mixing sessions. Th ey met with a graphic artist to create a logo, and secured a trademark for Urban Decay. Lerner and Holmes discussed visiting chemical companies and hiring people to handle the daily operations of the company.

Eventually, Lerner stopped including Holmes in meetings and business decisions of the company. Feeling edged out of the business, Holmes confronted Lerner. Lerner claimed she was just being nice to Holmes by including her in the Urban Decay business and denied Holmes had any role in creating the colors, names, or concepts for Urban Decay. Furious, Holmes sued for breach of a partnership contract.

At trial, Lerner maintained that because the two women did not discuss sharing profi ts and losses of the business during their earliest conversations about the business, there can be no partnership.

NAME DATE

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Review the Case

After�reading�Holmes�v.�Lerner,�answer�the�following:



2. Identify�one�of�the�Defendants�in�the�case.�

3. �How�did�the�parties�meet?�

4. What�was�Patricia�Holmes’�profession�prior�to�Urban�Decay?�

5. What�business�did�Sandra�Kruger�Lerner�own�prior�to�Urban�Decay?�Was�it�financially�successful?�

6. List�specific�facts�that�will�help�the�jury�understand�Lerner’s�wealth.�

7. �What�prior�experience�did�the�parties�have�in�nail�polish?�

8. �Who�came�up�with�the�name�“Urban�Decay”?�

NAME DATE

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9. Who�came�up�with�the�idea�of�an�“urban”�theme�for�nail�polish?�

10. Who�created�the�original�“purple”�color�in�England,�and�what�was�it�called?�What�information�helped�to�name�the�“purple”�color?�

11. What�did�the�housekeeper�overhear�during�the�conversation�in�the�kitchen�between�Lerner�and�Holmes?�

12. BONUS:�What�could�the�parties�have�done�to�avoid�this�lawsuit?�

NAME DATE

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Make the Argument


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1. Did�Sandra�Kruger�Lerner�and�Patricia�Holmes�intend�to�carry�on�as�co-owners�of�a�business�for�profit?�To�make�this�determination�as�to�intent,�the�court�must�consider�the�following:

a. What�were�the�terms�of�their�agreement?

b. What�was�the�conduct�of�the�parties?�For�example,�did�the�parties�act�like�they�were�in�business�together?

c. What�were�the�surrounding�circumstances�of�the�agreement?

2. Was�the�agreement�between�Lerner�and�Holmes�sufficiently�“definite”?�In�other�words,�did�the�parties�agree�“upon�the�same�thing,�in�the�same�sense”?�Explain.

NAME DATE

64

You Be the Judge



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Patricia Holmes Sandra Kruger Lerner

65

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9

Tort Law: Negligence and Strict Liability


Case 9: Grain

Alcohol and “Fire Play”

Selwyn v. Ward

Duty of Care in Negligence and Strict Liability Actions

oBJecTiVeTo understand the concept of negligence and strict liability as it relates to the sale of alcohol to minors where injury was caused by “fire play.”

ToPicS coVeredRR Dram Shop Act

RR Negligence Action

RR Strict Product Liability

RR Ultrahazardous Activity

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Background•� A�minor,�Taylor�Ward,�was�hosting�a�teenage�party�in�a�barn�located�in�the�back�of�his�parents’�

house�where�partygoers�were�drinking�and�using�illegal�drugs.

•� The�Plaintiff,�Bridget�Selwyn,�a�teenage�girl,�was�injured�at�the�party�when�one�of�the�teenagers�poured�a�bottle�of�Everclear�grain�alcohol�onto�an�open�fire,�which�exploded.

•� A�minor,�Lauren�Andrews,�not�present�at�the�party,�purchased�the�bottle�of�Everclear�from�RC�Liquors,�Inc.�several�weeks�prior�to�the�incident.

•� Relying�on�the�R.I.�Dram�Shop�Act,�the�Plaintiff�sued,�among�others,�RC�Liquors�for�selling�alcohol�to�a�minor�alleging�(a)�negligence�and�(b)�strict�liability.�Under�her�negligence�theory,�Selwyn�alleged�that�RC�Liquors�breached�its�duty�of�care�when�it�sold�grain�alcohol�to�Lauren�Andrews�because�it�knew�or�should�have�known�of�the�“fire�play”�linked�to�grain�alcohol.�Under�her�strict�liability�theory,�Selwyn�stated�that�selling�alcohol�to�minors�is�an�ultrahazardous�activity.�

Before you Begin


RR What is a Dram Shop Act?A�Dram�Shop�Act�creates�liability�for�liquor�stores�and�other�commercial�establishments�that�serve�alcoholic�beverages�to�minors.�Dram�Shop�Acts�establish�liability�of�establishments�from�the�sale�of�alcohol�to�minors�where�said�minors�are�injured�or�cause�injury�to�third�parties.

RR What are the factors to consider in a Negligence action?To�win�a�negligence�case,�the�Plaintiff�must�establish�a�duty�owed�by�the�Defendant�to�the�Plaintiff,�a�breach�of�that�duty,�proximate�cause�between�the�conduct�and�the�injury,�and�actual�loss�or�damage.

RR What is Strict (Products) Liability?In�a�strict�liability�lawsuit,�Plantiffs�claim�that�their�injuries�are�proximately�caused�by�some�ultrahazardous�or�abnormally�dangerous�activity�of�the�Defendant.

RR What is an “ultrahazardous” and “abnormally dangerous” activity?An�ultrahazardous�and�abnormally�dangerous�activity�is�one�that�is�so�inherently�dangerous�that�a�person�engaged�in�such�an�activity�should�be�held�strictly�liable�for�injuries�caused�to�another�person—even�if�the�person�engaged�in�the�activity�took�every�reasonable�precaution�to�prevent�others�from�being�injured.�To�determine�whether�an�activity�is�ultrahazardous�or�abnormally�dangerous,�courts�consider�various�factors:�(a)�the�risk�of�harm�to�others,�(b)�the�likelihood�that�the�harm�that�results�from�it�will�be�great,�(c)�the�inability�to�reasonably�eliminate�the�risk�by�exercising�reasonable�care,�(d)�the�commonality�of�the�activity,�(e)�the�inappropriateness�of�the�activity,�and�(f )�the�value�of�the�activity�to�the�community.

Selwyn v. WardDuty of Care in Negligence and Strict Liability Actions

67

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iSSue Before THe courTWhether the Defendant breached its duty of care when it sold grain alcohol to a minor because it knew or should have known of the link between grain alcohol and “fire play.”

Whether the Defendant’s sale of grain alcohol to a minor is an ultrahazardous activity, warranting application of strict liability.

THe facTS


Because of its dangers,

some states do not sell

grain alcohol or any

liquor with over 75.5%

alcohol.

“It’s an all too familiar scenario—a group of high school students manages to obtain some alcoholic beverages, act irresponsibly, and someone gets hurt.” In this version, however, the injuries did not result from the consumption of illegally obtained alcohol but from a minor igniting it and causing an explosion. Th e Plaintiff , Bridget Selwyn, was the victim in this tragedy and sought to recover for her injuries from several named Defendants, including RC Liquors, Inc.

In the early morning of August 26, 2000, the Plaintiff and sev-eral others gathered at the home of Karen Ward (Ward) in Warwick, Rhode Island. Th e Ward property included an outbuilding, referred to as “the barn,” in which Ward’s son, Taylor, and his friends oft en socialized. On the night of the incident, the gathering at the barn included Bridget Selwyn, Taylor Ward, Michael A. Buonanno, and several other teenagers.

Various people at the party were smoking marijuana and/or in-gesting ecstasy in the barn. Th ere was also a partially consumed 1.75 liter bottle of 190-proof grain alcohol or “Everclear” at the party. Th e bottle had a large label on it that stated, “Warning! Extremely Flam-mable.” At about 4:30 am on August 26, 2000, the bottle of Everclear became the catalyst for disaster when Buonanno poured some of the grain alcohol onto an open fl ame, causing an intense explosion that burned Selwyn.

Th e bottle of Everclear was not purchased by Buonanno, but by another teenager, Lauren Andrews. She purchased the Everclear for a gathering at the barn the previous month. Andrews purchased the Everclear at RC Liquors and stated at trial that she was never asked for identifi cation to prove she was over 21 years of age—the

68

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Sources


Selwyn�v.�Ward,�879�A.2d�882�(R.I.�2005).Rhode�Island�Supreme�CourtOpinion�written�by�the�Honorable�Justices�Frank�J.�Williams,�C.J.,�Maureen�McKennaGoldberg,�Paul�A.�Suttell,�and�William�P.�Robinson,�III,�JJ.

The fi rst Dram Shop Act was passed in Illinois in

1872.

The term dram shop refers to a shop where “spirits” are sold by the “dram,” a small unit of liquid.

legal drinking age in Rhode Island. Andrews further testifi ed that she used the alcohol at the previous gathering to mix up a batch of “Jungle Juice,” a combination of Kool-Aid and Everclear—and left the remaining grain alcohol in the barn. She did not purchase the bottle for fi re use or “fi re play.”

Th omas J. Paolino, a physician and psychiatrist, concentrating his practice on treating substance abuse issues with teenagers, testifi ed that consumption of grain alcohol by teenagers can lead to “rapid in-toxication” and young adults will typically engage in risky or danger-ous behavior when severely impaired by alcohol. He further testifi ed that grain alcohol is extremely fl ammable and it was foreseeable that teenagers who drink grain alcohol would oft en light it on fi re.

Th e Plaintiff had two theories of liability for RC Liquors. First, Negligence: Th e Plaintiff alleged that RC Liquors breached its duty of care when it sold the grain alcohol to Lauren Andrews. Although she admitted that the injury was not due to the intoxication of a minor, but rather “horseplay,” Selwyn argued that RC Liquors was aware, or should have been aware that recipes and Web sites encouraged “fi re play” with grain alcohol and that adolescents tend to ignite grain alcohol. Further, the Plaintiff argued that RC Liquors violated the Dram Shop Act, which supported her claim for negligence as a matter of public policy. Second, Strict Liability: Th e Plaintiff also alleged that selling grain alcohol to a minor was an ultrahazardous or abnormally dangerous activity, which warranted the application of strict liability.

NAME DATE

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Review the Case

After�reading�Selwyn�v.�Ward,�answer�the�following:



2. Identify�two�of�the�Defendant(s)�in�the�case.�

3. Is�the�Plaintiff�asking�for�money�damages?�

4. �Who�purchased�the�bottle�of�Everclear?�Was�he/she�present�at�the�party?�

5. �Where�was�the�grain�alcohol�purchased?�

6. �When�was�the�grain�alcohol�purchased?�

7. �Who�was�the�owner�of�the�property�where�the�party�was�hosted?�

8. �Where�on�the�property�was�the�party�located?�

9. �How�was�Bridget�Selwyn�injured?�

NAME DATE

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10. What�could�the�Defendant,�RC�Liquors,�have�done�to�prevent�the�injury�to�the�Plaintiff?�

11. What�is�an�ultrahazardous�activity?

12. BONUS:�In�your�opinion,�do�you�think�RC�Liquors�knew�or�at�least�should�have�known�that�by�selling�the�grain�alcohol�to�Lauren�Andrews,�a�teenager,�the�bottle�would�fall�into�the�hands�of�other�teenagers�who�would�then�pour�the�alcohol�onto�an�open�flame?

NAME DATE

71

Make the Argument


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1. Plaintiff’s�negligence�theory:

a. Did�RC�Liquors�sell�the�grain�alcohol�to�a�minor,�namely,�Lauren�Andrews?

b. Is�it�reasonably�foreseeable�to�RC�Liquors�that�by�selling�a�bottle�of�Everclear�to�a�minor�that�the�minor�may�use�it�for�“fire�play”?�Explain.

2. Plaintiff’s�strict�liability�theory:

a. Did�RC�Liquors�fail�to�warn�the�user�of�the�dangers�of�the�product�it�sold?

b. Is�the�selling�of�grain�alcohol�an�activity�that�cannot�be�made�safe�by�the�exercise�of�reasonable�care?

NAME DATE

72

You Be the Judge



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RC Liquors, Inc. Bridget Selwyn

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10

Tort Law: Negligence


Case 10: Underage Drinking

Tobin v. Norwood Country Club, Inc.

Duty of Care to Refrain from Serving Alcohol to Minors

oBJecTiVeTo understand in a negligence action what the duty of care is for business owners who serve alcohol to customers.

ToPicS coVeredRR Dram Shop Act

RR Duty of Care

RR Reasonable Care

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Background•� The�Defendant,�Norwood�Country�Club,�is�a�commercial�establishment�that�serves�meals�and�

alcoholic�beverages�to�the�general�public.�It�also�makes�its�facility�available�for�private�parties�by�special�arrangement.�

•� A�teenage�girl�became�severely�intoxicated�at�the�club,�which�was�hosting�a�party�for�her�boyfriend’s�family.�After�fighting�with�her�boyfriend�at�the�club,�she�left�on�foot,�and,�while�speaking�with�her�friends�who�were�urging�her�to�get�into�their�car,�was�struck�by�a�vehicle�in�the�middle�of�the�highway.�The�minor’s�blood�alcohol�level�was�recorded�as�.229—nearly�three�times�the�legal�limit�of�.08.�

•� The�Plaintiff,�the�family�of�the�deceased�teenager�(John�M.�Tobin,�Administrator�of�the�Estate)�sued�the�club�following�the�death�of�a�teenage�girl�utilizing�the�Commonwealth�of�Massachusetts’�Dram�Shop�Act.�

•� The�minor’s�family�alleged�that�Norwood�Country�Club�was�negligent�in�breaching�its�duty�of�care�owed�to�their�daughter�since�it�knew�or�should�have�known�that�minors�were�drinking�alcohol�during�the�party.

Before you Begin


Tobin v. Norwood Country Club, Inc.Duty of Care in Refraining from Serving Alcohol to Minors

RR What is a Dram Shop Act?A�Dram�Shop�Act�creates�liability�for�liquor�stores�and�other�commercial�establishments�that�serve�alcoholic�beverages�to�minors.�Dram�Shop�Acts�establish�liability�of�establishments�from�the�sale�of�alcohol�to�minors�where�said�minors�are�injured�or�cause�injury�to�third�parties.

RR What is the duty of care?The�duty�of�care�is�the�first�of�four�elements�that�a�plaintiff�must�prove�to�establish�a�negligence�action�against�a�defendant.�The�duty�of�care�element�requires�proof�that�the�defendant�owed�the�plaintiff�a�duty�of�care�to�protect�him/her�from�harm.�The�amount�or�level�of�care�owed�by�the�defendant�to�a�plaintiff�is�qualified�by�the�type�of�relationship�the�parties�are�engaged�in:�such�as,�lawyer-client,�physician-patient,�employer-employee,�and�in�this�case,�landowner-invited�guest,�otherwise�known�as�a�business�invitee.

RR What is reasonable care?Reasonable�care�is�the�obligation�of�a�person�to�behave�as�a�reasonably�prudent�person�using�the�ordinary�degree�of�care�required�in�the�circumstance.

75

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iSSue Before THe courTWhether an establishment serving alcohol has a duty to use reasonable care to refrain from selling or making alcohol available to minors where the establishment knew or should have known that minors were on the premises and were attempting to drink alcohol.

THe facTS


The penalty for selling

alcohol to a minor

varies by state, but

usually includes a fi ne, a

warning, or in the case

of an individual buyer, a

license suspension.

Th e Defendant, Norwood Country Club, is a commercial estab-lishment located in Norwood, Massachusetts that serves meals and alcoholic beverages to the general public. It also makes its facility available for private parties by special arrangement.

On the night in question, a Norwood Country Club employee, Paul Moran, organized a family reunion to be held in a private room at the club. Th e party lasted from 7 pm to aft er midnight. Th e party had approximately 100 guests, including six minors, with assigned seating at eight tables. Th e deceased teen, a 17-year-old female, was the girlfriend of a family member who was 16 years of age.

Paul Moran, a family member and full-time bartender at the club, reserved the room free of charge. Th e family paid the club for the drinks consumed at the party and paid for a caterer to supply the food.

Michael Mercer was the club’s bartender supervisor. Mercer ap-proved Moran to use a room at the club for his private function free of charge, although he was unaware that Moran was drinking alco-hol that night. Mercer acknowledged that minors were present at the party.

At 9 pm that evening, Moran told Mercer to go home and he would take responsibility for the private party room. Moran asked family members to help him police the party to make sure there was no underage drinking.

Patricia Erwin, the bartender on duty that night, could not see the private party room from the bar. Th at night, she served drinks to party and public guests. She did not enter the private party room dur-ing the evening to check if there were any alcohol-related problems. Erwin explained that although this was part of her normal practice,

76

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Sources


Tobin�v.�Norwood�Country�Club,�Inc.,�422�Mass.�126,�661�N.E.2d�627�(1996).Supreme�Judicial�Court�of�Massachusetts,�Suff�olkFebruary�22,�1996.�Opinion�written�by�the�Honorable�Justice�Charles�Fried.

The term dram shop refers to a shop where “spirits” are sold by the “dram,” a small unit of

liquid.

The fi rst Dram Shop Act was passed in Illinois in 1872.

she believed Moran was in charge of that responsibility.

While the club had a policy of serving only two drinks at a time to a customer, it came out at trial that many customers from the family party came away with several drinks in hand to take to the function room.

Erwin testifi ed that she neither served anyone who appeared to be a minor nor saw anyone she did serve hand a drink to a minor. One of the teenagers at the party contradicted this testimony and stated that on at least three occasions, he helped two adults by carrying multiple drinks (on one occasion between 9 and 12 Sea Breeze vodka drinks) from the bar.

Further, witnesses testifi ed that many of the teenagers seemed drunk by the end of the party and their tables contained several empty and half-empty glasses of pink liquid that is consistent with the color of a Sea Breeze vodka drink.

At the close of the party, the decedent had an argument with her boyfriend and left the club alone. She walked down the breakdown lane of the highway near the club’s location. Several teenagers left the party in a van in search of a place to continue their drinking. When they encountered the decedent walking in the breakdown lane, they stopped the van and tried to persuade her to get into the van. When she refused and continued walking, the van followed, pulled ahead of her and stopped. Th e decedent walked in front of the van, pounded on the front hood and then veered diagonally toward the center of the highway. She was struck by a passing vehicle and suff ered the injuries from which she died two days later. Th e decedent’s blood alcohol level two hours aft er the accident was .229, nearly three times the legal limit of .08.

NAME DATE

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Review the Case

After�reading�Tobin�v.�Norwood�Country�Club,�Inc.,�answer�the�following:




3. Is/Are�the�Plaintiff(s)�seeking�money�as�compensation�for�their�damages?�

4. Who�rented�the�room�for�the�party?�

5. Did�the�party�pay�for�the�room?�If�not,�explain.�

6. What�were�the�party�organizers�responsible�to�pay�for?�

7. What�was�Norwood�Country�Club’s�policy�on�the�number�of�drinks�served�to�a�customer�at�any�one�time?�Was�this�policy�followed?�Give�specifics.�

8. Did�Norwood�Country�Club�know�minors�were�at�the�party?�

NAME DATE

78


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9. Did�Norwood�Country�Club�know�the�minors�were�drinking�alcohol?�If�not,�what�facts�illustrate�that�the�club�should�have�known?

10. Who�is�Paul�Moran,�and�what�was�his�“role”�at�the�party?�

11. What�actions�did�Paul�Moran�take�to�prevent�underage�drinking�at�the�party?�

12. Who�is�Patricia�Erwin,�and�what�actions�did�she�take�to�prevent�underage�drinking?�

13. What�was�the�decedent’s�blood�alcohol�level�two�hours�after�her�death?�

14. BONUS:�In�your�opinion,�was�the�deceased�teenage�girl�responsible�or�partially�responsible�for�her�own�fate�in�this�case?

NAME DATE

79

Make the Argument


CA

SE:

10


1. Did�Norwood�Country�Club�owe�a�duty�of�care�to�the�minor?�

2. Was�the�duty�of�care�breached?�Explain.

3. Was�the�breach�of�the�duty�of�care�the�actual�cause�of�the�injury�to�the�minor?�In�other�words,�but for�the�club�serving�alcohol�to�the�minor�to�the�point�of�intoxication,�would�she�have�walked�into�the�middle�of�the�street�and�been�killed�by�oncoming�traffic?�Explain.

4. Was�the�death�of�the�minor�a�reasonably�foreseeable�result�of�the�club’s�failure�to�control�the�underage�drinking�at�the�party?�In�other�words,�by�failing�to�prevent�underage�drinking�at�the�party,�was�it�reasonably�foreseeable�that�the�teenage�girl�would�drink�to�the�point�of�intoxication�and�later�be�injured?�Explain.

5. Did�the�minor�contribute�to�her�own�death�in�any�way?�If�so,�please�assign�a�percentage�of�liability�to�her�for�her�actions.�Explain.

NAME DATE

80


You Be the Judge


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John M. Tobin, Estate Administrator Norwood Country Club, Inc.

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Tort Law: Strict Liability


Johnston v. Poulin

Strict Liability for Roaming Animals

oBJecTiVeTo understand the concept of strict liability as it applies to roaming or “at large” animals.

ToPicS coVeredRR Strict Liability for Roaming Animals

RR Roaming or “At Large” Animals

Case 11: Where is

My Horse?

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Background•� Defendants,�16-year-old�Jon�Poulin�and�his�mother,�Barbara�Poulin,�owned�a�horse�named�Twig.�

The�Poulins�kept�Twig�in�a�fenced-in�area�of�their�property�in�Foster,�Rhode�Island.

•� Twig�escaped�from�the�property�and�roamed�“at�large.”��With�the�help�of�a�policeman,�who�had�experience�with�horses,�Twig�was�found,�but�she�refused�to�be�led�into�a�horse�trailer.�

•� Since�Twig�refused�to�get�into�a�horse�trailer,�the�policeman�walked�Twig�to�Plaintiff�Phillip�Johnston’s�farm�house�to�board�her�for�the�night.�While�Mr.�Johnston�attempted�to�secure�Twig�in�a�stall,�the�horse�kicked�him�in�the�head�resulting�in�severe�personal�injuries.�

•� Mr.�Johnston�alleged�that�the�Poulins�were�liable�for�his�injuries�under�a�theory�of�strict�liability�because,�as�the�horse�was�a�roaming�animal,�an�owner�is�liable�for�all�damages�resulting�while�the�animal�is�“at�large.”

Before you Begin


Johnston v. PoulinStrict Liability for Roaming Animals

RR What is a roaming or “at large” animal?A�roaming�animal�is�one�that�breaks�free�from�its�enclosure�and�is�roaming�and�wandering�under�its�own�free�will.�To�determine�whether�an�animal�is�“at�large,”�the�court�must�determine�at�what�point�there�is�control�and�restraint�exercised�over�the�animal�while�it�is�off�its�owner’s�premises.

RR What is strict liability for roaming animals?Under�the�applicable�Rhode�Island�law,�an�owner�of�certain�defined�animals�is�strictly�liable�for�the�damage�caused�by�the�owner’s�animal�if�it�breaks�free�from�its�enclosure—regardless�of�the�owner’s�care�to�ensure�that�the�animal�does�not�break�free.

RR What types of animals are defined in the Rhode Island law as roaming animals?The�types�of�animals�that�are�roaming�animals�are�a�horse,�a�bull,�a�boar,�a�ram,�or�a�goat.�

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iSSue Before THe courTWhether, given the facts of the case, the horse Twig was “at large” for purposes of strict liability at the time of the Plaintiff’s injury.

THe facTS


An animal is considered

“at large” if it is not

confi ned or somehow

controlled.

Barbara Poulin and her 16-year-old son, Jon, were the owners of a horse named Twig. Th e Poulins kept Twig fenced in on Mrs. Poulin’s property in Foster, Rhode Island. On the night of November 10, 1997, a strong wind caused a tree branch to fall on the electric fence that corralled the horse. Twig escaped from her enclosure, and around 11 pm, the Foster Police Department received a report that Twig was running wild on a local road approximately two miles from home.

Shortly before midnight, Foster Police Lieutenant Chapman arrived at the Poulin home and spoke to Jon. Barbara Poulin was at work. Jon went with Lt. Chapman to attempt to restrain Twig in a horse trailer, but they were unsuccessful. Aft er 45 minutes, they walked Twig to Plaintiff Phillip Johnston’s farm house to board her for the night. Lt. Chapman recommended Mr. Johnston, an experienced horseman with facilities capable of maintaining Twig for the night.

By the time the group arrived at Mr. Johnston’s farm 30 minutes later, Twig had calmed down. Upon entering the barn, Twig became nervous and reared, but she eventually calmed and was led by the halter into the barn.

Once inside, Lt. Chapman requested Mr. Johnston’s assistance in placing the horse into the barn stall. Lt. Chapman handed the lead rope to Mr. Johnston, who walked the horse into the stall and clipped a wall rope to the halter without diffi culty. Mr. Johnston then walked past the horse and left the stall to get some hay.

Upon his return, Mr. Johnston walked along Twig’s left side and deposited the hay in a trough in front of her head. As he attempted to leave the stall, Mr. Johnston brushed against Twig causing the horse to pull back and rear up, and the wall rope broke. Twig lost her foot-ing and fell down, knocking Mr. Johnston to the ground. While Twig was attempting to get back on her feet, she struck Mr. Johnston in the head with her hind hoof. Twig then ran out of the stall to an open

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Sources


Johnston�v.�Poulin,�844�A.2d�707�(R.I.�2004).Rhode�Island�Supreme�CourtMarch�29,�2004.�Opinion�written�by�the�Honorable�Justice�Paul�A.�Suttell.

By 1900, North America had an estimated two million free-roaming horses. Most of the horses were mustangs which began to decrease in number due to human abuse. U.S. Congress passed the Wild Free-Roaming Horse and Burro Act of 1971 which provided for protection of mustangs and other animals.

fi eld behind the barn.

Although Mr. Johnston indicated to the police that he was okay, the next day he woke up in pain and went to the hospital. Subsequent medical reports showed that Mr. Johnston suff ered a concussion and injured his neck, jaw, and head. Mr. Johnston received stitches to his head.

Th ere was evidence presented at trial that Twig was in a state of excitability when she entered the barn and was never fully brought under control. Th ere was also contradicting evidence that Twig had been restrained and was indeed brought under control.

Jon Poulin testifi ed that Mr. Johnston antagonized the horse by slapping her on the rear when she stood up abruptly as he slid past her left side.

NAME DATE

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Review the Case

After�reading�Johnston�v.�Poulin�,�answer�the�following:




3. Is�the�Plaintiff�seeking�money�as�compensation�for�his�injuries?�

4. Who�is�“Twig”?�

5. Did�the�Poulin’s�yard�have�a�fence?�If�so�what�kind?�

6. How�did�Twig�escape�from�the�Poulin’s�yard?�

7. Where�did�Lt.�Chapman�find�Twig?�

8. How�long�did�Lt.�Chapman�attempt�to�get�Twig�into�a�trailer?�

NAME DATE

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9. Why�did�Lt.�Chapman�decide�to�bring�Twig�to�Mr.�Johnston’s�barn?�

10. How�did�Twig�initially�react�to�Mr.�Johnston’s�barn?�

11. Did�Lt.�Chapman�request�Mr.�Johnston�help�him�bring�Twig�into�his�barn?�

12. What�caused�Twig�to�kick�Mr.�Johnston?�

13. What�did�Twig�do�immediately�after�kicking�Mr.�Johnston�in�the�head?�

14. When�did�Mr.�Johnston�realize�that�he�was�injured�by�Twig?�

NAME DATE

87

Make the Argument


ASE

: 1

1


1. Is�Twig�considered�a�roaming�animal?�Explain.

2. Did�the�Defendants�own�Twig�at�the�time�of�the�accident?

3. Did�Twig�break�free�from�the�Defendant’s�property?

4. How�was�the�Plaintiff�injured�by�Twig?�

5. Was�Twig�“at�large”�at�the�time�that�she�kicked�the�Plaintiff?�To�make�this�determination,�you�must�decide�whether�the�Plaintiff�exercised�control�and�restraint�over�Twig�at�the�time�he�was�injured.�

NAME DATE

88

You Be the Judge



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Phillip Johnston Barbara and Jon Poulin

89

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Landowner’s Duty of Care to Control Actions of a Person on His/Her Property

oBJecTiVeTo understand the duty of homeowners for actions taken by individuals on their property.

ToPicS coVeredRR Landowner’s duty of care to prevent criminal acts of third person “licensees” on his/her property

RR Exception to rule of landowner’s duty of care to prevent criminal acts of third person “licensees” on his/her property

RR Duty to Inspect Property

Volpe v. Gallagher

Case 12: When

Neighbors Attack

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Background•� The�Plaintiffs,�Raymond�Volpe�and�Joyce�Almonte,�accused�their�neighbor,�the�Defendant,�Mrs.�

Sara�Gallagher,�of�negligence�by�failing�to�inspect�the�bedroom�of�her�son,�James�Gallagher.�They�alleged�that�Mrs.�Gallagher,�as�the�owner�of�property,�had�a�duty�to�inspect�the�premises�for�dangerous�conditions.�

•� James�Andrew�Gallagher,�a�mentally�ill�34-year-old�adult�and�an�occupant�at�the�Defendant’s�home,�kept�guns�and�ammunition�in�the�Defendant’s�home�and�used�these�firearms�to�shoot�and�kill�his�next-door�neighbor,�Ronald�Volpe,�for�no�apparent�reason.�

•� Mrs.�Gallagher�asserts�that�she�did�not�know�that�her�son�kept�guns�or�ammunition�on�her�property;�and�even�if�she�did�know,�she�could�not�have�known�that�her�son�would�use�them�to�murder�her�next�door�neighbor,�as�he�had�no�history�of�violence�prior�to�this�tragedy.

Before you Begin


Volpe v. GallagherLandowner’s Duty of Care to Control Actions of a Person on His/Her Property

RR What is a landowner’s duty of care for criminal acts of third persons?A�landowner�has�no�duty�to�protect�another�from�intentional�criminal�acts�of�third�parties�that�take�place�on�his/her�property�or�the�public�way.

RR What is an exception to the landowner’s duty of care for criminal acts of third persons?Landowners�have�a�duty�to�prevent�third�persons�that�they�permit�to�use�their�property�from�intentionally�harming�or�creating�an�unreasonable�risk�of�bodily�harm�to�others—where�the�landowner�has�the�ability�to�control�the�third�person�and�knows,�or�should�know,�of�the�need�to�exercise�such�control.

RR What is the landowner’s duty to inspect property?A�possessor�of�land�has�a�duty�to�inspect�the�premises�for�dangerous�conditions.

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iSSue Before THe courTWhether the Defendant Gallagher, as a landowner, owed a duty to her neighbors, Plaintiffs Volpe and Almonte, to prevent her mentally ill son, a licensee, from conducting himself on her property in a manner that created an unreasonable risk of bodily harm to her neighbor.

THe facTS


A licensee is a person

who is on the property

of another (with

permission), despite the

fact that the property

is not open to the

general public.

“Who knew? In essence, that was the defense to the charge of negligence in this lawsuit.” Th e Plaintiff s, Raymond Volpe and Joyce Almonte, accused the homeowner, Defendant Mrs. Sara Gallagher, of negligently allowing her mentally ill adult son, James Andrew Galla-gher, to keep guns and ammunition on her property.

On July 3, 1994, the date of the murder—James Andrew Galla-gher, 34 years old, lived with his mother, Mrs. Gallagher, in her small North Providence, Rhode Island, ranch house. James, who had no job and no friends, suff ered from hallucinations, imaginary conversa-tions, and paranoia. James spent long hours by himself in his bed-room located in the basement of Mrs. Gallagher’s home.

In this basement bedroom, James kept a shotgun, a pistol, boxes of ammunition, and related gun paraphernalia. On the date in question, for no known reason, James suddenly emerged from the basement of the Defendant’s home with his loaded shotgun in hand and shot his neighbor, Ronald Volpe, three times while the victim was trimming the hedges between their two houses.

Aft er discharging the shotgun three times into Volpe’s head and body, James returned, shotgun in hand, to his basement leaving the victim’s dead body facedown in the hedges.

Aft er hearing the gunshots, Mrs. Gallagher stood at her side door as James brushed by her on his way back down to the basement. James admitted to her that he had just shot the victim.

Th inking that her son just might be hallucinating again, but trou-bled by the “fi reworks” she had heard, Mrs. Gallagher called her two daughters who lived nearby and asked them to come over to the house right away. Th ey did so and quickly enlisted the help of a neighbor.

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Sources


Volpe�v.�Gallagher,�821�A.2d�699�(R.I.�2003).Rhode�Island�Supreme�CourtMay�12,�2003.�Opinion�written�by�the�Honorable�Justice�Robert�G.�Flanders.

The duty of care is a legal obligation set on an individual that they act with a standard of reasonable care to prevent

foreseeable harm to others. If a person‛s actions do not meet this standard of care, then the acts are considered negligent,

and any damages resulting may be claimed in a lawsuit of

negligence.

Nolo Contendere (no contest) is a Latin term which means “I do not wish to contest.” It refers to the plea by an individual in a criminal case where he/she does not wish to contest the charges against him/her.

Walking over to the hedges that bordered the Volpe and Gallagher houses, the neighbor soon discovered Volpe’s body and called the police.

Meanwhile, one of the Defendant’s daughters entered the basement, removed a handgun from a dresser drawer, and hid it under a pillow on the living room couch until the police arrived and arrested James.

Th e Plaintiff s brought a wrongful-death lawsuit against Mrs. Gallagher. Th ey also attempted to sue the incarcerated James Andrew Gallagher, but he did not testify or otherwise participate in the trial of this civil case.

Charged with fi rst-degree murder by the state, James eventually dropped his insanity defense and pled nolo contendere (no contest) to a reduced criminal charge of second-degree murder. Th roughout this trial action, James remained imprisoned for this crime.

According to Mr. Volpe and Ms. Almonte, the Defendant knew or should have known that by allowing her mentally ill son to possess guns and ammunition under his condition, she created an unreason-able risk of bodily harm to others.

Although James was not formally diagnosed with mental illness, at trial, Mrs. Gallagher admitted, “I knew he wasn’t right. I just didn’t know what was wrong with him [...] he just wasn’t acting right. He always wanted to be alone in darkness. He was acting peculiar.”

However, Mrs. Gallagher stated, “I just wouldn’t allow anybody to have guns in the house. I was afraid of them and didn’t want them. If I had known that my son had a gun, I would have told him to get rid of it. If he didn’t, I would have.” Gallagher argued that she did not know that James had guns and ammunition in her home. Further, even if she had known, her son had no history of violence. Th erefore, she argued that she could not have foreseen that one day he would shoot their next door neighbor using any of the guns and ammuni-tion that he kept at her home.

NAME DATE

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Review the Case

After�reading�Volpe�v.�Gallagher�,�answer�the�following:




3. Are�the�Plaintiff(s)�looking�for�compensation�in�the�form�of�money�from�the�Defendant?�

4. What�is�the�relationship�between�Mrs.�Gallagher�and�James�Gallagher?�

5. How�old�was�James�Gallagher�when�he�committed�the�criminal�act?�

6. What�symptoms�of�mental�illness�did�James�Gallagher�suffer�from?�

7. Did�a�medical�physician�ever�diagnose�James�Gallagher�regarding�his�mental�illness?�

8. What�crime(s),�if�any,�was�James�Gallagher�charged�with,�and�how�were�those�criminal�charges�ultimately�decided?

9. Did�Mrs.�Gallagher�periodically�inspect�her�son’s�room�for�guns�or�any�other�weapons?�

NAME DATE

94


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10. Did�Mrs.�Gallagher�have�a�right,�as�the�owner�of�the�property,�to�inspect�her�son’s�room�for�weapons,�even�though�he�was�an�adult�at�the�time�of�the�incident?�

11. What�were�Mrs.�Gallagher’s�arguments�as�to�why�she�should�not�be�responsible�for�the�actions�of�her�son?�Be�specific.�

NAME DATE

95

Make the Argument


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1. Did�Mrs.�Gallagher,�as�the�owner�of�the�property,�have�a�duty�to�her�neighbors�to�keep�her�premises�safe�from�dangerous�conditions,�in�this�case,�her�son�harboring�weapons?�Explain.

2. Did�the�Defendant,�Mrs.�Gallagher,�as�the�owner�of�the�property,�know�that�James�Andrew�Gallagher�had�weapons�in�his�room?

3. Should�Mrs.�Gallagher,�as�the�owner�of�the�property,�have�known�that�her�son�had�dangerous�weapons�in�his�room?

4. Did�Mrs.�Gallagher�know�that�her�son,�James,�was�a�dangerous�person?�Explain.

5. Did�Mrs.�Gallagher�breach�her�duty�of�care�to�her�neighbors�by�failing�to�inspect�the�premises�for�dangerous�conditions,�i.e.,�guns�in�her�son’s�room?�Explain.

6. Could�Mrs.�Gallagher�control�her�son’s�actions�where�she�could�demand�he�remove�the�guns�from�his�room?�Explain.

7. �Did�the�fact�that�James�Gallagher�harbored�weapons�in�his�room�create�an�unreasonable�risk�of�foreseeable�harm�to�the�Volpes/Almontes?�Explain.

NAME DATE

96


You Be the Judge


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Raymond Volpe and Joyce Almonte Mrs. Sara Gallagher

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School District’s Liability for Criminal Acts of Third Persons on School Grounds

oBJecTiVeTo understand a school’s liability for injuries that occur on school grounds after school hours.

ToPicS coVeredRR Municipality’s duty of care to maintain school playgrounds

RR Municipality’s liability for criminal activities on school playgrounds

RR Municipality’s duty to provide supervision on school playgrounds

Nicholson v. Bd. of Educ. of the City of New York

Case 13: Fireworks at School

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Background•� Brian�Nicholson,�a�7-year-old�boy,�lived�across�the�street�from�elementary�school�Public�School�

94,�in�Brooklyn,�New�York.�On�the�day�in�question,�Brian�walked�across�the�street�around�4:30�pm�and�sat�down�in�a�corner�of�the�school�yard.�

•� At�that�time,�ten�other�children,�each�about�12�years�of�age,�were�playing�with�fireworks�in�the�schoolyard.�One�of�the�children�called�Brian’s�name.�When�Brian�turned�around,�he�was�hit�in�the�left�eye�by�a�firecracker.�After�several�successive�operations,�the�eye�was�removed�and�an�artificial�one�put�in�its�place.

•� Brian,�through�his�mother,�Margaret�Nicholson,�brought�an�action�against�the�Board�of�Education�for�the�City�of�New�York�for�the�injuries�sustained�from�the�criminal�activity,�i.e.,�setting�off�fireworks,�an�illegal�activity�in�New�York�at�the�time�of�the�incident.

Before you Begin


RR What is a municipality’s duty of care to persons using its parks and playgrounds? A�municipality�is�under�a�duty�to�maintain�its�parks�and�playground�facilities�in�a�reasonably�safe�condition.�

RR What is a municipality’s liability to injured parties caused by criminal activities at public playgrounds? A�municipality�that�is�aware�people�are�using�its�park�or�playground�as�a�site�for�criminal�activities�needs�to�take�appropriate�preventative�measures�to�protect�others�from�harm.�If�it�fails�to�do�so,�the�municipality�will�be�liable�for�resulting�injuries.

RR What is a municipality’s duty of care regarding supervision of parks and playgrounds? A�municipality�may�be�obligated�to�have�an�adequate�degree�of�general�supervision�and�regulation�to�prevent�activities�by�park�visitors�that�endanger�other�visitors.�

Nicholson v. Bd. of Educ. of the City of New YorkSchool District’s Liability for Criminal Acts of Third Persons on School Grounds

99

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iSSue Before THe courTWhether a municipality, aware that its playground is being used by children as a site for the unlawful discharge of fireworks, is liable for resulting injuries when it fails to take appropriate preventative measures.

THe facTS


An administrative

division composed of a

defi ned territory and

population is known as a

municipality.

In June 1968, at about 4:30 pm, 7-year-old Plaintiff Brian Nicholson, walked across the street into the school yard at elementary school P.S. 94 in Brooklyn, New York. Brian sat down in a corner to watch the “big” kids play. He was not a student of P.S. 94, nor of any formal aft er-school program conducted by the school. Th e school playground was across the street from where Brian lived.

At the time Brian entered the playground, ten other children, each about 12 years of age, were playing with fi reworks. Brian heard his name called, and when he turned around, a fi recracker hit him in the left eye. Aft er several operations, the eye was removed and an artifi cial one replaced it.

Th e school yard was not run as an offi cial, supervised area for aft er-school play. Th e Defendant, the Board of Education for the City of New York, did not assign school personnel to supervise play. Nev-ertheless, young children in the neighborhood, a congested tenement house area, played at P.S. 94 aft er school, as it was the closest play-ground to their houses. Th e school yard was separated from the public sidewalk by a high metal fence. However, the gates of the fence had been missing for years.

For two years prior to Brian’s injuries, the Defendant had received constant warnings that people were exploding fi recrackers, setting papers on fi re, and throwing bottles and garbage in the schoolyard. Th ese destructive episodes became more frequent during April and May, the two months preceding Brian’s injury. To combat this behav-ior of fi reworks, fi re, and garbage, members of the Block Association met with the principal to request that gates be installed to close the school yard or that supervision be provided. Th e principal honored neither request.

Th e Plaintiff sued the Defendant for money damages resulting

100

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SE:

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Sources

The�case�briefing�above�contains�excerpts�and�direct�extractions�from�the�sources�noted�below�that�have�been�combined�with�the�author’s�own�expert�legal�input.�The�case�has�been�condensed�and�formatted�from�its�original�content�for�purposes�of�this�workbook.

Nicholson�v.�Board�of�Educ.�of�the�City�of�New�York,�36�N.Y.2d�798,�369�N.Y.S.2d�703�(1975).New�York�Court�of�Appeals�April�7,�1975.�Opinion�written�per�curiam�by�the�Honorable�Justices�Charles�D.�Breitel,�Matthew�J.�Jasen,�Domenick�Gabrielli,�Jones,�Solomon�Wachtler�and�Lawrence�Cooke.

from his injuries and argued that the Defendant was negligent in al-lowing the children on school grounds where it knew or should have known that the kids were lighting fireworks.

The Defendant argued that because the accident took place in a school yard, rather than a public park, there was no duty to the Plaintiff except to prevent an intentional wrongful act. It also argued that its duty was limited to maintaining the yard in physically good condition.

NAME DATE

101

CA

SE:

13

Review the Case

After�reading�Nicholson�v.�Bd.�of�Educ.�of�the�City�of�New�York,�answer�the�following:




3. Is�the�Plaintiff�seeking�money�for�his�injuries�in�this�case?�

4. What�were�Brian’s�injuries?�

5. Why�did�Brian�go�to�the�playground�the�day�of�the�incident?�

6. Was�Brian�a�student�at�the�school?�

7. What�age�was�Brian�when�he�was�injured?�How�old�were�the�other�children�in�the�playground?�

8. What�time�did�the�incident�occur?�

9. Where�was�Brian’s�house�in�relation�to�the�playground?�

NAME DATE

102


CA

SE:

13


10. Were�there�any�prior�incidents�of�fireworks�being�lit�off�at�the�playground?�Explain.

11. Describe�the�neighborhood�surrounding�the�school.�

12. Did�the�principal�have�knowledge�of�the�childrens’�fireworks�activity?�Explain.�

13. Were�there�gates�around�the�school�yard�at�the�time�of�the�incident?

14. Did�the�Block�Association�ever�meet�with�the�principal�regarding�the�playground?�If�yes,�what�did�the�Block�Association�request?�

15. BONUS:�What�could�the�Board�of�Education�have�done�to�prevent�this�accident?

NAME DATE

103

Make the Argument


CA

SE:

13


1. Did�the�Board�of�Education�owe�a�duty�of�care�to�Brian�Nicholson?�Explain.

2. Was�the�duty�of�care�breached�by�the�Board�of�Education�for�failing�to�take�adequate�precautions�to�protect�Brian�Nicholson?�Explain.�

3. Was�it�foreseeable�to�the�Board�of�Education�that�if�they�failed�to�take�adequate�precautions�to�protect�minor�children,�like�Brian,�in�the�playground,�someone�would�get�hurt?�Explain.

4. Was�the�Board�of�Education’s�failure�to�take�adequate�precautions�to�prevent�fireworks�at�the�school�yard�the�cause�of�the�injury�to�Brian�Nicholson?�Explain.

5. What�were�Brian’s�injuries?

NAME DATE

104


You Be the Judge


CA

SE:

13


Brian Nicholson Board of Education of the City of New York

105

CA

SE:

14



Case 14: Parking Lot

Attack

Duty of Care of Business Owners Against Criminal Attacks on Their Customers

oBJecTiVeTo understand what a business owner’s duty of care is to his/her customers (otherwise known as “business invitees”) to protect the customers from criminal attacks.

ToPicS coVeredRR Negligence

RR Business Invitee

RR Duty of Care for Criminal Acts of Third Persons

RR Special Relationship Exception to the Duty of Care for Criminal Acts of Third Persons

RR Forseeable Act

Nivens v. 7-11 Hoagy’s Corner

106

CA

SE:

14

Background•� The�Plaintiff,�Ken�Nivens,�was�attacked�by�a�group�of�youths�in�the�parking�lot�of�a��7-11�after�he�

refused�to�buy�them�beer.�

•� Nivens�alleged�that�7-11�was�responsible�for�his�injuries.�He�argued�that�the�employees�knew�or�should�have�known�that�the�teenagers�frequently�gathered�in�the�parking�lot�and�solicited�the�customers�to�buy�them�beer�and�that�this�combination�of�teenagers�and�drinking�could�cause�someone�to�get�hurt.

•� 7-11�responded�that�Nivens’�injuries�were�the�result�of�a�random�criminal�attack�which�was�impossible�to�foresee.

Before you Begin


Nivens v. 7-11 Hoagy’s CornerDuty of Care of Business Owners Against Criminal Attacks on Their Customers

RR What is negligence?Negligence�is�the�breach�of�a�duty�of�care�by�a�Defendant�which�is�the�cause�of�injuries�to�another�person�whom�the�Defendant�has�an�obligation�to�protect�from�harm.�

RR What is a business invitee?A�business�invitee�is�a�person�who�is�invited�to�enter�or�remain�on�land�for�the�purpose�of�conducting�business�with�the�occupier�of�the�premises—for�example,�a�customer�in�a�retail�store.

RR What is the general duty of care to protect another from criminal acts? In�general,�a�person�does�not�owe�a�duty�of�care�to�protect�another�from�criminal�acts�of�third�parties.

RR What is a “Special Relationship” exception to duty of care to protect another from criminal acts? A�person�has�a�duty�to�protect�another�from�the�criminal�acts�of�third�persons�when�a�special�relationship�is�present.�A�special�relationship�exists�between�a�business�and�its�invitees.�The�business�has�a�duty�to�take�reasonable�steps�to�prevent�its�invitees�from�foreseeable�criminal�acts�of�third�parties.

RR What is a foreseeable act? Foreseeable�acts�are�acts�about�which�the�business�owner�knows�about�or�has�reason�to�know.

107

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iSSue Before THe courTWhether a business owes a duty to business invitees to protect them against criminal acts by third persons on the business premises.

THe facTS


7-11 is the world‛s

largest convenience

store chain with more

than 39,500 stores in 16

countries.

On December 26, at about 10 pm, the Plaintiff , Ken Nivens, parked his car in the parking lot in front of a 7-11 store called Hoagy’s Corner. He had been a customer of 7-11 for several years. As he ap-proached the store entrance, Nivens noticed a group of teenagers. One of the teens, Robert Figueroa, asked Nivens to buy beer. When Nivens refused, some of the youths called him names and Figueroa grabbed him from behind. Nivens was hit and kicked in the head, neck, shoul-ders, and ribs. Nivens sued 7-11 for damages for his resulting injuries.

Nivens testifi ed that for the last six years, between 10 and 100 young people would gather in the parking lot of the 7-11 store. Figueroa confi rmed this and added that he and his friends would oft en solicit 7-11 customers to buy beer for them. A 7-11 employee testifi ed that the teenagers would fi ght among themselves in the 7-11 parking lot, but they rarely bothered customers.

Th e investigating offi cer, Deputy Sheriff Barnhill, acknowledged on the stand that while loitering by teens (lingering or hanging around a public place or business) usually included drinking alcohol and taking illegal drugs resulting in fi ghts or assaults, he did not recall any instance of violence at the store other than the one in which Nivens was involved.

Th e store presented evidence that it took adequate precautions to prevent assaults on customers. 7-11 required every store to post a sign stating “no soliciting, no loitering, and no loud music.”

In addition, 7-11 had an explicit policy requiring clerks to ask persons drinking on the premises to dispose of any alcohol or leave. Clerks were to watch for loiterers and tell them to leave. If they did not leave, clerks were to call the police. Th ese policies were also written in two separate employee manuals.

108

CA

SE:

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Sources


Nivens�v.�7-11�Hoagy’s�Corner,�133�Wash.2d�192,�943�P.2d�286,�(Wash.�1997).Supreme�Court�of�WashingtonOctober�1,�1997.�Amended�opinion�written�by�the�Honorable�Justice�Phillip�Talmadge.

Small businesses use employee handbooks to inform employees of the company‛s policies and expectations.

7-11 called a longtime customer, John Shadduck, as a witness. He had no recollection of any acts of violence at the store. In fact, Shad-duck stated customers had to be well-behaved or they would be asked to leave.

7-11 employee, Kathleen Anderson, testifi ed that the majority of teens and young adults who came to the store did not cause trouble and were well-behaved. For the entire year preceding the incident, she never observed any fi ghts or altercations between customers and the teens in the parking lot and no customer complaints had been received.

Plaintiff Nivens sued the Defendant for money damages for his in-juries claiming that the Defendant was negligent in failing to provide adequate security at the 7-11 store.

Defendant, 7-11, argued that because there was no evidence of prior violence toward customers, the criminal act was unforeseeable—it did not know and had no reason to know that a criminal act would occur.

NAME DATE

109

CA

SE:

14

Review the Case

After�reading�Nivens�v.�7-11�Hoagy’s�Corner,�answer�the�following:




3. Is�the�Plaintiff�seeking�money�for�his�injuries?�

4. Describe�the�injuries�to�Nivens.�

5. Although�Nivens�was�attacked�by�a�“group”�of�youths,�only�one�testified�at�trial.�What�was�his�name�and�summarize�his�testimony?��

6. Did�7-11�have�any�signs�posted�at�the�store�that�are�important�to�deciding�this�case?�If�yes,�what�did�the�sign(s)�state?�

7. Who�is�John�Shadduck?�What�did�he�testify�to�with�respect�to�any�history�of�violence?�

NAME DATE

110


CA

SE:

14


8. Who�is�Kathleen�Anderson,�and�what�did�she�testify?�

9. What�was�7-11’s�policy�regarding�drinking�alcohol�on�the�store’s�premises?�

10. �What�were�7-11�employees�required�to�do�if�they�discovered�drinking�of�alcohol�on�the�premises?�

11. BONUS:�What�could�7-11�have�done�to�prevent�this�attack?

NAME DATE

111

Make the Argument


CA

SE:

14


1. Did�the�Defendant,�7-11,�owe�a�duty�of�care�to�the�Plaintiff,�Ken�Nivens?�What�specifically�was�the�duty�that�was�owed?

2. If�there�was�a�duty�of�care,�was�it�breached?

3. Was�the�teen’s�attack�on�Nivens�a�forseeable�consequence?�Explain.

4. Was�the�failure�to�adequately�protect�Nivens�from�the�criminal�acts�of�the�teens�the�cause�of�the�injury�to�the�Plaintiff?�Explain.

5. How�was�the�Plaintiff�injured?�

NAME DATE

112


You Be the Judge


CA

SE:

14


7-11 Hoagy’s CornerKen Nivens

113

CA

SE:

15



Case 15: Teens Wreak

Havoc in a Store

Duty of Care of Business Owners Against Personal Injury to Their Customers

oBJecTiVeTo understand what a business owner’s duty of care is to his/her customers (otherwise known as “business invitees”) to protect the customers from injury while on the store premises.

ToPicS coVeredRR Negligence

RR Slip and Fall Injury

RR Business Invitee

RR A Business Owner’s Duty to Inspect

Medley v. Home Depot, Inc.

114

CA

SE:

15

Background•� Ms.�Dee�Dee�Medley,�a�business�invitee,�brought�a�negligence�lawsuit�against�the�well-known�

retail�store,�Home�Depot,�for�injuries�she�sustained�while�in�the�store.

•� While�shopping�in�Home�Depot,�Ms.�Medley�slipped�and�fell�on�a�slippery�substance,�later�discovered�to�be�oil.

•� Ms.�Medley�alleged�that�at�the�time�of�the�incident,�a�group�of�teenagers,�who�were�running�wild�in�the�store,�intentionally�opened�a�can�of�oil�and�poured�it�on�the�floor.

•� Ms.�Medley�claimed�that�Home�Depot�had�a�duty�to�inspect�the�aisles�for�dangerous�conditions,�especially�since�Home�Depot�knew�about�the�teens’�mischief,�which�resulted�in�the�oil�on�the�floor�and�injury�to�her.

Before you Begin


Medley v. Home Depot, Inc.Duty of Care of Business Owners Against Personal Injury to Their Customers

RR What is negligence? Negligence�is�the�breach�of�a�duty�of�care�by�a�defendant�which�is�the�cause�of�injuries�to�another�person�whom�the�defendant�has�an�obligation�to�protect�from�harm.�

RR What is a “slip and fall” injury? A�slip�and�fall�injury�stems�from�a�person�slipping�and�falling�on�the�ground,�allegedly�caused�by�the�negligence�of�the�owner�or�possessor�of�the�property.�

RR What is a business invitee? A�business�invitee�is�a�person�who�is�invited�to�enter�or�remain�on�land�for�the�purpose�of�conducting�business�dealings�with�the�occupier�of�the�premises—for�example,�a�customer�in�a�retail�store.�

RR What is a business owner’s duty to inspect? An�owner/possessor�of�land�has�a�duty�to�warn�business�invitees�of�dangers�it�actually�knows�about,�as�well�as�dangers�that�it�should�have�known�about�through�reasonable�inspection,�on�the�premises.�This�requires�that�all�business�owners�conduct�regular�inspections�of�the�premises�for�potential�dangers.

115

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iSSue Before THe courTWhether a business owner owes a duty to business invitees to protect them against negligent acts by third persons on the business premises.

THe facTS


There are over seven

million “slip and fall”

lawsuits fi led each year.

Ms. Dee Dee Medley fi led suit against Home Depot, Inc., for dam-ages she claimed occurred from a slip and fall injury at Home Depot.

Ms. Medley was shopping at Home Depot looking for an exten-sion cord. She pushed her shopping cart halfway down an aisle and left it to go ask Andrew Attaway, the department manager, for help in locating the product.

As Ms. Medley headed back to her cart, still looking for the exten-sion cord, she slipped and fell on oil spilled on the fl oor. Ms. Medley never saw the oil or any liquid on the fl oor, but a Home Depot em-ployee told her at the scene that she had slipped on oil.

While an oil container was found on the fl oor near Ms. Medley’s fall, no oil was sold in the area in which Ms. Medley fell. Th e bottle had been deliberately punctured open, as if with a screwdriver, and it appeared that the oil had been deliberately poured onto the fl oor. Th e bottle containing the rest of the oil had been thrown between some boxes on the side of the aisle.

Aft er her fall, Ms. Medley went to the hospital, where a Home De-pot loss prevention supervisor, Steven Hester, visited her. Mr. Hester stated that he believed a group of teenagers had poured the oil onto the fl oor.

With respect to non-shoppers, Home Depot’s storewide policy required supervisors to monitor the store for any persons who are non-shoppers and ask them to leave the store. Hester testifi ed at trial that he was aware of three teenagers who were running through the store—playing hide and seek. He stated that these young people were not shoppers, but horsing around, playing tag, and killing time. Hes-ter was monitoring the teens to make sure the situation did not get out of hand, and at one point, he told them to behave or fi nd their parents and leave.

116

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Sources


Medley�v.�Home�Depot,�Inc.,�252�Ga.�App.�398,�555�S.E.2d�736�(2001).Court�of�Appeals�of�GeorgiaSeptember�18,�2001.�Opinion�written�by�the�Honorable�Presiding�Justice�Marion�T.�Pope,�Jr.

With over 2,200 stores, The Home Depot, Inc. is the world‛s largest home improvement specialty retailer in the U.S.

With respect to keeping the aisles safe, Home Depot’s storewide policy requires that department supervisors patrol the aisles to make sure they are clear. Andrew Attaway, the department manager, testi-fi ed that on the incident date, there were fi ve aisles in the electrical department of Home Depot. Four employees were working in the fi ve aisles. Attaway stated that he inspected the area in which Ms. Medley fell within fi ve minutes before her fall and had not seen any oil. When notifi ed of her fall, Attaway alleged he was about 20 yards away from Ms. Medley’s location.

Attaway also testifi ed as to the teens’ presence in the store. He stated that the teens regularly came into the store on Friday aft er-noons and “messed things up.” He indicated that the kids had spilled things previously, and that both Hester and Home Depot knew that the teens might spill substances that might be hazardous to shoppers.

Ms. Medley argued that Home Depot did not follow its own poli-cies in failing to more closely monitor the teens, and Home Depot knew that the non-shoppers had previously spilled items on the fl oor.

NAME DATE

117

CA

SE:

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Review the Case

After�reading�Medley�v.�Home�Depot,�Inc.,�answer�the�following:




3. Is�the�Plaintiff�seeking�money�for�her�damages?�

4. As�a�business�invitee�of�Home�Depot,�explain�the�duty�of�care�that�the�store�owed�to�Ms.�Medley.�

5. What�was�Home�Depot’s�policy�for�“non-shoppers”?�

6. What�was�Andrew�Attaway’s�position�at�Home�Depot?�What�was�his�duty�regarding�the�aisles�in�the�electrical�department?�

7. What�was�Steven�Hester’s�position�at�Home�Depot?�

NAME DATE

118


CA

SE:

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8. Should�Hester�have�done�anything�according�to�Home�Depot�policy�regarding�the�teenagers?�

9. State�the�facts�that�illustrate�Home�Depot�knew�the�teens�might�cause�trouble�in�the�store.�

10. State�the�number�of�employees�and�aisles�in�the�electrical�department�at�the�time�Ms.�Medley�fell.�

11. BONUS:�In�your�opinion,�what�could�Home�Depot�have�done�to�prevent�this�incident?

12. BONUS:�In�your�opinion,�did�the�Plaintiff�do�anything�to�contribute�to�her�own�injuries?

NAME DATE

119

Make the Argument


CA

SE:

15


1. Did�Home�Depot�owe�a�duty�of�care�to�Ms.�Medley?�Explain.�

2. Did�Home�Depot�breach�its�duty�of�care�to�Ms.�Medley�by�not�removing�the�teenagers�from�the�building�in�a�timely�manner?�Explain.

3. Was�it�reasonably�foreseeable�to�Home�Depot�that�by�failing�to�remove�the�teenagers�in�a�timely�manner,�Home�Depot�would�create�an�unreasonable�risk�of�harm�to�Ms.�Medley?�Explain.

4. Did�Home�Depot�know,�or�should�they�have�known,�that�shoppers�could�be�harmed�by�the�teenagers’�presence�in�the�store?

5. Was�the�Plaintiff�injured?�

NAME DATE

120


You Be the Judge


CA

SE:

15


Dee Dee Medley Home Depot, Inc.

121

CA

SE:

16

Consumer Law:Product Liability


Manufacturer’s Duty to Warn in Product Liability Action

oBJecTiVeTo understand the standards of a manufacturer’s liability when it produces a product that injures a consumer using the product.

ToPicS coVeredRR Product Liability

RR Unreasonably Dangerous Product

RR Duty to Warn

RR Defense to Product Liability, the “Open and Obvious” Doctrine

Sollami v. Eaton

Case 16:What Goes Up, Must

Come Down!

122

CA

SE:

16

Background•� The�Plaintiff,�Kathleen�M.�Sollami,�a�15-year-old�girl,�went�to�her�friend’s�house�to�play�on�the�

friend’s�trampoline�while�the�friend’s�parents�were�not�home.

•� Sollami�suffered�a�bad�knee�injury�while�playing�a�game�called�“rocket�jumps”�in�which�one�jumper�is�propelled�higher�than�the�other�jumpers.�

•� Among�the�claims�in�their�lawsuit,�Sollami’s�parents�brought�a�product�liability�claim�against�the�manufacturer�arguing�that�the�manufacturer�failed�to�warn�the�consumers�of�the�danger�in�using�the�trampoline�and�that�the�trampoline�was�an�unreasonably�dangerous�product�to�the�average�consumer.

•� The�manufacturer�defended�that�any�danger�posed�by�the�product�to�the�teenagers�was�open�and�obvious�and,�as�such,�there�was�no�duty�to�warn�of�the�product’s�danger.

Before you Begin


Sollami v. EatonManufacturer’s Duty to Warn in Product Liability Action

RR What is Product Liability?A�product�liability�lawsuit�is�a�type�of�civil�action�brought�by�a�Plaintiff�against�manufacturers,�distributors,�suppliers,�retailers,�(and/or�others�who�make�products�available�to�the�public)�in�an�effort�to�hold�them�responsible�for�injuries�caused�by�such�products.

RR What is an unreasonably dangerous product?A�product�may�be�found�“unreasonably�dangerous”�due�to�a�physical�flaw,�a�design�defect,�or�where�a�manufacturer�either�fails�to�adequately�warn�of�the�product’s�dangerousness�or�fails�to�instruct�on�the�proper�use�of�the�product.�If�the�product�is�an�unreasonably�dangerous�one,�and�the�condition�existed�at�the�time�the�product�left�the�manufacturer’s�control,�then�the�manufacturer�may�be�liable�for�personal�injuries�to�the�users.�

RR What is the duty to warn? A�manufacturer�has�a�duty�to�warn�the�average�consumer�of�any�dangers�associated�with�the�use�of�the�product.�

RR What is the “Open and Obvious” Defense? A�manufacturer�may�defend�a�case�by�using�the�“open�and�obvious”��defense,�arguing�that�there�is�no�duty�to�warn�consumers�of�dangers�associated�with�the�product�which�are�apparent�or�in�other�words,�“open�and�obvious.”

123

CA

SE:

16

iSSue Before THe courTWhether the trampoline was unreasonably dangerous at the time that it left the manufacturing plant, and whether the Defendant manufacturer had a duty to warn the Plaintiff of the risks involved in using the trampoline.

THe facTS


Over 90,000 children

are taken to the

hospital every year for

trampoline injuries.

In May 1997, the Plaintiff , Kathleen Sollami, then 15 years old, injured herself while jumping on a large, recreational trampoline lo-cated in her neighbor, Lawrence Eaton’s yard. Defendant, Icon Health and Fitness, Inc., doing business as Jumpking, manufactured the trampoline. Because Kathleen Sollami was a minor, her father, Phil-lip Sollami, sued Jumpking, among others, on Kathleen’s behalf for money damages resulting from her injuries.

Kathleen, a friend of Lawrence Eaton’s daughter, went to the Eatons’ house on the day in question to see her friend. Th e girls called two boys and another girl to come over and jump on the trampoline.

Aft er a while, all fi ve teenagers were jumping at the same time on the Eatons’ trampoline, which was located in the side yard. Th e trampoline was described as a “Backyard Round 14’ Diameter Tram-poline.” Neither Lawrence Eaton nor his wife was home at the time.

Th e group decided to do “rocket jumps,” a game where one jump-er is propelled higher than the other jumpers. Completing a rocket jump requires three or four persons to jump simultaneously on the perimeter of the trampoline mat while one person jumps to the center and is thereby propelled higher than the other jumpers.

Aft er watching one of her friends successfully complete a “rocket jump,” Kathleen took a turn at being the “rocket.” As Kathleen landed on the trampoline mat, she felt her knee pop.

Lawrence Eaton purchased the trampoline in 1992 and assembled it according to written instructions provided by Jumpking. Pursuant to those instructions, Eaton affi xed decals to the trampoline mat and frame warning that the trampoline should be used only by properly trained participants with direct supervision of a qualifi ed gymnas-tics instructor. Th e decal warnings did not include any limit as to the

124

CA

SE:

16


Sources


Sollami�v.�Eaton,�201�Ill.2d�1,�772�N.E.2d�215�(Ill�2002).Supreme�Court�of�IllinoisJune�6,�2002.�Opinion�written�by�the�Honorable�Justice�Rita�B.�Garman.

Many homeowners insurance policies contain what is called a “Trampoline Exclusion” clause. Pursuant to this clause, the insurance company will cover

liability for injuries that occurred to others while on your property, but they will not cover trampoline related

injuries.

The most common trampoline injuries are caused by colliding with another person, doing stunts, falling off of the trampoline, and falling on the trampoline springs or frame.

number of persons allowed to jump at the same time.

Eaton also attached an instruction placard to the frame with a wire tie. During the spring prior to Kathleen’s injury, Eaton found the placard on the ground and did not reattach it.

Th e Plaintiff alleged that the trampoline contained one or more defects which made it not reasonably safe for its intended use. Further, the Plaintiff claimed that Jumpking was negligent because the manu-facturer:

1) Permitted the trampoline, which was a training device, to be used as a backyard toy.

2) Failed to warn persons, including Kathleen, that only one person was permitted on the trampoline at a time.

3) Failed to verify that when the trampoline was sold, its instruc-tions as to its use were attached to the trampoline and could not be removed.

4) Failed to adequately warn persons, including Kathleen, that the trampoline could be used only with the direct supervision of a qualifi ed gymnastics instructor.

Jumpking argued that the danger of jumping on a trampoline was “open and obvious” to a 15-year-old girl, and she should have ap-preciated the danger of rocket jumping on a recreational trampoline. Th us, Jumpking had no duty to warn her regardless of any additional knowledge on the part of Jumpking.

NAME DATE

125

CA

SE:

16

Review the Case

After�reading�Sollami�v.�Eaton�,�answer�the�following:




3. Is�the�Plaintiff�seeking�money�for�her�injuries?�

4. What�is�the�name�of�the�manufacturing�company�that�produced�the�trampoline?�

5. What�was�the�model�of�trampoline?�

6. When�was�the�trampoline�purchased�by�the�homeowner?�

7. Who�assembled�the�trampoline?�

8. What�year�did�the�injury�occur?�

9. How�old�was�Sollami�when�she�was�injured?�

NAME DATE

126


CA

SE:

16


10. What�was�the�injury�that�Sollami�suffered?�

11. What�is�a�“rocket�jump,”�and�how�is�the�game�played?�

12. Did�Jumpking�provide�any�warnings�on�the�trampoline�regarding�the�use�of�the�product?�If�so,�explain�the�warnings�and�their�location.

13. Were�instructions�available�to�Eaton�on�the�use�of�the�trampoline?�Were�the�instructions�available�to�Kathleen�on�the�date�of�the�incident?�

14. Were�Eaton’s�parents�home�when�the�accident�occurred?�

15. BONUS:�In�your�opinion,�what�could�Jumpking�have�done�to�avoid�the�accident?

NAME DATE

127

Make the Argument


ASE

: 1

6


1. Did�Jumpking�produce�the�product�that�the�Plaintiff�was�injured�on?

2. Did�Kathleen’s�injury�occur�as�a�result�of�using�the�trampoline?�Explain.

3. Did�the�Defendant,�Jumpking,�warn�the�Plaintiff�of�the�dangerousness�of�using�the�product?�

4. Was�the�danger�of�using�the�trampoline�to�perform�“rocket�jumps”�open�and�obvious�to�the�average�consumer�so�that�Sollami,�a�15-year-old�girl,�should�have�foreseen�that�she�could�get�hurt?�Explain.

NAME DATE

128


You Be the Judge

Having�reviewed�the�case�and�considered�the�questions�involved,�decide�the�case�for�either�the�plaintiff�or�the�defendant:�C

ASE

: 1

6


Lawrence Eaton and JumpkingKathleen M. Sollami

129

Trademark Law

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Case 17: Battle of the Bags

Trademark Infringement

oBJecTiVeTo understand the basics of trademark infringement and the concept of injunctions.

ToPicS coVeredRR Trademark

RR Trademark Infringement

RR Injunction

Malletier v. Dooney & Bourke, Inc.

130

CA

SE:

17

Background•� Louis�Vuitton�Malletier�(Louis�Vuitton)�is�an�old,�well-established�French�design�company.�It�is�

the�maker�of�a�famous,�very�expensive�handbag�with�its�trademark�“toile”�monogram�covering�the�bag.�The�handbag�in�question�had�a�multicolored�“toile”�mark�and�was�part�of�its�signature�design�series.

•� Dooney�&�Bourke,�a�relatively�new�company,�created�a�new�teen-based�handbag�called�the�“It�Bag”�which�also�had�a�multicolored�trademark�“DB”�monogram.�The�Dooney�&�Bourke�bags�were�sold�at�a�much�lower�price.�

•� Louis�Vuitton�asked�the�court�for�an�injunction�to�restrain�Dooney�&�Bourke�from�producing�its�handbag�and�claimed�trademark�infringement.�Louis�Vuitton�argued�that�Dooney�&�Bourke�was�trying�to�capitalize�on�its�well-known�brand�and�its�multimillion-dollar�advertising�campaign�to�confuse�potential�consumers�with�similar�less�expensive�products.

Before you Begin


Malletier v. Dooney & Bourke, Inc.Trademark Infringement

RR What is a trademark? A�trademark�is�a�unique�word,�phrase,�or�symbol�that�distinguishes�a�company.�The�essential�function�of�a�trademark�is�to�exclusively�identify�the�commercial�source�or�origin�of�products—in�other�words,�the�manufacturer—like�the�Nike�“swoosh”�symbol.

RR What is trademark infringement?Trademark�infringement�occurs�when�a�party�uses�another’s�trademark�without�the�authorization�of�the�owner.�If�the�respective�marks�or�products�are�not�identical,�the�courts�will�assess�the�similarity�based�upon�the�“likelihood�of�confusion”�by�consumers�as�to�the�origination�(owner)�of�the�products�or�services.�

RR What is an injunction?An�injunction�is�a�court�order�that�requires�a�party�to�do�or�refrain�from�doing�a�certain�act�or�acts.�

131

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iSSue Before THe courTWhether Dooney & Bourke’s use of the “It Bag” is likely to cause consumer confusion with the Louis Vuitton multi-colored toile handbag so that customers will purchase the much lower priced Dooney & Bourke handbag instead of the very expensive Louis Vuitton handbag.

THe facTS


The Plaintiff in a

trademark case has the

burden of proving that

the Defendant‛s use of

a mark has created the

likelihood of confusion.

Louis Vuitton, a French design fi rm, began selling trunks and accessories in the United States in 1893. In 1896, the company created the “toile monogram,” featuring entwined LV initials with three mo-tifs: a curved diamond with a four-point star inset, its negative, and a circle with a four-leafed fl ower inset. Vuitton registered these trade-marks with the United States Patent and Trademark Offi ce. Having been used exclusively and continuously since 1896, these trademarks are now solely owned by Louis Vuitton.

In October 2002, Louis Vuitton launched a series of handbags featuring “new signature toile designs” created by fashion designer Marc Jacobs and Japanese artist Takashi Murakami. Th e new bags (Murakami handbags) updated the fashion house’s famous toile marks. Th e fresh design—coined the Louis Vuitton monogram multi-color pattern (multicolor mark)—was a modifi ed version of the “toile marks” printed in 33 bright colors (Murakami colors) on a white or black background.

In 2003-2004, Louis Vuitton spent over $4 million in advertising and promoting the multicolor mark and associated handbags. In ad-dition, the new design garnered signifi cant media attention. CBS’s Th e Early Show and publications ranging from USA Today and � e New York Times to People, Women’s Wear Daily, Marie Claire, and Vogue all featured the Murakami handbags. Many celebrities, including Jen-nifer Lopez, Reese Witherspoon, and Madonna, were photographed with the bags in tow.

As of late 2006, Louis Vitton had sold nearly 186,600 products and accessories with the multicolor mark design in the United States priced at $150 to more than $4,000 each, amounting to over $186 mil-lion in sales.

132

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Sources


Malletier�v.�Dooney�&�Bourke,�Inc.,�525�F.Supp.2d�558�(S.D.N.Y.�2007).United�States�District�Court,�Southern�District�of�New�YorkDecember�13,�2007.�Opinion�written�by�the�Honorable�Justice�Shira�A.�Scheindlin.

Intellectual property refers to the creations of the mind: inventions, symbols, names, images,

and designs used in commerce. There are three types of

intellectual property: trademarks, patents, and

copyrights.

The United States Patent and Trademark Offi ce (USPTO) is the Federal agency for granting U.S. patents and registering trademarks.

Defendant Dooney & Bourke, an American handbag designer and manufacturer, was founded in 1975. Since 2001, as part of Dooney & Bourke’s “Signature” and “Mini Signature” lines, the company sold bags featuring the DB monogram of interlocking initials, a registered trademark, in a repeated pattern. Th e “It Bag” products sold from $50 to $400. As of late 2006, more than 1.76 million products had sold with sales fi gures over $100 million.

In the Fall of 2002, Peter Dooney, president and chief designer of Dooney & Bourke, began collaborating with Teen Vogue magazine on a joint promotional project. Th e magazine selected a group of teen-age girls to travel with Dooney to Italy in March 2003 to help develop Dooney & Bourke handbags appealing to teenagers. Th e group, dubbed the “It Team,” was photographed looking into Vuitton’s store window display featuring handbags with the multicolor marks on a white background. Another photograph taken during the trip showed the group in a factory viewing a swatch of fabric with LouisVuitton’s multicolor mark on a black background.

A year later, in late July 2003, Dooney & Bourke introduced the “It Bag” collection featuring the DB monogram in an array of bright col-ors set against a white background. Th e intertwined initials, with the “D” and the “B” displayed in contrasting colors, were printed forward and backward in repeating diagonal rows. Th e handbags also sported a multicolor zipper, with fabric similar to that used by Vuitton, and a small pink enamel heart bearing the legend “Dooney & Bourke” on a tag hanging from the handle. In October 2003, Dooney & Bourke began selling the handbags with a black background. Th e “It Bag” collection now included a variety of colored backgrounds (periwinkle, bubble gum, and grape) in addition to black and white.

Louis Vuitton asked the court to stop Dooney & Bourke’s sale of its new bags arguing that the bags were so similar that they were likely to cause “consumer confusion” with potential purchasers of its handbags.

NAME DATE

133

CA

SE:

17

Review the Case

After�reading�Malletier�v.�Dooney�&�Bourke,�Inc.,�answer�the�following:




3. Is�the�Plaintiff�seeking�money�damages�in�this�case?�If�not,�what�is�Louis�Vuitton�asking�the�court�to�do?�

4. What�year�did�Louis�Vuitton�begin�doing�business�in�the�United�States?�

5. What�is�the�“toile”�mark?

6. What�year�did�Louis�Vuitton�create�an�updated�version�of�the�“toile”�mark?�How�was�it�modified�and�by�whom?

7. How�much�did�Louis�Vuitton�spend�to�advertise�the�new�multicolor�design?�

8. How�much�did�Louis�Vuitton�earn�from�the�sale�of�the�new�multicolor�handbags�and�accessories?�

9. In�2002,�the�president�of�Dooney�&�Bourke�collaborated�with�Teen Vogue,�a�fashion�magazine�for�teenagers.�What�was�the�purpose�of�the�collaboration?�

NAME DATE

134


CA

SE:

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10. Teen Vogue�selected�a�group�of�teenage�girls�to�travel�with�Dooney�to�Italy.�

a. What�was�the�name�of�the�team?

b. What�was�the�month�and�year�they�traveled?�

c. Where�was�the�“It�Team”�photographed?�

11. What�was�the�name�of�the�new�Dooney�&�Bourke�handbag?

12. When�was�the�“It�Bag”�collection�introduced?�

13. Describe�the�features�of�the�Dooney�&�Bourke�“It�Bag.”

14. What�was�the�price�range�of�the�Dooney�&�Bourke�“It�Bag”�and�its�products?

15. How�much�did�Dooney�&�Bourke�earn�from�the�sale�of�its�“It�Bag”�and�related�products?

NAME DATE

135

Make the Argument


CA

SE:

17


1. Is�the�Louis�Vuitton�multicolored�toile�bag�unique�and�inherently�distinctive�to�its�company?�Explain.

2. Is�there�a�likelihood�that�the�general�public�would�be�confused�between�the�Louis�Vuitton�multicolored�bags�and�the�Dooney�&�Bourke�“It-Bag”�so�as�to�confuse�which�companies�own�each�bag?�Explain.

3. Are�the�two�trademarks�sufficiently�distinct�from�each�other�so�that�consumers�understand�the�difference�and�can�distinguish�between�the�two�trademarks�and�therefore�the�two�companies?�Explain.

NAME DATE

136


You Be the Judge


CA

SE:

17


Dooney & Bourke, Inc.Louis Vuitton Malletier

137

Trademark Law

CA

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Trademark Infringement and Trade Dress Protections

oBJecTiVeTo understand the basics of trademark infringement in the area of “trade dress” between two high profile competitors in business.

ToPicS coVeredRR Intentional Tort

RR Trademark


RR Trade Dress

Abercrombie & Fitch Stores, Inc. v. American Eagle Outfitters

Abercrombie & Fitch

Case 18: Catalog Fight

138

CA

SE:

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Background•� The�following�case�focuses�on�two�very�well-known�clothiers:�Abercrombie�&�Fitch�and�American�

Eagle.�Abercrombie�&�Fitch�is�an�old�established�company�stemming�back�over�100�years,�and�American�Eagle�is�a�relatively�new�company�that�began�doing�business�in�1994.�

•� Abercrombie�&�Fitch�claimed�that�American�Eagle�intentionally�infringed�on�its�trademark�by�copying,�among�other�things,�its�designs�of�certain�articles�of�clothing,�in-store�advertising�displays,�and�its�catalog.�We�will�be�focusing�on�the�catalog�portion�of�this�case—which�will�be�known�as�trade�dress.

•� Abercrombie�&�Fitch�believed�that�American�Eagle�was�trying�to�take�advantage�of�its�long-standing�name�and�advertising�dollars�to�confuse�consumers�into�purchasing�American�Eagle�products�over�Abercrombie�&�Fitch�products.

Before you Begin


Abercrombie & Fitch Stores, Inc. v. American Eagle OutfittersTrademark Infringement and Trade Dress Protections

RR What is an intentional tort?An�intentional�tort�describes�a�civil�action�resulting�from�an�intentional�and�wrongful�act�on�the�part�of�the�Defendant�against�another,�such�as�intentionally�stealing�another�person’s�or�company’s�trademark.

RR What is a trademark? A�trademark�is�a�unique�word,�phrase,�or�symbol�that�distinguishes�a�company.�The�essential�function�of�a�trademark�is�to�exclusively�identify�the�commercial�source�or�origin�of�products—in�other�words,�the�manufacturer—like�the�Nike�“swoosh”�symbol.

RR What is trademark infringement?Trademark�infringement�occurs�when�a�party�uses�another’s�trademark�without�the�authorization�of�the�owner.�If�the�respective�marks�or�products�are�not�identical,�the�courts�will�assess�the�similarity�based�upon�the�“likelihood�of�confusion”�by�consumers�as�to�the�origination�(owner)�of�the�products�or�services.

RR What is trade dress?Trade�dress�refers�to�characteristics�of�the�visual�appearance�of�a�product�or�its�packaging�that�may�be�registered�and�protected�from�being�used�by�competitors�in�the�manner�of�a�trademark.�These�characteristics�involve�the�total�image�of�a�product�and�may�include�features�such�as�size,�shape,�color�combinations,�textures,�graphics,�or�even�a�particular�sales�technique.

139

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iSSue Before THe courTWhether the two catalogs by major clothing companies are sufficiently distinct from each other so that a reasonably prudent consumer can differentiate between the two companies depicted in each catalog?

THe facTS


Revenue for

Abercrombie &

Fitch in 2009 was

$3,540,000,000.

Th is case pits an old hand against the new kid on the block: Aber-crombie & Fitch sued American Eagle claiming that American Eagle infringed on what Abercrombie & Fitch describes as its unregistered “trade dress.”

Abercrombie & Fitch was founded in 1892 and is a retailer of ca-sual clothing and accessories appealing to college-age consumers. In 1988, Th e Limited, Inc. acquired Abercrombie & Fitch and rejuvenat-ed the brand, selling billions of dollars in merchandise and spending over $26 million on marketing, including advertisements in national and fashion magazines. Abercrombie & Fitch products are sold na-tionwide through 157 retail stores and a mail order catalog under the registered trademarks and service marks ABERCROMBIE & FITCH, A & F CO, A & F, and variations thereof.

American Eagle Outfi tters sells essentially the same variety of clothing and products in its 300 stores nationwide under the trade-marks and service marks AMERICAN EAGLE OUTFITTERS and AE, generating approximately $300 million in annual sales. Ameri-can Eagle has been a retailer since at least 1994, although many of its products describe the company’s vintage as 1977.

Abercrombie & Fitch accused American Eagle of selling similar products and marketing them in a similar way, which confused the consumer as to which products belonged to each company.

Specifi cally, Abercrombie & Fitch asserted that American Eagle copied its premiere issue of � e Quarterly, an Abercrombie & Fitch catalog that advertises Abercrombie & Fitch products in a way to depict a certain lifestyle. First, Abercrombie & Fitch alleged that American Eagle’s catalog featured the same products, colors, designs, fabrics, and names (i.e., “vintage” sweatshirts and “fi eld jerseys”) as � e Quarterly.

Second, Abercrombie & Fitch claimed that the paper, page layouts, lifestyle editorial content, manner of displaying merchandise, and typeface in American Eagle’s catalog were identical or confusingly

140

CA

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18


Sources


Abercrombie�&�Fitch�Stores,�Inc.�v.�American�Eagle�Outfi�tters,�Inc.,�280�F.3d�619�(6th�Cir.�2002).United�States�Court�of�Appeals,�Sixth�CircuitFebruary�15,�2002.�Opinion�written�by�the�Honorable�Justice�Danny�Julian�Boggs.

Revenue for American Eagle Outfi tters in 2009 was $2,990,000,000.

similar to � e Quarterly.

To support its contention, Abercrombie & Fitch introduced evidence of an American Eagle directive to its marketing executives that stated: “Attention store managers - we need you to tell us what Abercrombie & Fitch is marketing!!!” American Eagle managers were instructed to inspect the windows, lead table, and signs in Abercrom-bie & Fitch stores every week and report on Abercrombie & Fitch’s presentation.

When comparing � e Quarterly with American Eagle’s catalogs of the same year, the following facts were revealed:

1) FORMAT: Like Abercrombie & Fitch, American Eagle used the clothesline (or cutout) format to display its goods—the garments appeared on the page as if hanging from a clothes-line, not on a model.

2) DISPLAY: American Eagle used colorbars and design bars un-derneath almost all its garments, while Abercrombie & Fitch did so only occasionally.

3) PHOTOGRAPHS: Th roughout � e Quarterly, Abercrombie & Fitch made extensive use of grainy photographs depicting apparently in-shape college-aged models in oft en romantic poses. American Eagle’s photographs were clear and presented a “wholesome image,” with models of various ages in non-suggestive, oft en family-oriented situations.

4) ARTICLE CONTENT: American Eagle concentrated on fam-ily subjects with slogans such as “Aft er all the gift s are opened and the decorations packed away, there is really one thing that lasts through the holidays—the spirit of giving.” Abercrombie & Fitch articles included titles like “I’ll have a brew Christmas,” “7 ways to survive a holiday gathering with your relatives,” “Drinking 101” which included recipes and a device for playing drinking games.

5) TRADEMARK: Abercrombie & Fitch displayed its trade-marks throughout � e Quarterly on nearly every page. Th e American Eagle catalog also prominently displayed their marks. While both companies liberally using their trade-marks throughout their catalogs was a similarity, the court found that it was also a diff erence, because each used its own trademark and trademarks as an indication of a product’s origin.

NAME DATE

141

CA

SE:

18

Review the Case

After�reading�Abercrombie�&�Fitch�Stores,�Inc.�v.�American�Eagle�Outfitters,�answer�the�following:


1. �Identify�the�Plaintiff(s)�in�the�case.�


3. �What�was�one�of�Abercrombie�&�Fitch’s�main�claims�against�American�Eagle?�

4. When�did�Abercrombie�&�Fitch�start�its�business?�

5. When�did�American�Eagle�start�its�business?�

6. What�specific�actions�by�American�Eagle�does�Abercrombie�&�Fitch�argue�violate�its�trademark�rights?�

7. �What�did�American�Eagle�instruct�its�employees�to�do�regarding�the�Abercrombie�&�Fitch�brand?�

NAME DATE

142


CA

SE:

18


8. �What�is�the�“clothesline�method”�of�displaying�clothes�in�a�catalog?�Did�American�Eagle�and/or�Abercrombie�&�Fitch�use�this�method?�

9. �Each�company�used�the�photographs�to�portray�a�certain�image�of�its�products.�Explain�the�content�of�the�photographs�for�Abercrombie�&�Fitch�and�American�Eagle�and�the�message�each�portrayed�to�consumers.�Are�the�messages�different?�

10. List�the�“editorial�comments”�in�the�two�magazines.�Compare�the�way�lifestyle�is�portrayed�in�the�two�magazines.�

11. Does�the�Abercrombie�&�Fitch�logo�appear�in�its�catalog?�Does�American�Eagle�use�its�logo�in�its�catalog?�Does�the�court�regard�the�printing�of�the�logos�by�American�Eagle�as�a�similarity�between�the�two�catalogs�or�a�difference?

NAME DATE

143

Make the Argument


CA

SE:

18


1. Can�the�Abercrombie�&�Fitch�catalog�and�its�design�within�the�catalog�be�considered�“trade�dress”�as�defined�herein?�Explain.

2. Is�the�catalog�sufficiently�distinct�from�the�Abercrombie�&�Fitch�catalog�in�its�design?

3. Is�the�American�Eagle�catalog�so�similar�to�Abercrombie�&�Fitch’s,�The Quarterly,�that�the�catalogs�will�cause�confusion�among�members�of�the�general�public�as�to�which�products�belong�to�which�company?�In�other�words,�are�the�catalogs�confusingly�similar?�Explain.

NAME DATE

144


You Be the Judge


CA

SE:

18


American Eagle OutfittersAbercrombie & Fitch Stores, Inc.

145

Trademark Law

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Lacoste Alligator, S.A. v. Bluestein’s Men’s Wear, Inc.

Trademark Infringement and Trademark Licenses

oBJecTiVeTo understand the basics of trademark infringement and the concept of exclusive licensee of a trademark.

ToPicS coVeredRR Intentional Tort

RR Trademark


RR Exclusive Licensee of a Trademark

Case 19: The

Alligator Bites Back!

146

CA

SE:

19

Background•� The�Plaintiffs,�Lacoste�Alligator,�S.A.�and�General�Mills,�Inc.�are�the�trademark�owner�and�its�

exclusive�licensee,�respectively.�Together,�they�marketed�clothing�bearing�the�registered�trademarks,�Lacoste�and�the�Izod�Alligator,�which�were�well-known�due�to�considerable�advertising�and�promotion.�These�trademarks�and�logos�were�copied�without�authorization�and�sold�to�several�stores�and�individuals,�including�the�Defendant,�Elvin�Floyd,�doing�business�at�Anderson�Jockey�Lot�Flea�Market.�Floyd�then�sewed�the�trademarks/logos�on�garments�and�sold�the�garments�at�the�public�flea�market.�

•� The�Defendant�purchased�10,000�Alligator�logos�from�a�non-authorized�vendor�and�sewed�them�onto�clothing�for�resale,�without�the�knowledge�or�consent�of�Lacoste�or�General�Mills.

•� The�Plaintiffs�sought�a�permanent�injunction�against�Elvin�Floyd�and�the�other�Defendants�asking�the�court�to�stop�the�Defendants�from�any�further�selling�of�the�Lacoste�and�Izod�Alligator�label.

Before you Begin


Lacoste Alligator, S.A. v. Bluestein’s Men’s Wear, Inc.Trademark Infringement and Trademark Licenses

RR What is an intentional tort?An�intentional�tort�describes�a�civil�wrong�resulting�from�an�intentional�and�wrongful�act�on�the�part�of�the�defendant�against�another,�such�as�intentionally�stealing�another�person’s�or�company’s�trademark.

RR What is a trademark?A�trademark�is�a�unique�word,�phrase,�or�symbol�that�distinguishes�a�company.�The�essential�function�of�a�trademark�is�to�exclusively�identify�the�commercial�source�or�origin�of�products—in�other�words�the�manufacturer—like�the�Nike�“swoosh”�symbol�or,�in�this�case�the�Lacoste�Izod�Alligator.

RR What is trademark infringement?Trademark�infringement�occurs�when�a�party�uses�another’s�trademark�without�the�authorization�of�the�owner.�If�the�respective�trademarks�or�products�are�not�identical,�the�courts�will�assess�the�similarity�based�upon�the�“likelihood�of�confusion”�by�consumers�as�to�the�origination�(owner)�of�the�products�or�services.

RR What is an exclusive licensee of a trademark?An�exclusive�licensee�of�a�trademark�is�a�person�or�company�who�has�the�sole�authorization�from�an�owner�of�a�trademark�to�reproduce�and�sell�the�trademark�item.

147

CA

SE:

19

iSSue Before THe courTWhether a likelihood of confusion could exist in the minds of the general public between the actual Izod alligator logo and the counterfeit logos sewn on non-Izod apparel.

THe facTS


A counterfeit logo is an

imitation, usually one that

is made with the intent

of fraudulently passing it

off as the genuine logo.

Counterfeit logos are

often placed on products

with the intent to take

advantage of the superior

value of the imitated

product.

Th e Plaintiff , Lacoste Alligator, S.A., is the record owner of sev-eral trademarks for Lacoste and the famous Izod Alligator emblem. An additional Plaintiff , General Mills, Inc., is the exclusive United States licensee of the above trademarks, as well as the record owner of several United States Trademark Registrations for the Izod Alligator trademark for various types of apparel.

Th e Plaintiff s’ trademarks have been advertised and promoted throughout the United States beginning as early as 1950. Th e Plain-tiff s have expended considerable eff ort and money in the advertising and promotion of their apparel bearing these trademarks, which has resulted in their widespread popularity and public acceptance. Th e Plaintiff s’ sales in the United States since 1964 exceeded one billion dollars, with approximately half of this amount generated in the two years preceding this case. Th is case is an attempt by Lacoste to stop several Defendants in South Carolina from manufacturing, selling, and distributing apparel bearing counterfeits or imitations of the Plaintiff s’ trademarks.

Elvin Floyd, one of the Defendants, admitted that he purchased 10,000 Izod Alligator logos with the belief that they were originals of the Plaintiff s’ trademarks. Floyd admitted that he personally sewed these logos on garments which he had purchased to resell, none being purchased from the Plaintiff s and none originally bearing the Lacoste or Izod Alligator trademarks. Floyd also admitted that he sold gar-ments bearing the Izod Alligator logo at booths he operated at the Anderson Jockey Lot Flea Market in Anderson, South Carolina.

At trial, Mr. Floyd testifi ed as follows:

Q. Where did you buy the alligator logos?

A. I bought them at an Anderson Flea Market.

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Sources


Lacoste�Alligator,�S.A.�v.�Bluestein’s�Men’s�Wear,�Inc.,�569�F.Supp.491�(D.C.S.C.�1983).United�States�District�Court,�D.�South�Carolina,�Columbia�DivisionJuly�28,�1983.�Opinion�written�by�the�Honorable�Justice�Clyde�H.�Hamilton.

Counterfeit apparel and accessories accounted for over 50 percent of the counterfeit goods seized by U.S. Customs and Border Control.

Q. From whom?

A. From someone that came by with alligators for sale. He told me they were genuine Izod Alligators.

Q. Th at’s the Anderson Jockey Lot Flea Market?

A. Yes. He approached me at the Flea Market and said, “I’ve got the alligators for sale. Would you like to buy them?” And I said, “I’m interested, are they real alligators?” He said, “Yes, they’re genuine alligators. Th ey came from a factory that makes Izod Alligator merchandise; the alligators are real.” And I said, “Well, if you’ll guarantee that.” He said, “You got my word for it.” I said, “What do you want for them?” And he said, “Well, I’ve got 10,000; if you’ll take them all, I’ll give them to you for 50 cents.” So I gave him $5,000; he gave me his real alligators.

Q. How were these alligator logos packaged when you bought them?

A. Jeepers. In cellophane.

Q. In a bag?

A. Yes.

Q. How did you put the logos on the garments?

A. I sewed the logos on the garments.

Q. How many people did you have working to sew them on?

A. As far as I know, I’ve done it.

Q. You personally?

A. Yes.

Q. By hand or with a machine?

A. Machine.

Th e Plaintiff s claimed that the willful and deliberate attempts of the Defendant to identify with the Plaintiff s’ trademark and good-will and the likelihood of public confusion clearly constituted unfair competition.

NAME DATE

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Review the Case

After�reading�Lacoste�Alligator,�S.A.�v.�Bluestein’s�Men’s�Wear,�Inc.�answer�the�following:



2. Identify�one�of�the�Defendants�in�the�case.�

3. Are�Lacoste�and�General�Mills�seeking�money�for�their�damages?�What�else�did�the�Plaintiffs�want�the�court�to�do?�

4. When�did�Lacoste�Alligator�start�selling�its�product�in�the�United�States?�

5. How�much�money�has�Lacoste�and�General�Mills�earned�from�the�sale�of�items�bearing�the�alligator�logo?�

6. Where�did�Elvin�Floyd�buy�the�alligators?�

7. Who�did�Floyd�buy�the�alligators�from?�

8. How�many�alligator�logos�did�he�buy,�and�how�much�did�it�cost�him?�

NAME DATE

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9. What�did�he�do�with�all�the�logos?�

10. Did�Elvin�Floyd�have�permission�to�sew�the�alligator�logos�onto�clothing�and�resell�the�clothing�as�authentic�Lacoste�products?�

NAME DATE

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1. Did�Lacoste�Alligator,�S.A.�and�General�Mills,�Inc.,�as�owners�of�the�trademarks�Izod�and�the�Izod�Alligator,�have�the�exclusive�right�to�manufacture�and�sell�products�with�those�emblems?�Explain.

2. Did�Elvin�Floyd�have�permission�from�Lacoste�Alligator,�S.A.�and�General�Mills,�Inc.,�to�purchase�and�reproduce�products�bearing�the�trademarks�of�Izod�and�the�Izod�Alligator?�

3. Was�there�a�likelihood�that�the�general�public�would�be�confused�by�products�sold�with�the�Lacoste�Alligator�logos�and�products�sold�with�the�Floyd�Alligator�logos?��Explain.

4. Did�Elvin�Floyd�willfully�and�intentionally�attempt�to�identify�his�products�as�genuine�Lacoste�products?�Explain.

NAME DATE

152


You Be the Judge


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Elvin FloydLacoste Alligator, S.A.

153

Family and Probate Law

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Is a Will “Probate Property”?

oBJecTiVeTo understand what “probate property” is for purposes of distribution under a decedent’s Last Will and Testament.

ToPicS coVeredRR Last Will & Testament

RR Probate

RR Executor

RR Probate Property/Estate

RR Public Document

American Heart Association v. County of Greenville

Case 20:To Will or

Not to Will

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Background•� Shoeless�Joe�Jackson,�one�of�the�greatest�baseball�players�in�the�early�1900s,�was�involved�in�the�

infamous�“Black�Sox”�scandal�when�he,�along�with�seven�other�players,�was�accused�of�“throwing”�the�1919�World�Series�as�they�allegedly�accepted�money�to�intentionally�lose�the�series.

•� Shoeless�Joe�died�in�1951�from�a�heart�attack,�and�in�his�Last�Will�and�Testament,�he�left�all�of�his�property�to�his�wife,�Katie,�who�upon�her�death,�in�turn,�left�all�of�her�possessions�to�two�charities:�the�American�Heart�Association�and�the�American�Cancer�Society.

•� The�charities�are�suing�the�County�of�Greenville�to�release�Jackson’s�Will�arguing�that�the�Will�was�the�personal�property�of�Katie�Jackson�when�she�died,�and�as�the�beneficiaries�of�that�Will,�the�charities�should�take�possession�for�resale�to�the�highest�bidder.

•� The�County�of�Greenville�argues�that�once�Shoeless�Joe’s�Will�was�filed�in�the�probate�court,�it�became�a�public�document�that�was�not�the�personal�property�of�his�beneficiary.

Before you Begin


American Heart Association v. County of GreenvilleIs a Will “Probate Property”?

RR What is a Last Will & Testament?A�last�will�and�testament�is�a�legal�declaration�by�which�a�person�names�one�or�more�persons�to�manage�his�or�her�estate,�called�an�executor,�and�provides�for�the�transfer�of�his�or�her�property�at�death�to�his�beneficiaries.

RR What is Probate?Probate�is�the�process�of�proving�the�validity�of�a�will�and�thereafter�administering�the�estate�of�the�decedent�(dead�person)�according�to�the�terms�of�the�will.�The�first�step�is�to�file�the�purported�will�with�the�appropriate�court�located�in�the�city/town�or�county�where�the�deceased�person�lived.�Accompanying�the�will,�the�attorney�will�file�a�petition�to�have�the�court�approve�the�will�and�appoint�the�executor�named�in�the�will.�If�the�court�determines�the�will�is�valid,�the�court�then�“admits”�the�will�to�probate�and�follows�its�instructions.

RR What is an Executor?An�executor�is�the�person�named�by�the�decedent�who�is�in�charge�of�gathering�the�decedent’s�personal�and�real�property�(probate�property),�paying�off�any�debts�of�the�estate,�and�distributing�the�remaining�money�to�beneficiaries�of�the�will.

RR What is Probate Property/Estate?Probate�property�or�probate�estate�includes,�with�certain�exceptions,�a�person’s�personal�and�real�property,�i.e.,�house�or�land�at�the�time�of�his�or�her�death.

RR What is a Public Document?A�public�document�includes�all�papers�or�other�documentary�materials,�regardless�of�physical�form�or�characteristics,�which�are�prepared,�owned,�used,�or�in�the�possession�of�a�public�body.

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iSSue Before THe courTWhether a person’s will is the personal property of the estate and is owned by the beneficiaries of the estate.

THe facTS


There can be substantial

costs involved in

probating an estate.

Although fees vary,

executor and attorney

fees range from 2 to 4

percent of the assets

subject to probate.

Baseball legend Shoeless Joe Jackson’s signature is among the most valuable in the world—so rare that the American Cancer Society and American Heart Association sued the County of Greenville and State of South Carolina for possession of his Last Will and Testament. At the time of this lawsuit in 1997, the charities, benefi ciaries of Jackson’s estate, hoped to auction it for more than $100,000.

Jackson was one of the greatest baseball players in the early 1900s with a .356 batting average. He was a controversial subject, however, because Jackson was expelled from baseball with seven Chicago White Sox teammates for allegedly accepting gamblers’ bribes and throwing the 1919 World Series. Th e scheme became known as the “Black Sox” scandal. Jackson could not be elected to the Baseball Hall of Fame because of his expulsion.

Although Jackson admitted to the team attorney to taking $5,000 of a $20,000 bribe, the facts surrounding the confession were considered controversial. Allegedly, to get Jackson to admit his role in the scandal, the team lawyer poured large amounts of whiskey down Jackson’s throat. Th e other seven players implicated in the scandal confi rmed that Jackson was never at any of the meetings. One player, Williams, said that they only mentioned Jackson’s name to give their plot more credibility. Jackson himself recanted his confession and swore innocence until the day of his death. Th e movies “Field of Dreams” and “Eight Men Out” helped elevate him to an American Legend.

Jackson died in 1951 in Greenville. Upon his death his Last Will and Testament was fi led in the Greenville County Probate Court. His wife, Katie, upon her death in 1959, left the Jackson probate estate to two charities, the American Heart Association and the American Cancer Society, because Joe had died of heart failure and she suff ered from cancer. Th e value of the Will became a sensation when, in 1991,

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Sources


American�Heart�Association�v.�County�of�Greenville,�331�S.C.�498,�489�S.E.2d�921�(S.C.�1997).Supreme�Court�of�South�CarolinaSeptember�2,�1997.�Opinion�written�by�the�Honorable�Justice�Ernest�A.�Finney,�Jr.Shoeless Joe’s Will, Valuable Name On It Not For Sale, Court SaysSeptember�3,�1997.�Published�by�the�Charlotte�Observer.

401(k) plans, pensions, life insurance, and

property in trust are examples of non-probate

property.

Non-probate property can be distributed automatically to the deceased individual‛s benefi ciaries.

an attorney for one of the charities noticed a newspaper article about Jackson’s signature selling for $23,100 at a Sotheby’s auction—the second-highest amount ever paid for a signature not attached to a document. Only six Jackson signatures were known to exist, as Shoe-less Joe was illiterate and usually refused to sign baseballs for his fans.

Th e charities argued that Shoeless Joe Jackson’s Will was his wife’s personal property since individuals may, during their lifetime, own, possess, use, enjoy, and dispose of their Will anyway they see fi t and, upon death, the Will becomes part of one’s estate passing directly to the benefi ciaries. Th e County argued that the Will was a public docu-ment and was the property of the State of South Carolina. Th e County stated that the records retention policy of the State of South Carolina provided for the permanent retention of original documents from decedents’ estates.

Since the lawsuit was fi led, several people were interested in pay-ing more than $100,000 for the Will!

NAME DATE

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Review the Case

After�reading�American�Heart�Association�v.�County�of�Greenville,�answer�the�following:




3. Who�was�Shoeless�Joe�Jackson,�and�why�is�he�famous?�

4. Why�did�scholars�believe�Shoeless�Joe�may�have�been�innocent?�

5. Could�Shoeless�Joe�be�voted�into�the�Baseball�Hall�of�Fame?�

6. How�many�Shoeless�Joe�Jackson�signatures�were�known�to�exist?�

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7. What�is�the�reason�for�the�low�number�of�signatures?�

8. How�did�the�worth�of�the�Will�become�a�sensation,�and�what�was�the�estimated�worth�of�the�signed�Will?��

9. Explain�the�Plaintiffs’�arguments�that�Jackson’s�Will�was�incorrectly�retained�by�the�State�of�South�Carolina�and�should�have�been�returned�to�the�estate?�

10. Explain�the�County’s�arguments�that�Jackson’s�Will�was�correctly�in�the�possession�of�the�State�of�South�Carolina�and�was�not�part�of�the�estate.�

NAME DATE

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1. Was�Jackson’s�Last�Will�and�Testament�filed�in�probate�court�after�his�death?�Explain.��

2. Did�Shoeless�Joe�Jackson’s�wife�have�possession�of�the�Will�at�the�time�of�her�death�in�1959?

3. Is�the�Will�a�public�document?�Explain.

NAME DATE

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You Be the Judge


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County of GreenvilleAmerican Heart Association

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