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by: Mrs. Elfrieda Ratke


Mrs. Elfrieda Ratke
Texas State
GPA 3.63

J. Bible

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J. Bible
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This 32 page Class Notes was uploaded by Mrs. Elfrieda Ratke on Wednesday September 23, 2015. The Class Notes belongs to BLAW 2361 at Texas State University taught by J. Bible in Fall. Since its upload, it has received 15 views. For similar materials see /class/212756/blaw-2361-texas-state-university in Business Law at Texas State University.




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Date Created: 09/23/15
You own a burgerbeer joint in a dimly lit area on the outskirts of town One day two incidents occurred that resulted in negligence suits against you A customer Joe broke his leg when he slipped in a beer spill left on the floor when a customer jostled his mug while leaving Another customer Sam was mugged in the parking lot and suffered several broken bones The United Football League has a contract to buy uniforms from Smith that expires on 123111 In late 2011 Jones Co sent promotional literature advertising its equipment and several emails to UFL officials offering to meet with them to discuss a contract A meeting occurred in November 2011 and the UFL signed a contract to begin 2112 to buy uniforms from Jones For their 383911 anniversary Jon bought his wife a shiny new widget When she took it into her office and plugged it in it exploded resulting in burns After a hostile break up with Baker who you dated for six months you posted on Facebook Baker has the morals ofa pig A few days later Baker demands that you remove the comment You say you were angry when you posted it and did not think it would be taken seriously but you agree to remove it Under article 2 UCC some things are at the time ofsale covered by an implied warranty that they are fit for the usual purpose for which they will be used On four occasions Larry Lecherous Sally s supervisor put his arm around her shoulders Each time she asked him to stop Abel sued Baker and Charlie for negligence Defendants alleged contributory negligence At Wal Mart Jon stuck a hammer in his pocket and a security guard saw him do so Trying to get Joe to buy a widget you made certain claims about it In August you signed a 9 month lease with Shady Apartments that prohibits a sublease without the manager s consent When before signing it you discussed this with the manager Sue she said that this provision is never enforced so you signed On March 15 Jon age 30 and Sam s Landscape Co sign a paper stating that Sam s will mow Jon s yard once a week from April Novem her for 25 per week Jones and Smith represent clients in a lawsuit On May 1 Jones faxed Smith a 100000 settlement offer stating that it must be accepted by May 10 or it would be void On May 7 Smith faxed in reply We want 150000 Jon emailed Bob Will sell you my house for 450000 Offer accepted on my receipt of a certified letter from you in my office at 6800 West Gate Blvd The manager ofthe Smith amp Jones firm finds a YouTube video clip showingjob applicant Pete naked in a hot tub at a party with a marijuanajoint in his mouth Pete loses thisjob opportunity and sues the firm Scavenger Hunt Name Christine Malseed This is worth ten points for extra credit quiz 6 To receive credit each question must be answered completely and correctly You are allowed one miss with no penalty two misses will result in half credit and three or more mean no credit Answers must be typed on this form which is to be turned in at the start of class on Monday 1 Name of U S Supreme Court Justice who had the longest tenure on the Court William 0 Douglas 2 The name of a form of discrimination recognized under Title VII of the 1964 Civil Rights Act which involves employment policies that apply to all employees but have a signi cantly greater negative impact on certain employees based on their race gender religion sex or national origin and cannot be justi ed by business necessity Disparate Impact 3 Style and citation of U S Supreme Court decision that recognized that public school students have a limited right under the First Amendment to the Constitution to express themselves in school on issues of concern to them e g by wearing armbands to protest a war Tinker V Des Moines Independent Community School Dist 393 US 503 89 SCt 733 1969 4 Name of legal theory under which an individual who is hired for a job on an atwill basis but is dismissed before he starts work might be able to recover damages from the employer on the theory that the employer defaulted on a promise of employment on which the employee reasonably relied to his detriment Promissory Estoppel 5 Name of the order that the President of the United States and state governors can issue that affects government agencies entities that receive federal funding and entities that contract with the government Executive Order 6 The maximum amount of damages that a plaintiff can obtain in a suit brought in a small claims court in Texas 10000 7 Word that begins with c and means guardian protector or preserver Conservator 8 Style and citation of U S Supreme Court decision that announced the separate but equal principle stating that public facilities segregated by race are constitutionally permissible if they are qualitatively equal and that was later used to justify segregated public schools and style and citation of U S Supreme Court decision that rejected that principle Plessy V Ferguson 163 US 537 16 SCt 1138 Brown V Board of Ed of Topeka Shawnee County Kan 347 US 483 74 SCt 686 9 Latin term for a writ whose function is to release a person from unlawful imprisonment Habeas Corbus 10 Term used to describe a will that is written dated and signed by the testator himself Holographic 11 Name of federal law that overturned a U S Supreme Court decision holding that an employee who wants to sue her employer alleging that the fact that she receives less pay than men doing the same work is sex discrimination must complain to the EEOC within 180 days of receiving her first allegedly discriminatory paycheck Also style and citation of Supreme Court decision that the law overturned Fair Pay Act Ledbetter V Goodyear Tire amp Rubber C0 Inc 550 US 618 127 SCt 2162 12 Style and citation of U S Supreme Court decision holding that students in a public institution who face suspension must under the Due Process Clause of the 14 11 Amendment to the Constitution be given some form of notice of the reasons for the suspension and an opportunity for a hearing in which to defend against the charges Goss v Lopez 419 US 565 95 SCt 729 13 Name of individual who was both President of the United States and Chief Justice of the U S Supreme Court William Howard Taft l4 Names of the four archconservative Supreme Court Justices known as the Four Horsemen who voted to invalidate several federal laws enacted during the New Deal of the 1930 s Pierce Butler James McReynolds George Sutherland and Willis Van Devanter 15 7letter word or words that refers to laws that limit the types of business activities in which people can legally engage on Sundays Blue Law 16 7letter word that describes an article of personal property Chattel 17 Style and citation of state Supreme Court decision in which testimony about the concept of workplace bullying was permitted and plaintiff won an assault claim against a bullying co wor er Raess V Doescher 883 NE2d 790 18 Name of U S Supreme Court Justice who while practicing law won acclaim for his work in support of civil rights which included winning cases on behalf of AfricanAmerican plaintiffs who challenged the decision to exclude them from colleges or college classes because of their race Earl Warren 19 Names of the U S Supreme Court Justices who served on the Court as Associate Justices before being elevated to the position of Chief Justice John Rutledge interim Chief Edward White Charles Hughes Harlan Stone William Rehnquist 20 Term that describes the discretionary decision of the U S Supreme Court to hear a particular appeal from a lower court decision Of roughly 7000 appeals that come to the Court annually the Court decides to hear the appeal in about 100 cases Writ of Celtiorari 1 After several days of negotiations the National Association of Sports Of cials NASO sent Jon an email stating We are prepared to offer you 10000 for a series of instructional DVDs dealing with the aspects of football officiating that we have discussed This offer is open until noon on Friday March 13 The NASO President sent this email on Monday March 9 Is this a valid offer 0 Intent reasonable meaning of words and acts objective test 0 Preliminary negotiations 0 Price quotationsadvertisements o Agreements to agreeletters of intent Pennzoil v Texaco and Cochran v Norkunas case excerpt p 258 o Defmiteness 0 Communication to offeree or agent fiduciary duty of noti cation 2 Assume that on Wed March 11 Bob a friend of Jon s emails the NASO President I understand that you want a series of DVDs on football of ciating Iwill prepare 15 discs to be delivered no later than July 1 with the topics to be agreed on Total fee 9200 On receiving this the NASO President emails Jon We are revoking our offer of March 9 Jon replies Your offer stated that I have until noon on Friday to accept and I hereby do so Was Jon s acceptance effective or did NASO validly revoke their offer beforehand 0 Option contract 3 Assume that the NASO offer of March 9 stated We are offering you 10000 for a series of 15 instructional DVDs that deal with aspects of football officiating that you and we will agree on The fee will be 10000 5000 to be paid on your acceptance of this offer and the remainder to be paid when you deliver suitable discs to us The discs must be delivered to us no later than July 1 This offer is open until noon on Friday March 13 On Thursday March 12 Jon emails the NASO President Accept your offer of March 9 in all respects except that I desire payment of the 10000 immediately Is the March 12 email an acceptance forming a contract between Jon and NASO If not how should it be characterized and what is its legal effect 0 Termination of offer 0 Rejection revocation counteroffer Death or incapacity of offeror Destruction or subsequent illegality of subject matter Lapse of time Failure of specified condition 0000 0 Acceptance o Manifestation of intent to be bound o Mirror image rule 0 Communication to offeror any reasonable method unless offeror stated differently 4 Assume that the NASO offer was worded as above except for the addition of this line at the end If we do not hear from you by then we will assume that you have accepted our offer If Jon does not reply by noon on Friday March 13 has he accepted the NASO offer 0 Silence as acceptance 5 Assume that on March 9 the NASO President emailed Jon We are offering you 10000 to prepare 15 instructional DVDs that dealwith the aspects of football officiating thatwe have discussed The fee is 10000 5000 to be paid on your acceptance of this offer and the remainder to be paid when you deliver suitable discs to us The discs must be delivered to us by July 1 of this year On March 10 Jon sent the President a registered letter stating I accept your offer in all respects The President received this on March 12 On March 11 the President emailed Jon We are revoking our offer Jon replied I accepted your offer two days ago when I sent you a registered letter to that effect so we have a contract If Jon sues for breach of contract would a court conclude that he timely accepted NASO s offer or did NASO revoke their offer before he accepted it o Mailbox rule 6 Assume that the March 9 email from the VP says Our offer will be deemed accepted only on receipt in our of ce of a certified letter from you Would this make any difference in the outcome in 5 Dangerous behavior that threatens the fabric of society type of law Discovery Each side may request that undisputed facts be admitted or denied to avoid wasting time on them Abbreviated causes presentation by lawyers and Witnesses usually experts before panel usually of three When the plaintiff and defendant are citizens of two different states AND the amount in dispute is greater than 75000 ADR Neutral arbitrator usually with subject matter expertiese in the issues involved in the dispute Congress may regulate any activity which has a Substantial economic effect on interstatecommerce Which amendment states quotNo state shall deny any person within its jurisdiction the equal protection of the law Means to hold a hearing then decide how to proceed with an issue Federal courts hear civil and criminal cases within their jurisdiction What two key functions do federal courts have What type of law do agencies have lots of power in sometimes leading to controversy What amendment protects individual rights 3 types of executive power Which article establishes congress with two houses C riminal Reguest for admission MiniTrial Diversi Cases Arbitration Sub stantial Effect 14th Amendment Egual Protection C lause Adi udicate Adjudication Adjudication and Judicial Review Administrative laW Amendment I Appointment leg slation foreign policy Article 1 Article that de nes powers and responsibilities of the president in general he is to enforce the nation39s laws Which article creates the supreme court and permits congress to createlower federal courts Jury selection Each side can claim any juror shows signi cant bias Regulates rights and duties of parties guilt not determined type of law quotCongress shall have power to regulate commerce with foreign nations and among the several states Designed to propose a commercial transaction is regulated more strictly than other speech and may be outlawed if false or misleading What is the term coined for those who forego some constitutional rights for the sake of their neighborhoods What law predominates in tort contract and agency law What are the three sources oflaw 4 types of pleadings to begin litigation Two possible variations on pleadings Discovery Interview of other party or potential witnesses done by opposing lawyer Neutral evaluator intervenes in lawsuit for purpose of narrowing the issues case management and possibility of assisting in settlement Part of executive branch under the controls of the President usually supports the president A claim based on the US Constitution a federal statute or a federal treaty Federal Courts Two kinds of civil lawsuits permitted Not part of the executive branch President does not have the power to re the head of the agency type ofrule These do not change the law they de ne or apply the laws to new situations Article 11 Article III Challenge for cause Civil Commerce Clause Commercial Speech Common Interest Developments C ommon law Common law administrative law other sources of law ComplaintI Answer CounterClaim m CounterClaim Class Action Depositions Early Neutral Evaluation Executive Federal Federal Question Case Federal Question Cases Diversi Cases Independant Federal Interprative Discovery Written questions that the other party must answer under oath 6 types ofdiscoveries Federal courts can declare a statute or governmental action unconstitutional Clause in the contract speci cally states where a dispute must be brought type of rule Required businesses and people to act a certain way have the effect of a congressional statute A dispute where a judge or jury hears aforrnal case presented and renders a nal decision ADR Neutral Facilities negotiation and failing settlement ADR Neutral person attempts to get parties to reach a voluntary settlement 7 types of ADR 2 less common forms of ADR Discovery Is a request to the court that the other side be made to reduce the number of depositions 3 most common forms of ADR ADR Parties cornmunciate directly or indirectly about the issues in disagreement in order to reach a settlement of their differences in an amicable manner Is obscenity protected by the constitution What might the loser request asking the judge to overturn the verdict on a legal technicality or on a claim that the jury ignored the evidence 4 steps to defendant39s case 4 steps to plaintiffs case Interrogatories Interrogatories Depositions Production of Evidence PhysicalMental Exam Reguest for Admission Motion for protective order Judicial Review Jurisdictional Clauses Legislative Litigation MedArb Mediation Mediation Arbitration Negotiatiop MedArb MiniTrial Summary Jury Trial Early Neutral Evaluation MiniTrial Summag Jug Trial Motion for protective order Negotation Mediatiop Arbitration Negotations M non observanteverante Opening argpmentg Defendant calls Witnesses Plaintiff guestions Witnesses Closing arguments Opening argumentg Plaintiff calls Witnesses Defendant Questions Witnesses Defendant moves for directed verdict jury selection each lawyer can dismiss a number of jurors without reason Discovery One party may request the court to order an examination of the other party if relevant About a politician or political process is protected and can be found illegal onlyif it is intended and likely to promote lawless conduct The government must go through procedures to ensure that the result is fair The process due is in proportion to what the government is trying to take from the person Discovery Each side may request to see the other side39s evidence Jury selection Each potential juror is questioned to uncover biases Three primary agency powers A legal search of a business in order to take evidence of wrongdoing One shall not be compelled in a criminal case to be a witness against himself The provisions set forth in each paragraph of the Agreement are severable quotLet the decision stand A basic principle of the common law it means that precedent is usually binding If an organization looks and acts like a town it must be treated so and constitutional protections apply A law passed by a legislative body such as Congress The enabling legislation that created the agency places controls on it through requirem ents and restrictions Party must appear and bring certain documents be relevant to a lawful agencyinvestigation and not be unreasonably burdensome Some rights are so fundamental that the government may not take them at all Abbreviated case presentation before a jury generallypresented a er discovery closes Peremptorx challenge PhysicalMental Exam Political Speech Procedural Due Process Production of Evidence g Questioning Rulemakinga investigationg adjudication Search and seizure Self incrimination Severabili Clauses Stare decisis State Action Doctrine Statute Statutory Subpoena DucesT ecum Substantive Due Process Summa Jug Trial The consitution federal statutes and federal 0 Supremacy Clause treaties are the supreme law of the land Ranking highest to lowest of us court system 0 Supreme Appellate Trial Federal Courts and other entities outside the i udicial branch 5th Amendment When the government takes 0 Taking Clause or Eminent Domain private property for public use it must pay a fair price Legal speech may belimited in What 3 ways 0 Time Place Manner What is another name for the jury selection 0 voir dire process What do most searches require before they 0 Warrant occur Employee 7 Independent Contractor For 23 years I was a football referee in the Southwest and Big XII Conferences This yearI am of ciating in a professional league called the United Football League As a condition of receiving game assignments I signed a contract with the UFL that provides in relevant part INDEPENDENT CONTRACTOR AGREEMENT This Independent Contractor Agreement Agreement is entered into and is effective this 739h day of April by and between the United Football League Management LLC League and Jonathan Bible Contractor Whereas the Contractor desires to provide officiating services as an independent contractor to the League and Whereas the League desires to engage the Contractor to provide such of ciating services and the League and Contractor desire to enter into an independent contractor relationship as hereinafter set forth Now therefore in consideration of the mutual promises representations and covenants set forth herein the Parties mutually agree as follows 1 Scope of Services 11 The League hereby retains the Contractor as an independent contractor to provide such of ciating services to the League as the League assigns 12 The Contractor accepts the assignments listed as presented by the League 14 The Parties acknowledge that this Agreement is not exclusive to either Party 2 Payment for Services and Expenses 21 In consideration for the Services provided pursuant to this Agreement the League agrees to pay the Contractor at a rate of 2500 per game if serving as a eld of cial For other services payment will be at the rate determined by the League 22 The League agrees to reimburse the Contractor for all reasonable travel eXpenses and reasonable costs incurred by Contractor as a eld of cial Contractor shall receive 375 per game for airfare and 350 to cover hotel parking meal and similar eXpenses 4 Contractor s Responsibilities 42 Contractor is knowledgeable in the rules and regulations of football of the United Football League and understands that all games are to be conducted according to those rules and regulations The Contractor and other members of the of ciating crews are solely responsible for exercising their professional judgment in applying those rules and regulations 44 The League agrees to furnish the customary uniform and equipment necessary to work the games heshe is assigned 46 Except as otherwise provided in this Agreement Contractor shall be responsible for all costs and eXpenses incident to the performance of Services including but not limited to insurance and personal property and sales taxes 47 Contractor is solely responsible for obtaining health medical disability and life insurance bene ts that may be necessary to cover any claims by Contractor in the event of illness or injury in connection with hisher of ciating activities at assigned games The Contractor understands that workers compensation laws do not apply to any accident or injury sustained as a result of hisher service as an independent contractor FACTS The League requires its of cials to be in the game city the night before the game is played As a referee Imust conduct a crew pregame meeting on game day A van provided by the League arrives at the League designated hotel 3 hours before game time to transport us to the stadium where we follow a detailed time sheet that dictates which of cials must perform which duties at which times We must wear a coat and tie or turtleneck to and from games and we are prohibited 39om consuming alcohol from the time we leave our home city until we return to the hotel after the game Observers provided by the League evaluate our on eld performance and we review selected plays with the observer after the game Each o icial must ll out a report describing which fouls he called on whom and why As referee Imust prepare a game report and submit it along with the individual foul reports to the League of ce The Vice President in charge of Of ciating reviews each game lm and grades calls that we made and should have made on a 17 scale with 1 being the lowest The VP also evaluates our mechanics positioning appearance demeanor and handling of situations These evaluations dictate who works the championship game and is asked to return to the League the following year We must of ciate the game in accordance with a l37page rule book an on eld mechanics manual that describes the responsibilities of each of cial on each kind of play run pass kick try etc and a 61page philosophies manual that discusses how the league wants the rules interpreted and applied on the eld During the spring and summer I probably spend about 100 hours or more going over this material Because the league uses NFL rules which are different from NCAA of cials are precluded from having any involvement with any collegiate conference and are restricted to working only UFL games In the end based on the criteria discussed in the teXt am I most likely an employee or an independent contractor of the League and why Chapter 1 The federal system our federal system of govt means that law comes from a national govt in Washington DC and from 50 state govts Legal history history of law foreshadows many current legal issues including mediation partnership liability the jury system the role of witnesses the special value placed on land the idea of precedent and the diff btween substantive and procedural law Primary sources of law In United States Constitution and state constitutions E Statutes which are drafted by legislatures c common law which is the body of cases decided by judges as they follow earlier cases known as precedent and d Administrative law the rules and decisions made by federal and state administrative agencies Other sources of law treaties and Executive orders Precedent the obligation to decide current cases based on previous rulings Common law judgemade law Statute a law passed by a legislative body congress is legislative Equity a court s power to fashion a remedy such as an injunction which the common law does not provide Criminal law prohibits certain behavior behavior that threatens society Most criminal laws are statutes Civil law regulates the rights and duties between parties not with outlawed behavior Substantive law defines the rights of the parties Procedural law establishes the processes for setting disputes Public law the rights and obligations of govts as they deal w the nation s citizens Ex When the Federal Trade Commission prohibits deceptive adversiting Private law regulates duties btween individuals Ex Landlord Tenant law Jurisprudence the philosophy of law Three therories are 1 Legal positivism the law is what the sovereign says it is 2 Natural law an unjust law is no law at all law must have moral basis 3 Legal realism who enforces the law is more important than what the law says who enforces the law amp by what process counts more than what is in writing Sovereign Legal positivist Plaintiff Defendant Stare decisis Conclusion the recognized political power whom citizens obey holds that whatever the sovereign declares to be the law is the law whether it is wrong or right no room for questions of morality the person who is suing the person being sued Lat quotto stand by that which is decidedquot The principal that the precedent decisions are to be followed by the courts We depend upon the law to give us a stable nation and economy a fair society a safe place to live and work Monday September 26 Chapter 6 A General Protects legally recognized interests in person reputation property etc created by statute common law decisions precedents stare decisis Compare with contractcriminal law contract is where two sides have a contract and both have duties and if one fails to do what was specified in the contract the other can sue for damages Criminal prohibits certain conduct EX Kelly gets her car stolen The state puts the thief injail for 2 years but Kelly gets nothing Meaning of intent We take our victims as we find them quotegg shell psychequot Duty foreseeability reasonable man standard Texas Tort Claims Act 1 property damage personal injury and death proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if A the property damage personal injury or death arises from the operation or use of a motor driven vehicle or motor driven equipment and B the employee would be personally liable to the claimant according to Texas law and 2 personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would were it a private person be liable to the claimant according to Texas law Immunity Certain individuals and entities are granted IMMUNITY from both damage awards and assessments of liability in tort An immunity is a defense to a legal action where public policy demands special protection for an entity or a class of persons participating in a particular field or activity Historically immunity from tort litigation has been granted to government units public officials charities educational institutions spouses parents and children Government immunity also known as SOVEREIGN IMMUNITY insulates federal state and local governments from liability for torts that an employee commits within the scope of his or her official duties Public policy as re ected by legislation common law precedent and popular opinion has required courts to protect the government from unnecessary disruptions that invariably result from civil litigation Similarly educational institutions generally have been immunized from tort actions to protect students and faculty from distraction Waiverrelease Elements Burden of proof a fact that a plaintiff must prove to win a lawsuit Letter of Intent letter summarizing negotiating progress A document outlining an agreement between two or more parties before the agreement is finalized NOT A CONTRACT B Defamation The law of defamation concerns false statements that harm someone s reputation Libel v slander Libel is something that is written and slander is oral Communication Truth as a defense Fact v opinion reasonable listenerreader facts can be proven true or untrue however an opinion can not be proven true or untrue Public figure actual malice standard Job references Cyberspace Communications Decency Act 1996 C Assault and Battery Assault in law assault is a crime causing a victim to fear violence The defendant does some act that makes the plaintiff fear imminent battery Battery a criminal offense involving unlawful physical contact distinct from assault which is the fear of such contact Intentional touching of another person D Intentional Infliction of Emotional Distress Intentional Tort harm caused by a deliberate action an intentional tort is a category of torts that describes a civil wrong resulting from an intentional act on the part of the tortfeasor quotGap fillerquot tort in Texas Debt collection Wednesday September 28 E Privacy torts Common law privacy 0 Intrusion on seclusion 0 Commercial exploitation unauthorized use of likeness or voice 0 Disclosure of highly intimate or embarrassing information in which the public has no legitimate interest Statutory eg medical student records Constitution Griswold v Connecticut 1965 Proprietary information company trade secret copyright patent F False imprisonment a restraint of a person in a bounded area Without justification or consent Intentional restraint against someone Without reasonable cause Merchant s privilege reasonable detention done in reasonable manner for reasonable time Problem 2 page 149 G Trespass to reality intentional entering land or remaining on land after asked to leave Trespass is an area of tort law broadly divided into three groups trespass to the person trespass to chattels and trespass to land Intentionally on another s property Without consent Invitee on premises for mutual economic benefit Licensee on premises With express or implied consent Trespasser no consent to be on premises Attractive nuisance H Fraud text 323 27 Incorrect statement about material fact Intent to deceive Reasonable reliance on misstatement Injury Monday October 3 Extra credit quiz 3 I Tortious interference with a contract improperly induced a third party to breach a contract Competition Employment Texaco v Pennzoil Agreement to agree Problem 5 page 150 J Product disparagement and slander of title Lanham Act Chapter 7 Negligence A Fiduciary relationships v arms length transactions B Premises liability 1 Wal Mart v Gonzalez Nature of duty of care owed by premises owners Whether duty breached foreseeability of dangerous condition on premises Recurring V isolated hazards Comparative negligence effect of possible contributory negligence by plaintiff Texas 50 rule 2 Timberwalk Apts V Cain criteria that courts use to decide foreseeability of third party crime on premises If crime foreseeable duty to take reasonable steps to prevent it exists Wednesday October 5 lO pt extra credit quiz C Dram shop liability make business liable for serving drinks to intoxicated customers who later cause harm D Professional malpractice E Negligent hiring retention training supervision F Negligence per se and res ipsa loquitor Negligence per se the legal doctrine whereby an act is considered negligent because it violates a statue When a legislature sets a minimum standard of care for a particular activity in order to protect a certain group of people and a violation of the statue injures a member of that group Res lipsa loquitur facts that imply that the defendants negligence caused the accident Strict Liability injuries cause by neglect and over site Higher level of liability resulting from ultra hazardous acts or defective products A Ultrahazardous activity B Section 402A Restatement of Torts 2d Article 2 Uniform Commercial Code Sales of Goods chapter 19 know definitions of good sale merchant quotProductquot within the meaning of section 402A below essentially synonymous with quotgoodquot and definition of quotsellerquot is equivalent to quotmerchantquot Section 402A 1 One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer or to his property if the seller is engaged in the business of selling such product and o it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold 2 The rule stated in Subsection 1 applies even though the seller has exercised all possible care in the preparation and sale of his product and o the user or consumer has not bought the product from or entered into any contractual relation with the seller privity of contract quotUnreasonably dangerousquot Manufacturing defect product departs from intended design even though all possible care was exercised in the preparation and marketing of the product Design defect foreseeable risks of harm posed by product could have been reduced or avoided by adoption of reasonable alternative design by seller or other distributor or predecessor in commercial chain of distribution and omission of reasonable alternative design renders product not reasonably safe Warning defect foreseeable risks of harm posed by product could have been reduced or avoided by reasonable instructions or warnings by seller or other distributor or predecessor in commercial chain of distribution and omission of the instructions or warnings renders product not reasonably safe Defenses to 402A claim Assumption of risk Product misuse Monday October 10 CONTRACTS Chapter 18 Know portions identified in class on Monday Chapter 10 Elements of a contract quotMeeting of the mindsquot express implied quasicontracts Express agreement with all important terms explicitly stated Implied words and conduct of the parties indicate that they intended an agreement Quasi possible remedy for plaintiff with no contract fictional contract created by courts for equitable not contractual purposes Bilateral and unilateral contracts Bilateral promise made in an exchange for another promise Valid void voidable and unenforceable contracts unenforceable Parties intended to form a valid bargain but the court prevents it Void contract that neither party can enforce because the bargain is illegal also known as a void agreement in not actually a contract Voidable unlike a void contract is a valid contract Agreement that may be terminated by one of the parties Executed and executory contracts executed agreement in Which all parties have fulfilled their obligation Executory agreement in which one or more parties has not filled their obligations Promissory estoppel Wednesday October 12 Statute of Frauds Section 2601 Business amp Commerce Code A promise or agreement is not enforceable unless it is written and signed by the person against Whom enforcement is sought or his agent 1 Promise by executor of estate to personally pay for any estate debt 2 Promise by A to pay debt of B guarantor or collateral agreement 3 Agreement made in consideration of marriage or nonmarital conjugal cohabitation 4 Contract for sale of real estate or interest therein 5 Lease of real estate for longer than a year 6 Agreement not to be performed within a year of date of its making 7 Warranty of cure relating to medical care or results thereof made by physician or health care provider 8 Agreement to pay commission for sale or purchase of oil or gas mining lease or royalty minerals or a mineral interest 9 Loan agreement involving more than 50000 Article 2 UCC contract for sale of goods worth 500 or more Sufficiency of writing when one required Parol evidence rule integrated contract clause parole evidence rule anything said or written before parties signed a contract The parole evidence rule is a substantive common law rule in contract cases that prevents a party to written contract from presenting extrinsic evidence that contradicts or adds to the written terms of the contract that appears the whole Integrated contract a writing that the parties intend as the final and complete agreement Integrated clause to avoid parole evidence anything before signing is disregarded Agreements must be in writing in dealing with for any interest of land that can t be performed in one year to pay the debt of another made by an executor of an estate made in consideration of marriage for the sale of goods worth 500 or more Click Wrap Shrink Wrap Agreements 7 I agree to the terms etc p270 Advertisements don t count as offers 0 Price quotes can say widget for sale for 40 but doesn t count as offer Person sending email is not at fault if other person doesn t check email Communication To Offeree Or Agent 9 Fiduciary Relationship 0 Communication to agent counts as communication to principal 0 ie secretary gets IRS noti cation but forgets about it Smith still liable 0 Smith has cause of action against the secretary for penalty costs Definitiveness 7 Vague contracts aren t binding 0 Bible owns 3 parcels of land Written agreement both signed says its binding 0 Contract says in 14 days we ll decide which parcel to buy 0 This contract is NOT de nite Its not binding even if it says so You can revoke offer legally because contract isn t legally binding bc no consideration on customers part 0 You can make it legally binding if give 5 for them to hold promise for deadline Terms of acceptance MUST meet terms of offer exactly mirror image rule p 272 o If contract says you have to agree in writing you HAVE to agree in writing 0 Accepting orally doesn t count Once offer rejected its dead If change mind and accept the offeror has to acceptdecline again Silence doesn t count as acceptance unless its an ongoing relationship 0 ie Bible buys cigars every 2 months the last 50 years No need to wait for agreement Mailbox Rule p 273 7 Acceptance is valid when sentmailed Bob offers Sarah contract on Monday Sarah mails acceptance Tuesday Bob cancels contract Wednesday before Sarahs acceptance arrived Sarahs acceptance is enforceable Offeror can change terms of acceptance mailbox rule only applies when terms not specified All contracts need bargained for consideration Law doesn t look at adequacy of consideration 9 1 for car counts as sales contract Illusory Promise p285 7 A contract with clause to terminate at any time isn t a contract 0 If given 2 days notice then counts as contract 1 hour notice still contract 0 Can re at any time but give severance pay contract severance is consideration At Will 7 if no duration is speci ed then its at will 0 Guarantee of termination only for speci ed cause 9 not at will b c can only re for certain reasons Good Faith 7 p 287p 391 13 9 Extra 4000 not contractually obligated Liquidated v Unliquidated Debt p 292 o Liquidated 9 No dispute over how much owed Sarah owes 20k to bank bank agrees to take 17k Bank can change mind not legally enforceable o Unliquidated 9 Arguing over how much actually owed o Accord amp satisfaction 7 full settlement on check 9 Once cashed no liability 15 9 NASO wins arms length transactions Jon should ve known he needed a license p302 16 9 State laws dictate how much you can charge on loans p304 17 9 Covenant not to compete no or non compete p304307 0 If in writing doesn t mean enforceable Looks at other info aswell o Ancillary to an otherwise enforceable agreement has to be part of bigger agreement 0 Consideration when agreement made or soon thereafter 0 Can t tell employee to sign no compete AFTER they re hired 0 Employer has to give up something 0 Reasonable in scope amp duration 0 Jon can open shop in North Austin even though he agreed not to compete 50 miles from San Marcos o Courts look to see if new store takes sales from old store prob not in this case 0 5 years is unreasonable duration 1 or 2 years is cool usually 18 9 Exculpatory Agreements Hold harmless agreements p308 XXX not responsible for theft or XXX not responsible for skiing acciden Usually deterrents Can still sue just scares ppl off Company is adamant but 1 or 2 follow through and sue o Conspicuousness 7 People try to hide certain info in contracts 0 1 page 12 font contract is conspicuous o 16 page single space contract smaller font isn t conspicuous 0 Express negligence 0 Contract expressing even if negligent no liability 9 expressing possible negligence 0 Nature of enterprise 7 recreational V mandato 0 Recreational likely to enforce hold harmless ski injuries 0 Mandatory less likely to enforce services like public trans etc Contracts W Minors 7 p 319 Consent 7 2 conditions have to be made Has to be informed Has to be voluntary implied consent counts 9 school search lockers Mistake Of Fact p 331 Bilteral mutual 0 Talk about selling 2 diff types of golf clubs but email didn t specify which 0 Jon thinks he s selling set A Bob thinks he s buying set B o Voidable contract either side can disaffum Unilateral 1 side makes mistake 0 Someone puts ad for 25000 but made typo meant 35000 Not contract advertisement doesn t count as offer If there was contract buyer should ve known an error Seller can back out Duress 7 Pretty much being forced to do something threatening someone 0 Prof threatens to fail kid if he doesn t sale clubs for 100 victim can disaffirm 0 Civil threatening isn t duress didn t do anything illegal 0 Economics duress 7 Make bag bargain decision can t disaffirm didn t do anything illegal Undue In uence p336 0 Jons mom dies at age 88 Investment advisor sold her 8 year annuity at age 85 advisor pulled some sketchy shit 0 Can technically cancel contract b c undue in uence but not practical bc arbitration bias Unconscionable Acts 7 p 331 Parole Evidence Rule 7 Everything not in writing implied stuff has to be in writing Conditions precedent and subsequent p385 0 Precedent 7 condition has to happen BEFORE duty arrises 0 Subsequent 7 Condition has to occur after duty arrises Insurance obligated to pay damages but if Bob fails to give proof in time his loss Substantial Performance p 389 Built a swimming pool w 115 ft depth still counts as substantial performance Strict Performance p 388 Requires perfect performance has to be reasonable Personal Satisfaction Contracts p 390 Permits promisee to make subjective evaluations of promisors performance ie Bob gets hired for 2 years as long as his work is Acceptable in the sole judgement of Obama Time Is Of The Essence Clause p 393 Strict Deadline breached even if after 1 day late Just because you include a date doesn t make it time of the essence 0 ie Bob needs a new towel by Dec 1 obv not time ofthe essence Anticipatory Breach p 395 Making it clear that it cannotwill not honor contract p 395 example Impossibility Of Performance p 396 True impossibility 7 Literally impossible o Destruction of subject matter Someone agrees to sell their house house gets burned down fml 0 Death self explanatory o Illegality 7 Not legal in the first place or becomes illegal Commercial impracticability p 397 Bob loses 30 bc of bad contract Doesn t discharge him still has to pay If conditions are so extreme only then is it dischargeable 0 Bob can t ship steel to Saudi Arabia only option is to y it there 0 Would cost 5X normal shipping costs unfair deal Chapter 28 Agency Relationships P and A must mutually consent that A will act on behalf of P and be subject to P s control thereby creating a duciary relationship p 669 Was there a meeting of the minds express implied apparent all on p 689691 Express oral or general or speci c power of attorney 7 0 Craig calls stockbroker to buy shares stockbroker has expressed authority Implied words and conduct test 0 Manager has authority to do anything reasonable necessary to complete the task ie Dave tells manager to go buy paper towels manager has implied authority to get into his car and go to the store Apparent 7 o Hasn t given agent authority to act but does stuff to make us think the agent has authority to act Husband lives in house has no authority but wife makes it seem so 0 Agency by estoppel p692 7 Failing to correct someone s belief that he doesn t have a relationship with a certain agent Example on p692 Rati cation p 693 o If someone accepts the bene t of an unauthorized transaction or fails to repudiate it then he s bound to the act as if he originally authorized it equal dignities rule p 671 7 if agent enters contract that requires writing then the appointment of the agent must be in writing Duties of A to P Act loyally for P s bene t in matters connected with relationship p 672 0 Put principal rst always Con ict of interest p 674 0 Agent has to notify both principals and they have to agree Not disclose or use for own bene t con dential information acquired during agency p 672 Not compete against P until relationship ends p 674 9 self explanatory Not engage in inappropriate behavior that would re ect badly on P p 675 0 Includes off duty Obey instructions unless illegal p 676 Act with reasonable care p 676 0 Act as a reasonable person would Provide P with information pertaining to relationship p 677 0 Agent has to provide all info in her possession to principal Duties of P to A Indemnify for expenses reasonably incurred p 678 0 Self explanatory Bob tells Sarah to sell house Bob pays listing fees Furnish opportunity to work safe workplace p 679 0 Bob tells Sarah to sell house Bob has to let Sarah access to the home Termination of relationship p 680 Ful llment of purpose 7 Once the purpose of relationship is completed no longer needed Mutual agreement recission 0 As long as both agree they wanna back out they can terminate Revocation of authority lingering apparent authority 0 Agent no longer works for P Agent sells on P s behalf P still liable Renunciation by agent 0 If no agreement in advance about the term of the agreement either P or A can terminate at any time Death ofP or A 9 p 681 self explanatory Change in law p 682 0 Agents responsibilities become illegal agency agreement terminates EmployeeIndependent Contractor P liability for torts p 679697 0 P responsible if authorized agents behaVior and A doesn t realize he s committing a tort 0 Employer liable for employee if acting within scope of employment or acting with apparent authority respondeat superior P liability for contracts p 679 o P has to indemnify reimburse A if A enters contract on P s behalf 0 P has no authority to rescind contract entered in by A O Application of federalstate discrimination laws 0 Title V11 1964 CiVil Rights Act race color religion national origin sex 15 employees p 723 0 Age Discrimination in Employment Act of 1967 age over 40 20 employees 0 Americans with Disabilities Act of 1990 15 employees 0 Texas Commission on Human Rights Act 15 employees Responsibility for employment taxes Retirement benefits EmployeeIndependent Contractor criteria P controls details of work 7 Jon has control on what he wants in house contractor P supplies tools and place of work A works full time for P employee A paid by time not byjob employee Work is part ofregular business ofP P and A believe they have employeremployee relationship Liability of P for A39s torts 1 Direct liability negligent hiring retention supervision training always P s fault 2 Vicarious liability under respondeat superior Policy reasons for respondeat superior Course and scope of employment 1 Criteria text p 699 o A was acting in furtherance of PS business 0 Not on frolic and detour 1 Guy visits friend in Lake Travis company not liable o Foreseeability of sequence of events 1 Guy gets in wreck while making pitstop company liable 2 Going and coming rule 7 mp1 J not r quot 39 for mp1 J commute quotAided by the agency relationshipquot principle Liability of P for A39s contracts Disclosed partially disclosed undisclosed P affects liability ofA p 695 o Undisclosed 7 Agent says I have a friend but never identifies the principal P and A are jointly and severally liable o Disclosed 7 Agent discloses the existence and identity of P A has NO liability Employment discrimination 1 Title V11 1964 Civil Rights Act Applies to employers engaged in interstate commerce with at least 15 employees on each working day of 20 or more calendar weeks in preceding year Prohibits discrimination against employee or job applicant with respect to compensation terms privileges or conditions of employment because of race color religion national origin sex gender A EEOCCourt recognized forms of discrimination Disparate treatment 0 Adverse employment action not hired red not promoted etc occurred because of a protected classi cation burden of production and proof by a preponderance of the evidence 0 Proof of intent to discriminate 0 Has to produce concrete evidence of discrimination besides speculation 0 Bona de occupational quali cation BFOQ defense Disparate impact 0 Evenhanded policies that have signi cantly higher negative impact on protected groups 0 Primafacz39e case EEOC 45 rule Selection rate for race sex religious or ethnic group which is less than 45 80 of rate of group with highest rate is evidence of disparate impact 0 If prima facie case established employer has to prove business necessity for taking protected classi cation into account 0 Lack of intent to discriminate is irrelevant 0 Prison example 100 women apply 20 hired 9 20 500 men apply 250 hired 9 50 Women needed to be hired at 40 rate to not have discrimination 80 of 50 40 City uses entrylevel psychological test for police applicants 100 women applied and 20 were hired 500 men applied and 250 were hired Outcome Psychological tests necessary no discrimination B Process Exhaust administrative remedies le complaint with Equal Employment Opportunity Commission and Texas Workforce Commission 300 day limitations period Right to sue letter 7 Gives you the right to sue but you re on your own Possible commission enforcement class action 0 Try to make a point to corporations they ll cover your costs 0 Class action 7 500 people joining together to sue C Job applications and interviews 7 Basically can t ask certain stuff they beat around the bush instead Year graduated from high school or obtained college degrees Do you own a house Do you plan to have children Have you ever been arrested Convicted Will it bother you if the men swear This job requires occasional outoftown overnight trips How would your husband feel about that That s an unusual name what nationality are you Do you attend church Do you have any physical disabilities D Disparate treatment pretext case Plaintiff has burden of production and proof on primafacz39e case of discrimination based on a protected category 0 The legitimate asserted reasons you got fired for were bullshit If proven burden of production not proof shifts to employer to articulate legitimate reason for job action Employee can then prove employer39s reason was pretext designed to conceal the fact that discrimination was the true motive E Disparate treatment mixedmotive case Employee proves race etc a quotmotivating factorquot in job action 0 Gender stereotyping 7 Women not dressing like normal women Gays not acting like normal men etc Employer can then argue samedecision defense it would have made the same decision even if the impermissible factors eg the genderstereotyping sex discrimination that Hopkins suffered in Price Waterhouse v Hopkins had not been taken into account Age discrimination claim different Plaintiff must prove age was the sole cause of an adverse employment action 1 Roberts v Geosource Drilling Co 757 SW2d 48 Arguing in alternative suit for anticipatory breach breach of written employment contract detrimental reliance on oral and written representations promissory estoppel wrongful discharge and fraud Note concrete things on which Roberts relied to convince him to give up job on strength of promise of job by Geosource G interviewed R for overseas employment told him he was qualified gave medical exam took passport executed contract specified date of departure and ticket arrangements Measure of reliance damages for jury to decide 2 Minard Food Stores V Goodman 80 SW3d 573 Saying woman had affair Libel and slander and slander per se defamantion bc accusations were false Constructive discharge Example of dimensions of course and scope of employment doctrine o Chick quit bc false rumors made life intolerable she had no other choice 3 Sterner V Marathon Oil Co 767 SW2d 686 Tortious interference Tortious interference with contract in context of atwill employment Privilege or justification to interfere with contract is affirmative defense on which claimant has burden of proof 4 Main v Haass 818 SW2d 381 No compete agreement H signed merger agreement stating that any partner who left the firm and within 24 months afterward solicited or furnished accounting services to firm client or to someone who became a client within that period had to compensate firm Liquidated damages provision Nocompete Section 1550 Business amp Commerce Code 0 Ancillary to otherwise valid contract 0 Supported by bargainedfor consideration 0 Restraint not greater than needed to protect employer39s legitimate interests e g business goodwill proprietary information such as trade secrets 5 Montgomery County Hospital District v Brown 965 SW2d 501 Employer sues over termination 10year employee sued for breach of alleged oral K deprivation of liberty and property without due process under Texas Constitution Estoppel effect of Brown s acceptance of severance pay Contractual nature of employee handbook or policy manual atwill employment negated only if employer quotunequivocally indicated definite intent to be bound not to terminate employee except under clearly specified circumstancesquot Application of Statute of Frauds where promise of lifetime employment Effect of promise of annual salary 6 Federal Express Corp v Dutschmann 848 SW2d 242 D fired for allegedly falsifying delivery records pretext Handbook disclaimer Employment was atwill handbook did not constitute employment contract and could be modified or withdrawn at any time D signed agreement acknowledging same Guaranteed Fair Treatment Procedure in handbook was a guide not a contractual guarantee of posttermination contract rights No duty of good faith and fair dealing implied in Texas employment contracts Court upheld TCHRA jury nding that employer retaliated against D for ling sexual harassment complaint actual damages and attorney fees awarded Sexual harassment also racial national origin age etc Types 0 Quid pro quo 7 If you blow me I ll give you a raise sexual favors o Hostile environment severe or pervasive conduct Workplace made hostile by conduct Bill Clinton case offensive but not severe If it goes on forever and ever then its pervasivesevere Employer defenses o Quid pro quo strict liability where tangible employment action involved 0 Hostile environment took reasonable steps to prevent and correct any harassment and employee unreasonably failed to take advantage of complaint mechanisms If the person employee complains to if the person the complaint is about then there s no defense Equal opportunity harasser 7 0 Some guy is a mega douche to everyone not just women 9 no discrimination 0 Slowly leaning away from this to see ifthere s a bias ll woman v 2 men harassed 0 Call guy a jackass call women sluts 9 discrimination Gender stereotyping theory of sex discrimination Retaliation Filing discrimination claim 7 Can t legally terminate them will find other reason tho Reporting workplace discrimination Complaining about discrimination against a relativeemployee Speaking out about discrimination in internal investigation Retaliation may include termination demotion moving to worse work shift taunting excluding from meetings etc May also include action taken against family member


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