Class 27

Doctrine of vicarious liability

An employer can be responsible for injuries and damages done by employees. If an employee is negligent, he can always be sued directly. The theory of "deep pockets".

Respondiat superior.

There must be a master-servant(employee) relationship. There is no responsibility for an intependent contractor. If he is an IC, the employer is only responsible if there was negligence in the hiring of the IC. The employer should have investigated the IC before hiring him.

Who has the right to control the job that is being done? If the employer doesn't know much about the job, it indicates that he's in IC.
How is the individual being paid? If it's by the job, he's an IC.
Whose tools are being used. If it's the worker's tools, it indicates that he's an IC.

If he's an employee and he causes injury, there must be certain events:
The employee must be acting within the scope of the employment. Ask these questions: is he where he is supposed to be, when he's supposed to be there, doing what he's supposed to do? If so, employer can be held responsible. If not, he's on a "detour and frolic".

Ex: bread truck driver. If driver is on the route, employer can be held responsible. If he's visting his girlfriend in Morton Grove, the employer is not responsible. The driver is not where he's supposed to be.

If the bakery knows what he's doing and allows it, it becomes part of the job and it would be considered within the scope of the employment.

No vicarious liability allowed for unauthorized passengers in a vehicle.

Vicarious liability of an employer for the intention torts of an employee

The general rules is that the employer is not responsible for the intention torts of an employee. Ex: swimming teacher assaulting a student at the ymca. they're only responsible because they knew about a previous case of improper touching and they took no action.

3 exceptions:
1. when force is specifically authorized by the employer, if excessive or illegal. ex: someone shoplifting. if the employer tells an employee to stop the shoplifter, the employer is responsbile for any excessive force
2. if the employee is in a position that by its very nature generates friction. ex: bouncer at a bar. security guard.
3. employee who acts to protect the property of the employer, for the purpose of the employer. ex: pickle barrel case

So therefore, the employer is not responsible if the employee acts for a totally personal reason with no relationship to the job and the employee has no previous record of violence that the employer should have known about.

Best lines of the semester:
Q: "Is that papyrus?" A: "Is that an F?"
Q: "Where are the questions?" A: "I'd call you an idiot, but I want you to write a good evaluation."

Final Exam Review

Tuesday, 6pm. almost 2 hours.

8 questions. mUch on contract law. one on product liabliety

strict liabali
strict liability in tort and in contract

privity in contract
mcpherson buick case first eliminated requirement for contract with manufacturer

strict liab expanded
implied suitability. first in food and drink then in manuf goods.

if there's a defect in good, even if theres no neg, manufacturer is liable

breach of an express warranty
representation of fact ex: shatterproof glass.
even in advertising brochure

strict liab in tort
final expansion
if something is sold in an inherently dangerous condition (axle of a car), manuf is strict liab in tort. defect in good, design defect (lawnmower with no shutoff switch), failure to warn (diet food to baby, firing gun close to head)

contract law

when does an offer become an offer. what is an offer. when does it form a contract? what constitutes an acceptance? when does the acceptance form a contract. mailbox rule.

contracts for minors
generally voidable at the optoin of the minor. can get his money or property back, even if the goods are destroyed. unless it's a necessicity or a necessary (for their position in the society).

sufficiency of consideration vs adequacy of consideration

must be a legal detriment.

fraud/duress/undue influence

Contract fraud - intention misrepresentation of a material fact unknowingly made.
fraud can be a tort too. (know this!)

two torts:
1. intentional interference with a contractual relation
2. intentional interference with prospective advantage (predatory behavior)

ex: am baking company - cut out the driver

parol evidence rule - if you have a written contract, prior or contemporaneous oral statements can contradict the written agreement

contracts that must be in writing
land
promising to pay other ppls debts - who's obligation is it really? if it's to benefit the person who's making the promise, then it's his debt. ex: builder paying the debt of a subcontractor to a supplier so the sub can do the work.

Class 26 - Contracts and the Statute of Frauds

Next Tuesday 12/15 is the final. Review will be on Thursday. The final is NOT cumulative. It covers: negligence (ch 6), ch 7, ch 8, ch 9, ch 10 and what he talks about next time.

Statute of frauds - a body of law intended to prevent fraud. Involves agreements that are so important or unusual that the court will only enforce them if they are in writing.

6 contracts must be in writing, or else they will not be enforced by the courts:
1. A promise of an executor/administrator to pay the debts of the deceased person from his/her own pocket.
2. Related to #1 and more common, the promise to pay the debt of another person. this is normally not done, but sometimes they do and in such a case it will be enforced, if they're in writing. must determine: who is the obligor and who is the promiser? Ex: twins, boy and girl, 18 yrs old. both going to senior prom. son is paying for his own tux, but father will pay if he can't. father offers to pay for daughter's dress. only for the son does it require in writing. exception to the rule: main purpose doctrine. if the promise was made for the benefit of the promisor, not the obligor, it doesnt need to be in writing. ex: contractor. electric subcontractor. sub can't get supplies. main contractor promises to pay supplier. since it's for his own benefit, it does NOT need to be in writing.
3. Agreements upon consideration of marriage - this does not refer to the agreement to get married. You can't sue someone for leaving you at the altar. Heart balm statues prevent suing for emotional distress. Only for actual out of pocket expenses. It does refer to prenuptial agreements - should the marriage not work out, the parties agree on how to split the assets. It also refers to desperation agreements where one party offers something if the other party will marry him/her. Some call this a "dowry". Those must be in writing in order to be enforceable.
4. Contracts for the sale of land or an interest therein - cemetery plot, real estate. Sometimes there's a question when you're buying crops. If the buyer does the harvesting, that's considered a contract for an interest in land, and it must be in writing. If the seller does the harvesting, then the contract is for personal property. Same for a mining contract for the sale of ore.
5. Agreements not to be performed for one year - impossible under the terms of the contract. not whether it is likely to be performed or contemplated to be performed within a year. rather, the contract terms require that it takes more than a year. ex: hiring an accountant for services of 15 months. such a contract must be in writing.
6. Under UCC, contracts for the sale of goods for $500 or more - common law requires detailed contract. ucc requires only quantity, price and signature of party responsible for payment. ex: contract for sale of an HDTV at ABT Electronics for $1250.

Parol Evidence Rule - "spoken" - rule of contract finality
Can't use oral statements to add to delete from or change a contract
Ex: apartment lease - oral agreement to replace carpeting and fix ceiling plaster. No oral statements can be used to change a written agreement.
Sometimes, you can get the change accepted if you can prove fraud or mistake. Ex: if there are inconsistencies in the agreement itself, such as different rental prices in different parts of the contract/lease.

Contract Remedy
Usually, the contract remedy is the difference btwn the agreed upon price and the cost to get the goods/services elsewhere.

There may be punitive damages if the conduct is wanton and willful.

Specific performance
You must perform exactly as the contract requires. All real estate is unique. It requires specific performance. For a BMW, you can provide another one. If it's for a rare or unique item, it will require specific performance.

You never find specific performance in an employment contract - it's involuntary servitude.

Quasi-contract - unjust enrichment. (review this!)

Review question: Main purpose doctrine - such a contract to pay another person's debts do not require a written contract.

Doctrine of Vicarious Responsibility - responsibilities of an employer for injuries caused by an employee. "deep pockets theory". is the person an employee or contractor? if an employee, is he acting within the scope of his/her employment? if "no" to either, he is on a detour and frolic and the employer is not responsible.

As a general rule, an employer is not responsible to a 3rd party for an employee's intentional torts. But there are some exceptions. Ex: swimming teacher at YMCA. Y didn't respond to first complaint. being sued for their negligence in allowing him to continue teaching after the complaint, not for vicarious responsibility for the tort.

There is no vicarious liability for the negligence of an independent contractor.

Class 25 - Contracts (cont.)

The elements of an agreement in order for it to be a legally binding contract.

intent
offer
acceptance
absence of fraud, duress or undue influence
legally sufficient consideration

It must be legal. Agreements involving illegal activities are not binding (gambling, murder, etc). If there is a contract for an unlicensed worker to do work, it depends what type of license if require.

Regulatory or Revenue-raising device.

If it's a revenue-raising device, then the contract is enforceable.
If it's a regulatory license, then the contract is not enforceable.

Another regulation is the Sunday "blue" laws. Auto dealerships are closed on Sunday. In Massachusetts, they barred businesses from being open on Sunday. Schechter Poultry sued and lost.

If the parties do business in violation of a Sunday closing law, the contract is voidable. But if the parties continue with the contract, it continues in effect.

Restraint of Trade

Non-competition clause. Gene & Georgetti's Italian Steakhouse at Franklin & Illinois. If someone buys a business and adds a clause that keeps the old owners from reopening, under the common law, this was a violation of restraint of trade. Under current law, it's permitted as long as it's reasonable in time and geography. It depends on the business and its reputation. Hot Dog stand on Armitage, east of Halsted - cannot bar them from opening in a wide area, only in the immediate area.

Non-competition clause in an employment contract also must be reasonable. Non-solicitation clause is reasonable. Barring the employee from working in his profession in his community is usually not considered reasonable.

Another illegal clause...
Violation of Public Policy - you must be responsible for your own careless behavior. If someone puts in a contract that they're not responsible for anything, it is meaningless.

Contractual Capacity

18 yrs old+
Mental capacity

Contracts for necessities
1. food
2. clothing
3. shelter
4. medical care
Contracts for necessities by minors are valid (for and against them)

Necessaries - necessary, considering the status or position in the community. Courts will enforce the contract for and against the minor.

Luxuries

Good advice: Don't deal with minors.
Story of Susan (north shore) and Sharon (inner city girl) who both bought a fur. For Susan it was a necessary - enforced the contract, for Sharon it was a luxury - contract is void.

An emancipated minor can be held responsible for his/her contracts.

If a minor buys a car, makes payments, and then becomes 18, the contract is then ratified.

Mental illness

Simple insanity - Person has lucid moments when medicated. If a person is off his meds and signs a contract, he can disaffirm it when he becomes lucid.

Ajudicated insanity - court has ruled the person insane. A contract by such a person can never be valid.

Intoxication - an intoxicated person who signs a contract cannot void the contract. unless the person was totally intoxicated and the other party knew it.

Contracts of minors are voidable by the minor if they are for luxury items. The contract is not voidable if it is for necessities or necessaries.

Statue of Frauds

A body of law that deals with misrepresentation. Some contracts are so important or unusual that they are only enforceable if they are in writing.

Most oral contracts are enforceable.

Six must be in writing:
1. promises of an executor or administrator to pay debts of an estate out of his own personal funds.
2. promise to answer the debt of another person
3. agreement upon consideration of marriage
4. agreement for the sale of land or an interest therein
5. agreements taht cannot be performed within one year
6. contracts for the sale of goods if they are in excess on $500 (according to UCC)
first 5 must be in writing according to common law.

Final exam: Tuesday, Dec 15. 6pm.

Class 24 - Contracts (cont.)

Manifestation of ascent: offer and acceptance

If an offer is made, it can be revoke or rejected, until it has been accepted. If it has been accepted, it can be enforced by law.

Sometimes, it appears that there is a contract, but certain kinds of conduct can invalidate the manifested ascent. Ex: duress.

Two types of duress: Simple duress and gun-at-head duress.

GAH duress voids a contract.
Simple duress is an improper threat. Ex: offering not to prosecute someone if he agrees to a contract. The threat of criminal prosecution. Criminal prosecution can only be done by the government. Threatening to sue civilly, is not improper. It's how you do a settlement.

Undue influence can also void a contract. Ex: adult child and an elderly parent.
Examine three factors in undue influence:
was the consideration ($) adequate?
was there independent advice given to the individual?
was full disclosure made to the individual?

Fraud - this is the major type of fact situatino taht allows someone to rescind the contract. It is not only contractual issue, it is also a tort for which punitive damages may be awarded.

Fraud in the execution - Ex: petition with a hidden contract
Fraud in the enducement - a false representation of a fact (not opinion) which is material (important) made with knowledge of its falsity with the intention to decieve and is justifyably relied upon. Silence can also be a false representation - ex: speedometer with wrong mileage.

It has to be material/important. Ex: the brand of spark plugs on a car is not material

It is fraud even if you don't know the truth. If you're making up a fact, it's fraud - Reckless indifference to the truthfulness.

Justifyable reliance - it has to be something that is relied upon. if the person didnt really care, it's not fraud.

You can recover a remedy for both the fraud (void the contract) and the tort of fraud and also punitive damages.

Innocent misrepresentation is just like fraud, but it's not intentional. You can rescind the contract, but you can't sue for any tort.

Sometimes a mistake by one or both of the parties allows for rescision.
Mistake as to the subject matter: if both parties believe that the glass is a diamond.

One party can't take advantage of the other person's mistake. Ex: guy who bought a valuable baseball card.

Mistake for failure to read the contract - this does not invalidate the contract.

Consideration

Consideration is one of the necessarily elements for an agreement to be a binding contract. (just like offer and acceptance)

Must show that the consideration was legally sufficient. Sufficiency of consideration is not the same as adequacy (pay too much or too little). Courts never get involved in adequacy of consideration.

Test of legal detriment/benefit: one of the parties much receive a legal benefit or incur a legal detriment.

Detriment - be required to do something that there was no pre-existing obligation to do, or refrain from doing something that you had a legal right to do.

Ex: promise to pay for tuition if student achieves a 3.0+ average. The student had no previous obligation to go to the school. He also gave up other things that he could have done instead.

Ex: offer to give money to a person if he loses weight. The person who diets, has incurred a legal detriment.

Promises to give gifts are unenforceable because there is no consideration.

Preexisting public obligation vs preexisting contractual obligation.
Public obligation - public employee, police must return an object as part of their job so they don't get the reward money. state's attorney has obligation to prosecute.

preexisting contractual obligation - accountant who wants more money to do work that he already had a contractual obligation to do. in order for there be consideration, he has to do more work, even menial.

sports stars renegotiating a contract - you have to tear up the old contract, otherwise there's a preexisting contractual obligation.

Settlement of a liquidated debt vs settlement of an unliquidated debt

liquidated debt - a debt which is undisputed
unliquidated debt - a debt which has a dispute over the amount of the debt

ex: writing "paid in full" on a check for less than the total amount of the debt. does not constitute an offer to settle for less.

unliquidated debt - ex: dentist who didn't discuss the cost. if the patient then writes "paid in full" on the check for less than the amount billed and the dentist cashes it, it's considered an offer and acceptance of the settlement.

Doctrine of promissary estoppal - the promise cannot be stopped. ex: if you offer to give a gift to a university and based upon that promise they take some action are reasonably rely on the promise, the doctrine of promissary estoppal says that you can't rescind the promise for lack of consideration.

Class 23 - Contracts

Final - Dec 10th

Recognize a contract issue when it comes up. What are the red flags that you need to look out for.

Not all agreements are contracts. Some are not binding. Definition of a contract: An agreement between two or more parties, the breach of which, the law affords a remedy.

A void contract is not a contract. Some contracts are "voidable", may or may not be void. Ex: contracts by minors. Lacks capacity to enter into a contract. If its for a luxury item (ex: car), it's void. If, after the minor reaches the age of 18, the person continues with the contract, it becomes valid.

Oral agreements for purchase of real property is unenforceable. Must be in writing. Other important, unique or unusual types of agreements must also be in writing. Ex: Sale of more than $500, to pay debts of other people, marriage.

Two bodies of law cover contracts: common law and Article II of Uniform Commercial Code (UCC) covers contracts for the sale of goods.

Quasi-contract: It's a contract remedy. Prevents unjust enrichment. "As if there were a contract". Ex: Painters paint your house with your knowledge, but it's the wrong house. This is a quasi-contract, because you were knowingly and unjustly enriched and took advantage of it. Quasi-contract allows the painters to get a remedy (payment) from you.

Unsolicited books, newspapers (etc) don't create a quasi-contract with the recipients.

There must be a "meeting of the minds" - manifistation of mutual assent. Both parties agree to be bound by the contract. Requires an offer and an acceptance. What constitutes an offer/acceptance? Offer must be communicated directly by the offeror to the offeree. Indirect is not sufficient (unless through an agent). Requires intent. Clear, concise, definite. Never in the form of a question. "Would you like to buy my car for $60k?" does not consistute an offer.

If an advertisement is definite, it may be an offer. But courts sometimes consider it an invitation for the customer to make an offer. "We'll beat any competitor's price" or "Come in and make an offer" are not offers.

See Lefkowitz v Great Minneapolis Surplus Store. Quantity, price and other terms were specified, so GMSS had to honor it. It was an offer.

Words can constitute an offer, even if you didn't mean it. It's an objective test - what would an ordinary, reasonable person mean in such a case?

Common law: quantity, price, identify the item.
UCC: some terms can be left open. you can even leave off the price sometimes. "price to be determined at the time of delivery"

How long is an offer good for? If stated in the contract, that is what's binding. It might be able to be revocation or rejection or counter-offer or death/insanity of either party or subsequent illegality. Otherwise, after a "reasonable" amount of time.

Revocation: an offer can be revoked by the offeror at any time even if the offeror had promised to keep it open for longer. Even if the offeror is revoking it because he got a better offer from someone else. However, this can't be done if someone puts a down payment on it. It's an option contract. That under common law.

Under UCC, which covers moveable items, an option contract is called a firm merchant's offer rule - if a merchant puts an offer in writing and promises not to revoke it, that offer is irrevokable for the stated time, not to exceed 3 months.

Rejection - If offeree rejects and offer, it kills the offer. It cannot be revived (unless the offeror agrees). Must be definite.

Counter-offer - rejection by the offeree and then the offeree becomes the offeror. it kills the original offer.
A: I'll give you my car for 60k.
B: I'll give you 50k.
A: No.
B: Ok, I'll give you 60k.
A: No. The offer is gone.
The offer is gone because the counter-offer killed it.

Counter offer must be definite and certain, otherwise, it's not a counteroffer and the original offer is still in force.

Always get agreements in writing. If not, people will lie in court.

Offer dies if any of the parties dies while the offer is pending.

Contracts don't die with the parties, unless it's for personal services. Option contracts don't die with one of the parties.

If the subject matter is destroyed, the contract dies. After the time of delivery, the buyer must still pay.

Subsequent illegality: ex: sporting goods contract with smith & wesson when chicago made it illegal. contract was dead.

Acceptance. Must be definite, certain and unequivocal. Not a question. Simply "I accept".

Under common law, we have mirror image rule. must be an exact restatement of the offer. Under UCC, changes in the terms, do not constitute a counter-offer so long as the terms are not material.

Do the additional terms become part of the contract? Not necessarily. But if both are merchants, the party has 10 days to object or accept additional terms.

When does the acceptance form a contract? When it is sent, as long as it is sent by an authorized means of communication. i.e. the means that the offeror requires or the means either equal to or faster than the offer. if offer is first class mail and acceptance is first class mail, the contract is in effect the minute the acceptance is mailed.

If the acceptance is sent by unauthorized means of communication, it is only considered a contract when it is received by the offeror.

Rejection kills an offer only when received. If you mailed a rejection and you want to revoke the rejection, you have to send the acceptance and it must be received before the rejection.

Class 22 - Trademarks and Intro to Contracts

Trademarks are an important part of business.

You don't have to copy the trademarked name or logo directly to get sued. Even if you just hint at the name, like "McDoofus", you may be in violation of the law. Even if you use your own name. E.g. Hyatt Legal Services, Gerber Foods.

Trademark Dilution - See pg 204-205. Certain trade names are so recognized that no matter what you use the name for, you must cease and desist. E.g. Coca-Cola Motels.

Servicemarks - "Home of the Whopper"

Patents and other intellectual property - trade secrets. Trade espionage is a federal crime. Coca-cola has HFCS, not sugar. KFC just moved their secret recipe to a new safe.

See pg 215 trade secret:
1. not known by competition
2. business would lose its advantage if the competition were to obtain it
3. owner has taken reasonable steps to protect the secret

You make more money from suing infringers than from a patent itself.

Main thing is: you have to be careful when you use a logo or name.

Companies protect their trademark because if they don't, they can lose the right to use it exclusively.

Even if you alter the logo, like taking off the letters from the BMW logo, you can still get sued for infringement.

Intro to Contracts

Your rights and liabilities under agreements.

A contract is an agreement between two or more parties (individuals, corps, partnerships, govts), the breach of which the law affords a remedy.

Not all agreements are enforceable. Not all are legal.

Manifestation of mutual assent. Offer. Acceptance. Must be voluntary. Duress. Undue influence. Must be legal - have a legal purpose. Sometimes people need to be licensed. If not, if the contract enforceable?

Contractual capacity - parties must have capacity, i.e. be 18 yrs old and have mental capacity.

Some contracts must be in writing. Some can be oral or in writing.

Consideration: The quid pro quo. A contract must have consideration. Promises to make gifts are generally not enforceable. Consideration is a legal detriment. the legal sufficiency of consideration.

What happens if you want to change an executed contract.

Every day of your life, you're in a contract.

The owner of property owes a duty of care to invitees for their safety. Ex: Old Orchard shopping center could they be sued when a crime happened there? Did they need to add more security guards? No. Because there had only been 2 violent crimes (one at Mario Tricocci and one food court murder by a fired employee) in the past. Neither was foreseeable, so the owner wasn't liable. You only need to provide the necessary security to protect against foreseeable incidents. See Campisi v Acme Markets when a blind employee with a cane caused a customer to trip.

Bloomingdales in Hartford, CT. It's a high-crime area. A woman was raped and murdered. The family sued Bloomingdales. Bloomies was found to be negligent. Similar situation with a Fotomat.

Trademarks

See page 201. BMW vigorously protects their logo. See the program Illicit (PBS special) about trademark infringement.

Classification of Trademarks:
Arbitrary & Fanciful (preferred by the courts)
Suggestive
Descriptive
Generic

If you don't enforce your trademark, it can become generic. Ex: Aspirin (was originally owned by Bayer).

On Thursday, we will start contracts. This is important!

Class 21

An oral lease is not a lease. A lease must be writing to be valid. See page 182-193.

Unless it's prohibited by the terms of the lease, you can sublease.

Lease must state where it is, for how long, and for how much. Can be month-to-month. Can include other terms also. Tenant can't abuse the property or change it. Can't let it fall into disrepair.

Most leases are based on Uniform Residential Landlord and Tenant Act.

Security deposit cannot be retained because of normal wear and tear. Only if you misuse, damage or allow to fall into disrepair. If landlord tries to retain it, you get 3x back.

Lease can state intended use.

Nielsen v. Gold's Gym - terms were ambiguous. If it's not clear, the court can't do anything with it.

Public Control - Eminent Domain - 5th amendment says govt can take private property for public use. Even if they take or limit your ability to use your property (like an easement), they must pay you for that. Ex: land in Florida taken to be a wildlife refuge.

Zoning laws

Torts against Property:
Trespass to land - unlawful intrusion by a person or thing on land belonging to another. Even if the trespasser didn't realize it. In criminal law, it's only if they know about it. "You can't shoot a trespasser."

Common types - dumping, hunting, building on someone else's property (fence over the property line). two choices: give it to the other person or tear it down. if it's a big structure, buy the property.

Nuisance

Private nuisance: Anything that interferes with the use and enjoyment of the land.
Public nuisance: interference with the public health and welfare.

Ex: neighbor from hell. wrigley night games. midway and ohare airport expansions. barking dogs at nw corner of estes and washtenaw.

businesses that detract from neighboring businesses. ex: boutique next to aerobic dance studio.

Trespass to Personal Property
Conversion - intention, unlawful control or appropriation of the personal property of another. civil side of theft. if you rent a dvd and never return it, after a while, you own it. also, changing the character of the property. ex: loan of a car and then put many miles on it.

Premises Liability
slip and fall cases. if it's not safe, it's negligent.
It's no longer true that if you don't clean the snow, it's not your fault, but if you do, it is. Now, you must keep the property clean and safe.

Class 20 - Product Liability (cont)

History of Product Liability Law

Before 1900 there was little or no protection for a consumer from defective products. You had to show a direct contractual relationship - privity of contract. Also, there was a rule of caveat emptor.

After industrialization, it was impossible to determine if something was defective when you took possession of it. McPherson v Buick Motors eliminated the direct contract requirement. It established the concept of Negligence in Tort. I.e. if you can show that the manufacturer owed a duty of care, that there was a breach of that duty, that the damage was directly caused ("but for") and that the damage was foreseeable, you could sue the mftr even without a direct contract.

It was ruled that you could also go after the producer for defects due to breach of contract. There is implicit contract that the product is Fit For Use. Strict liability for breach of implied liability. This was especially important in food cases. Must be in original container. Still had to show a defect in the product - not just that you got sick or were otherwise injured.

There is also Strict liability for breach of an express warranty. Specific words in the contract or in advertisements, brochures, billboards, etc. Express warranties are statements of fact, not opinions or sales techniques ("puffing"). Something factual used to induce you to buy the product. Ex: Baxter v Ford Motors. Sales brochures said that the glass was shatter-proof. They claimed it was only a brochure, but it was ruled to constitute a warranty.

See Oldsmobile case where they had Chevy engines. That was a breach of an express warranty.

No negligence required.

See Greenman v Yuba Power Products pg 161. Greenman recovered due to the principle of strict liability in tort, not negligence. He was using it as intended, the product was defective. In such a case, the injured party can recover, even without negligence.

Section 402 - Restatement of the law of torts. Every major area of law has a "restatement". Judges collect major cases periodically. Here, they added a section - 402a - with the strict liability concept. It applies to merchants. It applies even if the merchant exercised all possible care. It applies even though there is no direct contract with the user.

You don't even need to be the purchaser. You could even be just a user. The manufacturer is liable even many years later, if the defect existed when the item was first sold/delivered.

402a - read it!

Primary areas of product liability law:

1. defect in the product
2. design defect
3. failure to warn

Failure to warn - if the manufacturer fails to warn. see morales v american honda motor co. We went from an area of no consumer protection, to a point now where it's almost absolute liability.

See Parish v ICON. Trampoline user breaks his neck. Trial court granted summary judgement for the manufacturer. affirmed by appeals and supreme courts.

Morales v American Honda. Warnings were given to the parents, but since it was a child's product, the warnings were considered inadequate. Warnings must be directed toward the user.

See examples of failure to warn on pg 165.

Rhys Syndrome - do not give aspirin to flu-like symptoms. Warnings were not written in Spanish and the manufacturer was held liable.

Design Defects

Product could have been made safer with a different design. See examples on pg 166.
See http://www.altlaw.org/v1/cases/414780 for the fryer/object falling from shirt pocket.

Next, we will cover:
Property, landlord tenant law
Trademarks

No class next Thursday, 11/12.

Class 19 - Business Torts

Business Torts (Chapter 7)

Reminder: Read the book in conjunction with the brilliant, charismatic lectures. :)
Words of wisdom: You don't take classes; you take instructors.

Tort reform. Usually insurance companies want it. Granted, there are abuses of the system. But the tort system gives access to the courts to anyone because lawyers will take cases on a contingent basis. (Briskman brothers)

Intentional interference with contractual relations.
A 3rd party tries to interfer with one of the parties to a contract, usually to get them to break the contract. Ex: restaurant with a contract to buy meat from an exclusive distributor/supplier. Another supplier offers a lower price and to cover any breach of contract lawsuits. This is illegal and constitutes intentional interference with contractual relations.

Question: don't cell phone do this all the time? No. as long as the cell phone provider doesn't initiate the contact, they're not guilty of interference.

Interference with prospective advantage
No contract, but someone is trying to take away your potential business in a predatory behavior manner such as blocking the entrance to a store and urging customers to go to another vendor.

See AM77 Baking Company case.

Product Liability

Four bases for product liability suits
negligence
defectively made product
design defect
faliure to warn

Product liability laws were developed after the industrial revolution and the proliferation of technologically advanced products. Prior to that, you had to have a direct contract with the manufacturer, which was extremely rare. Therefore, there were very few suits. Even with a contract, the principle of caveat emptor - let the buy beware - applied and the buyer was expected to inspect the product and discover any defects before using it.

First major case: Mcpherson vs. Buick Motor company 1916
Wheel fell off.
It established the doctrine of Negligence in Tort. If a manufacturer produces a product negligently, they can be held liable for damage that results from that negligence, even without a direct contract or caveat emptor.

Still, the injured party must show:
1. that a duty of care is owed
2. act breach of duty of care (here, they didn't test wheels produced by 3rd party)
3. but-for
4. foreseeable

Strict liability under contract law - defect in the goods, damage was done. regardless of how careful the manufacturer was in production.
Big step for consumer protection.

Implied warranty - there is always an implied warranty that the product is safe and fit for its intended use.

First came about from food/drink. See Mazetti v Armour (pg 160 text). If it's in the original container, there's an implied warranty that it's safe to consume.

Express warranty - simple sales talk is not a warranty. saying or representation of any statements of fact about the product are considered an express warranty. Ex: rebuilt engine, low mileage, etc. See case of Baxter v Ford Motor (pg 160 text) - shatterproof glass was advertised, but not in warranties. Pebble hit the window and shattered the window, blinding the driver. The advertisement was determined to constitute an express warranty.

Class 18

Negligent Torts (recap)

5 elements
Duty
Breach of Duty
Cause in Fact
Proximate Cause
Actual Harm

Major diff btw intentional torts and ngelignece, you must allege and prove actual harm - real injury. Intentional torts don't need real injury. It can be offensive.

Foreseeability. You owe a duty of care to those whom you can foreseeably injure.

Expansion of duty of care. Ex: Accounting firm (E&W) doctored the books of EL Jackson in order for them to buy steel on credit from Bethlehem Steel. BS sued E&W for negligence. Supreme court of Tennessee ruled that it was foreseeable that Bethlehem Steel and like companies may be injured by the negligent actions of E&W.

In certain situations, it's difficult to establish negligence. Especially, medical malpractice. If the instrumentality that caused harm is under the sole control of the accused and if the harm normally doesn't occur unless someone is negligent, then the rule of res ipsa loquitur applies and the burden of proof shifts to the accused - to prove that s/he was not negligence.

"But for" analysis. Prove that but-for the negligence, the person would not have been harmed.

Contributory/comparative negligence - we'll talk about that later.

Proximate cause is not the same as cause in fact. Proximate cause refers to foreseeability of the type of harm. Classic case: Palsgraf. There was no foreseeability of that harm happening. Another example: Chicago fire, caused by Mrs. O'leary's cow. That much harm was not foreseeable.

Intervening Conduct - if the causal connection is broken. Goldberg v Florida Power (pg 131) See also the Jay-Z example on pg 133.

Attractive nuisance - a nuisance that creates a danger. An uncovered swimming pool. An open construction site.

Defenses To Negligence

Assumption of Risk - it is a defense to negligence. by engaging in certain conduct, you assume some risk. But the accused person must prove that you knew of the risk.

Some places require that people assume risk by signing a waiver. Exculpatory clause. Ex: paintball case McCune v Myrtle Beach Indoor Shooting Range. Ex: drag racing, riding shotgun. Ex: smoking cigarettes with warning labels.

Exculpatory clause: you can't negate your own responsibility for your own negligence. Ex: apartment lease - landlord not responsible for any negligence. These clauses are invalid. Ex: Valet parking. It's a bailment and they're responsible at a higher level of care if you're paying them.

Comparative negligence: not so much a defense as it is a reduction of damages. Illinois was formerly (thru mid 1970s) a contributory negligence state. If the injured party was in any way negligent, they would not be able to recover anything. Ex: if you were walking against the light and a reckless driver hits you, you couldn't recover anythign from the driver. Now, Illinois goes according to comparative negligence where they judge the percentage of responsibility and recovery goes according to the percentage.

See wassell v adams. Wassell was 97% negligent, but recovered 3%. Current law is that if you are more than half negligent yourself, you can't collect any damages at all.

Preview:

Chapter 7: Business Torts: fraud, product liability. Under current law, the manufacturer, distributor, or seller may be liable for product liability.
defective product
failure to warn
design defect

Class 17 - Negligence-based Torts

General comment from midterm:

You can't collect money unless there's some legal basis to do so:
negligence
intentional, without lawful justification

But simple accidents don't necessarily qualify. Example: Woman who tripped over a parking barrier at the American Legion.

Negligence-based / Unintentional Torts

There are conditions, just like in Intentional Torts. 4 elements (possibly a fifth):
1. Duty of ordinary care is owed by the wrongdoer. It all depends on the situation. Ex: driving. You owe a duty of care to others of an ordinary, reasonable, prudent driver. Howver, the duty of care is owed only if engaged in an activity. No duty is owed to engage in an activity. Unless a parental, public or contractual obligation - those people have a duty to engage in action. Failure to do so may be considered negligence. Only owed to parties who could forseeably be injured by your actions, not to their second cousins.

See Bethlehem Steel v. Ernst & Whinney. E&W had a client EL Jackson who wanted to purchase steel on credit. E&W exaggerated the worth of EL Jackson. When EL Jackson defaulted on the payments to Bethlehem, Bethlehem came after E&W. Court ruled that E&W owed a duty of care also to Bethlehem because it was foreseeable that they would be injured by their actions.

Similar thing happened with Enron and Anderson.


2. The injury was a result of an action or omission that was a breach of the duty of care. Some careless behavior. Establish negligence by showing a duty of care and also an act or omission that was a breach of that duty of care. The act/omission can sometimes be difficult to identify and pinpoint. Ex: medical malpractice.

See res ipsa loquitur ("the thing speaks for itself") on page 130 - obvious case of something having gone wrong due to negligence. If the instrumentality is under wrongdoers control exclusively and this type of injury does not occur unless there is some negligence, then the wrongdoer must disprove that they were not negligent. A shift in the burden of proof to the accused.

Ex: case of airplane that crashed due to engine falling off.

If no duty of care or no breach, there's no case.

Causation

Two areas to look at.

3. The "but for" test. Ex: fire in a hotel room with no fire escapes. Ex: broken down car, not all the way on the shoulder, hit by a speeding truck. Would have still been injured, even if they were not speeding or negligent. Therefore, there is no basis for the tort.

4. Harm must be foreseeable. The chain of causation. Proximate cause.
Ex: car crash - window washer falls. not forseeable. Ex: Chicago fire. Oleary can't be held responsible for the whole fire.
You can only extend the chain so far. Foreseeable by a reasonable person.

Also,
5. Must be the victim of real harm. Bumping into someone's car without damage/injury doesn't qualify.

See Palsgraf v. Long Island Railroad
Cardozo ruled that the railroad employee's negligence was not the proximate cause of the injury to the woman.

Class 16 - Midterm Review

Midterms will be returned on Thursday.

Midterm Review

Discrimination
Levels of governmental interest required for laws which discriminate between
Racial: Overwhelming
Sex: Sustantial
Age: Minor

4th Amendment
Exceptions to the warrant requirement:
Exegency
Plain view

Malicious Prosecution
People lie about what they witnessed someone else do.

Business Jurisdiction - only "minimal contact" is required

Comparative Negligence

Proximate Cause - read Palsgraf v Long Island Railroad
Also read Wassell v Adams

Read negligence

Class 15 - Intentional Torts (cont.) and Review

Midterm will cover chapters 1-5 and the second half of chapter 6.
It will be essays.

Know the definitions.

Assault: Intentional conduct which places another in apprehensive of a battery without lawful justification. Words alone are not an assault. There must be some physical action.

Battery: An unlawful touching. The intentional physical contact with another which is either harmful or offensive without lawful justification.

Offensive - objective standard, to an ordinary reasonable person. However, if the offended person has notified the offender, then continued touching would be offensive to an ordinary person.

Even a joke can be a battery. Remember the case of Southwest Airlines.

Self-defense - can only use the force necessary to stop the offender. Excessive force is a battery.

False Imprisonment

Intentional tort. aka false arrest. Intentional confinement of a person to a bound/confined area, without lawful justification.

Sometimes happens with store security.

Ex: Guy keeps someone on a boat against that person's will. Even though there was no weapon or threats, it still constituted "confinement".

See Russell v. Kinney Contractors pg 139

Shoplifting - security can't search you for no reason. that detention could be false imprisonment. touching could be battery. they can't just say you looked suspicious. they must have some reasonable reason for detaining and searching you.

Infliction of Emotional Distress
This is a new tort (100-120 yrs old). Not in English common law. Due to growth of the field of psychology.
Definition: Extreme and outrageous intentional conduct which results in severe emotional distress with physical manifestations, without lawful justification.

See White vs Monsanto - the conduct did not meet the test of extreme and outrageous conduct, although it did involve severe emotional distress with physical manifestations.

Collections agency once told a woman that her husband was in a car accident in order to lure her into that situation and approach her about the account. It was ruled to be extreme and outrageous conduct.

All elements of the law must be met in order to be guilty of the offense.

Invasion of Privacy
Four torts rolled into one:
1. Use of a person's name or likeness (including voice) without permission. Joan Rivers once sued for voice impersonation.
2. Intrusion into a person's solitude. Includes harassment and unwanted phone calls, wiretapping and searches.
3. Putting someone in a false light. not defamation. defamation is false information. this is misinformation. ex: photo with caption of "alcohol ruining sports"
4. Public exposure of private information. includes drug use and debts. any public records are fair game, including court suits.

Defamation
There are 3 elements to defamation
1. a false and defamatory statement about another person
2. communicated to a 3rd party
3. causes harm to the person about whom the statement was made

and additional element:
Malice - if the person defamed is a public official or figure (sports, entertainer, politician), they must show actual malice, i.e. with the knowledge of its falsity or that the communicator didn't care. This is frequently difficult to prove.

You are presumed damaged by certain types of defamation.

Privilege - things said in a court room are not subject to defamation. Congressmen also have a protection of privilege for what they say on the floor of the Congress.

Malicious prosecution - giving false info to the police so others will be arrested. Similarly, frivolous law suits.

Review:
7 essay questions.
Spelling and grammar are not important.

Some questions on the first amendment
commercial speech and political speech protection - regulated in time, place and manner
limitation on commercial speech (substantial govtal interest) and political speech (high bar)

4th amendment - s&s - two questions
criminial investigatory search
osha type search
warrant requirements
4th amendment protection
probable cause - what does the govt
exegency - w/o a warrant

giant tort question
what are the issues/torts?
numerous issues - is there a tort there?
what is the rule of law

14th amenedment - equal protection
different standards
sex, age

jurisdiction
long arm of the courts to reach out to other states and hear cases
minimal contact - incorporate, some biz in the state, headquarters

Class 14 - Intentional Torts

Midterm will be next Thursday, Oct 22. Includes everything through the second half of Ch 6 (intentional torts), but not the first half of Ch 6. Review will be on Tuesday.

Many different types. Wrongful conduct against a person or property. Many of these are also crimes. Know the definitions of these torts - assault, battery, false imprisonment, intentional inflictions of emotional distress.

Battery: unlawful touching which is intentional physical contact without consent. Punitive damages would only be applied if it was intentional. Only compensatory - medical, rehab, lost future wages.

Intentional torts always carry a punitive damage award.

Battery - intention physical contact which is either harmful or offensive without lawful justification. Self defense is considered lawful justification. Throwing an object is also a battery. Direct contact is not necessary.

Assault - intentional which places another person in apprehension of an imminent physical contact without lawful justification. Words alone and oral threats are not an assault. Physical conduct coupled with words is an assault.

Assault and battery are separate and each can occur without the other.

Intent travels with the object. If you throw something and it hits an unintended target, it's still a battery against that unintended target. Ex: drive-by shooting which hits an innocent bystander.

Assault must be immediate. Threatening someone with harm at a later time is not assault.

Assault only applies if the victim sees it coming. If not, there's no apprehension. In the criminal area, there does not need to be apprehension.

Battery can be offensive, not just harmful. Ex: Groping. Offensive has an objective standard based on an ordinary, reasonable person in contemporary American society. If the person is personally offended and has notified the offender, any further contact may be a battery.

See Fuerschbach v Southwest Airlines pp 137-138 - sometimes jokes and pranks can be assault and battery. You don't have to intend to harm. The intent is only required on the contact. You don't have to know how much harm will come from the contact. Only intent for the contact is required for it to be considered battery.

Defenses:
Consent - ex: sporting events. But only reasonable contact that can be expected in the sport.
Privilege
Self defense - only if your act of defense is reasonable in the circumstances. Only use deadly force if you are in danger of death or great bodily harm.
Cannot cause great bodily harm in defense of property. However, you may protect your house from intruders with deadly force.
See case of Iowa farmer who set up a shotgun to shoot a burgler - there was no threat of harm.
Defense of Others - if you do, you step into that person's shoes.

Class 13 - Equal Protection

Proximate cause in the area of negligence law - Palsgraf v Long Island Railroad Company
Intentional infliction of emotional distress - White v Monsanto
Comparative negligence - Wassell v Adams

Equal protection
Comes from 14th amendment. End of civil war - 3 amendments: 13, 14 and 15.
14th section 1 - all persons born or naturalized in the US are citizens of the US.

In practice, the 14th amendment was not used to end discrimination. It furthered it.

See Plessy v Ferguson. Plessy was of mixed race and considered himself as Caucasian. He wanted to ride in the "Whites Only" railroad car, but was denied. SCOTUS ruled that "separate but equal" facilities were considered equal protection.

Over the next several years and decades, SCOTUS wittled away at Plessy. See Sweatt v Painter.

In 1954, Brown v Board of Education decision reversed this.

Not all discriminatory laws violate equal protection. There's a test. If there's a race-based law, it's suspicious, but not necessarily invalid. Affirmative action is an example of a valid race-based law. Another discriminatory law example is the drinking age requirement. Govt must have a rational basis and an overwhelming interest to institute these laws.

See pg 97 US v Virginia.

Chapter 5 - Criminal Law

Intent. You can't be held responsible unless you have the mental ability to form intent.

See People v Salas, pg 105

Generally 3 year statute of limitation. Forgery and arson have none. Misdemeanors are usually 1.5 years.

Insanity is a defense. They don't have legal intent.

See list of white collar crimes on pp 110-116.

Midterm will be on Thursday 10/22 and cover through intentional torts (second half of ch 6). Based exclusively on the lecture. Tuesday 10/20 will be the review. Negligence will be on the final.

Class 12 - Eminent Domain

Midterm will be on Oct 20.

When we get to torts (Ch. 6), we'll be doing the second half of the chapter first. Start at pg 135 - Intentional Torts. Finish the chapter and then do the first half - negligence and duty of care.

It's easier to understand intentional torts first and then negligence and it's taught that way in law school.

Review of eminent domain - 5th amendment. This amendment includes several unrelated issues. The taking of private property for public use: usually for highways, schools, airports, etc. Generally, the government pays good money for it. There were some exceptions where the people protested: Midway expansion, cross-town expressway. Daley's legacy was moving UIC from Navy Pier to Circle Campus. The people who lived there and got moved, made lots of money.

Some cases don't require a physical taking to be considered a "taking" of the property and requiring compensation. An easement may require compensation. Ex: Martin Gerber's land in central Florida which was declared a state wildlife refuge. Trial, appelate and state supreme courts ruled that it wasn't a "taking", but the US Supreme Court said that it was and required compensation.

See Kelo pg 91.

8th amendment - prohibits cruel and unusual punishment. Are excessive fines c&u punishment? They can't fine you out of business. Most fines have a statutory minimum and maximum. Forfeiture - sometimes your illegal actions are punishable by forfeiture of your property. Ex: a car that was involved in committing a crime, a house in which drugs are dealt. Forfeiture is not a fine and can be very excessive.

5th amendment right to not self-incriminate only applies to people, not businesses. 5th amendment only applies in criminal cases, not civil. "nor shall be compelled in any criminal case to be a witness against himself." This is where the Miranda rights come from.

Punitive damages can sometimes be far above the actual damages. Gore v BMW - car had acid rain damage and had been repainted to cover it up. SCOTUS decided that this was not an 8th amendment issue - it was a 14th amendment issue of due process.

14th amendment requires fundamental fairness. Substantive due process - Michigan tried to require 2 year residency in order to collect welfare. Procedural due process - Driver's license can't be taken away without a hearing.

Class 11 - Review of Search & Seizure and Eminent Domain

Placeholder. Notes will be transcribed soon.

Class 10 - Eminent Domain

Eminent Domain

Gov't can't take your property unless it's for public use and with just compensation. This power ensures that a single person won't be more powerful than the government.

Rich Karwaczka

Cruel and Unusual Punishment

Aim high!

Class 9 - Unreasonable Search and Seizure

pg 89 - Bill of Rights (4th amendment)

Must have a warrant. Must have probably cause for search and seizure. Reasonable reason to believe.

Should we have this amendment?
What if an officer searches without probable cause or a warrant?
Who does this amendment help?

Discussion of criminal search and seizure in various "what-if" scenarios with questions from students who must never have had a civics lesson droned on for half an hour. This entire discussion had nothing to do with business law.

Question of corporate personhood. See http://en.wikipedia.org/wiki/Corporate_personhood_debate

Class 8 - Constitutional Law (cont.)

Substitute teacher next week - Richard Karbalchka

Brief the major cases in chapter 4 for a week from Tuesday.
p 77 Katzenbach v
p80 Hughes v Oklahoma
p85 Consolidated Edison v Public
p87 Central Hudson Gas and Electric Co v
p91 Kelo v City of London, Connecticut

The non-specific definition of the Commerce Clause. Necessary and Proper clause. Allows for broad powers to Congress.
See also the Heart of Atlanta Hotel case.

See pg 79, Southern Railway Co v Arizona - AZ wanted to limit the length of a train. Court ruled that this was an impediment to interstate commerce. See other examples on pg 80.

State attorneys general are primarily involved in consumer protection.

See Hughes v Oklahoma p80. Minnows were prohibited from being shipped out of state. Was ruled as an impediment to interstate commerce.

Taxing Power

State taxes can sometimes be an impediment to interstate commerce. See cases at bottom of pg 82. Toll roads are not a violoation of the interstate commerce.

State taxes may also not impede foreign trade by taxing foreign goods.

The Bill of Rights

The Constitution only applies to Government. The bill of rights only applies to governmental violation of certain rights. Only the 13th amendment (involuntary servitude) applies to private areas.

Bill of Rights was added so the states would ratify the Constitution. States feared a strong central government (like England).

The Bill of Rights initially only applied to the federal government, not the states. First word of the first amendment: "Congress". Not state governments. Doctrine of Incorporation - see fourteenth amendment - extended the constitution and amendments to the states.

There are no absolute rights. There are some restrictions that can be imposed, if they're reasonable. You can't necessarily practice your faith in any way. Jehovah's Witnesses have brought more cases to the US Supreme Court than any other religion.

Freedom of Speech

Expression. But not absolute. Two types: business/commercial and political. In order to ban political speech, the govt must show an overwhelming governmental interest. That is very rare. Perhaps only during war with regard to military secrets. To ban commercial speech, there must be a substantial governmental interest.

Govt can regulate time, place and manner of the speech. See Consolidate Edison Co v Public
Service Commission of NY pg. 85. US Supreme Court upheld the company's right to include an inset with the bill.

Protests and demonstrations can be limited in time, place and manner. Permits can be required, but they can't be used to prevent you from speaking at all (as they did in the South).

First exam will be after Chapter 6.

Class 7 - Constitutional Law

Review: Trial process, importance of discovery. You need to be aware of the legal process because inevitably you'll be involved in it as part of business.

Damage awards. Remedies: money or enforcement of a contract. Punitive damages - for punishment of the wrongdoer. Intentional torts or gross negligence. Equitable remedies - no monetary damages, rather orders to do something or to refrain from something, i.e. injunctive relief. E.g. divorce. Courts of equity do not allow for jury trials. Specific performance - perform the contract. Employment contracts cannot force someone to work, it's involuntary servitude. Only in the military or peniteniary. Only award damages if there are special circumstances, e.g. attorney fees, cost to find a new car (if contract to sell a car was broken).

specific performance - land, art painting

Reminder: trial court decisions are not published. Trial courts are not binding on other courts. Appellate courts hear arguments of law, no witnesses.

Arbitration - will be covered when we talk about administrative law (govt agencies).

Constitutional Law (Chapter 4)

A brilliant document. It has lasted so long, because it is brief and non-specific. Not every aspect is defined. Open for interpretation. The Supreme Court is the final word on interpretation and on deciding whether lower court decisions are valid and whether laws passed by Congress are constitutional.

See Section 8 - the Commerce Clause
"To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes"
Refers to interstate commerce. Commerce = buying and selling anything.

Necessary & Proper Clause - gives the congress power to do whatever is "necessary and proper" to execute the rules in the constitution.

McColloch v Maryland
Supreme court decided that Congress needed a national bank in order to regulate interstate commerce. Also, if it's not excluded, it's included.
Established federal supremacy - federal laws take supremacy over state laws.

Wickard v Filburn
Farmer produced 239 bushels more than he was allowed. Even though his effects were trivial, Congress still has the right to regulate it, because if every farmer did it, it would have an impact on interstate commerce.

Katzenbach v McClung
(Aside: Protests at the building of Winston Towers for fear of them becoming CHA housing)
Johnson got civil rights bills passed.
Taken by attorney general straight to the Supreme Court.
The majority of their food product had come from other states. Therefore, this is a case of interstate commerce. Congress has the power to regulate such interstate commerce.

Briefing the case:
Name, court that decided it, when, facts, statement of the issue and the ruling.

See Katzenbach v Heart of Atlanta Motel - visitors were from out of state.

Lester Maddox - threatened blacks who came in, but was later elected governor.

Class 6 - Discovery and Trial Procedure

How does a case proceed?

Pleadings Stage

A complaint is filed in every kind of case to initiate the pleadings stage. No surprise trials. The complaint outlines the facts and the claim of the plaintiff. A criminal complaint is filed in criminal cases.

Defendent then files a response, usually denying each and every allegation. Sometimes there's a counterclaim, claiming that it was the original plaintiff who caused the damage.

Discovery Stage

This is the most important part for us. This stage prevents trial by ambush. Both sides know everything that each side has. Everything is out in the open.

In a civil case, opposition serves notice of interrogatories. These are questions that must be answered under oath. Then a summons is sent for the purpose of a discovery deposition. Usually in a law office in the presence of a pretrial judge and a court reporter.

You must comply with discovery. Otherwise, you could automatically lose the case. In criminal cases, opposing witnesses are not required to talk to the other side, but they must in civil cases.

No surprise witnesses. That's only on TV. The only exception is a rebuttal witness - when the defendent mentions someone else, that person may be brought as a rebuttal witness.

See Wauchop v Domino's Pizza.

Tom Monaghan refused to appear at a deposition.
(Aside: Monaghan at Montefiori Estate in Lemont. BMW logo - Red Baron von Rickthoven.)
Court ruled that he was just trying to put off the plaintiff and had no real reason not to give the deposition.

Vicarious liability - if you're an employee and acting within the scope of your employment and you negligently cause harm, both you and the employer will be held responsible.

Expert Witnesses

See Cooper Tire & Rubber v Mendez
The expert witness had a theory that was not generally accepted in the scientific community.
You first must qualify an expert witness as an expert. Vanity publishing does not qualify.

Summary Judgment

After discovery, if there are no genuine issues and everyone agrees on the facts, and one side believes that there's no basis in law for the other side, they can ask for a summary judgement.

At the close of a case, the jury gets the case and comes back with a verdict. The judge can change the verdict notwithstanding the jury's determination. But the judge can't change an innocent verdict to guilty in a criminal case.

Juries usually need to be unanimous, but in some states only 10/12 are required. If not unanimous, it's a mistrial and must retry.

Remedy

Money - compensatory damages to put you back in the position you were in before you were damaged.

Punitive damages - punishment of the wrongdoer. Usually only for intentional and egregious behavior. Not usual in auto accidents, unless there's gross negligence, like going 100 mph.

E.g Ford Pinto. Design defect in gas tank. Ford knew about the problem, but didn't do a recall. It was in the company records. Ford had to pay punitive damages.

Nominal damages - for cases "on principle". Award of just $1 is common.

Specific performance - court orders you to perform some action. Common in contract disputes. Courts can't impose "involuntary servitude" in employment law to make one person work for another.

Next week: read ch 3 and 4

Class 5 - Jurisdiction

Jurisdiction

Gives the court power and authority to hear a case. Two types:
Jurisdiction over the subject matter
Jurisdiction over the person

This stems from the right to due process. You can't be held responsible for something that you don't know you're being held responsible. Once you're served with process, you have 28 or 30 days to respond, otherwise you're automatically held responsible.

Long-arm jurisdiciton: the ability of a court to have jurisdiction over an out-of-state defendent. It applies in any of these three situations:
1. company was incoporated in the state
2. company has its principle offices or factory in the state
3. compay was doing business in the state (not necessarily a lot of business, just minimal - enough that the company could reasonably foresee that someone in the state may be harmed)

See case of Killum v Oregon State University
See case of Blimka v My Web Wholesalers (page 36) - even having a web site is considered doing business in the state.

Case of woman in Arizona who read an article about a medical procedure available at Ohio State University. She brought a medical malpractice suit. The advertisement was enough to establish "doing business" in Arizona.

Case in Kansas City, Missouri in which a doctor who had a procedure for weight loss and discussed it on TV on a panel discussion. A woman from KC, Kansas brought a medical malpractice suit. Here, there was no soliciting or advertising, so there was no juridiction for the Kansas courts.

Applying the appropriate state law in Federal Court (pg 40)

In cases of diversity of citizenship. There are no federal tort laws. See case of Erie Railroad v Tompkins. Filed in federal court.

Diversity of citizenship: If you sue someone from a different state, the defendent can request that the case be "removed" to federal court (if the amount in question is at least $75,000). Federal judges are not biased towards citizens of one state. They're appointed for life, not voted or retained, like state judges.

See The Scottsboro Boys. African-american boys in a freight train with white prostitutes. Tried for rape, which was a capital offense in those days. Judge dismissed the case and was then voted out of office. That's political pressure.

See also Mississippi Burning.

In Tompkins, Tompkins wanted NY law. Defendents wanted Penn law because it doesn't require them to pay for damages to trespassers. In Illinois, you have a duty of care to trespassers, but only if you have reason to believe that they're there.

Attractive nuisance: Tank at Devon and Clark.

Applying the appropriate state law in state court

See case of Hughes v. Wal-Mart (hand-out)

Case of gas can purchased in Monroe, Louisiana. Daughter was injured. Filed suit against Wal-Mart, in Arkansas where they are headquartered. Arkansas law holds a distributor liable responsible for defective products. Under Lousiana law, only the manufacturer is liable.

Since everything happened in Louisiana (purchase, damage, medical treatment), the federal court applied the law of Louisiana.

See Miller v Pilgrim's Pride Corp (pg 42). Texas law was applied. Why?

Change of venue. In the interest of justice or fairness, defendant can request a move. Ex: Richard Speck trial was moved from Chicago to Peoria. Drew Peterson, John Wayne Gacy.

Read the Domino's case and Chapter 3. Discover, trial process.

Class 4 - The Court System and Jurisdiction

Moral and ethical implications of the law

It's really hard to find any law that doesn't have some ethical basis, even speeding laws. But the govt runs into problems when they try to "legislate morality."

Note: There will be a substitute teacher on the week of the 28th (i.e., Sept 29 and Oct 1).

The Court System

Two ways to become a judge in Illinois. Full circuit court judges and associate judges. Full cc judges can be appointed by the Supreme court to fill a vacancy but then you must run. Bar associations investigate candidates and publish their findings. Judges may run county-wide or by district subcircuit. Democrats usually run county-wide or in a Chicago subcircuit. Republicans usually run in a suburban subcircuit. Associate judges are not elected, they get screened by bar associations. 6 year terms. Primary and then Nov election. After 6 years, retention ballot which require 60%.

Federal court judges are appointed by the President for all levels (trial, appeals, supreme) and get confirmed by the Senate. Can only be removed by impeachment.

Merit selection of judges has been suggested in Illinois, but it never got anywhere.

Lifetime appointments are immune from political bias.

US Supreme Court. 9 justices. Most cases are not heard. You need to apply to be heard and most don't make it.

The number of federal courts under the supreme court is subject to be changed. It's not specified by the constitution. Just as many as needed.

Death penalty cases in Illinois are appealed directly to the Illinois Supreme Court.

Jurisdiction

Huge and important subject. Jurisdiction is authority, power.
There are two categories of jurisdiction:
over subject matter
over the person

Jurisdiction over subject matter is least challenged.
Prior to 1962, courts in Cook County were divided by jurisdiction over subject matter - criminal, divorce, probate, etc. In 1962, they created the Circuit Court of Cook County with different divisions. You only need to file in the CCofCC and it will be transfered to the correct division.

Federal court cases are limited to US statutes and constitution. Not personal injury or divorce, etc. Bank robbery is a federal crime and a state crime. Even if you're found not guilty in federal court, you could be tried in state court.

Jurisdiction over the person

Court can't enter judgement against you unless they have jurisdiction over a person.

A complaint is filed in the CCofCC (with fee). Clerk takes it to sheriff who serves the summons. If the sheriff can't serve, the court will only have jurisdiction over the subject matter (e.g. divorce) and assets, but not the person (alimony/maintenance).

Jurisdiction over a person is only obtained when they are notified of what they are being sued for, either in person or sometimes with certified mail.

Out of State Defendants

E.g. Personal injury by an individual or corporation from another state (NY). What do you do? Have them served in NY. If he doesn't show up, you get a default judgement. To get your money, you need to"domesticate the judgement" by taking it to NY. Full faith and credit must be given to laws and rulings between states.

Business cases require fulfillment of the "long arm" requirements in order to be tried in a state through personal jurisdiction over the corporation:
1. The state of incorporation
2. The state of the corporate headquarters
3. The corporation does business in the state (even just advertising). This is the most common.

See case of Oregon v Lillard. Ruling: OSU's coming to California to recruit a basketball player constituted "doing busines" in the state.

Class 3 - Procedural Law, Morality and Ethics

Classification of laws (continued)

Importance of Substantive vs. Procedural law

Procedure is very important. For example, there are time constraints - statute of limitation. Usually 1-2 years for torts. If not filed during that time, you can't file any more. This is a common area of legal malpractice. This is also why lawyers are frequently quick to file. Statute of limitations apply to both civil and criminal cases. There is no SofL for murder or arson or treason. Oral contract 5 years, written contract 10 years. 120-160 days from arrest to bring the person to trial. If the defendent causes the delay, through motions or other factors, that stops the clock.

The suit must be filed properly.

Civil case: either side can file an appeal.
Criminal case: once found not-guilty, the government cannot appeal

Ethics and Business

Morality and the Law. Much of our law is based on a moral/religious basis. Some laws, such as jaywalking, are not. See Soldano v O'Daniels. Negligence: there was a duty of care, carelessness, carelessness caused the injury, it was foreseeable. You only owe a duty of care if you're engaged in certain actions which make you responsible for acting. Otherwise, even though you may be morally obligated to act, you're not legally responsible.

Summary judgement: No dispute of facts. The law is clear. Judge decides without a trial.

Soldano v O'Daniels - perhaps the prevention of the patron from using the phone was considered an "action".

See US v Stanley in book pg 19. Army sergeant given LSD without his knowledge. Stanley claimed that the Army had a duty of care and should have informed him.

Laws based on morality: Adultery is a crime in some cases. Bigamy is a class 4 felony. Utah had to criminalize polygamy before they were allowed into the union.

There are no (or at least very few) absolute freedoms. We'll talk more about this when we cover the first amendment.

Selection of judges. See pages 25-26.

Chapter 1 Notes

Definition of law:
A collection of rules or principles intended to limit and direct human behavior.

Roles of law:
Influence behavior – social stability
Resolve disputes – courts provide a consistent mechanism
Maintain social values – honesty and integrity through contract law
Provide a method for social change

Sources of law:
Constitutions – US and State
Legislatures – US and State – statutory law
Administrative Agencies – regulations
Judicial decisions – common law

Classifications of law:
Public law
Private law
Criminal law
Civil law
Substantive law
Procedural law

Ethics
Public image of business has declined.
Possible explanation: ethical standards have fallen
Legislation to address issues of corporate dishonesty has mushroomed
Unethical behavior can arise from bad decisions in business or from the environment created by government – campaign contributions and direct bribes.

Cases:
United States v Stanley – LSD given to soldier. Scalia: soldier can’t sue. Brennan: soldier can sue individuals because they must consider their actions individually.

Davis v Baugh Industrial Contractors – employee killed while inspecting a contractors leaky pipe. Chambers: Completion and Acceptance Doctrine is outmoded, incorrect and harmful. Owner should not assume all responsibility once he inspects and accepts the work. Today, things are too complex and owners are incapable of recognizing substandard performance.

Class 2 - Sources and Classifications of Law

Goal - retain knowledge and be able to use it.

Be familiar with sources of law.

US constitution is the "law of the land". States have their own constitution and must comply with US constitution.

Must understand history of the period when it was created.

Legislative actions and statutes - statutory law. Ordinances are passed by city councils or the county board. State laws. Federal legislation. All must comply with US constitution. If not, it's void. US Supreme Court decides whether or not it complies.

Agencies and regulations. E.g. OSHA, EPA, FAA, FCC, DEA, FDA. They are an administrative agent of the legislatures. Their rules, called regulations, are law and are just as powerful.

Common law - a series of case law decisions from England. One state, Louisiana, does not follow common law. They follow the Napoleanic Code. Definitions have been the same for many years. (E.g. battery)

3 tiered system - trial, appellate, supreme courts. Trial court decisions are not published. Appellate and Supreme decisions are and they're binding on other courts. This leads to consistency and gives expectations. Illinois Supreme decisions are binding in Illinois, but not other states. Lower courts cannot overturn higher courts.

Plessy v Ferguson - late 1800s. African-American passenger in "whites only" train car. 14th amendment required equal treatment. Supreme court established "separate but equal" policy. In 1954, Brown v Board of Education, Supreme court said that separate is inheritly not equal, overturning the previous decision.

Classification of law - public vs private law. Public = relationship between people and the government. Private = relationship between individuals.

Our court system is very accessible. The contingent fee system allows people without a lot of money to be able to pursue law suits.

Eg. Battery - crime, tort. The crime is against the people. It's public.

Criminal - requires unanimous jury and conviction beyond a reasonable doubt.
Civil - burden is on a perponderance of evidence. In Illinois, jury can be only 6 people, but must be unanimous. No jury trials in domestic relations court (divorce) or noisy neighbor court.

Substantive law - the main part of the law, definition of the crimes.
Procedureal law - the rules and processes of being charged and tried for the breaking the law. If the rules are not followed, you may be found not guilty just as if you had been found not guilty in a regular trial.

Fines and fees are statuory and must be followed. Judges can't make them up.

Class 1 - Overview

Instructor:
Michael Gerber
"Permanent part-time"
Day job: Assistant State’s Attorney
Schooling: Rogers – Mather – Roosevelt – De Paul Law
Uses the email address at state’s attorney’s office.
Office is in the “A” wing - the new business and management building.

Textbook:
The Legal Environment of Business by Meiners, Ringleb and Edwards
Must have 10th edition of the textbook.
Additional cases from outside the textbook will be distributed (about 12).

Grading:
Midterm and final (not 3 exams as in the syllabus) which makes up most of the grade. Essay exams. You will be given hypothetical cases. You need to be able to discuss a case on paper. Given broad general fact situations, you must identify the issues and apply the law.
Exams count for 85% of grade. Rest of grade is attendance, discussion, participation. Exams are based exclusive on what’s discussed in class, not the entire book. Approximately 7 questions. Not tricky. Proper English is not as important as your analysis.
There will be a complete review in class before the exam.

Key topics:
Understand certain areas that you will need to know. Certain chapters are key – torts, contracts, product liability, constitutional law, interstate commerce, discrimination.
He will review the cases and issues in an historical context.
1st amendment – political and commercial speech
Court system, jurisdiction

Homework:
We will have to prepare briefs of certain cases, as assigned. Can be handwritten. No briefs until chapter 4. They’re not strictly graded, but he’ll let you know if you’re not on the right track. Not necessarily as detailed as the syllabus indicates. He’ll let us know what he wants from each brief.

For next class:
Read chapter 1 for next class (Thursday) and bring the book to every class.