You Be the Judge book

Transcription

Student Workbook
Series No. 1
A Case Studies Workbook in Business & Consumer Law
Michael K. Glucksman, Esq.
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©2011 B.E. Publishing, Inc. All rights reserved.
Student Workbook
Series No. 1
Michael K. Glucksman, Esq.
www.bepublishing.com
©2011 B.E. Publishing, Inc. All rights reserved.
Student Workbook
SeriesNo.1
PUBLISHEDBY
You Be the Judge! • Student Workbook
ISBN:1-934422-23-1
Copyright©2011byB.E.Publishing,Inc.
AllRightsReserved.Nopartofthisworkcoveredby
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tographic,electronic,ormechanical,including
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expressedwrittenpermissionofthepublisher.
Author
MichaelK.Glucksman,Esq.
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About the Author
MichaelK.Glucksman,Esq.,iscurrentlyalicensed,
practicingattorneyinthestatesofRhodeIslandand
Massachusetts,aswellasintheFederalCourts.Mr.
Glucksmanhasextensivelegalexpertiseinavariety
ofcivilandcriminallawareas,andalsoservesasaCity
SolicitorandAssistantProsecutorwhereheoversees
municipal,contract,andlaborissues.Mr.Glucksman
alsoservesasanadjunctfacultymemberatthe
universitylevelwhereheteachesBusiness,Criminal,and
Employmentlawcourses.Mr.Glucksmanobtainedhis
LawDegreefromtheUniversityofMiamiSchoolofLaw.
Contents
Introduction
Curriculum Guide
v
viii
Commonwealth v. Snyder
1
M.D., a minor, v. Morgan Hill Unified School District
9
State v. Stallman
17
People v. William D.
25
Mattel, Inc. v. MGA Entertainment, Inc.
33
Sharon v. City of Newton
41
Bowling v. Sperry
49
Holmes v. Lerner
57
Selwyn v. Ward
65
Tobin v. Norwood Country Club, Inc.
73
Johnston v. Poulin 81
Volpe v. Gallagher 89
Nicholson v. Bd. of Educ. of the City of New York
97
Nivens v. 7-11 Hoagy’s Corner
105
Medley v. Home Depot, Inc.
113
Sollami v. Eaton 121
Malletier v. Dooney & Bourke, Inc.
129
Abercrombie & Fitch Stores, Inc. v. American Eagle Outfitters
137
Lacoste Alligator, S.A. v. Bluestein’s Men’s Wear, Inc.
145
American Heart Association v. County of Greenville
153
You Be the Judge!
iii
Introduction
Welcome to a new and exciting approach to learning business and
consumer law, one of the most important topics you will study in today’s
changing world. Every student throughout his or her lifetime can benefit
from the knowledge of contracts, intellectual property, partnerships,
liability, and negligence. And whether you decide on a career in
accounting, finance, economics, or even medicine, you should have at
least a general understanding of business and consumer law in order to
function in the real world.
One of the best ways to learn about the law is to analyze court cases.
You Be the Judge! contains a comprehensive collection of real-world case
studies where you, based on your knowledge of the law, act as the judge
and render a decision as to what you think the outcome should be.
Your Role in You Be the Judge!
As the judge in each case, you act as the decision-maker, as you decide
which party should win and which party should lose. You will base
your decision on the facts of each case, the rule of law, and the distinct
issue that you must consider. To get started with each case, you will be
provided with a brief background of the facts, a summary of the terms
and law pertinent to the particular case, and the essential question or
issue that you will ultimately have to answer.
The Skills You Will Be Drawing on Throughout This Book
While reading each case, you will determine which party is more credible,
and whether the plaintiff has enough facts to prove their case! The
following is a list of the skills you will be drawing on throuhgout this case
studies workbook:
• Understanding law concepts
• Decision-making
• Critical thinking
• Applying rules of law
• Reading comprehension
• Analytical skills (case analysis)
Prerequisite Skills
This workbook should be used as a supplement in conjunction with a
Business and Consumer Law textbook. It is assumed that you have a clear
working knowledge of concepts and laws included in the cases within
this workbook. Although terms and definitions have been provided to
you at the beginning of each case, these should be used only for quick
reference and not as a replacement to a more thorough learning of the
subject.
Copyright Notice About the Cases in This Book
The cases in this workbook are real court cases that have been, or in the
process of being, decided in a court of law. Exact extractions from the
actual published decisions have been used in this workbook; however,
for ease of reading purposes, many times the format and the language
used have been modified.
You Be the Judge!
v
Introduction
Understanding the Format of This Book

Case Title
Constitutional Law
Case 1:
High School
Locker
Search
CASE: 1
Thisworkbookhasbeenorganizedintoaneasy-to-readformattohelp
youmakeadecisionineachcase.Toprepareyouinthedecisionmaking
process,eachcasehasbeendividedintoaseriesofindividualsections.
Thefollowingisabriefexplanationoftheindividualsectionsthatmake
upthepartsofeachcase.
Providesthetitleofthecase.
Fourth Amendment Protection
Against Unreasonable Searches
and Seizures
objective
oBJecTiVe
To understand how the Fourth Amendment of
the United States Constitution protects against
warrantless searches and whether this protection
extends to a locker search of a high school
student.
Theobjectiveofthecase.
ToPicS coVered
RR Fourth
Topics Covered
Amendment of the United States Constitution
RR Students’
RR Search
Reasonable Expectation of Privacy
Warrants Supported by Probable Cause
RR Balancing
School Safety/Disciplinary Policies with
Students’ Constitutional Rights
CASE: 1
You Be the Judge!

Fourth Amendment Protection Against Unreasonable
Searches and Seizures
Background
• WithoutinformingJeffrey,theprincipalauthorizedasearchofhislockerwhilehewasinclass.
Schooladministratorsfoundmarijuanainhislocker.
• Baseduponthesearch,Jeffreywascalledintotheprincipal’soffice.Whenconfrontedwiththe
marijuanafoundinhislocker,heconfessedtopossessionofmarijuanawithintenttoselltoother
students.
• JeffreyclaimedthattheschoolviolatedtheFourthAmendmentoftheUnitedStatesConstitution
byfailingtoobtainasearchwarrantbeforeseizingtheillegaldrugsfromhislocker.
Providesabriefbackgroundsummaryof
thecase.
is the Fourth Amendment of the
United States Constitution?
RR What
RR What
is a “reasonable expectation of
privacy”?
UndertheFourthAmendment,theU.S.
SupremeCourtassertsthatapersonhasa
“reasonableexpectationofprivacy”when:
(1)theindividualSUBJECTIVELYbelieves
thataparticularareaisprivate,suchasacar,
alocker,apocketbook,orahome,and(2)
OBJECTIVELY,whethersocietyrecognizesthat
expectationasreasonable.Assuch,thecourt
lookstothesubjectiveintentoftheperson
beingsearched(forexample,didtheperson
infactbelievethatacertainareawasprivate?)
andtotheobjectiveintentastowhetherthat
person’sbeliefofprivacywillberecognizedby
societyasawhole.
Termsanddefinitionsofthelawsandkey
conceptspertinenttothecase.
is a search warrant?
Inthemajorityofcases,beforesearching
areaswhereapersonhasareasonable
expectationofprivacy,thegovernment
(thepolice)mustobtainwrittenpermission
fromajudgetoconductasearch.Thepolice
mustsupporttheirrequestwithfactsthat
showtheyhaveextremelygoodreasons,
or“probablecause,”toconductasearch.
Ifpermissionisgranted,thecourtissuesa
searchwarrant.
TheFourthAmendmentprotectspersons
accusedofcrimesbyrequiringasearch
warrantbeforegovernmentofficialscan
searchaperson,ahome,oranyplacewhere
apersonhasa“reasonableexpectationof
privacy.”
Before You Begin
On December 21, at 12:45 pm, Linda Day, the principal of Monument Mountain Regional High School in Great Barrington, Massachusetts, was told by a faculty member that a student reported being
approached by Jeffrey Snyder to purchase marijuana for $25. The
reporting faculty member had worked at the school for approximately
15 years, had extensive contact with students, and many times had
provided reliable information to school administrators.
Principal Day asked John F. Canning, the assistant principal, to
join her and the faculty member in her office, whereupon the faculty
member repeated the information. The faculty member added that
Before you Begin
RR What
Whether the warrantless search of a student’s locker for marijuana was
reasonable under the circumstances of the case.
THe facTS
• AteacherinformedtheprincipalofahighschoolthatJeffreySnyder,astudentattheschool,
attemptedtosellillegaldrugs(marijuana)toanotherstudent.
Background
iSSue Before THe courT
1
CASE: 1
Alistofthelawconceptscoveredinthecase.
RR What
is Balancing School Safety/
Disciplinary Policies with Students’
Constitutional Rights?
Incasesofsearchingstudents’lockers,
thelawrequiresthecourttobalancethe
constitutionalrightsofthestudentagainst
theneedforschoolofficialstokeeptheschool
safeandorderlyforallstudents.
the student had reported the attempted sale at about 10:30 am. The
student said that Jeffrey showed him a videocassette case that contained three bags of marijuana and that he then put the videocassette
case in his book bag.
The administrators decided to locate Jeffrey. Assistant Principal
Canning found Jeffrey in the student center, which was crowded with
students. From a distance, Canning could not see Jeffrey’s book bag.
Since he did not know if other students were involved, he did not want
ent
th Amendm
The Four Constitution
to the U.S. against
guards
ches
able sear
unreason
when the
and seizures y has a
part
searched
ctation
ble expe
“reasona
of privacy.”
to arouse suspicion by approaching Jeffrey in the student center. The
two administrators decided to wait until the beginning of the next
period (about 1:20 pm) when Jeffrey was scheduled to be in a class
and to search his locker for the book bag at that time. It is important
to note that the school’s student code stated that each student had the
right not to have his/her locker subject to an “unreasonable” search.
At approximately 1:20 pm, the two administrators opened the
locker using the combination to the locker that was available at the
school’s main office. They found the book bag, the videocassette case,
and three bags containing marijuana. They took these items to Principal Day’s office and concealed them behind her desk.
Principal Day located Jeffrey and brought him to her office. There,
2
You Be the Judge!
You Be the Judge!
3
CASE: 1

in Assistant Principal Canning’s presence, Principal Day asked Jeffrey
if it was true, as reported to her, that he had offered to sell marijuana
in the school. Jeffrey admitted that he had. Jeffrey, who was very
upset, said that he could not believe this was happening and had never
before engaged in this type of activity.
Jeffrey explained that a friend had given him the marijuana to
sell, that he had become troubled about doing it, and he had called
his friend to come to the school at 2 pm to take back what he had not
sold. Jeffrey admitted that the book bag, the videocassette case, and
the bags of marijuana belonged to him. Jeffrey said there were four
bags of marijuana but he had sold one for $25 to a student. Principal
Day called Jeffrey’s mother, who came to the school, while Assistant
Principal Canning called the police.

side Notes
At trial, Snyder argued that since he had a legitimate expectation
of privacy in his locker as per the school code, all evidence taken was
illegally seized and not admissable against him.
Additionallawconceptsandfunfacts
relatedtothecase.
The Commonwealth argued that there was no reasonable expectation of privacy as to his locker and in the alternative, even if there
was, the locker search was valid as school administrators conducted a
search of the locker that was reasonable under all the circumstances.
In other words, while school administrators must be “reasonable,”
they are not restricted by the probable cause or warrant requirements
of the Fourth Amendment.
sources
Identifiesthesource(s)ofthecase.
Sources
Thecasebriefingabovecontainsexcerptsanddirectextractionsfromthesourcesnoted
belowthathavebeencombinedwiththeauthor’sownexpertlegalinput.Thecasehas
beencondensedandformattedfromitsoriginalcontentforpurposesofthisworkbook.
Commonwealthv.Snyder,413Mass.521,597N.E.2d1363(1992).
SupremeJudicialCourtofMassachusetts,Berkshire
August25,1992.OpinionwrittenbytheHonorableHerbertP.Wilkins.
4
vi
You Be the Judge!
You Be the Judge!
Probable Cause:
Evidence that
would
lead a reason
able
person to believ
e that
a crime was or
is being
committed by
the
person being
accused.
In the U.S., the
police (or other law
enforcement officials)
cannot simply search
someone for no reason.
If proper legal steps
are not followed, that
search can be classified
as unreasonable.
issue Before the Court
Theessentialquestionthat
isbeingaskedofthecourt.
The Facts
Providesthedetailedfacts
ofthecase.
Introduction
The Answer Forms
NAME
CASE: 1
Following“TheFacts”sectionofeachcase,thereareaseriesofforms
thatyoumustcomplete.Theanswersonthefirstform,“ReviewtheCase,”
willcomedirectlyfrom“TheFacts”section.Tocompletethe“Makethe
Argument”form,youwillmakeconclusions,baseduponyouranswers
inthe“ReviewtheCase”form.Finally,youwilldecidewhatyouthinkthe
outcomeshouldbebycompletingthe“YouBetheJudge”form.
DATE
Review the Case
AfterreadingCommonwealthv.Snyder,answerthefollowing:
1. IdentifythePlaintiff(s)inthecase.
2. IdentifytheDefendant(s)inthecase.
3. Isthisacriminalproceedingoracivilproceeding?Explain.

4. HowdidtheschooladministratorsinitiallydiscoverthatJeffreymightbesellingmarijuana?
review the Case Form
5. WhydidPrincipalDaygivecredibilitytothereportingteacherregardingJeffrey’spossessionofmarijuana?
6. Explainthereason(s)theprincipalandassistantprincipaldidnotapproachJeffreyinthestudentcenter.
7. WheredidtheadministratorsfindthecombinationtoJeffrey’slocker?
CASE: 1
You Be the Judge!
NAME
DATE
NAME
DATE
Make the Argument
Review the Case (continued)
Inorderforthejudgeorjurytorenderadecision,thefollowingaresomeofthequestionsthat
mustbeconsidered:
8. Whatdidtheschool’sstudentpolicysayaboutsearchesofstudentlockers?

5
CASE: 1
The“ReviewtheCase”formrequiresyoutoansweraseriesoffactual
questionswithdefinitiveanswersderivedfrom“TheFacts”sectionofthe
case.Thesequestionshaveatwofoldpurpose:(1)totestyourknowledge
ofthecase;and,(2)tohelpyouunderstandadetailedfactpatternby
goingthroughthequestionandanswerprocess.
1. Wastheinformationreceivedbytheschooladministratorsreliable?Explain.
9. WhatdidtheprincipalandassistantprincipalfindduringtheirsearchofJeffrey’slocker?
2. DidJeffreyhavean“expectationofprivacy”inhislockeratschool?Explain.
Make the argument Form
10. WhatdidJeffreydowhenhewasconfrontedwiththeevidenceagainsthim?
Inordertocompletethe“Makethe
Argument”form,youmustfirstcomplete
the“ReviewtheCase”form.Similartoa
juryforminarealcourtcase,youwilluse
youranswersfromthe“ReviewtheCase”
formtoanswertheanalyticalquestions
onthe“MaketheArgument”form.
3. Wastheschool’ssearchofthelockerjustifiedandreasonable?Explain.
4. Didtheschoolhaveareasonablesuspicionthatacrimewasbeingcommitted?Explain.
5. D
idtheschool’sinteresttoenforceschoolpoliciesandadequatelydisciplineitsstudentsoverridethe
importanceofJeffrey’sprivacyinhislocker?
6. DidthestudenthandbookstatethattheDefendanthadanexpectationofprivacyinhislocker?

CASE: 1
6
You Be the Judge Form
You Be the Judge!
You Be the Judge!
NAME
7
DATE
You Be the Judge
Havingreviewedthecaseandconsideredthequestionsinvolved,decidethecaseforeitherthePlaintiff
ortheDefendant:
Decision for the Plaintiff
Decision for the Defendant
Commonwealth of Massachusetts
Jeffrey Snyder
Finally,the“YouBetheJudge”form
requiresyoutoreachaconclusion
baseduponyouranswersfromthe
“MaketheArgument”form.Upon
completionofthisform,youwillhave
decidedwhatyouthinktheoutcomeof
thecaseshouldbe.Youwillanswerthe
question,“Whoshouldwinthecase?”
8
You Be the Judge!
You Be the Judge!
vii
Curriculum Guide
Case
Topics Covered
1 Commonwealth v.
Constitutional
Law
Fourth Amendment of the U.S. Constitution
Students’ Reasonable Expectation of Privacy
Search Warrants Supported by Probable Cause
Balancing School Safety/Disciplinary Policies with Students’
Constitutional Rights
2 M.D., a minor, v.
Constitutional
Law
First Amendment of the U.S. Constitution
Freedom of Speech
Balancing School Safety/Disciplinary Policies with Students’
Constitutional Rights
3 State v. Stallman
Constitutional
Law
Ordinance
Misdemeanor
Intrastate Travel
Defining “Unconstitutional”
Police Power and Constitutional Standards/Test
4 People v. William D.
Criminal Law
Assault and Battery
Defense of Others
Reasonable Force
5 Mattel, Inc. v. MGA
Contract Law
Employment contracts
Non-compete clauses
Employee’s “duty of loyalty” to employer
“Fair and just” non-compete clauses
6 Sharon v. City of
Contract Law
Contract Not to Sue
Capacity of a Minor Child to Enter into a Contract
Validity of Release as Condition to Participation in Extra-curricular
Activities
Parental Consent
7 Bowling v. Sperry
Contract Law
Capacity of a Minor to Enter into a Contract
Voidable Contracts
Minor’s Disaffirmance of Contracts
Contracts for Necessities
8 Holmes v. Lerner
Business Law:
Partnerships
Business Organizations
Partnerships
Verbal Contracts
9 Selwyn v. Ward
Tort Law:
Negligence
and Strict
Liability
Dram Shop Act
Negligence Action
Strict Product Liability
Ultrahazardous Activity
Tort Law:
Negligence
Dram Shop Act
Duty of Care
Reasonable Care
Snyder
Morgan Hill Unified
School District
Entertainment, Inc.
Newton
10 Tobin v. Norwood
Country Club, Inc
viii
You Be the Judge!
Curriculum Guide (continued)
Case
Topics Covered
11 Johnston v. Poulin
Tort Law: Strict
Liability
Strict Liability for Roaming Animals
Roaming or “At Large” Animals
12 Volpe v. Gallagher
Tort Law:
Negligence
Landowner’s duty of care to prevent criminal acts of third persons
“licensees” on his/her property
Exception to rule of landowner’s duty of care to prevent criminal
acts of third person “licensees” on his/her property
Duty to Inspect Property
13 Nicholson v. Bd. of
Tort Law:
Negligence
Municipality’s duty of care to maintain school playgrounds
Municipality’s liability for criminal activities at school playgrounds
Municipality’s duty to provide supervision at school playgrounds
14 Nivens v. 7-11 Hoagy’s
Tort Law:
Negligence
Negligence
Business Invitee
Duty of Care for Criminal Acts of Third Persons
Special Relationship Exception to the Duty of Care for Criminal
Acts of Third Persons
Forseeable Act
15 Medley v. Home
Tort Law:
Negligence
Negligence
Slip and Fall Injury
Business Invitee
A Business Owner’s Duty to Inspect
16 Sollami v. Eaton
Consumer
Law: Product
Liability
Product Liability
Unreasonably Dangerous Product
Duty to Warn
Defense to Product Liability, the “Open and Obvious” Doctrine
17 Malletier v. Dooney &
Trademark Law Trademark
Trademark Infringement
Injunction
18 Abercrombie &
Trademark Law Intentional Tort
Trademark
Trade Dress
19 Lacoste Alligator, S.A.
Trademark Law Intentional Tort
Trademark
Exclusive Licensee of a Trademark
20 American Heart
Family and
Probate Law
Educ. of the City of
New York
Corner
Depot, Inc.
Bourke, Inc.
Fitch Stores, Inc.
v. AmericanEagle
Outfitters
v. Bluestein’s Men’s
Wear, Inc.
Association v. County
of Greenville
Last Will & Testament
Probate
Executor
Probate Property/EstatePublic Document
You Be the Judge!
ix
Constitutional Law
CASE: 1
Case 1:
High School
Locker
Search
Fourth Amendment Protection
Against Unreasonable Searches
and Seizures
oBJecTiVe
To understand how the Fourth Amendment of
the United States Constitution protects against
warrantless searches and whether this protection
extends to a locker search of a high school
student.
ToPicS coVered
RR Fourth
RR Students’
RR Search
Reasonable Expectation of Privacy
Warrants Supported by Probable Cause
RR Balancing
You Be the Judge!
1
CASE: 1
Fourth Amendment Protection Against Unreasonable
Searches and Seizures
Background
• A teacher informed the principal of a high school that Jeffrey Snyder, a student at the school,
attempted to sell illegal drugs (marijuana) to another student.
• Without informing Jeffrey, the principal authorized a search of his locker while he was in class.
School administrators found marijuana in his locker.
• Based upon the search, Jeffrey was called into the principal’s office. When confronted with the
marijuana found in his locker, he confessed to possession of marijuana with intent to sell to other
students.
• Jeffrey claimed that the school violated the Fourth Amendment of the United States Constitution
by failing to obtain a search warrant before seizing the illegal drugs from his locker.
Before you Begin
RR What
is the Fourth Amendment of the
The Fourth Amendment protects persons
accused of crimes by requiring a search
warrant before government officials can
search a person, a home, or any place where
a person has a “reasonable expectation of
privacy.”
RR What
is a “reasonable expectation of
privacy”?
Under the Fourth Amendment, the U.S.
Supreme Court asserts that a person has a
“reasonable expectation of privacy” when:
(1) the individual SUBJECTIVELY believes
that a particular area is private, such as a car,
a locker, a pocketbook, or a home, and (2)
OBJECTIVELY, whether society recognizes that
expectation as reasonable. As such, the court
looks to the subjective intent of the person
being searched (for example, did the person
in fact believe that a certain area was private?)
and to the objective intent as to whether that
person’s belief of privacy will be recognized by
society as a whole.
2
You Be the Judge!
RR What
is a search warrant?
In the majority of cases, before searching
areas where a person has a reasonable
expectation of privacy, the government
(the police) must obtain written permission
from a judge to conduct a search. The police
must support their request with facts that
show they have extremely good reasons,
or “probable cause,” to conduct a search.
If permission is granted, the court issues a
search warrant.
RR What
Disciplinary Policies with Students’
In cases of searching students’ lockers,
the law requires the court to balance the
constitutional rights of the student against
the need for school officials to keep the school
safe and orderly for all students.
Whether the warrantless search of a student’s locker for marijuana was
reasonable under the circumstances of the case.
CASE: 1
THe facTS
On December 21, at 12:45 pm, Linda Day, the principal of Monument Mountain Regional High School in Great Barrington, Massachusetts, was told by a faculty member that a student reported being
approached by Jeffrey Snyder to purchase marijuana for $25. The
reporting faculty member had worked at the school for approximately
15 years, had extensive contact with students, and many times had
provided reliable information to school administrators.
Principal Day asked John F. Canning, the assistant principal, to
join her and the faculty member in her office, whereupon the faculty
member repeated the information. The faculty member added that
the student had reported the attempted sale at about 10:30 am. The
student said that Jeffrey showed him a videocassette case that contained three bags of marijuana and that he then put the videocassette
case in his book bag.
The administrators decided to locate Jeffrey. Assistant Principal
Canning found Jeffrey in the student center, which was crowded with
students. From a distance, Canning could not see Jeffrey’s book bag.
Since he did not know if other students were involved, he did not want
to arouse suspicion by approaching Jeffrey in the student center. The
two administrators decided to wait until the beginning of the next
period (about 1:20 pm) when Jeffrey was scheduled to be in a class
and to search his locker for the book bag at that time. It is important
to note that the school’s student code stated that each student had the
right not to have his/her locker subject to an “unreasonable” search.
dment
th Amen
The Four Constitution
.S.
to the U
gainst
guards a
ches
able sear
unreason s when the
re
and seizu arty has a
p
searched xpectation
le
b e
“reasona ivacy.”
of pr
At approximately 1:20 pm, the two administrators opened the
locker using the combination to the locker that was available at the
school’s main office. They found the book bag, the videocassette case,
and three bags containing marijuana. They took these items to Principal Day’s office and concealed them behind her desk.
Principal Day located Jeffrey and brought him to her office. There,
You Be the Judge!
3
CASE: 1
in Assistant Principal Canning’s presence, Principal Day asked Jeffrey
if it was true, as reported to her, that he had offered to sell marijuana
in the school. Jeffrey admitted that he had. Jeffrey, who was very
upset, said that he could not believe this was happening and had never
before engaged in this type of activity.
Jeffrey explained that a friend had given him the marijuana to
sell, that he had become troubled about doing it, and he had called
his friend to come to the school at 2 pm to take back what he had not
sold. Jeffrey admitted that the book bag, the videocassette case, and
the bags of marijuana belonged to him. Jeffrey said there were four
bags of marijuana but he had sold one for $25 to a student. Principal
Day called Jeffrey’s mother, who came to the school, while Assistant
Principal Canning called the police.
At trial, Snyder argued that since he had a legitimate expectation
of privacy in his locker as per the school code, all evidence taken was
illegally seized and not admissable against him.
The Commonwealth argued that there was no reasonable expectation of privacy as to his locker and in the alternative, even if there
was, the locker search was valid as school administrators conducted a
search of the locker that was reasonable under all the circumstances.
In other words, while school administrators must be “reasonable,”
they are not restricted by the probable cause or warrant requirements
of the Fourth Amendment.
Sources
Commonwealthv.Snyder,413Mass.521,597N.E.2d1363(1992).
SupremeJudicialCourtofMassachusetts,Berkshire
August25,1992.OpinionwrittenbytheHonorableHerbertP.Wilkins.
4
You Be the Judge!
Probable Cau
se:
Evidence that
would
lead a reason
able
person to bel
ieve that
a crime was or
is being
committed b
y the
person being
accused.
In the U.S., the
police (or other law
enforcement officials)
cannot simply search
someone for no reason.
If proper legal steps
are not followed, that
search can be classified
as unreasonable.
CASE: 1
NAME
Date
Review the Case
After reading Commonwealth v. Snyder, answer the following:
1. Identify the Plaintiff(s) in the case.
2. Identify the Defendant(s) in the case.
3. Is this a criminal proceeding or a civil proceeding? Explain.
4. How did the school administrators initially discover that Jeffrey might be selling marijuana?
5. Why did Principal Day give credibility to the reporting teacher regarding Jeffrey’s possession of marijuana?
6. Explain the reason(s) the principal and assistant principal did not approach Jeffrey in the student center.
7. Where did the administrators find the combination to Jeffrey’s locker?
You Be the Judge!
5
CASE: 1
NAME
Date
8. What did the school’s student policy say about searches of student lockers?
9. What did the principal and assistant principal find during their search of Jeffrey’s locker?
10. What did Jeffrey do when he was confronted with the evidence against him?
6
You Be the Judge!
Date
Make the Argument
In order for the judge or jury to render a decision, the following are some of the questions that must be considered:
CASE: 1
NAME
1. Was the information received by the school administrators reliable? Explain.
2. Did Jeffrey have an “expectation of privacy” in his locker at school? Explain.
3. Was the school’s search of the locker justified and reasonable? Explain.
4. Did the school have a reasonable suspicion that a crime was being committed? Explain.
5. D
id the school’s interest to enforce school policies and adequately discipline its students override the
importance of Jeffrey’s privacy in his locker?
6. Did the student handbook state that the Defendant had an expectation of privacy in his locker?
You Be the Judge!
7
CASE: 1
8
NAME
Date
You Be the Judge
Having reviewed the case and considered the questions involved, decide the case for either the Plaintiff
or the Defendant:
Commonwealth of Massachusetts
Jeffrey Snyder
You Be the Judge!
M.D., a minor, v. Morgan
Hill Unified School District
CASE: 2
Constitutional Law
Case 2:
“You Can‛t
Wear That
to School”
First Amendment and Freedom
of Speech
oBJecTiVe
To understand the First Amendment of the
United States Constitution and how it applies to
“Freedom of Speech” in a school setting.
ToPicS coVered
RR First
RR Freedom
of Speech
RR Balancing
You Be the Judge!
9
M.D., a minor v. Morgan Hill Unified
School District
First Amendment and Freedom of Speech
CASE: 2
Background
• On May 5, “Cinco de Mayo,” a holiday celebrated in Mexico, five teenage students, wearing
American flag t-shirts and bandannas, were sitting at a table outside Live Oak High School in
Morgan Hill, California. The Assistant Principal, Miguel Rodriguez, asked two of the students to
remove their American flag bandannas.
• The five students were also told that although it would not be considered a suspension, they
must turn their American flag t-shirts inside out or be sent home. Due to the large MexicanAmerican student population at Live Oak High School, school administration feared that fights
would break out between Mexican-American students celebrating their heritage day and those
students wearing clothing with American flags.
• The teenagers refused to turn their shirts inside out as they felt it was disrespectful to the United
States of America, so the school administrators asked the students’ parents to take them home.
Before you Begin
RR What
is the First Amendment of the
The First Amendment is the first of the original
13 amendments called the “Bill of Rights.” The
First Amendment gives American citizens the
right to Freedom of Speech.
RR What
is Freedom of Speech?
The First Amendment prohibits Congress from
enacting any laws that prohibit a citizen’s right
to free speech. The United States Supreme
Court qualified this freedom of speech in
several cases. Examples of restricted speech
include instances when a person: (a) uses
“fighting words,” (b) makes threatening
speech toward another individual, (c) engages
in “defamatory” speech (words meant to
injure another person’s reputation in the
community), and (d) uses “obscene” speech
(words or actions that are not appropriate for
the average citizen).
10
You Be the Judge!
RR What
Disciplinary Policy with Students’
In cases involving students’ Freedom of
Speech, the law requires the court to balance
the constitutional rights of the student against
the need for the school officials to keep the
school safe and orderly for all students.
Whether a public school can limit a student’s choice to wear American
flag clothing or accessories to school without violating the First
Amendment of the United States Constitution.
CASE: 2
THe facTS
On May 5, 2010, “Cinco de Mayo,” a Mexican holiday, five students of Live Oak High School in Morgan Hill, California, were
approached by the school’s Assistant Principal Miguel Rodriguez. The
students were dressed in American flag t-shirts and American flag
bandannas on their heads. Mr. Rodriguez asked two of the students to
remove their American flag bandannas. Although the students complied, they were asked to accompany Mr. Rodriguez to the principal’s
office after one of the students questioned his request.
According to the complaint filed by the students, Rodriguez told
the five students, including minors M.D., D.M., and D.G., that they
must turn their American flag t-shirts inside out or they would be
sent home for the day without suspension. He explained to the students that there is a large Mexican-American population at Live Oak
w is a
tional La
Constitu
ng with
law deali nd
f
o
y
d
o
b
ibution a
the distr overnment
of g
exercise
power.
High School, and he did not want to risk any fights breaking out
between Mexican-American students celebrating their heritage and
the students wearing American flags. There had not been any fighting
issues in the past, and on this particular day, the students had been on
school grounds for three hours without any incident.
While in the principal’s office, the teenagers told Rodriguez and
school Principal Nick Boden that turning their t-shirts inside out
was disrespectful to the citizens of the United States of America. So,
school officials contacted their parents, and the students were sent
home.
While the school’s dress code policy banned the wearing of
bandannas of any color, the policy did not contain references to
American flag clothing. The school policy did prohibit students
from wearing any clothing or decoration that detracted from the
school’s learning environment. As such, the school claimed it had
You Be the Judge!
11
the right to request that any student dressed inappropriately for
school must either: (a) change into other clothes, (b) go home to
change, and/or (c) be subject to disciplinary action.
The students brought a civil case against Morgan Hill Unified
School District claiming that Live Oak High School violated the
CASE: 2
students’ right to Freedom of Speech under the First Amendment to
the Constitution, which provides its citizens with various protections,
such as, in this case, the right to Freedom of Speech.
Morgan Hill Unified School District defended itself by stating that
keeping the students of Live Oak High School safe was more important than the disciplined students’ right to Freedom of Speech.
Sources
M.D.,aminorv.MorganHillUnifiedSchoolDistrict,CV-10-02745.
ComplaintpreparedandfiledbyWilliamJ.Becker,TheBeckerLawFirm,andaffi
liated
withtheThomasMoreLawCenter,andRobertJ.Muise,theThomasMoreLawCenter.
12
You Be the Judge!
Freedom of S
peech is
the right to
express
information,
ideas,
or opinions fr
ee of
government re
strictions
based on cont
ent.
NAME
Date
Review the Case
After reading M.D., a minor, v. Morgan Hill Unified School District, answer the following:
CASE: 2
1. Identify one of the Plaintiff(s) in the case.
3. What is Cinco de Mayo?
4. What was the school policy regarding bandannas?
5. What was the school policy regarding wearing American flag clothing?
6. Explain Vice Principal Rodriguez’s reason for requesting that the students turn their t-shirts inside out.
7. How long had the students been on school grounds when they were approached by Vice Principal Rodriguez?
8. Why did the teenagers refuse to turn their American flag t-shirts inside out?
You Be the Judge!
13
NAME
Date
CASE: 2
9. Was there any evidence that the American flag t-shirts were disrupting the classrooms?
14
10. Were there any past incidents, like fighting, at the school that stemmed from students wearing the American
flag t-shirts on Cinco De Mayo?
11. BONUS: Do you agree with the school that wearing an American flag t-shirt on Cinco de Mayo is inappropriate?
You Be the Judge!
NAME
Date
Make the Argument
CASE: 2
1. Did the students wear American flag clothing on school grounds?
2. Does wearing the American flag clothing fall within the protections afforded under the First Amendment of the
United States Constitution as “free speech”?
3. Was there any evidence that the flags actually caused violence at Live Oak High School or disrupted learning at
the school?
4. Does the school’s interest to enforce school policies and adequately discipline its students override the
importance of the students’ freedom of speech?
You Be the Judge!
15
NAME
Date
You Be the Judge
CASE: 2
or the Defendant:
16
M.D., a minor
Morgan Hill Unified School District
You Be the Judge!
Constitutional Law
Case 3:
To Cruise
or Not to
Cruise!
The Constitutional “Right
to Travel”
oBJecTiVe
CASE: 3
State v. Stallman
To understand the constitutional right to liberty
with respect to the right to travel about the United
States.
ToPicS coVered
RR Ordinance
RR Misdemeanor
RR Intrastate
Travel
RR Unconstitutional
RR Police
Power and Constitutional Standards/Test
You Be the Judge!
17
State v. Stallman
The Constitutional “Right to Travel”
Background
• The City of Anoka, Minnesota passed an ordinance which restricted driving in certain designated
areas of the city called “no cruising zones.” This “anti-cruising” ordinance was targeted at
teenagers who would cruise up and down certain roads causing traffic congestion and public
disturbances, such as fighting, underage drinking, vandalism, and other more serious criminal
offenses.
• Jason Edward Stallman drove his car in a “no cruising zone” when he was stopped and charged
with the misdemeanor crime of violating the “anti-cruising” ordinance. He challenged the charge
as an unconstitutional infringement on his liberty and right to intrastate travel.
CASE: 3
• Anoka Police alleged that the ordinance was a necessary tool of their police power to keep order
in the city.
Before you Begin
RR What
is an ordinance?
An ordinance is a law enacted by a city or a
town by its governing body—usually a mayor,
a city council, or a town council.
RR What
is a misdemeanor?
A misdemeanor is a minor criminal offense
usually punishable by less than a $500 fine
and/or less than one year in jail.
RR What
is intrastate travel?
Intrastate travel is traveling within the borders
of a city or state. Although the United States
Supreme Court has not addressed the issue of
whether the constitutional right to interstate
travel (traveling to different states) includes
the right to intrastate travel, both lower
federal courts and state courts have found a
fundamental right to intrastate travel.
18
You Be the Judge!
RR What
does unconstitutional mean?
An unconstitutional law is a law or an action
pursuant to that law that conflicts with the
United States Constitution—the supreme
law of the United States of America. No state
law shall conflict with the Constitution. In this
case, the Defendant challenges the “anticruising” ordinance as an unconstitutional
infringement on the right to travel within the
borders of a state.
RR What
is Police Power and
Constitutional Standards/Test?
While a government has authority to pass
laws to keep its citizens safe from harm,
these laws need to meet constitutional
requirements. Here, an “anti-cruising”
ordinance must be narrowly tailored to meet
significant city objectives of protecting the
general public.
Does Anoka’s “anti-cruising” ordinance violate a fundamental right to
intrastate travel? Is Anoka’s “anti-cruising” ordinance unconstitutional?
THe facTS
On May 6, at approximately 9 pm, an officer of the Anoka Police
Department selected a traffic control point within the city’s “no
cruising zone” and began monitoring. About 30 minutes later, the
officer observed a red Mercury operated by Jason Edward Stallman
drive past the traffic control point.
The officer observed Stallman’s vehicle travel past him four times
within approximately ten minutes. The police officer stopped the
vehicle and Stallman was issued a misdemeanor citation for “cruising”
in violation of Anoka’s “anti-cruising” ordinance. The Anoka City
Council passed the ordinance as a response to the increase in fighting,
underage drinking, vandalism, traffic violations, drug trafficking, and
traffic congestion around its main streets.
el
t to trav
The righ
izen of
hat a cit rty
t
s
t
r
e
s
s
a
e
as the lib d/
a state h
an
,
in
e
resid
l,
e
v
a
r
t
o
t
rt of
in any pa
or work
one
e where
the stat
ct
ith respe
pleases (w hts of
ig
for the r
others).
CASE: 3
“Cruising” has been a part of our culture for decades and was
made famous by the 1973 movie “American Graffiti.” For years, teenagers have been driving cars after school and on weekends cruising on
city streets and meeting at various destinations.
The police department argued that the traffic congestion created a
safety hazard. Emergency vehicles had had difficulty getting through
the congestion, and had to use alternate, less direct routes to respond
to emergency calls, delaying their response time.
The Anoka Chief of Police stated that on a typical Saturday night
between 400 and 500 teenagers milled about provoking petty crimes,
such as fights, traffic violations, underage drinking, and vandalism,
which escalated to more serious crimes, such as physical/sexual assaults and drug trafficking.
The ordinance stated:
1) “Cruising” means the operation of a motor vehicle, other
than commercial, emergency, or buses, driving past a “traffic
control point” three or more times, between the hours of 9 pm
You Be the Judge!
19
and 2 am in a “No Cruising Zone.”
2) “Traffic Control Point” means any point or points within a
“No Cruising Zone” where cruising is monitored by police.
3) “Cruising is prohibited and no person shall operate a motor
vehicle in such a manner so as to constitute cruising. A violation of this section shall constitute a petty misdemeanor.”
To remain in
or hang
around an ar
ea for no
obvious purp
ose is known
as loitering.
CASE: 3
The city council established “no cruising zones” at Main Street
and one block on each side of Main Street, from a park at one end to
the Anoka city limits.
Large signs leading into Anoka read, “Cruising and Loitering
Ordinances Are Enforced.” On Main Street, signs read “No Cruising 9 pm to 2 am.” The signs did not indicate the boundaries of the
zone. The signs did not indicate that a traffic control point was at
any intersection or at any other point where the police selected to set
up temporary monitoring. The Anoka Police Department had the
discretion to choose a traffic control point at any location during the
pertinent time frame. The officer could arbitrarily choose to be at the
point for minutes or hours. Although ensuring the safe passage of
emergency vehicles was one of the reasons for the ordinance, nothing
in the ordinance expressly or impliedly directed those areas to be traffic control points.
Stallman argued that the “anti-cruising” ordinance was unconstitutional becasue it impermissibly restricted intrastate travel. The city
argued that the ordinance was a necessary tool of its police powers to
control traffic and crime in Anoka.
Sources
Statev.Stallman,519N.W.2d903(Minn.App.1994).
CourtofAppealsofMinnesota
July26,1994.OpinionwrittenbytheHonorableJusticeR.A.Randall.
20
You Be the Judge!
Anti-cruising ordinances
were designed to
alleviate traffic in
specific areas. They
prohibited cars from
cruising between certain
checkpoints more than
two times within a given
time frame.
NAME
Date
Review the Case
After reading State v. Stallman, answer the following:
3. How many times did Stallman drive past the police officer and in what span of time?
CASE: 3
4. How does the city ordinance define “cruising”?
5. How does the city ordinance define a “traffic control point”?
6. How does a police officer choose a “traffic control point”?
7. State the reasons the city council established an “anti-cruising” ordinance around its main streets?
You Be the Judge!
21
NAME
Date
8. What type of notices did drivers receive regarding the “no cruising” law in Anoka?
9. Did the notices explain “cruising” to the driver entering a “no cruise” zone?
CASE: 3
10. Did the notice explain to drivers the consequences of traveling past a traffic control point within the five-hour
period?
11. What is “intrastate travel”?
12. Did the ordinance allow a suspected driver to offer a lawful explanation for why he/she drove past the traffic
control points three or more times within the five-hour period?
13. Why did Stallman believe the “anti-cruising” ordinance was unconstitutional? 22
You Be the Judge!
NAME
Date
Make the Argument
1. Did the ordinance sufficiently define “cruising”?
3. Did the signs give adequate notice to drivers of the consequences of passing a police vehicle three times at a
traffic control point within the five-hour period?
CASE: 3
2. Were the “traffic control point” signs adequate to give drivers notice of exactly where the zones were located?
4. W
as the “anti-cruising” ordinance narrowly tailored to meet significant city objectives? In other words, was the
City of Anoka’s objective in reducing traffic congestion, eliminating safety hazards, ensuring clear passage for
emergency vehicles, and reducing the criminal activity resolved by this ordinance at the expense of infringing
on legitimate rights to travel in the affected areas?
You Be the Judge!
23
NAME
Date
You Be the Judge
or the Defendant:
State of Minnesota
Jason Edward Stallman
CASE: 3
24
You Be the Judge!
Criminal Law
Case 4:
Don‛t Mess
With My
Friends
The “Defense of Others” Defense
oBJecTiVe
To understand the use of “defense of others” as a
defense to the charge of assault and battery in a
school fight.
RR Assault
and Battery
RR Defense
of Others
RR Reasonable
CASE: 4
ToPicS coVered
Force
You Be the Judge!
25
The “Defense of Others” Defense
Background
• The victim, Fabrizio, a 6-foot tall high school student, was engaged in conversation with Danny,
a 5-foot 3-inch student, regarding an incident in the high school lunchroom where Danny threw
food at Fabrizio.
• William D., the Defendant, was also a student at the high school, and Danny’s friend.
• William D. allegedly threatened and then punched Fabrizio in the face when Fabrizio was about
to strike Danny, and as such, was defending Danny.
• William D. was charged with assault and battery against Fabrizio. William D. did not dispute
that he punched Fabrizio, but claimed that he was using reasonable force in defense of others,
namely, Danny.
Before you Begin
CASE: 4
RR What
is Assault and Battery?
Assault and battery are two separate crimes.
Assault is an act that creates an apprehension
or fear in another person of an imminent
harmful or offensive contact. The “act”
consists of a threat of harm accompanied
by an apparent, present ability to carry out
the threat. Battery is a harmful or offensive
touching of another, typically considered
the defendant’s “following through” with the
assault.
RR What
is the “Defense of Others”
Defense?
A person may defend another against an
imminent assault or battery by use of force
against an attacker. Reasonable force is
justified when a person reasonably believes
that it is necessary to prevent harm to himself
or another person. A person must use no
more force than appears reasonably necessary
under the circumstances.
26
You Be the Judge!
RR What
is Reasonable Force?
Reasonable force is the amount of force
necessary to protect oneself or one’s property.
Reasonable force is a term associated with
defending one’s person or property from a
violent attack, theft, or other type of unlawful
aggression. If one uses excessive force, or
more than the force necessary for such
protection, he or she may be considered
to have forfeited the right to defense.
Reasonable force is also known as “legal force.”
Was Danny in imminent danger when the Defendant intervened in the
argument between Danny and Fabrizio? Was the level of force that the
Defendant used “reasonable” to prevent injury to Danny, or was the force
“excessive” under the circumstances?
THe facTS
Fabrizio testified that the incident began when Fabrizio accused
Danny of throwing food at him in the school lunchroom. Later
that day, Fabrizio approached Danny and asked, “What was that all
about?” Danny began calling Fabrizio names and protested that he
never threw food at him. Fabrizio believed Danny was trying to get
him angry by calling him names, and stated that he refrained from
action because of their size difference (Fabrizio is 6 feet tall and Danny is 5 feet 3 inches tall). Fabrizio walked away from the confrontation
to cool off. William then approached Fabrizio and told him “not to
mess with his friends” and punched him.
to claim
In order
s,”
of other
“defense ant must
nd
the Defe there was
at
h
t
believe
or
e need f
it
n
fi
a de
the
tion, and
interven
ed,
ho is aid
person w
ate
e a legitim e.
must hav
ns
self defe
claim to
Several students witnessed the incident and, based on the friendships, had differing versions of what took place.
Three of Fabrizio’s friends testified that Danny taunted Fabrizio,
then Fabrizio and Danny pushed each other, and William punched
Fabrizio.
CASE: 4
William D., Danny, and Fabrizio were all students at La Jolla High
School in California. On September 19, 2003, after a lunchroom incident, William D. punched Fabrizio in the face. The punch fractured
Fabrizio’s left malar bone and required his hospitalization. William D.
was criminally charged with assault and battery.
Two of William’s friends testified that Fabrizio and Danny were
arguing, Fabrizio said he wanted to go elsewhere and fight Danny,
Danny looked intimidated, and Fabrizio shoved Danny. William
arrived and told Fabrizio not to mess with his friends. Fabrizio approached William with his fist clenched, and William punched
Fabrizio.
William was charged as a juvenile for assault and battery. William
argued that he used reasonable force to defend Danny, in other words,
the “defense of others” defense.
You Be the Judge!
27
CASE: 4
Sources
The case briefing above contains excerpts and direct extractions from the sources noted
below that have been combined with the author’s own expert legal input. The case has
been condensed and formatted from its original content for purposes of this workbook.
People v. William D., 2005 Cal. App. Unpub. LEXIS 3563.
Court of Appeals of California, Fourth Appellate District, Division One
April 22, 2005. Opinion written by Judge McDonald.
Published by Lexis Nexis
28
You Be the Judge!
NAME
Date
Review the Case
After reading People v. William D., answer the following:
1. Identify the Plantiff(s) in the case.
3. What injuries did Fabrizio suffer?
4. How many times did William D. hit Fabrizio?
5. What is the size difference between Fabrizio and Danny?
CASE: 4
6. In Fabrizio’s opinion, what was Danny trying to do when Fabrizio confronted him?
7. According to Fabrizio, what did he plan to do after he confronted Danny?
8. According to the testimony, what did William say when he approached Fabrizio?
You Be the Judge!
29
NAME
Date
9. According to William’s friends, how did Fabrizio approach William?
CASE: 4
10. Fabrizio’s friends offer a different version of events than William’s. In Fabrizio’s friends’ version, what occurred
immediately prior to the punch? Does their version help or hurt William’s case of defense of others? Why?
30
You Be the Judge!
NAME
Date
Make the Argument
1. Was Fabrizio in fear of imminent bodily harm when William D. approached him? Explain.
2. Did William D. hit Fabrizio with the intention to injure him? Explain.
CASE: 4
3. Was Danny afraid that Fabrizio was going to attack him at the time William punched Fabrizio? Explain.
4. Did William use reasonable force to protect Danny from Fabrizio? Explain.
You Be the Judge!
31
NAME
Date
You Be the Judge
or the Defendant:
State of California
William D.
CASE: 4
32
You Be the Judge!
Contract Law
Case 5:
Barbie v.
Bratz
Mattel, Inc. v. MGA
Entertainment, Inc.
Employment Contracts and NonCompete Clauses
oBJecTiVe
To understand the use of an employment contract
that includes a non-compete clause between an
employer and an employee and the concept of an
employee’s “duty of loyalty” to an employer.
ToPicS coVered
RR Employment
contracts
RR Non-compete
RR Employee’s
“duty of loyalty” to employer
and just” non-compete clauses
CASE: 5
RR “Fair
clauses
You Be the Judge!
33
Mattel, Inc. v. MGA Entertainment, Inc.
Employment Contracts and Non-Compete Clauses
Background
• Mattel, the creator of Barbie dolls, sued its former employee, Carter Bryant, and his employer,
MGA Entertainment, Inc., manufacturer of Bratz dolls, for breach of an employment contract.
• Carter Bryant signed an employment contract, which included a non-compete clause, with
Mattel. Under this contract, the parties agreed that anything Carter Bryant created while working
for Mattel was the property of Mattel. The contract prohibited Carter Bryant from working for any
of Mattel’s competitors during the term of the contract.
• Mattel claimed that Carter Bryant violated the employment contract and his “duty of loyalty”
to Mattel by developing the Bratz doll while still employed by Mattel. Mattel also alleged that
Carter Bryant then conspired with MGA Entertainment, Inc., a competitor, to manufacture and
distribute the Bratz doll.
Before you Begin
RR What
is an employment contract?
An employment contract is a document that
exchanges promises between an employer
and an employee and describes the terms
and obligations of each party during the
employment.
RR What
is a non-compete clause in an
employment contract?
A non-compete clause, when included in an
employment contract, prohibits an employee
from working with a competitor of the
employer while employed by the employer
and for a period of time after employment.
CASE: 5
RR What
34
is the purpose of a non-compete
clause?
One of the purposes of a non-compete clause
is to protect confidential information of the
employer.
You Be the Judge!
RR What
is an employee’s “duty of
loyalty” to his employer?
An employee, as an agent of an employer, has
a “duty of loyalty” to his employer to work in
the best interest of the employer and not for
his own self-interest.
RR What
is a “fair and just” non-compete
clause?
For a non-compete clause to be enforced, it
must be fair and just to the employee and
must not unfairly restrict the employee trying
to pursue his profession. Courts balance the
rights of business owners to protect their
assets and the rights of the employee to earn
a living.
Whether a signed employment contract that includes a non-compete
clause is enforceable by an employer to protect confidential designs
created by an employee from being sold to a competitor.
THe facTS
In 2004, the Plaintiff, Mattel, Inc. (Mattel), the world’s largest toy
manufacturer and the owner of Barbie dolls, filed a complaint against
its former employee, Carter Bryant (Bryant), the creator of the Bratz
line of dolls and MGA Entertainment, Inc. (MGA Entertainment), the
manufacturer of the Bratz dolls. Bratz toys were first introduced in
June 2001, and had since become one of the world’s premiere toy lines
and girls’ lifestyle brands. Bratz dolls have pouty lips and edgy, urban
clothes that have drawn young girls to estimated annual sales of $500
million.
Mattel claimed ownership rights to the Bratz line because it alleged that Bratz’ creator, Bryant, developed the sketches while working for Mattel. Mattel asserted claims against the Defendants for:
(1) breach of contract, (2) breach of duty of loyalty, and (3) wrongful
interference with a contract. Mattel sought money damages and a
court order preventing MGA Entertainment from making future
Bratz dolls and related products.
he most
One of t
f
causes o
common
ent
m
y
f emplo
breach o
is
s
it
lawsu
contract ence in
r
the diffe
the
t
a
t ion of
interpre
s of
n
io
condit
d
n
a
s
m
ter
ement.
the agre
CASE: 5
Mattel employed Bryant as a product designer twice from September 1995 through April 1998 and January 1999 through October
2000. Upon starting his second term, Bryant signed an Employee
Confidential Information and Inventions Agreement in which he
agreed not to engage in any employment or business other than with
Mattel or to assist any competing business of Mattel. Bryant assigned
to Mattel all rights, title, and interest in any inventions he conceived
of during his employment. In exchange, he was paid a salary without
any royalties.
Bryant also completed Mattel’s Conflict of Interest Questionnaire.
Bryant certified that he had not worked for any of Mattel’s competitors in the prior 12 months and had not engaged in any business dealings creating a conflict of interest. Bryant agreed to notify Mattel of
You Be the Judge!
35
any future events that raised a question of conflict of interest.
After Bryant left employment, Mattel’s CEO alleged that he had
received an anonymous letter stating that Bryant had created the
Bratz doll while working at Mattel and that Bryant had taken a vacation day from Mattel to discuss the doll with MGA Entertainment.
As evidence, Mattel produced a new employment agreement between
Bryant and MGA Entertainment that Bryant signed September 18,
2000, while Bryant was still employed by Mattel.
A situation w
hich has a
potential to un
dermine
the impartialit
y of a
person becau
se of the
possibility of
a clash
between the
person‛s
self-interest
and
professional
interest
is known as co
nflict of
interest.
Pursuant to MGA Entertainment’s employment agreement,
Bryant agreed to provide product design services for MGA’s line of
Bratz dolls. In return, MGA Entertainment agreed to pay Bryant
$5,500 per month for the first six months and $5,000 per month for
the next three months. In addition, MGA Entertainment also agreed
to pay Bryant a 3% royalty on the future sales of the Bratz line.
CASE: 5
Bryant testified during trial that the sketches he showed MGA
Entertainment in 2000 were transferred from originals he made in
the summer of 1998 in between his two periods of employment with
Mattel. Bryant testified that observing students walking from school,
browsing through Steve Madden shoe ads in Seventeen, and looking at the cover of the Dixie Chicks album “Chicks With Attitude”
inspired the sketches. Bryant claimed that since he was a clothing
designer for Barbie, the sketches at issue had nothing to do with his
work at Mattel.
Sources
Mattel,Inc.v.MGAEntertainment,Inc.,616F.3d904(9thCir.2010).
UnitedStatesCourtofAppeals,9thCircuit
July22,2010.OpinionwrittenbytheHonorableChiefJusticeAlexKozinski.
36
You Be the Judge!
Ruth Handler, creator of
Barbie and Ken, named
the dolls after her
daughter Barbara and
son Kenneth.
NAME
Date
Review the Case
After reading Mattel, Inc. v. MGA Entertainment, Inc., answer the following:
2. Identify two of the Defendant(s) in the case.
3. Is the Plaintiff seeking money damages?
4. Is the Plaintiff seeking any other type of court order?
5. What is a non-compete clause? How does this clause protect Mattel’s business?
CASE: 5
6. Explain Bryant’s duties under the employment contract with Mattel.
7. How did Mattel compensate Bryant under the employment agreement?
You Be the Judge!
37
NAME
Date
8. Bryant completed a Conflict of Interest Questionnaire for Mattel. What did Bryant certify in the questionnaire?
9. What are the dates that Bryant worked for Mattel?
10. According to Mattel, explain how Bryant violated the terms of his employment contract.
11. When did Bryant claim that he developed the Bratz doll?
12. What inspired Bryant to develop the Bratz doll?
CASE: 5
13. What were Bryant’s duties under the MGA Entertainment Employment Contract?
38
14. According to their employment contract, how was Bryant compensated by MGA Entertainment?
15. BONUS: Based on this case, do you believe employment contracts are fair to employees? Explain.
You Be the Judge!
NAME
Date
Make the Argument
1. Did the Defendant, Bryant, sign an employment contract with the Plaintiff?
2. Did the Defendant, Bryant, violate the terms of the employment contract by entering into an agreement with
MGA Entertainment?
CASE: 5
3. Is the enforcement of Bryant’s employment contract fair and just to all parties?
You Be the Judge!
39
NAME
Date
You Be the Judge
or the Defendant:
Mattel, Inc.
MGA Entertainment, Inc.
and Carter Bryant
CASE: 5
40
You Be the Judge!
Contract Law
CASE: 6
Case 6: The
Tumbled
Cheerleader
Contracts Not to Sue
oBJecTiVe
To understand the use of a release to limit a
party’s liability for injuries caused by its own
alleged negligent acts.
ToPicS coVered
RR Contract
Not to Sue
RR Capacity
of a Minor Child to Enter into a Contract
RR Validity
of Release as Condition to Participation in
Extra-curricular Activities
RR Parental
Consent
You Be the Judge!
41
CASE: 6
Contracts Not to Sue
Background
• Merav Sharon, a high school junior, had been a cheerleader for her school’s football and
basketball teams since her freshman year.
• During her junior year, while still a minor, the high school she attended required all students
and at least one parent/guardian to sign a release in the event a student was injured during a
voluntary extra-curricular activity.
• Merav and her father signed the release.
• Merav fell from a teammate’s shoulders while rehearsing a pyramid formation cheer and
sustained a severe injury to her left arm ultimately resulting in surgery.
• Merav alleged that the high school was negligent in its failure to train and supervise the
cheerleaders.
• The school argued that since Merav and her father signed a parental consent release, the school
was not responsible for her injuries.
Before you Begin
RR What
is a contract?
A contract is an agreement between two or
more competent parties to perform or to
refrain from performing some legal act. If one
party breaches the contract, the other party
can attempt to enforce their contractual rights
in a court of law.
RR What
is a parental consent release?
In the absence of fraud, a person, or parent/
guardian on behalf of a minor, may enter into
a contract with another party which releases
the party (school) from any liability caused by
its own alleged negligent acts.
RR Can
a minor enter into a contract?
A contract cannot be entered into by a minor
(a person 17 or younger). If a minor signs a
contract, that contract will not be enforceable
against the minor unless a parent or guardian
represented the minor at the time of the
contract formation. A parent/guardian
acting in the best interest of the child has
a fundamental right to make decisions
regarding the minor’s health and safety.
RR Is
a release valid as a condition
to participate in extra-curricular
activities?
Yes, releases are widely used by educational
institutions to protect the school from
lawsuits by students who are injured during
participation in these activities.
42
You Be the Judge!
Whether a release signed by the parent of a minor child for the purpose
of permitting the child to engage in public school extra-curricular sports
activities is a valid way to protect the school from liability where a student
gets injured while engaged in the activities.
CASE: 6
THe facTS
On November 8, 1995, 16-year-old Merav Sharon was injured
while participating in cheerleading practice at Newton North High
School in Massachusetts. Merav fell from a teammate’s shoulders
while rehearsing a pyramid formation cheer and sustained a serious
compound fracture to her left arm that required surgery. At the time
of her injury, Merav had four seasons of cheerleading experience at
the high school level.
On November 5, 1998, having reached the age of majority (18
years old), Merav filed a lawsuit against the City of Newton, alleging
negligence and the negligent hiring and retention of the cheerleading
coach. Merav sued for money damages resulting from her injury.
In late October 1999, the city produced a document entitled
“Parental Consent Release from Liability and Indemnity Agreement”
signed by Merav and her father in August 1995, three months prior to
the injury. The relevant part of the release read as follows:
sue is
nt not to ed
a
n
e
v
o
c
A
er
ment ent o
an agree
wh
n
o
s
per
into by a
laim
c
l
a
g
a le
may have
the
nother in
against a agrees not
ut
future, b the claim.
e
u
s
r
to pu
“I, the undersigned [father of] . . . Merav Sharon, a minor, do
hereby consent to [her] participation in voluntary athletic programs and do forever RELEASE, acquit, discharge, and covenant to hold harmless the City of Newton . . . from any and all
actions, causes of action, [and] claims . . . [for] personal injuries
or property damage which [I] may now or hereafter have as the
parent . . . of said minor, and also all claims or right of action
for damages which said minor has or hereafter may acquire,
either before or after [she] has reached [her] majority resulting .
. . from [her] participation in the Newton Public Schools Physical Education Department’s athletic programs. . .”
Merav argued that neither she nor her father realized that by signing the release they were waiving their future claims against the school.
You Be the Judge!
43
CASE: 6
Merav and her father both signed the front of the release, which
they indicated was for the sport of cheerleading. In addition, they
filled out the back of the release that called for information regarding
Merav’s address, date of birth, health insurance provider, and emergency contacts, and provided the opportunity for them to purchase
student accidental insurance through the school (an option which
they explicitly declined on the form). Merav’s father signed the back of
the release giving parental consent to a physical examination of Merav
prior to her participation in the cheerleading program.
The City of Newton argued that the release was a clearly labeled,
two-sided document, which Merav brought home from school for her
parents to review. As such, both Merav and her father had ample time
to read and understand the release before signing it, and they should
be deemed to have understood the release was a waiver of liability
against the school.
Sources
Sharonv.CityofNewton,437Mass.99,769N.E.2d738(Mass.2002).
SupremeJudicialCourtofMassachusetts,Middlesex
June10,2002.OpinionwrittenbytheHonorableJusticeRobertJ.Cordy.
44
You Be the Judge!
Studies have
shown
that cheerlea
ding is
the number on
e cause
of catastroph
ic injuries
among high sc
hool and
college athle
tes.
CASE: 6
NAME
Date
Review the Case
After reading Sharon v. City of Newton, answer the following:
3. Is the Plaintiff seeking money for her injuries?
4. Describe the incident in which Merav was injured.
5. Describe Merav’s injuries from her fall.
6. What was Merav’s cheerleading experience at the time of her injury?
7. What is a parental consent release form?
You Be the Judge!
45
CASE: 6
NAME
Date
8. Explain the City of Newton’s reason(s) for asking the court to enforce the parental consent release.
9. List the facts that support the school’s argument that Merav and her father understood the terms of the
parental consent release.
10. Did Merav voluntarily assume any risks associated with cheerleading?
11. BONUS: What is your school’s policy on extracurricular activities? Are parents/guardians required to sign a
release prior to participation? Explain.
46
You Be the Judge!
Date
Make the Argument
CASE: 6
NAME
1. Did the Plaintiff and one of her parents sign a parental consent release?
2. Did the Plaintiff and at least one of her parents understand the parental consent release?
3. Should the school be permitted to protect itself against lawsuits by having parents/guardians sign parental
consent release forms?
You Be the Judge!
47
CASE: 6
48
NAME
Date
You Be the Judge
or the Defendant:
Merav Sharon
City of Newton
You Be the Judge!
CASE: 7
Contract Law
Case 7:
Teen‛s First
Car
Bowling v. Sperry
Minor’s Capacity to Enter Into
Contracts
oBJecTiVe
To understand the concept of a minor’s “capacity
to contract” and under what circumstances a
minor can “disaffirm” a contract.
ToPicS coVered
RR Capacity
of a Minor to Enter into a Contract
RR Voidable
Contracts
RR Minor’s
Disaffirmance of Contracts
RR Contracts
for Necessities
You Be the Judge!
49
Bowling v. Sperry
Minor’s Capacity to Enter Into Contracts
CASE: 7
Background
• The Plaintiff, Larry Bowling, was a 16-year-old high school student who purchased his first car
from a used car lot owned by the Defendant, Sperry Ford Sales.
• A short time after the purchase, the car broke down and Bowling wanted to return the vehicle to
Sperry Ford Sales.
• Bowling claimed that he did not have contractual capacity to enter into the contract, and as
such, the contract was voidable thus allowing him to disaffirm the contract.
• Sperry argued that because the contract was for necessities, the minor had no right to disaffirm
the contract.
Before you Begin
RR Capacity
to Contract
In order to enter into a binding contract, each
party must have legal contractual “capacity.”
To have legal capacity to enter into a contract,
each of the parties must have reached the
“age of majority.” In other words, 18 years old.
RR Voidable
Contracts
Contracts that are entered into by minors
are “voidable” at the option of the minor,
unless a parent or guardian represented the
minor at the time of the contract formation.
While minors may cancel a contract that they
entered into, the other party to the contract
does not have the same right to cancel an
otherwise valid contract.
50
You Be the Judge!
RR Disaffirmance
Where a minor cancels, or disaffirms, a contract
before he or she reaches 18 years of age.
RR Contracts
for Necessities
An exception to a minor’s right to disaffirm
a contract is in the case of a contract for
necessities, for example, food, clothing, and
shelter. Minors cannot cancel these types
of contracts. The court looks to whether the
item, in this case a “car,” is so needed by a
minor, in view of his situation in life, his social
status, and financial position, that he could
not maintain that lifestyle without it.
Whether a minor, when accompanied by an adult, who purchases an
automobile from a car dealer, may disaffirm the sale after the automobile
breaks down and needs repair.
CASE: 7
Whether an automobile was a necessity for the minor.
THe facTS
The Plaintiff, Larry Bowling, a minor, sued the Defendant, Max
E. Sperry (Sperry Ford Sales), in an effort to disaffirm and set aside a
contract for the purchase of an automobile on the grounds that he was
a minor when he entered into the contract.
Larry, a 16-year-old high school student from Cromwell, Indiana,
worked at a restaurant in Syracuse, Indiana. Because this summer job
was at a restaurant eight to nine miles away from his home, he decided to buy a car.
On June 29, 1957, Larry went to the local car dealer, Sperry Ford
Sales, with his aunt and grandmother. Larry had lived with his grandmother for most of his life. He decided to purchase a 1947 Plymouth
automobile for the sum of $140 from Sperry Ford Sales. He put $50
down on that day and returned July 1 to pay the balance of $90 and
take possession of the car.
obile
an autom
$140 for
alent
iv
the equ
in 1947 is ximately
of appro
ay.
a car tod
r
o
f
0
0
$2,5
The acting manager for Sperry Ford Sales, who sold Larry the car,
testified that when Larry’s aunt and grandmother came to the sales lot
on June 29, “they” said Larry needed something for him to get back
and forth to work. Larry then selected the car, and his aunt drove the
car around the lot at that time.
Sperry delivered to Larry a certificate of title and a written receipt in Larry’s name alone. This receipt stated that as of June 29,
1957, Sperry Ford Sales sold to Larry Bowling a 1947 Plymouth for
the amount of $140 paid in full. Sperry was fully aware of Larry’s age
when the sale was negotiated.
Larry drove the car several times during the following week and
discovered that the main bearing was burned out. He brought the car
back to Sperry’s where Larry learned it would cost $45 to $95 to make
You Be the Judge!
51
CASE: 7
repairs. He refused to pay this amount and left the car on Sperry’s
lot. Subsequently, he mailed a letter to Sperry to the effect that he
disaffirmed the contract of purchase and demanded the return of his
money. Upon Sperry’s refusal to pay back the $140, this lawsuit followed.
At trial, Sperry defended the action on grounds that Larry was
with his grandmother and aunt on the day he purchased the car and
that his aunt actually paid for the car.
It was also revealed at trial that Larry’s aunt loaned him $90 in
order to make final payment on the car and that he began paying his
aunt back at $10 a week.
Larry testified that during the short period of time he had possession of the 1947 Plymouth, he only used it for pleasure and did not
drive it to work.
Sources
Bowling,etc.v.Sperry,etc.,133Ind.App.692,184N.E.2d901(1962).
CourtofAppealsIndiana
September10,1962.OpinionwrittenbytheHonorableJusticeWalterMyers,Jr.
52
You Be the Judge!
An automobile
can be
considered a
necessity
in the moder
n world.
NAME
Date
Review the Case
After reading Bowling v. Sperry, answer the following:
CASE: 7
3. What remedy did the Plaintiff seek from the court? 4. How old was Larry Bowling when he purchased the vehicle?
5. Who did Larry live with at home?
6. Who accompanied Larry when he went to Sperry Ford Sales?
7. Why did Larry need a car?
8. Did Larry purchase a car? If so, what model did he buy and for how much money?
You Be the Judge!
53
NAME
Date
CASE: 7
9. Did Larry test drive the car before he purchased it?
10. What problems did Larry discover the car had? How much would it cost to fix the car?
11. What did Larry do when he was told about the price of repair?
12. Did Larry use the car to drive to work while it was in his possession?
13. What is Sperry Ford’s defense to Larry canceling the contract and demanding his money back?
14. Bonus: Do you believe that a teenager owning his/her own car is as necessary as food, clothing, or living in a
home or apartment?
54
You Be the Judge!
NAME
Date
Make the Argument
CASE: 7
1. Did a contract exist between Larry and Sperry Ford Sales?
2. Was Larry a minor at the time he entered into the contract?
3. Did Larry use the car for pleasure or for work? Was it a necessity in view of his situation in life, his social status,
and his financial condition, so that he could not maintain his lifestyle without it?
You Be the Judge!
55
NAME
Date
You Be the Judge
CASE: 7
or the Defendant:
56
Larry Bowling
Sperry Ford Sales
You Be the Judge!
Business Law: Partnerships
Case 8:
Makeup
Madness!
A Case in Partnership Formation
oBJecTiVe
To understand the basic formation of a
partnership between two individuals.
CASE: 8
Holmes v. Lerner
ToPicS coVered
RR Business
Organizations
RR Partnerships
RR Verbal
Contracts
You Be the Judge!
57
Holmes v. Lerner
A Case in Partnership Formation
Background
• Two friends, Patricia Holmes, a horse trainer, and Sandra Kruger Lerner, a multi-millionaire
businesswoman, agreed to form a business organization to start a cosmetics company known as
“Urban Decay.”
• After returning from a trip to England to purchase horses, the two friends began experimenting
with different colors for nail polish. This experiment blossomed into selecting names for the
colors, securing funding for market research and product development, and naming their
company “Urban Decay.”
CASE: 8
• Holmes claimed that the two friends formed a partnership, and as the business began to
succeed, Lerner pushed her out of this business.
• Lerner claimed that there was no partnership, and although Holmes helped with the original
idea, it was Lerner’s business experience and financial connections that made the business
successful.
Before you Begin
RR What
is a business organization?
A business organization is an entity formed to
make a profit. The entity may be in the form of
a sole proprietorship, a partnership, a limited
liability company, or a corporation.
RR What
is a partnership?
A partnership is an association of two or
more persons to carry on as co-owners of a
business for profit. The partners must “intend”
to form a partnership. This requires the court
to look at the “terms” of their agreement, their
conduct, the sharing of profits, and any other
surrounding circumstances that are relevant
to the case.
58
You Be the Judge!
RR Can
a contract be verbal?
A contract can be verbal or in writing. Some
contracts are required to be in writing; for
example, contracts for the sale of goods over
$500, contracts for the sale of real estate,
contracts that require over a year to complete,
contracts in contemplation of marriage, and
contracts where one person guarantees to
pay for the debt of another.
Whether there are sufficient facts to prove that a partnership existed
between two individuals.
THe facTS
Patricia Holmes was a horse trainer when she met Lerner in late
1993. Lerner visited Holmes’ horse training facility to arrange for the
training and boarding of two horses she imported from England.
Holmes and Lerner became friends, and after an initial six-month
training contract expired, Holmes continued to train Lerner’s horses
without a contract and without cost.
In 1995, Lerner asked Holmes to travel to England with her to
attend a horse show and to buy horses with her. While in England,
Lerner decided that she wanted to celebrate her 40th birthday by
going out to pubs in Dublin, Ireland.
ional
Dysfunct are
hips
partners
ource of
s
a major
failure.
business
CASE: 8
Sandra Kruger Lerner was a successful entrepreneur and an experienced businesswoman. She and her husband, Len Bosack, were the
original founders of Cisco Systems, a very successful computer company.
When she sold her interest in that company, she received a substantial
amount of money, and her net worth was in excess of $47 million at the
time of the trial.
As the two got dressed in Lerner’s mansion outside of London,
Lerner gave Holmes a manicuring kit, telling her to find a color Holmes could wear. Lerner wore what Holmes termed “alternative clothes”
with black nail polish and encouraged Holmes to do the same. Holmes,
however, did not like black nail polish and was unable to find a suitable
color in the English stores. Holmes looked through the kit, tried different
colors, and eventually developed her own color by layering a raspberry
color over black nail polish. This produced a purple color that Holmes
liked. Holmes showed the new color to Lerner, who also liked it.
On July 31, 1995, the two friends returned from England. While
sitting at the kitchen table in Lerner’s posh West Hollywood condominium, they discussed nail polish and colors. Lerner’s husband was
in and out of the room during the conversation.
For almost two hours, Lerner and Holmes worked to try to recreYou Be the Judge!
59
ate the purple color Holmes had made in England. Lerner made a different shade of purple, and Holmes commented that it looked just like
a bruise and called it “Plague.” Holmes had been reading about 16th
century England and how people with the plague developed purple
sores. She thought the color looked like the plague sores.
CASE: 8
Lerner and Holmes decided to create names with an urban theme,
such as “bruise,” “plague,” “mildew,” “smog,” “uzi,” and “oil slick.” Len
Bosack heard the conversation about the urban theme and suggested
“decay.” The two women liked the idea and decided that Urban Decay
was a good name for their concept. Lerner stated, “This seems like a
good thing; it’s something that we both like and it isn’t out there. Do
you think we should start a company?” Holmes responded, “Yes, I
think it’s a great idea.”
60
Urban Decay
‛s colors
were inspired
by the
unique hues of
America‛s
modern edgy
urban
scene.
Lerner’s housekeeper testified that she heard Lerner tell Holmes,
“It’s going to be our baby, and we’re going to work on it together. It
was all Pat’s idea over in England, but I’ve got the money to make it
work.” Lerner also told her housekeeper that she hoped to sell Urban
Decay to Estee Lauder for $50 million.
Neither woman had experience in cosmetics, but they began to
work on their idea immediately. Holmes and Lerner did market research by going to stores, talking with people about nail polish, checking what nail polishes were available, and buying samples to bring
back to discuss with each other. Using Lerner’s home as a laboratory,
they experimented with nail colors, taking pictures of various color
mixing sessions. They met with a graphic artist to create a logo, and
secured a trademark for Urban Decay. Lerner and Holmes discussed
visiting chemical companies and hiring people to handle the daily
operations of the company.
Sources
Eventually, Lerner stopped including Holmes in meetings and
business decisions of the company. Feeling edged out of the business,
Holmes confronted Lerner. Lerner claimed she was just being nice
to Holmes by including her in the Urban Decay business and denied
Holmes had any role in creating the colors, names, or concepts for
Urban Decay. Furious, Holmes sued for breach of a partnership contract.
Thecasebriefingabovecontains
excerptsanddirectextractions
fromthesourcesnotedbelow
thathavebeencombined
withtheauthor’sownexpert
legalinput.Thecasehasbeen
condensedandformattedfromits
originalcontentforpurposesof
thisworkbook.
At trial, Lerner maintained that because the two women did not
discuss sharing profits and losses of the business during their earliest
conversations about the business, there can be no partnership.
Holmesv.Lerner,74Cal.App.4th
442,88Cal.Rptr.2d.130(1999).
CaliforniaCourtofAppeals,First
District,DivisionOne
September7,1999.Opinion
writtenbytheHonorableJustice
JamesJ.Marchiano.
You Be the Judge!
NAME
Date
Review the Case
After reading Holmes v. Lerner, answer the following:
2. Identify one of the Defendants in the case.
CASE: 8
3. How did the parties meet?
4. What was Patricia Holmes’ profession prior to Urban Decay?
5. What business did Sandra Kruger Lerner own prior to Urban Decay? Was it financially successful?
6. List specific facts that will help the jury understand Lerner’s wealth.
7. What prior experience did the parties have in nail polish?
8. Who came up with the name “Urban Decay”?
You Be the Judge!
61
NAME
Date
9. Who came up with the idea of an “urban” theme for nail polish?
CASE: 8
10. Who created the original “purple” color in England, and what was it called? What information helped to name
the “purple” color?
11. What did the housekeeper overhear during the conversation in the kitchen between Lerner and Holmes?
12. BONUS: What could the parties have done to avoid this lawsuit?
62
You Be the Judge!
NAME
Date
Make the Argument
1. Did Sandra Kruger Lerner and Patricia Holmes intend to carry on as co-owners of a business for profit? To make
this determination as to intent, the court must consider the following:
a. What were the terms of their agreement?
CASE: 8
b. What was the conduct of the parties? For example, did the parties act like they were in business together?
c. What were the surrounding circumstances of the agreement?
2. Was the agreement between Lerner and Holmes sufficiently “definite”? In other words, did the parties agree
“upon the same thing, in the same sense”? Explain.
You Be the Judge!
63
NAME
Date
You Be the Judge
or the Defendant:
Patricia Holmes
Sandra Kruger Lerner
CASE: 8
64
You Be the Judge!
Tort Law: Negligence
and Strict Liability
Case 9:
Grain
Alcohol and
“Fire Play”
Selwyn v. Ward
Duty of Care in Negligence and
Strict Liability Actions
To understand the concept of negligence and
strict liability as it relates to the sale of alcohol to
minors where injury was caused by “fire play.”
ToPicS coVered
RR Dram
Shop Act
RR Negligence
RR Strict
Action
Product Liability
RR Ultrahazardous
CASE: 9
oBJecTiVe
Activity
You Be the Judge!
65
Selwyn v. Ward
Duty of Care in Negligence and Strict Liability Actions
Background
• A minor, Taylor Ward, was hosting a teenage party in a barn located in the back of his parents’
house where partygoers were drinking and using illegal drugs.
• The Plaintiff, Bridget Selwyn, a teenage girl, was injured at the party when one of the teenagers
poured a bottle of Everclear grain alcohol onto an open fire, which exploded.
• A minor, Lauren Andrews, not present at the party, purchased the bottle of Everclear from RC
Liquors, Inc. several weeks prior to the incident.
• Relying on the R.I. Dram Shop Act, the Plaintiff sued, among others, RC Liquors for selling alcohol
to a minor alleging (a) negligence and (b) strict liability. Under her negligence theory, Selwyn
alleged that RC Liquors breached its duty of care when it sold grain alcohol to Lauren Andrews
because it knew or should have known of the “fire play” linked to grain alcohol. Under her strict
liability theory, Selwyn stated that selling alcohol to minors is an ultrahazardous activity.
Before you Begin
CASE: 9
RR What
is a Dram Shop Act?
A Dram Shop Act creates liability for liquor
stores and other commercial establishments
that serve alcoholic beverages to minors.
Dram Shop Acts establish liability of
establishments from the sale of alcohol to
minors where said minors are injured or cause
injury to third parties.
RR What
are the factors to consider in a
Negligence action?
To win a negligence case, the Plaintiff must
establish a duty owed by the Defendant to
the Plaintiff, a breach of that duty, proximate
cause between the conduct and the injury,
and actual loss or damage.
RR What
is Strict (Products) Liability?
In a strict liability lawsuit, Plantiffs claim that
their injuries are proximately caused by some
ultrahazardous or abnormally dangerous
activity of the Defendant.
66
You Be the Judge!
RR What
is an “ultrahazardous” and
“abnormally dangerous” activity?
An ultrahazardous and abnormally dangerous
activity is one that is so inherently dangerous
that a person engaged in such an activity
should be held strictly liable for injuries
caused to another person—even if the
person engaged in the activity took every
reasonable precaution to prevent others
from being injured. To determine whether
an activity is ultrahazardous or abnormally
dangerous, courts consider various factors: (a)
the risk of harm to others, (b) the likelihood
that the harm that results from it will be
great, (c) the inability to reasonably eliminate
the risk by exercising reasonable care, (d)
the commonality of the activity, (e) the
inappropriateness of the activity, and (f) the
value of the activity to the community.
Whether the Defendant breached its duty of care when it sold grain
alcohol to a minor because it knew or should have known of the link
between grain alcohol and “fire play.”
Whether the Defendant’s sale of grain alcohol to a minor is an
ultrahazardous activity, warranting application of strict liability.
THe facTS
“It’s an all too familiar scenario—a group of high school students
manages to obtain some alcoholic beverages, act irresponsibly, and
someone gets hurt.” In this version, however, the injuries did not
result from the consumption of illegally obtained alcohol but from
a minor igniting it and causing an explosion. The Plaintiff, Bridget
Selwyn, was the victim in this tragedy and sought to recover for her
injuries from several named Defendants, including RC Liquors, Inc.
ngers,
of its da
e
s
u
a
c
e
B
t sell
tes do no
some sta hol or any
o
grain alc
%
over 75.5
h
it
w
liquor
alcohol.
CASE: 9
In the early morning of August 26, 2000, the Plaintiff and several others gathered at the home of Karen Ward (Ward) in Warwick,
Rhode Island. The Ward property included an outbuilding, referred
to as “the barn,” in which Ward’s son, Taylor, and his friends often
socialized. On the night of the incident, the gathering at the barn
included Bridget Selwyn, Taylor Ward, Michael A. Buonanno, and
several other teenagers.
Various people at the party were smoking marijuana and/or ingesting ecstasy in the barn. There was also a partially consumed 1.75
liter bottle of 190-proof grain alcohol or “Everclear” at the party. The
bottle had a large label on it that stated, “Warning! Extremely Flammable.” At about 4:30 am on August 26, 2000, the bottle of Everclear
became the catalyst for disaster when Buonanno poured some of the
grain alcohol onto an open flame, causing an intense explosion that
burned Selwyn.
The bottle of Everclear was not purchased by Buonanno, but by
another teenager, Lauren Andrews. She purchased the Everclear for
a gathering at the barn the previous month. Andrews purchased
the Everclear at RC Liquors and stated at trial that she was never
asked for identification to prove she was over 21 years of age—the
You Be the Judge!
67
legal drinking age in Rhode Island. Andrews further testified that
she used the alcohol at the previous gathering to mix up a batch of
“Jungle Juice,” a combination of Kool-Aid and Everclear—and left the
remaining grain alcohol in the barn. She did not purchase the bottle
for fire use or “fire play.”
CASE: 9
Thomas J. Paolino, a physician and psychiatrist, concentrating his
practice on treating substance abuse issues with teenagers, testified
that consumption of grain alcohol by teenagers can lead to “rapid intoxication” and young adults will typically engage in risky or dangerous behavior when severely impaired by alcohol. He further testified
that grain alcohol is extremely flammable and it was foreseeable that
teenagers who drink grain alcohol would often light it on fire.
The Plaintiff had two theories of liability for RC Liquors. First,
Negligence: The Plaintiff alleged that RC Liquors breached its duty of
care when it sold the grain alcohol to Lauren Andrews. Although she
admitted that the injury was not due to the intoxication of a minor,
but rather “horseplay,” Selwyn argued that RC Liquors was aware, or
should have been aware that recipes and Web sites encouraged “fire
play” with grain alcohol and that adolescents tend to ignite grain
alcohol. Further, the Plaintiff argued that RC Liquors violated the
Dram Shop Act, which supported her claim for negligence as a matter
of public policy. Second, Strict Liability: The Plaintiff also alleged that
selling grain alcohol to a minor was an ultrahazardous or abnormally
dangerous activity, which warranted the application of strict liability.
Sources
Selwynv.Ward,879A.2d882(R.I.2005).
RhodeIslandSupremeCourt
OpinionwrittenbytheHonorableJusticesFrankJ.Williams,C.J.,MaureenMcKenna
Goldberg,PaulA.Suttell,andWilliamP.Robinson,III,JJ.
68
You Be the Judge!
The term dra
m shop
refers to a sh
op where
“spirits” are
sold by the
“dram,” a sm
all unit of
liquid.
The first Dram Shop Act
was passed in Illinois in
1872.
NAME
Date
Review the Case
After reading Selwyn v. Ward, answer the following:
2. Identify two of the Defendant(s) in the case.
3. Is the Plaintiff asking for money damages?
4. Who purchased the bottle of Everclear? Was he/she present at the party?
5. Where was the grain alcohol purchased?
CASE: 9
6. When was the grain alcohol purchased?
7. Who was the owner of the property where the party was hosted?
8. Where on the property was the party located?
9. How was Bridget Selwyn injured?
You Be the Judge!
69
NAME
Date
10. What could the Defendant, RC Liquors, have done to prevent the injury to the Plaintiff?
11. What is an ultrahazardous activity?
CASE: 9
12. BONUS: In your opinion, do you think RC Liquors knew or at least should have known that by selling the grain
alcohol to Lauren Andrews, a teenager, the bottle would fall into the hands of other teenagers who would then
pour the alcohol onto an open flame?
70
You Be the Judge!
NAME
Date
Make the Argument
1. Plaintiff’s negligence theory:
a. Did RC Liquors sell the grain alcohol to a minor, namely, Lauren Andrews?
b. Is it reasonably foreseeable to RC Liquors that by selling a bottle of Everclear to a minor that the minor may
use it for “fire play”? Explain.
CASE: 9
2. Plaintiff’s strict liability theory:
a. Did RC Liquors fail to warn the user of the dangers of the product it sold?
b. Is the selling of grain alcohol an activity that cannot be made safe by the exercise of reasonable care?
You Be the Judge!
71
NAME
Date
You Be the Judge
or the Defendant:
Bridget Selwyn
RC Liquors, Inc.
CASE: 9
72
You Be the Judge!
Case 10:
Underage
Drinking
Tobin v. Norwood Country
Club, Inc.
Duty of Care to Refrain from
Serving Alcohol to Minors
oBJecTiVe
To understand in a negligence action what the
duty of care is for business owners who serve
alcohol to customers.
ToPicS coVered
RR Dram
of Care
RR Reasonable
Care
CASE: 10
RR Duty
Shop Act
You Be the Judge!
73
Tobin v. Norwood Country Club, Inc.
Duty of Care in Refraining from Serving Alcohol to Minors
Background
• The Defendant, Norwood Country Club, is a commercial establishment that serves meals and
alcoholic beverages to the general public. It also makes its facility available for private parties by
special arrangement.
• A teenage girl became severely intoxicated at the club, which was hosting a party for her
boyfriend’s family. After fighting with her boyfriend at the club, she left on foot, and, while
speaking with her friends who were urging her to get into their car, was struck by a vehicle in the
middle of the highway. The minor’s blood alcohol level was recorded as .229—nearly three times
the legal limit of .08.
• The Plaintiff, the family of the deceased teenager (John M. Tobin, Administrator of the
Estate) sued the club following the death of a teenage girl utilizing the Commonwealth of
Massachusetts’ Dram Shop Act.
• The minor’s family alleged that Norwood Country Club was negligent in breaching its duty of
care owed to their daughter since it knew or should have known that minors were drinking
alcohol during the party.
Before you Begin
RR What
is a Dram Shop Act?
A Dram Shop Act creates liability for liquor
stores and other commercial establishments
that serve alcoholic beverages to minors.
Dram Shop Acts establish liability of
establishments from the sale of alcohol to
minors where said minors are injured or cause
injury to third parties.
CASE: 10
RR What
74
is the duty of care?
The duty of care is the first of four elements
that a plaintiff must prove to establish a
negligence action against a defendant. The
duty of care element requires proof that the
defendant owed the plaintiff a duty of care
to protect him/her from harm. The amount
or level of care owed by the defendant to a
plaintiff is qualified by the type of relationship
the parties are engaged in: such as, lawyerclient, physician-patient, employer-employee,
and in this case, landowner-invited guest,
otherwise known as a business invitee.
You Be the Judge!
RR What
is reasonable care?
Reasonable care is the obligation of a person
to behave as a reasonably prudent person
using the ordinary degree of care required in
the circumstance.
Whether an establishment serving alcohol has a duty to use reasonable
care to refrain from selling or making alcohol available to minors where
the establishment knew or should have known that minors were on the
premises and were attempting to drink alcohol.
THe facTS
The Defendant, Norwood Country Club, is a commercial establishment located in Norwood, Massachusetts that serves meals and
alcoholic beverages to the general public. It also makes its facility
available for private parties by special arrangement.
On the night in question, a Norwood Country Club employee,
Paul Moran, organized a family reunion to be held in a private room
at the club. The party lasted from 7 pm to after midnight. The party
had approximately 100 guests, including six minors, with assigned
seating at eight tables. The deceased teen, a 17-year-old female, was the
girlfriend of a family member who was 16 years of age.
Paul Moran, a family member and full-time bartender at the
club, reserved the room free of charge. The family paid the club for
the drinks consumed at the party and paid for a caterer to supply the
food.
elling
lty for s
a
n
e
p
e
h
T
o a minor
alcohol t
t
state, bu
varies by
e
fin , a
cludes a
in
y
ll
a
u
s
u
case
or in the
warning,
uyer, a
ividual b
n.
of an ind
uspensio
license s
Michael Mercer was the club’s bartender supervisor. Mercer approved Moran to use a room at the club for his private function free
of charge, although he was unaware that Moran was drinking alcohol that night. Mercer acknowledged that minors were present at the
party.
CASE: 10
At 9 pm that evening, Moran told Mercer to go home and he
would take responsibility for the private party room. Moran asked
family members to help him police the party to make sure there was
no underage drinking.
Patricia Erwin, the bartender on duty that night, could not see
the private party room from the bar. That night, she served drinks to
party and public guests. She did not enter the private party room during the evening to check if there were any alcohol-related problems.
Erwin explained that although this was part of her normal practice,
You Be the Judge!
75
she believed Moran was in charge of that responsibility.
While the club had a policy of serving only two drinks at a time to
a customer, it came out at trial that many customers from the family
party came away with several drinks in hand to take to the function
room.
Erwin testified that she neither served anyone who appeared to be
a minor nor saw anyone she did serve hand a drink to a minor. One of
the teenagers at the party contradicted this testimony and stated that
on at least three occasions, he helped two adults by carrying multiple
drinks (on one occasion between 9 and 12 Sea Breeze vodka drinks)
from the bar.
The first Dra
m Shop
Act was pass
ed in
Illinois in 187
2.
Further, witnesses testified that many of the teenagers seemed
drunk by the end of the party and their tables contained several
empty and half-empty glasses of pink liquid that is consistent with the
color of a Sea Breeze vodka drink.
CASE: 10
At the close of the party, the decedent had an argument with her
boyfriend and left the club alone. She walked down the breakdown
lane of the highway near the club’s location. Several teenagers left the
party in a van in search of a place to continue their drinking. When
they encountered the decedent walking in the breakdown lane, they
stopped the van and tried to persuade her to get into the van. When
she refused and continued walking, the van followed, pulled ahead of
her and stopped. The decedent walked in front of the van, pounded
on the front hood and then veered diagonally toward the center of
the highway. She was struck by a passing vehicle and suffered the
injuries from which she died two days later. The decedent’s blood
alcohol level two hours after the accident was .229, nearly three times
the legal limit of .08.
76
Sources
Tobinv.NorwoodCountryClub,Inc.,422Mass.126,661N.E.2d627(1996).
SupremeJudicialCourtofMassachusetts,Suffolk
February22,1996.OpinionwrittenbytheHonorableJusticeCharlesFried.
You Be the Judge!
The term dram shop
refers to a shop where
“spirits” are sold by the
“dram,” a small unit of
liquid.
NAME
Date
Review the Case
After reading Tobin v. Norwood Country Club, Inc., answer the following:
3. Is/Are the Plaintiff(s) seeking money as compensation for their damages?
4. Who rented the room for the party?
5. Did the party pay for the room? If not, explain.
6. What were the party organizers responsible to pay for?
CASE: 10
7. What was Norwood Country Club’s policy on the number of drinks served to a customer at any one time? Was
this policy followed? Give specifics.
8. Did Norwood Country Club know minors were at the party?
You Be the Judge!
77
NAME
Date
9. Did Norwood Country Club know the minors were drinking alcohol? If not, what facts illustrate that the club
should have known?
10. Who is Paul Moran, and what was his “role” at the party?
11. What actions did Paul Moran take to prevent underage drinking at the party?
12. Who is Patricia Erwin, and what actions did she take to prevent underage drinking?
13. What was the decedent’s blood alcohol level two hours after her death?
CASE: 10
14. BONUS: In your opinion, was the deceased teenage girl responsible or partially responsible for her own fate in
this case?
78
You Be the Judge!
NAME
Date
Make the Argument
1. Did Norwood Country Club owe a duty of care to the minor?
2. Was the duty of care breached? Explain.
3. Was the breach of the duty of care the actual cause of the injury to the minor? In other words, but for the club
serving alcohol to the minor to the point of intoxication, would she have walked into the middle of the street
and been killed by oncoming traffic? Explain.
5. Did the minor contribute to her own death in any way? If so, please assign a percentage of liability to her for
her actions. Explain.
You Be the Judge!
CASE: 10
4. Was the death of the minor a reasonably foreseeable result of the club’s failure to control the underage
drinking at the party? In other words, by failing to prevent underage drinking at the party, was it reasonably
foreseeable that the teenage girl would drink to the point of intoxication and later be injured? Explain.
79
NAME
Date
You Be the Judge
or the Defendant:
John M. Tobin, Estate Administrator
Norwood Country Club, Inc.
CASE: 10
80
You Be the Judge!
Tort Law: Strict Liability
CASE: 11
Case 11:
Where is
My Horse?
Johnston v. Poulin
Strict Liability for Roaming
Animals
oBJecTiVe
To understand the concept of strict liability as it
applies to roaming or “at large” animals.
ToPicS coVered
RR Strict
Liability for Roaming Animals
RR Roaming
or “At Large” Animals
You Be the Judge!
81
CASE: 11
Johnston v. Poulin
Strict Liability for Roaming Animals
Background
• Defendants, 16-year-old Jon Poulin and his mother, Barbara Poulin, owned a horse named Twig.
The Poulins kept Twig in a fenced-in area of their property in Foster, Rhode Island.
• Twig escaped from the property and roamed “at large.” With the help of a policeman, who had
experience with horses, Twig was found, but she refused to be led into a horse trailer.
• Since Twig refused to get into a horse trailer, the policeman walked Twig to Plaintiff Phillip
Johnston’s farm house to board her for the night. While Mr. Johnston attempted to secure Twig in
a stall, the horse kicked him in the head resulting in severe personal injuries.
• Mr. Johnston alleged that the Poulins were liable for his injuries under a theory of strict liability
because, as the horse was a roaming animal, an owner is liable for all damages resulting while
the animal is “at large.”
Before you Begin
RR What
is a roaming or “at large”
animal?
A roaming animal is one that breaks free from
its enclosure and is roaming and wandering
under its own free will. To determine whether
an animal is “at large,” the court must
determine at what point there is control and
restraint exercised over the animal while it is
off its owner’s premises.
RR What
is strict liability for roaming
animals?
Under the applicable Rhode Island law, an
owner of certain defined animals is strictly
liable for the damage caused by the owner’s
animal if it breaks free from its enclosure—
regardless of the owner’s care to ensure that
the animal does not break free.
82
You Be the Judge!
RR What
types of animals are defined
in the Rhode Island law as roaming
animals?
The types of animals that are roaming animals
are a horse, a bull, a boar, a ram, or a goat.
Whether, given the facts of the case, the horse Twig was “at large” for
purposes of strict liability at the time of the Plaintiff’s injury.
CASE: 11
THe facTS
Barbara Poulin and her 16-year-old son, Jon, were the owners of a
horse named Twig. The Poulins kept Twig fenced in on Mrs. Poulin’s
property in Foster, Rhode Island. On the night of November 10, 1997,
a strong wind caused a tree branch to fall on the electric fence that
corralled the horse. Twig escaped from her enclosure, and around
11 pm, the Foster Police Department received a report that Twig was
running wild on a local road approximately two miles from home.
Shortly before midnight, Foster Police Lieutenant Chapman
arrived at the Poulin home and spoke to Jon. Barbara Poulin was
at work. Jon went with Lt. Chapman to attempt to restrain Twig in
a horse trailer, but they were unsuccessful. After 45 minutes, they
walked Twig to Plaintiff Phillip Johnston’s farm house to board her for
the night. Lt. Chapman recommended Mr. Johnston, an experienced
horseman with facilities capable of maintaining Twig for the night.
ered
l is consid
An anima if it is not
”
“at large
ow
or someh
confined
.
d
controlle
By the time the group arrived at Mr. Johnston’s farm 30 minutes
later, Twig had calmed down. Upon entering the barn, Twig became
nervous and reared, but she eventually calmed and was led by the
halter into the barn.
Once inside, Lt. Chapman requested Mr. Johnston’s assistance in
placing the horse into the barn stall. Lt. Chapman handed the lead
rope to Mr. Johnston, who walked the horse into the stall and clipped
a wall rope to the halter without difficulty. Mr. Johnston then walked
past the horse and left the stall to get some hay.
Upon his return, Mr. Johnston walked along Twig’s left side and
deposited the hay in a trough in front of her head. As he attempted to
leave the stall, Mr. Johnston brushed against Twig causing the horse
to pull back and rear up, and the wall rope broke. Twig lost her footing and fell down, knocking Mr. Johnston to the ground. While Twig
was attempting to get back on her feet, she struck Mr. Johnston in
the head with her hind hoof. Twig then ran out of the stall to an open
You Be the Judge!
83
CASE: 11
field behind the barn.
Although Mr. Johnston indicated to the police that he was okay,
the next day he woke up in pain and went to the hospital. Subsequent
medical reports showed that Mr. Johnston suffered a concussion and
injured his neck, jaw, and head. Mr. Johnston received stitches to his
head.
There was evidence presented at trial that Twig was in a state of
excitability when she entered the barn and was never fully brought
under control. There was also contradicting evidence that Twig had
been restrained and was indeed brought under control.
Jon Poulin testified that Mr. Johnston antagonized the horse by
slapping her on the rear when she stood up abruptly as he slid past her
left side.
Sources
Johnstonv.Poulin,844A.2d707(R.I.2004).
March29,2004.OpinionwrittenbytheHonorableJusticePaulA.Suttell.
84
You Be the Judge!
By 1900, Nor
th America
had an estim
ated two mill
ion
free-roaming
horses. Most
of the horses
were mustang
s
which began
to decrease
in
number due to
human abuse.
U.S. Congress
passed the W
ild
Free-Roamin
g Horse and
Burro
Act of 1971
which provid
ed
for protection
of mustangs
and other an
imals.
CASE: 11
NAME
Date
Review the Case
After reading Johnston v. Poulin , answer the following:
3. Is the Plaintiff seeking money as compensation for his injuries?
4. Who is “Twig”?
5. Did the Poulin’s yard have a fence? If so what kind?
6. How did Twig escape from the Poulin’s yard?
7. Where did Lt. Chapman find Twig?
8. How long did Lt. Chapman attempt to get Twig into a trailer?
You Be the Judge!
85
CASE: 11
NAME
9. Why did Lt. Chapman decide to bring Twig to Mr. Johnston’s barn?
10. How did Twig initially react to Mr. Johnston’s barn?
11. Did Lt. Chapman request Mr. Johnston help him bring Twig into his barn?
12. What caused Twig to kick Mr. Johnston?
13. What did Twig do immediately after kicking Mr. Johnston in the head?
14. When did Mr. Johnston realize that he was injured by Twig?
86
You Be the Judge!
Date
Date
Make the Argument
CASE: 11
NAME
1. Is Twig considered a roaming animal? Explain.
2. Did the Defendants own Twig at the time of the accident?
3. Did Twig break free from the Defendant’s property?
4. How was the Plaintiff injured by Twig?
5. Was Twig “at large” at the time that she kicked the Plaintiff? To make this determination, you must decide
whether the Plaintiff exercised control and restraint over Twig at the time he was injured.
You Be the Judge!
87
CASE: 11
88
NAME
Date
You Be the Judge
or the Defendant:
Phillip Johnston
Barbara and Jon Poulin
You Be the Judge!
Volpe v. Gallagher
CASE: 12
Case 12:
When
Neighbors
Attack
Landowner’s Duty of Care to
Control Actions of a Person on
His/Her Property
oBJecTiVe
To understand the duty of homeowners for actions
taken by individuals on their property.
ToPicS coVered
RR Landowner’s
duty of care to prevent criminal acts of
third person “licensees” on his/her property
RR Exception
to rule of landowner’s duty of care to
prevent criminal acts of third person “licensees” on
his/her property
RR Duty
to Inspect Property
You Be the Judge!
89
Volpe v. Gallagher
Landowner’s Duty of Care to Control Actions of
a Person on His/Her Property
CASE: 12
Background
• The Plaintiffs, Raymond Volpe and Joyce Almonte, accused their neighbor, the Defendant, Mrs.
Sara Gallagher, of negligence by failing to inspect the bedroom of her son, James Gallagher.
They alleged that Mrs. Gallagher, as the owner of property, had a duty to inspect the premises for
dangerous conditions.
• James Andrew Gallagher, a mentally ill 34-year-old adult and an occupant at the Defendant’s
home, kept guns and ammunition in the Defendant’s home and used these firearms to shoot
and kill his next-door neighbor, Ronald Volpe, for no apparent reason.
• Mrs. Gallagher asserts that she did not know that her son kept guns or ammunition on her
property; and even if she did know, she could not have known that her son would use them to
murder her next door neighbor, as he had no history of violence prior to this tragedy.
Before you Begin
RR What
is a landowner’s duty of care for
criminal acts of third persons?
A landowner has no duty to protect another
from intentional criminal acts of third parties
that take place on his/her property or the
public way.
RR What
is an exception to the
landowner’s duty of care for criminal
acts of third persons?
Landowners have a duty to prevent third
persons that they permit to use their property
from intentionally harming or creating an
unreasonable risk of bodily harm to others—
where the landowner has the ability to control
the third person and knows, or should know,
of the need to exercise such control.
90
You Be the Judge!
RR What
is the landowner’s duty to
inspect property?
A possessor of land has a duty to inspect the
premises for dangerous conditions.
CASE: 12
Whether the Defendant Gallagher, as a landowner, owed a duty to her
neighbors, Plaintiffs Volpe and Almonte, to prevent her mentally ill son,
a licensee, from conducting himself on her property in a manner that
created an unreasonable risk of bodily harm to her neighbor.
THe facTS
“Who knew? In essence, that was the defense to the charge of
negligence in this lawsuit.” The Plaintiffs, Raymond Volpe and Joyce
Almonte, accused the homeowner, Defendant Mrs. Sara Gallagher, of
negligently allowing her mentally ill adult son, James Andrew Gallagher, to keep guns and ammunition on her property.
On July 3, 1994, the date of the murder—James Andrew Gallagher, 34 years old, lived with his mother, Mrs. Gallagher, in her small
North Providence, Rhode Island, ranch house. James, who had no
job and no friends, suffered from hallucinations, imaginary conversations, and paranoia. James spent long hours by himself in his bedroom located in the basement of Mrs. Gallagher’s home.
In this basement bedroom, James kept a shotgun, a pistol, boxes of
ammunition, and related gun paraphernalia. On the date in question,
for no known reason, James suddenly emerged from the basement of
the Defendant’s home with his loaded shotgun in hand and shot his
neighbor, Ronald Volpe, three times while the victim was trimming
the hedges between their two houses.
rson
e is a pe
A license e property
th
who is on er (with
h
t
o
n
of a
he
despite t
),
n
io
s
is
m
r
t
e
r
p
pe y
t the pro
fact tha
en to the
is not op
ublic.
general p
After discharging the shotgun three times into Volpe’s head and
body, James returned, shotgun in hand, to his basement leaving the
victim’s dead body facedown in the hedges.
After hearing the gunshots, Mrs. Gallagher stood at her side
door as James brushed by her on his way back down to the basement.
James admitted to her that he had just shot the victim.
Thinking that her son just might be hallucinating again, but troubled by the “fireworks” she had heard, Mrs. Gallagher called her two
daughters who lived nearby and asked them to come over to the house
right away. They did so and quickly enlisted the help of a neighbor.
You Be the Judge!
91
CASE: 12
Walking over to the hedges that bordered the Volpe and
Gallagher houses, the neighbor soon discovered Volpe’s body and
called the police.
Meanwhile, one of the Defendant’s daughters entered the
basement, removed a handgun from a dresser drawer, and hid it
under a pillow on the living room couch until the police arrived and
arrested James.
The Plaintiffs brought a wrongful-death lawsuit against Mrs.
Gallagher. They also attempted to sue the incarcerated James Andrew
Gallagher, but he did not testify or otherwise participate in the trial of
this civil case.
Charged with first-degree murder by the state, James eventually
dropped his insanity defense and pled nolo contendere (no contest) to
a reduced criminal charge of second-degree murder. Throughout this
trial action, James remained imprisoned for this crime.
According to Mr. Volpe and Ms. Almonte, the Defendant knew
or should have known that by allowing her mentally ill son to possess
guns and ammunition under his condition, she created an unreasonable risk of bodily harm to others.
Although James was not formally diagnosed with mental illness,
at trial, Mrs. Gallagher admitted, “I knew he wasn’t right. I just didn’t
know what was wrong with him [...] he just wasn’t acting right. He
always wanted to be alone in darkness. He was acting peculiar.”
However, Mrs. Gallagher stated, “I just wouldn’t allow anybody
to have guns in the house. I was afraid of them and didn’t want them.
If I had known that my son had a gun, I would have told him to get
rid of it. If he didn’t, I would have.” Gallagher argued that she did not
know that James had guns and ammunition in her home. Further,
even if she had known, her son had no history of violence. Therefore,
she argued that she could not have foreseen that one day he would
shoot their next door neighbor using any of the guns and ammunition that he kept at her home.
Sources
Volpev.Gallagher,821A.2d699(R.I.2003).
May12,2003.OpinionwrittenbytheHonorableJusticeRobertG.Flanders.
92
Nolo Conten
dere
(no contest)
is a Latin term
which means
“I do not wis
h
to contest.”
It refers to
the plea by an
individual
in a criminal
case where
he/she does
not wish
to contest th
e charges
against him/h
er.
You Be the Judge!
The duty of care is a legal
obligation set on an individual
that they act with a standard
of reasonable care to prevent
foreseeable harm to others. If
a person‛s actions do not meet
this standard of care, then the
acts are considered negligent,
and any damages resulting
may be claimed in a lawsuit of
negligence.
NAME
Date
Review the Case
After reading Volpe v. Gallagher , answer the following:
CASE: 12
3. Are the Plaintiff(s) looking for compensation in the form of money from the Defendant?
4. What is the relationship between Mrs. Gallagher and James Gallagher?
5. How old was James Gallagher when he committed the criminal act?
6. What symptoms of mental illness did James Gallagher suffer from?
7. Did a medical physician ever diagnose James Gallagher regarding his mental illness?
8. What crime(s), if any, was James Gallagher charged with, and how were those criminal charges ultimately
decided?
9. Did Mrs. Gallagher periodically inspect her son’s room for guns or any other weapons?
You Be the Judge!
93
NAME
Date
CASE: 12
10. Did Mrs. Gallagher have a right, as the owner of the property, to inspect her son’s room for weapons, even
though he was an adult at the time of the incident?
94
11. What were Mrs. Gallagher’s arguments as to why she should not be responsible for the actions of her son? Be
specific.
You Be the Judge!
NAME
Date
Make the Argument
2. Did the Defendant, Mrs. Gallagher, as the owner of the property, know that James Andrew Gallagher had
weapons in his room?
CASE: 12
1. Did Mrs. Gallagher, as the owner of the property, have a duty to her neighbors to keep her premises safe from
dangerous conditions, in this case, her son harboring weapons? Explain.
3. Should Mrs. Gallagher, as the owner of the property, have known that her son had dangerous weapons in his
room?
4. Did Mrs. Gallagher know that her son, James, was a dangerous person? Explain.
5. Did Mrs. Gallagher breach her duty of care to her neighbors by failing to inspect the premises for dangerous
conditions, i.e., guns in her son’s room? Explain.
6. Could Mrs. Gallagher control her son’s actions where she could demand he remove the guns from his room?
Explain.
7. D
id the fact that James Gallagher harbored weapons in his room create an unreasonable risk of foreseeable
harm to the Volpes/Almontes? Explain.
You Be the Judge!
95
NAME
Date
You Be the Judge
CASE: 12
or the Defendant:
96
Raymond Volpe and Joyce Almonte
Mrs. Sara Gallagher
You Be the Judge!
Case 13:
Fireworks
at School
School District’s Liability for
Criminal Acts of Third Persons
on School Grounds
oBJecTiVe
CASE: 13
Nicholson v. Bd. of Educ. of
the City of New York
To understand a school’s liability for injuries that
occur on school grounds after school hours.
ToPicS coVered
RR Municipality’s
duty of care to maintain school
playgrounds
RR Municipality’s
liability for criminal activities on
school playgrounds
RR Municipality’s
duty to provide supervision on school
playgrounds
You Be the Judge!
97
Nicholson v. Bd. of Educ. of the City of New York
School District’s Liability for Criminal Acts of Third
Persons on School Grounds
Background
• Brian Nicholson, a 7-year-old boy, lived across the street from elementary school Public School
94, in Brooklyn, New York. On the day in question, Brian walked across the street around 4:30 pm
and sat down in a corner of the school yard.
• At that time, ten other children, each about 12 years of age, were playing with fireworks in the
schoolyard. One of the children called Brian’s name. When Brian turned around, he was hit in the
left eye by a firecracker. After several successive operations, the eye was removed and an artificial
one put in its place.
CASE: 13
• Brian, through his mother, Margaret Nicholson, brought an action against the Board of Education
for the City of New York for the injuries sustained from the criminal activity, i.e., setting off
fireworks, an illegal activity in New York at the time of the incident.
Before you Begin
RR What
is a municipality’s duty of
care to persons using its parks and
playgrounds?
A municipality is under a duty to maintain its
parks and playground facilities in a reasonably
safe condition.
RR What
is a municipality’s liability to
injured parties caused by criminal
activities at public playgrounds?
A municipality that is aware people are
using its park or playground as a site for
criminal activities needs to take appropriate
preventative measures to protect others from
harm. If it fails to do so, the municipality will
be liable for resulting injuries.
98
You Be the Judge!
RR What
is a municipality’s duty of care
regarding supervision of parks and
playgrounds?
A municipality may be obligated to have an
adequate degree of general supervision and
regulation to prevent activities by park visitors
that endanger other visitors.
Whether a municipality, aware that its playground is being used by
children as a site for the unlawful discharge of fireworks, is liable for
resulting injuries when it fails to take appropriate preventative measures.
THe facTS
At the time Brian entered the playground, ten other children, each
about 12 years of age, were playing with fireworks. Brian heard his
name called, and when he turned around, a firecracker hit him in the
left eye. After several operations, the eye was removed and an artificial
one replaced it.
The school yard was not run as an official, supervised area for
after-school play. The Defendant, the Board of Education for the City
of New York, did not assign school personnel to supervise play. Nevertheless, young children in the neighborhood, a congested tenement
house area, played at P.S. 94 after school, as it was the closest playground to their houses. The school yard was separated from the public
sidewalk by a high metal fence. However, the gates of the fence had
been missing for years.
istrative
An admin sed of a
ompo
division c ritory and
er
defined t known as a
is
n
io
populat
ipality.
ic
n
u
m
CASE: 13
In June 1968, at about 4:30 pm, 7-year-old Plaintiff Brian
Nicholson, walked across the street into the school yard at elementary
school P.S. 94 in Brooklyn, New York. Brian sat down in a corner to
watch the “big” kids play. He was not a student of P.S. 94, nor of any
formal after-school program conducted by the school. The school
playground was across the street from where Brian lived.
For two years prior to Brian’s injuries, the Defendant had received
constant warnings that people were exploding firecrackers, setting
papers on fire, and throwing bottles and garbage in the schoolyard.
These destructive episodes became more frequent during April and
May, the two months preceding Brian’s injury. To combat this behavior of fireworks, fire, and garbage, members of the Block Association
met with the principal to request that gates be installed to close the
school yard or that supervision be provided. The principal honored
neither request.
The Plaintiff sued the Defendant for money damages resulting
You Be the Judge!
99
from his injuries and argued that the Defendant was negligent in allowing the children on school grounds where it knew or should have
known that the kids were lighting fireworks.
CASE: 13
The Defendant argued that because the accident took place in
a school yard, rather than a public park, there was no duty to the
Plaintiff except to prevent an intentional wrongful act. It also argued
that its duty was limited to maintaining the yard in physically good
condition.
Sources
The case briefing above contains excerpts and direct extractions from the sources noted
below that have been combined with the author’s own expert legal input. The case has
been condensed and formatted from its original content for purposes of this workbook.
Nicholson v. Board of Educ. of the City of New York, 36 N.Y.2d 798, 369 N.Y.S.2d 703 (1975).
New York Court of Appeals
April 7, 1975. Opinion written per curiam by the Honorable Justices Charles D. Breitel,
Matthew J. Jasen, Domenick Gabrielli, Jones, Solomon Wachtler and Lawrence Cooke.
100
You Be the Judge!
NAME
Date
Review the Case
After reading Nicholson v. Bd. of Educ. of the City of New York, answer the following:
CASE: 13
3. Is the Plaintiff seeking money for his injuries in this case?
4. What were Brian’s injuries?
5. Why did Brian go to the playground the day of the incident?
6. Was Brian a student at the school?
7. What age was Brian when he was injured? How old were the other children in the playground?
8. What time did the incident occur?
9. Where was Brian’s house in relation to the playground?
You Be the Judge!
101
NAME
Date
10. Were there any prior incidents of fireworks being lit off at the playground? Explain.
11. Describe the neighborhood surrounding the school.
CASE: 13
12. Did the principal have knowledge of the childrens’ fireworks activity? Explain.
13. Were there gates around the school yard at the time of the incident?
14. Did the Block Association ever meet with the principal regarding the playground? If yes, what did the Block
Association request?
15. BONUS: What could the Board of Education have done to prevent this accident?
102
You Be the Judge!
NAME
Date
Make the Argument
1. Did the Board of Education owe a duty of care to Brian Nicholson? Explain.
3. Was it foreseeable to the Board of Education that if they failed to take adequate precautions to protect minor
children, like Brian, in the playground, someone would get hurt? Explain.
CASE: 13
2. Was the duty of care breached by the Board of Education for failing to take adequate precautions to protect
Brian Nicholson? Explain.
4. Was the Board of Education’s failure to take adequate precautions to prevent fireworks at the school yard the
cause of the injury to Brian Nicholson? Explain.
5. What were Brian’s injuries?
You Be the Judge!
103
NAME
Date
You Be the Judge
or the Defendant:
Brian Nicholson
Board of Education of
the City of New York
CASE: 13
104
You Be the Judge!
Case 14:
Parking Lot
Attack
Nivens v. 7-11 Hoagy’s
Corner
Duty of Care of Business Owners
Against Criminal Attacks on
Their Customers
To understand what a business owner’s duty of
care is to his/her customers (otherwise known as
“business invitees”) to protect the customers from
criminal attacks.
ToPicS coVered
RR Negligence
RR Business
RR Duty
CASE: 14
oBJecTiVe
Invitee
of Care for Criminal Acts of Third Persons
RR Special
Relationship Exception to the Duty of Care
for Criminal Acts of Third Persons
RR Forseeable
Act
You Be the Judge!
105
Nivens v. 7-11 Hoagy’s Corner
Duty of Care of Business Owners Against Criminal Attacks
on Their Customers
Background
• The Plaintiff, Ken Nivens, was attacked by a group of youths in the parking lot of a 7-11 after he
refused to buy them beer.
• Nivens alleged that 7-11 was responsible for his injuries. He argued that the employees knew or
should have known that the teenagers frequently gathered in the parking lot and solicited the
customers to buy them beer and that this combination of teenagers and drinking could cause
someone to get hurt.
• 7-11 responded that Nivens’ injuries were the result of a random criminal attack which was
impossible to foresee.
Before you Begin
RR What
is negligence?
Negligence is the breach of a duty of care by
a Defendant which is the cause of injuries to
another person whom the Defendant has an
obligation to protect from harm.
CASE: 14
RR What
106
is a business invitee?
A business invitee is a person who is invited
to enter or remain on land for the purpose of
conducting business with the occupier of the
premises—for example, a customer in a retail
store.
RR What
is the general duty of care to
protect another from criminal acts?
In general, a person does not owe a duty of
care to protect another from criminal acts of
third parties.
You Be the Judge!
RR What
is a “Special Relationship”
exception to duty of care to protect
another from criminal acts?
A person has a duty to protect another from
the criminal acts of third persons when a
special relationship is present. A special
relationship exists between a business and
its invitees. The business has a duty to take
reasonable steps to prevent its invitees from
foreseeable criminal acts of third parties.
RR What
is a foreseeable act?
Foreseeable acts are acts about which the
business owner knows about or has reason to
know.
Whether a business owes a duty to business invitees to protect them
against criminal acts by third persons on the business premises.
THe facTS
On December 26, at about 10 pm, the Plaintiff, Ken Nivens,
parked his car in the parking lot in front of a 7-11 store called Hoagy’s
Corner. He had been a customer of 7-11 for several years. As he approached the store entrance, Nivens noticed a group of teenagers. One
of the teens, Robert Figueroa, asked Nivens to buy beer. When Nivens
refused, some of the youths called him names and Figueroa grabbed
him from behind. Nivens was hit and kicked in the head, neck, shoulders, and ribs. Nivens sued 7-11 for damages for his resulting injuries.
The investigating officer, Deputy Sheriff Barnhill, acknowledged
on the stand that while loitering by teens (lingering or hanging
around a public place or business) usually included drinking alcohol
and taking illegal drugs resulting in fights or assaults, he did not
recall any instance of violence at the store other than the one in which
Nivens was involved.
e world‛s
7-11 is th enience
onv
e
largest c
with mor
in
a
h
c
store
s in 16
00 store
,5
9
3
n
a
h
t
s.
countrie
CASE: 14
Nivens testified that for the last six years, between 10 and 100
young people would gather in the parking lot of the 7-11 store.
Figueroa confirmed this and added that he and his friends would
often solicit 7-11 customers to buy beer for them. A 7-11 employee
testified that the teenagers would fight among themselves in the 7-11
parking lot, but they rarely bothered customers.
The store presented evidence that it took adequate precautions to
prevent assaults on customers. 7-11 required every store to post a sign
stating “no soliciting, no loitering, and no loud music.”
In addition, 7-11 had an explicit policy requiring clerks to ask
persons drinking on the premises to dispose of any alcohol or leave.
Clerks were to watch for loiterers and tell them to leave. If they did not
leave, clerks were to call the police. These policies were also written in
two separate employee manuals.
You Be the Judge!
107
7-11 called a longtime customer, John Shadduck, as a witness. He
had no recollection of any acts of violence at the store. In fact, Shadduck stated customers had to be well-behaved or they would be asked
to leave.
7-11 employee, Kathleen Anderson, testified that the majority of
teens and young adults who came to the store did not cause trouble
and were well-behaved. For the entire year preceding the incident,
she never observed any fights or altercations between customers and
the teens in the parking lot and no customer complaints had been
received.
Plaintiff Nivens sued the Defendant for money damages for his injuries claiming that the Defendant was negligent in failing to provide
adequate security at the 7-11 store.
CASE: 14
Defendant, 7-11, argued that because there was no evidence of
prior violence toward customers, the criminal act was unforeseeable—
it did not know and had no reason to know that a criminal act would
occur.
Sources
Nivensv.7-11Hoagy’sCorner,133Wash.2d192,943P.2d286,(Wash.1997).
SupremeCourtofWashington
October1,1997.AmendedopinionwrittenbytheHonorableJusticePhillipTalmadge.
108
You Be the Judge!
Small busines
ses use
employee han
dbooks to
inform employ
ees of the
company‛s po
licies and
expectations
.
NAME
Date
Review the Case
After reading Nivens v. 7-11 Hoagy’s Corner, answer the following:
3. Is the Plaintiff seeking money for his injuries?
4. Describe the injuries to Nivens.
6. Did 7-11 have any signs posted at the store that are important to deciding this case? If yes, what did the sign(s)
state?
CASE: 14
5. Although Nivens was attacked by a “group” of youths, only one testified at trial. What was his name and
summarize his testimony? 7. Who is John Shadduck? What did he testify to with respect to any history of violence?
You Be the Judge!
109
NAME
Date
8. Who is Kathleen Anderson, and what did she testify?
9. What was 7-11’s policy regarding drinking alcohol on the store’s premises?
CASE: 14
10. What were 7-11 employees required to do if they discovered drinking of alcohol on the premises?
110
11. BONUS: What could 7-11 have done to prevent this attack?
You Be the Judge!
NAME
Date
Make the Argument
1. Did the Defendant, 7-11, owe a duty of care to the Plaintiff, Ken Nivens? What specifically was the duty that was
owed?
2. If there was a duty of care, was it breached?
4. Was the failure to adequately protect Nivens from the criminal acts of the teens the cause of the injury to the
Plaintiff? Explain.
CASE: 14
3. Was the teen’s attack on Nivens a forseeable consequence? Explain.
5. How was the Plaintiff injured?
You Be the Judge!
111
NAME
Date
You Be the Judge
or the Defendant:
Ken Nivens
7-11 Hoagy’s Corner
CASE: 14
112
You Be the Judge!
Case 15:
Teens
Wreak
Havoc in a
Store
Duty of Care of Business Owners
Against Personal Injury to Their
Customers
oBJecTiVe
To understand what a business owner’s duty of
care is to his/her customers (otherwise known as
“business invitees”) to protect the customers from
injury while on the store premises.
ToPicS coVered
RR Negligence
and Fall Injury
RR Business
RR A
Invitee
CASE: 15
RR Slip
Business Owner’s Duty to Inspect
You Be the Judge!
113
Duty of Care of Business Owners Against Personal Injury to
Their Customers
Background
• Ms. Dee Dee Medley, a business invitee, brought a negligence lawsuit against the well-known
retail store, Home Depot, for injuries she sustained while in the store.
• While shopping in Home Depot, Ms. Medley slipped and fell on a slippery substance, later
discovered to be oil.
• Ms. Medley alleged that at the time of the incident, a group of teenagers, who were running wild
in the store, intentionally opened a can of oil and poured it on the floor.
• Ms. Medley claimed that Home Depot had a duty to inspect the aisles for dangerous conditions,
especially since Home Depot knew about the teens’ mischief, which resulted in the oil on the
floor and injury to her.
Before you Begin
RR What
is negligence?
Negligence is the breach of a duty of care by
a defendant which is the cause of injuries to
another person whom the defendant has an
obligation to protect from harm.
RR What
is a “slip and fall” injury?
A slip and fall injury stems from a person
slipping and falling on the ground, allegedly
caused by the negligence of the owner or
possessor of the property.
CASE: 15
RR What
114
is a business invitee?
A business invitee is a person who is invited
to enter or remain on land for the purpose
of conducting business dealings with the
occupier of the premises—for example, a
customer in a retail store.
You Be the Judge!
RR What
is a business owner’s duty to
inspect?
An owner/possessor of land has a duty to
warn business invitees of dangers it actually
knows about, as well as dangers that it should
have known about through reasonable
inspection, on the premises. This requires
that all business owners conduct regular
inspections of the premises for potential
dangers.
Whether a business owner owes a duty to business invitees to protect
them against negligent acts by third persons on the business premises.
THe facTS
Ms. Dee Dee Medley filed suit against Home Depot, Inc., for damages she claimed occurred from a slip and fall injury at Home Depot.
Ms. Medley was shopping at Home Depot looking for an extension cord. She pushed her shopping cart halfway down an aisle and
left it to go ask Andrew Attaway, the department manager, for help in
locating the product.
As Ms. Medley headed back to her cart, still looking for the extension cord, she slipped and fell on oil spilled on the floor. Ms. Medley
never saw the oil or any liquid on the floor, but a Home Depot employee told her at the scene that she had slipped on oil.
While an oil container was found on the floor near Ms. Medley’s
fall, no oil was sold in the area in which Ms. Medley fell. The bottle
had been deliberately punctured open, as if with a screwdriver, and it
appeared that the oil had been deliberately poured onto the floor. The
bottle containing the rest of the oil had been thrown between some
boxes on the side of the aisle.
ven
e over se
There ar
all”
lip and f
million “s
h year.
filed eac
s
it
u
s
w
la
After her fall, Ms. Medley went to the hospital, where a Home Depot loss prevention supervisor, Steven Hester, visited her. Mr. Hester
stated that he believed a group of teenagers had poured the oil onto
the floor.
CASE: 15
With respect to non-shoppers, Home Depot’s storewide policy
required supervisors to monitor the store for any persons who are
non-shoppers and ask them to leave the store. Hester testified at trial
that he was aware of three teenagers who were running through the
store—playing hide and seek. He stated that these young people were
not shoppers, but horsing around, playing tag, and killing time. Hester was monitoring the teens to make sure the situation did not get out
of hand, and at one point, he told them to behave or find their parents
and leave.
You Be the Judge!
115
With respect to keeping the aisles safe, Home Depot’s storewide
policy requires that department supervisors patrol the aisles to make
sure they are clear. Andrew Attaway, the department manager, testified that on the incident date, there were five aisles in the electrical
department of Home Depot. Four employees were working in the five
aisles. Attaway stated that he inspected the area in which Ms. Medley
fell within five minutes before her fall and had not seen any oil. When
notified of her fall, Attaway alleged he was about 20 yards away from
Ms. Medley’s location.
Attaway also testified as to the teens’ presence in the store. He
stated that the teens regularly came into the store on Friday afternoons and “messed things up.” He indicated that the kids had spilled
things previously, and that both Hester and Home Depot knew that
the teens might spill substances that might be hazardous to shoppers.
CASE: 15
Ms. Medley argued that Home Depot did not follow its own policies in failing to more closely monitor the teens, and Home Depot
knew that the non-shoppers had previously spilled items on the floor.
Sources
116
You Be the Judge!
Medleyv.HomeDepot,Inc.,252Ga.App.398,555S.E.2d736(2001).
CourtofAppealsofGeorgia
September18,2001.OpinionwrittenbytheHonorablePresidingJusticeMarionT.Pope,Jr.
With over 2,2
00
The Home Dep stores,
ot, Inc. is
the world‛s la
rgest home
improvement
specialty
retailer in th
e U.S.
NAME
Date
Review the Case
After reading Medley v. Home Depot, Inc., answer the following:
3. Is the Plaintiff seeking money for her damages?
4. As a business invitee of Home Depot, explain the duty of care that the store owed to Ms. Medley.
5. What was Home Depot’s policy for “non-shoppers”?
CASE: 15
6. What was Andrew Attaway’s position at Home Depot? What was his duty regarding the aisles in the electrical
department?
7. What was Steven Hester’s position at Home Depot?
You Be the Judge!
117
NAME
Date
8. Should Hester have done anything according to Home Depot policy regarding the teenagers?
9. State the facts that illustrate Home Depot knew the teens might cause trouble in the store.
10. State the number of employees and aisles in the electrical department at the time Ms. Medley fell.
11. BONUS: In your opinion, what could Home Depot have done to prevent this incident?
CASE: 15
12. BONUS: In your opinion, did the Plaintiff do anything to contribute to her own injuries?
118
You Be the Judge!
NAME
Date
Make the Argument
1. Did Home Depot owe a duty of care to Ms. Medley? Explain.
2. Did Home Depot breach its duty of care to Ms. Medley by not removing the teenagers from the building in a
timely manner? Explain.
3. Was it reasonably foreseeable to Home Depot that by failing to remove the teenagers in a timely manner,
Home Depot would create an unreasonable risk of harm to Ms. Medley? Explain.
CASE: 15
4. Did Home Depot know, or should they have known, that shoppers could be harmed by the teenagers’
presence in the store?
5. Was the Plaintiff injured?
You Be the Judge!
119
NAME
Date
You Be the Judge
or the Defendant:
Dee Dee Medley
Home Depot, Inc.
CASE: 15
120
You Be the Judge!
CASE: 16
Consumer Law:
Product Liability
Case 16:
What Goes
Up, Must
Come Down!
Sollami v. Eaton
Manufacturer’s Duty to Warn in
Product Liability Action
oBJecTiVe
To understand the standards of a manufacturer’s
liability when it produces a product that injures a
consumer using the product.
ToPicS coVered
RR Product
Liability
RR Unreasonably
RR Duty
Dangerous Product
to Warn
RR Defense
to Product Liability, the “Open and Obvious”
Doctrine
You Be the Judge!
121
CASE: 16
Sollami v. Eaton
Manufacturer’s Duty to Warn in Product Liability Action
Background
• The Plaintiff, Kathleen M. Sollami, a 15-year-old girl, went to her friend’s house to play on the
friend’s trampoline while the friend’s parents were not home.
• Sollami suffered a bad knee injury while playing a game called “rocket jumps” in which one
jumper is propelled higher than the other jumpers.
• Among the claims in their lawsuit, Sollami’s parents brought a product liability claim against the
manufacturer arguing that the manufacturer failed to warn the consumers of the danger in using
the trampoline and that the trampoline was an unreasonably dangerous product to the average
consumer.
• The manufacturer defended that any danger posed by the product to the teenagers was open
and obvious and, as such, there was no duty to warn of the product’s danger.
Before you Begin
RR What
is Product Liability?
A product liability lawsuit is a type of
civil action brought by a Plaintiff against
manufacturers, distributors, suppliers,
retailers, (and/or others who make products
available to the public) in an effort to hold
them responsible for injuries caused by such
products.
RR What
is an unreasonably dangerous
product?
A product may be found “unreasonably
dangerous” due to a physical flaw, a design
defect, or where a manufacturer either
fails to adequately warn of the product’s
dangerousness or fails to instruct on the
proper use of the product. If the product is
an unreasonably dangerous one, and the
condition existed at the time the product
left the manufacturer’s control, then the
manufacturer may be liable for personal
injuries to the users.
122
You Be the Judge!
RR What
is the duty to warn?
A manufacturer has a duty to warn the
average consumer of any dangers associated
with the use of the product.
RR What
is the “Open and Obvious”
Defense?
A manufacturer may defend a case by using
the “open and obvious” defense, arguing
that there is no duty to warn consumers of
dangers associated with the product which
are apparent or in other words, “open and
obvious.”
Whether the trampoline was unreasonably dangerous at the time that it
left the manufacturing plant, and whether the Defendant manufacturer
had a duty to warn the Plaintiff of the risks involved in using the
trampoline.
CASE: 16
THe facTS
In May 1997, the Plaintiff, Kathleen Sollami, then 15 years old,
injured herself while jumping on a large, recreational trampoline located in her neighbor, Lawrence Eaton’s yard. Defendant, Icon Health
and Fitness, Inc., doing business as Jumpking, manufactured the
trampoline. Because Kathleen Sollami was a minor, her father, Phillip Sollami, sued Jumpking, among others, on Kathleen’s behalf for
money damages resulting from her injuries.
Kathleen, a friend of Lawrence Eaton’s daughter, went to the
Eatons’ house on the day in question to see her friend. The girls called
two boys and another girl to come over and jump on the trampoline.
After a while, all five teenagers were jumping at the same time
on the Eatons’ trampoline, which was located in the side yard. The
trampoline was described as a “Backyard Round 14’ Diameter Trampoline.” Neither Lawrence Eaton nor his wife was home at the time.
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The group decided to do “rocket jumps,” a game where one jumper is propelled higher than the other jumpers. Completing a rocket
jump requires three or four persons to jump simultaneously on the
perimeter of the trampoline mat while one person jumps to the center
and is thereby propelled higher than the other jumpers.
After watching one of her friends successfully complete a “rocket
jump,” Kathleen took a turn at being the “rocket.” As Kathleen landed
on the trampoline mat, she felt her knee pop.
Lawrence Eaton purchased the trampoline in 1992 and assembled
it according to written instructions provided by Jumpking. Pursuant
to those instructions, Eaton affixed decals to the trampoline mat and
frame warning that the trampoline should be used only by properly
trained participants with direct supervision of a qualified gymnastics instructor. The decal warnings did not include any limit as to the
You Be the Judge!
123
CASE: 16
number of persons allowed to jump at the same time.
Eaton also attached an instruction placard to the frame with a
wire tie. During the spring prior to Kathleen’s injury, Eaton found the
placard on the ground and did not reattach it.
The Plaintiff alleged that the trampoline contained one or more
defects which made it not reasonably safe for its intended use. Further,
the Plaintiff claimed that Jumpking was negligent because the manufacturer:
The most com
mon
trampoline in
juries are
caused by co
lliding with
another pers
on, doing
stunts, falling
off of
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springs or fr
ame.
1) Permitted the trampoline, which was a training device, to be
used as a backyard toy.
2) Failed to warn persons, including Kathleen, that only one
person was permitted on the trampoline at a time.
3) Failed to verify that when the trampoline was sold, its instructions as to its use were attached to the trampoline and could
not be removed.
4) Failed to adequately warn persons, including Kathleen, that
the trampoline could be used only with the direct supervision
of a qualified gymnastics instructor.
Jumpking argued that the danger of jumping on a trampoline was
“open and obvious” to a 15-year-old girl, and she should have appreciated the danger of rocket jumping on a recreational trampoline.
Thus, Jumpking had no duty to warn her regardless of any additional
knowledge on the part of Jumpking.
Sources
Sollamiv.Eaton,201Ill.2d1,772N.E.2d215(Ill2002).
SupremeCourtofIllinois
June6,2002.OpinionwrittenbytheHonorableJusticeRitaB.Garman.
124
You Be the Judge!
Many homeowners insurance
policies contain what is called a
“Trampoline Exclusion” clause.
Pursuant to this clause, the
insurance company will cover
liability for injuries that
occurred to others while on
your property, but they will
not cover trampoline related
injuries.
CASE: 16
NAME
Date
Review the Case
After reading Sollami v. Eaton , answer the following:
3. Is the Plaintiff seeking money for her injuries?
4. What is the name of the manufacturing company that produced the trampoline?
5. What was the model of trampoline?
6. When was the trampoline purchased by the homeowner?
7. Who assembled the trampoline?
8. What year did the injury occur?
9. How old was Sollami when she was injured?
You Be the Judge!
125
CASE: 16
NAME
Date
10. What was the injury that Sollami suffered?
11. What is a “rocket jump,” and how is the game played?
12. Did Jumpking provide any warnings on the trampoline regarding the use of the product? If so, explain the
warnings and their location.
13. Were instructions available to Eaton on the use of the trampoline? Were the instructions available to Kathleen
on the date of the incident?
14. Were Eaton’s parents home when the accident occurred?
15. BONUS: In your opinion, what could Jumpking have done to avoid the accident?
126
You Be the Judge!
Date
Make the Argument
CASE: 16
NAME
1. Did Jumpking produce the product that the Plaintiff was injured on?
2. Did Kathleen’s injury occur as a result of using the trampoline? Explain.
3. Did the Defendant, Jumpking, warn the Plaintiff of the dangerousness of using the product?
4. Was the danger of using the trampoline to perform “rocket jumps” open and obvious to the average consumer
so that Sollami, a 15-year-old girl, should have foreseen that she could get hurt? Explain.
You Be the Judge!
127
CASE: 16
128
NAME
Date
You Be the Judge
or the Defendant:
Kathleen M. Sollami
Lawrence Eaton and Jumpking
You Be the Judge!
CASE: 17
Trademark Law
Case 17:
Battle of
the Bags
Malletier v. Dooney &
Bourke, Inc.
oBJecTiVe
To understand the basics of trademark
infringement and the concept of injunctions.
ToPicS coVered
RR Trademark
RR Trademark
Infringement
RR Injunction
You Be the Judge!
129
Malletier v. Dooney & Bourke, Inc.
CASE: 17
Background
• Louis Vuitton Malletier (Louis Vuitton) is an old, well-established French design company. It is
the maker of a famous, very expensive handbag with its trademark “toile” monogram covering
the bag. The handbag in question had a multicolored “toile” mark and was part of its signature
design series.
• Dooney & Bourke, a relatively new company, created a new teen-based handbag called the “It
Bag” which also had a multicolored trademark “DB” monogram. The Dooney & Bourke bags were
sold at a much lower price.
• Louis Vuitton asked the court for an injunction to restrain Dooney & Bourke from producing its
handbag and claimed trademark infringement. Louis Vuitton argued that Dooney & Bourke was
trying to capitalize on its well-known brand and its multimillion-dollar advertising campaign to
confuse potential consumers with similar less expensive products.
Before you Begin
RR What
is a trademark?
A trademark is a unique word, phrase, or
symbol that distinguishes a company.
The essential function of a trademark is to
exclusively identify the commercial source
or origin of products—in other words, the
manufacturer—like the Nike “swoosh” symbol.
RR What
is trademark infringement?
Trademark infringement occurs when a
party uses another’s trademark without the
authorization of the owner. If the respective
marks or products are not identical, the courts
will assess the similarity based upon the
“likelihood of confusion” by consumers as to
the origination (owner) of the products or
services.
130
You Be the Judge!
RR What
is an injunction?
An injunction is a court order that requires a
party to do or refrain from doing a certain act
or acts.
CASE: 17
Whether Dooney & Bourke’s use of the “It Bag” is likely to cause consumer
confusion with the Louis Vuitton multi-colored toile handbag so that
customers will purchase the much lower priced Dooney & Bourke
handbag instead of the very expensive Louis Vuitton handbag.
THe facTS
Louis Vuitton, a French design firm, began selling trunks and
accessories in the United States in 1893. In 1896, the company created
the “toile monogram,” featuring entwined LV initials with three motifs: a curved diamond with a four-point star inset, its negative, and a
circle with a four-leafed flower inset. Vuitton registered these trademarks with the United States Patent and Trademark Office. Having
been used exclusively and continuously since 1896, these trademarks
are now solely owned by Louis Vuitton.
In October 2002, Louis Vuitton launched a series of handbags
featuring “new signature toile designs” created by fashion designer
Marc Jacobs and Japanese artist Takashi Murakami. The new bags
(Murakami handbags) updated the fashion house’s famous toile
marks. The fresh design—coined the Louis Vuitton monogram multicolor pattern (multicolor mark)—was a modified version of the “toile
marks” printed in 33 bright colors (Murakami colors) on a white or
black background.
tiff in a
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g
f provin
burden o ant‛s use of
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the Defe
ed the
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In 2003-2004, Louis Vuitton spent over $4 million in advertising
and promoting the multicolor mark and associated handbags. In addition, the new design garnered significant media attention. CBS’s The
Early Show and publications ranging from USA Today and The New
York Times to People, Women’s Wear Daily, Marie Claire, and Vogue
all featured the Murakami handbags. Many celebrities, including Jennifer Lopez, Reese Witherspoon, and Madonna, were photographed
with the bags in tow.
As of late 2006, Louis Vitton had sold nearly 186,600 products
and accessories with the multicolor mark design in the United States
priced at $150 to more than $4,000 each, amounting to over $186 million in sales.
You Be the Judge!
131
CASE: 17
Defendant Dooney & Bourke, an American handbag designer and
manufacturer, was founded in 1975. Since 2001, as part of Dooney &
Bourke’s “Signature” and “Mini Signature” lines, the company sold
bags featuring the DB monogram of interlocking initials, a registered
trademark, in a repeated pattern. The “It Bag” products sold from $50
to $400. As of late 2006, more than 1.76 million products had sold
with sales figures over $100 million.
In the Fall of 2002, Peter Dooney, president and chief designer of
Dooney & Bourke, began collaborating with Teen Vogue magazine on
a joint promotional project. The magazine selected a group of teenage girls to travel with Dooney to Italy in March 2003 to help develop
Dooney & Bourke handbags appealing to teenagers. The group,
dubbed the “It Team,” was photographed looking into Vuitton’s store
window display featuring handbags with the multicolor marks on a
white background. Another photograph taken during the trip showed
the group in a factory viewing a swatch of fabric with LouisVuitton’s
multicolor mark on a black background.
A year later, in late July 2003, Dooney & Bourke introduced the “It
Bag” collection featuring the DB monogram in an array of bright colors set against a white background. The intertwined initials, with the
“D” and the “B” displayed in contrasting colors, were printed forward
and backward in repeating diagonal rows. The handbags also sported
a multicolor zipper, with fabric similar to that used by Vuitton, and a
small pink enamel heart bearing the legend “Dooney & Bourke” on
a tag hanging from the handle. In October 2003, Dooney & Bourke
began selling the handbags with a black background. The “It Bag”
collection now included a variety of colored backgrounds (periwinkle,
bubble gum, and grape) in addition to black and white.
Louis Vuitton asked the court to stop Dooney & Bourke’s sale of its
new bags arguing that the bags were so similar that they were likely to
cause “consumer confusion” with potential purchasers of its handbags.
Sources
Malletierv.Dooney&Bourke,Inc.,525F.Supp.2d558(S.D.N.Y.2007).
UnitedStatesDistrictCourt,SouthernDistrictofNewYork
December13,2007.OpinionwrittenbytheHonorableJusticeShiraA.Scheindlin.
132
You Be the Judge!
The United S
tates
Patent and T
rademark
Office (USPT
O) is
the Federal ag
ency
for granting
U.S.
patents and
registering
trademarks.
Intellectual property
refers to the creations
of the mind: inventions,
symbols, names, images,
and designs used in
commerce. There
are three types of
intellectual property:
trademarks, patents, and
copyrights.
NAME
Date
Review the Case
After reading Malletier v. Dooney & Bourke, Inc., answer the following:
3. Is the Plaintiff seeking money damages in this case? If not, what is Louis Vuitton asking the court to do?
CASE: 17
4. What year did Louis Vuitton begin doing business in the United States?
5. What is the “toile” mark?
6. What year did Louis Vuitton create an updated version of the “toile” mark? How was it modified and by whom?
7. How much did Louis Vuitton spend to advertise the new multicolor design?
8. How much did Louis Vuitton earn from the sale of the new multicolor handbags and accessories?
9. In 2002, the president of Dooney & Bourke collaborated with Teen Vogue, a fashion magazine for teenagers.
What was the purpose of the collaboration?
You Be the Judge!
133
NAME
Date
CASE: 17
10. Teen Vogue selected a group of teenage girls to travel with Dooney to Italy.
a. What was the name of the team?
b. What was the month and year they traveled?
c. Where was the “It Team” photographed?
11. What was the name of the new Dooney & Bourke handbag?
12. When was the “It Bag” collection introduced?
13. Describe the features of the Dooney & Bourke “It Bag.”
14. What was the price range of the Dooney & Bourke “It Bag” and its products?
15. How much did Dooney & Bourke earn from the sale of its “It Bag” and related products?
134
You Be the Judge!
NAME
Date
Make the Argument
CASE: 17
1. Is the Louis Vuitton multicolored toile bag unique and inherently distinctive to its company? Explain.
2. Is there a likelihood that the general public would be confused between the Louis Vuitton multicolored bags
and the Dooney & Bourke “It-Bag” so as to confuse which companies own each bag? Explain.
3. Are the two trademarks sufficiently distinct from each other so that consumers understand the difference and
can distinguish between the two trademarks and therefore the two companies? Explain.
You Be the Judge!
135
NAME
Date
You Be the Judge
CASE: 17
or the Defendant:
136
Louis Vuitton Malletier
Dooney & Bourke, Inc.
You Be the Judge!
Abercrombie & Fitch
Stores, Inc. v. American
Eagle Outfitters
Trademark Infringement and
Trade Dress Protections
oBJecTiVe
infringement in the area of “trade dress” between
two high profile competitors in business.
CASE: 18
Trademark Law
Case 18:
Catalog
Fight
ToPicS coVered
RR Intentional
Tort
RR Trademark
RR Trademark
RR Trade
Infringement
Dress
You Be the Judge!
137
Abercrombie & Fitch Stores, Inc.
v. American Eagle Outfitters
Trademark Infringement and Trade Dress Protections
Background
• The following case focuses on two very well-known clothiers: Abercrombie & Fitch and American
Eagle. Abercrombie & Fitch is an old established company stemming back over 100 years, and
American Eagle is a relatively new company that began doing business in 1994.
• Abercrombie & Fitch claimed that American Eagle intentionally infringed on its trademark by
copying, among other things, its designs of certain articles of clothing, in-store advertising
displays, and its catalog. We will be focusing on the catalog portion of this case—which will be
known as trade dress.
CASE: 18
• Abercrombie & Fitch believed that American Eagle was trying to take advantage of its longstanding name and advertising dollars to confuse consumers into purchasing American Eagle
products over Abercrombie & Fitch products.
Before you Begin
RR What
is an intentional tort?
An intentional tort describes a civil action
resulting from an intentional and wrongful act
on the part of the Defendant against another,
such as intentionally stealing another person’s
or company’s trademark.
RR What
is a trademark?
or origin of products—in other words, the
manufacturer—like the Nike “swoosh” symbol.
RR What
marks or products are not identical, the courts
will assess the similarity based upon the
“likelihood of confusion” by consumers as to
the origination (owner) of the products or
services.
138
You Be the Judge!
RR What
is trade dress?
Trade dress refers to characteristics of
the visual appearance of a product or its
packaging that may be registered and
protected from being used by competitors
in the manner of a trademark. These
characteristics involve the total image of a
product and may include features such as size,
shape, color combinations, textures, graphics,
or even a particular sales technique.
Whether the two catalogs by major clothing companies are sufficiently
distinct from each other so that a reasonably prudent consumer can
differentiate between the two companies depicted in each catalog?
THe facTS
Abercrombie & Fitch was founded in 1892 and is a retailer of casual clothing and accessories appealing to college-age consumers. In
1988, The Limited, Inc. acquired Abercrombie & Fitch and rejuvenated the brand, selling billions of dollars in merchandise and spending
over $26 million on marketing, including advertisements in national
and fashion magazines. Abercrombie & Fitch products are sold nationwide through 157 retail stores and a mail order catalog under the
registered trademarks and service marks ABERCROMBIE & FITCH,
A & F CO, A & F, and variations thereof.
American Eagle Outfitters sells essentially the same variety of
clothing and products in its 300 stores nationwide under the trademarks and service marks AMERICAN EAGLE OUTFITTERS and
AE, generating approximately $300 million in annual sales. American Eagle has been a retailer since at least 1994, although many of its
products describe the company’s vintage as 1977.
for
Revenue
mbie &
Abercro
s
2009 wa
Fitch in
0
0
00,0 .
$3,540,0
CASE: 18
This case pits an old hand against the new kid on the block: Abercrombie & Fitch sued American Eagle claiming that American Eagle
infringed on what Abercrombie & Fitch describes as its unregistered
“trade dress.”
Abercrombie & Fitch accused American Eagle of selling similar
products and marketing them in a similar way, which confused the
consumer as to which products belonged to each company.
Specifically, Abercrombie & Fitch asserted that American Eagle
copied its premiere issue of The Quarterly, an Abercrombie & Fitch
catalog that advertises Abercrombie & Fitch products in a way to
depict a certain lifestyle. First, Abercrombie & Fitch alleged that
American Eagle’s catalog featured the same products, colors, designs,
fabrics, and names (i.e., “vintage” sweatshirts and “field jerseys”) as
The Quarterly.
Second, Abercrombie & Fitch claimed that the paper, page layouts,
lifestyle editorial content, manner of displaying merchandise, and
typeface in American Eagle’s catalog were identical or confusingly
You Be the Judge!
139
similar to The Quarterly.
To support its contention, Abercrombie & Fitch introduced
evidence of an American Eagle directive to its marketing executives
that stated: “Attention store managers - we need you to tell us what
Abercrombie & Fitch is marketing!!!” American Eagle managers were
instructed to inspect the windows, lead table, and signs in Abercrombie & Fitch stores every week and report on Abercrombie & Fitch’s
presentation.
Revenue for
American
Eagle Outfitt
ers in 2009
was $2,990,0
00,000.
When comparing The Quarterly with American Eagle’s catalogs
of the same year, the following facts were revealed:
CASE: 18
1) FORMAT: Like Abercrombie & Fitch, American Eagle used
the clothesline (or cutout) format to display its goods—the
garments appeared on the page as if hanging from a clothesline, not on a model.
2) DISPLAY: American Eagle used colorbars and design bars underneath almost all its garments, while Abercrombie & Fitch
did so only occasionally.
3) PHOTOGRAPHS: Throughout The Quarterly, Abercrombie
& Fitch made extensive use of grainy photographs depicting
apparently in-shape college-aged models in often romantic
poses. American Eagle’s photographs were clear and presented
a “wholesome image,” with models of various ages in nonsuggestive, often family-oriented situations.
4) ARTICLE CONTENT: American Eagle concentrated on family subjects with slogans such as “After all the gifts are opened
and the decorations packed away, there is really one thing that
lasts through the holidays—the spirit of giving.” Abercrombie
& Fitch articles included titles like “I’ll have a brew Christmas,”
“7 ways to survive a holiday gathering with your relatives,”
“Drinking 101” which included recipes and a device for playing
drinking games.
5) TRADEMARK: Abercrombie & Fitch displayed its trademarks throughout The Quarterly on nearly every page. The
American Eagle catalog also prominently displayed their
marks. While both companies liberally using their trademarks throughout their catalogs was a similarity, the court
found that it was also a difference, because each used its own
trademark and trademarks as an indication of a product’s
origin.
140
You Be the Judge!
Sources
thisworkbook.
Abercrombie&FitchStores,Inc.
v.AmericanEagleOutfitters,Inc.,
280F.3d619(6thCir.2002).
UnitedStatesCourtofAppeals,
SixthCircuit
February15,2002.Opinion
writtenbytheHonorableJustice
DannyJulianBoggs.
NAME
Date
Review the Case
After reading Abercrombie & Fitch Stores, Inc. v. American Eagle Outfitters, answer the following:
CASE: 18
3. What was one of Abercrombie & Fitch’s main claims against American Eagle?
4. When did Abercrombie & Fitch start its business?
5. When did American Eagle start its business?
6. What specific actions by American Eagle does Abercrombie & Fitch argue violate its trademark rights?
7. What did American Eagle instruct its employees to do regarding the Abercrombie & Fitch brand?
You Be the Judge!
141
NAME
Date
8. W
hat is the “clothesline method” of displaying clothes in a catalog? Did American Eagle and/or Abercrombie &
Fitch use this method?
CASE: 18
9. Each company used the photographs to portray a certain image of its products. Explain the content of the
photographs for Abercrombie & Fitch and American Eagle and the message each portrayed to consumers. Are
the messages different?
10. List the “editorial comments” in the two magazines. Compare the way lifestyle is portrayed in the two
magazines.
11. Does the Abercrombie & Fitch logo appear in its catalog? Does American Eagle use its logo in its catalog? Does
the court regard the printing of the logos by American Eagle as a similarity between the two catalogs or a
difference?
142
You Be the Judge!
NAME
Date
Make the Argument
CASE: 18
1. Can the Abercrombie & Fitch catalog and its design within the catalog be considered “trade dress” as defined
herein? Explain.
2. Is the catalog sufficiently distinct from the Abercrombie & Fitch catalog in its design?
3. Is the American Eagle catalog so similar to Abercrombie & Fitch’s, The Quarterly, that the catalogs will cause
confusion among members of the general public as to which products belong to which company? In other
words, are the catalogs confusingly similar? Explain.
You Be the Judge!
143
NAME
Date
You Be the Judge
or the Defendant:
Abercrombie & Fitch Stores, Inc.
American Eagle Outfitters
CASE: 18
144
You Be the Judge!
Trademark Law
Case 19:
The
Alligator
Bites Back!
Lacoste Alligator, S.A. v.
Bluestein’s Men’s Wear, Inc.
Trademark Infringement and
Trademark Licenses
infringement and the concept of exclusive
licensee of a trademark.
ToPicS coVered
RR Intentional
Tort
RR Trademark
RR Trademark
RR Exclusive
Infringement
CASE: 19
oBJecTiVe
Licensee of a Trademark
You Be the Judge!
145
Lacoste Alligator, S.A. v. Bluestein’s Men’s Wear, Inc.
Trademark Infringement and Trademark Licenses
Background
• The Plaintiffs, Lacoste Alligator, S.A. and General Mills, Inc. are the trademark owner and its
exclusive licensee, respectively. Together, they marketed clothing bearing the registered
trademarks, Lacoste and the Izod Alligator, which were well-known due to considerable
advertising and promotion. These trademarks and logos were copied without authorization and
sold to several stores and individuals, including the Defendant, Elvin Floyd, doing business at
Anderson Jockey Lot Flea Market. Floyd then sewed the trademarks/logos on garments and sold
the garments at the public flea market.
• The Defendant purchased 10,000 Alligator logos from a non-authorized vendor and sewed them
onto clothing for resale, without the knowledge or consent of Lacoste or General Mills.
• The Plaintiffs sought a permanent injunction against Elvin Floyd and the other Defendants asking
the court to stop the Defendants from any further selling of the Lacoste and Izod Alligator label.
Before you Begin
CASE: 19
RR What
146
is an intentional tort?
An intentional tort describes a civil wrong
resulting from an intentional and wrongful act
on the part of the defendant against another,
such as intentionally stealing another person’s
or company’s trademark.
RR What
is a trademark?
or origin of products—in other words the
manufacturer—like the Nike “swoosh” symbol
or, in this case the Lacoste Izod Alligator.
You Be the Judge!
RR What
trademarks or products are not identical, the
courts will assess the similarity based upon
the “likelihood of confusion” by consumers as
to the origination (owner) of the products or
services.
RR What
is an exclusive licensee of a
trademark?
An exclusive licensee of a trademark is
a person or company who has the sole
authorization from an owner of a trademark
to reproduce and sell the trademark item.
Whether a likelihood of confusion could exist in the minds of the general
public between the actual Izod alligator logo and the counterfeit logos
sewn on non-Izod apparel.
THe facTS
The Plaintiffs’ trademarks have been advertised and promoted
throughout the United States beginning as early as 1950. The Plaintiffs have expended considerable effort and money in the advertising
and promotion of their apparel bearing these trademarks, which has
resulted in their widespread popularity and public acceptance. The
Plaintiffs’ sales in the United States since 1964 exceeded one billion
dollars, with approximately half of this amount generated in the two
years preceding this case. This case is an attempt by Lacoste to stop
several Defendants in South Carolina from manufacturing, selling,
and distributing apparel bearing counterfeits or imitations of the
Plaintiffs’ trademarks.
o is an
rfeit log
A counte
ne that
o
, usually
n
io
t
a
it
tent
im
ith the in
is made w tly passing it
ulen
logo.
of fraud
e genuine
h
t
s
a
f
f
o
are
eit logos
Counterf on products
ced
often pla tent to take
in
with the
perior
of the su d
e
g
te
advanta
a
the imit
value of
.
product
Elvin Floyd, one of the Defendants, admitted that he purchased
10,000 Izod Alligator logos with the belief that they were originals of
the Plaintiffs’ trademarks. Floyd admitted that he personally sewed
these logos on garments which he had purchased to resell, none being
purchased from the Plaintiffs and none originally bearing the Lacoste
or Izod Alligator trademarks. Floyd also admitted that he sold garments bearing the Izod Alligator logo at booths he operated at the
Anderson Jockey Lot Flea Market in Anderson, South Carolina.
CASE: 19
The Plaintiff, Lacoste Alligator, S.A., is the record owner of several trademarks for Lacoste and the famous Izod Alligator emblem.
An additional Plaintiff, General Mills, Inc., is the exclusive United
States licensee of the above trademarks, as well as the record owner of
several United States Trademark Registrations for the Izod Alligator
trademark for various types of apparel.
At trial, Mr. Floyd testified as follows:
Q. Where did you buy the alligator logos?
A. I bought them at an Anderson Flea Market.
You Be the Judge!
147
Q. From whom?
A. From someone that came by with alligators for sale. He told
me they were genuine Izod Alligators.
Q. That’s the Anderson Jockey Lot Flea Market?
A. Yes. He approached me at the Flea Market and said, “I’ve got
the alligators for sale. Would you like to buy them?” And I
said, “I’m interested, are they real alligators?” He said, “Yes,
they’re genuine alligators. They came from a factory that
makes Izod Alligator merchandise; the alligators are real.”
And I said, “Well, if you’ll guarantee that.” He said, “You got
my word for it.” I said, “What do you want for them?” And
he said, “Well, I’ve got 10,000; if you’ll take them all, I’ll give
them to you for 50 cents.” So I gave him $5,000; he gave me
his real alligators.
Counterfeit
apparel and
accessories ac
counted
for over 50 pe
rcent of
the counterf
eit goods
seized by U.S
. Customs
and Border C
ontrol.
Q. How were these alligator logos packaged when you bought
them?
A. Jeepers. In cellophane.
Q. In a bag?
A. Yes.
CASE: 19
Q. How did you put the logos on the garments?
A. I sewed the logos on the garments.
Q. How many people did you have working to sew them on?
A. As far as I know, I’ve done it.
Q. You personally?
A. Yes.
Q. By hand or with a machine?
A. Machine.
The Plaintiffs claimed that the willful and deliberate attempts of
the Defendant to identify with the Plaintiffs’ trademark and goodwill and the likelihood of public confusion clearly constituted unfair
competition.
148
You Be the Judge!
Sources
thisworkbook.
LacosteAlligator,S.A.v.Bluestein’s
Men’sWear,Inc.,569F.Supp.491
(D.C.S.C.1983).
UnitedStatesDistrictCourt,D.
SouthCarolina,ColumbiaDivision
July28,1983.Opinionwrittenby
theHonorableJusticeClydeH.
Hamilton.
NAME
Date
Review the Case
After reading Lacoste Alligator, S.A. v. Bluestein’s Men’s Wear, Inc. answer the following:
2. Identify one of the Defendants in the case.
3. Are Lacoste and General Mills seeking money for their damages? What else did the Plaintiffs want the court to do?
4. When did Lacoste Alligator start selling its product in the United States?
CASE: 19
5. How much money has Lacoste and General Mills earned from the sale of items bearing the alligator logo?
6. Where did Elvin Floyd buy the alligators?
7. Who did Floyd buy the alligators from?
8. How many alligator logos did he buy, and how much did it cost him?
You Be the Judge!
149
NAME
Date
9. What did he do with all the logos?
CASE: 19
10. Did Elvin Floyd have permission to sew the alligator logos onto clothing and resell the clothing as authentic
Lacoste products?
150
You Be the Judge!
NAME
Date
Make the Argument
1. Did Lacoste Alligator, S.A. and General Mills, Inc., as owners of the trademarks Izod and the Izod Alligator, have
the exclusive right to manufacture and sell products with those emblems? Explain.
2. Did Elvin Floyd have permission from Lacoste Alligator, S.A. and General Mills, Inc., to purchase and reproduce
products bearing the trademarks of Izod and the Izod Alligator?
CASE: 19
3. Was there a likelihood that the general public would be confused by products sold with the Lacoste Alligator
logos and products sold with the Floyd Alligator logos? Explain.
4. Did Elvin Floyd willfully and intentionally attempt to identify his products as genuine Lacoste products? Explain.
You Be the Judge!
151
NAME
Date
You Be the Judge
or the Defendant:
Lacoste Alligator, S.A.
Elvin Floyd
CASE: 19
152
You Be the Judge!
Family and Probate Law
Case 20:
To Will or
Not to Will
American Heart
Association v. County of
Greenville
Is a Will “Probate Property”?
oBJecTiVe
To understand what “probate property” is for
purposes of distribution under a decedent’s Last
Will and Testament.
ToPicS coVered
RR Last
Will & Testament
RR Probate
RR Executor
RR Probate
Document
CASE: 20
RR Public
Property/Estate
You Be the Judge!
153
American Heart Association v. County of
Greenville
Is a Will “Probate Property”?
Background
• Shoeless Joe Jackson, one of the greatest baseball players in the early 1900s, was involved in the
infamous “Black Sox” scandal when he, along with seven other players, was accused of “throwing”
the 1919 World Series as they allegedly accepted money to intentionally lose the series.
• Shoeless Joe died in 1951 from a heart attack, and in his Last Will and Testament, he left all of
his property to his wife, Katie, who upon her death, in turn, left all of her possessions to two
charities: the American Heart Association and the American Cancer Society.
• The charities are suing the County of Greenville to release Jackson’s Will arguing that the Will was
the personal property of Katie Jackson when she died, and as the beneficiaries of that Will, the
charities should take possession for resale to the highest bidder.
• The County of Greenville argues that once Shoeless Joe’s Will was filed in the probate court, it
became a public document that was not the personal property of his beneficiary.
Before you Begin
RR What
is a Last Will & Testament?
A last will and testament is a legal declaration
by which a person names one or more
persons to manage his or her estate, called an
executor, and provides for the transfer of his
or her property at death to his beneficiaries.
CASE: 20
RR What
154
is Probate?
Probate is the process of proving the validity
of a will and thereafter administering
the estate of the decedent (dead person)
according to the terms of the will. The first
step is to file the purported will with the
appropriate court located in the city/town
or county where the deceased person lived.
Accompanying the will, the attorney will file
a petition to have the court approve the will
and appoint the executor named in the will. If
the court determines the will is valid, the court
then “admits” the will to probate and follows
its instructions.
You Be the Judge!
RR What
is an Executor?
An executor is the person named by the
decedent who is in charge of gathering
the decedent’s personal and real property
(probate property), paying off any debts of
the estate, and distributing the remaining
money to beneficiaries of the will.
RR What
is Probate Property/Estate?
Probate property or probate estate includes,
with certain exceptions, a person’s personal
and real property, i.e., house or land at the
time of his or her death.
RR What
is a Public Document?
A public document includes all papers or
other documentary materials, regardless of
physical form or characteristics, which are
prepared, owned, used, or in the possession of
a public body.
Whether a person’s will is the personal property of the estate and is owned
by the beneficiaries of the estate.
THe facTS
Baseball legend Shoeless Joe Jackson’s signature is among the most
valuable in the world—so rare that the American Cancer Society and
American Heart Association sued the County of Greenville and State
of South Carolina for possession of his Last Will and Testament. At
the time of this lawsuit in 1997, the charities, beneficiaries of Jackson’s
estate, hoped to auction it for more than $100,000.
Although Jackson admitted to the team attorney to taking
$5,000 of a $20,000 bribe, the facts surrounding the confession
were considered controversial. Allegedly, to get Jackson to admit
his role in the scandal, the team lawyer poured large amounts of
whiskey down Jackson’s throat. The other seven players implicated
in the scandal confirmed that Jackson was never at any of the
meetings. One player, Williams, said that they only mentioned
Jackson’s name to give their plot more credibility. Jackson himself
recanted his confession and swore innocence until the day of his
death. The movies “Field of Dreams” and “Eight Men Out” helped
elevate him to an American Legend.
ial
substant
e
b
n
a
c
e
Ther
olved in
costs inv
te.
g an esta
probatin
y,
a
v
fees r
Although
ney
r
o
t
and at
o4
executor
t
2
ge from
ts
fees ran
e
s
s
a
of the
.
percent
e
t
a
b
to pro
subject
CASE: 20
Jackson was one of the greatest baseball players in the early 1900s
with a .356 batting average. He was a controversial subject, however,
because Jackson was expelled from baseball with seven Chicago White
Sox teammates for allegedly accepting gamblers’ bribes and throwing
the 1919 World Series. The scheme became known as the “Black Sox”
scandal. Jackson could not be elected to the Baseball Hall of Fame
because of his expulsion.
Jackson died in 1951 in Greenville. Upon his death his Last Will
and Testament was filed in the Greenville County Probate Court. His
wife, Katie, upon her death in 1959, left the Jackson probate estate to
two charities, the American Heart Association and the American
Cancer Society, because Joe had died of heart failure and she suffered
from cancer. The value of the Will became a sensation when, in 1991,
You Be the Judge!
155
an attorney for one of the charities noticed a newspaper article about
Jackson’s signature selling for $23,100 at a Sotheby’s auction—the
second-highest amount ever paid for a signature not attached to a
document. Only six Jackson signatures were known to exist, as Shoeless Joe was illiterate and usually refused to sign baseballs for his fans.
The charities argued that Shoeless Joe Jackson’s Will was his wife’s
personal property since individuals may, during their lifetime, own,
possess, use, enjoy, and dispose of their Will anyway they see fit and,
upon death, the Will becomes part of one’s estate passing directly to
the beneficiaries. The County argued that the Will was a public document and was the property of the State of South Carolina. The County
stated that the records retention policy of the State of South Carolina
provided for the permanent retention of original documents from
decedents’ estates.
Non-probate
property
can be distrib
uted
automatically
to the
deceased ind
ividual‛s
beneficiaries.
Since the lawsuit was filed, several people were interested in paying more than $100,000 for the Will!
CASE: 20
401(k) plans, pensions,
life insurance, and
property in trust are
examples of non-probate
property.
156
Sources
AmericanHeartAssociationv.CountyofGreenville,331S.C.498,489S.E.2d921(S.C.1997).
SupremeCourtofSouthCarolina
September2,1997.OpinionwrittenbytheHonorableJusticeErnestA.Finney,Jr.
Shoeless Joe’s Will, Valuable Name On It Not For Sale, Court Says
September3,1997.PublishedbytheCharlotteObserver.
You Be the Judge!
NAME
Date
Review the Case
After reading American Heart Association v. County of Greenville, answer the following:
3. Who was Shoeless Joe Jackson, and why is he famous?
4. Why did scholars believe Shoeless Joe may have been innocent?
5. Could Shoeless Joe be voted into the Baseball Hall of Fame?
CASE: 20
6. How many Shoeless Joe Jackson signatures were known to exist?
You Be the Judge!
157
NAME
Date
7. What is the reason for the low number of signatures?
8. How did the worth of the Will become a sensation, and what was the estimated worth of the signed Will? 9. Explain the Plaintiffs’ arguments that Jackson’s Will was incorrectly retained by the State of South Carolina and
should have been returned to the estate?
CASE: 20
10. Explain the County’s arguments that Jackson’s Will was correctly in the possession of the State of South
Carolina and was not part of the estate.
158
You Be the Judge!
NAME
Date
Make the Argument
1. Was Jackson’s Last Will and Testament filed in probate court after his death? Explain. 2. Did Shoeless Joe Jackson’s wife have possession of the Will at the time of her death in 1959?
CASE: 20
3. Is the Will a public document? Explain.
You Be the Judge!
159
NAME
Date
You Be the Judge
or the Defendant:
American Heart Association
County of Greenville
CASE: 20
160
You Be the Judge!

You Be the Judge book

Transcription

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