Question # 1 Answer Outline
TORTS
Professor Rickett
Spring Final Exam 2006
Todd v. Jilleve
-Issue of Defamation-(30 pts)
Todd could contend that Jilleve’s signage “landlord is a tyrant” was defamatory because it was a communication that could easily be determined to refer to Todd (landowner), it was published to third parties, and impugned Todd’s personal and business reputation (‘tyrant’). If this were a slander, it would arguably be slander per se as it “affects the plaintiff in his business, trade or profession”.
-Defenses-
-Opinion
Jilleve’s could argue that her statement was based on her personal opinion (ie. could not reasonably be interpreted as stating an actual fact about a person and the law is very liberal in allowing one person’s opinion of others.
-Conditional or Qualified Privilege
Jilleve could argue that even if the sign was defamatory, the publication of a defamatory statement may be privileged when it is “fairly made by a person in the discharge of some public or private duty, either legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned.” Jilleve may contend that she has a ‘moral’ duty to let the public know what an ‘unfair’ landlord Todd is so they can decide if they want to continue to support Todd’s actions by their purchases of the produce.
-Damages-
Usually libel does not require proof of special damages, but allows only actual damages. If Todd prevails, damages could include pecuniary (loss of sales $ from the lack of customers, loss of rental $ for the time the two farms aren’t rented) and if he able to prove these pecuniary losses he may recover additional damages for his mental distress, wounded feelings and humiliation.
-Issue of Interference with Advantageous Relations/Existing Contractual Relations-(25 pts)
Todd could contend that Jilleve had an improper purpose when she placed those signs and her intent was to turn customers away from buying the produce and perhaps drive him out of business. ie. pecuniary damages. Also, it was foreseeable that her actions would interfere with Todd’s existing contracts with the other farmers ie. farmers who not getting enough customers would not rent property from Todd anymore.
-Defenses-
Jilleve could argue that this tort is not usually applicable if the contract is terminable at the will of either party, and at best, Todd only lost a ‘prospective advantage’ with the two farmers that want to terminate their at-will rental agreements. Jilleve will want to evidence other reasons why the two farmers would have wanted to terminate their at-will rental agreements with Todd, not dependant on the signage issue.
-Damages-
If Todd prevails- possible damages would be economic (loss of sales $ from the lack of customers, loss of rental $ for the time the two farms aren’t rented) and possible punitive damages if Todd can show Jilleve’s actions were intentional and without justification.
Violet v. Kay
-Issue of Negligence- (5pts)
Violet would be able to successfully show that Kay had a duty to act as a reasonable person under in the same or similar circumstances, and breached that by opening the car door apparently with out paying attention and causing damage by personally injuring Violet.
Violet v. Todd (25 pts)
-Issue of Vicarious Liability-
An employer is liable for the conduct of his employee’s as long as they are acting within the course and scope of their employment. The issue is whether Kay was under Todd’s ‘control’ and therefore acting as his employee. Violet will contend Todd had ‘employed’ Kay to do business for him by paying her $500 and by giving her Jilleve’s address, instructions on what to do and paying for her gas. Also, if Violet could prove that Todd’s agreement with Kay was to do an illegal act (threaten Jilleve with personal harm etc…) then Todd would become vicariously liable for any damage for the performance of an illegal act, even if the agent is found to be an independent contractor. (Casebook, p. 670)
Todd will contend: that Kay is clearly not his employee as this was a one time only personal request; that Kay at most, was an independent contractor, because his control was only general with regard to what to do, and not specific to how exactly Kay was to do it; and she was outside the ‘scope’ of his control when she stopped for lunch as that was Kay’s own independent act and he had not authorized nor paid for a lunch break. If Kay is found to be an independent contractor, Todd would not be vicariously liable for Violet’s damages.
-Exceptional analysis or creative theories on any issue---15pts.
Question # 2 Answer Outline
TORTS
Professor Rickett
Spring Final Exam 2006
Anne v. Pokerwin!
Fraudulent Misrepresentation/Deceit and Negligent Misrepresentation (15 pts)
Deceit-
Anne will sue Pokerwin! for vicarious liability for fraud based on Debra’s statements to her indicating that Anne was such a great poker player. This tort generally requires that Anne evidence 1)a false representation made knowingly or without belief in its truth; 2) materiality; 3)reasonable reliance by the plaintiff on the statement; 4) causation and 4) detriment to the plaintiff. A duty to speak with care may arise from a ‘special relationship” between the parties. The law will not allow one party to take advantage of a known weakness in the other, especially if the relationship is one of confidence or undue influence. Also, if a person expressly invites reliance on an opinion, that opinion may be a misrepresentation sufficient to found an action.
Negligent Misrepresentation
Similar to Fraudulent Misrepresentation, this action does not require an intentional act. Plaintiff must show that the statement(s) were made by one who failed to exercise reasonable care in either ascertaining the information, or in the manner in which it was communicated. Anne will want to show that Debra had a duty to exercise due care in making all those statements to her because they were made in the course of a business relationship and Debra/Pokerwin! had a pecuniary interest in keeping Anne has a student and continuing to pay for more poker classes. Debra did not act reasonably in saying things to Anne that she herself did not believe to be true.
Defenses-(20 pts)
Puffery or Opinion-
Representation must be statement of fact that can be reasonably relied upon. Pokerwin! will argue that Debra’s statements were not factually certain but mere puffery or shop talk and were her personal opinion. No reasonable person would take them at their face value and therefore Anne can’t meet an essential elemens of either intentional or negligent misrepresentation.
Assumption of the risk-
Pokerwin! will argue that by playing in any competition, a player assumes the risk that they might lose. Every statement that Debra said may have been a true fact and Anne may have been the greatest poker player in the world, but when she sat down to play in the tournaments she assumed the risk of being beaten by a better player or just bad luck!
Lack of Causation
Pokerwin! will contend that Anne is unable to prove the element of causation for either of the above two torts because she can not prove that it was Debra’s statements that were the factual or proximate cause of any detriment/damages. Anne will argue that the only reason she continued to pay for courses at Pokerwin! was because she relied on Debra’s statements that she could be a great poker player. And that she only entered the tournaments because of Debra’s statements which caused her to lose money. Pokerwin! will contend that Debra’s statements were only compliments and opinion and many things could have caused Anne to continue to play poker including her own want to do so, societal pressure, her love of the game, greed, etc…
Statutes of Limitation-
Anne should be warned that her claims may be barred by the states statute of limitations because she has waited 4 years to bring it. For actions sounding in tort, most states impose a two or three year limitation. Statutes of limitations are a complete bar to actions that do not meet its time limits. It is not dependent on the merits of the case. There is an issue of when Anne’s tort action began to accrue-usually it is when there has been “an actual injury to plaintiff’s person or property”.
Damages (5 pts)
If she prevails on a misrepresentation/deceit cause of action, Anne may be awarded punitive damages if she can prove that Pokerwin! (Debra) intended to deceive her. She could also claim the money she paid ($2000) for the last two courses she took as she only continued to take the courses based on Debra’s statements to her and any lost wages that occurred while she was taking the courses. Also, it’s a longshot, but she may try to claim the $ she lost in the poker tournaments as she wouldn’t have entered them but for Debra’s deceiving statements about her abilities.
Debra v. Pokerwin! (30 pts)
Worker’s Compensation Act-
You should advice Debra on the typical features of bringing a worker’s compensation action against her employer. These would include, but are not limited to,:
-Debra, an employee, is automatically entitled to certain benefits whenever she suffers a ‘personal injury by accident arising out of and in the course of employment,” the facts indicate Debra’s injury was caused by her employment;
-Debra’s contributory negligence and fault are immaterial;
-Coverage limited to employees, not independent contractors
-Benefits to Debra would include cash-wage benefits ie. some percentage of her weekly wage as well as her medical expenses. There are arbitrary limits imposed.
-In exchange for these benefits, Debra gives up her common law right to sue Pokerwin! for damages in litigation
-Administration is usually done by administrative commissions which “relax” the rules of procedure and evidence required in a courtroom.
-As an employer, Pokerwin! is required to secure Worker’s Comp Insurance.
Debra v. Dr. Heather (15 pts)
Assumption of the Risk
Dr. Heather’s best defense would be in arguing that Debra expressly assumed the risk that actually occurred. Authority has held that an agreement need not be in writing in order to constitute express assumption of the risk. The two elements to be analyzed are : 1)whether the risk that injured Debra fell within the scope and terms of the agreement and 2)whether the contract/agreement violates public policy and therefore should not be enforced. Facts indicate that Dr. Heather has the facts on her side for evidencing the first element. However, the majority of states hold that certain exculpatory agreements for providing of medical treatment are invalid and unenforceable. Issue is whether this is that type of exculpatory agreement or not.
Exceptional analysis or creative theories on any issue (15 pts)
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