BLAW 1320 2nd Term Exam

BLAW 1320 2nd Term Exam

Questions 1)

Issue:

            Prof. Jones get into an accident while Oke, a driver for HTI avoid hitting the protruding sign. The protruding sign cause of Carra who drives a truck for WTL. Does Prof. Jones able to sue James Weide and Susan Travis who are shareholders of each companies for negligence? or just their companies?

Rules:

            The cause of action in Negligence is because of a carelessness. It is liability when duty of care, breached standard of care and causation of loss, these all three have to prove. Drivers have a duty of care to prevent an injure for other users of the road and pedestrians.

Objective, reasonably foreseeable risk, and Likelihood and severity of harm of seasonable person test is part of the standard care and these have to be prove. The causation of harm occurred after but-for test proofed. The torts occurred during the working time, so vicarious liability occurs. During companies are under Corporation, shareholders have limited liability.

Argument:

            In the case, WTL hired Carra as a truck driver, however, his car collided with a signpost and make it protruding out of the ground. he left the post about the day and later on the company of HTI’s truck driver named Oke, he tries to avoid hit the protruding sign and he made an accident with Prof. Jones. Both Carra and Oke are tortfeasors because they have a duty of care while they drive trucks, they have to careful to prevent make an accident for other road uses however, Carra created the peril because she left the protruding sign carelessly and Oke drove moving vehicle by driving on the gravel divider carelessly too. They could prevent the accident if Carra resolve the sign to call the police and Oke drove by attempting to overtake on the gravel divider, he endangers other road users lives and causes and accident even if the solid yellow lines on the road prohibited such a manoeuvr. Also, they have reasonably foreseeable risk because the sign could be made a serious accident while it was protruding out of the ground and moving vehicle while driving is morally dangerous. According to but-for test, if Carra and Oke drive carefully, Prof. Jones did not get the accident and did not suffer a physical injury or property damage of the car. Prof Jones may sue Frank and Samuel’s employers in vicarious liability since the accidents were caused while carrying out their duties in employment. Thus, WTL and HTI are vicariously liable for the tort of negligence of their employees however, their companies are under corporations since James Weide and Susan Travis are the sole shareholder of each companies, they do need to cover employees’ torts because the plaintiff cannot sue James Weide and Susan Travis personally so only their companies need to cover their employee’s torts. Vicarious liability occurs during Carra and Oke was driving for their companies so if the companies are not under the liability insurance, only WLT and HTI have a responsibility to pay damages on behalf of Carra and Oke when Prof. Jones wants to sue James Weide and Susan Travis.

Conclusion:

            Prof. Jones only able to sue WTL and HTI companies for negligence since James Weide and Susan Travis are shareholders and under the corporation.

Questions 2)

Issue:

            Mary(Owner) hired Frank as a security guard for the store named Mary’s Shoppe. A customer Shelley who had previously suspected of stealing came into the store, so Mary told Frank, and Frank lunged and grabbed Shelley’s arm because she was yelling rudely at Mary, and he tried to restrain her. Is Shelly able to sue Mary’s Shoppe for intentional torts?

Rules:

An intentional Assault occurred when there was a reasonable belief that such contact will occur. Also, an intentional battery occurred because there was a performance of the physical act. In general principles of tort law, Vicarious liability happened to the company because the tort occurred by an employee during the working time. When the company is not under Liability Insurance, the company is responsible for paying damages on behalf of a person who incurs liability.

Argument:

In this case, Frank was hired by Mary’s Shoppe. He and Mary indeed in a contract as an employer and an employee. While Shelley shouted at Mary rudely, Frank lunged at her, and she might feel scared because she thinks a reasonable belief that some physical contact will occur. Even Frank did not grab her arm at all; she can sue him as an offensive contact of an intentional assault while she feels he will physically contact her when he lunged at her. On the other hand, Shelley was yelled “smack you” so Mary have a chance to valid the intentional assault but After Frank grabbed Shelley’s arm, this is an intentional tort of battery. Frank had the intent of battery-which means that the act was not committed by mistake or negligently. There was nonconsensual contact with the other party- Shelley. Hence the tort of battery was committed in this case. He committed physical action during his working time as an employee of the store. According to Vicarious Liability, the store, Mary’s Shoppe, is responsible for Frank’s tort while Frank will be held liable for the tort because Frank is an employee from the store. If Mary’s Shoppe is not under Liability Insurance, the store Mary’s Shoppe has a responsibility to pay damages on behalf of Frank when Shelley wants to sue Frank.

Conclusion:

Mary’s Shoppe is liable for intentional battery.

Questions 3)

Issue:

The product called “Aspargum” from the Funch Gum company increased the chance of getting mouth cancer who chewed the product and increased the chance of getting lung cancer who smoked and chewed the product so they put warning labels on the product. Clint got mouth cancer but Funch insist Clint smoked over 25 years and the smoking cigarettes increase the risk of mouth cancer too. Does Funch still be held liable for Clint’s mouth cancer?

Rules:

            The plaintiff can be liability when all three of Negligence approved. A duty of care exists when the company manufacture harmful products. The company had failure to warn of the standard of care for manufactured product while the company tried to do subsequent warning. The but-for test from causation of harm, the plaintiff would have suffered the same loss since the plaintiff smoked a long time so this can protect the defendant. Contributory negligence occurs from cause of the plaintiff’s long period of smoking.

Argument:

            In this case, Clint was a cigarette smoker over 25years and the company Funch found a studied that smoking increased the mouth cancer by 25%. Funch did not know the product called “Aspargum” can increase the cancers of mouth and lung, after Clint noticed the product can make cancers and a duty of care exists when Aspargum occurs harmful risks and according to subsequent warning, Funch put the warning labels on the product after the product has been sold. From the but-for test from causation of harm, Clint has a possibility to get mouth cancer because he is a 25years smoker and cigarette increase the cancer as same as the product. He has a contributory negligence since he does not quite smoke and even Funch mentioned with warning labels that the product could increase cancers especially to smoker and this time Clint has a responsibility to smoke cigarette and chew the gum together. If he was not a smoker, the but-for test should be conceded the defendant may be held liable through the fact that Asparaum increase cancers however, he ignored the warning. At this time, contributory negligence occurs because Clint was careless to consume the product because Funch already mentioned the risk.

Conclusion:

            Clint is not able to sue Funch for his mouth cancer Since but-for test is not validated.

Questions 4)

Issue:

Sally operated a restaurant called Trader’s Place as a sole proprietorship. She hired Marty as a manager of the restaurant. Only Sally was responsible for the financial side of the business and Marty was paid 10 percent of the profit in accordance with the agreement. What type of business organization are Marty and Shelly using to conduct their business?

Rules:

            A sole proprietorship is simple to set up and no separation between busuiness and proprietor but it has a risk of unlimited personal liability. They do not share profit with others so this is suitable for small businesses. A corporation of business organization has to have a shareholder or a director. Also a company name has to hold Inc., Ltd. Or Corp. a general partnership of business organization has to shares equally both in the capital and profits. Also, both partners have access to the financial side of a company and both partners are not able to become an employee of the company. However, Limited partnership, limited partners can be employees of the limited partnership.

Argument:

In this case, Sally and Marty look like they run the business together. They cannot be a corporation because there is no information that their restaurant name includes Inc., Ltd. Or Corp. Also, no shareholders or a director. Also, a sole proprietorship does not share any profits so Sally cannot hold the sole proprietorship. There are some points that make the business look like a general partnership. First, when Sally approached Marty to become the manager of the business, and they made an agreement so people can think they are in a contract each other as a partnership agreement. Secondly, Marty paid $1000 plus 1 percent of the total restaurant revenues each month for profits. Lastly, Marty has responsibility to manage staffs, opening and closing the restaurant, and ordering food and paying suppliers for the restaurant. From those reasons Sally and Marty look like they are in a general partnership however, since only Sally has responsibility for the financial side of the business, it hard to think they are in a partnership. For example, in a general partnership each partner has access to financial but Marty cannot access the financial side. Also, a partner cannot be employed by the partnership. Since Sally hires Marty, they cannot hold a general partnership. On the other hand, if they are in a limited partnership, the limited partner can be an employee of the limited partnership but a partner who in a general partnership cannot be employee. Sally and Marty are carrying on business as a Limited Partnership. Since Marty becomes an employee of the restaurant, they need to contract the limited partnership to share profits instead of the general partnership. Marty has to be a limited partner and Sally has to be a general partner. Also, Marty gets profits from the restaurant, they might write down into the agreement about the share profits because Marty was paid 10 percent of the profits accordance with the agreement. Limited partnerships are Marty and Sally using to conduct the business.

Conclusion:

            Marty and Sally are holding Limited Partnerships.

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