Law Questions/cases

Tort

1- Sam places an advertisement in the newspaper for his Dodge Viper which states, "I hate to sell it, but high insurance costs force me to sell my 1999 Dodge Viper. The first $45,000 cash takes it." Betty goes to look at the car and says to Sam, "1'11 give you $42,000 for it." Sam then says, "That's not the deal." Betty says nothing and leaves. A couple of weeks later Betty notices that the ad is still in the paper, so she takes $45,000 cash over to Sam's house. He hasn't sold the car, but says to Betty, "You rejected my offer of $45,000, so I don't have to sell it to you for that. You can have it for $47,000." Is Sam obligated to sell the car to Betty for $45,000? Give all possible arguments for each party.

Answer Issue: Is Sam obligated to sell his Dodge Viper to Betty Rule: An advertisement is an invitation to make an offer and is not generally a binding offer. However, it can be considered a binding offer if it is very specific Analysis: in the initial contact, even if Sam’s ad is specific, Betty made a counteroffer and Sam is under no obligation to sell. So the question is Sam required to sell when Betty approaches him after Sam continued to run the ad. Betty’s argument. Although I made a counteroffer to the first time, Sam continued to run the ad thereby making a new offer after I had counteroffered. In effect this should be treated as a counteroffer to me. Although the general rule is that an ad is simply an invitation to make an offer and is not a binding offer, if the add is very specific, then it can be considered a binding offer. That is the case here where Sam described his Viper. The ad specifically talked about his Dodge Viper. Assuming Sam was not a Dodge Viper dealer, this seems pretty specific and should overcome the general rule for an advertisement. Therefore, Sam made an offer to me and we have a contract. Sam’s argument. My ad is not specific enough to be binding. To be binding it should have been more specific such as the year, the vin # and the mileage. However, even if it is binding, Betty clearly rejected my offer when she offered a lessor amount. The fact that the ad continued in the newspaper did not create a new offer to Betty, an offer which she had already rejected. Even if it is considered to be a binding offer, after rejecting my ad, she cannot now come in say she will accept it. Her counteroffer terminated my offer to her. The add continuing in the paper was not a new offer to her. It was the simply the offer that she had terminated with a counteroffer. Conclusion: The question is whether by running the ad, Sam reoffered to sell the Dodge Viper after Betty terminated the first offer. I would consider Sam’s republishing of the advertisement to be a new offer and since the ad is very specific, Sam would be obligated to sell the car to Betty.

2- Sam had just finished a great day of skiing as he walked toward the parking lot with his skis over his shoulders. Pam had been walking behind Sam for several hundred yards and had observed that Sam, on several occasions, had nearly struck other persons as he carried his skis. While waiting to cross at a crosswalk, a car’s horn honks down the street. He suddenly turns to see where the sound came from, and in doing so his skis swing around and hit Pam in the head, injuring her. Does Pam have a claim against Sam or will Sam Avoid liability? Analyze please.

Answer One issue is does Pam have a claim against Sam for the unintentional tort of negligence. Alternatively, was Sam’s behavior so reckless does it rise to the level such that the claim could be for the intentional claim of battery. To have a negligence claim against Sam, Pam must show four elements—duty, breach of that duty, causation of the injury, and damages that can be measured. Sam had a duty not to act in such a way to cause injury to someone else, that his behavior in carrying the skis was a breach of that duty, that his handling of the skis did in fact cause injury to Pam, and final can Pam measure her damages from the injury so as Sam can be made to pay her. We all have a duty to behave in such a manner that our behavior will not injure other people. Obviously Sam has this duty. In this case, Sam walked down the street turning and almost hitting people with his skis. Even if he did not hit anyone, he was still breaching his duty to not behave in such a manner. Since the cause of Pam’s injuries were his turning and hitting her with the skis, the injury was caused by his actions. Finally, if Pam can prove some damages, monetary or otherwise, Sam could potentially be held liable for any medical bills and if Pam can prove some other damages such as loss of wages, Sam should be held liable for those also. Does Sam have any defenses? Two that come to mind are Assumption of the Risk and Contributory Negligence. Under assumption of the risk, everyone knows that skiing can be dangerous and that includes carting the equipment around. People get hurt skiing and by skis all the time. Furthermore, people carrying skis often have to turn so people know that the skis are going to be swinging around. As a skier Pam should know this and this is part of the sport. Since Pam saw this going on for several hundred yards, she knew there was danger and perhaps it can be shown that she assumed the risk and under this theory Sam would not be liable. Under the theory of contributory negligence, if Sam can show that Pam was negligent then he would not be liable to Pam. Here Pam observed Sam’s behavior for several hundred yards, and yet still went up and stood next to him. Arguably she put herself in the position of danger and contributed to her own injury. Finally there is the theory of Comparative Negligence which basically states that when both parties are negligent, the damages will be apportioned amongst the parties in proportion to their comparative negligence in causing the damage. In this case, any portion of the damage attributed to Pam’s negligence would go to reduce her claim. Turning to the Intentional Battery claim, in addition to the elements of negligence, Pam would have to prove that Sam intended to cause the damage suffered by Pam. To our knowledge we do not know if Sam intended to cause this damage and the facts seem not to support that position. However, intent can be inferred from behavior so reckless that the party knew or should have known that his behavior was likely to cause injury to others. If Pam is able to prove that the behavior is so reckless that Sam either knew or should have known that this behavior was likely to cause injury to others, then she might claim for the intentional tort of Battery. Under this claim she

would have a claim for attorney fees as well as punitive damages if she can show the behavior was out