legal hw

Ryan Vecere

5/8/14

BUS-300

1.  25 points:  Administrative Agencies

a.Why did Congress create administrative agencies?  

Administrative agencies were created to specialize and help regulate various branches of government. All different levels of government from state to federal have administrative agencies and are given their power from the legislative body

b.What are the major functions of administrative agencies?  (Discuss and give examples.)

Administrative agencies to make, interpret, ad enforce laws, but is not a legislative or judicial body. An example is the FDA, they inform the public on health concerns and enforce regulation regarding such matters.

c.How do the three branches of the US government each check the power of administrative agencies?

Congress checks the administrative agencies by controlling their budget and can expand or reduce their powers. The executive branch appoints commissioners and can veto administration. The judicial branch rules on all administrative actions to be sure that they follow due process and to be sure Rules must not be arbitrary and capricious or ultra vires.

d.  Discuss the influences that private corporations have on administrative agency regulations and enforcement.  Specific examples should be included.

Private corporations have a very heavy effect on the administrative agencies in the united states. For example 3 out of every 4 oil lobbyists are ex-federal government employees. These lobby’s are the how the private sector voice their opinion to the government and they influence lawmakers heavily dude to their prior relationships.

 

2.  25 points:  Negligence: 

a.   Lewis and Clark were drinking at Joe’s Bar and Grill.  Lewis had three beers and Clark had eight beers over a two hour period.  They were playing darts and argued about whether Lewis was cheating.  The manager came over and told the men that they would have to leave unless they could settle their differences peacefully.  The men calmed down and sat down at a table.  They stayed for another hour.  Lewis and Clark each drank four more beers.  They started to argue again.  The fight escalated and Clark stabbed Lewis in the back.  Lewis was seriously injured.  He sued Clark and he also sued Joe’s Bar and Grill for negligently serving Clark excessive amounts of alcohol.

USING THE ELEMENTS OF NEGLIGENCE, discuss whether Joe’s Bar is negligent (i.e. explain whether each element of negligence has been proven).

Yes, under the terms of negligence, Joe’s bar and grill could be liable for damages. They knowingly served Clark an inordinate amount of alcohol, which lead to the eventually stabbing of Lewis. One could argue the causation that had it not been for the booze, than these friends would not have had this fight. The definition of contributory negligence is conduct of omission that is partially responsible for the party’s actions, which fit this case.

b.  Regarding the above example, assume that all of the elements of negligence HAVE been proven.  Discuss any and all defenses which may be available to Joe’s bar, and their likelihood of success.

Joe bar and grill could argue that they are not responsible for their patron’s actions, and they had resolved their issues prior to the stabbing. They could say that any ordinary and reasonable person in this case would see that they were friends, and serving them was well within reasonable behavior for a prudent person and there was no proximate cause to not.

c.  Frank drank ten beers in two hours at Joe’s Bar & Grill. He was visibly intoxicated by the time he was served the last two beers. After he left the bar, he drove to a park and, for reasons unknown, got out of his car and climbed a tree.  He fell out of the tree, rolled down a hill into a lake and drowned.  His widow sued the bar.  Using the elements of negligence,explain whether the bar should be held liable.

No in this case the bar would not the liable. The bar is not responsible for patrons actions off premises. One could make the argument that Frank could have imbibed the same amount of alcohol anywhere, including by himself. Under the terms of negligence, no ordinary and reasonably prudent person could foresee this happening, therefore they are not responsible for any conduct of omission that may have occurred.

d.  A TV station did a story about Ted, a serial killer who was in prison for committing 4 murders of young children.   Part of the story incorrectly stated that Ted had committed murder that, in fact, he had not committed and was never convicted of.  Ted sued for defamation.  Using the elements of defamation, discuss whether Ted will win his suit.

Under the strict definition of defamation, yes ted could win this suit. The definition states defamation is a untrue and damaging statement about an individual which fits this case since Ted was never convicted of murder, even though he was serving a sentence for the crimes mentioned.

 

3.  25 points:  Product Liability

a.  Discuss the history of product liability law, with the focus on how the responsibilities of businesses have changed over the years.  Your discussion should include:  privity, caveat emptor, and strict liability. (This discussion should not be more than a couple paragraphs long, although you are free to provide a longer response if you feel it is necessary. Make sure not to quote excessively from the text.)

 

b. Wanda purchased laundry soap from Acme Cleaner Co. She told the salesman she needed soap which won’t bleach her red socks. The salesman recommended Cleanco Soap. When Wanda used the soap, she discovered not only that the soap did not clean her clothes, but also that it faded the red socks.  Which warranties, if any, were breached? Make sure to list and explain each type of warranty and discuss whether it was breached.

 

c. Faberge manufactures Aqua Net, a hair spray sold in an aerosol can.  Aqua Net contains a mixture of butane or propane and alcohol, which are all extremely flammable.  Aerosol cans of Aqua Net carry a warning back stating, “Do not puncture” and Do not use near fire or flame.”  Alison Nowak, 14 years old, tried to spray her hair with a new can of Aqua Net.  The spray valve did not work, so she opened the can with a can opener in an attempt to pour the contents into an empty aerosol bottle and use it.  Nowak was in the kitchen near a gas stove when she punctured the can.  A cloud of hair spray gushed from the can and the stove’s pilot light ignited the spray into a ball of flame.  She had severe burns.  She sued Faberge for damages under strict liability for failure of the duty to warn.  Based upon the claim of strict liability and failure to provide an adequate warning, discuss whether Alison should win her case.  Include any defenses that may apply. 

 

4.  Employment Discrimination:  

FACTS:   In Feb., 2013, Shelly was hired as a waitress in a restaurant chain (BBQ Bob's).  Ted, her manager, made vulgar jokes and put his arm around the waitresses, standing uncomfortably close when he talked to them.  He made suggestive comments, saying "they could go far in their careers if they go far with him in the back room."   Nobody was fired or punished for refusing.  Shelly was offended by Ted's conduct and in April, 2013 she told Ted, but the behavior didn't stop.  The other women feel Ted is "harmless."  The company has a sexual harassment policy that requires employees to "submit a written complaint to the corporate office."    Shelly was afraid of being considered a troublemaker, and also afraid of retaliation.  In September, 2013 she finally filed a written complaint.   As a result, Ted was told to apologize and stop his offensive conduct.  Ted no longer touched her or made sexual overtures, but his offensive jokes continued.  Ted and the other employees don't speak to her.  She is left out of all social occasions, and when she walks by she hears them whispering and laughing about her.  Her shifts and duties are the same as always, but nobody will do anything to help her.  For example, when she wanted to go away for her cousin's wedding, Ted wouldn't reschedule and nobody would agree to switch shifts with her, even though it would have been easy for them to do so.  In March, 2014 Shelly quit her job and filed sexual harassment and retaliation complaints against BBQ Bob's.  Only the responsibility of BBQ Bob's should be discussed.

a).  Discuss whether there was sexual harassment in this case.

b) Define "Tangible Employment Action" and discuss whether there was a tangible employment action in this case.

c)   Discuss the Affirmative Defense: Would it apply to the sexual harassment claim against BBQ Bob's?  

c)  Assume the Affirmative Defense DOES apply.  What must be proven and who is required to prove it?  Explain would be most likely to succeed and why.  Your answer should include discussion of the  requirements for proving the affirmative defense, and your evaluation of whether these requirements have been met.

d)  Discuss the retaliation claim:  Would a person be able to win a retaliation claim even if they lost their sexual harassment claim?  Explain.  Discuss whether Shelly would be likely to win this claim. (Assume that Ted and BBQ Bob's should be treated the same for purposes of this claim.)