liability law s2

Question 1

What are the components of a case brief?

Answer 1

1. Facts (what happened, the lawsuit facts like who is suing for what)
2. Issues (what questions are the court answering?)
3. Holding (the court’s answers to the issues, the decision)
4. Reasoning (what led to the final decision, usually the longest part)

Question 2

What, fundamentally, is a contract meant to do?

Answer 2

Enforce a promise

Question 3

What are the elements of a legally binding contract?

Answer 3

1. Offer + acceptance
2. Consideration

Question 4

What is an offer (contracts)?

Answer 4

A communication from offeror -> offeree that gives the offeree the power to form a contract with an appropriate acceptance; demonstrates a willingness to enter an agreement; has definite terms

Question 5

How is an offer different than preliminary negotiations?

Answer 5

An offer has: clear parties, a clear subject matter, a clear consideration, and clearly defines the time + place of the expected performance. An offer also cannot ‘trap’ one party in the contract.

Question 6

What is an acceptance (contracts)?

Answer 6

The offeror creates the power of acceptance and may dictate the manner + medium of acceptance, as well as other terms

Question 7

What does ‘manner of acceptance’ mean?

Answer 7

The expected promise or performance in a contract

Question 8

What is a bilateral manner of acceptance?

Answer 8

When each side promises something to the other; eg. Adam pays Olivia $20k for her car.

Question 9

What is a unilateral manner of acceptance?

Answer 9

When one side promises to deliver something on the contract, and the other side must do that to accept; eg. the Boston Marathon pays the first-place winner $500, but the runner must place first in order to get that money.

Question 10

What does ‘medium of acceptance’ mean?

Answer 10

How the offer is accepted: in email, in writing, in mail, etc.

Question 11

What is the expiration in an acceptance?

Answer 11

The date and time by which the offer expires

Question 12

Does a counteroffer void the original offer?

Answer 12

Yes, the counteroffer creates a new offer

Question 13

What is a consideration (contract)?

Answer 13

An exchange of value between the parties of a contract; the promise/performance of one party must be bargained for; each party must give something to the other (money, performance, an object, etc.)

Question 14

Identify the contract elements in the following example.
Robert asks Joan to fix his car. When she finishes, he will give her $200 via Venmo. She has to complete it by August 2nd.

Answer 14

Offer: Robert will pay Joan $200 to perform a task for him
Acceptance: Unilateral manner of acceptance, expires on August 2nd
Consideration: Joan’s time and Robert’s money

Question 15

What are factors that could affect the court’s enforcement of a contract?

Answer 15

Capacity: one/more of the parties lack the capacity to comprehend the agreement and represent their interests (most often age)
Legality: courts won’t enforce a contract to perform an illegal act or an act that is against public policy (eg. can’t hire a hitman, an overly-restrictive non-compete cause, parties with significantly unequal bargaining power)

Question 16

What is promissory estoppel?

Answer 16

A method by which the court can enforce a contract without the three components.

Question 17

How is promissory estoppel established?

Answer 17

Plaintiff needs to establish:
1. the defendant made a promise that would be reasonably expected to be relied upon
2. the plaintiff did, in fact, rely upon that promise
3. the plaintiff suffered/will suffer an injustice due to relying on that promise, that can only be avoided by enforcing the promise

Question 18

Would promissory estoppel apply in this example?
A coach from Boston College promises a high school athlete that, if she pledges to BC, she will receive a full-ride scholarship and a leading role on their D1 hockey team. Other colleges made offers that were not this good, so she went with BC. When she pledges, she learns that she is not receiving any scholarship money and is riding the bench.

Answer 18

Yes. The high school athlete relied upon a reasonable promise from the coach, which led to her not taking offers from other colleges. She is suffering both a financial injustice and an injustice to her future career in hockey.

Question 19

Would promissory estoppel apply in this example?
Milo tells Destiny that he will go to prom with her, three years before the prom occurs. In this time, he begins dating someone else. When prom happens, he goes with his partner and not Destiny.

Answer 19

No. Though Milo made a promise to Destiny, the promise is not one that would be reasonably relied upon by Destiny. Destiny is not suffering legal damages.

Question 20

What is a breach of contract?

Answer 20

Failure by a party in the contract to perform a duty imposed under the agreement

Question 21

What can courts award for a breach of contract?

Answer 21

Money or equitable remedies (eg. making the defendant fulfill the contracted duty)

Question 22

What are the first 10 Amendments called?

Answer 22

The Bill of Rights

Question 23

What are common civil rights violations in sports + rec?

Answer 23

First amendment, 4th amendment, 5th amendment, and 14th amendment

Question 24

_____ is required for a civil rights violation.

Answer 24

State action

Question 25

What is state action?

Answer 25

Either the conduct of state (government) actors (eg. public school teachers), or private action that can be attributed to the government (eg. University of Iowa)

Question 26

How do courts test if an action was public or private?

Answer 26

One of the following tests need to be fulfilled to be considered state action: 1. Public function test 2. Nexus/entanglement test 3. State compulsion test

Question 27

What is the public function test?

Answer 27

A test that evaluates if a private entity is performing functions that are traditionally performed by the government. It must be an action performed exclusively, where the private entity is replacing the government's performance of the action (eg., an individual person holding elections for public office in their house)

Question 28

What is the nexus/entanglement test?

Answer 28

A test that evaluates the extent of the government's involvement or connection to the private entity/activity - private conduct qualifies as state conduct if the government is heavily involved in it, commands it, or benefits from it. There has to be a significant amount of joint function - state funding/regulation is not enough to fulfill entanglement (eg., a public school enforcing prayer in the mornings)

Question 29

What is the state compulsion test?

Answer 29

A test that requires evidence that the state significantly encourage or coerced the private entity to take an action, so it's essentially the state acting through the private entity (eg., the governor encouraging his civilian children to arrest alleged criminals)

Question 30

Are public high school sports teams state actors?

Answer 30

Yes, usually

Question 31

What amendments create the right to due process?

Answer 31

The 5th and 14th

Question 32

No person should be deprived of____, _____, or _____ without due process.

Answer 32

Life, liberty, or property

Question 33

What are the steps to due process analysis?

Answer 33

1. Was the alleged violation a state action? 2. Was the plaintiff deprived of a life, liberty, or property interest? 3. Did the plaintiff receive adequate due process? * need the prior step satisfied to move forward

Question 34

What is the ultimate goal of due process?

Answer 34

Fairness

Question 35

What is a "liberty" interest, in reference to sports + rec?

Answer 35

Interest in one's reputation if it is tangible (ie, would impact their career, not just reputation)

Question 36

What does a plaintiff need to prove a property interest?

Answer 36

A legitimate right to the deprived interest - not just a desire or need for it, such as the right to public education (but not the ability to participate in athletics)

Question 37

Is participating in a school athletics program a protected right?

Answer 37

No, it is legally considered as a privilege

Question 38

How do the courts establish how much due process was required in a case?

Answer 38

1. What interests will be affected? 2. How likely is making an erroneous deprivation of the interest through the processes used? 3. What would be the probably value of additional procedures? 4. How would additional procedures burden the government (usually financially)?

Question 39

Explain if the following is a due process violation. The RMHS soccer team is receiving a lot of red cards. The athletic director tells them that, if they receive any more red cards, he will cancel the season.

Answer 39

Yes. There was no hearing from the school district to determine the suspension, and players were not allowed to defend themselves.

Question 40

Explain if the following is a due process violation. Meera is a member of a private health club. The owner ends her membership after xe complains about the dirty conditions of the gym.

Answer 40

No. The health club owner was not a state actor.

Question 41

Explain if the following is a due process violation. George is a starter on his high school's football team. He fails a voluntary drug test and his coach suspends him from the team. George tells his athletics director during his hearing that he was using drugs recreationally, not to boost his performance.

Answer 41

No. George had a hearing with his athletics director and had the opportunity to plead his case. Even though this was state action and he had an interest deprived, due process was carried out.

Question 42

What does the 14th Amendment do?

Answer 42

It requires that similarly situated people be treated similarly under the law - there must be a legally justified reason for treating one group differently from another.

Question 43

What must the plaintiff prove for an Equal Protection lawsuit?

Answer 43

1. Defendant must be considered a state actor 2. There must have been intent to discriminate

Question 44

How does the 14th Amendment protect against unintentional discrimination?

Answer 44

It doesn't, it only protects plaintiffs against intentional discrimination

Question 45

What are the standards of review for Equal Protection suits?

Answer 45

Rational basis, intermediate scrutiny, and strict scrutiny

Question 46

Explain strict scrutiny.

Answer 46

- highest standard - used by courts when discrimination is based on a suspect classification (usually race, national origin, or alienage) - for a government action case, defense must prove that the discriminatory action is necessary to achieve a compelling government interest - for a suspect classification case, defense must prove that the classification is the least restrictive means of achieving a compelling government interest

Question 47

Explain intermediate scrutiny.

Answer 47

- middle standard - used when discrimination is based on a quasi-suspect classification (usually sex) - for a government action case, defense must prove that the action is substantially related to an important governmental objective

Question 48

What protects against gender discrimination in "any educational program or activity receiving federal financial assistance"?

Answer 48

Title 9, expanded by the 14th Amendment

Question 49

Explain rational basis review.

Answer 49

- lowest standard - for a government action, defense must prove that the action is rationally related to a legitimate government objective - eg: out-of-state hunting licenses being more expensive than in-state licenses is legal

Question 50

How does Title 9 work?

Answer 50

- The defendant doesn't have to be a state actor, but must be receiving federal financial assistance. - Enforced by the Dept. of Education's Civil Rights Office; the complainant does not need to have legal standing - Each program must have a Title 9 officer to handle complaints internally - The complainant may also file a lawsuit and become a plaintiff

Question 51

What's the process if a Title 9 complaint is filed with the Office of Civil Rights?

Answer 51

The OCR will evaluate if gender-based discrimination occurred based on 1979 Policy Interpretations

Question 52

How do athletic scholarships relate to Title 9?

Answer 52

Intercollegiate athletics programs need to provide reasonable opportunities for scholarships in proportion to their number of M or F student athletes (eg., if 60% of their student athletes are female, then 60% of their scholarship opportunities for sports need to go towards female athletes)

Question 53

What does 'equal opportunity' mean under Title 9?

Answer 53

Need equal opportunity in selection, level, equipment, scheduling, travel + per diem allowance, coaching + tutoring, facilities, medical + training services, housing + dining services, and publicity

Question 54

How can schools comply with Title 9?

Answer 54

Fulfill one of the following: - provide participation opportunities for M + F students in proportion to their enrollments - show a history + continuing practice of program expansion for an underrepresented sex - demonstrate that it is fully + effectively meeting the interests and abilities of an underrepresented sex (only applies if it fails the first 2)

Question 55

What is contract law based on?

Answer 55

Mostly common law; the Uniform Commercial Code is for goods; the Restatement of Contracts helps settle disputed contracts

Question 56

What is the "mailbox rule" for contracts?

Answer 56

An offer is accepted when it is sent; even if that acceptance is lost in delivery, the contract is now active

Question 56

What is mutual assent?

Answer 56

Informed consent for contracts (ie, both parties know what is going to happen if they sign), is a requirement to continue with a legal contract

Question 57

What is the Statute of Frauds?

Answer 57

Legal doctrine of "get everything in writing," but specifically that certain things must be in writing to be valid

Question 58

What is the parol evidence rule?

Answer 58

If a contract is a final statement of the parties' agreement, any prior or current statements that alter, contradict, or add new information to the contract are not admissible in court

Question 59

What is a plaintiff's "duty to mitigate?"

Answer 59

Did the plaintiff do what they could to mitigate their damages, even though the other party was at fault for breaching the contract? Eg., if Kim doesn't return on her part of the deal, did Ryan ever reach out to her and try to remind her?

Question 60

What is expectation interest theory?

Answer 60

Court rewarding compensatory damages to reflect the benefit the non-breaching party (the plaintiff) expected to receive from the contract

Question 61

What are consequential damages?

Answer 61

Damages awarded when foreseeable damages result from situations outside the contract - eg. how much will Microsoft pay all those companies for the update outage

Question 62

What are nominal damages?

Answer 62

Damages awarded when there was a breach of contract but no substantial loss - the damages could be $1

Question 63

What are punitive damages?

Answer 63

Damages awarded meant to punish malicious, bad-faith behavior

Question 64

What are liquidated damages?

Answer 64

The only kind of damages not awarded by the court. These are specified in the contract to specify how much either party would award the other in X or Y situation.

Question 65

What is risk management?

Answer 65

Strategic steps taken by organizations to limit the legal uncertainties within their activities + services without changing the nature of those activities + services.

Question 66

What is the DIM process for risk management?

Answer 66

D: Develop the risk management plan I: Implement the plan M: manage the plan

Question 67

What are the steps of developing a risk management plan?

Answer 67

Identifying risks, classifying risks, and selecting methods for treating those risks

Question 68

What are some possible risks for organizations?

Answer 68

Negligence, intentional torts, discrimination, property damage, etc.

Question 69

How are risks classified?

Answer 69

By frequency (high, medium, low) and severity (catastrophic, critical, moderate, low loss)

Question 70

How can organizations treat risks?

Answer 70

Eliminating the risk (last resort), transferring the risk to a third party (insurance policies, waivers, independent contractors), retaining the risk (self-insurance, saving money for potential suits), and reduction of risks (regular inspections, maintenance, training, documentation)

Question 71

What does the implementation of a risk management plan look like?

Answer 71

Communicating the plan to employees + educating them on their roles

Question 72

What does the management of a risk management plan look like?

Answer 72

Selecting an effective risk manager to monitor the plan, giving that person authority, and consistently allowing for employee input on the plan

Question 73

What is a crisis?

Answer 73

A negative event that typically catch the organization off-guard, which put the organization in reactionary mode, and which pose a significant threat to the organization because it can create a negative perception and disrupt business

Question 74

What is the primary goal of crisis management?

Answer 74

Keeping the public/participants safe

Question 75

What are the secondary goals of crisis management?

Answer 75

Not allowing the crisis to prevent the org. from moving forward, to damage their reputation, or to impact finances

Question 76

____ management plans should be included in the ____ management plan.

Answer 76

Crisis, risk

Question 77

How do you develop a Crisis Management Plan?

Answer 77

1. Establish a committee to identify possible crises 2. Categorize each crisis by frequency and scope 3. Develop an action plan for each crisis identified 4. Practice the action plans

Question 78

What do action plans do?

Answer 78

They outline actions to be taken when a crisis occurs, such as: employees assisting in handling the crisis, facility issues, emergency equipment issues, communication issues, documentation, and follow-up

Question 79

What should a crowd management plan consist of?

Answer 79

Properly trained + competent staff, policies and procedures for handling fan ejections, an effective communication network, signage, and effective implementation + evaluation of the plan.