Ch 6, question 5:
The legal question is whether it was improper to not have a jury trial at McHugh’s hearing by the Rent Control Board.
“An agency, although not a court by law, may be given power to sit as a court and to determine whether any violations of the law or of agency regulations have occurred…there is no right of trial by jury before an agency” (Twomey, Jennings, and Greene, 2017, p 96-97).
Because the Rent Control Board is an agency handling the hearing, McHugh did not have the right to a jury trial. Therefore, McHugh was incorrect, the board’s actions were not improper.
Ch 6, question 8:
What process must the CPSC follow to pass the new rule regarding child-resistant caps on certain products? What is my opinion on the statement made by the head of the consumer group, and does that statement justify the rulemaking?
An agency must perform research on a problem or issue at hand, then publish the proposed regulation in the Federal Register, allow for a public comment period to last for at least 30 days, and finally the agency will decide to pass or withdraw the rule (Twomey, Jennings, and Greene, 2017, p 94).
As we can see in the question itself, research and data as already been done regarding children under the age of 5. I personally think the statement by the head of the consumer group with concise and powerful, showcasing that this is a regulation which will help to keep children safe. I don’t think the statement itself doesn’t justify the rulemaking; I believe that the statement paired with the research data is enough to justify the rule passing.
Ch 7, question 1:
The legal question here is whether a defense claim of ignorance is reason enough to be deemed innocent.
“Mental state, scienter, or intent, does not require an awareness or knowledge of guilt…Ignorance that a law is being broken does not mean there is not mental state” (Twomey, Jennings, and Green, 2017, p 107).
Flinn does not have a good case by claiming that he was unknowledgeable about a state law requiring a license to broker loans. I could state that it should be a person/business’ responsibility to know the laws affecting the business that they do, but in this case, it stands that Flinn still committed a criminal act regardless of whether he knew it or not.
Ch 7, question 10:
Are the banks still criminally liable for breaking the rules if they were unaware of the money laundering? If they were aware that large sums of money were moving through their customer’s accounts, would that knowledge make a difference is liability?
“Corporations are held responsible for the acts of their employees” (Twomey, Jennings, and Green, 2017, p 108). We can also look at United States v. Park (1975).
The banks would be liable for criminal charges or fines regardless of whether they were aware of the activity, the criminal acts still happened. Although suits could possibly be brought against the individuals for smuggling drugs across the border, the banks are still liable for the money laundering. Yes, knowledge would make a difference. If any manager or executives at the bank were aware of the money laundering, then they themselves could also be held responsible and charged with criminal activity.
Ch 8, question 1:
Did Christensen Shipyards violate a publicity tort, or are they protected by the First Amendment? Does the name of the yacht impact the case? Would it make a difference if Christensen Shipyards and Tiger Woods had a contract with a clause prohibiting the use of Tiger’s name and photos without his permission?
The elements of the right of publicity tort are the following: (1) appropriation of the plaintiff’s name or likeness for the value associated with it, (2) identification of the plaintiff in the publication, and (3) an advantage or benefit to the defendant (Twomey, Jennings and Green, 2017, p 136).
In this case, Christensen Shipyards used Tiger Woods’ name knowing they would reap benefits from their association with him, it did not benefit the plaintiff and was only done, without permission, to benefit the defendant. A clause would certainly prohibit those actions from taking place, but it doesn’t make much of a difference in this case because the defendant clearly violated the right to publicity tort.
Ch 8, question 3:
The legal question here is whether the defendant is protected under the assumption of risk that must be taken by the plaintiff in the sport, which allows for vigorous participation and frees a participant from a legal duty to act with due care.
“Implied primary assumption of the risk arises when the plaintiff has impliedly consented, often in advance of any negligence by the defendant, to relieve a defendant of a duty to the plaintiff regarding specific known and appreciated risks” (Twomey, Jennings, and Greene, 2017, p 146).
In this case, the defendant was aware of the risks associated with snowboarding and the various levels of danger. He was also an instructor which makes him even more knowledgeable of the risks associated with the sport. The incident was not intended, it was an act of negligence for which the defendant has a solid case under the assumption of risk defense.
Ch 8, question 8:
Could the city of Chicago be held responsible for injuries caused by property owned by someone else?
The Federal Tort Claims Act (FTCA) provides a legal means for recovery of property damage, personal injury, or death claims arising from the negligence act or omission of any employee of the United States government, including a city municipality (Twomey, Jennings, and Greene, 2017, p 147).
If the plaintiff can gather evidence proving that a specific department governed by the city was notified repeatedly about the dangerous situation, then I do believe the plaintiff has a strong case against the defendant for negligence.
Ch 8, question 12:
Was Unjian Enterprises liable for the breathing handicap sustained by the newborn child, two years after the initial injury to the mother?
“The plaintiff in a personal injury negligence lawsuit must establish the actual losses caused by the defendant’s breach of duty of care and is entitled to be made whole for all losses” (Twomey, Jennings, and Greene, 2017, p 144). If established, the plaintiff is entitled to compensation for past and future physical impairment.
It’s already been established that Unjian Enterprises was at fault for negligence in Hegyes’ original case. The defendant would be responsible for damages made to Hegyes’s directly, there would be know way to account for future damages to children that weren’t even conceived at the time of the original case. At this point in time, two years after the original case settled, I do not believe that the defendant can be held liable for the physical handicap of a child that was not conceived or birthed at the time of the original injury to Hegyes. It is an unfortunate situation, but Hegyes should have also been aware of the risk to her fetus when getting pregnant, in my opinion, which makes it more of a comparative negligence case if that was an option. Overall, the child’s personal harm was directly from the mother’s medical condition or negligence by the obstetrician’s care, not the defendant.
Ch 8, question 13:
In the case of Kendra Knight v. Michael Jewett, the question asked is what happens if contributory negligence applies? And what happens if the defense of comparative negligence applies?
“Under common law, the defense of contributory negligence, if established, is a complete bar to recovery of damages from the defendant…….. Comparative negligence is a defense that permits a negligent plaintiff to recover some damages but only in proportion to the defendant’s degree of fault” (Twomey, Jennings, and Greene, 2017, p 144-145).
If contributory negligence applied, Michael Jewett would be responsible for all damages sustained, such as medical bills, emotional distress, and loss of income due to the injury. If comparative negligence applies, then a percentage would have to be decided upon to determine the level of fault for both the plaintiff and the defendant. The defendant would then be responsible for damages, minus the percentage that the plaintiff is responsible for.
Ch 9, question 13:
Did Dr. Donald Chickering’s copying of eight articles from the Journal of Catalysts constitute fair use?
The principle of fair use “allows limited use of copyrighted material in connection with criticism, news reporting, teaching, and research” (Twomey, Jennings, and Greene, 2017, p162).
Although the trial court judge held that the eight articles did not constitute fair use, I disagree. The defendant is a scientist who had copies of the article in his private drawer, seemingly for his own use. There is no statement on whether he shared the articles or claimed ownership of writing those articles. In my opinion, he had possession of articles which he used for educational use or research. With that said, I would determine that this does constitute fair use.
Reference:
Twomey, D. P., Jennings, M., & Greene, S. M. (2017). Business law principles for today’s commercial environment (5th Edition). Cengage Learning.
