BMGT 380 – Final Exam Questions for E-resources – Fall 2014

           BMGT 380 – Final Exam Questions for E-resources – Fall 2014

Short Answer

  1. Evan Smith experienced a heart attack in the emergency room of Baptist Memorial Hospital after being given a dose of penicillin for a sore throat. Smith sued the attending physician as well as the hospital. The hospital called itself a full-service hospital with emergency room facilities. Baptist Memorial did not consider the doctors to be its agents. For tax and accounting purpose the doctors were not treated as employees of the hospital.  Based on this information, discuss whether the doctors who treated patients in the emergency room were agents of the hospital.                                                                                                                                                         If the hospital has employed somebody to work for it like a nurse, Paramedics or medical technicians, then if such an employee acts incompetently and hurts or injures a patient, then the hospital is responsible for consequences of the actions. If an employee is not cautious enough when handling patients, and due to that the patient is injured or hurt, he has the right to claim for compensation from the hospital. However, it should be noted that, not every mistake that happens in hospital amounts to negligence. The natural assumption is that nurses, doctors and paramedics are employees of the hospital which is not always the case.  If the employee was doing something that is related to his work, and in the process causes something amounting to negligence, then, the patient can sue the hospital for damages. For instance, if a nurse who is an employee of the hospital administers an injection and in the process, the drug causes other unexpected side effects that the patient was not informed about, then they can sue the hospital.            Furthermore, if a paramedic injects a patient on the way to the hospital and unfortunately, a wrong drug is used, especially if the condition of the patient was in was not life threatening, the hospital will be fully liable for that mistake.                                                                                                                                                 It is also different when a doctor makes a mistake when attending to a patient and in the process causes an injury. The hospital will not be responsible unless the doctor is an employee of that particular hospital. In addition, to that if an employee makes a mistake while working under a doctor, then the patient can sue the doctor and not the person who was working under the doctor, this is because, he was receiving instructions from the doctor  however, the hospital may be exonerated. Before a decision is made, a number of factors will be put into consideration: was the doctor present when the malpractice took place, was the doctor able to control what the support staff was doing? A vivid example is when a nurse forgets a pair of scissors in the patient’s body. In. a case like this, a critical analysis of the situation has to be done to assess the circumstances that led to that and who was in charge of ensuring that all pairs of scissors were collected.. A number of factors are put into consideration. A doctor is said to be an employee of a hospital, if the hospital has control over their working hours and it is the one that sets the fee required to be charged. However, it is different when a patient sustains injuries while in the emergence room. The hospital can also be held responsible if it allows incompetent members of staff to perform duties even if the doctor is an independent contractor. It is true that in the emergence room, the hospital does not have time to inform the patient whether the doctor is an employee of the hospital or not. But still, the hospital is held responsible for anything that will occur in the emergence room. This gives the patient the right to sue the hospital for the mistake. Some states also have some legislation that say that a hospital can be sued irrespective of what the patient was informed about. Therefore, in the above case, Smith can sue the hospital because the drug was administered in the emergence room. It does not matter whether the doctor was the agent of the hospital or not.
  2. As a beginning songwriter and performer, you are convinced that a certain model of guitar is what you need to turn the musical world on its ear. Chick’s Music store advertises the item but because the store is sold out when you get there, you accept a rain check signed by Daria, one of the employees. You return to the store one month later, but Chuck refuses to honor the rain check. Under the UCC would you win your suit to enforce the contract? Why or Why not?                                                                                                                                                                               A  Rain Cheque is a ticket or coupon that is issued to a customer to purchase an item at later date for the same amount that was to be paid. This is done when the items have run out of stock. .It is possible to make several visits to the shop or store before the rain cheque is honored. The issuance of rain cheque is just a kind of courtesy that is extended to the customer. A rain check is not regarded as a contract, at the same time it will depend on the terms of the rain cheque issued and the availability of the stock. Therefore, it is difficult to win the law suit though; it depends on the terms of the rain check. However, the courts have the jurisdiction to enforce any agreement reached whether oral or signed. It is important for one to understand the laws that protect the consumers in order to realize when a breach of contract takes place. These laws, depending on the state allow a consumer to sue for the breach of contract. The law requires that, the stores that advertise discounts or special prices should have enough goods in order to meet the demands of the customers or give an item of the same value to the customer.
  3. On May 1, you contract orally with Johnny, a salesperson with Keyboards Emporium, to buy for $450 an electric organ for your personal enjoyment with delivery to occur on July 1. On May 15, you ask for delivery on June 1 and Johnny agrees. But delivery does not occur on June 1. The store later tells you delivery will be on July 1 as agreed in the first place. Under the UCC which delivery date is binding? Explain. Would there be a difference under common law contracts? Explain.                                                                                Any contract that is signed makes the two parties to obey certain obligations. These are the parties that signed the contract. Legally, if one party fails to fulfill its side of the obligations, it is known as the breach of contract. There are a number of ways in which a contract can be said to be breached: if the contract agreement is not executed on time, when the agreement is not fulfilled or it is fulfilled but not based on the agreed terms. For the purposes, of making a decision on the legal action to take, the breach is categorized into, immaterial or material. For instance, in the above case where dates are changed, there was no breach of contract that took place. This is because under the UCC, it is the first agreement that binds. The next date which changed from July 21 to June 21, does not have legal backing. Therefore, the legal date that Jonny was required to supply the electric organ was 1 of July. The common law also recognizes the first date, unless the second agreement is written down and signed by both parties.

4). California Consumers Co. purchased from S.L.Coker an ice distributing business in the city of Santa Monica. In the purchase agreement, Coker agreed that he would not engage in the business of selling or distributing ice either directly or indirectly in Santa Monica, so long as the purchasers or any later purchasers remained in the business. Imperial Ice Co. acquired the ice distributing business from California Consumers. Coker subsequently began selling ice in the same territory. The ice was supplied to him by a company owned by Rosner and Matheson on very attractive terms, because they wanted to break into the territory. Imperial Ice sued to obtain an injunction to restrain Coker from violating his original contract. Did Rosner induce Coker to violate his contract and were they therefore liable for the tort of wrongful interference with contractual relations? Explain.                                                                                                                                              When an agreement is signed between two parties, there are certain obligations that have to be followed by them. If one party fails to honor the agreement, then in legal terms, that is referred to as a breach of contract. There are many reasons that can cause a breach of contract to occur, depending on the details and specifics of the agreement. A breach occurs, when one party fails to honor the agreement signed, does not honor on the specified time or honors it but does not do it as per the terms of the agreement. The breach can either be immaterial or material.              These terms are used when making a determination on the best legal solution for the breach. In the above case, Coker violated its original contract with California Consumers Company. This is because, when Imperial Ice Company acquired California consumers, it was to conduct its business on the agreement that was signed earlier between the California consumers company and the S.L Coker. However, the S.L Coker Company took it as if the Imperial ice company began doing the business on different terms. Therefore, Imperial ice has a right to sue Coker with the aim of restraining it from breaking the contract that it signed with California which was still binding. When a contract is breached the other party has the right to seek a remedy under the law. The three most common solutions when a contract is breached are: damages, specific performances and the contract being cancelled. The California Consumers Company would sue under the following:

Damages. This is the most common remedy for the breach of contract. However, this depends on the terms of the agreement signed. Punitive damages. After the breaching of the contract these are the payments made to the party that did not breach the contract to compensate it. The payments have the aim of punishing the other party for breach and deter it from doing the same.                                                                                                                                                                    Compensatory damages. The aim of this is to make over for the loss caused due to the breach of contract in order to take it to its position before the breach took place. This is the most appropriate kind of damage that California Consumers Company can seek for. This is because it lost money when Coker ventured into business in the same territory.                                                      Nominal damages. These are damages are awarded after confirmation that a breach occurred but it would not be quantified into monetary terms. Liquidated damages. These are damages that had been previously identified to be paid in case the contract is breached. This type of damages should be based on the actual calculation that occurred.                                                                                                                                                 Specific Performance. This kind of remedy is applied for when the damages caused are not enough to be used as a legal remedy. It is used as a remedy for a contract that has been breached and it has a unique subject matter. These damages are meant to place the party that did not breach the contract in a good position like the one they would be if the breach had not taken place.

      5). There are extensive federal regulations governing airplanes and pilots. Assume that the state of New York passed a statute containing numerous requirements, some conflicting with federal regulations, covering operation of airplanes and licensing of airplane pilots.

If the New York state statue is challenged as being unconstitutional, what is the likely result?  Describe the applicable law and rationale for your conclusion. Equals 4 pts.                                          Laws     are different from one state to another and the differences have a relation to federalism. This is because technically, these states are like independent countries which have their own constitutions and other things which are expected of any country. When people are in these states they follow their laws as if they are not in the United States of America. However, all these countries are not fully independent because they are controlled by the federal government. Under the United States constitution, the states have the power to make their own laws irrespective of what the other states do, but they should not differ or deviate from the Federal laws which govern all the people in the United States of America.                                                                                                 Federal courts are the ones that have the authority to hear all cases even the ones involving different states. For instance, when it is alleged that the United States constitution has been breached, it is the court that hears the case. In the United States of America, there is supremacy clause that says clearly that when there is a conflict between the state law and the federal one, the federal law supersedes the state law. The concept is also referred to as the preemption doctrine. In the above situation, the Federal law prevails and therefore, the state law cannot be enforced. For instance in the above case, where the state of New York has passed statues some of which conflict the Federal laws, definitely, the laws enacted by the Federal government will supersede the New York statues. In the aviation industry like in the case above, the laws that were enacted by the state of state, will be declared null and void. Another practical example is where marijuana is a schedule one controlled substance and therefore illegal under the federal law .However, many states have made the use of marijuana legal. In this case, the law enacted by the state cannot be enforced and the federal government can use its laws to arrest individuals who use it in states that have legalized their use.

ESSAY

  • John H. Surratt was one of John Wilkes Booth’s alleged accomplices in the murder of President Lincoln. On April 29, 1865, the Secretary of War issued and caused to be published in newspapers the following proclamation: “$25,000 reward for the apprehension of John H. Surratt and liberal rewards for any information that leads to the arrest of John H. Surratt.” On November 24, 1865, President Johnson revoked the reward and published the revocation in the newspapers. Henry B. St. Marie learned of the reward but left for Rome prior to its revocation. In Rome, St. Marie discovered Surratt’s whereabouts. In April, 1866 unaware that the reward had been revoked, he reported this information to U.S. officials. Based on this information Surratt was arrested. The government denied St. Marie the reward.
    1. Should Marie have received the reward? Explain. Be sure to include in the discussion any theories of recovery Marie would argue as well as those the government would use to defeat Marie.
    2. If Marie were to get the award, would he be entitled to the full $25,000? Explain.

What if this had occurred in the year 2010 and the reward was published not in a newspaper but on the Internet as was the revocation. Would the result be the same? Would it be the same if the award was published on the Internet, but the revocation in the newspaper? Explain Top of Form

A legal theory of the breach of contract occurs, when you have an agreement with another party to do something but one party fails to do it which can make the other party to take an action in most cases it is a legal route. In this case, the party that claims that the contract has been breached must show that indeed the terms of agreement were broken. And before that, it must be proved that the offer being claimed was made and the two parties made an agreement that they obey the offer and that they will be bound by that agreement which they made. In the above issue involving Henry b and the government of America, the promise that was made and gazette, was binding. However, when President Johnson revoked it and put the information in the newspapers, it became null and void and was no longer binding. In any agreement, there are four elements: the element of agreement, consideration, legality and capacity.                                                                                                                                                                     An agreement is reached, when one party makes an offer that is regarded as valid and the other party accepts it. Consideration is when there has to be bargaining that leads to the exchange between the parties. Legality is when the contract is within the confines of the law and it is legal and finally capacity means that the two parties must be adults who are of sound m mind. There should also be consent where the two parties do not trick each other. There are also some contracts that must be written in order to be enforced because; if they are oral it would be very difficult to enforce them. In a contract, there is what is called performance and discharge, where, if the parties do what is required by the contract, then it can be said that the duties have been discharged. A court has the jurisdiction to determine the kind of remedy to be given when a contract is breached. The contract law states that the promises made have to be written and then a determination is made on the promise that can be enforced. The contract law has three questions: that it proves can be given that the defendant promised to do something was the promise was made and if it was agreed that the promise will be honored. If the promise was not made, then are there reasons that can make the party that is purported to hold the contract liable. In the above case, the government made a promise of paying. In a case like this, judicial restraint can be opted for where the parties agree to fulfill certain obligations they agreed to. A court has the authority to enforce a promise that was made even if there was no agreement between the two parties.                                                                                                                                                           If the defendant was fully aware that the plaintiff will definitely rely on the promises made and the plaintiff real relied on it then the only thing the court can do is to enforce it. if it is the only way the court can avoid injustice, this is because the court is out to dispense justice. This was unilateral contract, which is a contract where one Party makes an offer which the other party will accept through actions. In this case, Henry was only to be paid, if he made sure that John was arrested. It would be argued that when John left America, the contract was still binding and at the same time when a revocation is made, it should be given certain duration before it is implemented so that the information can reach all the interested parties. The government will also argue that the moment the president revoked the order, the agreement ceased to be valid; this is because newspapers are legally accepted as channels of communicating very important information including the revocation that was made. If the action took place in twenty ten and the information was communicated through the internet it would not be legal means of making the information available b because it had not been enacted into law as a way of communicating such pieces of information. This was a form of contract called implied because a promise was made but there was no contract that was signed
that was signed.However, Henry needs to get the full amount of money because, the fact that the contract was revoked when he was not in the country and the newspaper where the information was published was meant for the America readership and yet he had left and was in a different country. The government should be fully liable and pay him the full amount.
Stephen Brooks was employed as a sales representative for the bob king Mitsubishi car dealership. Reba Stanley, age eighteen, met with brooks to test drive a Mitsubishi pickup truck. During the test drive, brooks assaulted Stanley “by touching and grabbing her arms, hands, groin area, and breasts. He also exposed his genitals and placed her hand on his private parts.” when they returned from the test drive, brooks took her to the Mitsubishi service department “and exposed himself again and tried to force her to touch him.” Stanley was able to free herself and left the dealership. Brooks was later convicted on charges arising out of the incident. Stanley sued both brooks and the car dealership, claiming the she suffered intentional infliction of emotional distress.

C.What must Stanley prove in order to win her case and why.

The dealership argued that the case against them should be dropped as they were not responsible for Brook’s actions, and asked the court to grant a motion for summary judgment. The defense argues that the motion should be denied under the doctrine of “respondeat superior”. Should the court grant the motion? If so why or if not why not?                                                                                       Stanley must show that Stephen was an employee of Bob King Mitsubishi dealership during the time of the assault. And this can be proved because Stephen was the one who was permitted by the company to help Stanley do a test drive. This shows that he was their employee, and if he was not, they did not communicate the same to Stanley. In case of anything caused by Stephen, the company will be fully reliable because of the fact that he was their employee“Respondeat superior is a Latin term meaning `let the master answer’.                                                           This common doctrine was established in the seventeenth century in England with the sole aim of defining when an employer is liable for the mistakes committed by his employee. .It was later adopted in the United States, and it has clearly stipulates when the principal is liable for the mistakes of his agent. It gives an opportunity for the party that is injured or assaulted to get compensated. Under respondeat superior, the employer is fully liable for the mistakes or problems that are caused by his employee though the circumstances differ. This is a provision that gives an opportunity for one who is injured, hurt or assaulted to be compensated for the damages that are caused. The relationship between the employee and employer is called agency. The employer is called the principal when he gets the services of somebody under certain agreements. The person who works for the employer is   referred to as the agent. Through the respondeat superior, it is assumed that the principal controls the agent and he is therefore, fully responsible for the mistakes committed by him. If the employee works for the employer, and is given responsibilities over his business where he acts on his behalf, then anything that arises out of that falls squarely on the employer .If the employer has the authority to control his time, place and the method of working, then this is his employee and the principal will be responsible for the mistakes committed.                                                                                                                                              In the above case, Stephen was the agent for his employer because he was the one who gave him permission to take Stanley for a test drive. Hence, Stephen’s employer can be held responsible for the kind of assault that Stanley received. The culpability of the employer will be considered within the scope of employment. There is a question on whether the employee was working within the scope of employment at the time of the   assault, though; this will be determined by particular facts of the case in a court of law. The court will have to look at the employee’s job description, assigned duties, the time place and purpose of the act of the employer.                                                                                                                                                               The court will also look at to what level  what the employee did  was in tandem to what he was employed to do, and whether it was possible for such an assault and indecent behavior to be expected to occur. The most important question in a respondeat superior claim is whether the employee was  discharging his duties within the  limits of employment during the time of the act: Was what the employee was doing related to his job or not. For instance in 1991,the Supreme court of Virginia in a case  between Sayles and Piccadilly Cafeteria,Inc.,242 Va 328,410 S.E.2d 632 showed how it can be very difficult to answer this question. Charles was a passenger in a car that was hit by another which was driven by Stephen Belcastro.The men were leaving a Christmas party that was  held by their employer on the company premises.Belcastro was intoxicated at the party, and that was why he drove his car to the left hand lane and hit another car injuring Sayles.Because the intoxication was caused by drinks provided by his employer, at the event that was sponsored by the company, under the doctrine respondeat superior.Sayles, was awarded damages but it was ruled that Belcastro was acting outside the scope of his employment when the accident occurred. However in the case of Stanley versus the Bob King Mitsubishi Company, there is sufficient evidence that Stephen was working for his employer and therefore Stanley has to be compensated

 

 

 

 

 

 

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