Reference no: EM13790510

Question 1: John is driving 25 MPH in 25 MPH zone dove a four lane street near a school where there are children playing. One nine-year-old child, Louis, runs into the street chasing a soccer bail. David, without looking over his shoulder, swerves into the other lane to avoid Louis and in the process he hits a car, driven by Roger that was speeding past him in the left-hand lane going in the same direction.

Roger loses control of his car, hits a telephone pole and is seriously and permanently injured. The telephone pole, owned by the local phone company AT&T, easily snaps into two pieces and hits Louis, who is still in the street, knocking him unconscious and resulting in permanent injuries.

AT&T never did any testing of its poles to establish how easily the poles broke. The only factor used in manufacturing the poles was cost. The poles were made of low quality trees and were not treated in any significant manner except for a coating of tar. No reinforcement was used on the poles.

Who will Louis's parents likely recover damages from if they were to sue for negligence?

Roger

The School

AT&T

John

Question 2: John is driving 25 MPH in 25 MPH zone down n four lane street near a school where there are children playing. One nine-year-old child, Louis, runs into the street chasing a soccer ball. David without looking over his shoulder swerves into the other lane to avoid Louis and in the process he hits a car, driven by Roger that was speeding past him in the left-hand lane going in the same direction.

Roger loses control of his car, hits a telephone pole and is seriously and permanently injured. The telephone pole, owned by the local phone company AT&T, easily snaps into two pieces and hits Louis, who is still in the street, knocking him unconscious and resulting in permanent injuries.

AT&T never did any testing of its poles to establish how easily the poles broke. The only factor used in manufacturing the poles was cost. The poles were made of low quality trees and were not treated in any significant manner except for a coating of tar. No reinforcement was used on the poles.

What is not a proper defense for John to make on his behalf if sued for negligence?              

Assumption of Risk                

Res Ipsa Loquitar

Negligence per se

Emergency Doctrine

Contributory Negligence

Question 3: The Miller Brewing Company, a national brewer, produces a reduced-calorie beer called Miller Lite. Miller began selling beer under this name and spent millions of dollars promoting the Miller Lite brand name on television, in print, and via other forms of advertising. Falstaff Brewing Corporation had brewed and distributed a reduced-calorie beer called " Falstaff Lite." Miller brought suit under the Lanham Act, seeking an injunction to prevent Falstaff from using the term Lite.

Who will succeed and why, choose the best answer?

Falstaff, because the term 'Lite' is generic and receives no trademark protection.

Miller, because the term 'Lite' is arbitrary and receives trademark protection insofar as Miller used the mark in commerce first.

Falstaff, because the term 'Lite' is in the public domain and receives no trademark protection.

Miller, because the term 'Lite' is fanciful and receives trademark protection insofar as Miller used the mark in commerce first.

Falstaff, because the term 'Lite' is descriptive and receives no trademark protection.

Miller, because the term 'Lite' is suggestive and receives trademark protection insofar as Miller used the mark in commerce first.

Question 4: You own a small suburban home in a planned community. The property is fenced along all four sides, with a single gate at the front. Your municipality has decided that in order to deal with the impending energy crisis the municipality will begin a new program where they install solar panels and the necessary equipment for free on any eligible homeowner's property. The solar panels will then power your home and any extra unused power will be redistributed to the grid and neighboring homes. In the contract it is clear that the panels and equipment in your possession are still owned by the municipality.

Weeks pass, you and your neighborhood are awarded the opportunity to participate in your municipality's new program and the installation will begin later this month, In order to clarify and address any concerns in the use and access to the property you have received an exhaustive contact assigning your municipality a variety of non-possessory rights regarding the use of your property.

In particular:

1. The presence of solar panels and equipment physically affixed to your property.

2. The process of installation of solar panels and necessary equipment on your home by municipal employees.

3. Maintenance of solar panels and necessary equipment on your home after installation by municipal employees.

4. A demand for you to keep all trees and any other obstructions from preventing maximum solar collection from the solar panels on your home or any other in the neighborhood.

5. A stipulation that, as the owner of the property, you may at anytime request or cancel a maintenance visit. What non-possessory rights are in question in this contract?

In Gross Easement

Appurtenant Easement

License

Covenant

Question 5: During the 1930s, California enacted laws protecting employ as from corporate greed. Daily, on the congested Long Beach freeway, we pass processions of 18-wheel trucks delivering containers from the Long Beach and Los Angeles ports to a nearby warehouse in Wilmington or Carson, or to a railhead in East Los Angeles. In California, approximately 20,000 truck drivers, like ancient Chinese coolies, deliver shipping containers from the port. Many port drivers are immigrants who speak little English. They toil 60 to 70 hours a week to provide food for their families, to join the middle class pursuing the American Dream. As individuals, most drive a truck owned by a corporate motor carrier or a subsidiary of the motor carrier. To obtain work delivering containers from the port, they had to sign a contract written in a lawyer's language they might not speak or read which labels them independent contractors.

By labeling drivers who deliver containers as independent contractors, corporate motor carriers avoid providing them with workers compensation insurance and all of the benefits provided to employees such as minimum wage, breaks, unemployment compensation, state disability insurance and Social Security. Because the motor carrier does not identify the driver as an employee, it does not deduct taxes from his wages and does not provide him with a W2. As a result, port drivers are denied the benefits guaranteed to all employees since the Great Depression, and the state is losing millions, if not billions, in taxes.

Motor carriers are usually corporations that deliver containers from the port. They contract with the shipper or the owner of the load, companies like Wal-Mart, Sears, Target or Kawasaki, to deliver the containers. The port driver almost never talks with the owner or shipper of the load. The driver rarely knows what he or she is carrying because the containers are closed. For each delivery, the driver must report daily to the corporate motor carrier and proceed to the terminal the motor carrier instructs. At the terminal gate, the driver must wait hours until able to provide the name of the motor carrier and its operating authority. After the delivery, the driver must give the motor carrier a manifest showing how the driver spent the day. The motor carrier arranges where the load is picked up, where it is delivered, the cost and all billing and collection for the delivery. Almost never does a port driver speak with the owner or shipper of a load. He drives long hours, sometimes taking home less than the minimum wage. No matter how hard he tries to profit, he has no ability to do so because the motor carrier controls what he does and how much money he receives.

(a)What role do the port drivers serve as?

 (b)Who will be liable if there is claim for negligence brought against a driver for an act committed while working within the scope of employment?

Question 6: Burns provides security services for the Geneva Steel Plant ('Geneva'} in Orem, Utah. Burns employed Swenson as a full-time salaried security guard in June 1988. On the day of the accident, July 26, 1988, Swenson was assigned to guard duty at Gate 4, the northeast entrance to the Geneva property. Security guards at Gate 4 worked eight-hour continuous shifts, with no scheduled breaks. However, employees were permitted to take ten-to fifteen-minute unscheduled lunch and restroom breaks, but nonetheless still on the clock.

When taking their lunch breaks, Gate 4 guards generally ate a bag lunch but occasionally ordered take-out food from the sole restaurant within close physical proximity to Gate 4, the Frontier Cafe. The Frontier Cafe was located directly across the street from the Geneva plant, approximately 150 to 250 yards from Gate 4. The cafes menu was posted near the telephone at Gate 4. Aside from vending machines located within a nearby Geneva office building, the Frontier Cafe provided the sole source of food accessible to Gate 4 guards within their ten- to fifteen-minute breaks. Indeed, the Frontier Cafe was the only restaurant in the immediate area. Whether they brought their lunches or ordered from the cafe, Gate 4 guards were expected to eat at their posts.

Shortly after 11:00 am. on the day of the accident, Swenson noticed a lull in the traffic at Gate 4 and decided to get a cup of soup from the Frontier Cafe. She placed a telephone order for the soup from Gate 4 and then drove her automobile to the cafe. She intended to pick up the soup and return to Gate 4 to eat at her post. She expected the round trip to take approximately ten to fifteen minutes, as permitted by Burns' unscheduled break policy. On her return trip, however, she collided with plaintiffs' motorcycle at a public intersection just outside Geneva's property. Swenson and the motorcyclist were injured.

Which parties are liable and why?

Burns, because of the Coming and Going Rule

Burns, because of the Work Related Test

Question 7: If Coca-Cola sues Pepsi for trademark infringement based off the advertisement below will Coca-Cola succeed?

No, because Coca-Cola would be unable to show ant form of likelihood of confusion.

NO, Pepsi's advertisement is a parody.

Yes, the strength of Coca-Cola's mark out weight's Pepsi's freedom of speech.

No, because the use of Coca-Cola's trademark is not in commerce.

Yes, Coca-Cola can show all elements of trademark infringement

Yes, Pepsi's advertisement does not fulfill the definition of parody under trademark law

Question 8: Kristin offers to sell land to Ian for $5,000. Ian says that $5,000 is too much but he will pay $4,000. Kristin says no. Two days later, Ian says that Kristin's original offer is acceptable. Which of the following best describes this situation?

There is now a valid contract between Kristin and Ian.

Kristin may now accept Ian's counteroffer.

Ian's counteroffer of $4,000 terminated Kristin's original offer.

Ian made a counteroffer, but Kristin's offer may still be accepted.

Question 9: Lori just purchased a brand new lawnmower for $500. When she got home and tried to use it, it would not work. She became angry and stated, "lid sell this thing for $50." Her neighbor heard her and said, "I'll take it," and offered Lori the $50. Which of the following best describes this situation?

An enforceable contract exists.

There is no contract because there was no acceptance.

There is no contract because there was no offer.

There is no contract because there was no consideration.

Question 10: Jana and Annie enter into a written agreement whereby Jana promises to sell and Annie promises to buy a certain parcel of land for $5,000. There is adequate consideration, the contract is legal and both parties have contractual capacity. The contract is fully performed by both parties on Jan. 1. Which of the following best describes this contract?

Unilateral, express, executor, valid

Unilateral, express, executed, valid

Bilateral, express, executed, valid

Bilateral, express, executor, valid

Question 11: Which statement is false concerning contracts lacking consideration?

A minority of courts hold that promises made out of a sense of moral obligations are enforceable.

A promise based on a party's past consideration will not support a present promise.

A present promise to pay a friend who helped you move last week is sufficient consideration to form a contract.

A promise to perform an illegal act will not support a contract.

Question 12: A party who wishes to get out of a contract in which he has entered into a bad bargain may successfully assert the doctrine of unconscionability-

True

False