DISCUSS---All stories are true. Names, also, if I can remember them and there is no allegation of crime. 
Tuesday, August 28, 2018, 11:22 AM
Posted by Administrator
Law school exams (at least in my day....which was the very early 1980s but, I doubt it has changed), almost always followed this format:
1) There was one exam per class, at the end of the semester (no mid-terms, pop quizzes...........usually, no papers....just that one exam.
2) The exams were scheduled for about 2 hours. Your grade on the exam was your grade for the course. You participated in class, answered the professor's questions? Well....good for you!
3) After you walked in and sat down, you were handed the exam booklet. You were expected to have brought with you several "blue books". Blue books were small pamphlets with about 20 pages of lined loose-leaf paper stapled to a blue paper cover.
4) You would open the exam booklet, which typically contained several fact situations, each ending with the word "DISCUSS" and you would start "writing blue books"...analyzing (and discussing) the facts presented...in a legal context employing stuff you learned in the class (to get an "A", you would spit back what your professor told you). And, you would continue writing until you either a) ran out of any halfway reasonable ideas or b) time ran out. Contracts class had fact situations (stories) having to do with contracts and promises and gifts and tort class would have fact situations having to do with causation and liability, breach of a duty.....think someone getting hit in the head with a baggage scale while running along a train platform while someone else threw a bag full of fireworks onto the tracks...things like that.

With the above in mind and now that all of the English speaking world has read my previous entry, below, I will give some of things I wrote about a few days ago a legal context.

Why didn't the school district in Syracuse, New York sue Burroughs Corporation when the computer system it bought didn't work? The non-legal reason is that Gordon, the business manager for the district who decided to make the purchase, didn't want to lose his job. Tying up the district's money (+/- $100,000 in early 70s money) would make him look like stupid while making the system work made him look like a hero.

The legal reason (and, after a few days in Contracts class at the University of Florida, I ran into a case where Burroughs had been sued for selling a non-working computer...........and won) is that the Burroughs sales contract provided that what they sold was WITHOUT ANY WARRANTY OF MERCHANTABILITY NOR ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE.. This meant that Burroughs didn't promise the buyer that the computer they sold was more or less as good as any computer or would "pass without objection in the trade" and that, whether or not the salesman said the computer would be able to do a certain job (fit for a particular purpose).........it didn't have to. All the Burroughs computer had to do was be a box full of wires, electronic stuff and flashing lights.

But, when the salesman said it would do the particular job it was being purchased to do (prepare reports to be sent in to the New York State Education Dept.) and it didn't, wasn't that fraud? How about suing Burroughs for the salesman's fraud. He was the speaking agent for Burroughs (so the corporation was bound by any job-related thing he said)and he lied and all fraud requires is:
-A fictitious/untrue statement intended to induce someone to do something to their detriment (like buy a computer system that didn't work)...with
-The object of the fraud (the defrauded one) reasonably relying on the truthfulness of what he/she was told. Certainly, it wasn't out of line for a computer customer to believe a computer manufacturer's representative when he/she said the computer would work as promised. The salesman didn't say the computer would fly or transport the user through time....statements that couldn't be reasonably relied on...all he/she said was that it would produce those reports.

Here is a common defense to that kind of supposed fraud: "sales talk". No, I am not making this up........there is a legal concept called "sales talk" or "puffing". The car salesman says: "That is the greatest car in the world." and you buy one and find out it isn't. Or, "It gets 50 miles to the gallon." Maybe it does it you don't travel in excess of 14 miles per hour. Would a defense of "sales talk" beat an allegation of fraud? I dunno. It depends. If something similar to this happens to you, spend a few thousand in attorney's fees and find out (or, of course, don't let it happen to you). (Note: In my 20s, I did sue a car dealer for fraud........one day, I'll remember to tell that story.)

So you know: the No Warranties and Fitness disclaimers probably has to be in BIG letters that stand out from the rest of the contract to be effective (as I remember) and, if what you're selling is used/pre-owned, all you need is "AS IS" and, maybe "WHERE IS" would also be good. Put that on a Bill of Sale....have the buyer sign off and you are likely covered when you sell that old Chevy, transmission full of sawdust, to the young,innocent,non-mechanically inclined buyer. But, wouldn't sawdust in the transmission (to hid transmission noise) be fraud? I think so. (But, again, don't find out---buy a car with a working transmission.)

Moving on.....I did not kill Earl...or, at least, I hope I didn't. But, certainly, what I did myself and encouraged others to join me in doing (the Heimlich maneuver for choking) didn't help keep him alive. Let's for the moment, say I did kill him.....could I be sued for negligence?

Negligence boils down to having a duty to do something (like drive safely) or undertaking a duty to do something (like saving someone's life) and doing an unreasonably bad job at it. You, me, everyone owes the world, at least, mediocrity. If there are damages as a result of what you do poorly (or don't do at all) you may owe the victims (or, if you kill them, their heirs) money..

As I understand it, here is the "good samaritan" rule that applies when people volunteer to save others in danger and do a crappy job at it: As long as you undertook your rescue in good faith, you aren't going to be held liable. Public policy is to encourage heroism, rescuers, good samaritans to save people without their having to stop and worry about being sued.

Am I up-to-date on this? No. Can a rescuer be sued if they are grossly negligent (maybe trying some one hanging off a cliff by throwing them a laundry line...the kind of line you string across the yard to hang up your wash)? At some point somebody is so negligent in their rescue attempt.......so uncaring.....so fool-hearty that they ought to be responsible for the consequences of their failure. At some point, stupidity morphs into bad faith. I will stop here and tell a story:

It was the 1971 0r 1972 and I was on the road that goes from the South end of Boulder, Colorado up to the top of Flagstaff Mountain in a long series of steep switchbacks. Along the way up there are large boulders on one side of the road and there were some small cliff faces on the other. I rode up, one day, with a then-friend of mine named (I think I've got this right) Scott Shagin. At one point, Scott pulled over to the side of the road and I got out of his car and decided to climb one of the cliff faces that bottomed out on the road's right shoulder. It was, at most 30-40 feet, bottom to top.

I was about 25 feet up when I realized that I didn't see any decent hand holds above me. It was at this point that I was reminded about what is (in my mind, at least) one of the great truisms about rock climbing: It is easier to go up then it is to go down. Here is why: The handholds and foot holds above you are much closer to your eyes---and easier to visualize---then the foot holds beneath you. To see the footholds beneath you, you have to look past your body and past your legs: 1 foot vs. (I'm short) 6'. There is also the idea that it is easier to feel with your hands what is above you then it is more difficult to feel with your feet (hands have more feeling and, generally, it is your feet that wear the shoes). I was stuck and hanging on.

Had I fallen off the cliff, I probably would not have died. But, I would likely have been VERY banged up...broken arms or legs or skull, things like that. I yelled to Scott (who had the good sense not to follow me up...or, maybe had made it up already, I don't remember). He went to his car and got out some rope and hiked around the side of the cliff until he got to the top. Then, he lowered the rope to me. After I grabbed it, he swung me off the rock and onto the grassy slope next to it. If Scott hadn't had that rope, I don't think it would have gone well for me.

(Frequent readers, please pause for a second before continuing...you know the next line):

The rope Scoot had in the back of his car? Laundry line.
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