Below are three discussion questions based upon the reading assignments from the textbook for this week – one is about negligence, one is about strict liability, and one is about intellectual property. Please select one question and provide a thoughtful response to all of the sub-questions within that question by Friday, July 26th at 11:59 pm.

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Question 1

Bill Green was employed as a carpenter. His employer was the subcontractor on a construction project for a five floor office building. He was assigned to work on the elevator shaft, and he and two co-employees placed some planks of non-scaffold grade wood across the open shaft on the fourth floor so that they could stand on it while they erected the walls enclosing the shaft. The general contractor provided the planks and described how they should be placed in the elevator shaft. The general contractor’s safety manager then inspected the elevator shaft and the use of the planks, but made no comment about his inspection and permitted Bill and his co-employees to stand on the planks while doing their work. Bill was standing on one of the planks when it suddenly broke, causing him to fall down the elevator shaft into the basement of the building. Bill was not using fall protection equipment. There were no eyewitnesses to the incident. Bill suffered devastating injuries, including multiple fractures in both legs, compression fractures in his spine, and a closed head injury that resulted in a severe memory deficit and mood disorder.

The owner of the building and the general contractor had been cited by OSHA three months earlier for unsafe practices, including not requiring personnel on the job site to wear fall protection equipment, related to different areas of the project than the elevator shaft. It is a violation of OSHA regulations and other construction safety standards (1) to use non-scaffold grade planks for scaffolding because it is not sufficiently strong and (2) to fail to use fall protection equipment when working at a height where there is a risk of falling.

Bill retains an attorney who files a lawsuit on Bill’s behalf against the general contractor and alleges that the general contractor’s negligence caused the accident and Bill’s injuries.

Please answer all of these questions and explain your answers.

1. What is the duty on the part of the general contractor, and was there a breach of that duty?
2. Since there were no witnesses who could testify about what happened, what evidence can Bill’s attorney can use to prove that the general contractor was negligent and that its conduct caused Bill to fall?
3. Is there any basis for the general contractor to argue that Bill was contributorily or comparatively negligent? What is the significance to the general contractor of being able to make that argument?
4. Bill earned about $50,000 per year, but can no longer work because of his injuries. There have been large medical bills for treatment to date, and Bill will have future bills. Describe all of the elements of damages for which Bill is entitled to recover if he proves a duty, a breach of duty and causation.
5. What are punitive damages and is there a basis for Bill to make a claim for punitive damages? Why or why not?

Question 2

Snow Equipment, Inc. designed and manufactured snow blowers and other motor driven products. It used its regular distributor, Machine Distribution, Inc., to put its snow removal products into the stream of commerce, and Machine Distribution arranged for sales to Ace Hardware stores. Machine Distribution never took possession of the products, and they were drop shipped directly to Ace Hardware retail locations. Tom Brown LLC had a franchise agreement with Ace Hardware, and he operates one retail location. Maria Smith purchased a heavy duty snow blower manufactured by Snow Equipment so that her husband Fred could use it instead of shoveling. It came with a lengthy user’s manual that was full of instructions and warnings, including a specific warning that hands should never be inserted into the chute from which the snow blows, especially when the motor is on. Fred considered himself knowledgeable of motor-driven equipment, so he does not read the user’s manual.

Fred used the snow blower for the first time when there had been a wet and heavy snowfall. The chute became clogged almost immediately, so Fred put his gloved dominant right hand into the chute just far enough to clear the clogged snow without getting near the blades – or so he thought. As he was clearing the snow, Fred felt sudden excruciating pain in his hand and fingers. He pulled his hand from the chute and saw that all five fingers had been completely severed.

Fred hired an attorney who retained an expert engineer who gave an opinion that the snow blower was defectively designed because (1) there was no printed warning on the outside of the chute itself advising users not to place their hands into the chute when the motor was running and (2) the chute should have had a special guard preventing any object (such as a hand) from being inserted more than a few inches and therefore not getting near the blades. Snow Equipment believes strongly that the snow blower was not defective in any way.

Please answer all of these questions and explain your answers.

1. What company or companies in the chain of distribution have potential liability to Fred on his product liability claim? What is the social policy behind this?
2. Fred was clearly negligent himself, but contributory negligence and comparative negligence are not defenses in a strict liability case. Is there any argument that Snow Equipment and the distributors can make on the basis of Fred’s conduct to try to defeat his claim?
3. Fred earned $75,000 per year as an accountant, and he will have difficult using a keyboard for his work. He asserts that he can no longer work in this field. He has incurred medical bills to date and there may be bills in the future. Describe all of the elements of damages for which Fred is entitled to recover if he proves that the snow blower was defective and that the defect caused his injuries.
4. Is there a basis for Fred to make a claim for punitive damages? Why or why not?
5. Fred is upset about the accident, so he sells his snow blower to his neighbor, Sam Evans. Sam is smarter than Fred, so when snow clogged the chute he did not insert his hand. Instead he inserted a metal broom handle. The snow cleared, but the handle hit the blades and shards of metal flew out of the chute. One struck Sam in the eye, and it was so badly injured that it had to be removed. If Sam sues Fred on the basis of a theory of strict liability for selling a defective snow blower, what is Fred’s primary defense?

Question 3

Please answer all of these questions and explain your answers.

1. KOP, Inc. is a privately owned company in the business of designing and manufacturing thin client products; a thin client is a compact piece of computing technology that accesses data remotely through a connection to a server. KOP designs and manufactures both the hardware and software, and has recently developed a new technology to enhance the speed and power of its thin clients. The upper management has decided that a U. S. patent should be sought for this. (A) Describe the process that KOP must follow and what it must prove in order to have a patent awarded. (B) If the patent is awarded, how long will the patent protection last?
2. Alice Becker was KOP’s Director of National Sales from 2005 until June 30, 2018, when she abruptly resigned. She claimed that she did not have a job lined up, but her LinkedIn profile shows that she started working for Thin Client Solutions, Inc. on July 1, 2018. This is KOP’s primary competitor. KOP had a forensic IT analysis performed on Becker’s desktop and company laptop computers and on her company cell phone and it was discovered that she had downloaded internal information about KOP’s national customers as well as about KOP’s finances and business and marketing plans and sent it to her personal email account. KOP is concerned that Becker is going to share this information with her new employer and use it to gain a competitive advantage against KOP. KOP sues Becker and Thin Client Solutions for misappropriation of trade secrets. (A) What statutory basis does KOP have to support its claims? (B) What damages and/or other relief can KOP seek in court? (C) What defenses can Becker and Thin Client Solutions raise?
3. Sarah Williams is a budding fiction writer and he has just published her first book, which is a science fantasy novel. The book gets rave reviews and has big sales. A man named Henry Jones reads the book and discovers that the plot and characters are taken directly from a short story that he had written 10 years earlier and which had been copyrighted and published with a compilation of other short stories but had only very limited distribution. Large portions of the short story are restated word for word in Williams’ book without any attribution to Jones. Jones had never given Williams permission to use his short story as the basis of his book or to quote from it. Jones retains an attorney and files a lawsuit for copyright infringement. (A) What must Jones prove in order to succeed in his claim? (B) What damages and/or other relief can he seek in court? (C) Are Williams and the publisher subject to criminal prosecution in addition to the civil claim filed by Jones?

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