Law School Case Briefs: LTD.

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SHOEMAKE V. FOGEL, LTD., A.T. 826 S.W.2d 933 (1992) CASE BRIEF

SHOEMAKE V. FOGEL, LTD., A.T.

826 S.W.2d 933 (1992)

NATURE OF THE CASE: Shoemake (P) appealed a decision which reversed a trial court ruling denying Fogel (Ds) offset for P's contributing negligence in a death survival action for the death of P's child.

FACTS: One month before her second birthday, Miranda Gilley nearly drowned in the swimming pool at her apartment complex. The child was rescued and temporarily revived, but four months later died from the injuries she had suffered. P sued Ds, the apartment complex owners, Fogel, Ltd. A.T. and Federal Group I, and the apartment complex manager, International Property Management, Inc. P brought a survival action in her capacity as representative of the child's estate. The jury awarded $285,492.28 to P on her wrongful death claim, and $50,969 to the child's estate in the survival action. Considering the negligence that caused the near-drowning, the jury attributed a total of fifty-five percent to Ds, and the remaining forty-five percent to P. As to the wrongful death action, the trial court reduced P's recovery by forty-five percent but refused to do so in the survival action. The appeals court reversed and P appealed.

ISSUE:

RULE OF LAW:

HOLDING AND DECISION:

LEGAL ANALYSIS:

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JONES V. RYOBI, LTD., 37 F. 3d 423 (1994) CASE BRIEF

JONES V. RYOBI, LTD.

37 F. 3d 423 (1994)

NATURE OF THE CASE: This was a case about contributory negligence and product liability. Jones (P) filed a negligence and strict product liability action against Ryobi (D) for defective design of a printing press sold to her employer. The court denied P's motion to amend her complaint to reassert a negligence claim and granted motions for judgment as a matter of law against P and P appealed.

FACTS: Jones (P) operated a printing press for her employer Business Cards Tomorrow (BCT). Sometime after this press was delivered to BCT, the plastic safety guard was removed and the interlock switch was disabled to allow the press to run without the guard. This modification increased production by a few seconds and was common practice in the printing industry. P knew the guard was missing and that it was dangerous to have her hands near the moving parts, but her supervisor pressured her to save time by adjusting eject wheels while the press was running. P feared she would be fired if she took the time to stop the press. On one occasion, while adjusting the eject wheels on the running press, a noise startled P. She jumped and her left hand caught in the press's moving parts and was crushed. P alleged negligence and strict liability for defective design against the manufacturer Ryobi, Ltd. (D). The manufacturer and distributor were granted a judgment as a matter of law by the District Court. P appealed.

IN RE ARBITRATION BETWEEN POLEMIS AND FURNESS, WITHY & CO., LTD., Ct. of App., 3 K.B. 560 (1921) CASE BRIEF

IN RE ARBITRATION BETWEEN POLEMIS AND FURNESS, WITHY & CO., LTD.

Ct. of App., 3 K.B. 560 (1921)

NATURE OF THE CASE: This is an arbitration case for damages from a tortious injury.

FACTS: Polemis and Boyazides (P), the owners of the Greek steamship Thrasyvoulos chartered the steamship to Furness, Withy & Co., Ld. (D). P were to provide and pay for all the provisions and wages of the captain, officers, engineers, firemen, and crew, to pay for the insurance of the vessel, war risks excepted, and also for all the engine room stores, and maintain her in a thoroughly efficient state in hull and machinery for ordinary cargo service. D were to provide and pay for all the coals, fuel, port charges, pilotages, agencies, commissions, and all other charges whatsoever, except those before stated. By clause 21: 'The act of God, the King's enemies, loss or damage from fire on board in hulk or craft, or on shore, arrest and/or restraint of princes, rulers, and people, collision, any act, neglect, or default whatsoever of pilot, master, or crew in the management or navigation of the ship, and all and every of the dangers and accidents of the seas, canals, and rivers, and of navigation of whatever nature or kind always mutually excepted.' By clause 22, should any dispute arise between the owners and charterers, the matters in dispute were to be referred to three persons in London, one to be appointed by each of the parties hereto, and the third by the two so chosen; their decision or any two of them, to be final and binding. D loaded her with a cargo of benzine and other items and headed to Casablanca. It had become necessary to shift a number of the cases of benzine and native stevedores had placed heavy planks across the forward end of the hatchway in the 'tween decks, using it as a platform in the process of transferring the cases from the lower hold to the 'tween decks. Because of breakage of the cases there was a considerable amount of petrol vapor in the hold. In the course of heaving a sling of the cases, the sling came into contact with the boards placed across the forward end of the hatch, causing one of the boards to fall into the lower hold. The fall was instantaneously followed by a rush of flames from the lower hold, and this resulted eventually in the total destruction of the ship. P claimed that D was liable for the loss of the ship; that fire caused by negligence was not an excepted peril; and that the ship was in fact lost by the negligence of the stevedores, who were D's servants, in letting the sling strike the board, knocking it into the hold, and thereby causing a spark which set fire to the petrol vapor and destroyed the ship. D contended that fire was an excepted peril; that there was no negligence for which the charterers were responsible, inasmuch as to let a board fall into the hold of the ship could do no harm to the ship and therefore was not negligence towards the owners; and that the danger and/or damage were too remote - i.e., no reasonable man would have foreseen danger and/or damage of this kind resulting from the fall of the board. The Arbitrators found that a spark emanating from a dropped plank could not reasonably have been anticipated. Some damage to the ship might reasonably be anticipated by a falling plank. The arbitrators found that the ship was lost by fire, that the fire arose from a spark igniting petrol vapor in the hold, that the spark was caused by the falling board, that the fall of the board was caused by the negligence of the Arabs (other than the winchman) engaged in the work of discharging, that the said Arabs were employed by D or their agents the Cie. Transatlantique on behalf of D, and that the said Arabs were the servants of D, that the causing of the spark could not reasonably have been anticipated from the falling of the board, though some damage to the ship might reasonably have been anticipated, there was no evidence before us that the Arabs chosen were known or likely to be negligent, that the damages sustained by P through the said accident amount to the sum of 196,165 1s, 11d. D appealed.

DALURY V. S-K-I, LTD., 670 A.2d 795 (1995) CASE BRIEF

DALURY V. S-K-I, LTD.

670 A.2d 795 (1995)

NATURE OF THE CASE: This is an appeal from an assumption of the risk case.

FACTS: Dalury (P) collided with a metal pole forming a control maze at D's ski resort. P had purchased a season pass and signed a form stating that the skier understands and freely accepts and voluntarily assumes the risks of skiing and releases D from liability. P also signed a photo identification that contained the same language. The trial judge granted D summary judgment. P appealed.

IN RE ARBITRATION BETWEEN POLEMIS AND FURNESS, WITHY & CO., LTD., Ct. of App., 3 K.B. 560 (1921). CASE BRIEF

IN RE ARBITRATION BETWEEN POLEMIS AND FURNESS, WITHY & CO., LTD.

Ct. of App., 3 K.B. 560 (1921)

NATURE OF THE CASE: This is an arbitration case for damages from a tortious injury.

HOSCHETT V. TSI INTERNATIONAL SOFTWARE, LTD., 683 A.2d 43 (1996) CASE BRIEF

HOSCHETT V. TSI INTERNATIONAL SOFTWARE, LTD.

683 A.2d 43 (1996)

NATURE OF THE CASE: These were cross motions for summary judgment seeking an order for a corporation to hold an annual meeting and to make a stockholder list publicly available.

FACTS: Hoschett (P) is a registered owner of 1,200 shares of common stock of TSI (D). D is privately owned with 962,274 shares of common and 860,869 shares of convertible preferred stock which are held by less than 40 stockholders of record. D has never had an annual meeting for the election of directors. P filed this action seeking an order to compel an annual meeting. P moved for summary judgment. D cross motioned; they had written consent from a majority of the voting power to elect five directors and that satisfies the requirement to hold an annual meeting.

ISSUE:

RULE OF LAW:

HOLDING AND DECISION:

LEGAL ANALYSIS:

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SPEIGHT V. WALTERS DEVELOPMENT COMPANY, LTD., 744 N.W.2d 108 (2008) CASE BRIEF

SPEIGHT V. WALTERS DEVELOPMENT COMPANY, LTD.

744 N.W.2d 108 (2008)

NATURE OF THE CASE: Speight (P) appealed a decision, which affirmed a summary judgment in favor of Alters (D) in P's case for a breach of the implied warranty of workmanlike construction.

FACTS: Roche had a custom home built by D in 1995. Roche sold the home to Rogers, who in turn sold it to the P on August 1, 2000. P noticed water damage and mold. A building inspector determined that the damage was the result of a defectively constructed roof and defective rain gutters. Nothing in the record indicates that any of the owners between the original builder and the Speights had actual or imputed knowledge of these defects. P sued D alleging a breach of implied warranty of workmanlike construction and general negligence in construction of the home. Both moved for summary judgment. The district court held that P could not maintain an implied warranty claim and even if they could it would be barred by the Statute of Limitations.