Chapter 1
INTRODUCTION TO LAW
You Be the Judge: Soldano v. O’Daniels1
Note: There are two reasons for using this case. First is to introduce students to the “You Be the Judge”
feature. There is one such case in almost every chapter. The text provides the facts and issue and then, in
place of the court’s holding, gives competing arguments for the two sides. The text’s authors wrote the
arguments, often based on majority and/or dissenting opinions in the case. Since students do not have the
“answer,” they are forced to think for themselves.
An instructor can use these cases in many ways.
Divide the class in two and assign each side to argue for one of the parties.
Have students vote on the outcome before and after revealing the court’s holding.
Require students to prepare a short paper giving their own “holding.”
Have one or two students argue each side before the “court” (the professor and remaining
students).
The second reason for using this case is that it builds on the issue of negligence introduced in the Kuehn
v. Pub Zone case, above. This time the court confronts a fight that resulted in a death. The victim’s
distraught family members sued the owner of a bar, claiming that one of his employees was partly
responsible for the death. Once again, the defendant asked the court to dismiss the case, claiming that he
owed no duty to protect the victims—the same argument made by the Pub Zone.
Facts: In the days before cell phones, a fight broke out at Happy Jack’s Saloon. A Good Samaritan ran
across the street to the Circle Inn. He asked the bartender at the Circle Inn to let him use the telephone to
call the police, but the bartender refused.
Back at Happy Jack’s Saloon, the fight escalated, and a man shot and killed Soldano’s father. Soldano
sued the owner of the Circle Inn for negligence. He argued the bartender violated a legal duty when he
refused to hand over the Inn’s telephone, and that, as the employer of the bartender, O’Daniels was
partially liable for his father’s death.
The lower court dismissed the case, citing the principle that generally, a person does not have a legal
responsibility to help another unless he created a dangerous situation in the first place. Soldano appealed.
You Be The Judge: Did the bartender have a duty to allow the use of the Circle Inn’s telephone?
Argument for the Defendant: Your honors, my client did not act wrongfully. He did nothing to create
the danger. The fight was not even on his property. We sympathize with the plaintiff, but it is the shooter,
and perhaps the bar where the fight took place, who are responsible for his father’s death. Our client was
not involved. Liability can only be stretched so far.
The court would place a great burden on the citizens of California by going against precedent. The
Circle Inn is Mr. O’Daniel’s private property. If the court imposes potential liability on him in this case,
would citizens be forced to open the doors of their homes whenever a stranger claims that there is an
emergency? Criminals would delight in their newfound ability to gain access to businesses and residences
by simply demanding to use a phone to “call the police”.
The law has developed sensibly. People are left to decide for themselves whether to help in a
dangerous situation. They are not legally required to place themselves in harm’s way.
Argument for the Plaintiff: Your honors, the Circle Inn’s bartender had both a moral and a legal duty to
allow the use of his establishment’s telephone. The Circle Inn may be privately owned, but it is a business
and is open to the public. Anyone in the world is invited to stop by and order a drink or a meal. The Good
Samaritan had every right to be there.
1 141 Cal. App. 3d 443, Court of Appeal of California, 5th Appellate District, 1983.
1
We do not argue that the bartender had an obligation to break up the fight or endanger himself in any
way. We simply argue he had a responsibility to stand aside and allow a free call on his restaurant’s
telephone. Any “burden” on him or on the Circle Inn was incredibly slight. The potential benefits were
enormous. The trial court made a mistake in concluding that a person never has a duty to help another.
Such an interpretation makes for poor public policy.
There is no need to radically change the common law. Residences can be excluded from this ruling.
People need not be required to allow telephone-seeking strangers into their homes. This court can simply
determine that businesses have a legal duty to allow the placement of emergency calls during normal
business hours.
Holding: The case was reversed and remanded to trial court.
Question: Did the bartender owe a duty?
Answer: Yes, the bartender owed a duty to the plaintiff’s decedent to permit the patron from Happy
Question: What is an argument for imposing this duty?
Answer: Many people just “don’t want to get involved” and no rule should be adopted that would
Multiple Choice Questions
1. The United States Constitution is among the finest legal accomplishments in the history of the world.
Which of the following influenced Franklin, Jefferson, and the rest of the Founding Fathers?
(a) English common law principles
(b) The Iroquois’ system of federalism
(c) Both A and B
(d) None of the above
2. Which of the following parts of the modern legal system are “borrowed” from medieval England?
(a) Jury trials
(b) Special rules for selling land
(c) Following precedent
(d) All of the above
3. Union organizers at a hospital wanted to distribute leaflets to potential union members, but hospital
rules prohibited leafleting in areas of patient care, hallways, cafeterias, and any areas open to the public.
The National Labor Relations Board (NLRB), a government agency, ruled that these restrictions violated
the law and ordered the hospital to permit the activities in the cafeteria and coffee shop. What kind of law
was it creating?
(a) A statute
(b) Common law
(c) A Constitutional amendment
(d) Administrative regulation
4. If the Congress creates a new statute with the President’s support, it must pass the idea by a
____________ majority vote in the House and the Senate. If the President vetoes a proposed statute and
the Congress wishes to pass it without his support, the idea must pass by a ____________ majority vote
in the House and Senate.
(a) simple; simple
(b) simple; 2/3
(c) simple; 3/4
(d) 2/3; 3/4
5. What part of the Constitution addresses most basic liberties?
(a) Article I
(b) Article II
(c) Article III
(d) The Amendments
Essay Questions
1. Burglar Bob breaks into Vince Victim’s house. Bob steals a flat screen TV and laptop, and does a
significant amount of damage to the property before he leaves. Fortunately, Vince has a
state-of-the-art security system. It captures excellent images of Bob, who is soon caught by police.
Assume that two legal actions follow, one civil and one criminal. Who will be responsible for
bringing the civil case? What will be the outcome if the jury believes that Bob did in fact burglarize
Vince’s house? Who will be responsible for bringing the criminal case? What will be the outcome this
time if the jury believes that Bob did in fact burglarize Vince’s house?
Answer: The civil case will be brought by Victim, and the outcome of a successful case against Bob
2. As “The Oculist’s Case” indicates, the medical profession has faced large number of lawsuits for
centuries. In Texas, a law provides that, so long as a doctor was not reckless and did not intentionally
harm a patient, recovery for “pain and suffering” is limited to no more than $750,000. In many other
states, no such limit exists. If a patient will suffer a lifetime of pain after a botched operation, he
might recover millions in compensation.
Which rule seems more sensible to you – the “Texas” rule, or the alternative?
3. You Be the Judge: WRITING PROBLEM Should trials be televised? Here are a few
arguments to add to those in the chapter. You be the judge.
Arguments against Live Television Coverage: We have tried this experiment and it has failed.
Trials fall into two categories: Those that create great public interest and those that do not. No one
watches dull trials, so we do not need to broadcast them. The few that are interesting have all become
circuses. Judges and lawyers have shown that they cannot resist the temptation to play to the camera.
Trials are supposed to be about justice, not entertainment. If a citizen seriously wants to follow a case,
she can do it by reading the daily newspaper.
Arguments for Live Television Coverage: It is true that some televised trials have been unseemly
affairs, but that is the fault of the presiding judges, not the media. Indeed, one of the virtues of
television coverage is that millions of people now understand that we have a lot of incompetent
people running our courtrooms. The proper response is to train judges to run a tight trial by
prohibiting grandstanding by lawyers. Access to accurate information is the foundation on which a
democracy is built, and we must not eliminate a source of valuable data just because some judges are
ill-trained.
4. Leslie Bergh and his two brothers, Milton and Raymond, formed a partnership to help build a fancy
saloon and dance hall in Evanston, Wyoming. Later, Leslie met with his friend and drinking buddy,
John Mills, and tricked Mills into investing in the saloon. Leslie did not tell Mills that no one else was
investing cash or that the entire enterprise was already bankrupt. Mills mortgaged his home, invested
$150,000 in the saloon—and lost every penny of it. Mills sued all three partners for fraud. Milton and
Raymond defended on the ground that they did not commit the fraud, only Leslie did. The defendants
lost. Was that fair? By holding them liable, what general idea did the court rely on? What
Anglo-Saxon legal custom did the ruling resemble?
Answer: The partners are indeed liable. Bergh v. Mills, 763 P.2d 214 (Wyo. 1988). That is the essence
of a partnership: all partners are liable for the acts of any partner committed in the partnership’s
5. Kuehn v. Pub Zone and Soldano v. O’Daniels both involve attacks in a bar. Should the cases have
similar outcomes? If so, what result – in favor of the injured plaintiffs or the owner-defendants? Or,
should the cases have different outcomes? What are the key facts that lead you to believe as you do?
Discussion Questions
1. Do you believe that there are too many lawsuits in the United States? If so, do you place more blame
for the problem on lawyers or on individuals who go to court? Is there anything that would help the
problem, or will we always have large numbers of lawsuits?
2. In the 1980s, the Supreme Court ruled that it is legal for protesters to burn the American flag. This
activity counts as free speech under the Constitution. If the Court hears a new flag burning case in this
decade, should it consider changing its ruling, or should it follow precedent? Is following past precedent
something that seems sensible to you: always, usually, sometimes, rarely, or never?
3. When should a business be held legally responsible for customer safety? Consider the following
statements, and circle the degree to which you agree or disagree:
a. A business should keep customers safe from its own employees.
strongly agree agree neutral disagree strongly disagree
b. A business should keep customers safe from other customers.
strongly agree agree neutral disagree strongly disagree
c. A business should keep customers safe from themselves. (Example: an intoxicated
customer who can no longer walk straight.)
strongly agree agree neutral disagree strongly disagree
d. A business should keep people outside its own establishment safe if it is reasonable to do so.
strongly agree agree neutral disagree strongly disagree
4. In his most famous novel, The Red and the Black, the French author Stendhal (1783–1842) wrote:
“There is no such thing as ‘natural law’: this expression is nothing but old nonsense. Prior to laws, what is
natural is only the strength of the lion, or the need of the creature suffering from hunger or cold, in short,
need.” What do you think? Do legal positivism or legal realism seem more sensible to you?
Answer: Natural law should be a question in the back of our minds throughout the course, because it is a
reminder of morality, and law without morality is despotism. Nonetheless, Stendhal is obviously correct
that both strength and need help to create law. The important thing for this course is continually to apply
moral principles to the rules you study, and make your own determinations about whether natural law
really plays a role.
5. At the time of this writing, voters are particularly disgruntled. A good many seem to be disgusted with
government. For this question, we intentionally avoid distinguishing between Democrats and
Republicans, and we intentionally do not name any particular president. Consider the following
statements and circle the degree to which you agree or disagree:
a. I believe that members of Congress usually try to do the right thing for America.
strongly agree agree neutral disagree strongly disagree
b. I believe that Presidents usually try to do the right thing for America.
strongly agree agree neutral disagree strongly disagree
c. I believe that Supreme Court Justices usually try to do the right thing for America.
strongly agree agree neutral disagree strongly disagree