978-1285860381 Chapter 1 Solution Manual Part 2

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Analyzing a Case

Case: Kuehn v Pub Zone1,

Facts: Maria Kerkoulas owned the Pub Zone bar, frequented by many motorcycle gangs, and knew

from her own experience and conversations with police that some of the gangs, including the Pagans,

were dangerous and prone to attack customers for no reason. Kerkoulas posted a sign prohibiting any

motorcycle gangs from entering the bar while wearing “colors,” that is, gang insignia. Based on her

experience, she believed that gangs without their colors were less prone to violence.

Rhino, Backdraft, and several other Pagans pushed past the bouncer wearing colors and approached the

bar. Although she saw their colors, Kerkoulas served them one drink. They later moved towards the

back of the pub, and Kerkoulas believed they were departing. In fact, they followed a customer named

Karl Kuehn to the men’s room, where without any provocation they savagely beat him, causing serious

injuries.

Kuehn sued the Pub Zone. The jury awarded him $300,000 in damages. The trial court judge overruled

the jury’s verdict and granted judgment for the Pub Zone, meaning that the tavern owed nothing. The

judge ruled that the pub’s owner could not have foreseen the attack on Kuehn, and had no duty to

protect him from an outlaw motorcycle gang. Kuehn appealed.

Issue: Did the Pub Zone have a duty to protect Kuehn from the Pagans’ attack?

Holding: Yes. Whether a duty exists depends upon an evaluation of a number of factors including the

nature of the underlying risk of harm, the opportunity and ability to exercise care to prevent the harm,

the comparative interests of, and the relationships between or among the parties, and, based on

considerations of public policy and fairness, the societal interest in the proposed solution.

Since the possessor [of a business] is not an insurer of the visitor’s safety, he is ordinarily under no

duty to exercise any care until he knows or has reason to know that the acts of the third person are

occurring, or are about to occur. He may, however, know or have reason to know, from past

experience, that there is a likelihood of conduct on the part of third persons in general which is likely

to endanger the safety of the visitor, even though he has no reason to expect it on the part of any

particular individual.

The totality of the circumstances presented in this case give rise to a duty on the part of the Pub Zone

to have taken reasonable precautions against the danger posed by the Pagans as a group. There was no

reason to suspect any particular Pagan of violent conduct, but Kerkoulas knew the gang collectively

had engaged in random violence. Thus, Kerkoulas had knowledge, as the result of past experience and

from other sources, that there was a likelihood of conduct on the part of third persons in general that

was likely to endanger the safety of a patron at some unspecified future time. A duty to take

precautions against the endangering conduct thus arose.

Question: What kind of case is this, civil or criminal?

Question: What is the difference?

Question: Who is the plaintiff and who the defendant?

Question: What is the key issue in this civil suit?

Question: Why does Pub Zone claim it had no duty to Kuehn?

Question: What did the trial court conclude?

1 364 N.J.Super.301, 835 A.2d 692 Superior Court of New Jersey, Appellate Division, 2003

Question: What did the appellate court decide?

Question: Why did the court decide that Pub Zone had a duty?

Answer: Kerkoulas’ sign prohibiting patrons from wearing gang colors, and the Pub Zone’s

Question: What should Pub Zone have done to satisfy its duty?

Answer:

Train bouncers and all other staff to be aware of patrons from whom such violence is

You Be the Judge: Soldano v. O’Daniels2

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 they 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

2 141 Cal. App. 3d 443, Court of Appeal of California, 5th Appellate District, 1983.

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.

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?

Question: What is an argument for imposing this duty?

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

(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

(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

(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

(d) 2/3; 3/4

5. What part of the Constitution addresses most basic liberties?

(a) Article I

(b) Article II

(d) Amendments

Case 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 burgle

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 burgled Vince’s house?

Answer: The civil case will be brought by Victim, and the outcome of a successful case against

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, for example, 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

5. Kuene v. Pub Zone and Soldano v. O’Daniels both involve attacks in a bar. Should they end in the

same way? If so, which way—in favor of the injured plaintiffs or owner-defendants? Or, should

they have different outcomes? What are the key facts that lead you to believe as you do?

Discussion Questions

1. 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?

2. When should a business be held legally responsible for customer safety? Consider the following

statements, and consider the degree to which you agree or disagree:

a. A business should keep customers safe from its own employees.

b. A business should keep customers safe from other customers.

c. A business should keep customers safe from themselves. (Example: an intoxicated

customer who can no longer walk straight.)

d. A business should keep people outside its own establishment safe if it is reasonable to do so.

3. 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? Does 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

4. Before becoming a Supreme Court justice, Sonia Sotomayor stated in a speech to students: “I

would hope that a wise Latina woman with the richness of her experiences would more often than

not reach a better conclusion than a white male who hasn’t lived that life.” During her Senate

confirmation proceedings, this statement was heavily probed and criticized. One senator said that

the focus of the hearings was to determine whether Judge Sotomayor would “decide cases based

only on the law as made by the people and their elected representatives, not on personal feelings or

politics.” (Sotomayor convinced many of her critics, because the Senate confirmed her by a vote of

68–31.) Should judges ignore their life experiences and feelings when making judicial decisions?

5. Consider the following statements, and consider the degree to which you agree or disagree:

a. I believe that members of Congress usually try to do the right thing for America.

b. I believe that Presidents usually try to do the right thing for America.

c. I believe that Supreme Court Justices usually try to do the right thing for America.