What indicated that the terms in the agreement at issue in this case were accepted? What were the appellant’s arguments in support of her claim? Which of those contentions did the court imply was irrelevant? Why? How did the court distinguish its conclusion in this case from its decision in Beck-Hummel?

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Hinkal v. Pardoe

Melinda Hinkal filed a suit in a Pennsylvania state court against personal trainer Gavin Pardoe and Gold’s Gym, Inc., alleging that] she sustained a serious neck injury while using a piece of exercise equipment under * * * Pardoe’s direction [at Gold’s Gym. Hinkal] alleges that she suffered a rupture of the C5 disc in her neck requiring two separate surgeries. [Gold’s and Pardoe] filed a Motion for Summary Judgment [asserting] that as a member of Gold’s Gym
[Hinkal] signed * * * a Membership Agreement [that] contains legally valid “waiver of liability” provisions, which in turn, bar [her] claims.The trial court concluded that the waiver language set forth in Gold’s Membership Agreement was valid and enforceable.[Hinkal] filed a timely appeal to this [state intermediate appellate] Court.* * * *
* * * Appellant [Hinkal] questions whether the waiver on the back page of her membership agreement is valid and enforceable. The language on the back page of the agreement reads in pertinent part as follows:WAIVER OF LIABILITY; ASSUMPTION OF RISK:
Member acknowledges that the use of Gold’s Gym’s facilities, equipment, services and programs involves an inherent risk of personal injury to Member. * * * Member voluntarily agrees to assume all risks of personal injury to Member * * * and waives any and all claims or actions that Member may have against Gold’s Gym * * * and any * * * employees * * * for * **
injuries arising from use of any exer–cise equipment * * * in supervised or unsupervised activities.The Gold’s Gym Membership Agreement signed by Appellant further instructs:Do not sign this Agreement until you have read both sides. The terms on each side of this form are a part of this Agree–ment. * * * By signing this Agreement, Member acknowledges that This Agreement is a contract that will become legally binding upon its acceptance.The signature line follows immediately and the words “Notice: See other side for important information” appear in bold typeface below the signature line.


* * * Appellant * * * asserts that her claim is not barred by the “exclusion clause” on the back of the membership agreement. * * * Appellant contends the waiver is invalid because the waiver language appeared on the back of the agreement, she never read or was told to read the back of the agreement, and the clause was not “brought home” to her in a way that could suggest she was aware of the clause and its contents. However,
* * * Appellant admitted she did not read the agreement prior to signing it. * * * Her failure to read her agreement does not render it either invalid or unenforceable. The law of Pennsylvania is clear. One who is about to sign a contract has a duty to read that contract first. * * * It is well established that, in the absence of fraud, the failure to read a contract before signing it is an unavailing excuse or defense and cannot justify an avoidance, modification or nullification of the contract. [Emphasis added.]
[To support her claim, Appellant cites Beck-Hummel v. Ski Shawnee, Inc., a previous case before this court, but] the
signed Gold’s Gym membership agreement cannot be compared in any way to the unread and unsigned disclaimer on a ski facility ticket in [Beck-Hummel.]* * * *

* * * In [Beck-Hummel,] the release provision was contained on the face of an entry ticket purchased for use of a ski facility. The ticket did not require a signature or an express acknowledgment that its terms were read and accepted
before using the facility. Nothing about the ticket ensured that a purchaser would be aware of its release provision. The purchasers were mere recipients of the document. In short, there was not sufficient evidence to find conclusively that there was a meeting of the minds that part of the consideration for use of the facility was acceptance of a release provision. In stark contrast, here there is a written, signed and acknowledged agreement between the parties.* * * *

Here, without reading it, Appellant signed the membership agreement, which included an unambiguous directive not to sign before reading both sides, a clear pronouncement that the terms on both sides of the form are part of the agreement, and a straightforward statement that the agreement constitutes the entire agreement between the parties. * * * We find no genuine issue as to any material fact or any error in the lower court’s determination that the waiver was valid and enforceable. Appellant is not entitled to relief based on [this] issue.* * * Order affirmed.

Legal Reasoning Questions

1. What indicated that the terms in the agreement at issue in this case were accepted?

2. What were the appellant’s arguments in support of her claim? Which of those contentions did the court imply was irrelevant? Why?

3. How did the court distinguish its conclusion in this case from its decision in Beck-Hummel?

Suppose that prior to this lawsuit, the new government of Honduras had enacted a law making it illegal to purchase weapons from foreign arms dealers. What doctrine of deference might lead a U.S. court to dismiss Robco’s case in that situation?

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International and Space Law


Robco, Inc., was a Florida arms dealer. The armed forces of Honduras contracted to purchase weapons from Robco
over a six-year period. After the government was replaced and a democracy installed, the Honduran government sought
to reduce the size of its military, and its relationship with Robco deteriorated. Honduras refused to honor the contract
and purchase the inventory of arms, which Robco could sell only at a much lower price. Robco filed a suit in a federal
district court in the United States to recover damages for this breach of contract by the government of Honduras. Using
the information presented in the chapter, answer the following questions.

1. Should the Foreign Sovereign Immunities Act (FSIA) preclude this lawsuit? Why or why not?

2. Does the act of state doctrine bar Robco from seeking to enforce the contract? Explain.

3. Suppose that prior to this lawsuit, the new government of Honduras had enacted a law making it illegal to purchase
weapons from foreign arms dealers. What doctrine of deference might lead a U.S. court to dismiss Robco’s case in
that situation?

4. Now suppose that the U.S. court hears the case and awards damages to Robco. The government of Honduras,
however, has no assets in the United States that can be used to satisfy the judgment. Under which doctrine might
Robco be able to collect the damages by asking another nation’s court to enforce the U.S. judgment?

What laws, if any, did Gibb violate by downloading the music and videos from the Internet? Was Gibb’s use of portions of copyrighted songs in his own music illegal? Explain. Can individuals legally post copyrighted content on their Facebook pages? Why or why not?

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Internet Law, Social Media, and Privacy


While he was in high school, Joel Gibb downloaded numerous songs to his smartphone from an unlicensed file-sharing
service. He used portions of the copyrighted songs when he recorded his own band and posted videos on YouTube and
Facebook. Gibb also used BitTorrent to download several movies from the Internet. Now he has applied to Boston
University. The admissions office has requested access to his Facebook password, and he has complied. Using the information presented in the chapter, answer the following questions.

1. What laws, if any, did Gibb violate by downloading the music and videos from the Internet?

2. Was Gibb’s use of portions of copyrighted songs in his own music illegal? Explain.

3. Can individuals legally post copyrighted content on their Facebook pages? Why or why not?

4. Did Boston University violate any laws when it asked Joel to provide his Facebook password? Explain

Explain who originally held the Property at law and in equity? Explain who now holds the property: (at law/in equity)? Explain whether the trustee in bankruptcy be able to force a sale of The Paddocks?

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Land Law

Jo, Kal, Larry, Marian and Ned are all vets and have been in practice together for many years. They decided to set up their own veterinary practice in a village near Thirsk. They bought a registered freehold house (‘The Paddocks’) in a nearby village where they could all live, keep their own animals, and set up their business. The transfer stated that the friends held The Paddocks as beneficial joint tenants, and the property was registered in their joint names.

In December 2020, Jo died unexpectedly after being trampled by cattle. She had made a will leaving all her property to the local animal rescue charity.

In March 2021, Kal was offered a lucrative job at a large national veterinary practice in Somerset. Kal left The Paddocks and went to Somerset, where he rented a cottage and started his new job. In April 2021 he emailed Larry and Marian at Larry’s email address, offering to sell his share of The Paddocks to them. He said that if that was not an attractive idea, The Paddocks should be sold so that his share of the sale proceeds could be released to him. Unfortunately, the email went into Larry’s junk mail folder and was not found for over a week.

Later in the evening after Kal had sent the email, he was killed in a road accident. He had made a will leaving all his property to Ned.

Last month, Larry was declared bankrupt. The trustee in bankruptcy insists that The Paddocks be sold immediately.

a) Explain who originally held the Property at law and in equity?

b) Explain who now holds the property:

a. at law

b. in equity?

c) Explain whether the trustee in bankruptcy be able to force a sale of The Paddocks?

QUESTION 4

Roxanne was the registered proprietor of a large house. The attic had been converted to a self-contained flat (‘the Flat’). Roxanne advertised the Flat in the following way:

‘Two-bedroomed top floor flat, suitable for a couple or two singles, available for immediate occupation at £550 per month.’

Eight months ago, sisters Angie and Valerie viewed the Flat, liked it, and signed a Licence Agreement which included the following terms:

1. Roxanne hereby agrees that Angie and Valerie (‘the Licensees’) may occupy the Flat as licensees for a period of two years starting 1 February 2021.

2. The licence fee for the Flat is £550 per month.

3. Roxanne may enter the Flat at any time without notice in the event of an emergency and may retain a key to the Flat for that purpose.

4. Roxanne reserves the right to introduce one other person to share the Flat with the Licensees.

5. The Licensees will keep the Flat in a good state of repair.’

Two weeks ago, Angie noticed that the bath was leaking and causing damage to the flooring and floorboards. She told Roxanne about this the following day, but Roxanne reminded Angie and Valerie of Clause 5 of the Licence Agreement. Angie and Valerie could not afford to call a plumber, so the leak remains.

Last week, Roxanne sold the house to Sarah, who was registered as its proprietor. Sarah has been in touch with Angie and Valerie to tell them that she plans to convert the building into one large house and that they must leave immediately. She also insisted that they repair the bathtub.

Explain to Angie and Valerie:

a) Whether they have a lease or a licence of the Flat, and why this matters;

b) Who is responsible for the repair to the bathtub; and

c) Whether they have to leave the Flat as instructed by Sarah.

 

Which expressions of an original work are protected by copyright law? Is all copying copyright infringement? If not, what is the test for determining whether a creative work has been unlawfully copied?

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The Public and International Environment


 A court compares the allegedly infringing work with the original work, and considers whether a “lay-observer” would believe that the copying was of protectable aspects of the copyrighted work. The inquiry involves distinguishing between the author’s expression and the idea or theme that he or she seeks to convey or explore, because the former is protected and the latter is not. The court must determine whether the allegedly infringing work is similar because it appropriates the unique expressions of the original work, or merely because it contains elements that would be expected when two works express the same idea or explore the same theme.

* * * A lay observer would not believe that Jackson’s album/CD and film copied protectable aspects of Winstead’s book. Jackson’s album/CD is comprised of 16 individual songs, which explore drug-dealing, guns and money, vengeance, and other similar clichés of hip hop gangsterism. Jackson’s fictional film is the story of a young man who turns to violence when his mother is killed in a drive-by shooting. The young man takes revenge by killing the man who killed his mother, and then gets rich by becoming an “enforcer” for a powerful criminal. He takes up with a woman who eventually betrays him, and is shot to death by her boyfriend, who has just been released from prison. The movie ends with his younger brother vowing to seek vengeance. Winstead’s book purports to be autobiographical and tells the story of a young man whose beloved father was a Bishop in the church. The protagonist was angry as a child because his
stepmother abused him, but he found acceptance and self-esteem on the streets of Newark because he was physically powerful. He earned money robbing and beating people, went to jail, returned to crime upon his release, and then made even more money. The protagonist discusses his time at Rahway State Prison in great and compelling detail. The story
ends when the protagonist learns that his father has passed away; he conveys his belief that this tragedy has led to his redemption, and he hopes that others might learn from his mistakes.* * *

Although Winstead’s book and Jackson’s works share similar themes and setting, the story of an angry and wronged protagonist who turns to a life of violence and crime has long been a part of the public domain [and is there–fore not protected by copyright law].

Winstead argues * * * that a protagonist asking for God’s help when his father dies, cutting drugs with mixing agents to maximize profits, and complaining about relatives who are addicts and steal the product, are protectable, but these things are not unique. To the extent that Jackson’s works contain these elements, they are to be expected when two works express the same idea about “the streets” or explore the same theme. Winstead argues that not every protagonist whose story concerns guns, drugs, and violence in an urban setting winds up in prison or loses a parent, but this argument only serves to illustrate an important difference between his book and Jackson’s film. Jackson’s protagonist never spends any time in prison, whereas Winstead’s protagonist devotes a considerable part of his story to his incarcerations.In addition, Winstead’s book and Jackson’s works are different with respect to character, plot, mood, and sequence of events. Winstead’s protagonist embarks on a life of crime at a very young age, but is redeemed by the death of his beloved father. Jackson’s protagonist turns to crime when he is much older and only after his mother is murdered. He winds up dead at a young age, unredeemed. Winstead’s book is hopeful; Jackson’s film is characterized * * * by moral apathy. It is true that both works involve the loss of a parent and the protagonist’s recognition of the parent’s importance in his life, but nowhere does Jackson appropriate any–thing unique about Winstead’s expression of this generic topic.
Winstead contends that direct phrases from his book appear in Jackson’s film. * * * He emphasizes these phrases: “Yo, where is my money at,” “I would never have done no shit like that to you,” “my father, my strength was gone,” “he was everything to me,” and “I did not know what to do,” but, like the phrases “putting the work in,” “get the dope, cut the dope,” “let’s keep it popping,” and “the strong take from the weak but the smart take from everybody,” they are either common in general or common with respect to hip hop culture, and do not enjoy copyright protection. The average person reading or listening to these phrases in the context of an overall story or song would not regard them as unique and protectable. Moreover, words and short phrases do not enjoy copyright protection. The similarity between Winstead’s book and the lyrics to Jackson’s songs on the album/CD is even more tenuous. “Stretching the dope” and “bloodshot red eyes” are com–mon phrases that do not enjoy copyright protection. A side-by-side comparison of Winstead’s book and the lyrics from Jackson’s album/CD do not support a claim of copyright infringement.
For the foregoing reasons, we will affirm the order of the District Court dismissing [Winstead’s] complaint.
Legal Reasoning Questions

1. Which expressions of an original work are protected by copyright law?

2. Is all copying copyright infringement? If not, what is the test for determining whether a creative work has been unlawfully copied?

3. How did the court in this case determine whether the defendant’s work infringed on the plaintiff ’s copyright?

. Under which theories of product liability can Kolchek sue Porter to recover for Litisha’s injuries? Would privity of contract be required for Kolchek to succeed in a product liability action against Great Lakes?Explain.

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Strict Liability and Product Liability

Shalene Kolchek bought a Great Lakes Spa from Val Porter, a dealer who was selling spas at the state fair. Kolchek
signed an installment contract. Porter then handed her the manufacturer’s paperwork and arranged for the spa to be
delivered and installed for her. Three months later, Kolchek left her six-year-old daughter, Litisha, alone in the spa.
While exploring the spa’s hydromassage jets, Litisha stuck her index finger into one of the jet holes and was unable to
remove her finger from the jet.
Litisha yanked hard, injuring her finger, then panicked and screamed for help. Kolchek was unable to remove
Litisha’s finger, and the local police and rescue team were called to assist. After a three-hour operation that included
draining the spa, sawing out a section of the spa’s plastic molding, and slicing the jet casing, Litisha’s finger was freed.
Following this procedure, the spa was no longer functional. Litisha was taken to the local emergency room, where she
was told that a bone in her finger was broken in two places. Using the information presented in the chapter, answer
the following questions.

1. Under which theories of product liability can Kolchek sue Porter to recover for Litisha’s injuries?

2. Would privity of contract be required for Kolchek to succeed in a product liability action against Great Lakes?Explain.

3. For an action in strict product liability against Great Lakes, what six requirements must Kolchek meet?

4. What defenses to product liability might Porter or Great Lakes be able to assert?

What defense will Ragged Mountain probably assert? The central question in this case is whether the state statute establishing that skiers assume the risks inherent in the sport bars Elaine’s suit. What would your decision be on this issue? Why?

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 Tort Law


Elaine Sweeney went to Ragged Mountain Ski Resort in New Hampshire with a friend. Elaine went snow tubing down
a run designed exclusively for snow tubers. There were no Ragged Mountain employees present in the snow-tube area
to instruct Elaine on the proper use of a snow tube. On her fourth run down the trail, Elaine crossed over the center line
between snow-tube lanes, collided with another snow tuber, and was injured. Elaine filed a negligence action against
Ragged Mountain seeking compensation for the injuries that she sustained. Two years earlier, the New Hampshire state
legislature had enacted a statute that prohibited a person who participates in the sport of skiing from suing a ski-area
operator for injuries caused by the risks inherent in skiing. Using the information presented in the chapter, answer the
following questions.

1. What defense will Ragged Mountain probably assert?

2. The central question in this case is whether the state statute establishing that skiers assume the risks inherent in the
sport bars Elaine’s suit. What would your decision be on this issue? Why?

3. Suppose that the court concludes that the statute applies only to skiing and not to snow tubing. Will Elaine’s law–
suit be successful? Explain.

4. Now suppose that the jury concludes that Elaine was partly at fault for the accident. Under what theory might her
damages be reduced in proportion to the degree to which her actions contributed to the accident and her resulting
injuries?

Would a person who adheres to the principle of rights consider it ethical for Stilton not to disclose the potential risk of cancellation to investors? Why or why not? Under utilitarianism, are Stilton’s actions ethical? Why or why not? What difference does it make if most of the policies are legitimate?

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Business Ethics

James Stilton is the chief executive officer (CEO) of RightLiving, Inc., a company that buys life insurance policies at
a discount from terminally ill persons and sells the policies to investors. RightLiving pays the terminally ill patients
a percentage of the future death benefit (usually 65 percent) and then sells the policies to investors for 85 percent of
the value of the future benefit. The patients receive the cash to use for medical and other expenses. The investors are
“guaranteed” a positive return on their investment, and RightLiving profits on the difference between the purchase and
sale prices. Stilton is aware that some sick patients might obtain insurance policies through fraud (by not revealing the
illness on the insurance application). Insurance companies that discover this will cancel the policy and refuse to pay.
Continues Debate This . . . Executives in large corporations are ultimately rewarded if their companies do well, particularly as evidenced by rising stock prices. Consequently, should we let those who run corporations decide what
level of negative side effects of their goods or services is “acceptable”?
Stilton believes that most of the policies he has purchased are legitimate, but he knows that some probably are not.
Using the information presented in this chapter, answer the following questions.

1. Would a person who adheres to the principle of rights consider it ethical for Stilton not to disclose the potential risk of cancellation to investors? Why or why not?

2. Using Immanuel Kant’s categorical imperative, are the actions of RightLiving, Inc., ethical? Why or why not?

3. Under utilitarianism, are Stilton’s actions ethical? Why or why not? What difference does it make if most of the policies are legitimate?

4. Using the Business Process Pragmatism一 steps discussed in this chapter, discuss the decision process Stilton should
use in deciding whether to disclose the risk of fraudulent policies to potential invest

Why does this statute raise equal protection issues instead of substantive due process concerns? What are the three levels of scrutiny that the courts use in determining whether a law violates the equal protection clause? Which standard of scrutiny, or test, would apply to this situation? Why?

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Business and the Constitution

A state legislature enacted a statute that required any motorcycle operator or passenger on the state’s highways to wear a
protective helmet. Jim Alderman, a licensed motorcycle operator, sued the state to block enforcement of the law. Alderman asserted that the statute violated the equal protection clause because it placed requirements on motorcyclists that were not imposed on other motorists. Using the information presented in the chapter, answer the following questions.

1. Why does this statute raise equal protection issues instead of substantive due process concerns?

2. What are the three levels of scrutiny that the courts use in determining whether a law violates the equal protection
clause?

3. Which standard of scrutiny, or test, would apply to this situation? Why?

4. Applying this standard, is the helmet statute constitutional? Why or why not?

Can a business manager’s religious beliefs legally factor into the business’s hiring and treatment of same-sex partners? Why or why not? Must business owners in all states provide the same benefits to employees in a same-sex union as they do to heterosexual couples?

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Marriage Equality and the Constitution

The debate over same-sex marriage has been raging across the country for years. The legal issues raised by marriage equality involve privacy rights and equal protection. Although marriage equality may not appear at first glance to be business related, it is an important legal issue for managers. Companies like Barilla Pasta, Chick-fil-A, Exxon Mobil, and
Target Corporation have lost significant business for purportedly supporting anti-gay organizations and legislation.
The Definition of Marriage Before 1996, federal law did not define marriage, and the U.S. government recognized any marriage that was recognized by a state. Then Congress passed the Defense of Marriage Act (DOMA), which explicitly defined marriage as a union of one man and one woman. DOMA was later challenged, and a number of federal courts found it to be unconstitutional in the context of bankruptcy, public employee benefits, and estate taxes. In 2013, the United States Supreme Court struck down part of DOMA as unconstitutional.aToday, once again, no federal law defines marriage Bans on Same-Sex Marriage Eliminated by the Supreme Court During this period, federal courts became increasingly likely to invalidate state bans on same-sex marriage. In 2013, a federal district court held that Utah’s same-sex marriage ban was unconstitutional.b In 2014, federal district courts in Arkansas, Mississippi, and Oklahoma struck down state same-sex marriage bans.c Moreover, public sentiment on the issue had shifted, and more states recognized the rights of same-sex couples. By 2015,thirty-seven states, as well as the District of Columbia, had legalized same-sex marriage. In 2015, the United States Supreme Court determined that the remaining state-level prohibitions on same-sex marriage were unconstitutional. In a landmark decision, the Court ruled that the Fourteenth Amendment requires individual states to (1) issue marriage licenses to same-sex couples and (2) recognize same-sex marriages performed in other states.d The landmark Supreme Court decision requiring all states to recognize same-sex marriage means that businesses must make adjustments. Company policies need to be revised to specify how same-sex partners will be
treated in terms of family and medical leave, health insurance coverage, pensions, and other benefits.

Business Questions
1. Can a business manager’s religious beliefs legally factor into the business’s hiring and treatment of same-sex partners? Why or why not?

2. Must business owners in all states provide the same benefits to employees in a same-sex union as they do to heterosexual couples?