Footnote (a-a) located in Chapter/Section (b.b) ►
1-1 1.7► Webster’s New Collegiate Dictionary, G.&C. Merriam Company, Springfield, Mass., 1977.
1-2 1.7► Black’s Law Dictionary, 6th ed., West Publishing Co., St. Paul, Minn., 1990, p. 884.
1-3 1.7► 115 S.Ct. 1043 1043 (1995),
2-1 2.1► Other sources of congressional authority also may be found in various places within the Constitution.
2-2 2.1► The case that opened the door was N.L.R.B. v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937). By 1942 the Court had approved federal regulation, under the Commerce Clause, of a market quota of wheat assigned to a single farmer who grew a small amount, primarily for consumption on his own farm. Wickard v. Filburn, 317 U.S. 111 (1942).
2-3 2.1► For a recent example of the use of the Commerce Clause to justify legislation that is not a regulation of interstate commerce in the ordinary sense, note the following language of the Americans with Disabilities Act (29 U.S.C. § 651, infra):
29 U.S.C. § 651. Congressional statement of findings and declaration of purpose and policy.
(a) The Congress finds that personal injuries and illnesses arising out of work situations impose a substantial burden upon, and are a hindrance to, interstate commerce in terms of lost production, wage loss, medical expenses and disability compensation payments.
(b) The Congress declares it to be its purpose and policy, through the exercise of its powers to regulate commerce among the several States and with foreign nations and to provide for the general welfare, to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources—.
2-4 2.1► U.S. v. Lopez, 514 U.S. 549.
2-5 2.1► It should not be assumed that even apparently unequivocal language, such as “no law,” means what it says. Defamation and pornography, for example, are not protected speech and Congress’s regulation of them under the Commerce Clause would not likely run afoul of First Amendment limits.
2-6 2.1► New York v. U.S., 505 U.S. 144 (1992), in which the Supreme Court rejected legislation declaring that a state that fails to provide for the disposal of all internally generated low-level radioactive waste must take title to and possession of it and become liable for damages suffered by the generator as a result of the state’s failure to promptly take possession of it; and Printz v. U.S., 117 S.Ct. 2365 (1997) where the Brady Handgun Violence Protection Act commanded local law enforcement officers to conduct background checks on prospective handgun purchasers.
2-7 2.1► It should be remembered that in most cases the Constitution authorizes, but does not mandate, federal action. Likewise, a grant of power to the Congress usually does not specifically forbid the states from acting in the same area.
2-8 2.1► 450 U.S. 662 (1981).
2-9 2.1► See also City of Philadelphia v. New Jersey, 437 U.S. 617 (1978) where similar logic was used to invalidate a New Jersey statute that prohibited the importation of solid or liquid waste that originated or was collected outside the state.
Likewise, state statutes attempting to protect local producers of products such as milk and apples from out- of-state competition are often invalidated. Baldwin v. G.A.F. Seelig, Inc., 294 U.S. 511 (1935); H. P. Hood & Sons v. DuMond, 336 U.S. 525 (1949), milk; Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333 (1977), apples.
2-10 2.1► Bispham’s Principles of Equity, 10th Ed., Banks Law Publishing Co. 1924, at p 9
2-11 2.1► Hinds et al. v. Minus, 64 S.W. 2d 1093, 1095 (Tex. Civ. App. 1933).
2-12 2.1► For further discussion of the remedy of specific performance, see Section 6.32.
2-13 2.3.1► Research for this chapter is primarily from three sources with material used generally being based upon comments common to all three:
Law Without Lawyers, Victor H. Li, Westview Press, 1978, 0-89158-160-X
Law and Justice, Phillip M. Chen, Dunellen Publishing, 1973, 0-8424-0050-8
Contemporary Chinese Law, Cohen, Harvard University Press, 1970, 674-16675-2
2-14 2.3.3► Attributed to the Huai-nan hung-lieh chieh, circa 125 B.C., as discussed in Law and Justice, p15.
2-15 2.3.3► Quote from 6th century Confucian scholar as noted in Law Without Lawyers, at page 13.]
3-1 3.2► Benzel v. Keller Ind., Inc., 567 N.W.2d 552 (Neb. 1997).
3-2 3.2► Sommorvolo v. Grevlos, 518 N.W.2d 733 (S.D. 1994).
3-3 3.2► Kudlacek v. Flat Spa, 509 N.W.2d 603 (Neb. 1994). In accord see Commercial Union Ins. Co v. Boston Edison Co., 591 N.E.2d 165 (Mass. 1992).
3-4 3.2► Daubert v. Merrell Dow Pharmaceuticals, 113 S.Ct. 2786 at 2794 (1993). Some nonexclusive factors the court may consider in determining if the scientific evidence is reliable include: (1) testability, (2) whether it has been published or otherwise reviewed by peers, (3) known or potential rate of error, (4) maintenance of standards controlling the technique’s operation, and (5) general acceptance in the scientific community. Id at 2796–2797. The Daubert factors also apply to the testimony of engineers and other experts who are not scientists. Kumho Tire Co., Ltd. v. Carmichael, 119 S.Ct. 1167 (1999).
3-5 3.2► Federal Rules of Evidence Rule 801 (1997).
3-6 3.2► Only in rare instances will a trial judge invoke on his own initiative a rule of exclusion.
3-7 3.2► Sometimes a point in issue will be whether or not a given remark by X was or was not made. Under such conditions, anyone who heard the statement made can testify to the fact. Such testimony is not hearsay, since no effort is being made to establish the truth or falsity of X’s statement, but simply whether it was uttered.
3-8 3.2► For a complete listing of the exceptions to the hearsay rule in federal courts, see Federal Rules of Evidence Rule 803 (1997).
3-9 3.2► McKinney (1963). See also 28 U.S.C. (FRE) 803(6) (amended 1997), which provides an exception to the hearsay rule for records of regularly conducted activity, and 28 U.S.C. (FRE) 902 (amended 1988), which allows some documents, such as certified copies of public records, to be “self-authenticating.”
3-10 3.2► Spitz v. Brickhouse, 123 N.E.2d 117 (Ill. App. 1954). To the same effect see also Wick v. Murphy, 54 N.W.2d 805 (Minn. 1952) where a written contract for architectural services contained no agreement as to the architect’s compensation if the work was abandoned.
4-1 4.2► The original Court of Claims, and current U.S. Court of Federal Claims are Article I courts, created by and thus serving at the pleasure of Congress, rather than an Article III court created by the Constitution. Thus , it is technically possible for Congress to overrule a decision of the U.S. Court of Federal Claims.
5-1 5.1► 729 SW2d 768
5-2 5.5► LDA, Inc. v. Cross, 279 S.E.2d 409, (W.Va. 1981).
5-3 5.5► See also In re Ferguson, 183 B.R. I22 (Bkrtcy. N.D. Texas 1995) in which a contract for “The removal and installation of 10,000 feet of bordering for a price of $12,894.02 and installation of carpet on 69 stairs at a price of $345” was entire and not devisable. But see also St. John v. Barker, 638 S.W. 2d 239 (Tex. App. 1982) aff. as mod., Durham v. St. John, 645 S.W.2d 261 (Tex. 1983) where the court found that a contract for a major home remodeling, by its very nature, is susceptible to division (in this case the job of building and installing cabinets from the remainder of the job.)
5-4 5.8► Contracts, Calimari & Perillo, 2nd Ed., West, 1977 at page 6
5-5 5.8► Franklin Fire Ins. Co. v. Noll 115 Ind.App. 289, 58 NE2d 947, 949, 950.
5-5 5.9► See, for example, Anderson Construction Col., Inc. v. Lyon Metal Prod., 370 So.2d 935 (Miss. 1979) holding a subcontract for the supply of lockers for a school construction subject to the statute of frauds.
6-1 6.2► The terms “infants” and “minors” are generally used interchangeably in the law.
6-2 6.3► There are instances of contracts that clearly restrain trade and yet are held to be perfectly valid; in such cases the restraint involved is either partial or is otherwise limited in its operation (for example, in time or place).
6-3 6.3► Thorpe v. Collins, 245 Ga. 77, 263 S.E.2d 115 (1980).
6-4 6.3► On a similar note, see Rogers v. Webb, 558 N.W. 2d 155 (Iowa 1977), where a married woman and a man she was involved with entered into a contract whereby the man would help the woman procure a divorce in return for 25 percent of the marital assets secured by the woman in the dissolution. Finding preservation of the marital relation to be fundamental public policy, the court refused to enforce the agreement. See also Hoffman v. Boyd, 698 So.2d 346 (Fla. App. 1997) where a contract between two persons, both married to others, that the man would support the woman if he did not marry her was void.
6-5 6.3► Byrne v. Laura, 60 Cal. Rptr. 2nd 908 (1997).
6-6 6.3► Boot v. Beelen, 480 S.E. 2d 267 (Ga. App. 1997).
6-7 6.4► 42 W. Va. 63, 24 S.E. 580 (1896). See also the often cited case of Lucy v. Zehmer, 196 Va. 493, 84 S.E.2d 516 (1954), in which a contract to sell a farm (which contract was written on a napkin in a bar) was upheld.
6-8 6.5► 158 Mass. 194, 33 N.E. 495 (1893).
6-9 6.6► Hurl. & C., 906 (Ct. Ex. 1864).
6-10 6.7► Hamer v. Sidway, 124 N.Y. 538 (1891).
6-11 6.7► L.R. 9 App. Cas. 605 (House of Lords, 1884).
6-12 6.7► Chicaro Fertilizer Co. v. Dunan, 91 Md. 144, 46 A. 347, 351 (1900).
6-13 6.7► See Nassoiy v. Tomlinson, 148 N.Y. 326, 42 N.E. 715 (1896). It is interesting to note that at least in Georgia a notation on the check is not necessary. See Souchak v. Close, 132 Ga. App. 248, 207 S.E. 2d 708 (1974); and Hodson Gas System, Inc. v. Atlanta Airlines Terminal Corp., 408 S.E. 2d 454 (Ga. App. 1991).
7-1 7.1► Phoenix Power Partners, L.P. v. Colorado Public Utilities Comm., 952 P.2d. 359 (Colo. 1998).
7-2 7.1► People v. Metcalf, 79 Cal. App. 3d 1, 144 Cal. Rptr. 657 (1978). For other illustrations of novation and discussion of the principle, see United Security Corp. v. Anderson Aviation Sales, Inc., 23 Ariz. App. 273, 532 P.2d 545 (1975) and Hemisphere Nat. Bank v. District of Columbia, 412 A.2d 31 (D.C. Cir. 1980).
7-3 7.2► See, for example, Estate of Timko v. Oral Roberts Evangelistic Association, 215 N.W.2d 750 (Ct. App. Mich. 1974).
7-4 7.2► In re Park Avenue Associates, Inc., 182 Bankruptcy Rptr. 690 (50 NY 1995). See also, King v. Trustees of Boston Univ., 647 N.E. 2d 1196 (Mass. 1995) in which a pledge of his papers after his death by Dr. Martin Luther King, Jr. to Boston University was held binding on his estate.
8-1 8.1► Dayan v. McDonald’s Corp., 466 N.E.2d 958 (Ill. App. 1st Dist., 1984)
8-2 8.1► Bertera Chrysler Plymouth, Inc. v. Chrysler Corp., 992 F.Supp.674 (D.C. Mass. 1998) (applying Mich. law).
8-3 8.5► 2 Haw. 166, 627 P.2d 1132 (1981).
9 - <<< none►►
10-1 10.1► Allendale Mutual Insurance Co. v. Excess Insurance Company, Ltd., 992 F. Supp. 271 (S.D. N.Y. 1997).
2Head v. Hook, 285 S.E.2d 718 (Ga. 1982).
10-2 10.4► A contract is not ambiguous merely because the parties disagree as to its proper construction. Betz v. Fagan, 926 S.W. 2d 432 (Mo. App. 1998); Beiger Heritage Corp. v. Montandon, 691 N.W. 2d 1334 (Ct. App. Ind., 1998).
10-3 10.4► See Transit Casualty Co. in Receivership v. Certain Underwriters at Lloyd’s of London, 963 S.W.2d 392 (Mo. App. 1998).
10-4 10.5► The parol evidence rule, would preclude the introduction of any oral evidence to contradict the terms of the written agreement.
10-5 10.5► 44 Okla. 32, 142 P. 1036 (1914).
10-6 10.6► See discussion of conditions, Chapter 8.
10-7 10.7► Transit Casualty Company in Receivership v. Certain Underwriters at Lloyd’s of London, 963 S.W. 2d. 392 (Mo. App. 1998). See also, U.S. v. Pielago, 135 F.3d 703 (11th Cir., 1998) where the same principle was applied to a proffer and plea agreement in a criminal case.
10-8 10.7► Silver Dollar City, Inc. v. Kitsmiller Construction C., Inc., 931 S.W. 2d. 909 (Mo. App. 1996).
10-9 10.7► In re Kevin W. Emrick Farms, Inc. v. Firstar Bank Burlington, N.A., 201 B.R. 790 (U.S. Bankrpcy Ct. Ill. 1996); In re Grove Rich Realty Corp., 200 B.R. 502 (U.S. Bankrpcy Ct. E.D. N.Y., 1996).
11-1 11.3► A material breach of one aspect of a contract has been held to be a material breach of the whole contract. U.S. v. First Dakota National Bank, 137 F.3d 1007 (8th Cir. 1998, applying S.D. law). See also, Cooper v. Brough of Wenonah, 977 F.Supp. 305 (D.N.J. 1997) where the court said that under New Jersey law, a material breach that concerns the essence of the contract may justify rescission.
11-2 11.3► Cleveland-Cliffs Iron v. Chicago & N.W. Transport. Co., 581 F Supp. 1144, (D. Mich. 1984).
11-3 11.3► W.F. Maganon Corp. v. Diamond Mfg. Co., Inc., 580 F. Supp. 1299, (D. S.C. 1984). See also, Community Builders v. Indian Motorcycle, 692 N.E. 2d 964, (Mass. App. 1998), where a limited partnership’s failure to make timely payment of a final $50,000 owed was held to justify a termination of an agreement, which occurred just a few days after the payment became due.
11-4 11.3►Franklyn v Lovelock, 18 Q.B. 371 (E.C.L.R. vol. 83, 1846), "If one party refuses to perform the contract on his part, or disables himself from performing it, there is an end of all conditions precedent."
11-5 11.3► 4Nuvest S.A. v. Gulf and Western Industries, Inc., 649 F.2d 943 (2d Cir. 1981). This problem, and the same result, also often occurs between real estate brokers and clients. See, for example, Green v. Bowers, 493 S.E. 2d 709 (Ga. App. 1997).
11-6 11.6► Fowler v. Insurance Co. of North America, 155 Ga. App. 439, 270 S.E.2d 845 (1980). See also, LeRoy v. Sayers, 635 N.Y.S.2d 217 (N.Y. App. Div. 1995), in which the court found a sufficient issue of fact to bar summary judgment when a summer rental house in the Hamptons was damaged by fire, repaired, and the tenant repudiated the lease claiming severe allergies to the smoke and the new paint.
11-7 11.6► U.S. v. General Douglas MacArthur Senior Village, Inc., 508 F.2d 377, 381 (2d Cir. 1974).
11-8 4.8► Pallardy v. Link’s Landing Inc., 536 S.W.2d 512, 515 (Mo. App. 1976).
11-9 11.10► For a case attempting to distinguish a release from a covenant not to sue see Mercantile National Bank v. Founders Life Assurance Co., 222 S.E.2d 368 (Ga. 1976). See also, Kobbeman v. Oleson, 574 N.W. 2d. 633 (S.D. 1998).
11-10 1112► Orange Improvements Partnership v. Cardo, Inc., 984 F.Supp. 85 (D. Conn. 1997, applying Conn. law). In San-ann Service, Inc. v. Bedingfield, 305 So.2d 374 (Ala. 1975), the Supreme Court of Alabama noted that this rule can be given operative effect only when the conduct of the party is found to be positive and unequivocable. See also County of Morris v. Fauver, 707 A.2d 958 (N.J. 1998).
11-11 11.13► Smith Constr. Co. v. Knights of Columbus Council No. 1226, 519 P.2d 286 (N.M. 1974). See also, In re Caldor, Inc., 217 Bkrtcy. 121 (Bkrtcy. S.D. N.Y. 1998).
11-12 11.13► Martin v. Elmwood Medical Center, 707 So.2d 1287 (La. App. 1998).
11-13 11.14► Associated Mechanical Contractors, Inc. v. Martin K. Eby Construction Co., Inc., 983 F.Supp 1121 (1997, apply
12-1 12.2► J.P. Stravens Planning Associates, Inc. v. City of Wallace, 928 P.2d 46 (Idaho App. 1996).
12-2 12.5► Lock v. Warner Bros. Inc., 66 Cal. Rptr. 2d 921 (Cal. App. 1997), a case involving a suit between actors Sondra Locke and Clint Eastwood and a movie studio, in which Locke claimed that the studio acted with bad faith when it declined to develop her proposed film projects or hire her to direct.
ing Ga. Law).
13-1 13.2► Valentine et al. v. Patrick Warren Constr. Co., 263 Wis. 143, 56 N.W.2d 860 (1953).
13-2 13.4► See, for example, Maraldo Asphalt Paving Inc. v. Harry D. Osgood Co., Inc., 53 Mich. App. 324, 220 N.W.2d 50 (1974); and Martin v. Phillips, 122 N.H. 34, 440 A.2d 1124 (1982).
14-1 14.2► See, for example, Tytell v. Battery Beer Dist., 608 NYS.2d 225 (App. Div. 1994) where these exceptions arose when a delivery truck backed into a bridge support, debris fell on a pedestrian, and he then sued the owner, despite the contractor’s status as an independent contractor. Duties imposed on owners and contractors by statute may also be nondelegable. See Elezaj v. P.J. Carlin Const. Co. 638 NYS.2d 356 (App. Div. 1996).
14-2 14.2► See Daniels v. Mead Coated Board, Inc. 858 F. Supp. 1103 (D. Ala. 1994) applying Alabama law, where the court noted that the mere monitoring of the work of an independent contractor to ensure contract compliance is not "control" for the purpose of establishing liability of an owner.
14-3 14.2► Horner v. Hammons, 916 S.W.2d 810 (Mo. App. 1995).
14-4 14.2► A relationship analogous to owner–contractor may exist between contractor and subcontractor when the contractor does not retain control over the operations of the subcontractor. Lillis v. City of New York, 641 N.Y.S.2d 358 (App. Div. 1996).
14-5 14.2► Thus, a roofer hired at a certain contract price was held to be an independent contractor when the owner did not control or direct the work in Barron v. Webb, 698 So.2d 727 (La. App. 1997) where the homeowner was sued by one who stepped on a roofing nail on the owner’s premises, left there by the roofer.
14-6 14.5► The implication arises from words and conduct of the parties and from circumstances of the particular case.
14-7 14.5► New York General Obligations Law, §5—703 (McKinney 1978).
14-8 14.6► There is a marked distinction between (1) an estoppel to deny the validity of a contract and (2) ratification in fact of such contract. In the latter instance, the principal is bound because he intended to be; in the former, he is bound against his will in order that justice may be done in regard to the innocent third party.
14-9 14.9► That is, he will be presumed to know, whether or not he has actual knowledge.
14-10 14.11► “delegato potestor non potest delagari.”
14-11 14.12► A principal who is terminating the authority of his agent should attempt to ensure that interested third parties also receive notification.
14-12 14.12► Ogunwo v. Amer. Nat. Ins. Co., 936 P.2d 606 (Colo. App. 1997).
14-13 14.12► Peacock v. American Agronomics Corporation, 422 So.2d 55 (Fla. App. 1982).
14-14 14.12► Becket v. Welton Becket & Assoc., 39 Cal. App.3d 815, 114 Cal. Rptr. 531 (1974).
14-15 14.12► 264 App. Div. 617, 35 N.Y.S.2d 826, 828–29 (2d Dept. 1942), affirmed, 291 N.Y. 77 (1943).
15-1 15.1► This act, Sec. 101 (6), originally approved by the National Conference of Commissioners on Uniform State Laws in 1914 and revised in 1994, has now been adopted in one form or another by all states except Louisiana.
15-2 15.1► An exception is the Federal Bankruptcy Act, which treats partnerships as legal persons, and the firm itself may be adjudged a bankrupt, either separately or jointly with one or more of its general partners.
3See Section 17.10.
15-3 15.3► Partners are not entitled to charge each other or the firm for personal services unless there is a special agreement permitting them to do so. However, the Uniform Partnership Act, § 401(h) allows a surviving partner “reasonable compensation” for his efforts in winding up the firm’s affairs.
15-4 15.7► See, for example, New York Civil Practice Law and Rules, § 1025 (1997).
15-5 15.8► In return for admission to the firm, the new member may have promised his copartners or a retiring member that preexisting claims would be paid in full. Such a promise could presumably be enforced against the incoming partner by the creditors concerned, using a third-party-beneficiary approach.
15-6 15.9► The partners, of course, are free to ignore the fact that the winding-up date originally agreed upon has been reached and may simply carry on indefinitely. Continuance under these circumstances really amounts to an implied agreement for a partnership at will under the same terms as initially set.
15-7 15.9► Hansel v. Hansel, 446 A.2d 1294 (Pa. Super. 1982).
15-8 15.9► Should the firm’s assets prove inadequate to meet liabilities, the individual partners must, under certain circumstances, themselves contribute to make up the difference. See the subsequent discussion in this article.
15-9 15.10► The Uniform Limited Partnership Act, was originally approved by the National Conference of Commissioners on Uniform Laws in 1916 and underwent revision in 1976. It has now been adopted in some form by all states except Louisiana
16-1 16.3► See, for example, Calif. Corp. Code § 13400–13410 (1997). Sec. 13401 specifically permits professional incorporation of persons licensed by the California Board of Architectural Examiners.
16-2 16.4► The California Penal Code § 7 defines, for the purpose of the Penal Code, person to include corporations. Likewise, the whoever in a statute providing that “whoever causes the death of another human being by the negligent operation of a vehicle is guilty of a Class E felony” covers corporations as well as natural persons. State v. Richard Knutson, Inc., 537 N.W.2d 420 (Wis. App. 1995), rev. den. 540 N.W.2d 200.
16-3 16.4► 197 Cal. Rptr. 3 (1983).
16-4 16.4► See, for example, Cal. Penal Code § 672.
16-5 16.4► See, for example, California Penal Code § 387 (1994), which provides:
Corporations; limited liability companies; managers; serious concealed dangers; disclosure; manager liability
(a) Any corporation, limited liability company, or person who is a manager with respect to a product, facility, equipment, process, place of employment, or business practice, is guilty of a public offense punishable by imprisonment in the county jail for a term not exceeding one year, or by a fine not exceeding ten thousand dollars ($10,000), or by both that fine and imprisonment; or by imprisonment in the state prison for 16 months, two, or three years, or by a fine not exceeding twenty-five thousand dollars ($25,000); or by both that fine and imprisonment, but if the defendant is a corporation or a limited liability company the fine shall not exceed one million dollars ($1,000,000), if that corporation, limited liability company, or person does all of the following:
(1) Has actual knowledge of a serious concealed danger that is subject to the regulatory authority of an appropriate agency and is associated with that product or a component of that product or business practice.
(2) Knowingly fails during the period ending 15 days after the actual knowledge is acquired, or if there is imminent risk of great bodily harm or death, immediately, to do both of the following:
(A) Inform the Division of Occupational Safety and Health in the Department of Industrial Relations in writing, unless the corporation, limited liability company, or manager has actual knowledge that the division has been so informed.
Where the concealed danger reported pursuant to this paragraph is subject to the regulatory authority of an agency other than the Division of Occupational Safety and Health in the Department of Industrial Relations, it shall be the responsibility of the Division of Occupational Safety and Health in the Department of Industrial Relations, within 24 hours of receipt of the information, to telephonically notify the appropriate government agency of the hazard, and promptly forward any written notification received.
(B) Warn its affected employees in writing, unless the corporation, limited liability company, or manager has actual knowledge that the employees have been so warned.
16-6 16.5► Both large and small corporations upon occasion find it necessary or desirable to borrow money, commonly issuing bonds as evidence of indebtedness. Interest on these obligations is payable to the corporation’s creditors before any dividends to stockholders.
16-7 16.6► There are some corporate instrumentalities created by the federal government. The Tennessee Valley Authority offers an example.
16-8 16.6► Special kinds of corporate organizations, insurance companies for example, are subject to a separate set of statutory provisions as are nonprofit corporations.
16-9 16.6► Partly to prevent confusion to the public and partly to protect prior rights of a corporation already operating in the state, a new corporation will not be permitted to take a name identical or substantially similar to that of another corporation.
16-10 16.7► See, for example, Smith v. Halliburton Co., 879 P.2d 1198 (N.M. App. 1994) construing Section 53-18-9, N.M. Stat. Anno., which is based on Sec. 146 of the Model Business Corporation’s Act.
16-11 16.8► Miesch v. Ocean Dunes Homeowners’ Assoc. Inc., 464 S.E.2d 64 (N.C. App. 1995) rev. den. 467 S.E.2d 717.
16-12 16.8► In re Spokane Concrete Products, Inc., 892 P.2d 98 (Wash. 1995).
16-13 16.8► Stroud v. Grace, 606 A.2d 75 (Del. Supr. 1992).
16-14 16.9► Usually preferred stockholders receive dividends at a fixed rate, while the dividend rights of common stockholders are limited in the long run by the earning power of the company.
16-15 16.9► 6 N.J. Eq. 736, 126 A 302, 304–305 (1924).
16-16 16.9► Katzowitz v. Sidler, 24 N.Y.2d 512, 301 N.Y.Supp.2d 470 (1976). But preemptive rights do not allow shareholders the power to preclude the corporation from issuing additional shares by claiming that the issuance of such shares would coerce them into buying them to prevent dilution. King v. Douglass, 973 F. Supp. 707 (S.D. Texas 1996, applying Delaware law).
16-17 16.9► The matter of stockholder litigation will be dealt with in Section 18.11.
16-18 16.10► Smith v. Van Gorkom, 488 A 2d 858 (Del. 1985).
16-19 16.10► 38 F.3d 682 (CA. 3 1994)
16-20 16.11► Kelly ex rel Michigan Natural Resources Comm. v. Tiscornia, 827 F. Supp. 1315 (W.D. Mich. 1993, applying Mich. law). Compton v. Com., 473 S.E.2d 95 (Va. App. 1996).
16-21 16.11► See, for example, U.S. v. Park, 421 U.S. 658 (1975) where the Supreme Court of the United States upheld the conviction of the president of an 874-store food market chain for violation of the Food, Drug and Cosmetic Act for sale of food contaminated by rodent excrement even without proof of his knowledge, since it was his duty to prevent or correct such violations.
16-22 16.12► In Re Woodings-Verona Tool Works, Inc., 157 B.R. 575 (Bkrtcy W.D. Pa. 1993), noting that under Pennsylvania law cumulative voting is the rule unless the articles of incorporation expressly provide otherwise.
16-23 16.12► CTS Corp. v. Dynamics Corp. of America, 481 U.S. 69 (1987).
16-24 16.12► Conn. Gen. Stat., § 33–715 amend. 1994, effective Jan. 1, 1997.
16-25 16.12► 433 U.S. 186 (1977).
16-26 16.13► Subsidiaries are organized, as a rule, to handle a given phase of the parent’s business, for example, its foreign activities. Thus, the X Company, incorporated in New York, operates retail outlets in Great Britain and Ireland through X Company, Ltd.
16-27 16.14► Thus characterized in Kelley, Glover & Vale v. Heitman, 220 Ind. 625, 44 N.E.2d 981, 985 (1942).
16-28 16.16► 1 U.S.C., 1101 et. seq. amended (1994).
17-1 17.4► American Ins. Co. v. Bateman, 186 S.E.2d 547 (Ga. App. 1971).
17-2 17.4► See National Fire Ins. Co. v. Kinney, 141 S. 350 (Ala. 1932). Also, All Phase Constr. Corp. v. Federated Mut. Ins. Co., 340 N.E.2d 835 (Ind. App. 1976).
17-3 17.5► United States v. South-Eastern Underwriters Association, 322 U.S. 533.
17-4 17.5► Many years ago a Virginia statute regulating foreign insurance companies was found not to offend the commerce clause of the federal constitution because “issuing a policy of insurance is not a transaction of commerce.” Paul v. Virginia, 8 Wall 168 (1869).
17-5 17.5► 15 U.S.C. §§ 1011–1015.
17-6 17.5► Barnhardt Marine Ins., Inc. v. New England Intern. Sur. of America, Inc., 961 F.2d 529 (5th Cir.1992).
17-7 17.5► Fuller v. Olson, 907 F. Supp. 257 (W.D. Mich. 1995), stating the criteria to be : (1) whether the practice has the effect of transferring or spreading policyholder’s risk, (2) whether the practice is an integral part of the policy relationship between insurer and insured, and (3) whether the practice is limited to entities within the insurance industry.
17-8 17.6► An unusual case is Davis v. United Services Auto. Asso., 51 Cal.Rptr.2d 566 (1996) in which an all-risk property policy that did not specifically exclude contractor negligence, but did contain an exclusion for earth movement, was held not to exclude coverage for contractor negligence for failure to properly prepare subgrade soils and reinforce a foundation slab. The court found that but for the contractor negligence, the earth movement would not have caused the loss.
17-9 17.6► Selcke v. Duncavage, 639 N.E.2d 168 (Ill. App. 1994). See also, Alex Robertson Co. v. Imperial Casualty and Indem. Co., 10 Cal.Rptr.2d 165 (1992) where this distinction was fatal to a general contractor’s claim that he was an “insured” under an architect’s professional liability policy.
17-10 17.6► Excepted employments vary with the jurisdictions but normally include farm workers, domestics, and “casual” employees.
17-11 17.6► So defined in Oregon Revised Statutes, Chap. 731.126.
17-12 17.7► 233 F. Supp. 214, 217 (D. Ore. 1964). See also, United States v. United States Fidelity and Guaranty Company, 601 F.2d 1136 (10th Cir. 1979), which contains an appendix providing examples of coverages and exclusions that specifically refer to architects and engineers.
See also Comstock Ins. Co. v. Thomas A. Hanson & Associates, Inc., 550 A.2d 731 (Md. App. 1988) in which a “cost estimate” exclusion was held inapplicable to an architect’s erroneous determination that a motel could be built within an existing warehouse structure at a cost of $12,500 per unit. The court found that the loss on the project did not result from errors in cost estimating itself, but rather from an underlying design defect and the decision that the construction could take place within the existing structure.
17-13 17.7► Gogerty v. General Accident, Fire and Life Insurance Corp., 238 Cal.App.2d 574,48 Cal.Rptr.37 (1966).
17-14 17.9► Subcontractors also are very likely to be policyholders. It is certainly not unusual to find liability insurance protecting the subcontractor against its contractual obligation to indemnify the general contractor “against liability imposed upon the contractor by law for damages because of injury to or destruction of property caused by accident due to any act or omission of the subcontractor, his agents or employees, arising out of and during the prosecution of the work of the type subcontractor as contemplated under this agreement.”
17-15 17.► Contractor’s liability insurance policies often exclude coverage of “pollutants” or “contaminant” discharge. A claim by a contractor’s customer to the effect that her hypersensitivity to chemicals caused her to be injured by fumes from standard paint and glue was thus held excluded from coverage. Amer. States Ins. Co. v. Nethery, 79 F.3d 473 (5th Cir.1996). And, in Board of Regents of Univ. of Minn. v. Royal Ins. Co., 503 N.W.2d 486 (Minn. App. 1993) the court found an exclusion of coverage for discharge of pollutants “into the atmosphere” to include those into air within a building.
17-16 17.9► Casper v. American Guarantee & Liability Insurance Co., 408 Pa. 426, 184 A. 2d 247 (1962). But also see Moffat v. Metropolitan, 238 F. Supp 165 (MD. Pa. 1964), where damages to property caused by an emanation of destructive gases caused by oxidation were held to be the result of an “accident” despite the fact that the culm banks were created and maintained within the general custom and practice of the anthracite industry.
17-17 17.9► Foxley & Co. v. U.S. Fidelity & Guaranty Co., 277 N.W.2d 686 (Neb. 1979). And see Lewis v. Easley, 614 So.2d 780 (La. App. 1993) where a roofer’s faulty repair work was held not to be an accident within the meaning of a contractor’s general liability policy.
17-18 17.9► 68 N.M. 409, 362 P.2d 790 (1961).
17-19 17.9► Yakia Cement Products Co. v. Great American Insurance, 680 P.2d 69 (Wash. App. 1984). Also see Medina v. Transamerica, 680 P.2d 69 (1984), where a negligent issuance or revocation of a building permit was held to constitute an accident.
17-20 17.9► Schnoll & Son v. Standard Accident Insurance Co., 190 Pa. Super. 360, 154 A.2d 431 (1959).
17-21 17.10► 248 F.2d 850 (7th Cir. 1957).
17-22 17.10► 135 Cal. Rptr. 120 (Cal. App. 1976). See also, J. F. Shea Co., Inc. v. Hydes Plumbing and Heating, 619 P.2d 1207 (Nev. 1980), where an employee of the subcontractor caused a fire while welding. The court there found that the contractor could recover under his builder’s risk insurance for his losses as well as the subcontractor and his employee. The contractor’s insurer was not entitled to subrogation against the subcontractor’s insurer, as the liability for this type of risk fell under the builder’s risk policy of the contractor and not under the public liability or property damage insurance of the subcontractor. This case was followed by National Union Fire Ins. v. Engineering Science, 884 F. 2d 1208 (9th Cir. 1989), where the court used the same logic in not allowing the insurance company to subrogate against one of its policyholders if they insured both parties under separate policies.
17-23 17.10► Turner v. State Farm Fire & Casualty Co., 614 So.2d 1029 (Ala. 1993).
17-24 17.10► See Henning Nelson Constr. Co. v. Fireman’s Fund Am. Life Ins. Co., 383 N.W.2d 645 (Minn. 1986).
17-25 17.10► Loretto-Utica Properties Corp. v. Douglas Co., 642 N.Y.S.2d 117 (Sup. Ct. App. Div. 1996).
18-1 18.3► See, for example, Central National Ins. Co. v. Ins. Co. of North America, 522 N.W.2d 39 (Iowa 1994).
18-2 18.6► Except where some specialized instrument is stipulated by law, the so-called “AIA forms” are in general use for both public and private construction work. It is understood that these bond forms were the product of cooperation between surety companies and the American Institute of Architects.
18-3 18.6► 40 U.S.C., starting with § 270(a) amend. (1994).
18-4 18.7► An example is afforded by the following quotation from “Document No. A-311 (Formerly 107) 1963 Edition,” as approved by the American Institute of Architects: “Whenever Contractor shall be, and declared by Owner to be in default under the Contract, the Owner having performed Owner’s obligations thereunder, the Surety may promptly remedy the default or shall promptly
(1) Complete the Contract in accordance with its terms and conditions, or
(2) Obtain a bid or bids for submission to Owner for completing the Contract in accordance with its terms and conditions, and upon determination by Owner and Surety of the lowest responsible bidder, arrange for a contract between such bidder and Owner and make available as work progresses (even though there should be a default or a succession of defaults under the contract or contracts of completion arranged under this paragraph) sufficient funds to pay the cost of completion less the balance of the contract price, but not exceeding, including other costs and damages for which the Surety may be liable hereunder, the amount set forth in the first paragraph hereof. The term ‘balance of the contract price,’ as used in this paragraph, shall mean the total amount payable by Owner to Contractor under the Contract and any amendments thereto, less the amount properly paid by Owner to Contractor.”
18-5 18.7► See Continental Realty Corp. v. Andrew J. Crevolin Co., 380 F. Supp. 246 (S.D. W.Va. 1974).
18-6 18.7► See Fort Smith Structural Steel Co. v. Western Surety Co., 247 F. Supp. 674 (W.D. Ark. 1965), where a provision in a contractor’s performance bond that “payment thereon shall be postponed until all claims of the Arkansas State Highway Comm. hereon have been paid in full” was held to be without legal force in view of the repeal of the statute which required the quoted language in the bond.
18-7 18.7► See Nelson Roofing & Contracting, Inc. v. C. W. Moore Co., 245 N.W.2d 866 (Minn. 1976), where it was held that a one-year statute of limitations was only a minimal requirement and did not preclude the parties to a public contractor’s bond from agreeing to a longer period in the bond. Followed by Westbrook State Bank v. Aetna, 437 N.W. 2d 738 (Minn. App.1989).
18-8 18.7► 533 S.W.2d 43 (Tex. Civ. App. 1975). To the same effect, see also General Insurance of America v. Century Indemnity Co., 384 So.2d 1305 (Fla. App. 1980).
18-9 18.7► 68 Ga. App. 515, 23 S.E.2d 490 (1942). See also Airtol Eng. Co., Inc., v. U.S. Fidelity & Guaranty Co., 345 So.2d 1271 (La. App. 1977) where the plaintiff made payments in derogation of the contract, which called for payments to be made after materials were in place. Payment had been made for some shop drawings and some materials that the evidence indicated had not yet been installed. The court found that since these payments were in derogation of the job-site-installed clause, they were not covered by the bond and thus the surety was not liable.
19-1 19.1► 29 U.S.C. 141.
19-2 19.1► 29 U.S.C. 167.
19-3 19.1► Interstate commerce within the contemplation of federal labor relations laws may include building construction and activities. In Plumbers, Steamfitters, R.P.F. and A. v. County of Door, 359 U.S. 354 (1958), a labor dispute at a $450,000 building project, approximately half of which was the cost of materials brought from outside the state, was held to have a sufficient effect on commerce to be within the jurisdiction of the National Labor Relations Board.
19-4 19.1► Westinghouse Electric Corp., (1967) 163 NLRB 723.
19-5 19.1► Warren Rural Electric Co-op, Inc., (1974) 209 NLRB 325; American Steel Buck Corp. (1953) 107 NLRB 554.
19-6 19.1► Laudadio v. White Const. Co., 163 F.2d 383 (2nd Cir., 1947).
19-7 19.1► Westinghouse Electric Corp. v. NLRB, 424 S.2d 1151 (7th Cir., 1970).
19-8 19.1► 29 U.S.C. § 201-219
19-9 19.1► Dolan v. Day & Zimmerman, Inc., 65 F. Supp. 923 (D. Mass. 1946).
19-10 19.2► 42 U.S.C. § 2000 e.
19-11 19.2► 42 U.S.C. § 1981.
19-12 19.2► Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986).
19-13 19.2► Burlington Industries, Inc. v. Ellerth, 118 S.Ct. 2257 (1998); and Faragher v. City of Boca Raton, 118 S.Ct. 2275 (1998).
Also actionable under Title VII is same-sex sexual harassment in the workplace. See Oncale v. Sundowner Offshore Services, Inc., 118 S.Ct. 998 (1998).
19-14 19.2► Pub L.No. 102-166, Stat.1071.
19-15 19.2► 29 U.S.C. 621 et. seq.
19-16 19.2► O’Connor v. Consolidated Coin Caterers Corp., 116 S.Ct. 1307 (1996). In this case the terminated worker was 56, his replacement, 40. The court noted, however, that when a worker is terminated and replaced by one “insignificantly younger” an inference of age-based decision making could not be made, since the act prohibits discrimination based on age, not membership in the protected class.
19-17 19.3► 115 S.Ct. 2097 (1995).
19-18 19.3► The court sent the regulation at issue in Adarand back to the lower courts to determine if it could withstand this scrutiny.
19-19 19.3► Piscataway v. Taxman, no cite.
19-20 19.4► 42 U.S.C. § 12101–12213.
19-21 19.6► 29 U.S.C. § 651 et. seq.
19-22 19.6► 29 C.F.R. § 1910.28.
19-23 19.6► The detail involved in regulation of scaffolds is typical. Ladders, hard hats, and a multitude of objects, chemicals, procedures and the like are subject to similar rules.
19-24 19.6► Marshall v. Barlow’s, Inc., 436 U.S. 307 (1978).
19-25 19.6► Donovan v. Mica Const. Co., 699 F.2d 431 (8th Cir., 1983).
The applicable standard read:
Sides of trenches in hard or compact soil, including embankments, shall be shored or otherwise supported when the trench is more than 5 feet in depth and 8 feet or more in length. In lieu of shoring, the sides of the trench above the 5-foot level may be sloped to preclude collapse, but shall not be steeper than a 1-foot rise to each foot horizontal. When the outside diameter of a pipe is greater than 6 feet, a bench of 4-foot minimum shall be provided at the toe of the sloped portion.
29 CFR § 1926.652 (c).
20-1 20.4► As the term “independent contractor” is used here, A (the owner) controls only the final result and not the means by which it is accomplished; A is not privileged to interfere with the details of performance.
20-2 20.5► New York State, for example, has set up a special court of claims to handle suits brought against it. See also Article 12, Constitution of the State of Louisiana, Section 10A, which states that “neither the state, a state agency, nor a political subdivision shall be immune from suit and liability in contract or for injury to person to property.”
The Louisiana Legislature, however, added the following limitations:
A. No suit against the state or a state agency or political subdivision shall be instituted in any court other than a Louisiana state court.
B. (1) In all suits for personal injury to any one person, the total amount recoverable, including all derivative claims, exclusive of property damages, medical care and related benefits and loss of earnings, and loss of future earnings, as provided in this Section, shall not exceed five hundred thousand dollars.
(2) In all suits for wrongful death of any one person, the total amount recoverable, exclusive of property damages, medical care and related benefits and loss of earnings or loss of support, and loss of future support, as provided in this Section, shall not exceed five hundred thousand dollars. La.R.S. 13:5106 (1995).
20-3 20.5► 104 Ariz. 514, 456 P.2d 376 (1969)
20-4 20.5► 231 Kan. 783, 469 P.2d 400 (1982)
20-5 20.5► Cases affirming the doctrine of sovereign community for discretionary functions include Thompson v. Dept. of Hwy. Safety and Motor Vehicles, 692 So.2d 272 (Fla. App. 1997); and State Dept. of Trans. and Public Fac. v. Sanders, 944 P.2d 453 (Alaska 1997).
20-6 20.5► Morales v. New Jersey Academy of Aquatic Sciences, 694 A.2d 600 (N.J. Super. 1997) construing the N.J. Charitable Immunity Act, NJSA 2A:53A-7.
20-7 20.5► Ouachita Wilderness Inst., Inc. v. Mergen, 947 S.W.2d 780 (Ark. 1997).
21-1 21.2► Graphic examples of this arise in the unfortunate context of child sexual abuse litigation. See, for example, J.S. v. R.T.H., 693 A.2d 1191 (N.J. Super. 1997), a pedophilia case, and Gloria “X” v. Gibbs, 659 N.Y.S.2d 349 (A.D. 1997), involving sexual abuse by a babysitter.
21-2 21.2► An unusual variant on this is Huddleston v. Infert. Center of America, 700 A.2d 453 (Pa. Super. 1997), in which a surrogate mother sued a surrogacy clinic when the sperm donor murdered the surrogate child.
21-3 21.2► This would exclude slander, libel, and so on.
21-4 21.10► Hughes v. Moore, 214 Va. 27, 197 S.E. 2d 214 (1973) explained by Ruth v. Fletcher, 377 S.E.2d 412 (1989) See also Culbert v. Samsons Super Markets, Inc., 444 A.2d 433 (Me. 1982), where the court allowed a suit for emotional distress without a requirement of impact and without the plaintiff being the zone of danger. And see Moldonado v. National Acme Co., 73 F.3d 642 (Sixth Cir. 1996, applying Mich. law) recognizing that Michigan had abolished both the “zone of impact” and “physical impact” rules. To the contrary is Kun v. Finnegan, Henderson, Farabow, Garrett and Dunne, 949 F. Supp. 13 (D.C. 1996).
21-5 21.10► 355 N.E.2d 315 (Mass. 1976).
22-1 22.6► See Estate of Coleman v. Casper Concrete Co., 939 P.2d 233 (Wyo. 1997) where the doctrine was said to be inimical to a claim of negligence in the maintenance of a traffic signal.
22-2 22.6► 271 S.W.2d 906 (Ky. App. 1954). See also Knight v. Otis, 596 F.2d 84 (1979), where the applicability of the doctrine to a premature closure of an elevator door was said to be a jury question.
22-3 22.6► McCann v. Baton Rouge General Hospital, 276 So.2d 259 (La. 1973), explained by Zend v. Lincoln Gen. Hospital, 404 So.2d 1337 at 1342 (1981).
22-4 22.6► See Sams v. Wal-Mart Stores, Inc., 491 S.E.2d 517 (Ga. App. 1997) where the court warned that res ipsa loquitur should be applied with caution and only in extreme cases.
22-5 22.6► Wilson v. Stilwill, 309 N.W.2d 898 (Mich. 1981).
22-6 22.9► 248 N.Y. 339 (1928).
22-7 22.12► For example, note the following provision of the Louisiana Civil Code.
Article 2323. Comparative Fault
A. In any action for damages where a person suffers injury, death, or loss, the degree or percentage of fault of all persons causing or contributing to the injury, death, or loss shall be determined, regardless of whether the person is a party to the action or a nonparty, and regardless of the person’s insolvency, ability to pay, immunity by statute, including but not limited to the provisions of R.S. 23:1032, or that the other person’s identity is not known or reasonably ascertainable. If a person suffers injury, death, or loss as the result partly of his own negligence and partly as a result of the fault of another person or persons, the amount of damages recoverable shall be reduced in proportion to the degree or percentage of negligence attributable to the person suffering the injury, death, or loss.
B. The provisions of Paragraph A shall apply to any claim for recovery of damages for injury, death, or loss asserted under any law or legal doctrine or theory of liability, regardless of the basis of liability.
C. Notwithstanding the provisions of Paragraphs A and B, if a person suffers injury, death, or loss as a result partly of his own negligence and partly as a result of the fault of an intentional tortfeasor, his claim for recovery of damages shall not be reduced. (1996).
22-8 22.12► 13 Cal.3d 809, 119 Cal.Rptr. 858, 861 (1975).
22-9 22.12► See also Daly v. General Motors Corp., 20 Cal.3d 725, 144 Cal. Rptr. 380, 575 P.2d 1162 (1978), where the California Supreme Court held the principles announced in Li applicable to an action in strict liability and products liability cases. Most states hold that products liability is not a question of user’s negligence, rather who may best spread the cost to society.
22-10 22.12► Whether or not comparative law principles apply in the strict (nonnegligence) liability area is problematic. In Jingle v. VW of America, 975 F. Supp. 576 (1997) a federal court concluded that Vermont law on the question was undecided. But, comparative negligence was held not available in the products liability context under Pennsylvania law in Parks v. Allied Signal, Inc., 113 F.3d 1327 (CA 3 1997).
22-11 22.13► The doctrine of last clear chance is subsumed under the general process of assessing liability in proportion to fault where the doctrine of comparative negligence has been substituted for that of contributory negligence. Li v. Yellow Cab Company of California, 532 P.2d 1226, 119 Cal. Rptr. 858 (1975).
22-12 22.13► For an excellent discussion of the last-clear-chance principle against the factual background of the typical auto-pedestrian mishap, see Correnti v. Catino, 115 Conn. 213 (1932). See also McNamee v. Woodbury Congregation, 475 A.2d 262 (Conn. 1984) where the adoption of comparative negligence was said to abolish the last-clear-chance doctrine. But the doctrine may also play a role in a comparative negligence situation. See Fouts v. Builder’s Transport, Inc., 474 S.E.2d 746 (Ga. App. 1996) where the court noted that last clear chance merged into the rule of apportioning damages in the context of the doctrine of comparative negligence.
22-13 22.15► Primes v. Tyler, 331 N.E.2d 723 (Ohio 1975). The repeal and replacement of the California Guest Statute produced the following curious variation.
Owner as passenger; liability
No person riding in or occupying a vehicle owned by him and driven by another person with his permission . . . has any right of action for civil damages against the driver of the vehicle or against any other person legally liable for the conduct of the driver on account of personal injury to or the death of the owner . . . during the ride, unless the plaintiff in any such action establishes that the injury or death proximately resulted from the intoxication or willful misconduct of the driver.
Calif. Vehicle Code § 17158.
23-1 23.2► Thus, no duty existed when a visitor to a funeral home, finding the parking lot full, parked across the street, and was hit by a car as he recrossed the street. Santoleri v. Knightly, 663 N.Y.S.2d 505 (Sup. Ct. 1997).
23-2 23.2► 21 Minn. 207 (1875).
23-3 23.2► Richards v. Cincinnati West Baptist Church, 680 N.E.2d 191 (Ohio App. 1996). This case also noted that the doctrine of dangerous instrumentality does not apply, however, where the dangerous instrumentality is not on or adjacent to a public place, and thus could not have lured the trespassing children onto the property. In this case a child climbed into a church yard and was injured when a water drenching machine fell on him.
23-4 23.2► New York, for example. Santoleri v. Knightly, 663 N.Y.S.2d 505 (Sup. Ct. 1997).
23-5 23.2► N. Rowland v. Christian, 70 Cal. Rptr. 97, 443 P.2d 561 (1968). See also Pridgen v. Boston Housing Authority, 308 N.E. 2d 467 (Mass. 1974), where “all lawful visitors” are grouped as a class and Webb. v. City and Burrough of Sitka, 561 P.2d. 731 (Alaska 1977), where the court abolished the classifications of trespasser, licensee, and invitee in relation to property owner liability. See also Soule v. Mass. Elec., 390 N.E. 2d 719, (Mass. 1979), which distinguished child from adult trespassers.
23-6 23.2► Odette’s, Inc. v. Com., Dept. of Conservation and Natural Res., Bureau of State Parks, 699 A.2d 775 (Pa. 1997).
23-7 23.2► 213 Minn. 476, 7 N.W.2d 325 (1942).
23-8 23.2► Spall v. Janota, 406 N.E.2d 378 (Ind. App. 1980). See also Pugel v. Monheimer, 922 P.2d 1377 (Wash. App. 1996).
23-9 23.2► Gladin v. Von Engehn, 575 P.2d 418 (Colo. 1978).
23-10 23.2► Breeding v. Koch Carbon, Inc., 726 F. Supp. 645 (1989, applying Va. law).
23-11 23.2► Keck v. Longoria, 771 S.W.2d 808 (Ark. App. 1989).
23-12 23.2► Urosevic v. Hayes, 590 S.W.2d 77 (Ark. App. 1979).
23-13 23.2► Some courts draw a distinction where the repairs are gratuitous and say that the landlord’s liability for negligence extends only to the tenant and the members of his family in permanent residence with him. Another approach where the repair undertaking is not pursuant to contractual obligation is to hold the defendant landlord liable only for gross negligence.
23-14 23.3► The application of the strict liability doctrine has been greatly extended in recent years, but not to engineers in general. See Sweet v. Gribaldo, Jones & Assoc., 40 Cal. App.3d 573, 115 Cal. Rptr. 99 (1974) and LaJolla Village v. Superior Court of San Diego, 212 Cal. App. 3d 1131 (1989) to the same effect regarding subcontractors.
23-15 23.3► See Clay v. Missouri Highway and Transportation Comm., 951 S.W.2d 617 (Mo. App. 1997).
23-16 23.3► Bedell et ux v. Goulter et al., 199 Ore. 344, 261 P.2d 842 (1953).
23-17 23.4► 217 N.Y. 382 (1916).
23-18 23.4► The Second Restatement of Torts, Section 395, states that “a manufacturer who fails to exercise reasonable care in the manufacturer of a chattel which, unless carefully made, he should recognize as involving an unreasonable risk of causing physical harm to those who use it for a purpose for which the manufacturer should expect it to be used and those whom he should expect to be endangered by its probable use, is subject to liability for physical harm caused to them by its lawful use in a manner and for a purpose for which it is supplied.”
23-19 23.5► In a medical malpractice case, the use of expert testimony is allowed to establish that as a matter of common knowledge the incident in question would not have occurred had the defendant physician adhered to proper standards. Bucklew v. Gross Bard, 435 At.2d 1150 (N.J. 1981). Similarly, see Bellardini v. Krikorian, 537 A.2d 700 (N.J.,1988).
24-1 24.1► 174 N.E 441, 444 (N.Y. 1931)
24-2 24.1► 866 A.2d 270 (Pa. 2005)
24-1 24.5► See, by way of example, New York Estates, Powers and Trusts Law, § 5-4.2 (McGivney 1967).
24-2 24.5► See, for example, id. § 11-3.2. Incidentally, the same statutory provision deals also with the other side of the story and stipulates that no cause of action for injury to person or property shall be lost because of the death of the person liable for the injury.
24-3 24.5► Thus, New York Estates, Powers and Trusts Law § 5-4.1 (McGivney 1967) provides: “The personal representative . . . may maintain an action to recover damages for a wrongful act, neglect or default which caused the decedent’s death against a person who would have been liable to the decedent by reason of such wrongful conduct if death had not ensued . . .”
24-4 24.5► St. Louis, I.M. & Southern R. Co. v. Craft, 237 U.S. 648, 658 (1914).
24-5 24.6► It has not, however, completely expired. See Gordon v. State Farm Ins., 700 S.2d 1117 (La. App. 1997) recognizing the doctrine but concluding that it did not preclude a wife from suing the husband’s liability insurer, and Little v. Economy Preferred Ins. Co., 675 N.E.2d 1048 (Ill. App. 1997), recognizing the doctrine but holding that it did not bar an action for contribution by a third party.
24-6 24.6► Brown v. Brown, 409 N.E.2d 717 (Mass. 1980). Also abrogating interspousal immunity are Schlueter v. Schlueter, 929 S.W.2d 94 (Tex. Ct. App. 1996), and Steve H. v. Wendy S., 67 Cal.Rptr. 90 (1997).
25-1 25.2► The American Institute of Architects in its 1987 form of owner–architect agreement has incorporated these provisions, clarifying areas of responsibility during the construction phase:
2.6.5. The Architect
shall visit the site at intervals appropriate to the stage of construction or as
otherwise agreed by the Owner and Architect in writing to become generally familiar with the progress and quality of the Work completed and to determine in general if the Work is being performed in a manner indicating that the Work when completed will be in accordance with the Contract Documents. However, the Architects shall not be required to make exhaustive or continuous on-site inspections to check the quality or quantity of the Work. On the basis of on-site observations as an architect, the Architect shall keep the Owner informed of the progress and quality of the Work, and shall endeavor to guard the Owner against defects and deficiencies in the Work. (More extensive site representation may be agreed to as an Additional Services, as described in Paragraph 3.2.)
25-2 25.5► Taylor, Than et al v. Cannaday 749 P.2d 63 (Mont. 1988).
25-3 25.8► Privity, however, is not dead. In Fleischer v. Hellmuth, Obata, and Kassabaum, Inc., 870 S.W.2d 832 (Mo. App. 1994) the lack of privity between an architect on a ship renovation project and the project’s construction manager was held fatal to the manager’s attempt to recover for malpractice by the architect who had been hired by the ship’s owner.
25-4 25.8► 6For example, see Francisco v Manson, Jackson & Kane, Inc., 377 N.W. 2d 313 (Mich. App., 1985).
25-5 25.8► 7Honey v. Barnes Hospital, 708 S.W. 2d 686 (Mo. App. 1986).
25-6 25.8► 8McCarthy v. J.P. Cullens & Son, Corp., 199 N.W.2d 362 (Iowa 1972).
25-7 25.8► 9Concannon v. Hanley Development Corp., 769 S.W. 2d 183 (Mo. App. E.D., 1989).
25-8 25.8► 10523 N.Y.S.2d 687 (N.Y. A.D. 3 Dept. 1988).
25-9 25.8► 11Crockett v. Crothers, 285 A.2d 612 (Md. 1972).
25-10 25.8► 12517 A.2d 336 (Md. 1986). See also Mallow v. Tucker, Sadler and Bennette, 245 Cal. App. 2d 700, where an architect was found liable in negligence when he failed to show in his plans high-voltage underground lines, called for excavations at the site, and a workman was electrocuted.
25-11 25.8► 13Simon v. Drake Construction Co., 621 N.E.2d 837 (Ohio App. 1993); motion overruled, 617 N.E.2d 688.
25-12 25.8► 14Sandarac Ass’n, Inc. v. W.V. Frizzell Architects, Inc., 609 So.2d 1349 (Fla. App. 2 Dist., 1992).
25-13 25.8► 15Unfortunately, the court did not discuss these other factors.
25-14 25.9► 494 F.Supp 1334 (D. Colo. 1980)
25-15 25.9► 371 S.E.2d 106 (Ga. App. 1988)
25-16 25.9► Sime v. Tvenge Assoc. Architects and Planners, P.C., 488 N.W.2d 606, (N.D. 1992), involving a case of carbon monoxide poisoning from an allegedly poorly designed ventilation system.
25-17 25.9► 44 N.J. 70, 207 A.2d 314 (1965).
25-18 25.9► 172 N.J. Super 93 (1980).
25-19 25.9► 402 F.2d 937 (3rd Cir., 1968), applying N.J. law.
25-20 25.9► Allied Properties v. John Blume & Assoc. Engineers, 25 Cal.App.3d 848, 102 Cal Rptr. 259 (1972).
25-21 25.9► Gravely v. Providence Partnership, 549 F.2d 958, (4th Cir. 1977), applying Virginia law.
25-22 25.9► Johnson v. Salem Title Co., 425 P.2d 519 (Ore. 1967).
25-23 25.9► This is a common trial technique. By bringing an action against several defendants, the plaintiff can often get each of them to blame the others for the injury, thus making negligence seem widespread and acute.
25-24 25.9► See Whitfield Const. v. Commercial Development Corp., 392 F. Supp 982, 998 (DVI 1975), which distinguishes nondelegable duty from that of an engineer as an independent contractor held liable for his own faulty design.
25-25 25.9► Restatement (Second), Torts §424 (1965).
25-26 25.9► Laukkanen v. Jewel Tea Co., 78 Ill.App.2d 153, 222 N.E.2d 584 (1966).
25-27 25.9► Inland Real Estate Corporation v. Tower Construction Co., 174 Ill.App.3d 421 at 426 (1988).
25-28 25.10► Day v. National Radiator Corp., 241 La. 288, 128 So.2d 660 (1961).
25-29 25.10► Inman v. Binghamton Housing Authority, 3 N.Y.S.2d 137, 164 N.Y.S. 2d 699.
25-30 25.10► However, note Cubito v. Kreisberg, 419 N.Y.S.2d 578, 582 (1979), which stated that in such a circumstance the architect’s liability turns on whether the architect exercised due care in preparing his plan, not on the test of patent or latent defect.
25-31 25.10► 586 N.Y.S. 2d 413 (1992).
25-32 25.10► Bartak v. Bell, Galyardt and Wells, 629 F.2d 523 (4th Cir. 1980), applying South Dakota Law.
25-33 25.10► Sime v. Tvenge Assoc. Architects and Planners, P.C., 488 N.W.2d 606, (N.D., 1992).
25-34 25.10► 230 N.W.2d 363 (Mich. App. 1975).
25-35 25.10► 491 P.2d 203 (Ore. 1971)
25-36 25.10► 630 P.2d 836 (1981)
25-37 25.10► 655 P.2d 119, 122 (Idaho App. 1982)
25-38 25.10► 494 F.Supp. 1334 (D. Colo. 1980).
25-39 25.10► O’Brian v. Hazelet and Erdal, 410 Mich. 1, 299 N.W.2d 336 (1982).
25-40 25.10► There are likely to be various circumstances or site conditions that make reuse of the original material unsuitable for the proposed project unless various modifications are made.
25-41 25.12► See, for example Paxton v. County of Alameda, 259 P.2d 934 (Cal. App. 1953), an action for personal injury following the collapse of a building, where expert testimony of many types, for both plaintiff and defendant, was introduced, and the defendant architect prevailed.
25-42 25.12► Seiler v. Levitz Furniture Co. of the Eastern Region, Inc., 367 A.2d 999 (Del. Sup. 1976).
25-43 25.12► 59 Ill.App.2d 38, 208 N.E.2d 249, modified at 37 Ill.2d 273, 226 N.E.2d 630 (1967).
25-44 25.15► See Massachusetts’ G.L. c. 149, S 29C.
25-45 25.15► For example, in Harnois v. Quannapowitt Dev., Inc., 35 Mass.App.Ct. 286, 288–289, 619 N.E.2d 351 (1993), an indemnification clause was deemed void by the court as it required the subcontractor to indemnify the general contractor for damage that was not necessarily the fault of that subcontractor or its agents and employees.
25-46 25.16► The case described was an actual event. All lawsuits were settled, so the case was not reported. However, the Missouri Board for Architects, Professional Engineers and Land Surveyors brought suit against the engineer involved to subject them to discipline. The engineers’ certifications of registration were subsequently revoked or suspended. See Duncan v. Missouri Board for Architects, Professional Engineers and Land Surveyors, 744 S.W. 2d 524 (Mo. App. 1988). For a detailed discussion of the suit, see Comment, 55 UMKC Law Rev. 108 (1986). Both the project and structural engineer were found to have been grossly negligent and to have engaged in misconduct and unprofessional conduct.
License revocation in “gross negligence, incompetence, or misconduct in his practice” was also held appropriate in Wright v. State Board of Engineering Examiners, 250 N.W.2d 412 (Iowa 1977), where the building code required that a roof be able to support a “snow load” of 30 pounds per square foot and the engineer’s specifications for the structure specified such capability, but actually called for support capability of only 17.5 pounds per square foot, and the engineer knew that the plans were misleading and would be relied on.
26-1 26.6► Fargo Cass County v. Harwood, 256 N.W.2d 694 (N.D. 1977). Also see City of Moline Acres v. Heidbreder, 367 S.W.2d 568, 572 (Mo. 1963), quoting Black’s Law Dictionary, 4th ed., and cases therein mentioned.
26-2 26.7► The precise number depends upon the statutes of the state wherein the real estate is situated. In California, for example, the period is 5 years. Cal. Code of Civil Procedure § 325.
26-3 26.7► The requirement that a would-be adverse-possession claim be manifest from the nature or circumstances of the possession is imposed so that the real owner may be informed of the possessor’s apparent intent and not be misled into acquiescence in what the owner might otherwise reasonably suppose to be a mere trespass.
26-4 26.7► See, for example, Nevada Revised Statutes 11:150; Colfer v. Harmon, 832 P.2d 383 (Nev. 1992).
26-5 26.9► The purchaser may desire title insurance, which would indemnify him in a stated amount against loss arising through defects or encumbrances affecting the title that may be in existence when the policy is issued.
26-6 26.9► Primarily, payment of the indicated price. A portion of the selling price will be paid at the time the bond for deed is executed, and this down payment is recited in the instrument as part of the consideration for the seller’s promise to deliver a deed. The balance of the agreed-upon price is to be forthcoming at the closing.
26-7 26.9► An “abstract of title” may have been supplied. Such abstract (the object of which is to enable the buyer and his attorney to pass readily upon the validity of the title) is a concise and orderly statement covering all matters, such as conveyances and encumbrances, which appear on the public records and that affect title to the realty in question.
If the buyer has indeed arranged for new financing of his own, his mortgagee, if a bank, will normally have its own lawyer conduct a title search in protection of the bank’s interest, and probably charge this to its customer, the buyer, who usually will not then bother to have still another search made.
26-8 26.9► Title 40, Real and Personal Property § 689.02.
26-9 26.9► Save The Walwood Murry Mem. Library Comm. v. City Council of the City of Palm Springs, 263 Cal.Rptr 896 (Cal. App. 1989); Harris Bank of St. Charles v. City of Geneva, 663 N.E.2d 483 (Ill. App. 1996).
26-10 26.9► Zumbrotta v. Strafford Western Emigration Company, 290 N.W.2d 621 (Minn. 1980).
26-11 26.9► McCraw v. City of Dallas, 420 S.W.2d 793, (Civ. App. Tex. 1967).
26-12 26.9► Neighbors & Friends of Viretta Park v. Miller, 940 P.2d 286 (Wash. App. 1997).
26-13 26.9► North Spokane Irrigation District No. 8 v. County of Spokane, 86 Wash.2d 599, 547 P.2d 859 (1976).
26-14 26.9► 465 U.S. 1097 (1984).
26-15 26.9► For an example of laws dealing with eminent domain, see Chap. 835, Title 48, Connecticut General Statutes amended in 1997.
27-1 27.2► The term “lake” is taken to mean a body of water whose characteristics are (1) permanency, (2) location in a depression in the earth’s surface, and (3) no perceptible flow (that is, the water is basically at rest). The distinction between a lake or pond and a pool is that a pool is generally a relatively small enlargement of a stream frequently above or below a rapid or waterfall and revealing an appreciable current as water flows through it.
27-2 27.2► Lowe v. Loge Realty Co., 138 Ind.App. 434, 214 N.E.2d 400 (1966); Johnson v. Whitten, 384 A.2d 698 (Me. 1978).
27-3 27.2► Ullian v. Cullen, 325 N.E. 2d 593 (Mass. App. 1975), quoting Ashley v. Wolcott, 11 Cush. 192 (1853).
27-4 27.2► Reed v. Jacobson, 169 Neb. 245,69 N.W.2d 881 (1955).
27-5 27.2► These are often of considerable size and commonly used for such public purposes as bathing, fishing, and navigation.
27-6 27.2► It has been held that title to the beds of nonnavigable rivers lies with the riparian owners rather than with the state. Prazzek v. Drainage District, 237 P. 1059 (Kan. 1925).
A transfer of title of riparian land bounded by a nonnavigable water body also transfers title to the threadline of the bed, unless such is specifically excluded. Snake River v. United States, 395 F. Supp. 886 (D.C. Wyo. 1975); United States v. Vesterso, 828 F.2d 1234 (8th Cir. 1987, applying N.D. law); State ex rel Meek v. Hayes, 785 P.2d 1356 (Kan. 1990).
27-7 27.2► Some authorities do not agree that water moving in underground streams can properly be denominated as “groundwater.” In any event, regardless of the accuracy of the terminology employed, rights and liabilities respecting subterranean streams, as distinguished from percolating water, are generally governed by the rules of law pertaining to streams on the surface of the ground.
27-8 27.2► Jones v. Home Building & Loan Assn. of Thomasville, 252 N.C. 626, 114 S.E.2d 638 (1960).
27-9 27.2► Woodsum v. Pemberton, 412 A.2d 1064 (N.J. 1980).
27-10 27.3► Webster’s Third New International Dictionary, G. & C. Merriam Co., Springfield, Mass., p. 1960 (1981).
27-11 27.3► Mobile Dry Docks Co. v. Mobile, 40 So. 205 (Ala. 1906).
27-12 27.3► To illustrate this point, assume that a person owns a strip of land 500 feet wide and extending 1,000 feet along the east bank of a stream. He is a riparian owner with respect to that stream, whereas the owner of the property “inland from” this person’s holdings is not a riparian owner because his land does not actually border the stream. It is possible, of course, that a nonriparian owner might acquire special water privileges through grant or otherwise, and it is also possible that the riparian proprietor’s use of “his water” might be so negligently handled or might take such an ultrahazardous form as to occasion liability “running to” his neighbor, the nonriparian owner.
27-13 27.3► If a person is contemplating the purchase of property adjacent to an artificial pond or lake, he should carefully investigate the question of just what rights he will have to the water area and its use. It may be that the one who made the pond still owns part or all of the submerged land, and can empty the pond or even remove the dam if he so desires.
27-14 27.3► Where a meandering river is involved, such as a portion of the Mississippi (whose main channel in some places is slowly being altered by erosion and sedimentation), even state boundaries are likely to be altered somewhat with the passage of time.
In a Louisiana case, Nevels v. State, 665 So.2d 26 (La. App., 1995) alluvian and other problems were well illustrated where the Mississippi River diverted from its original course around a bend, and cut a new channel that eventually enlarged until a portion of the flow returned to the bendway.
It might be noted that boundaries of land bordering ponds and lakes also give rise to uncertainty upon occasion. In the case of large lakes, boundaries may be set in the same terms as are usual with tidal waters, that is, the “normal highwater mark”; or they may be established by survey or by prior appropriation, or other means. At any rate, the boundary lines should be carefully ascertained, rather than merely assumed, when one intends to take any action involving lakeside properties.
27-15 27.3► An interesting question about natural flow was presented in Huff v. Smith, 679 So.2d 259 (Ala. App. 1996) where, after noting that a riparian proprietor has a right to natural stream flow and to be protected from “unnatural” enlargement of a stream, declined to answer whether a beaver dam was a natural obstruction. The court found that any obstruction causing unnatural enlargement gave rise to a remedy.
27-16 27.3► Oakleaf Country Club Inc. v. Wilson, 257 N.W.2d 739 (Iowa 1977). See also Maddocks v. Giles, 686 A.2d 1069 (Me. 1996) where the court applied the principle that a landowner cannot drastically alter the flow of a watercourse to a subterranean spring damaged by an excavation for a gravel pit.
27-17 27.3► Delp v. Laier, 288 N.W. 2d 265 (Neb. 1980).
27-18 27.3► Fall River Valley Irr. Dist. v. Mt. Shasta Power Corp., 202 Cal. 56, 259 P. 444, 448 (1977).
27-19 27.3► Flynn v. Beisel, 257 Minn. 531, 102 N.W.2d 284, 290–91 (1960).
27-20 27.3► Mayer v. Grueber, 29 Wis. 2d 168, 138 N.W.2d 197, 202–204 (1965).
27-21 27.3► Hefferline v. Langkow, 15 Wash. App. 896, 552 P.2d 1079, 1081 (1976).
27-22 27.3► Great American Development Co. v. Smith, 303 S.W.2d 861 (Civ. App. Tex. 1957).
27-23 27.3► Here are two situations in which the aforementioned “flow” maxim has pertinence:
1. The water from a spring flowed across A’s property, through a ditch, to a pit dug by him; thereafter it flowed underground into B’s cellar, causing damage thereto. The court awarded damages to B as plaintiff, reasoning that, if A (the owner of the dominant estate) had done nothing to change the natural flow of water over or from his property, he would not be liable for any water damage to B’s property, regardless of whether the water came from springs, streams, or the surface of the land. If, however, the proprietor of the upland had diverted quantities of surface water and discharged it upon the lower land without consent of the owner of the latter property, the upland owner, A, would be liable. The important question to answer is whether or not the ditch and pit were natural in origin or were artificial and created by A; only in the latter circumstance would A be responsible for the consequences. Inspection by the court, and the testimony of B’s witnesses, showed that the pit, at least, was artificial and designed to receive the flow of surface water. Consequently, A was required to pay B for the cellar damage done by the escaping spring water.
2. Jones built a dam to make a small fishpond on his property but thereby caused water to flow on or across his neighbor’s land, and the latter became entitled to seek compensation for any resulting damage. Similarly, if the pond had caused harm to the neighbor because of a change it occasioned in the groundwater conditions, or if the pond diverted an appreciable volume of water away from the neighbor’s land so that he no longer had the use of such water as a surface stream, a spring, or a source of supply for his well, the neighbor could again institute an action for damages.
27-24 27.3► For a graphic illustration, see In re Waters of Long Valley Creek Stream System, 599 P.2d 656 (Cal. 1979), where the state of California sought to statutorily adjudicate the rights of all riparian owners within the Long Valley system. There the court held that the state water resources control board was authorized to decide the priority of unexercised riparian rights but that it could not extinguish them altogether.
27-25 27.3► Omernick v. Department of Natural Resources, 71 Wis.2d 370, 238 N.W.2d 1, 14(1976), interpreting Wisconsin Statutes Annotated 30.18 (1973).
27-26 27.4► Tehachapi-Cummings County Water Dist. v. Armstrong, 49 Cal.App.3d 992, 122 Cal. Rptr. 918 (1975). At least one court, however, has held the rules applicable to percolating waters to be different from those applicable to either subterranean streams or surface streams. Thus, the law in Texas is that the owner of overlying land owns percolating water and can do with it as he pleases and may use it for any purpose. Bartley v. Sone, 527 S.W.2d 754 (Tex. App. 1975).
27-27 27.4► City of San Bernardino v. City of Riverside, 186 Cal. 7, 198 P. 788 (1921). See also In re Smith, 924 P.2d 155 (Colo. 1996), stating that a landowner has an inchoate right in the nontributary groundwater underneath his land, and that this right exists by virtue of land ownership.
27-28 27.4► 142 F. Supp. 1 (SD Cal. 1956), reversed in part and affirmed in part Cal. v. Rank, 293 F.2d 340 (9th Cir 1961); injunction modified on rehearing 307 F.2d 96 (1962), affirmed Fresno v. Cal., 372 U.S. 627 (1963).
27-29 27.4► 670 N.E.2d 985 (Ohio 1996).
27-30 27.4► Farmers Investment Co. v. Bettwy, 558 P.2d 14 (Ariz. 1976).
27-31 27.4► State of Wis. v. Michels Pipeline Constr., Inc., 63 Wis.2d 278, 217 N.W.2d 339, 345 (1974), rehearing denied, 219 N.W.2d 308(1974).
27-32 27.5► Concerning Application for Water Rights, 938 P.2d 515 (Colo. 1997); Dallas Creek Water Co. v. Huey, 933 P.2d 27 (Colo. 1997).
27-33 27.5► See Desert Irrigation, Ltd. v. State, 944 P.2d 835 (Nev. 1997).
27-34 27.5► Town of Genoa v. Westfall, 349 P.2d 370 (Colo. 1960).
27-35 27.5► State Dept. of Parks v Idaho Dept. of Water Admin., 530 P 2d 924 (Id. 1974). Likewise, see U.S. v. Alpine Land and Res. Co., 503 F. Supp. 877 (D. Nev. 1950) re: fishing.
27-36 27.5► See California Water Code § 1225 (West 1974).
27-37 27.5► San Bernardino Valley Mun. Water Distr. v. Meeks and Daley Water Co., 226 Cal.App.2d 216, 38 Cal. Rptr. 51 (1964). This was a proceeding in eminent domain to condemn the prescriptive and appropriative water rights and diversion facilities of defendant mutual water companies.
27-38 27.2► Under certain conditions continuous exercise of a claimed right to divert and use water can ripen into what is known as a prescriptive right against a riparian or overlying owner, assuming either that such owner knows of and acquiesces in such adverse use or that knowledge and acquiescence will be presumed because the adverse use was so obvious and yet had gone unchallenged. Additional essential elements in prescription have been variously expressed, but they would appear to call for actual use under a claim of right by the taking party, which use is hostile and adverse (as to the property owner’s interests), and continuous and uninterrupted for a considerable period of time, the length of which varies with the jurisdiction. For typical decisions discussing the acquisition of water rights by prescription, see Sibbett v. Babcock, 124 Cal.App.2d 567, 269 P.2d 42 (1954); Moore v. California Oregon Power Co., 22 Cal.2d 725, 140 P.2d 798 (1943); and Smelcer v. Rippetoe, 24 Tenn.App. 516, 147 S.W.2d 109 (1940). The Moore case quotes this passage from prior opinions in the same jurisdiction: “Any person may obtain exclusive rights to water flowing in a stream or river by grant or prescription as against either riparian owners on the stream or the prior appropriation of the water by other parties. But the right acquired by prescription is only commensurate with the right enjoyed. The extent of the enjoyment measures the right.”
27-39 27.5► People v. Shirocow, 605 P.2d 859 (Cal. 1980).
27-40 27.5► Cappaert v. United States, 426 U.S. 128 (1976); Colorado River Conservation District v. United States, 424 U.S. 800 (1976).
27-41 27.5► At the other end of the line, the appropriative right may terminate under various circumstances, abandonment being one. See, for example, Matter of Clark Fork River Drainage Area, 908 P.2d 1353 (Mont. 1995) where a miner, by failing to use an appropriated water right for 50 years, was held to have abandoned it despite his contention that he was waiting for the mine to become profitable.
27-42 27.5► Arizona Revised Statutes, Title 45, Art. 5 (1995).
27-43 27.6► Diblasi v. City of Seattle, 933 P.2d 443 (Wash. App. 1997).
27-44 27.6► See Bays v. Kent State Univ., 684 N.E.2d 1328 (Ohio Ct. Cl. 1997), and Kial v. Boesch, 557 N.W.2d 597 (Minn. App. 1996) in which the court said:
[T]he rule is that in effecting a reasonable use for a legitimate purpose a landowner, acting in good faith, may drain his land of surface waters and cast them as a burden upon the land of another, although such drainage carries with it some waters which would otherwise have never gone that way . . . if
(a) [t]here is a reasonable necessity for such drainage;
(b) [r]easonable care be taken to avoid unnecessary injury to the land receiving the burden;
(c) [t]he utility or benefit accruing to the land drained reasonably outweighs the gravity of the harm resulting to the land receiving the burden;
(d) [w]here practicable, it is accomplished by reasonably improving and aiding the normal and natural system of drainage according to its reasonable carrying capacity, or if, in the absence of a practicable natural drain, a reasonable and feasible artificial drainage system is adopted.
27-45 27.6► DeSanctis v. Lynn Water and Sewer Com’n., 666 N.E.2d 1292 (Mass. 1996). See also Johnson v. Bd. of City Cm’rs., 913 P.2d 119 (Kan. 1996) for an examination of expert testimony in a case involving erosion caused by alterations in a bridge.
27-46 27.7► For an instance of how some perplexing questions can arise regarding exact boundary lines, consider this situation. It is asserted that governmental land grants in the eighteenth century had given Kentucky the rights to that segment of the Ohio River that flowed past its territory, with the limit of Kentucky’s jurisdiction being established as the low-water mark on the north side of the river. When Ohio subsequently joined the Union, the state’s Constitution of 1802 (Article VII, Section 6) recited that Ohio was “bounded . . . on the south by the Ohio River to the mouth of the Great Miami River.”
27-47 27.7► Through its control of navigable waterways the federal government can have something to say also about what activity (especially regarding projects that may affect navigation and inter-state commerce) occurs in nonnavigable streams that are tributaries of these waterways.
Federal court jurisdiction extends to cases of admiralty pursuant to the U.S. Constitution, Art. 3, § 2, c1. 1, and 28 U.S.C. § 1331(1). A curious application of this occurred in Great Lakes Dredge & Dock Co., v. City of Chicago, 3 F.3d 225 (7th Cir. 1993). Where a break in the roof of a freight tunnel below the Chicago River was allegedly caused by a contractor attempting to replace pile clusters known as “dolphins” at bridge sites, and serious flooding of downtown Chicago resulted.
27-48 27.7► Pierhead lines are boundaries beyond which no pier construction should project toward navigable water; bulkhead lines set the riverward limit of any bulkhead or other fixed-shore development. Between the two boundaries is the area for piers and other facilities for docking ships.
27-49 27.10► Eckel v. Springfield Tunnel & Development Co., 87 Cal.App. 617, 262 P. 425(1927).
27-50 27.11► There may be legal restrictions regarding just what can be constructed along a given stream. For example, under the authority of the general statutes, the Water Resources Commission of Connecticut has established on several streams in the state “lines beyond which in the direction of the waterway, no obstruction or encroachment shall be placed by any person, firm or corporation, public or private, unless specifically authorized by the Commission.” Of course, such lines are intended to prevent interference with the channel of a stream, and the restriction may be needed in areas of congested developments in order to maintain enough discharge capacity of the stream to prevent flooding of adjacent lands.
27-51 27.11► Marshland Flood Control Dist. v. Great Northern Ry. Co., 71 Wash.2d 365, 428 P.2d 531 (1967).
27-52 27.11► Kinz v. Utah Power & Light Co., 526 F.2d 500 (9th Cir. 1975).
27-53 27.11► 942 P.2d 315 (Utah 1997).
27-54 27.12► Even constitutional provisions can be found that are on point. Thus, Art. X § 2 of the California Constitution reads in part:
It is hereby declared that because of the conditions prevailing in this State the general welfare requires that the water resources of the State be put to beneficial use to the fullest extent of which they are capable, and that the waste or unreasonable use or unreasonable method of use of water be prevented, and that the conservation of such waters is to be exercised with a view to the reasonable and beneficial use thereof in the interest of the people and for the public welfare. The right to water or to the use or flow of water in or from any natural stream or water course in this State is and shall be limited to such water as shall be reasonably required for the beneficial use to be served, and such right does not and shall not extend to the waste or unreasonable use or unreasonable method of use or unreasonable method of diversion of water. Riparian rights in a stream or water course attach to, but to no more than so much of the flow thereof as may be required or used consistently with this section, for the purposes for which such lands are, or may be made adaptable, in view of such reasonable and beneficial uses; provided, however, that nothing herein contained shall be construed as depriving any riparian owner of the reasonable use of water of the stream to which his land is riparian under reasonable methods of diversion and use, or of depriving any appropriator of water to which he is lawfully entitled.
27-55 27.12► The aspects of the subject vary, however, with the water situation in the state. Louisiana statutes and Code provisions cover, for example, such subjects as the following:
1. Ports and harbors.
2. Canal and other water courses.
3. Navigation districts.
4. Ships and water craft.
7. Levee districts.
8. Shore of the sea or of a lake.
9. Division of alluvion.
10. Sudden action of waters.
11. Island formed by river opening a new channel.
12. Ownership of abandoned bed when river changes course.
13. Islands and sandbars in navigable rivers.
14. Ownership of beds of nonnavigable rivers or streams.
28-1 28.2► “[The Congress shall have Power] To promote the Progress of Science and useful arts by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”
28-1a 28.2► Previous to 1995, a Patent was in force 17 years from date of issue. This may be compared to the current 20 years from date of application. As many applications require several years for review, there are procedures for extending the 20 year period if caused by delays of the Patent Office.
28-2 28.2► Design patents are authorized by 35 U.S.C. § 171, which provides, “Whoever invents any new, original and ornamental design for an article of manufacture may obtain a patent therefore, subject to the conditions and limitations of this title.”
An interesting case on design patents is Best Lock Corporation v. Ilco Unican Corporation, 896 F. Supp. 836 (S.D. Ind. 1995), in which a patent describing a key that, for purposes of making duplication at a local hardware store more difficult, was one-third wider than a standard key with a “thin-walled offset portion” was held invalid. The court concluded that the invention was not patentable because the differences between it and the prior art would have been obvious to one having ordinary skill in the subject at the time the invention was made. Persons with such “ordinary skill” included both engineers and nonengineers.
Also, a design patent is invalid if it is functional and the function dictates the design.
28-3 28.4► “Conditions for patentability” are spelled out in 35 U.S.C. § 102 (1952), amended in 1972 and 1975:
A person shall be entitled to a patent unless—
(a) the invention was known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the Invention thereof by the applicant for a patent, or
(b) the invention was patented or described in a printed publication in this or a foreign country or in public use on sale in this country, more than one year prior to the date of the application for patent in the United States, or
(c) he has abandoned the invention, or
(d) the invention was first patented or caused to be patented, or was the subject of an inventor’s certificate, by the applicant or his legal representatives or assigns in a foreign country prior to the date of the application for patent in this country on an application for patent or inventor’s certificate filed more than twelve months before filing of the application in the United States, or
(e) the invention was described in a patent granted on an application for patent by another filed in the United States before the invention thereof by the applicant for patent, or on an international application by another who has fulfilled the requirements of paragraphs (1), (2), and (4) of section 371 (c) of this title before the invention thereof by the applicant for patent, or
(f) he did not himself invent the subject matter sought to be patented, or
(g) before the applicant’s invention thereof the invention was made in this country by another who had not abandoned, suppressed, or concealed it. In determining priority of invention there shall be considered not only the respective dates of conception and reduction to practice of the invention, but also the reasonable diligence of one who was first to conceive and last to reduce to practice, from a time prior to conception by the other.
28-4 28.4► See also, note 2, Section 24.2.
28-5 28.4► 35 U.S.C. § 103 (1952), amended in 1984.
28-6 28.4► But see the discussion of “assignment” in Section 24.15.
28-7 28.5► In rare cases, subsequently to be discussed, someone else would be applying in place of the actual inventor.
28-8 28.6► The applicant should be very careful in stating what his invention is designed to accomplish; this is often called the statement of invention. The inventor ought to avoid expressing aims that are either too meager or unduly comprehensive.
28-9 28.6► The application, per 35 U.S.C. § 111 (1982), consists of a specification, a drawing, and an oath.
28-10 28.7► In the case illustrated, notice that the first claim listed dominates (for example, includes) the second, third, and fourth claims. It may be that a patent issued to cover several claims will be treated as though each claim were covered (or represented) by a separate patent.
28-11 28.8► In case of an “interference” proceeding (conducted under the auspices of the Patent Office to determine which of several claimants is entitled to the patent), the date of conception of an invention will be judged by such criteria as the following:
1. The date of the first verbal disclosure to someone else.
2. The date of the first written description of the invention.
3. The date of the first drawing showing the invention.
4. The date of the first reduction of the invention to practice.
28-12 28.12► Christie v. Seybold, 55 F. 69, 76 (6th Cir. 1893).
28-13 28.15► It seems that a “grant” generally affords permission on a more exclusive basis than does a “license.” Both types of permit should be written or printed, properly signed, and recorded in the Patent Office.
28-14 28.16► Similarly, the capabilities of even the best judges, most of whom have no technical background, are severely taxed by cases dealing with scientific and engineering matters.
28-15 28.16► 35 U.S.C. § 161–164.
28-16 28.16► Kim Bros. v. Hagler,167 F. Supp. 665 (S.D. Cal.1958), aff. 276 F.2d 259 (9th Cir. 1960), an unsuccessful action for alleged infringement of a patent for nectarine trees.
28-17 28.16► In re Arzkerger,112 F.2d 834 (Ct. Customs and Patent App. 1940).
28-18 28.16► 69 F.3d 1560 (Fed. Cir. 1995).
28-19 28.16► 7 U.S.C. 2401–2582.
28-20 28.16► 447 U.S. 303 (1980).
28-21 28.16► Ex parte Allen, 2 U.S.P.Q. 2d 1425 1987). The matter involved Pacific oysters, and while held patentable, the patent was denied on other grounds.
28-22 28.16► Amendment XIII (1865) § 1. Neither slavery nor involuntary servitude, except as punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
28-23 28.16► 984 F.2d 1164 (Fed. Cir. 1993).
28-24 28.16► Science, March 7, 1997, Vol. 275, No. 5305, p. 1415.
28-25 28.16► For a discussion of the relationship between patent and copyright protection in the area of computer programs see M.Tek Holdings v. Arce Engineering Co., 89 F.3d 1548 (11th Cir. 1996).
28-26 28.16► 450 U.S. 175 (1981).
28-27 28.16► 42 F.3d 1376 (Fed. Cir. 1994).
28-28 28.16► For a further discussion of the ramifications of Diamond v. Diehr, see also In re Alappt, 33 F.3d 1526 (Fed. Cir. 1994).
28-29 28.16► This Act amended 17 U.S.C. § 101 by adding a definition of a “computer program” and provided for lawful copying of a program by its rightful owner for use “in conjunction with a machine” or for archival purposes.” 17 U.S.C. § 117.
28-30 28.16► Apple Computers, Inc. v. Franklin Computer Corp., 714 F.2d 1240 (3rd Cir. 1983).
28-31 28.16► Lotus Dev. Corp. v. Borland Int’l., 49 F.3d 807 (1st Cir. 1995).
28-32 28.16► Kepner-Tregol, Inc. v. Leadership Software, 12 F.3d 527 (5th Cir. 1994).
28-33 28.16► The program involved was marketed under the name STRAN. The alleged infringer was marketed as SACS IV.
28-34 28.16► Engineering Dynamics v. Structural Software, 26 F.3d 1335 (5th Cir. 1994).
28-35 28.17► For works copyrighted before January 1, 1978, the copyright term is 28 years, with the privilege of one 28-year renewal. See 17 U.S.C. § 302 (1976).
28-36 28.17► 17 U.S.C. 107, as amended on Oct. 19, 1976.
28-37 28.17► 740 F. Supp. 37 (D. Mass. 1990), later settled without appeal.
28-38 28.17► 17 U.S.C. § 101.
28-39 28.17► 17 U.S.C. § 102.
28-40 28.17► See, for example, DeSilva Constr. Corp. v. Herald, 213 F. Supp. 184 (D. Fla. 1962).
28-41 28.17► Value Group, Inc. v. Mendham Lake Estates, L.P., 800 F. Supp. 1228 (D.N.J. 1992).
28-42 28.17► M.G.B. Homes, Inc. v. Ameron Homes, Inc., 903 F.2d 1486 (11th Cir. 1990).
Also outside the scope of copyright protection are structures other than buildings and standard features such as doors and windows. 37 C.F.R. § 202.11.
28-43 28.17► L. Batlin & Son, Inc. v. Snyder, 536 F.2d 486 (2nd Cir. 1976).
28-44 28.17► Gracen v. Bradford Exchange, 698 F.2d 300 (7th Cir. 1983).
28-45 28.17► Richmond Homes Management, Inc. v. Raintree, Inc., 862 F. Supp. 1517 (W.D. Va. 1994). The defendant was not saved by the fact that the design was altered somewhat in response to customer’s input.
28-46 28.17► Fred Riley Building Corp. v. Cosgrove, 864 F. Supp. 1034 (D. Kan. 1994).
28-47 28.17► Audio Home Recording Act of 1992, 17 U.S. § 1001 et seq.
28-48 28.17► 15 U.S.C. § 1051 et seq. The Trademark Law Revision Act of 1988 was the most extensive revision since the Lanham Act of 1946. While the basics remain largely unchanged, court cases or other materials produced prior to 1989 need to be checked against the new statute.
28-49 28.17► American Asso. for the Advancement of Science v. The Hearst Corp., 206 U.S.P.Q. 605 (D.C. 1980).
29-1 29.3► The American Institute of Architects, the National Society of Professional Engineers, and the American Society of Civil Engineers have prepared standard contracts for professional services. These have been carefully written and tested by experience. They are intended for use by architects, engineers, and their clients.
29-2 29.3► 435 U.S. 679 (1978).
29-3 29.3► While any extensive antitrust coverage is beyond the scope of this book, attention is directed to the case of Ehlinger & Assoc. v. Louisiana Architects Assoc. and the American Institute of Architects, 989 F.Supp. 775 (E.D. La. 1998). This case involves a long and tortuous history of litigation in which an architectural firm unsuccessfully claimed that it had been “blackballed” from lucrative state contracts.
29-1 29.3► 4A change in the work ordered by the owner and contemplated in the original contract is called a change order, and, as an adjustment to the original contract, must satisfy the normal formalities.
Even when the original contract grants the owner the right to make changes, those changes must be within the general parameters of the original contract. If they are not they are called cardinal changes and are not covered by the typical changes clause.
Among the cases exploring the scope of change clauses and cardinal changes are U.S. For Use And Ben. Evergreen Pipeline v. Merritt, 890 F.Supp. 1213 (S.D. N.Y. 1995); Roy F. Weston, Inc. v. Halliburton Nus. Env. Corp. 839 F.Supp 1150 (E.D. Penn. 1993); and In re Construction Contractors of Ocala, Inc. v. Lathan Construction Corp., 196 B.R. 188 (Bankr. M.D. Fla. 1996).
30-1 30.1► Trademark of Autodesk, Inc., AutoCAD is by far the most widely used program.
30-2 30.3► For a detailed discussion of the applicability of copyright protection of architectural plans see Chapter 24, Section 17.
30-3 30.4► Before the advent of CAD, it was customary to have these drawings done on tracing paper or tracing cloth, and then to have prints made from these originals. Although 24 by 36 inches was common, drawings could be made in any size. Because of their considerable size and bulk, prints were customarily bound together and kept separate from other contract and specification papers. Reproductions of small sketches were sometimes bound with the contract itself, but suitable photostat reductions of large drawings were too costly before personal computers and desktop printers.
30-4 30.4► For example, the unit-price contract for the construction of a $20 million industrial plant was let on the basis of data shown by the following design drawings only (plus, of course, specifications):
1. A general layout of the site and of the plant showing structures, transportation connections, grading, etc.
2. A topographic map of the property.
3. A foundation plan showing footings and locations of piles, plus a few typical details.
4. A floor plan showing the size, shape, and general features of the main plant.
5. Sample framing plans and sufficient details to picture the character of the work.
6. Enough architectural details to show the typical roof, wall, and floor construction.
drawings to picture the character of the plumbing, drainage, heating, and
After the contract was awarded, the engineer prepared over 300 supplementary drawings for the contractor’s use.
30-5 30.5► In the days of manual drafting, reproduced tracings made on cloth directly from the originals (before any revisions are permitted) would serve as an ideal record set of the contract drawings.
30-6 30.6► One large unit-price job for heavy concrete construction was undertaken on the basis of a few general drawings together with a set of prints from a previous contract—similar in a broad sense, but very different in detail. The old prints were used for the limited purposes of (1) showing the bidders some sample drawings of the type turned out by the engineer’s office and (2) picturing the general nature of the construction that had been required under the earlier contract. The emerging demands of the project at hand naturally revealed many and extensive differences between the old drawings used for bidding and those “current” ones ultimately issued after the contract was awarded and actual construction was under way. The contractor’s list of claims for extras reached a monetary total that was staggering. The owner blamed the engineer for the unfortunate situation, saying, “Why didn’t you convince me that this would be the result?” Again, the use of CAD may have prevented this result. The prints from the previous contract could have been easily modified with CAD.
30-7 30.7► It is desirable to provide that the contractor’s drawings are to be checked by him before submission for the engineer’s approval.
30-8 30.8► The process of making revisions was much more complicated before microcad systems. Because the drawings could not be modified and reprinted on a computer but had to be completely redrawn, revisions were often made directly on the prior drawing. The inefficiency of this is easily seen by the methods used to keep track of revisions made to manual drawings:
1. Have a form printed on the original tracing for use in the recording of any revisions, perhaps as shown in Fig. 15.6. As a part of this form have a space available for inserting the number of the revision, the date on which it was made, the name or initials of the person who made and checked it, and a note or two regarding the nature of the change. In addition, on the drawing itself, show in a small circle at the pertinent location the number of the revision. This enables the users of the drawing to determine in what respect it has been revised and to compare the altered version (as described in the printed form previously mentioned) with the original. The encircled number should remain as a permanent record on the tracing.
2. It is possible to identify the revisions directly on the tracing (preferably using pencil) and to mark on the back of the drawing so that what is added will not interferer with the original penciled or inked information. However, this general procedure is unsatisfactory when the drawing has to be changed more than once, since earlier changes encircled on the back of the tracing become difficult to distinguish from later ones.
3. Revisions may be encircled in colored pencil on the prints of the changed drawings. However, this procedure is likely to lead to errors unless all current prints are correctly marked. Also, this system does not provide an automatic aid in locating the alterations when additional prints are taken from the tracings at some later date.
31-1 31.5► 230 NY 239, 129 NE 889 (1921)
32-1 32.1► Kuhs v. Flower City Tissue Mills Co., 104 Misc. 243, 171 N.Y. Supp. 688, 690–91 (Sup. Ct. 1918). (Decision subsequently modified and amended on other grounds, and then affirmed at 231 N.Y. 637.) See also Clark v. Whitener, 296 So.2d 393 (La. App. 1974), where a contractor of a residence was found not liable for deficiencies in items supplied and installed in accordance with plans and specifications supplied by the owner’s architect; and Kelly v. Bank Bldg. & Equipment Corp., 453 F.2d 774 (10th Cir. 1972) in which a contractor was absolved from liability for defects in the design of a glass curtain wall in a 32-story building that was properly installed by the contractor.
32-2 32.1► Great care must be taken not to agree, for example, to make a boiler room watertight by following the plans and specifications provided, if in fact it cannot be done that way. See MacKnight Flintic Stone Co. v. Mayor, Etc., of New York, 160 N.Y. 72 (Ct. of App. 1899). See also, U.S. v. Spearin, 248 U.S. 132 (1919).
32-3 32.1► Equipment utilizing centrifugal force for collecting the dust.
32-4 32.9► Whatever the precise words used are, when a home builder, for example, guarantees the quality of workmanship or materials, the home owner need not prove why a failure occurred, only that it did. Nelson v. Marchand, 691 N.E.2d 1264 (Ind. App. 1998).
32-5 32.9► “It is the duty of every contractor or builder to perform his work in a proper and workmanlike manner, and he impliedly represents that he possesses the skill necessary to do the job he has undertaken. In order to meet this requirement, the law exacts ordinary care and skill only.” Cantrell v. Woodhill Enterprises, Inc., 273 N.C. 490, 160 S.E.2d 476, 481 (1968). On the question of implied warranty of skill and workmanship, see Pollard v. Saxe & Yolles Dev. Co., 115 Cal. Rptr. 648, 525 P.2d 88 (1974), in which the builder of an apartment house was said to have warranted that the structure was designed and constructed in a reasonably workmanlike manner. Thus the contractor was held liable when a ceiling buckled because the contractor removed center posts and installed beams inadequate to support the patio decks of the floor above. To the same effect see Wiggins v. Overstreet, 962 S.W.2d 198 (Tex. App. 1998).
32-6 32.12► Notice that these dimensions and figures are carefully spelled out, not given simply as “20” or “125 psi.”
33-1 33.2► State v. Ohio Turnpike Commission,159 Ohio St. 581, 113 N.E.2d 14 (1953).
33-2 33.4► This rule applies to Douglas fir, Sitka spruce, West Coast hemlock, and Western red cedar.
34-1 34.15► In Kaminer Construction Co. v. United States, 488 F.2d 980 (Ct. Cl. 1973), the court said that “the right to inspect does not imply a duty to inspect.”
34-2 34.18► 948 P.2d 558 (Ha. App. 1997)
, where a contractor who had a license to do cabinet and fixture work and nonstructural remodeling and repair work was precluded from recovering from homeowners for structural and foundation work outside the scope of his license.
Also, if a contractor’s “responsible managing employee” is disassociated, the contractor’s license may be automatically suspended and the contractor thus not licensed and unable to bring suit.
34-3 34.18► Buzgheia v. Leasco Sierra Grove, 70 Cal. Rptr. 2d 427 (Cal. App. 1997).
34-4 34.18► 342 So. 2d 1153 (La. 1977).
34-5 34.18► Alonzo v. Chifici, 526 So. 2d 237 (La. App., 1988).
34-6 34.19► Roth Painting Company, Inc. v. Fishman, 670 N.Y.S. 2d 681 (1997).
35-1 35.3► It is customary to require, however, that the contractor be given adequate written notice before the owner acts; for example, ten days.
34-2 35.4► 54 A.D.2d 337 (1976)
35-3 35.5► A lump-sum contract may contain a clause setting forth unit prices for extra work done and credits for work omitted at the behest of the engineer; such a clause is often called the additions-and-deductions provision.
35-4 35.10► Romine v. Rex Darnall Inc., 541 S.W.2d 50 (Mo. App. 1976). The converse is also true. See, for example, Tube Co. v. Dayton Equipment Services Co., 123 F.3d 616 (7th Cir, 1997, applying Indiana law), where a contract for installation of a static cast line in a foundry was found to be a time and materials rather than a fixed price contract, and, since the price was not fixed, recovery was for the reasonable value of that provided.
35-5 35.11► In a government contract, a potential contractor in a roof replacement contract was held to have some responsibility to inquire about major patent discrepancies, but not to seek clarification of any and all ambiguities or doubts. Beta Construction Co., Inc. v. United States, 39 Fed. Cl. 722 (U.S. Ct. of Cl. 1997).
And see Hoffman Const. Co. of Oregon v. United States, 40 Fed. Cl. 184 (U.S. Ct. of Cl. 1998) where an inconsistency in bidding documents in which the information drawings showed duct work and the contract drawings did not was held obvious and thus patent, and resolved against the contractor.
35-6 35.11► 546 F.2 395 (Ct. Cl. 1976)
35-7 35.11► 671 F 2d 1312 (Ct. Cl 1982)
35-8 35.13► S. L. Roland Constr. Co. v. Beall Pipe & Tank Corp., 141 Wash. App. 297, 540 P.2d 912 (1975), where delays in the construction of 11 1/2 miles of 51 inch steel pipeline was delayed by changes with respect to the grade and elevation of the pipe installation after the contract was set. And see Nelse Mortensen & Co. v. Group Health, 566 P.2d 560 (Wash. App. 1977), where an owner delay clause was held binding on the contractor who claimed 146 owner-caused delays in the remodeling of a hospital.
35-9 35.13► See, for example, Ragan Enterprises, Inc. v. Land B Construction Co., Inc. 492 S.E. 2d 671 (Ga. App. 1997).
35-10 35.14► 11Guerini Stone Co. v. P.J. Carlin Constr. Co., 248 U.S. 334, 345 (1919): “As is usually the case with building contracts, it evidently was in the contemplation of the parties that the contractor could not be expected to finance the operation to completion without receiving the stipulated payments on account as the work progressed. In such cases a substantial compliance as to advance payments is a condition precedent to the contractor’s obligation to proceed.” See also, however, U.S. for the Use of Bldg. Rentals Corp. v. Western Casualty & Surety Co., 498 F.2d 335 (9th Cir. 1974), where a delay or deviation in payments withheld were found not to justify rescission of the contract, when the delay was caused, at least in part, by a request or demand of the party to whom the payment was owed.
35-11 35.14► 12These computations of quantities take time. Therefore, the contract might well state that “the Contractor is to submit to the Engineer by the tenth of each month the estimated quantities of the work performed by him during the preceding month.”
35-12 35.14► 13One contract put it this way: “The Contractor shall pay to each of his subcontractors, not later than the fifth day after receipt of each payment made to him by the Owner, the respective amounts allowed the Contractor on account of the work performed by such subcontractors, to the extent of each such subcontractor’s interest therein.” With regard to “pay when paid” clauses see Christman Co. v. Anthony S. Brown Dev. Co., 533 N.W. 2d 838 (Mich. App. 1995) app. den. 549 N.W.2d 562. There, a subcontractor’s claim that a “pay when paid” clause merely postpones payment for a reasonable time, but not indefinitely, was rejected, in a situation where the prime contractor went unpaid by the owner.
35-13 35.14► 14The law disfavors liquidated damages and will not enforce punitive clauses. Liquidated damages cannot be used as a means of making a profit for the owner at the expense of the contractor. Also, it would seem fair to provide that the contractor will be given a bonus if he can conduct his work as to get the structure into service before the time set as the limit. This bonus arrangement is only occasionally provided, however.
35-14 35.18► 137 F.2d 828, 830 (8th Cir. 1943).
35-15 35.18► Austin-Griffith Inc. v. Goldberg, 224 S.C. 372, 79 S.E. 2d 447 (1953).
35-16 35.19► Temple Beth Shalom and Jewish Center, Inc. v. Thyne Const. Corp., 399 So. 2d 525 (Fla. App. 1981). For a variation on this well-established rule, see North County School Dist. v. Fidelity & Deposit Co. of Md., 539 S.W.2d 469 (Mo. App. 1976), in which the court approved a jury instruction to the effect that the measure of damages should be the same whether the case involved a contract or a tort claim.
35-17 35.19► 708 A.2d 344 (Md. App. 1998)
35-18 35.19► Hubbard Brothers Construction Company, Inc. v. Brackner, 390 So.2d 648 (Ala. App. 1980). And see Design and Corrosion Engineering Inc. v. Piggly Wiggly, 408 So.2d 292 (La. App. 1981), where an owner could not prove with required exactness the cost of repairing a contractor’s performance in the asphalt overlay of a parking lot.
35-19 35.19► See Arch of Illinois v. S.K. George Painting Contractors, Inc., 681 N.E.2d 1049 (Ill. App. 1997).
35-20 35.19► See, for example, McDonald v. Schwartz, 706 S.2d 1230 (Ala. App. 1997).
35-21 35.19► 669 N.Y.S.2d 400 (App. Div. 1998).
35-22 35.21► Keefer v. Lombardi, 376 Pa. 367, 102 A.2d 695, 696 (1954).
36-1 36.8► For a case analyzing “lowest responsible bidder” in the context of a Public Bid Law, see Systems Plus, Inc. v. East Jefferson General Hospital, 638 So. 2d 404 (La. App. 1994).
36-2 36.8► There are cases holding to the effect that a provision in the advertisement for tenders (stating that the bidders will be required to give security for the performance of the work) may be waived by the owner, and a valid contract will be created by the acceptance of a proposal, although no security is in fact given by the successful bidder.
36-3 36.17► On a large tunnel job, the lowest bid was approximately $1 million (15 percent) under both the next-higher proposal and the engineer’s estimate. The engineer called in the low bidder and told him that, if he had made an error, he might withdraw his proposal. The contractor stated that his bid was as he intended, and he revealed that it was based upon the use of certain new, patented equipment. The proposal therefore was accepted. In another case, a contractor forgot to include a $50,000 stack in his proposal for the construction of an industrial plant. The contractor was not allowed to withdraw his proposal without penalty.
37- <<< none►►
38-1 38.1► 12 U.S.C. 12181 provides in pertinent part:
The following private entities are considered public accommodations for purposes of this subchapter, if the operations of such entities affect commerce—
(A) an inn, hotel, motel, or other place of lodging, except for an establishment located within a building that contains not more than five rooms for rent or hire and that is actually occupied by the proprietor of such establishment as the residence of such proprietor;
(B) a restaurant, bar, or other establishment serving food or drink;
(C) a motion picture house, theater, concert hall, stadium, or other place of exhibition or entertainment;
(D) an auditorium, convention center, lecture hall, or other place of public gathering;
(E) a bakery, grocery store, clothing store, hardware store, shopping center, or other sales or rental establishment;
(F) a laundromat, dry-cleaner, bank, barber shop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, office of an accountant or lawyer, pharmacy, insurance office, professional office of a health care provider, hospital, or other service establishment;
(G) a terminal, depot, or other station used for specified public transportation;
(H) a museum, library, gallery, or other place of public display or collection;
(I) a park, zoo, amusement park, or other place of recreation;
(J) a nursery, elementary, secondary, undergraduate, or postgraduate private school, or other place of education;
(K) a day care center, senior citizen center, homeless shelter, food bank, adoption agency, or other social service center establishment; and
(L) a gymnasium, health spa, bowling alley, golf course, or other place of exercise or recreation.
38-2 38.1► 42 U.S.C. 12181(b)(2)(A)(iii) “Readily achievable” under the statute is defined as “easily accomplishable and able to be carried out without much difficulty or expense.” Generally, factors that will be considered in this determination are (1) nature and cost of the required action, (2) overall financial resources of the facility, (3) overall financial resources of the entity and (4) the type of operations of the entity.
38- 3 38.1► 42 U.S.C. 12187.
38-4 38.1► Slaby v. Berkshire, 928 F. Supp. 613 (D.Md. 1996) affirmed without opinion 110 F.3d 60 (4th Cir. 1996).
38-5 38.1► 950 F. Supp. 393 (D.D.C. 1996).
38-6 38.3► 42 U.S.C. 4321.
38-7 38.3► 449 F.2d 1109 (D.C. Cir. 1971).
38-8 38.3► Procedural requirements for the EIS process, which are binding on all federal agencies, are found at 40 C.F.R. Part 1502.
38-9 38.1► Sec. 28, Mineral Leasing Act of 1920, 30 U.S.C. 185.
38-10 38.3► 42 U.S.C. § 7401–7515.
38-11 38.3► 15 U.S.C. 791, 792.
38-12 38.3► Standards of performance have been established for approximately 60 new stationary sources. See 40 C.F.R. Part 52. The regulations exceed 1,000 pages.
38-13 38.3► 344 F. Supp 253 (D.D.C. 1972), affirmed 412 U.S. 541 (1973). Followed by Sierra Club v. E.P.A. 540 F.2d 1114 (D.C. Cir. 1976).
38-14 38.3► 42 U.S.C. 4901–4918.
38-15 38.3► 33 U.S.C. 1251 et seq. Amended by Municipal Water Treatment Construction Grant Agreement of 1981. Technical and administrative amendments in 1987, 1988, 1994, 1995.
38-16 38.3► R. 323.1062. Fecal coliform:
(1) Waters of the state protected for total body contact recreation shall contain not more than 200 fecal coliforms per 100 milliliters; and all other waters of the state shall contain not more than 1,000 fecal coliforms per 100 milliliters. These concentrations may be exceeded if due to uncontrollable non-point sources.
(2) Compliance with the fecal coliform standards prescribed by subrule (1) shall be determined on the basis of the geometric average of any series of 5 or more consecutive samples taken over not more than a 30-day period.”
38-17 38.3► 33 U.S.C. 1344.
38-18 38.3► 33 U.S.C. 1321. Technical and administrative amendments 1996.
38-19 38.3► 33 U.S.C. 1401 et seq.
38-20 38.3► 7 U.S.C. 136 amended in 1996.
38-21 38.3► See Environmental Defense Fund Inc. v. Environmental Protection Agency, 489 F.2d 1247(1973), where the Court of Appeals for the District of Columbia upheld the cancellation of almost all registrations for the use of DDT except for limited public health and agriculture pest quarantine purposes.
38-22 38.3► Dow Chemical v. Blum, 469 F. Supp. 892 (D. Mich. 1979). However, an E.P.A. emergency suspension order regarding pesticide products containing dinoseb was deemed arbitrary in Love v. Thomas, 668 F. Supp. 1443 (D. Ore. 1987).
38-23 38.3► 42 U.S.C. 6901–6987.
38-24 38.3► See New York v. U.S., Note 6, Section 28.3.
39-1 39.2► Federal Rule of Evidence 702 (1975).
39-2 39.2► See, for example, Thomas v. Dixson, 363 S.E.2d 209 (N.C. App. 1988), where a customer in a store fell down stairs that allegedly were not in compliance with the state building code.
39-3 39.2► In LaGasse v. Gardner, 298 S.E.2d 393 (N.C. App. 1982), a breach of contract action against a contractor who assembled a modular home, two experts in construction were allowed to testify that window and door lintels did not conform to the code, and that an 8-inch retaining wall was used instead of the 12 inches required by the state building code.
39-4 39.2► Jaeger v. Heningson, Durham & Richardson, Inc., 714 F.2d 773 (8th Cir. 1983).
39-5 39.4► In Jaeger, supra, the court found the exception to prevail where the specifications called for landing pans to be made from 10-gauge steel with angle stiffeners, but the shop drawing provided for 14-gauge steel without stiffeners or supports.
39-6 39.4► See Chapter 25.
39-7 39.4► Daubert v. Merrell Dow Pharmaceuticals, 113 S.Ct. 2786 at 2794 (1993).
39-8 39.4► Id. at 2796–2797.
39-9 39.4► For a more detailed discussion of appellate review of expert testimony rulings, see General Electric Company v. Joiner, 118 S.Ct. 512 at 515 (1997).
39-10 39.4► Eagan v. Marr Scaffolding Co., 442 N.E.2d 743 (Mass. App. 1982). See also Coursey Building Asso. v. Baker, 301 S.E.2d 688 (Ga. App. 1983) where a structural engineer was allowed to testify as to the standard of care expected of a contractor who was sued by a homeowner when a basement wall in a house built by the contractor collapsed.
39-11 39.4► Wheeler v. John Deere Co., 935 F.2d 1090 (10th Cir. 1991). This case also describes several other cases in which engineers were allowed to testify on matters somewhat beyond the scope of their formal training.
39-12 39.4► Christophenson v. Allied Signal Corp., 939 F.2d 1106 (5th Cir. 1991), abrogated on other grounds by Daubert v. Merrell Dow Pharmeceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed. 469 (1993).
39-13 39.4► Gravely v. Providence Partnership, 549 F.2d 958, (4th Cir. 1977).
39-14 39.4► Courts are well aware of professional experts or what are sometimes called “legal prostitutes,” and an expert can be precluded from testifying for this reason. As a Federal Court of appeals put it, “experts whose opinions are available to the highest bidder have no place testifying in a court of law. Our message to able trial colleagues: it is time to take hold of expert testimony.” This court further stated that two indications that an expert may be available to the highest bidder are (1) the expert is not willing to subject his opinions to peer review and (2) the expert spends most of his time consulting with attorneys and testifying in court. Eymard v. Pan American World Airways, 795 F.2d 1230 at 1234, (5th Cir. 1986).
39-15 39.7► In California, for example, the deposition of a witness or party may be handled by any justice or judge. See California Code of Civil Procedure, § 179 (1982).
39-16 39.9► Leading questions are those that are worded so as to suggest their own answers. For example: “When you inspected the site, did you notice the fine, water-bearing sand running into the excavation?” This type of query virtually puts words in the mouth of the witness. The question in a nonleading format would be: “When you inspected the site, what did you see?” Leading questions may be acceptable in direct examination regarding preliminary matters and in cross-examination, but not at other times.
40-1 40.2► Barcon Associates, Inc. v. Tri-County Asphalt Corp., 430 A.2d 214, 86 N.J. 179 (1981)
40-2 40.2► Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582–83
40-3 40.3► As it was put in Sanitary Farm Dairies v. Gammel, 195 F.2d 106, 113 (8th Cir. 1952): “In general, where parties to a contract, before a dispute and in order to avoid one, provide for a method of ascertaining the value of something related to their dealings, the provision is one for an appraisement and not for an arbitration.” See also, Bailey v. Tempore, 75 Ill.2d 539 (1979), where it was said that the Uniform Arbitration Act is not directly applicable where a lease calls for an appraisement by an arbitrator.
40-4 40.5► See Kline v. Oak Ridge Builders, Inc., 656 N.E.2d 992 (Ohio App. 1995), a case involving a contract for construction of a private dwelling where the owner and construction corporation had agreed to arbitrate, but the corporation’s proprietors, in their individual capacities, had not.
40-5 40.5► Southern Oklahoma Health Care Corp. v. JHBR-Jones-Hester-Bates-Riek, Inc., 900 P.2d 1017 (Okla. App. 1995), involving a claim of unprofessional services by an architectural firm in a hospital renovation.
40-6 40.5► Hazelton Area School Dist. v. Bosak, 671 A.2d 277 (Pa. Comm. 1996), where a school district sued an architect and engineer when the roof of a new school collapsed.
40-7 40.5► 9 U.S.C. §§ 1–14 (1990) as amended. “This legislation overruled longstanding judicial precedents which had refused to enforce agreements to submit justiciable controversies to arbitration on the grounds that they were contrary to public policy.” National R.R. Passenger Corp. v. Missouri Pacific R.R. Co., 501 F.2d 423, 426 (8th Cir. 1974).
40-8 40.5► Prima Paint Corp. v. Flood and Conklin, 388 U.S. 395, 400 (1967), followed by Hydrick v. Mgmt. Recruiters Int’l, 738 F. Supp. 1434 (ND Ga.1990).
40-9 40.5► 287 F.2d 382 (2d Cir. 1961). cert. denied 368 U.S. 817. See also, American Home Assurance Co. v. Vecco Concrete Construction Co., 629 F.2d 961 (4th Cir. 1980), where the contract stated that “If any question of fact shall arise under this contract . . . then either party hereto may demand an arbitration by reference to a Board of Arbitration.”
40-10 40.6► 866 S.W.2d 881 (Mo. App. 1993).
40-11 40.6► 675 So.2d 673 (Fla. App. 1996), J. Sharp concurring.
40-12 40.6► U.S. Home Corp. v. Seifert, 699 So.2d 787 (Fla. App. 1997).
40-13 40.7► Delta South Co., Inc. v. Louisiana and Arkansas Railway Co., 394 So.2d 1299 (La. 1981).
40-14 40.8► Art. 75, New York Civil Practice Law and Rules, § 7503(a) (McKinney 1980).
40-15 40.8► Marchak v. Claridge Commons, Inc., 633 A.2d 531 (N.J. 1993).
40-16 40.8► See, for example, § 7503(b), New York Civil Practice Law and Rules (McKinney 1980).
40-17 40.8► 959 F.2d 97 (8th Cir. 1992).
40-18 40.14► See for example, Calif. Fam. Code § 3170 et seq., mandating mediation in child custody and visitation disputes.
40-19 40.14► Federal Rule of Civil Procedure 16(c)(9). The Advisory Committee comment to this rule specifically includes mediation. A federal court may also have inherent powers to compel parties to participate in a settlement conference, although it may not force a party to agree to a settlement. See G. Heileman Brewing Co. v. Joseph Oat Corp., 871 F.2d 648 (7th Cir. 1989).
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