this examination is a fill in examination you are asked to read the factual pattern after you read the factual pattern proceed to the second section of the examination the second section of the examination contains a report you will note that the

This examination is a fill in examination. You are asked to read the Factual Pattern. After you read the Factual Pattern, proceed to the second section of the Examination. The second section of the Examination contains a report. You will note that there are numbers throughout the report. A word or phrase is to be associated with each number in the narrative to make the sentence substantively or meaningfully correct. Utilizing the words listed at the end of the Examination, choose the word or phrase that best fits. Write that word in space next to the appropriate number on the list at the end of the Examination. YOU MUST PRINT THE ANSWERS CLEARLY IN THE BLANK WHICH CORRESPONDS TO THE NUMBER IN THE NARRATIVE.

Factual Pattern

Ron Rock^* attended Boston College and played football as an offensive lineman. After a successful college career, he was drafted by the Dallas Cowboys where at that time he met SJSU’s present defensive line football coach, Jim Jeffcoat, as well as Troy Aikman, a quarterback then playing for the Dallas Cowboys. After a successful career with the Dallas Cowboys, including being selected as an All-Pro football player on three different occasions, Ron was traded to New York where he appeared in the Pro Bowl two additional times and thereafter joined the San Francisco 49ers where he made one more Pro Bowl appearance. Ron ended his career with the Oakland Raiders. While in New York, he purchased a family home which he still owns, but rents to a tenant because he and his family now live in California.

Having retired at the age of 34, but still supporting a wife and five children, Ron was interested in pursuing a new career. The career he chose was in the food industry. While at Dallas, as mentioned, he met Troy Aikman who was a spokesman for a new chicken wing franchise known as “Wing Shop” which sold fried chicken wings along with various sauces. Ron acquired three Wing Shop stores in Alameda County. One store located in Oakland was next to the football stadium and Ron was able to procure a liquor license, enabling the Oakland location to legally sell beer to customers who purchased chicken wings from that particular location.

Wing Shop in Oakland is a location that many New York Giants fans go to prior to any game between the New York Giants and the Oakland Raiders because they know it is owned by Ron. On one Sunday before a New York Giants and Oakland Raiders game, fans from New York were at the Wing Shop. One group of fans consisted of a husband and wife and their young child. Unfortunately, the husband and wife drank too much, and were not supervising their child as well as they otherwise could have been.

The Oakland location of Wing Shop has a child playground and while the parents were eating their chicken wings and enjoying their beers, their child was eating a chicken wing while playing on the play structure. She fell from the structure. When she hit the ground, a chicken wing lodged in her throat, causing her to choke. The child was rushed to the hospital and on the way to the hospital an emergency tracheotomy was performed. A tracheotomy is a procedure whereby an incision or slit is cut in the outside of the throat area and a tube is inserted so that air can get to the lungs. Fortunately, at the hospital the chicken wing was dislodged, and the child had a full recovery, but did undergo the pain and injury of a tracheotomy.

The child and her family returned to New York, and Ron has learned that they are interested in filing a lawsuit against Ron. The claim was that the child was injured because the chicken wings were too spicy and that caused the girl to choke on the chicken. Ron believes that the chicken got lodged in the child’s throat because the child was eating while playing on the playground equipment and fell, and not because of the condition of the food.

In any event, Ron is worried about being sued and needs to know what he should be concerned about. He has asked me. I have decided that the students of the Business 80 class at San Jose State now have acquired enough knowledge to provide some preliminary guidance and have prepared the report outlined below.

REPORT

This Report addresses the legal issues surrounding the injury that occurred in California and what Ron should expect to happen. This report will address the rules regarding the process to be followed, which are typically referred to as (1), and the later section of this memorandum will address the (2) which deal with the respective rights and obligations of the parties. The legal system we have in the United States is (3) borrowed in part from England. Our system differs from other legal systems such as those countries that follow the French System which is known as a (4).

The first question that comes to mind is whether Ron can be sued and forced to defend himself in New York? Obviously, Ron lives and is located in California, and the injury occurred in California. Hence, the first question is whether New York has (5), and that will be determined by what rules its legislature has made and whether New York enacted a (6). If New York has, then Ron may be sued in the state court of New York and be forced to defend himself; provided the person suing, which is an issue addressed later, can establish that Ron has sufficient (7) with New York because he once played football for a New York NFL football team or whether the court believes through his Wing Shop restaurants he has availed himself of (8) of doing business in New York because he is also a part owner of a Wing Shop in New York.

If he is sued in New York, he will need to be concerned about whether a New York State Court would be unduly sympathetic to a citizen of their state. For that reason, he should determine whether he can have a Federal Court hear the claim based upon the fact that he is a citizen of another state and (9) exists. If both New York and the Federal Court located in New York have the legal authority or power to hear this case, then (10) is said to exist. Another factor influencing what is the proper court in which to adjudicate this case is that the Federal Government has enacted a comprehensive statutory scheme covering food safety. It may be that after closely reviewing this new legislation the matter can only be heard in the Federal Court because it comprehensively legislated in this area, and (11) exists with the Federal Court.

Another question is who will actually be the person filing the lawsuit. This person is referred to as a (12). Will it be the injured child or his parents? Typically, the parents, as guardians, will sue on behalf of the child. Since Ron is being sued, he will be the (13). Regardless of the technical issue of who is the proper person to sue, this is a relatively sympathetic case and Ron may have considerable exposure due to sympathy considerations although he may have no legal culpability. Therefore, before proceeding to litigation, he should consider whether any type of (14) procedures are available. If so, Ron should try (15), because this will afford him the opportunity to see if the matter can be settled with the help of a (16) without having an adverse determination on the merits of the claim or lawsuit. Alternatively, if he wants to hear the dispute to a final determination outside of the court system, we may want to consider (17). This can either be (18), where the case is heard and decided by the arbitrator and the decision, called an (19), is a final decision enforceable by the court. On the other hand, Ron might want to choose (20), whereby if either side is unhappy with the resolution they can still seek to have the case heard in court. There are two major service providers who can provide these services. I have checked and the (21) which is the service provider that has a longer history than the other next mentioned has offices in New York. However, we might want to hire a retired judge from (22).

If Ron cannot keep this matter out of the court system, at some point a lawsuit will be filed. A lawsuit will be initiated by the filing of a (23). After it is filed, Ron will have to be given formal notice of that occurrence, which is typically referred to as (24). When that happens, Ron will also receive a copy of another document that notifies him of his obligation to respond, which is typically referred to as a (25). If the court documents are delivered directly to Ron, then he receives formal notice of the legal proceedings through (26). Yet, if Ron is not at home when the delivery of these documents occurs through the effort of a paid (27), the documents can be given to his wife or anyone else over 18 years of age and once done (28), rather than (29) occurs if copies of the documents left at his home are mailed to Ron thereafter.

Because the child who was injured presents a sympathetic case, if this matter is heard by a jury the award may be quite large. Hence, the question raised is whether the case must be heard by a jury. The answer is that the right to jury is guaranteed by the (30). Recognizing that Ron may be stuck with a jury, then he needs to spend some time making sure that the jury selected has no particular biases. His lawyer should start evaluating what is the theory of the defense and begin thinking about those questions that are asked by lawyers of the jury before the trial witnesses are called during the process of (31). Obviously, much more will need to be done before that stage of the litigation is reached, including the items mentioned next.

Ron should immediately begin to think about what information might help him defend against the lawsuit and what information is needed from the other side and what information the other side will need from Ron. This is typically referred to as (32). The tools available will be the ability to get documents or other relevant information, generally referred to a (33). Additionally, Ron’s lawyers will be able to interview the child and parents and other witnesses under oath in front of a court reporter, typically referred to as a (34). Ron may want to get from the child or her parents information about the child’s medical history through the sending of written questions typically referred to as (35). If they are unable to provide that information, then Ron may need to obtain that information from the family’s doctor and we will need to prepare a (36). Whether Ron will get this medical information depends upon whether those medical records are protected from being disclosed or deemed to be (37) documents. If the documents are covered and are protected against disclosure, Ron cannot expect to receive the documents because the doctor-patient privilege is an (38) as opposed to a (39) which is generally only applicable to Ron’s lawyer’s work on the case and is called the (40).

Ron may want to adjudicate the case without the necessity of trial due which he might be able to do because it is undisputed that the child when eating the chicken wings was playing on a play structure and the fall from the structure may have caused the choking. Although we need to research the issue under New York law, this conduct, if it can be proved, may be a defense. If there is no disputed issue of fact that falling from the structure rather than the spice on chicken wings caused the choking and the resulting the injury, and the law acknowledges the defense, Ron might be able to win the case on a (41). The child’s own conduct if it helped cause the injury is the defense called (42) and the application of this doctrine would normally be a complete defense. However, both New York and California adopt (43), which when applied is not a complete defense, but reduces the damage award based upon the percentage of fault the jury finds as between the child and Ron.

An option that Ron does have is not to answer the lawsuit filed in New York based on the grounds that New York does not have the legal power to hear the case. However, that is a risky move for Ron to not respond. If he fails to respond, then a (44) will be entered against Ron once a court form similar to the one used in California and entitled (45) is prepared and filed with the court assuming the procedures in New York are similar to those in California. When the court in New York awards money to the plaintiff because Ron failed to respond, the award will be referred as a (46), and will then be brought to California to determine whether it can be enforced. This will occur only after Ron has been afforded his rights of (47) which at a minimum will require the plaintiff to schedule a hearing on the Court’s (48). Any California judgment can be collected over (49) and if not collected within that time, can be (50) for another 10 years and will accrue (51) interest until collected.

Now that the major issues regarding the methods of enforcing these various rights have been reviewed, the next section will address (52) law issues, which consists of those laws that create the applicable legal obligations and duties. Preliminary research has uncovered that the Legislature in New York has not enacted any laws in covering liability related to injuries caused by the ingestion of food which rules since the rules are legislative rules, rather than judicial decision, are referred to as (53). Since the Legislature hasn’t spoken, legal research requires a review of the various decisions of the courts, typically referred to as (54).

The area of law that covers this is generally referred to as (55) law because Ron does not have a contract with the injured child and this area deals with the rights and obligations existing among people regardless of whether the person is aware of the rules or not. The claim that most likely will be brought is the unintentional act of negligence because it is claimed that Ron fell below the applicable standard of care. In looking at this area of law, it seems that the injured child or his parents need to show that Ron owed the child a duty of care and which he breached and that the child suffered damages and that those were caused by Ron’s lack of due care. If the requirements have been met, this legal theory will be included as a (56) if the complaint is filed in California rather than New York, and if the complaint is filed in Federal court the legal theory would be referred to as a (57). Yet no lawsuit has been filed. When filed, it must be filed within two years. Under the (58) if a lawsuit is not filed within that time after the claim arises, it will be barred.

Ron fully expects to be sued, and he should know how the matter will be prepared for trial. Typically the lawyers will be doing a variety of things once all relevant information has been exchanged through the process already mentioned. The lawyers will be preparing documents in anticipation of trial which are given to the Judge prior to the trial. These include documents outlining what law will be told to the jurors by the judge, which are generally referred to as (59). Also, sometimes there are issues that come up during the litigation that are not relevant to the dispute and only have a tendency to distract the trier of fact. Other times, information is revealed during the course of the exchange of information which one party or the other would not like to have considered by the trier of fact. Under these circumstances the lawyer, prior to trial, will prepare pleadings and other documents generally referred to as (60). These documents are usually given to the judge the first day of trial and there is a meeting with the judge prior to the beginning of the trial to discuss the issues raised.

Once this preliminary meeting is concluded, the Judge will ask the court clerk to call potential jurors from the jury room. At this particular time, generally 12 jurors and 2 alternative jurors are selected and the lawyers are given the opportunity to ask the jurors questions. This procedure was already mentioned, but was not explained. It will be now. One of the things the lawyers are trying to ascertain during this questioning is whether any of the jurors are biased. In addition, the lawyers are trying to determine whether they feel, for whatever reason, the jurors will be good jurors or not so good jurors in light of the unique facts of the case. If, during this questioning the lawyers discover that one or more of the jurors either knows the parties or expresses some bias, then the juror may be excused by a (61). On the other hand, there are some jurors who, for whatever reason, a particular lawyer may not think will be in his or her client’s best interest. Although there are a limited number of these, the lawyer can excuse these jurors by exercising what is generally referred to as a (62).

Once a jury is selected, the case begins and it typically begins with the lawyer who represents the plaintiff who gives an (63). Thereafter, witnesses are called. The lawyer who calls the witnesses conducts what is referred to as (64). The lawyer who does not call the witness then is afforded the opportunity to engage in (65). Once a plaintiff has finished his case, then Ron as a defendant can either put on evidence regarding any defense that Ron has to the complaint or put on evidence regarding his (66) if he responded to the complaint by filing his own responsive lawsuit. For example, if Ron sued the child’s parents for the intentional tort previously identified concerning their untrue published statements, Ron will have to prove that case or set of facts.

After the case is concluded, the jury renders its decision, which is referred to as a (67). Thereafter, the losing party may challenge the jury’s decision on a number of grounds, including one procedure referred to as (68), which involves the losing party arguing that the judge should act to overturn the jury’s results. If that is not successful, then a judgment will be entered. At that time, one of two things will happen. Either the case is appealed or it is not. To initiate the appeal, the losing party will have to prepare and file a (69).

If the case is appealed, two additional documents among others need to be prepared and sent to the reviewing court. One document concerns what was said during the course of the trial, which is generally referred to as the (70). The other is copies of all documents that were presented during the trial, which is generally referred to as the (71). If there has been a money judgment awarded by the court against Ron and he wants to appeal, then to stop the enforcement of that judgment a (72) has to be posted. If that document is not posted, then the person in whose favor the judgment is entered has the ability to engage in efforts to collect the money. Typically the procedures to collect the money involve the recordation of documents with the various county recorders’ office which documents are referred to as (73). These documents, once recorded, become liens on any of the real property owned by the person who owes the money pursuant to the judgment. In addition, if there are assets other than real property that the person who owes the money owns, the person who is owed the money based upon the judgment may also file with the Secretary of State a document generally referred to as a (74). Also, the person who is owned money may engage in efforts to determine the nature, extent and location of the various assets owned by the person who owes the money. This is typically done through a court proceeding referred to as a (75). If after following this proceeding information is obtained about the nature, extent and location of assets, then the person who is owed the money can obtain from the court documents which will allow the money to be retrieved. For example, if the person who is owed the money learns that the person who owes the money has a bank account, then documents may be issued on the bank to take that money and these documents are referred to as (76).

STUDENT NAME:____________________

STUDENT ID:________________________

HTEM 107 SPRING 2020, FIRST MIDTERM

Answers:
	10 years
	10%
	absolute privilege
	abstracts of judgment
	alternative dispute resolution
	American Arbitration Assoc.
	arbitration
	award
	binding arbitration
	bond or undertaking
	cause of action
	challenge for cause
	civil law system
	claim of relief
	clerk’s transcript
	case law
	common law system
	complaint
	concurrent jurisdiction
	cross-complaint
	cross-examination
	default
	default judgment calendar
	defendant
	deposition
	direct examination
	discovery
	diversity of citizenship
	due process
	exclusive federal jurisdiction
	interrogatories
	JAMS
	JNOV
	judgment by default
	jurisdiction
	jury instructions
	long arm statute
	mediation
	mediator
	minimum contracts
	motion for summary judgment
	motions to exclude/in limine
	non-binding arbitration
	Notice of Appeal
	opening statement
	order of examination (OEX)
	peremptory challenges
	personal property lien
	personal service
	plaintiff
	privileged
	procedural rules
	process server
	qualified privilege
	renewed
	reporter’s transcript
	request to enter default
	request to produce
	service by publication
	service of process
	statute of limitations
	statutes
	subpoena
	substantive
	substantive rules
	substituted service
	summons
	the rights and benefits
	U.S. Constitution
	verdict
	voir dire
	work product privilege
	writs of execution