LAW 531 Week 3 Assignments
Week Three IRAC Brief
Case:DePuy Orthopaedics, Inc. v. Waxman. August 3, 2012. In the outlined case, DePuy is trying to sue one of their distributors Joint Venture for breach of a non-compete agreement. Under the non-compete covenant Joint Venture disclaim the rights to any of DePuy intangible assets, including intellectual property (IP), goodwill, and customer lists. DePuy claims that Joint Venture breached the non-compete agreement which caused a drop in sales and damaged their relationship with customers in the territories outlined within the agreement.Therefore, the legality of the contract enforced due to the breach of the non-compete agreement. According to Cheeseman 2013, “the section 2-201(1) statue of sales contracts of Uniform Commercial Code laws help prevent fraud like this case” (p. 171). To avoid this case by Depuy or any other companies’ managerial setting must specify agreements with language that is comprehensible by both parties in written valid contracts.
Issue:Was there a breach to the contract, under that non-compete covenant between DePuy and Joint Venture? What kind of defenses do companies use to mitigate risk related to personal, real, or intellectual property (IP) issues?
The main reason this case went to court is because of the breach of non-compete agreements by Joint Venture. DePuy outlined in the Amendment Agreementthat it had retained the sole right to enforce the non-compete covenants that Joint Venture had the right to enforce (Case). This means that once Joint Venture began calling accounts in their former DePuy territories they were in breach of the Amendment Agreement, which led to the drop of sales for Depuy.One form of intellectual property is trade secrets, and customer lists are considered trade secrets (Cheeseman, 2013). In this case, the former employees should not have used previous contacts to increase sales for their new employer. They may have considered the lists to be their personal property. Those contact lists and the act of being a sales representative of [DePuy] in the Countiesare considered intangible assets of intellectual property. “Intangible assets are those that do not exist in a physical form and so cannot be touched or seen” (Intangible assets, 2013).To mitigate risk a business should use specific language to explain the non-compete clause in their contracts. It should be clear to the employee or business partner exactly what is meant and what items are included as DePuy did with Joint Ventures.
Tort Analysis
LAW 531
Tort Analysis
Introduction
Law of tort is disturbed with the involvement and circulation of losses. This division of law prevailing engagements for harms for damages to reserved legal rights, for example, right to property, right to personal security, right to personal reputation, etc. The word “tort” means in law, a wrong or injury which deals with conditions wherever an individual's actions cause injury to people in broad-spectrum which has certain characteristics. Its most important characteristics are that it is redressable in an action for damages at the instance of the injured person. Here the injured person can get damages from the wrong doer to the satisfaction of his injury.
Scenario 1
Iryna Claim
Iryna was served a meal with glass in it causing her severe and permanent oral injuries as well as great pain and torment. Her claims are that Thai restaurant botched to sufficiently preserve, examine, and observe the restaurant's kitchen. If the food is packaged, it's probable to file a products liability incident, as it was hazardous for consumption. It might also be potential to file a regular negligence claim, as a glass in the meal can only mean that something went askew."A manufacturer's or seller's tort liability for any damages or injuries suffered by a buyer, user, or bystander as a result of a defective product” (Baker, Spengler& Connaughton, 2004) is known as product liability.“Products liability can be based on a theory of negligence, strict liability, or breach of warranty" (Garner, 2000, p. 982).This is case of res ipsaloquitor. Glass in her food cannot happen without some type of negligence of the company.
Iryna vs. Doctor:
Iryna was transported to the emergency room for medical attention to stop the bleeding and to save her tooth. Upon her arrival she was informed that she need surgery immediately. She was unconscious and the surgeon mistakes her for another patient and amputates her left leg. She sues the surgeon for professional malpractice and negligent infliction of emotional distress.
“To prevail in a tort lawsuit, the plaintiff must prove that the defendant owed a duty of care to the plaintiff, that the defendant breached this duty by failing to adhere to the standard of care expected, and that this breach of duty caused an injury to the plaintiff”(Studdert, Mello, & Brennan. 2004).
Courts have long ruled that medical malpractice is a foreseeable possibility when injury patients are treated for injuries suffered as a result of the negligence of a third party and because such malpractice is foreseeable, the third party is liable for those injury damages as well.
Patrons Claims
The patrons at the restaurant can sue the restaurant for negligence. The waiters had a duty to be careful and not bump into people or other objects. The rest of the staff had a duty to manage the commotion that ensued as everyone fled the premises. If the patronsdo not have any injures they have no case. The restaurant could also argue contributory or comparative negligence on the part of the people because they failed to exit the restaurant in the manner reasonable people would exit. The old man that was trampled by the crowd can sue the restaurant for negligence as well. He was injured because there were not enough exits for everyone to get out of and he was trying to exit like everyone else. It is the restaurant duty and responsible to provide routes and keep people calm during an incident of this nature that took place in their establishment. They had no plans for exiting if the building was on fire and that why the events
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