Question

Owen needs a new roof for his home across the 125 freeway near Grossmont College. After extensive research he chooses concrete tile due to its durability. He signs a contract with Marshall of Phoenix Roofing, Inc., an Arizona-based roofing company expanding into the San Diego area. The tiles are delivered the day before installation is to begin. As a standard practise, the tiles are lifted by a crane to the roof, and stacked in piles of 10. Owen questions why the tiles are not yet secured to the slanted roof, but Marshall assures him that the weight of the tiles will keep them in place until installation begins tomorrow. Later that evening Owen feels the room begin to shake. The lamps start shaking, the room begins swaying, the dog begins barking and his Budweiser beer slides off the table, breaking into pieces. It’s an earthquake! He jumps up from the couch and runs for the door, stepping barefoot onto the broken glass. Just as he exits a tile from the roof slips off the stack, slides down the roof and smashes right into Owen’s head. He wakes up the next morning in the ICU with a cracked skull and a major concussion and a severed nerve in his foot caused by the broken beer bottle. Two weeks later he’s released from the hospital. He contacts you, his lawyer. He wants to sue.

You file a lawsuit against Marshall seeking to compensate Owen for his injuries?

a.Which issue will you raise in this lawsuit. (Just the issue)

b.What is the definition of this legal issue? List the elements. (Rule)

c.List facts that Owen will present to the court to prove his case against Marshall? (Be sure to address each element)

d.For this question only we add this fact. Let’s say what caused the tiles to slide off the roof was that a neighbor's tree fell on Owen’s roof, knocking down the tiles. Further investigation showed that the tree was poorly maintained, causing shallow roots and making it more vulnerable to falling. Would this fact help or hurt Marshall’s defense? Explain.

e.In your lawsuit against Marshall you seek punitive damages.

i)What are punitive damages?

ii)Will Owen be entitled to punitive damages if he wins? Explain.

f.You file this lawsuit on Owen’s behalf in federal court.  

i)Federal courts can have jurisdiction in two circumstances. List both.

ii)Can Owen file in federal court? Explain.

g.Let’s say Owen does decide to file his lawsuit in California state court. He serves Marshall at his Phoenix, Arizona, headquarters, telling him to come back to San Diego to defend himself. Marshall claims that California does not have jurisdiction over him because he lives out of state. What will be the result? Explain.

h.Before the parties go to trial, both will participate in the Discovery process.

i)What is the purpose of Discovery?

ii)List three Discovery tools, explaining how each can be used.

Answer 1

a) Breach of Contract

b) Breach of Contract- Breach of contract is the violation of the legally binding agreement, in which one party fails to deliver according to the terms of agreement.

Elements of breach of contract are :

1) The existence of a contract.

2) Failure to perform the contract by the defendant.

3) Performance by the plantiff or some justification for non performance.

4) Resulting damages to the plantiff.

c) Facts that Owen will present to the court to prove his case against Marshall are :

1) Prove the existence of the contract - Valid contract (offer, existence and consideration) exist between Owen and Marshall.  

2)Plantiff(Owen) was damaged by the breach- As Owen suffered from a cracked skull, a major concussion and a severed nerve in his foot.

3)Prove that Marshall failed to perfom his part of the contract - Marshall breached the contract and failed to render performance when it became due.

4) Prove that Marshall fails to perform according to the provisions of the agreement - The tiles were not secured to the slanted roof as per the agreement which caused the plantiff(owen) economic loss, pain and suffering.  

d) The fact will help in Marshall's defence because the tiles slide off the Owen's roof due to the poor condition of neighbor's tree ,not the negligence on part of Marshall .