Month: October 2019

Canterbury v Pence

Posted on by davidsmacmillan

Dispute

Plaintiff brought suit for negligence against Dr. Pence, a neurosurgeon who had performed a laminectomy. Because of inflammation, the laminectomy was unsuccessful and the patient was paralyzed after a fall at the hospital. Defendant did not disclose risk of paralysis and estimated it to be “only 1%” in testimony. Plaintiff only brought adverse witnesses and personal testimony and the trial court granted defendant motions for directed verdict.

Questions of law

What obligation does a physician have to disclose risks of therapy to a patient? Does a physician have discretion to withhold disclosure of risks? On what basis should causality be evaluated?

Conclusion

The court reversed, finding that the trial court had erred in granting directed verdicts, as there was sufficient testimony to put the question of negligence before the jury. A physician has the privilege to withhold information from a patient but not to avoid the disclosure rule; rather, such a decision is a medical decision and is subject to the same standard of malpractice. Causality is based on whether the disclosure of risk would have changed the choice and thereby the outcome. Holding it to be too difficult to make a subjective determination of what a patient would have done, the court rather called for a test based on whether adequate disclosure could reasonably be expected to have caused a prudent person in the patient’s position to decline the treatment.

Louisville & Nashville Railroad Co. v Mottley

Posted on by davidsmacmillan

Dispute

A railroad had given Mr. and Mrs. Mottley lifetime rail passes to settle a prior claim, but after a federal law made lifetime rail passes illegal, they stopped honoring them. The Mottleys sued in federal court for breach of contract.

Questions of law

What level of relatedness to a federal law is required for subject matter jurisdiction?

Conclusions

Although the Mottleys anticipated that the federal law would be brought as a defense, this anticipation did not satisfy subject matter jurisdiction in their claim, and it was remanded for state courts to handle.

DeFontes v Dell, Inc

Posted on by davidsmacmillan

Dispute

Plaintiff Mary DeFontes and a class sued Dell in Rhode Island for alleged violations of the Deceptive Trade Practices Act, and Dell moved to compel arbitration under an alleged contract accepted when the parties accepted delivery of Dell products. The trial court denied, stating that the plaintiffs did not have reasonable notice of the contract and that the contract was illusory because it included the language “these terms and conditions are subject to change without prior written notice, at any time, in Dell’s sole discretion”, and Dell appealed to the Supreme Court of Rhode Island.

Rules of law

The matter was subject to the UCC. Under the UCC, a sale contract can be created when the goods are shipped, and any subsequent terms are “additional terms in acceptance or confirmation” under section 2-207. Alternately, the contract can be created at acceptance, because the buyer retains the power to accept or return the product.

Under ProCD, Inc. v. Zeidenberg, the practicality of sales is such that a consumer who receives a product and is expressly provided the right to accept or return the product for a refund subject to new terms and conditions may be bound by that contract. However, they must be temporally bound to acceptance.

Under the “layered contract” theory of formation, a seller must prove that a buyer has accepted a seller’s terms after delivery. A buyer who receives a product with additional terms is tendering acceptance by keeping it if the buyer understands that he has the option to reject it.

Conclusions

The court held that although it would have been possible for Dell to give the plaintiffs notice, Dell had failed to do so sufficiently and they could not have reasonably concluded that they had the ability to send the products back and thereby change the agreement. “Although Dell does provide a ‘total satisfaction policy’ whereby a customer may return the computer, this return policy does not mention the customer’s ability to return based on their unwillingness to comply with the terms.”

The court found that too many inferential steps were required of the plaintiffs and too many relevant provisions were left ambiguous.

Meyer v Uber Technologies

Posted on by davidsmacmillan

Dispute

After using the Uber app, plaintiff Meyer sued in federal district court for illegal price-fixing. Uber moved for enforced arbitration pursuant to a digital TOS agreement, and the trial court denied on grounds that Meyer did not have “reasonably conspicuous notice” of the TOS and did not “unambiguously manifest assent” to them. Uber appealed to the Second Circuit.

Rules of law

The appellate court found no questions of fact and reviewed the trial court’s dismissal of the motion to compel arbitration de novo. Under federal law, there is a liberal policy in favor of arbitration agreements and contracts. However, the court must first determine whether an agreement exists to know whether the arbitration element can be enforced. They also must determine whether the dispute falls within the scope of the agreement.

Under California law, an offeree is not bound by “inconspicuous contraction provisions” he doesn’t become aware of, contained in a document “whose contractual nature” is not readily apparent. However, an offeree will still be bound by an agreement if a “reasonably prudent user” would be on notice of the terms at inquiry. An electronic contract is binding if “the layout and language of the site give the user reasonable notice that a click will manifest assent” to the contract.

Arguments

Meyer claimed that he was not on notice of the agreement and had not assented to it. However, Meyer was a regular smartphone user with familiarity with links and app navigation, and he had clicked “register” under the words “By creating an Uber account, you agree to the TERMS OF SERVICE & PRIVACY POLICY” which was argued to mean he manifested assent.

Conclusions

The court held that from the standpoint of a reasonably prudent smartphone user, the design of the screen and language used “render the notice provided reasonable as a matter of California law.” There was also temporal and spatial coupling of the notice with the “register” function. Having those terms of service available only by hyperlink did not preclude the determination that notice was reasonable. Appeals court remanded.