...Risk Management- Drunken Patient Lawsuit LAW/531 February 17, 2014 Risk Management- Drunken Patient Lawsuit The IRAC method is an instructional tool that can aid students in the comprehension and evaluation of information so that they can make informed value decisions. It is an acronym for Issue, Rule, Analysis, and Conclusion. Although this is a legal model used to evaluate hypothetical situations in law cases, it is by no means limited to the study of the law. Useful for case studies presented in varied mediums such as narratives, videos/films, or recordings, the IRAC method may be applied to other activities such as defining a term or demonstrating a concept, principle, relationship, analogy, or contrasting idea. Often the instructional focus is on the end result of case study discussion rather than on how to "walk through" a method or approach to be used by the students in the case analysis (Bittner, M.1990). Issue: A recent court ruling should motivate hospital risk managers to conduct a careful periodic review of their facility's procedures and legal obligations when it comes to treating intoxicated patients. The patient, Kevin Kowalski, later wandered onto a nearby highway and was struck by a car, leaving him paralyzed below the neck. Throughout the case, Mr. Kowalski contended that even though he decided on his own to leave the hospital, the hospital should have prevented him from doing so based on his level of inebriation. Analyze: In order to analyze...
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...rmWhat is IRAC? IRAC stands for Issue, Rule, Application, Conclusion. It is one way to structure legal analysis. An effective essay (no matter the overall length) follows some form of the IRAC structure where it is organized around each of these elements for each and every issue and subissue identified as a legal problem. IRAC is an extremely useful tool in organizing any law related essay answer. It is not the only way to structure an answer, but it helps to make sure all bases are covered. So, until you achieve the level of mental and written fluency where you can weave together rule and fact in a seamless tapestry and transition between thoughts without loss of either the substance or your reader, you might choose to rely on some form of IRAC to keep focused. Use IRAC as tool for organizing your thinking and your writing. Think of it as a weaving loom that is there only to support the threads of your argument, while you weave and create an intricately beautiful piece of fabric, i.e. a complete, logical argument. Soon, the process will become automatic and you will rely less and less on the loom. Until then, you have something you can rely on to guide you through the process. How to IRAC 1. State the issue The issue is the most important element in the analysis and must be stated in a way to show what is in controversy. The legal question weaves together the rule and the facts particular to the problem you identified. Articulate the issue by creating the legal question...
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...Week 5 IRAC Brief Norma Chavez Clara McKinnie Delia Silva Alejandra Solorzano LAW/531 March 26, 2014 Michael John Abstract NovaStaar Investments, LLC is a private company that was formed in 1999 for the sole purpose of taking control of Staar Surgical Company by offering shareholders $15 per share. NovaStaar’s offer was rebuffed by the then board. Since then several shareholders and board members have approached NovaStaar about their interest in the company. NovaStaar will not reveal their level of interest in Staar until several issues have been resolved. Specifically the lawsuits involving former Chairman of the Board Andrew F. Pollet. Mr. Pollet filed a lawsuit against a former employee alleging libel and defamation of character. Mr. Pollet is also involved in other court action where he allegedly asked Staar board members to forgive debts he had incurred by borrowing money from Staar and where he was accused of pilfering from Staar and using company funds to pay his personal expenses. Week 5 IRAC Brief Methods for managing legal risk Society must balance business interest and injury to prevent legal liability. To minimize liability of legal risk the business and the individual must first understand the process. Once the knowledge has been obtained then the necessary steps can be taken to eliminate and reduce the effects of the risks involved in order to prepare accordingly. Issues On June 3, 1993 in Texas, Novastaar Investments, LLC, an entrepreneurial...
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...IRAC Facts: Wynona Harris started working in October 2004 as a bus driver trainee for the City of Santa Monica (City). In the course of her 40-day training period, Harris had a “preventable” accident causing minor damages on the bus’s back door glass. As soon as she completed her training and became an at-will employee, her probationary driver status started. She then encountered her second preventable accident. On top of her accidents, Harris had her “miss-out” incidents, where she neglected to call her supervisor at least an hour notice, informing about her absent of her shift. Per City’s regulation, drivers allowed to have at least one or two miss-out annually. However, this may imply a “reliability problem” with the driver. In March 2005, Harris’s supervisor had given her a performance rating of “further development needed.” The following month, she consumed her second “miss-out” which impelled a management review of her employment file. Bob Ayer, a transit service manager reviewed and provided his recommendation to the assistant director. He had determined that due to Harris’s two “miss-out”, she did not met the city’s standards for continued employment. A month after Harris mentioned to her supervisor that she was pregnant. Her supervisor requested a doctor’s note absolving her continues work. Harris had given the doctor’s note four days after which allowing her to work with some partial restriction. On that same morning, her supervisor had received an employment...
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...To: Steve Howe From: Cristina Aravena Date: September 21, 2015 Re: Mark Down Client Mark Down came to the law firm of Dewey, Cheatum, and Howe. We did a will for him stating that all his assets go to the children since his wife previously past. He executed a power of attorney to his son, Slowe, giving him the power to handle all of his assets. Mark Down health started deteriorating and Slowe is worried that Mark may need Medicaid. Slow wants to remove Mark’s assets of $300,000 brokerage account and give them to his children. Since Slowe said Mark is losing competency and doesn’t want to deal with any financial matters anymore, Slowe is asking if he can transfer the money. Right now that would put Mark at a 5 year period of ineligibility for long term Medicaid care. According to New York law, there are limitations to how much a power of attorney can gift a year. In the Matter of Ferrara 7 N.Y. 3d 244 (2006), decedent George J. Ferrara, executed a will stating that his entire assets will go to the Salvation Army. When the decent became hospitalized in Florida, his nephew Dominick Ferrara came and visited then decedent, then told Dominick to obtain powers of attorney so that [he] could attend to [decedents] affairs. (id. 248) “Florida powers of attorney apparently authorized Dominick and john Ferrara to write checks on decedent’s bank accounts and liquidate certificates of deposit”. On January 25, 2000, decedent signed multiple originals of a “Durable General...
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...Modified IRAC Analysis The fact of this case is the defense was challenging a strike of a juror, Zeniab Osman, that was made by the prosecution. This was the second juror that was struck from the case both being black individuals. The defense was claiming the strike was because of discrimination of a race. Under the statute created by Melbourne vs Florida (1996), a set of steps is to be taken when a peremptory strike is challenged as being discriminatory. Those steps are: 1. The side objecting to the others use of a peremptory challenge on racial grounds has to make a timely objection, display that the juror is of a distinct racial group and request that the court ask the striking party its reasoning behind the strike. 2. The burden of production of...
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...IRAC Case Study LAW 531 Case Summary Superstar Kim Kardashian was victorious in a legal battle with her estranged husband Kris Humphries. Kris Humphries demanded access to view emails Kim Kardashian had in a closed e-mail account. These e-mails were personal private property of Kim Kardashian’s and not a marital asset or a real asset. Because this was not a business situation, Kris Humphries could not claim he had rights to Kim’s personal e-mails. Cheeseman (2013) states, real property is immovable or attached to immovable land or buildings, whereas personal property is movable. In this situation, the e-mail account in question is personal property. According to FindLaw (2013), E-mail privacy is derived from the Fourth Amendment to the U.S. Constitution and is governed by the "reasonable expectation of privacy" standard. Rule Cheeseman (2013) states, "The law protects the rights of owners of personal property to use, sell, dispose of, control, and prevent others from trespassing on their rights." In the divorce case of Kardashian vs. Humphries the personal property belonged to one party of a divorce and does not belong to the other party. It is lawful for the owner of the personal party to prevent the other party from trespassing on their rights. In the case of divorce a party who wants access to the other party's personal property does not have a legal right to it. If this was a business managerial setting the electronic communication would be consider...
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...9/27/15 Case 7.1 Bruesewitz v. Wyeth, LLC I: Whether or not Wyeth was liable for its product, or vaccine? R: NCVIA act allows people injured by a vaccine to file for compensation but the acts quid pro quo eliminates liability for a vaccine's unavoidable, adverse side effects. No fault compensation program A: Acts quid pro quo provides an efficient compensation program for vaccine injuries; in exchange they avoid costly tort litigation C: U.S Supreme Court affirmed the lower courts judgement and they can't bring further to any court because the party had received enough compensation from the act 7.2 Wilson Sporting Goods Co. v. Hickox I: Whether there was product liability based on design defect R: Consumer expectation test says a product is unreasonably dangerous when it fails to perform in the manner that would reasonably be expected by an ordinary consumer A: An ordinary consumer would have expected the mask to perform more safely than other models and would have expected baseball masks to disperse rather than concentrate energy C: The judgment of the court affirmed in favor of plaintiff 7.3 Johnson v. Medtronic, Inc. I: Whether the plaintiff could pursue a theory of recovery alleging both a design defect and defect in warning label R: Product is defective only when foreseeable risks posed by product could be reduced or avoided by reasonable instructions A: They could not establish that the Medtronics use couldn’t be anticipated ...
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...HROB 153 Employment Law ------------------------------------------------- Rojo and Toland IRAC Curt Marchione HROB 153 (Section 3) May 19, 2015 HROB 153 Employment Law ------------------------------------------------- Rojo and Toland IRAC Curt Marchione HROB 153 (Section 3) May 19, 2015 Factual Summary of Rojo v. Kliger Rojo v. Kliger, 801 P.2d 373 (Cal. 1990) Plaintiffs Emma Rojo and Teresa Maloney were employed as assistants by defendants Erwin H. Kliger, a practicing physician, and Erwin H. Kliger, M.D., a medical corporation (hereafter referred to collectively as defendant). In August 1986, there was a complaint filed by the plaintiffs against the defendant. The plaintiff accused the defense of violating FEHA and “intentional infliction of emotional distress”. The Plaintiffs alleged that during their employment the defendant subjected them to sexually harassing remarks and demands for sexual favors. These remarks resulted in the plaintiffs being forced to leave their employment. Defense moved for summary judgment due to the fact that, “FEHA constituted plaintiffs' exclusive remedy and that plaintiffs had failed to exhaust their administrative remedies under the act.” Plaintiffs argued, “FEHA does not supplant other state law remedies, including common law claims, relating to discrimination in employment, and that pursuit of the administrative remedy is not a condition precedent to judicial relief.” The trial court granted defendant's motion and...
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...Brown v. Board of Education of Topeka, 347 U.S. 483 (1954) Facts: Black children were denied admission to schools attended by white children under laws that permitted or required segregation by race. The children sued. Issue: Do separate but equal laws in the area of public education deprive black children of the equal protection of the laws guaranteed by the Fourteenth Amendment of the United States Constitution? Rule: No. The race-based segregation of children into “separate but equal” public schools violates the Equal Protection Clause of the Fourteenth Amendment and is unconstitutional. Analysis: Separating black children from others solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone. The impact of segregation is greater when it has the sanction of law. Conclusion (Vote): 9 Votes for Brown, 0 Votes against, Legal provision; Equal Protection Impact: Schools can no longer be segregated. Miranda v. Arizona, 384 U.S. 436 (1966) Facts: Miranda was unaware of his rights under the Fifth Amendment of the United States Constitution and offered incriminating evidence during police interrogations. Issues: The question is whether or not the police is required to notify the arrested defendants of their Fifth Amendment constitutional rights against self-incrimination before they interrogate the defendants? Rule: The U.S. Supreme Court established...
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...Rocky v. Columbia Lawnwood Regional Medical Center, 54 F. Supp. 2d 1159 (S.D. Fla. 1999). Facts: Plaintiff, a hospital employee with a disabled son, was fired for excessive tardiness, absenteeism, and other performance-related reasons. The employee alleged her absence from work was to care for her disabled son, and that she was fired in violation of the Family Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA). On motion for summary judgment, the district court found in favor of the employer. Issues: 1. Whether terminating an employee for excessive tardiness and absenteeism when such absences were to care for a disabled family member raises an inference that the termination was due to discrimination on account of the family member's disability, in violation of the FMLA. 2. Whether terminating an employee for excessive tardiness and absenteeism when such absences were to care for a disabled family member raises an inference that the termination was due to discrimination on account of the family member's disability, in violation of the associational disability provisions of the ADA. Holding: 1. The employee was not terminated because she had a disabled family member, but rather because she was unable to regularly and reliably attend work. 2. Employers are not required to make reasonable accommodations for the family member of a disabled person under the ADA . Thus, the individual claiming protection of the ADA must be able to perform the essential...
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...(1) Briefs may be prepared using a printing, duplicating or copying process capable of producing a clear letter quality black image on white paper, but shall not include ordinary carbon copies. If briefs timely filed do not conform to this rule or are not clearly legible, the clerk of the supreme court may require that new copies be substituted, but the filing shall not thereby be deemed untimely. Each brief shall be in pamphlet form upon good quality, nonclinging paper 8 ½ by 11 inches in size, with front and back covers of durable quality. Each brief shall have a minimum margin of one inch on the binding side and shall be firmly bound at the left margin. Any metal or plastic spines, fasteners or staples shall be flush with the covers and shall be covered by tape. The covers shall be flush with the pages of the case. See also Rule 26(5). If briefs are produced by commercial printing or duplicating firms, or, if produced otherwise and the covers to be described are available, the cover of the brief of the appealing party should be blue; that of the opposing party, red; that of an intervenor or amicus curiae, green; and that of any reply brief, including the answering brief in accordance with Rule 16(8), gray. The cover of the appendix, if separately printed, should be white. The court will not accept any other method of binding unless prior approval has been obtained from the clerk of the supreme...
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...I. Issue- Do mobile homes fall under UCC as good not real estate? II. Rule: N.C. Gen. Stat. § 25-2-102 (2009), the law traditionally treats a mobile home not as an improvement to real property but as a good, defined and controlled by the UCC as something movable at the time of identification to the contract for sale. III. Application of facts-. The defendant sold the plaintiff a mobile home. Since the mobile home was on a brick foundation the plaintiff contends that it was real estate and not a good under UCC. IV. Conclusion: Because the plaintiff had crew break down the home from the brick foundation and remove it’s under pins, the home therefor is considered moveable, and falls under the UCC as good. V. Issue- Does the transfer of risk of loss of the mobile fall under UCC or DMV? VI. Rule: N.C. Gen. Stat. § 25-2-509 if the contract does not provide for the seller=s shipment of the goods by carrier or a bailees holding of the goods for delivery without being moved, and the seller is a merchant, and the risk of loss passes to the buyer on his receipt of the goods if the seller is a merchant VII. Application of facts- Defendant proposed a contractual provision requiring it to relocate the mobile home from its existing location to Plaintiff=s property, but Plaintiff ultimately declined the inclusion of such provision. Instead, Plaintiff elected to purchase and accept the mobile home “As is where is”, as reflected in the sales contract. VIII. Conclusion:...
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...Week 6 IRAC Issue What is the question presented to the court? Is NetJets required to collect excise tax on air transportation under section 4261 from owners of its fractional aircraft ownership program? Rule(s): FAA regulation 91.1001 states Fractional Owners or the Management Company are responsible for paying taxes. According to CharitablePlanning.com, Kallina & Associates, LLC (2014), “Under FAA Regulations, Title 14 CFR, Part 1, "commercial operator" is defined as a person who, for compensation or hire, engages in the carriage by aircraft in air commerce of persons or property.” (para. 6). Title 26 of the Internal Revenue Code, upholds that if the individual receives compensation in cash or property, the appropriate taxes under section 4261 and 4271 should be imposed on the “customer.” ("Title 26—internal Revenue Code"). Application/Analysis: The rules involved in this case are ambiguous. NetJets claims FAA part 91 flights are tax exempt because they are noncommercial. “Title 26 - IRC § 4261 Subchapter C—Transportation by Air (d) By whom paid. States “Except as provided in section 4263(a), the taxes imposed by this section shall be paid by the person making the payment subject to the tax.” In this case the passenger or owner. Under fractional ownership, the Program Manager is responsible for collecting the taxes imposed by section 4261, NetJets. Ultimately it comes down to Internal Revenue Service Ruling 78-75, 1978-1 C.B. 340, basically states that FAA regulations...
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...IRAC Brief Case Analysis LaTasha Edwards, Margarita Castaneda, Jesse Ellison, and Jonathan Deschine University of Phoenix Business Law 531 James Rambeau July 1, 2015 IRAC Brief Case Analysis Currently, teachers of California are considered government workers and have to pay union dues, according to the law, as a condition of employment. “This arrangement was established under the 1977 Supreme Court case, Abood v. Detroit Board of Education” (Kovacs, 2015, para. 2). The purpose of the lawsuit is to bring back the right to choose and eliminate paying union dues by force that can benefit organizations teachers do not support. The teachers are being represented by Center for Individual Rights and are challenging laws in relation to agency fees under freedom of speech and association grounds. Issue: Was the right to choose and eliminate paying union dues reestablished? Rule: “Typically, California teacher union dues cost upwards of a $1000 per year. Although California law allows teachers to opt-out of the thirty percent or so of their dues devoted to overt political lobbying, they may not opt out of the sixty to seventy percent of their dues the union determines in devoted to collective bargaining. Requiring teachers to pay these “agency fees” assumes that collective bargaining is non political” (Kovacs, 2015, para. 4). Analysis:” “agency fees” laws, which require government workers to pay union dues as a condition of employment in order to negotiate political...
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