Module 2 Peer Responses

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Jan 9, 2024

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Responses to Professor and Peers 2-2 Name, I agree that there needs to be more done for protection and betterment of elderly. Ralph may not have had anything to do with writing of the will at all; Cora and Darrell contacted the lawyer, and the lawyer drafted the will from their notes that were written by Cora and Darrell stating what they wanted, without thought to Ralph at all. From the reading, it does seem that Cora and Darrell had care for Ralph, as they seem to have visited him a lot, whereas Kathy was not mentioned until after his death. One scenario could be that Cora and Darrell did take advantage of Ralph’s incapacitated state, and Kathy was just unable to visit due to extenuating circumstances, and that Kathy was really a beloved niece and Cora and Darrell were a set of Dickensian relatives out to take advantage of an infirm relative. But, with the evidence that we were given, it seems likely that Cora and Darrell were loving relatives who were looking after the well-being of a beloved relative who fell ill, and they visited him in the hospital until the relative passed. Witnesses stated that he seemed to be in a lucid state around the time of signing the will, which suggests he was lucid. His entrance docs did not state any mental failings, even if after there was mention of possibility of dementia. Name, In regards to the case Pace vs. Steele, the major factors they consider for the mental capacity of Ralph were the testimony of the eye witness and the medical conditions reported by the doctor and nurses in his care. They also considered the influence that Cora and Darrell had on Ralph. The testimony of the doctor and nurses showed that he was still in a deteriorating condition, but not so far gone that Ralph couldn't make decisions for himself. The eyewitness even stated that he was "okay mentally." As far as the undue influence, Cora and Darrell were in a place of trust with Ralph because he was dependant on them. The court ruled that having a favorable relationship did not constitute an undue influence and that Ralph wasn't so far gone with his other factors that he still had his free will. In cases like this, I think it is extremely important to do the due diligence of looking at all the facts to make sure that elders are in the right state of mind when making decisions like this. With the state of uncertain mental capacity, it can be hard to tell if a person in Ralph's case was easy to tell due to being in a facility where they were able to monitor Ralph's physical and mental capacity. But in cases where there isn't a clear idea of where the mental state lies, it could be easy for a relative to take advantage of the situation and make deals with them that might not be ethical. Name,

I tend to agree with you on how the court decided that Ralph was in a favorable state to make his own decision, as witnesses stated that he was lucid at the time around signing the will. I do think it is weird that the lawyer had so little contact with Ralph, however, I do understand that a lawyer being able to make it to a rehabilitation hospital is not exactly the easiest appointment to make on a busy schedule. Cora and Darrell did have an influence on Ralph, but from what the case stated, it was influence of loved ones, or at least of family members who make an effort to visit when Ralph was incapacitated. It could be very easy for individuals to take advantage of those in an unfavorable situation, especially with something like dementia, and family members could be just as likely, if not sometimes more likely, to take advantage of relatives. Name, The critical factors identified by the court with respect to undue influence and fraud in the case of Pace vs. Steele was the mental capacity of Ralph at the time of the signing, and the influence Cora and Darrell had on Ralph. Because witnesses had come forth claiming to had seen Ralph at the time the will had been signed, stating he "seemed to understand what he was doing, that he was “okay mentally,” and that there did not appear to be anything wrong with Ralph’s mind" (Kubasek et al., 2020), debunked Kathy's accusations of Ralph being mentally incapable of signing the will, as well as the contradicting notes in his medical records and Kathy's lack of evidence to prove undue influence. Honestly, I feel more needs to be done to protect the elderly, especially in this case. The will was drafted by notes that were written by Cora and Darrall. Although Ralph had met the attorney who had developed the will, it was only briefly and he was not present at the time of the signing. This alone makes me uncomfortable and is a red flag for me. I feel attorney's should have all parties present when drafting a will and most certainly should be present at the time of signing any forms or deeds. Professor’s Question to Me yesterday at 6:46 PM I agree more protections need to be in place, but part of the problem is the elderly do not always realize when they have been taken advantage of and when they do, it may be too late. Other than wills, what types of scams involving the elderly have you seen? ----- Hi Professor,

One of my neighbors is an elderly widow who lives alone, and she is at risk of financial exploitation by scammers. She has received government impersonation scams as well as sweepstakes scams. A severe ongoing concern for her is the fact that one of the scammers has built a "relationship" with her by playing on her loneliness. The male scammer calls her daily and just "talks" with her. He has convinced her to purchase two $500 gift cards and send him the electronic codes to access the funds. My mother (who works for a police department) and I have tried explaining that this is a scammer taking advantage of her, but she seems to be okay with the risk since he helps her not feel so lonely. My neighbor's grandson is a police officer and has also tried to get her to stop communicating with the foreigner, but she refuses. The elderly community is such an easy target; therefore, more laws should be established to prevent these scams. Regards, ***** 2-1 Professor’s Question to me yesterday at 5:34 PM One of the duties the manufacturer has is to place warnings on certain products. For example, the instructions about not using blow dryers in the tub or while sleeping. If Planters had put a warning on the jar, do you think the outcome might have been different? Have you noticed that rebates peel off now? ----- Hi Professor, Warnings alert to the presence of hazards; without them, a product can be considered defective. Adding a legally adequate warning label to the jar would enhance Planters' product liability defense by fulfilling the manufacturer's duties to inform buyers of possible hidden product dangers. Regarding a warning label, a claim, such as this one, under strict liability would presume that Planters has constructive knowledge of both known and unknown product dangers related to the use of glass jars and must warn consumers accordingly. With a warning label, Planter could prove the negligence was on the part of Welge. Any product with a risk of injury or bodily harm needs a warning label.

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I have noticed manufacturers have adjusted the methods to remove product rebates from products and changed product materials used to store items. For example, Planter’s products are stored in plastic containers, and occasionally, the cardboard canister with a snap-on lid. In addition, I rarely see rebate coupons for products requiring consumers to cut the product. I wonder if lawsuits influenced these changes. Regards, ******** 2-2 Hi, I agree with your statement regarding mental health evaluations for elderly individuals being influential and an added preventative measure. The mental status of the aging population changes rapidly without warning; therefore, assessing the mental capacity of elderly individuals more frequently would allow a more accurate state of mind to be measured. Honestly, I believe more should be done to protect the elderly, especially in this case. The will was drafted by notes written by Cora and Darrall. Although Ralph had met the attorney who had created the will, it was only briefly, and he was not present at the time of the signing. This alone makes me uncomfortable and is a red flag for me. I believe that an attorney should have all parties present when drafting a will and most certainly be present at the time of signing any forms or deeds. Regards, ***** 2-2 Hi, Our understanding and stance regarding this case are quite similar. The court decided Ralph was in a favorable state to make his own decision, as witnesses stated that he was lucid around the time that the signing of the will transpired. I also agree with your comments regarding the circumstances surrounding the attorney's involvement. I am concerned with such a small amount of contact between Ralph and the attorney; however, I understand the difficulty of securing a lawyer willing to travel to a rehabilitation hospital to initiate a will. The cost of such a service would likely be substantial, especially for an elderly individual. Cora and Darrell did have an influence on Ralph, but according to the case facts, it was the influence of loved ones, or at least of family members, who made an effort to visit when Ralph was incapacitated. It could be very easy for individuals to take advantage of those in an unfavorable situation, especially with an ailment like dementia. Family members could be just as likely, if not more, to take advantage of relatives. Regards,

**** 2-1 Name, I do agree that a glass jar spontaneously bursting at the same point in time someone is trying to put a lid on is rather strange, especially as individuals do not normally use excessive force to twist a lid onto a jar. From the plaintiff’s story, there was no unusual handling of the jar, and as you stated, the jar would have more than likely broke at the time of mishandling rather than waiting for the perfect time to harm a person so severely. Justice Posner seemed to have made the best informed decision with the facts and stories presented, in my opinion. The information about Francisco Garcia is unfortunate; when using exercise equipment, most people will read the rules and restrictions to ensure proper usage. When using due diligence does not help to keep harm from happening, there does need to be recompense, even if it doesn’t make it all OK. 2-1 In the case of Welge v. Planters Lifesavers, Welge was injured due to a glass jar of peanuts shattered when he placed the lid back on the jar. After reviewing the case, Justice Posner found that placing normal pressure should on the glass jar should not have caused it to shatter, which in turn found the defendants at fault for the injury. Justice Posner found the defendants liable because of the strict product liability theory, in combination with res Ipsa loquitur. The Justice reversed the decision of the lower courts because the plaintiff proved that it was of not fault of his own that the jar shattered and there is no other reason that the jar could have shattered other than in the process of manufacturing and it was either not known by the manufacturing company or it was not told to Planters Lifesavers about the defect if one was known. With the information provided in the case, I agree with the Judge’s decision to reverse the ruling of the lower court. If there is evidence that proves there was no mishandling of the jar or major damage done it prior to Welge picking it up the second time, such as slamming it or bumping it into a hard surface, then there must have been previous damage that just happened to become evident in the worst way. 2-1 Name, I also agree with Justice Posner’s assessment of the case with the information that we have been given. The jar was more than likely defective, as the information that we are given is that after the item was purchased, the jar was not mishandled in any fashion. More than likely, if the jar was mishandled after purchase, the jar would have broken at that time, or shown some sort of

stress of the mishandling. The defect may not have been known by manufacturer or by Planter’s, but it does seem that there was some defect of the jar, and hopefully it was only that jar out of the whole of the manufactured jars, which can be assumed, as there are no related cases referenced in the reading. When one thinks about opening and closing a jar, typically it is very easy with no bloodshed, so one can reasonably assume that something had to happen with the jar for it to end up being the reason for such a severe injury. With the information that is given, the reasonable conclusion is a product defect. But, they argue, this overlooks two things. One is that Karen Godfrey took a knife to the jar. And no doubt one can weaken a glass jar with a knife. But nothing is more common or, we should have thought, more harmless than to use a knife or a razor [211] blade to remove a label from a jar or bottle. People do this all the time with the price labels on bottles of wine. Even though mishandling or misuse, by the consumer or by anyone else (other than the defendant itself), is a defense, though a limited and (subject to a qualification noted later) partial defense, to a products liability suit. However, the defendant cannot defend against a products liability suit on the basis of a misuse that he “the company” invited. If one just wants to efface a label one can usually do that by scraping it off with a fingernail, but to remove the label intact requires the use of a knife or a razor blade. Invited misuse is no defense to a products liability claim. Invited misuse is not misuse. The entire chain of distribution can be held accountable for your injuries, from the manufacturer, to the distributer, to the retail seller of the defective or dangerous product. In order to hold a product manufacturer or drug manufacturer accountable for your injuries or loss under the rule of strict liability, your injury lawyer will need to establish that: (1) the product or drug was in a defective or unreasonably dangerous condition (or had an unreasonably dangerous design) at the time that it left the manufacturer’s hands; (2) you were injured as a result of the defect or unreasonably dangerous condition; and (3) you were using the product in the normal way it was intended to be used. Hi, The judge reversed the ruling, citing res ispa loquitur doctrine which states that if an accident were not to occur naturally is in itself circumstantial proof of the defendants negligence (Kubasek et al., 2020). Although res ispa loquitur and strict liability in tort for defective products appear to be distinct legal constructs, both spring from the same doctrinal foundation in assisting plaintiffs by establishing liability when direct proof is beyond their reach. To better understand this doctrine, I researched the origination of res ispa loquitur and cases utilizing this judge-

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created legal doctrine. The res ispa loquitur doctrine was created from an 1863 case before an English court following an accident where a gentleman walking on the sidewalk was severely injured after a barrel of flour rolled from a second-story shop window and struck him. Due to the peculiarity of the circumstances which generated a presumption of negligence, the now-famous tort doctrine res ispa loquitur was crafted, allowing recovery even if the plaintiff could not prove negligence directly. (Johnson, 1997) The Planter's glass jar shattered when the plaintiff replaced the lid using normal pressure; therefore, the jar must have been manufactured defectively. I believe the versatility of this doctrine played a significant role in this case. Regards, ******* References Johnson, M. R. (1997). Rolling the "barrel" a little further: Allowing res ipsa loquitur to assist in proving strict liability in tort manufacturing defects . William & Mary Law School Scholarship Repository. Retrieved September 11, 2022, from https://scholarship.law.wm.edu/wmlr/vol38/iss3/10 Kubasek, N. K., Browne, M. N., Dhooge, L. J., Herron, D. J., & Barkacs, L. L. (2020). Dynamic Business Law (5th ed.). McGraw-Hill Education. Hi, Thank you for contributing to the discussion board and providing your perspective on the case. I also agree with the judge’s reversal of the lower court’s decision. I also think it is important to note that the judge cited the res ispa loquitur doctrine which states that if an accident were not to occur naturally is in itself circumstantial proof of the defendant’s negligence (Kubasek et al., 2020). Initially, I was surprised that the defendants did not lean on the fact that Godfrey used an Xacto knife to remove the rebate. However, after researching the laws applicable in strict-liability cases, the plaintiff would not be responsible for invited misuse of a product. If one just wants to efface a label one can usually do that by scraping it off with a fingernail, but to remove the label intact requires the use of a knife or a razor blade. Invited misuse is no defense to a products liability claim. (Owen, 2021) Invited misuse is not misuse. Regards, ******** References

Kubasek, N. K., Browne, M. N., Dhooge, L. J., Herron, D. J., & Barkacs, L. L. (2020). Dynamic Business Law (5th ed.). McGraw-Hill Education. Owen, D. (2021, March 8). Special Defenses in Modern Products Liability Law . HeinOnline. Retrieved September 11, 2022, from https://heinonline.org/HOL/LandingPage? handle=hein.journals%2Fmolr70&div=8&id=&page=

Module 2 Peer Responses

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