Monday, November 22, 2010

Tater Tots & Trespass to Chattels

"Tampering with an automobile's exhaust is a felony." -- Sue Sylvester


Image: Wikimedia Commons

The ever-litigious Sue Sylvester made a few enemies on last week's episode of Glee, "The Substitute."  This episode explores what Glee club would be like without Mr. Schuster and also gives us a good excuse to discuss the intentional tort of trespass to chattels.  (Not that we even need an excuse - I mean chattels is such a fun word to say!)

While filling in for the flu-afflicted principal, Sue takes a stand on healthy teen lunches and bans tater tots from the school cafeteria.  This leads to a riot a McKinley High and no one is more bothered than Mercedes Jones. Mercedes responds by stuffing tater tots into Sue's tailpipe and soon finds herself in Principal Sylvester's office.  Sue informs her that the tots caused $17,000 worth of damage to her 1979 "LeCar," a "rare and desirable automobile . . . prized by collectors for its peerless grace among vintage European sportscars."  It is one of seven of its kind in existence and Sue had trouble finding a mechanic that had even heard of the "LeCar." 

Sue's LeCar is "personal chattel," defined by Black's law dictionary as a moveable item that "is not attached to or has no connection with land."  The tort of trespass to chattels requires that the plaintiff establish:  (1) an act by defendant that interferes with plaintiff's right of possession in a chattel, (2) intent, (3) causation, and (4) damages.  She has an open and shut case: the stuffing of the tater tots into the exhaust pipe constitutes an act interfering with Sue's use of the car, Mercedes had the requisite intent ("I told her not to touch my tots"), and the tots caused $17,000 worth of damage. 

Sue might also consider basing a lawsuit on the tort of conversion.  The main difference between the two torts is that conversion requires an interference with the right to the chattel that is so serious, it warrants requiring defendant to pay the chattel's full value.  I was unable to track down the precise Kelley Blue Book value for a 1979 LeCar, but conversion might be a better option given the rarity of the automobile and the difficulty of finding compatible parts and a knowledgeable mechanic.

However, Sue seems much more concerned with justice than with getting compensated for the damage to her vehicle.  She threatens Mercedes that tampering with an automobile's exhaust is a felony in the State of Ohio and that she will be pressing charges.  Although Ohio's criminal code does not specifically prohibit tampering with exhaust pipes, this activity might fall under either the statute for Vandalism or Criminal Mischief.  Criminal mischief requires that the defendant "knowingly move, deface, damage, destroy, or otherwise improperly tamper with the property of another," but this conduct is only a misdemeanor.  Under the vandalism statute, however, $17,000 worth of damage to property would constitute a fourth degree felony, but only if the jury concluded that Sue's LeCar was "necessary in order for its owner or possessor to engage in the owner’s or possessor’s profession, business, trade, or occupation."  The Ohio Supreme Court recently upheld a jury verdict on this very issue where the damaged car was the victim's only means of performing her job as a self-employed health care assistant, which involved picking up groceries and prescriptions for various patients.  Whether this would extend to mere use as a mode of transportation to and from McKinley High School is unclear.

Luckily, Mercedes isn't too fazed about the possibility of jail time.  "You know what they have in prison . . . tots!"

Friday, July 16, 2010

Curb Your Liability

" If he hadn't ordered those eggs that way, you wouldn't be guilty of involuntary manslaughter." -- Jeff Greene

Emmy nominations were announced last week and Curb Your Enthusiasm was nominated for a few, including best comedy series.  Larry David was also nominated for best lead actor in a comedy for playing an extreme, misanthropic version of himself.  I think Larry David is a comic genius and I LOVE Curb Your Enthusiasm!  I can't believe it took me so long to watch, but I finally caught it this winter thanks to an HBO promotion.  After watching the seventh season featuring the Seinfeld reunion, I went back and Netflixed the first six.  So amazingly funny!

The Black Swan
In addition to Curb's usual debates regarding the necessity of various social conventions (like tipping policies, cell phone use, and introducing two strangers), the 7th episode of the 7th Season "The Black Swan" gives us the opportunity to examine criminal and tort liability in the context of the "eggshell skull" doctrine.

Larry and his entourage are out for a morning of golf and thoroughly annoyed to be stuck waiting behind a guy named Norm, who is known as the slowest golfer in the club.  Their attempt to beat the slow foursome out onto the course was foiled by Larry's cousin Andy, who insisted on ordering eggs with crispy onions at breakfast. 

Finally Larry can't take it anymore and starts yelling at Norm, "You can't hold up the whole course like this!  It's very inconsiderate!"  And, when Norm asks about Larry's wife (who has recently left him), he retorts, "F--- you, Norm!"  In the locker room after the game, one of Norm's golfing companions asks Larry why he had to yell and scream at Norm, especially given that he has high blood pressure.  "You know what happens when you yell at someone who has high blood pressure?  They have a heart attack and they die, and that's exactly what happened.  Norm is dead!"

Larry's friend Marty Funkhouser shakes his head and says, "Look it may have been an accident, but you're a murderer."  His manager Jeff reassures him by saying that it's just involuntary manslaughter because he didn't intend to kill Norm.  Larry exclaims, "You're blaming me?  It's not my fault he had a heart attack!"  Well, who is right?


For Larry to be guilty of murder, he must have killed Norm with one of the following states of mind:  (1) intent to kill, (2) intent to inflict great bodily injury, or (3) reckless indifference to an unjustifiably high risk to human life (also known as "abandoned and malignant heart.")  Larry's conduct must also be both the "cause-in-fact" and the proximate cause of Norm's death.  That is, the prosecution would have to show that Norm would not have died "but for" Larry's yelling and that Norm's death was a natural and probable consequence of Larry's behavior, even if Larry did not anticipate the result.  The general maxim is that criminal defendants must "take their victims as they find them," meaning that the victim's preexisting weakness or fragility will not break the chain of causation, even if the result was utterly unforeseeable.  Thus, the fact that Larry did not know that Norm had high blood pressure does not help him here.  And, it seems that there is a good argument that causation exists here.  However, I think it is clear that Larry had neither the intent to kill Norm or inflict great bodily injury upon him.  Although many people in Larry's inner circle might describe him as having an "abandoned and malignant heart," that doctrine typically refers to things like driving a car onto a crowded sidewalk and would probably not extend to yelling at a slowpoke on a golf course.

Involuntary Manslaughter

If Larry is not guilty of murder, is Jeff right that he is guilty of involuntary manslaughter instead?  Involuntary manslaughter is an unintentional killing resulting without malice aforethought caused by criminal negligence.  Criminal negligence means that Larry's conduct must have created a high degree of risk of death or serious injury, well beyond the tort standard of ordinary negligence.  Again, it must be particularly egregious behavior and I doubt reaming out Norm would qualify.  

Tort Liability

Even though Larry will likely avoid criminal charges, it is worth examining whether Norm's next of kin would be able to sue Larry with a wrongful death claim.  Similar to the "take your victim as you find him" rule in criminal law, the "eggshell skull" doctrine in torts holds the defendant liable for all consequences resulting from tortious or negligent activities that lead to an injury, even if the victim suffers an unusually high level of damage.  An example is a case out of Wisconsin where a boy lightly kicked the shin of a schoolmate, who unbeknown to him was recovering from another injury and wound up losing all use of that leg as a result of the kick.  Even though that level of injury could not have been predicted, the court held the boy liable for the entirety of the harm because the kick was unlawful.

Physical Contact Not Required
Physical contact is not required for the eggshell skull doctrine to apply.  For example, if a tresspasser's wrongful presence on someone's property is so terrifying that the property owner has a heart attack, the tresspasser would be liable.  But even though no physical contact is required, there still must be an underlying tort for liability to exist.

Infliction of Emotional Distress
When I first watched this episode, the tort I immediately thought of was intentional (or negligent) infliction of emotional distress.  Upon reviewing the elements for each, however, neither seems to apply here. Those torts focus on compensating the victim for emotional trauma suffered due to defendant's conduct rather than compensation for a physical injury that occurred.  Whatever emotional distress Norm may have suffered, presumably the bigger issue for his family is the fact that he suffered a heart attack and died.  (I'm a lawyer not a doctor, but I'm gonna assume that counts as a physical injury).

Norm's family could try to claim that Larry committed the tort of assault.  As discussed here, the elements of assault are: (1) an act by defendant creating a reasonable apprehension in plaintiff, (2) of immediate harmful or offensive contact to plaintiff's person, (3) intent, and (4) causation.  Although Larry was yelling at Norm while holding up his golf club, he was about 20 - 30 feet away from him the entire time.  Therefore, I think it would be a stretch to argue that it was reasonable for Norm to be apprehensive that Larry would contact him in a harmful or offensive way.

Larry's cousin Andy actually has a much better chance at suing Larry for assault.  After yelling at Norm, Larry chases after Andy, shaking his club and yelling at him in that perfect Larry David way, "Are you happy you had the onions?  Crispy onions!  They have to be crispy! I can't eat breakfast unless I have crispy onions!" 

The lesson seems to be this: beware of victims that might have a skull like an eggshell and beware of ordering eggs with crispy onions.

Thursday, May 20, 2010

The LOST Art of Citizen's Arrests

"I saw what you did!  I'm making a citizen's arrest!" -- Benjamin Linus

I was hoping I would be able to write about LOST before the series finale (!) on Sunday.  Thanks to Mr. (err...Dr.) Benjamin Linus, I have an excuse!  For fans of the show, you know there are many important questions central to the mysteries of the show that still need answering and, likewise, there are many, many, many resources with which to analyze those questions and theorize the outcome.  I, however, will attempt to answer a question that is utterly banal and insignificant (I mean, I am a lawyer) . . . could Ben have made a citizen's arrest of Desmond?

Previously on LOST, time-traveling heartthrob Desmond Hume drives his car into wheelchair-ridden John Locke for various complicated (but well-meaning!) LOST mythology reasons.  In this penultimate episode "What They Died For," Desmond returns to the scene of the crime, the parking lot of the high school where Ben and Locke (their off-island versions, anyway) both teach.  Ben, who witnessed Locke getting run over, immediately recognizes Desmond, yells for someone to call the police, and states that he is making a citizen's arrest.

I was surprised the first time I learned that citizen's arrests were actually allowed.  It just seems like something that sounds cool on tv and movies, but couldn't possibly be real.  As it turns out, the practice of citizen's arrests is alive and well in every state except for North Carolina (as per Wikipedia).  A private citizen has the privilege to arrest someone for a felony if (1) the felony was actually committed and (2) the citizen reasonably believes that the person he arrests was the one who committed it.  (Basically, the citizen doesn't have much room for error and could face a lawsuit for the tort of false imprisonment if he is wrong.)  The degree of force allowed is that which is reasonably necessary to make the arrest, and deadly force is only allowed when the suspect poses a threat of serious harm.

While Ben's valiant threat to make a citizen's arrest was great in theory, in reality it did not work out quite so well.  Desmond ends up beating Ben to a bloody pulp...enough to justify the use of deadly force when arresting him, but it ultimately proves too much for the sweater-vest wearing teacher of European History.  Ironic when you realize this is the same man whose on-island persona killed his own father in cold blood.

Did Desmond succeed in shocking Ben into awareness of the island?  Ben's insistence that the school nurse call him "Dr." Linus felt like a return of the evil, calculating Ben we've come to know.  Overall, I thought this episode did a great job setting up what is sure to be an unforgettable finale.  I can't wait!

Monday, May 10, 2010

Glee-gal Issues: Slander and Libel

"That glee club stole my private property and posted it online and as soon as I figure out the difference between slander and libel, I'm filing a lawsuit." -- Sue Sylvester

As the topic for this post is Glee, I thought I would start by announcing that I passed the Colorado Bar Exam!  Although I am now free to forget all the black-letter law I learned, in the name of analyzing television I press on!

Glee is a delightful musical tv show about a high school glee club called "New Directions."  The glee club geeks (or "Gleeks") are the joke of the school and actively despised by the head coach of the school's cheerleading squad, Sue Sylvester (played by the hilariously awesome Jane Lynch).  At the beginning of last week's episode "Bad Reputation," the Gleeks are watching a video that was carefully confiscated from Sue's office without her knowledge in which Sue channels her inner Olivia Newton-John and jazzercises to the song "Physical."  The Gleeks decide to post the video on youtube for the world to see and it quickly generates three million hits and over 170,000 comments.  Sue gets wind of what has happened and storms into the principal's office threatening to file a lawsuit . . . once she figures out the difference between slander and libel.


Slander and libel are forms of the tort of defamation.  The law of defamation includes two parts:  the common law elements and the constitutional requirements.  The common law elements are:  (1) defamatory language, (2) "of or concerning" the plaintiff, (3) publication thereof by defendant to a third person, and (4) damage to plaintiff's reputation.  Anytime the defamation involves a "matter of public concern," the Constitution requires that the plaintiff prove two additional elements:  (1) falsity of the defamatory language and (2) fault on the part of the defendant.  Statements about public figures are typically considered "matters of public concern" and require proof of the two constitutional requirements.  Given that one of the youtube commenters notes that "the man in this video looks like the champion cheerleading coach Sue Sylvester," it is likely that Sue would be considered a public figure and would have to establish the two additional elements.

Libel and Slander

To answer Sue's question, libel occurs when there is a written or printed publication of defamatory language, while slander is spoken defamation.  The main reason for distinguishing between slander and libel relates to the fourth element of defamation: damage to plaintiff's reputation.  In a slander case, the plaintiff must prove "special damages", i.e. that she has suffered some sort of pecuniary loss as a result of the defamation.  In a libel case, however, plaintiff does not need to prove special damages and harm is often presumed.  The reason for this distinction is the fact that spoken words will only reach a small audience when compared to a publication.  In cases where it is unclear whether the defamation is libel or slander, factors to consider are the permanency, area of dissemination, and deliberate character of the publication.  Defamation on radio and television programs are generally treated as libel if it is sufficiently permanent, premeditated, and broadly enough disseminated.  It seems that a youtube video would be considered libel, given that it is recorded and can be easily viewed by a wide audience.   

However, it is doubtful that Sue Sylvester's libel claim would get off the ground.  I'm not sure that a dance routine she performed (and recorded) herself could be construed as "defamatory language," even though it was posted without her permission.  Rather than figuring the difference between libel and slander, perhaps Sue should look into the elements for the tort of invasion of right to privacy.  In the end, Sue Sylvester winds up benefiting from the viral video when Olivia Newton-John herself invites Sue to participate in a video re-make of "Physical."

Slander Per Se

Even though Sue Sylvester has no viable defamation lawsuit, it occurred to me that other characters in this episode might.  Emma Pillsbury, the loveable OCD-afflicted school counselor approaches glee club director Mr. Schuester in the cafeteria and yells repeatedly in front of the entire school, "You're a SLUT, you're a SLUT."  Mr. Schu might have a case if this statement is considered slander per se, i.e. slander that does not require the plaintiff to prove the element of harm.  The traditional four categories of slander per se are statements that:  (1) adversely reflect on one's conduct in a business or profession, (2) one has a loathsome disease, (3) one is or was guilty of a crime involving moral turpitude, or (4) a woman is unchaste.  The modern trend has transformed the "unchaste woman" category into statements of serious sexual misconduct or perverse behavior, as judged by the moral standards of the community.  Depending on the community standards in Lima, Ohio, Mr. Schu might have some legal retribution after being publicly labeled a man-whore.   


Also at issue in this episode was the anonymously written "Glist," or weekly ranking of the glee club based on a hotness quotient of sexual promiscuity, where a point is earned for each act of perpetuated depravity. (The Glist is perhaps art imitating life in light of the "Slut List" controversy at a New Jersey high school last fall.)  Given the publication and damaging nature of the list, students on the Glist might have a libel action.  However, none of the Gleeks seemed too eager to file a lawsuit as the ones who felt most damaged by the Glist were those whose names were left off.

Friday, April 2, 2010

"LAWYERED!": The Fight Over Assault and Battery on How I Met Your Mother


"I can't go to prison!  I mean, I could get a lot of reading done, finally write some short stories, work out all the time. . . ." -- Ted Mosby 

Let me begin by saying how much I love How I Met Your Mother!  I was not interested in watching it at first because the title was misleading.  I assumed that it was a typical family sitcom where the husband is fat and stupid and the wife is hot but nagging.  As it turns out, HIMYM is about a family - as Bridget Jones would say, an "urban family."  Five friends in their 20s and 30s in a big city, who have a regular watering hole, spend the holidays together, and both support each other and rib on each other.  It's often compared to Friends because of this, but for whatever reason I never saw myself in those characters the way I do in Ted, Robin, Marshall, Lily, and Barney (well, maybe not Barney).  While the premise of the series is how Ted meets the mother of his two children (told in flashbacks from the year 2030), it is really about how his 20s and 30s shaped him into the person he ultimately became.

Midway through Season 4, recently-left-at-the-altar Ted decides that he is tired of being the nice guy and wants to engage in the classic male rite of passage: a fight.  When three guys sit in the gang's regular booth at MacLaren's, an ill-tempered bartender suggests that they all take it outside.  By the time Ted and Barney get to the back alley ready to fight, the bartender has already knocked the booth-thieves out cold.  Crazy bartender, however, assumes that Ted and Barney were actively involved.  Greeted by free drinks for life and attention from all the ladies in the bar, Ted and Barney don't bother to correct anyone.  But, the next time they come to the bar, the guys sitting in their regular booth are process servers.  Ted and Barney learn that they are being sued for assault.

Assault and Battery

Whenever assault is mentioned in casual conversation, most lawyers are obnoxious enough to point out that punching someone in the face is not technically considered assault; if it involves a "touching" it is actually battery.  Assault (and battery) is both a tort and a criminal offense. 

The common law tort definition of battery is harmful or offensive contact to plaintiff's person.  Punching someone in the face would definitely be considered battery.  Assault, however, refers to the part where you swing back your hand, clench your fist, and stare down your victim.  The tort of assault is defined at common law as an act by defendant creating a reasonable apprehension in plaintiff of immediate harmful or offensive contact to plaintiff's person.  If the plaintiffs here thought that Ted and Barney punched them, they most likely would have sued for assault and battery. 

Marshall, the lawyer of the group, messes with Ted and Barney by telling them that they will likely face serious prison time, even though he knows it is a civil suit not a criminal charge.  The crimes of assault and battery are defined slightly differently than the torts of the same name.  Battery is an unlawful application of force to the person of another resulting in either bodily injury or an offensive touching. Common law assault, on the other hand, is either an attempt to commit a battery or the intentional creation of a reasonable apprehension in the mind of the victim of imminent bodily harm.  The doctrine of merger also applies here.  Merger prevents the prosecution of lesser-included offenses like attempt.  For example, you cannot be charged with murder and attempted murder of the same victim.  Since assault is essentially attempted battery, once a touching of the victim occurs, the defendant may only be charged with battery.  If Ted and Barney were prosecuted and these common law definitions applied, they would be charged with battery, not assault. 

However, the New York Penal Law differs from the common law in that it only penalizes "assault," which more closely resembles common law battery.  Most applicable to Ted and Barney is "Assault in the Third Degree": "A person is guilty of assault in the third degree when . . . [w]ith intent to cause physical injury to another person, he causes such injury to such person or to a third person."  New York Penal Law Section 120.00.

Luckily for Ted and Barney, they faced neither civil or criminal liability.  Plaintiffs dropped the lawsuit once Marshall explained that the defendants were wusses, supported by evidence that Barney gets weekly mani-pedis and that Ted played the hammered dulcimer in the Pre-Reformation Dance Society at Wesleyan.

As Marshall Eriksen would say . . . LAWYERED!

Sunday, March 7, 2010

"I don't understand the question and I won't respond to it": Spousal Immunity on Arrested Development

      "They cannot arrest a husband and wife for the same crime." -- George Bluth, Sr.
My brother gave me Season 1 of Arrested Development for Christmas this year - yay! - and after a bad day recently I treated myself to the Season 2 DVDs.  I'm one bad day away from owning the entire three season collection!  It's impossible not to love this quirky, irreverent comedy about the Bluth family's fall from grace, which was recently rated the 4th best tv show of the decade.
The Arrested Development pilot begins when Michael Bluth, the family's most stable member, expectantly awaits to be named as his father's successor and become president of the Bluth company.  To Michael's surprise, family patriarch George Bluth, Sr. names his wife (and everyone's favorite lush) Lucille to the position instead.  Her celebration is short-lived, however, when the SEC interrupts the boat party to arrest George, Sr. for defrauding investors, embezzlement, and, as we find out later, "light treason."


Michael later confronts his father in prison asking why he wasn't named company president after his years of loyalty and dedication.  George assures him that he did so to protect him from becoming liable as an accomplice, leaning in to whisper, "They cannot arrest a husband and wife for the same crime."  Michael responds with perfect deadpan delivery, "Yeah, I don't think that that's true, Dad."  According to the DVD commentary, Michael's line was added later when another writer read the first draft and in response to George's scripted line noted, "Yeah, I don't think that's true."  Since there seems to be some confusion regarding what privileges and immunities spouses enjoy, let's clear it up now. 

Rules of Evidence 

George's (and the original script writer's) confusion regarding criminal liability of spouses most likely stemmed from the existence of certain rules of evidence that may limit one spouse's ability to testify against the other.  There are two distinct rules regarding testimony against one's husband or wife. 

Spousal Immunity

The first, known as spousal immunity or the spousal testimony privilege, applies only in criminal cases and can prevent the prosecution from calling the defendant's spouse as a witness.  In federal court (the likely jurisdiction for SEC crimes and "light treason"), the privilege belongs to the witness-spouse.  This means that Lucille can refuse to testify against George, but George cannot prevent her from testifying if she chooses to do so.  This privilege does not survive the marriage, however.  If Lucille were to leave George, Sr. for his brother Oscar, she would have no right to refuse to testify against her ex-husband.

Confidential Marital Communications

The other privilege protects communications made between a husband and wife and applies in both civil and criminal cases.  When applied, a court may not compel one spouse to testify against the other concerning confidential communications made during marriage.  Either spouse has the right to invoke the marital communications privilege.  That is, each spouse may refuse to disclose confidential marital communications and each may also prevent the other from disclosing the communication.  This privilege only applies to communications made during the marriage, but will survive if the couple later divorces.

Neither Marital Privilege Applies

Unfortunately for George, Sr., neither privilege applies when both spouses are joint participants in a crime.  Therefore, George's plan to avoid accomplice liability for members of his family by naming Lucille as his successor is not even helped by the rules of evidence.  In fact, Lucille does ultimately testify against her husband . . . in a fake reality show proceeding before "Judge" Reinhold and William Hung and his Hung Jury.

Thursday, February 18, 2010

Kramer on Contracts

 “Hey, a rule is a rule, and let's face it, without rules there's chaos.” – Cosmo Kramer

I am currently in the midst of studying for the Colorado Bar Exam. A couple weeks ago, after studying for the Contract Law portion of the exam, I turned on the tv to take a break and caught an old episode of Seinfeld.  It was an episode called "The Seven," which has a couple of memorable plotlines: George's friend wants to steal his idea for a baby name, "Seven," and Jerry dates a woman who always wears the same dress.  As I watched it this time, however, I was much more intrigued by the classic contract dispute that arose between Kramer and Elaine.

To set up the following scene, Elaine had purchased a bike the day before and hurt herself taking it down off the wall at the store.

Elaine says that she "would give that bike to the first person who could make this pain go away."  Kramer begins to apply shiatsu technique to her neck, and shortly after Elaine exclaims, "The pain is totally gone!"  Was this a valid contract?  Does Elaine owe Kramer the bike?

Applicable Legal Framework

Blacks Law Dictionary defines a contract as, "An agreement between two or more parties which creates legally binding obligations."  A contract can be express (formed by written or oral language) and can also be implied (formed by conduct).  Three elements must be present for the formation of a valid contract: mutual assent (offer and acceptance), consideration (bargained for exchange for something of legal value), and no defenses (mistake, lack of capacity, illegality, etc.)


Mutual Assent

Mutual assent means there must be a valid offer and a valid acceptance.  We must first turn to whether Elaine presented a valid offer, i.e. whether (1) Elaine made a promise, undertaking, or commitment, (2) the offer was definite and certain in its terms, and (3) Elaine communicated the offer to Kramer.  The crucial issue seems to be whether Elaine has in fact made a promise, undertaking, or commitment.  This requires examination of a few factors, including the language, the surrounding circumstances, the method of communication, and the prior relationship of the parties.  While the language on its face seems to clearly state a promise or commitment, the surrounding circumstances and the method of communication tend to negate this.  As the statement was delivered in a flippant manner while Elaine was in pain and in a casual environment, a finder of fact might conclude that Kramer should have known Elaine was being facetious.  The result might be different if Elaine and Kramer were sitting face to face in Elaine's office at J. Peterman or if Elaine had sent an email to her entire Christmas card list seeking help with her neck problems.  We also have to take into account the prior relationship of the parties.  As Elaine and Kramer have been friends for a long time, it's likely that Kramer knows of Elaine's tendency to exaggerate and that Elaine knows of Kramer's tendency to take things too literally. 

Assuming that Elaine has extended a valid offer, we now ask whether Kramer accepted the offer.  This circumstance presents a unilateral contract, which means the offeree accepts the offer by performing the stipulated act, here relieving the pain in Elaine's neck.  The key factors for acceptance of a unilateral contract are that the offeree (1) must act with knowledge of the offer and (2) must be motivated by the offer.  Had Kramer been in his apartment when Elaine made the statement about the bike and later fixed her neck out of the goodness of his heart, there would not be valid acceptance.  However, the circumstances here make clear that Kramer did know of the offer and was motivated by the promise of the bike to work on Elaine's neck.


For a contract to have a valid consideration, there must be a bargained for exchange for something of legal value.  In a unilateral contract, there is an exchange of a promise ("I'll give you the bike") for an act (relieving neck pain).  Each party must incur detriment, which means they must do something they are not legally obligated to do.  Elaine was free to keep the bike for herself and Kramer was free to not spend his time and energy fixing Elaine's neck.  Courts generally do not examine whether the consideration given was adequately valuable and will usually assume that it is sufficient.  Although Elaine complains that it only took Kramer ten seconds, Jerry points out that this is the most he's worked in the last four months.  I don't think there is much doubt that adequate consideration exists here.

No Defenses

Defenses to the formation of a contract include things like mistake, lack of capacity, and illegality.  If Elaine thought the term "bike" meant the girl's bike she had bought the day before, but Kramer thought she meant the bicycle perpetually hanging in the hallway of Jerry's apartment, there would be mutual mistake regarding a material term in the contract rendering it invalid.  Does anyone remember the episode where Kramer has just come from the dentist, still drooling from the Novocaine, and a man he shares a cab with thinks he is mentally challenged?  Well, if Kramer were really mentally challenged that would be grounds for voiding the contract.  Same goes if Elaine had one too many Peach Schnapps before arriving at Jerry's.  Finally, if Elaine had said that she would "kill for anyone" who could relieve the pain in her neck and then Kramer asked her to kill Newman, this would not be a valid contract because it involves illegal subject matter and would violate public policy concerns.


Although Elaine would probably win here, I don't think there is a clear answer.  Kramer certainly has an arguable case.  This makes sense when you keep in mind that presenting balanced, social conflicts was always the intent of Larry David--the creator of Seinfeld and the writer of many episodes.  On an interview in the DVDs for Season 3 he stated,  “What I like to do is give each side a case . . . so half the audience will be on one side and half will be on the other side about who’s right and who’s wrong.”  It's funny that each side has a case here, even when you break it down to the legal principles involved.

What LAW I Learned from TV: About this Blog

I got inspired to start this blog while studying for the Colorado Bar Exam.  I was reviewing the outlines for Contract Law and later that evening took a break, turned on the television, and caught a rerun of Seinfeld.  The curse of being a lawyer sometimes is that you can't help but apply the principles of legal analysis to things intended purely for entertainment!  As I watched the episode, I couldn't help thinking about how the rules of contract that I had just studied would apply to a situation in the show.  This line of thought resulted in my first post (which was originally a speech I gave at my Toastmasters club).

The plan is to write an entry whenever the legal side of my brain keeps me from just relaxing and enjoying a tv show and, conversely, whenever I read about a legal issue that reminds me of a tv show I've seen.  Some of my current and all-time favorites include:  Seinfeld, The Office, Veronica Mars, LOST, How I Met Your Mother, Arrested Development, Newsradio, 30 Rock, and Beverly Hills 90210.  Even though I occasionally watch shows like the thought-provoking and accurate Law & Order and the horrifically bad CSI: Miami, I doubt I will write much about these.  Rather than focus on shows centered on "the law," I will attempt to analyze legal principles that come up in more everyday situations. 

DISCLAIMER:  This blog in no way purports to provide legal advice.