September 22, 2006
A Van for the Eternal Footman
Earlier this week, the New York Times published this article and this video
about Mike Thomas, a man who retrieves dead bodies for the county morgue in
Call the job dirty. Call it 14 bucks the hard way — $14 a human body, $9 an animal. He said he made $14,000 last year. He made most of it at night.
His tax forms officially read “body technician.” Unofficially, Mike Thomas calls himself body snatcher, grim reaper, night stalker, bag man. Whatever you call it, it is one man’s life.
A few days later, the NY Times reports that, after the story was published, Thomas was "supsended indefinitely without pay pending investigation" by his employer Professoinal Removal Services.
“I told Mike not to talk to the media, and he did it anyway,” said the company’s owner, Eric Orr. “It’s company policy not to talk about the job.”
But Mr. Orr said the policy is not in writing.
“He really didn’t make the city look too good,” he added. “I saw the video.”
Mr. Thomas, 36, said that he might not have gone to college, but that he knew the meaning of suspended indefinitely: “Permanent vacation.”
Mr. Orr’s county contract is up at the end of this month, but the answering machine for Professional Removal Services advertises a position available: body technician.
“I was just telling my life story,” Mr. Thomas said by telephone. “This is America, right? Don’t we still got freedom of speech?”
He has three children, no car and, now, no job — a bad combination when you live in the poorest big city in America.
The body job paid $14 dollars a corpse, though it did have its drawbacks: picking body parts from Dumpsters, ferrying corpses in an unrefrigerated van.
Mr. Thomas said he hoped his recent notoriety had hatched an entertainment career. Record people have been to his producer’s Web site, he said, and filmmakers are pitching the idea of a reality show based on his life.
“I got some other options,” Mr. Thomas said.
[Meredith R. Miller]
Don't Bogart that Carbolic Smoke Ball My Friend
Gearing up to teach one of my favorite old chestnuts, I was reminded of these two posts by Frank: Today in History, Mrs. Carlill Reads the Paper and Today in History, The Argument in Carbolic Smoke Ball. At the very least, some captivating visual aides and a good historical anecdote.
[Meredith R. Miller]
September 21, 2006
eBay User Agreement Enforced (Twice!)
The eBay user agreement has to be one of the most widely read/entered-into contracts of all time. eBay claims nearly 200 million registered users, all of whom putatively entered into the agreement. Yet, despite this ubiquity, surprisingly few court cases have addressed its validity. Until very recently, I knew of only three: Bergraft (an unpublished NJ state trial court opinion), Ploharski (an unpublished ruling from ND Ga), and Grace (a CA appellate court case that was subsequently depublished by the CA Supreme Court).
Then, in the last 10 days, two cases addressing eBay's user agreement showed up in Westlaw, including what I think is the first binding appellate court precedent (now that the Grace case is depublished). Both cases efficiently, and without much fuss, upheld the formation and terms of the eBay user agreement.
In Nazaruk v. eBay, 2006 WL 2666429 (D. Utah Sept. 14, 2006), the plaintiff sued over feedback left in eBay's feedback forum. eBay moved to dismiss based on (among other things) improper venue due to the mandatory venue clause in the user agreement. The court agreed. This must be particularly satisfying for eBay because a previous case, Comb v. PayPal, had deemed its mandatory arbitration clause unconscionable (the case interpreted PayPal's agreement, not eBay's, but they were virtually identical at the time).
In Durick v. eBay, 2006 WL 2672795 (Oho Ct. App. Sept. 11, 2006), the plaintiff tried to sell some items that were putatively prohibited by eBay's user agreement. eBay suspended the plaintiff, who then sued eBay claiming that it was in breach of contract for suspending him. The court found that eBay's user agreement was binding on the plaintiff, it clearly prohibited the items, and thus eBay didn't breach the agreement by suspending him.
Among other interesting aspects, the actual terms restricting the items in question were located in two policies that were incorporated by reference into eBay's general prohibited items policy, which in turn was incorporated by reference into eBay's user agreement. Thus, like the user interaction process in the Specht case, the restrictions were two links away from the page where the user clicked "I agree." The court didn't seem fazed at all by this multiple-level incorporation by reference; it was not even acknowledged expressly.
September 20, 2006
New Consumer Law and Policy Blog
A new consumer law and policy blog has been launched, hosted by the Consumer Justice Project (part of Public Citizen's Litigation Group). The blog is coordinated by Deepak Gupta from Public Citizen Litigation Group and Jeff Sovern of St. John's University School of Law, and will include contributions from a diverse group of lawyers and law professors who practice, teach, or write about consumer law and policy. You can reach the blog at www.clpblog.org.
Contracts Prof Weekly Spotlight: Ronald J. Colombo
B.S., Cornell University
J.D., New York University School of Law
focuses primarily on corporate and securities law and, more specifically, the application
of non-economic principles and norms to these fields. Before joining the Hofstra faculty in 2006, I served in the Complex Global Litigation Group of Morgan Stanley &
Co. Incorporated as Vice-President and Counsel. In this position, I supervised investigations,
litigations, and regulatory inquiries affecting Morgan Stanley’s investment
banking franchise. Prior to that, I practiced as a litigation associate at the New York office of
Sullivan & Cromwell, where, among other things, I represented corporate
and banking clients in civil and criminal investigations conducted by the
S.E.C., the U.S. Attorney’s Office, and the Federal Reserve Bank; in matters
before state courts, federal courts, and arbitration panels; and in appeals before
the Third Circuit, the D.C. Circuit, and the U.S. Supreme Court. From 2000 – 2003, I also served on the Committee on Professional and Judicial Ethics of the Association
of the Bar of the City of New York.
I graduated, magna cum laude, from
Notwithstanding my dedication to law
and teaching, my pride and joy remains my three children:
Isabella (4 yrs); Christina (2 yrs); and Ron Jr. (6 mos.).
And if any time remains after the day is done, I might be found in front of a television or radio watching or listening to a N.Y. Yankees ballgame.
September 19, 2006
Limitation on Liability: Burning Down the House
Plaintiffs equipped their home in Lexington, Kentucky, with an ADT fire alarm system. ADT retained title to the alarm system and provided a monitoring service in return for a monthly fee. Plaintiffs' house was destroyed by an accidental fire. The alarm malfunctioned and failed to inform the local fire department of the fire. Plaintiffs' contract with ADT contained the following clause limiting ADT’s liability to $250 as liquidated damages in the event of an equipment malfunction:
LIMIT OF LIABILITY--IT IS UNDERSTOOD THAT ADT IS NOT AN INSURER, THAT INSURANCE, IF ANY SHALL BE OBTAINED BY THE CUSTOMER AND THAT THE AMOUNTS PAYABLE TO ADT HEREUNDER ARE BASED UPON THE VALUE OF THE SERVICES AND THE SCOPE OF LIABILITY AS HEREIN SET FORTH AND ARE UNRELATED TO THE VALUE OF THE CUSTOMER'S PREMISES. ADT MAKES NO GUARANTY OR WARRANTY, INCLUDING ANY IMPLIED WARRANTY OR MERCHANTABILITY OR FITNESS THAT THE SYSTEM OR SERVICES SUPPLIED, WILL AVERT OR PREVENT OCCURRENCES OR THE CONSEQUENCES THEREFROM, WHICH THE SYSTEM OR SERVICE IS DESIGNED TO DETECT. IT IS IMPRACTICAL AND EXTREMELY DIFFICULT TO FIX THE ACTUAL DAMAGES, IF ANY, WHICH MAY PROXIMATELY RESULT FROM FAILURE ON THE PART OF ADT TO PERFORM ANY OF ITS OBLIGATIONS HEREUNDER. THE CUSTOMER DOES NOT DESIRE THIS CONTRACT TO PROVIDE FOR FULL LIABILITY OF ADT AND AGREES THAT ADT SHALL BE EXEMPT FROM LIABILITY FOR LOSS, DAMAGE, OR INJURY DUE DIRECTLY OR INDIRECTLY TO OCCURRENCES OR CONSEQUENCES THEREFROM, WHICH THE SERVICE OR SYSTEM IS DESIGNED TO DETECT OR AVERT; THAT IF ADT SHOULD BE FOUND LIABLE FOR LOSS, DAMAGE OR INJURY DUE TO A FAILURE OF SERVICE OR EQUIPMENT IN ANY RESPECT, ITS LIABILITY SHALL BE LIMITED TO A SUM EQUAL TO 10 OF THE ANNUAL SERVICE CHARGE OR $250, WHICHEVER IS GREATER, AS THE AGREED UPON DAMAGES AND NOT AS A PENALTY, AS THE EXCLUSIVE REMEDY, AND THAT THE PROVISIONS OF THIS PARAGRAPH SHALL APPLY IF LOSS, DAMAGE OR INJURY IRRESPECTIVE OF CAUSE OR ORIGIN, RESULTS DIRECTLY OR INDIRECTLY TO PERSON OR PROPERTY FROM PERFORMANCE OR NONPERFORMANCE OF OBLIGATIONS IMPOSED BY THIS CONTRACT OR FROM NEGLIGENCE, ACTIVE OR OTHERWISE, OF ADT, ITS AGENTS OR EMPLOYEES....
Plaintiffs argued that the limitation of ADT’s liability should not be enforced. First, they contended that the contract for the alarm service was one of adhesion. The court disagreed because the contract, while a standardized form, was not a “take-it-or-leave-it” proposal. Rather, the contract provided that plaintiffs could pay ADT more to assume a greater liability – the plaintiffs, thus, could have bargained for more favorable terms.
Plaintiffs next argued that the contract was unconscionable. The court also rejected this contention, holding that the limitation-of-liability clause was not one-sided, oppressive nor unfairly surprising. While the language of the clause was located on the back of the contract document, and plaintiff signed on the bottom front of the document, near the signature block, the contract stated in bold, capital letters:
ATTENTION IS DIRECTED TO THE LIMITED WARRANTY, LIMIT OF LIABILITY AND OTHER CONDITIONS ON REVERSE SIDE.
The court noted that the language stood separate and apart from the rest of the paragraphs of the contract and was easily readable, not unduly lengthy and not couched in vague or obscure language. The court also noted that one of the plaintiffs was a “highly educated medical doctor” who read the document before signing it.
Plaintiffs also argued that the limitation of ADT’s liability was an unenforceable penalty. The court disagreed and enforced the liquidated damages clause:
Damages based on a breach of the contract by [ADT] would have been difficult, if not impossible, to ascertain because they did not contract to assume the duties of an insurer and did not know the value of the home, its contents, or the extent of any possible fire damage that might result. Additionally, the $250.00 limitation of liability amount represents nearly one year of monitoring fees and is reasonably proportionate to the damages expected from a breach of a $24.00 per month monitoring agreement. Accordingly, we hold that the $250.00 contemplated under the agreement is a proper measure of liquated damages and does not constitute an unenforceable penalty.
United Services Auto. Ass'n v. ADT Sec. Services, ___ S.W.3d ___, 2006 WL 2578019 (Ky. App
Sep. 8, 2006).
[Meredith R. Miller]