Business Law Cook v Whitsell Sherman US Supreme Court Case Study Please do a case powerpoint (around 12 slides) for Cook v. Whitsell Sherman. The case and

Business Law Cook v Whitsell Sherman US Supreme Court Case Study Please do a case powerpoint (around 12 slides) for Cook v. Whitsell Sherman. The case and instruction are provided in additional files. [Also I have provided a sample case powerpoint from 2013 class].

Here is a quick look of the powerpoint format that can be found in instruction:

Case Power Point Format:

1. Forum (whatever court it is e.g., U.S. Supreme Court

2. Date of Decision

3. Topic

4. Parties

5. Key Definitions of Legal Terms

6. Essential Facts

7. Plaintiff’s Legal Arguments

8. Defendant’s Legal Arguments

9.Issues

Issue #1
Issue #2
Issue #3, etc.

10. Case Decision and Supporting Rationale

11. Lessons Learned – Those key points of the case that illustrate important legal and common sense principles. Again, much of your case presentation grade will depend on how succinctly and completely you identify and discuss theseLessons Learned. Again, identify and explain the case’s key legal and common-sense principles as Lessons Learned. Instructions for Power Point
Objectives:
• Illustrative the application of legal principles studied in class.
• Observe the various interrelationships in the facts.
• Gives the individual student the opportunity to apply analytical methods to given facts
situations and to report his/her conclusions to the class.
• Gives the class an opportunity to examine, judge and evaluate actual cases.
Case Power Point Format:
1. Forum (whatever court it is e.g., U.S. Supreme Court )
2. Date of Decision
3. Topic
4. Parties
5. Key Definitions of Legal Terms
6. Essential Facts
7. Plaintiff’s Legal Arguments
8. Defendant’s Legal Arguments
9. Issues
o Issue #1
o Issue #2
o Issue #3, etc.
10. Case Decision and Supporting Rationale
11. Lessons Learned – Those key points of the case that illustrate important legal and common
sense principles. Again, much of your case presentation grade will depend on how succinctly
and completely you identify and discuss these Lessons Learned. Again, identify and explain
the case’s key legal and common-sense principles as Lessons Learned.
Helpful Hints – The case presentation should contain a succinct but thorough statement of the
facts; (1) a summary of the plaintiff’s arguments; (2) a summary of the defendant’s arguments;
(3) succinct statement of the legal and factual issues that the court is being asked to decide; (4)
a critically analyzed statement explaining the decision and its supporting rationale, specifically
detailing the court’s rationale and reasoning; and (5) provide in-depth statement, explanation and
discussion of the Lessons Learned and there potential ramifications. As case material is
completely testable, it is imperative that that all of the above be thoroughly explained. The
Lessons Learned are also likely but not exclusive sources of potential examination questions.
Remember, the grade of your case will depend on how succinctly and completely you identify
and discuss the case issues/concepts. A simple who won is NOT sufficient.
AVOID USING PLAINTIFF OR DEFENDANT MORE THAN TWICE IN THE POWER
POINT PRESENTATION. – use the parties names. DO NOT CUT AND PASTE FROM THE
CASE AND TO DEFINE ALL LEGAL TERMS THAT YOU USE.
MAKE YOUR POWERPOINT EASY TO READ – NOT ONE HUGE PARAGRAPH!
I STRONGLY SUGGEST THAT YOU DEFINE ANY LEGAL TERMS THAT YOU
USE IN YOUR CASE even better if you reference the text by page number.
Cook v. Whitsell-Sherman, 796 N.E.2d 271 (2003)
[2]
KeyCite Yellow Flag – Negative Treatment
Declined to Extend by Dan Cristiani Excavating Co., Inc. v. Money,
Ind.App., January 26, 2011
Tamara COOK, Appellant (Defendant below),
v.
Kenneth WHITSELL–SHERMAN,
Appellees (Plaintiff below).
Synopsis
Dog owner appealed judgment of the Circuit Court, Madison
County, Fredrick R. Spencer, J., holding her liable for injuries
suffered by Postal Service employee in dog attack. The Court
of Appeals, 771 N.E.2d 1211, reversed and remanded. On
transfer, the Supreme Court, Boehm, J., held that: (1) dog
bite liability statute applied to owner of a dog even though
owner was not in possession of the dog; (2) the dog bite statute
renders dog owners strictly liable if their dogs bite a postal
delivery worker without provocation; and (3) evidence rule
providing for admission of statements of medical charges did
not authorize admission of written statements purporting to
estimate future medical costs.
Persons liable for injuries in
Dog bite liability statute applied to owner of
a dog that bit Postal Service employee even
though owner was not in possession of the dog;
in providing that owner included custodians, the
statute did not substitute them for the owner if
the owner was absent from the scene of the bite.
West’s A.I.C. 15-5-12-1.
796 N.E.2d 271
Supreme Court of Indiana.
No. 48S04–0211–CV–607.
|
Sept. 24, 2003.
Animals
general
[3]
Animals
Duties and liabilities in general
Animals
Presumptions and burden of proof
The dog bite statute renders dog owners strictly
liable if their dogs bite a postal delivery worker
or other public servants in the course of their
duties without provocation; the statute reflects a
policy choice that the dog’s owner and keeper
should bear the loss rather than the injured public
employee by eliminating the presumption of
canine harmlessness as far as postal employees
are concerned. West’s A.I.C. 15-5-12-1.
[4]
Animals
Presumptions and burden of proof
The common law presumes that all dogs,
regardless of breed or size, are harmless.
1 Cases that cite this headnote
Remanded.
Rucker, J., concurred in part and dissented in part with
separate opinion.
[5]
Animals
Presumptions and burden of proof
Common law presumption that all dogs,
regardless of breed or size, are harmless can be
overcome by evidence of a known vicious or
dangerous propensity of the particular dog.
West Headnotes (19)
3 Cases that cite this headnote
[1]
Appeal and Error
Conclusiveness and
effect of verdict or findings in general
Practice of accepting verbatim a party’s proposed
findings of fact weakens appellate court’s
confidence that the findings are the result of
considered judgment by the trial court.
35 Cases that cite this headnote
[6]
Animals
Vicious propensities and
knowledge thereof
The owner or keeper of a dog who knows of any
vicious propensity is required to use reasonable
care in those circumstances to prevent the animal
from causing injury.
3 Cases that cite this headnote
© 2020 Thomson Reuters. No claim to original U.S. Government Works.
1
Cook v. Whitsell-Sherman, 796 N.E.2d 271 (2003)
[7]
Animals
13 Cases that cite this headnote
Duties and liabilities in general
The owner of a dog is expected to use reasonable
care to prevent injury that might result from the
natural propensities of dogs.
[12]
A statute in derogation of the common law is
presumed to be enacted with awareness of the
common law.
Evidence rule providing for admission of
statements of medical charges allows the
admission into evidence of bills for actual
charges for past medical treatment but does
not authorize admission of written statements
purporting to estimate future medical costs;
estimates of future medical expenses are not
records of an event that has occurred, as a
business record, nor do they help a refresh a
person’s recollection, and because the amount
of future medical charges is usually debatable
as to both the probability of the need for the
treatment and the method of estimating its future
cost, they constitute opinion evidence. Rules of
Evid., Rules 413, 803(6).
1 Cases that cite this headnote
7 Cases that cite this headnote
2 Cases that cite this headnote
[8]
Animals
Duties and liabilities in general
Whether the owner or keeper of the animal
is aware of any vicious propensity, the legal
description of the duty owed is the same: that of
reasonable care under the circumstances.
3 Cases that cite this headnote
[9]
[10]
Statutes
Negligence
regulations
Common or civil law
Violations of statutes and other
[13]
6 Cases that cite this headnote
Negligence
regulations
Violations of statutes and other
Negligence
emergency
In general; nature of
Negligence
Elements of Strict Liability
Negligence
Diminished Capabilities
Strict liability is similar but not identical to
negligence per se; under “negligence per se,” the
law accepts the legislative judgment that acts in
violation of the statute constitute unreasonable
conduct, but a person whose acts are negligent
per se can still invoke the excuses available
to any negligent actor such as emergency
response or lack of capacity, whereas “strict
liability” assumes no negligence of the actor, but
chooses to impose liability anyway. Restatement
(Second) of Torts § 288A.
Appeal and Error
Witnesses in General
Evidence and
The construction of a rule of evidence, not
its application to any particular set of facts, is
reviewed de novo.
Negligence per se is ordinarily found where the
actor has violated a duty imposed by law.
[11]
Evidence
Private Memoranda and
Statements in General
4 Cases that cite this headnote
[14]
Damages
Medical treatment and care of
person injured
In order to recover an award of damages for
medical expenses, the party seeking to recover
these damages must prove that the expenses were
both reasonable and necessary.
10 Cases that cite this headnote
[15]
Evidence
writings
Private contracts and other
The purpose of evidence rule permitting medical
bills to serve as prima facie proof that the
expenses are reasonable is to provide a simpler
method of proving amount of medical expenses
when there is no substantial issue that they
are reasonable and were caused by the tort; if
© 2020 Thomson Reuters. No claim to original U.S. Government Works.
2
Cook v. Whitsell-Sherman, 796 N.E.2d 271 (2003)
there is a dispute, the party opposing them may
offer evidence to the contrary, including expert
opinion, but the rule eliminates the need for
testimony on the often uncontested issue. Rules
of Evid., Rule 413.
10 Cases that cite this headnote
[16]
Evidence
Nature and Admissibility
Hearsay rules generally prohibit the introduction
of evidence of out-of-court statements to prove
the truth of the matters asserted in those
statements.
2 Cases that cite this headnote
[17]
Evidence
1 Cases that cite this headnote
Evidence
Writings
Hearsay rules prevent admission of opinion
in documentary form not subject to crossexamination.
1 Cases that cite this headnote
[19]
BOEHM, Justice.
Tamara Cook’s dog bit Kenneth Whitsell–Sherman while
Whitsell–Sherman was discharging his duties as a letter
carrier. The liability of owners whose dogs bite mail carriers
and certain other public servants is governed in Indiana by
statute. We hold the effect of this statute is to render dog
owners strictly liable if their dogs bite the described public
servants without provocation.
We also hold Indiana Rule of Evidence 413 allows the
admission into evidence of bills for actual charges for past
medical treatment but does not authorize admission of written
statements purporting to estimate future medical costs.
Nature and Admissibility
Hearsay rules are meant to prevent the
introduction of unreliable evidence that cannot
be tested through cross-examination.
[18]
Opinion
Evidence
Special Knowledge as to
Subject-Matter
Rules governing opinion testimony require that
the proponent establish the competency of the
source to express the opinion.
1 Cases that cite this headnote
Attorneys and Law Firms
*273 Kevin C. Tyra, Doris L. Sweetin, Indianapolis, IN,
Attorneys for Appellant.
Richard Walker, Anderson, IN, Attorney for Appellee.
Factual and Procedural Background
On the afternoon of July 31, 1998, Kenneth Whitsell–
Sherman was delivering mail as a letter carrier for the United
States Postal Service. When he arrived at the home of Marva
and Joseph Hart, the Harts were on the sidewalk outside their
fenced yard and their eight-year-old daughter was several
feet away on the sidewalk, holding Maggie, a 100–pound
Rottweiler, on a leash. Maggie was owned by appellant
Tamara Cook, and the Harts were taking care of her while
Cook was out of town. When Whitsell–Sherman finished
delivering the Hart’s mail and attempted to walk around Mrs.
Hart, Maggie broke free and bit Whitsell–Sherman on the left
hand. Before this incident, Maggie had never demonstrated
any aggressive or violent tendencies.
Whitsell–Sherman sued Cook and the Harts. The Harts did
not appear and a default judgment was entered against them
on both the complaint and Cook’s cross claim for indemnity.
After a bench trial, the trial court found that Cook was the
owner of the dog and the Harts had custody and control at the
time of the incident. The court concluded that Cook was liable
for negligence per se and violation of a statutory duty.
[1]
The trial court found it “highly likely” that Whitsell–
Sherman will need significant future surgery 1 and ruled
that *274 Evidence Rule 413 allowed Whitsell–Sherman
to prove these future costs through four contested items
of evidence: letters from a hospital, a surgeon, and an
anesthesiologist estimating the cost of future treatment and a
summary of future prescription costs, compiled by Whitsell–
© 2020 Thomson Reuters. No claim to original U.S. Government Works.
3
Cook v. Whitsell-Sherman, 796 N.E.2d 271 (2003)
Sherman’s lawyer. The trial court entered judgment for
Whitsell–Sherman against Cook and the Harts in the amount
of $87,000. Cook appealed and the Harts remained in default.
Indiana Code section 15–5–12–1 provides:
If a dog, without provocation, bites any person who is
peaceably conducting himself in any place where he may
be required to go for the purpose of discharging any duty
imposed upon him by the laws of this state or by the laws
or postal regulations of the United States of America, the
owner of such dog may be held liable for any damages
suffered by the person bitten, regardless of the former
viciousness of such dog or the owner’s knowledge of
such viciousness.
On appeal, the Court of Appeals agreed that Cook was the
“owner” of the dog for purposes of this statute, but reversed
the trial court’s determination that the statute rendered the
owner liable under the doctrine of negligence per se. The
Court of Appeals reasoned that the statute imposed no duty
upon Cook and did not alter the common law standard of
reasonable care required of dog owners except to eliminate the
common law presumption that a dog is harmless. The court
concluded that under general rules of negligence a public
servant who has been bitten by a dog must still show that
the dog’s owner failed to act reasonably to prevent the dog
from causing harm. Because the admissibility of evidence of
future medical expenses was likely to arise again upon retrial
the Court of Appeals also addressed the trial court’s ruling on
Evidence Rule 413, and held that estimates of future medical
charges were admissible under Rule 413. This Court granted
transfer.
I. Liability of “Owners” and Keepers
to Public Servants Bitten by Dogs
At the time Maggie bit Whitsell–Sherman, Cook was
Maggie’s owner but not her custodian. Whether Indiana Code
chapter 15–5–12 renders Cook liable under these facts is a
question of law and we review it de novo.
[2] Cook argues initially that the statute does not apply to
her in this situation because at the time of the incident she
was not in possession of the dog. Section 15–5–12–2 provides
that “owner” as the term is used in 15–5–12–1 “includes a
possessor, keeper, or harborer of a dog.” Cook reasons that
under this definitional section, an “owner” of a dog is the
person who has control of the dog at the time of the bite. As in
this case, the “keeper” may not be the person to whom the dog
belongs. The Court of Appeals held that the statute applies
to Cook by its terms. The statute explicitly provides that “
‘owner’ means the owner of a dog.” Ind.Code § 15–5–12–2
(1998). The court reasoned that the fact that the statute goes
on to say that “owner” also “includes” the “possessor, keeper,
or harborer of a dog” does not restrict the term “owner” to
those in immediate custody. Rather, it expands the definition
of “owner” to include others in addition to the dog’s owner.
We agree that Cook’s liability is governed by this statute.
By providing that owner “includes” custodians, it does not
substitute them for the owner if, like Cook, the owner is
absent from the scene of the bite. This also *275 seems
fair because the owner is usually better able to know the
dog’s temperament than one to whom temporary custody is
extended. The owner is ordinarily best positioned to give
whatever special instructions are necessary to control the dog.
[3]
[4]
[5]
[6]
[7]
[8] Cook argues that even if
she is an owner, the trial court misapplied Section 15–5–
12–1 when it held her negligent per se by reason of the
statute. The common law presumes that all dogs, regardless
of breed or size, are harmless. Poznanski v. Horvath, 788
N.E.2d 1255, 1257 (Ind.2003); Ross v. Lowe, 619 N.E.2d
911, 914 (Ind.1993). This presumption can be overcome by
evidence of a known vicious or dangerous propensity of the
particular dog. Ross, 619 N.E.2d at 914. The owner or keeper
of a dog who knows of any vicious propensity is required
to use reasonable care in those circumstances to prevent the
animal from causing injury. Id. Furthermore, the owner of a
dog is expected to use reasonable care to prevent injury that
might result from the natural propensities of dogs. Id. “Thus,
whether the owner or keeper of the animal is aware of any
vicious propensity, the legal description of the duty owed is
the same: that of reasonable care under the circumstances.”
Id. Cook argues that Indiana Code section 15–5–12–1 does
nothing to alter this traditional framework other than to
remove the common law presumption of harmlessness if
a dog injures a public servant. Accordingly, she argues,
the public servant injured by a dog still bears the burden
of showing that the owner of the dog failed to exercise
reasonable care to prevent the dog from causing injury.
[9] We agree with Cook’s view of the common law of
dog bites, but we think it clear that Section 15–5–12–1 was
intended to alter that common law framework if the victim
is a letter carrier. A statute in derogation of the common law
is presumed to be enacted with awareness of the common
law. Bartrom v. Adjustment Bureau, Inc., 618 N.E.2d 1, 10
© 2020 Thomson Reuters. No claim to original U.S. Government Works.
4
Cook v. Whitsell-Sherman, 796 N.E.2d 271 (2003)
(Ind.1993). Here, the legislature clearly intended to change
the common law and did so by explicitly removing the
common law presumption that a dog is harmless unless it
acts otherwise. Some states have chosen to impose strict
liability for all dog bites. As the Restatement notes, “[s]tatutes
frequently abolish the necessity of scienter and impose strict
liability for all harm caused to human beings and livestock
by dogs.” Restatement (Second) of Torts § 509 cmt. f (1977).
See, e.g., Nicholes v. Lorenz, 49 Mich.App. 86, 211 N.W.2d
550, 551 (1973) (a statute that provides “the owner of any
dogs which shall … bite any person … shall be liable for such
damages as may be suffered by the person bitten, regardless of
the former viciousness of such dog or the owner’s knowledge
of such viciousness” places absolute liability on the owner of
the dog).
[10] The Indiana statute imposes a less sweeping revision
of common law. It protects only public servants, and does not
expressly set a standard of conduct or impose liability for a
bite. The trial court concluded that the effect of the statute
was to render the owner negligent per se. Negligence per se is
ordinarily found where the actor has violated a duty imposed
by law. Elder v. Fisher, 247 Ind. 598, 602, 217 N.E.2d 847,
850 (1966). For example, violation of a statute making it a
misdemeanor to permit cattle to wander onto a highway is
negligence per se. Corey v. Smith, 233 Ind. 452, 455, 120
N.E.2d 410, 412 (1954). Just as the Indiana statute does not
explicitly create liability, it also does not expressly establish
a standard of conduct. It thus does not suggest negligence per
se under standard doctrine.
We nevertheless conclude the statute has the effect of
rendering the owner liable *276 for bites of public servants.
Persons engaged in dangerous activities may be strictly liable
to others who are injured. Specifically, owners of wild animals
have been viewed as negligent per se for failure to control the
animal. See Bostock–Ferari Amusement Co. v. Brocksmith, 34
Ind.App. 566, 568, 73 N.E. 281, 282 (1905). More recently,
liability for injuries inflicted by wild animals has been viewed
as strict liability doctrine. Irvine v. Rare Feline Breeding
Ctr., 685 N.E.2d 120…
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