Suzy and Samuel Shopper are walking on 5th Avenue near Saks Fifth Avenue and notice a person purporting to sell luxury goods on the sidewalk including, without limitation, Rolex watches and Louis Vuitton handbags. The Rolex watches are selling for $99 each and the bags for $999. Mike Merchant, the person selling the merchandise, swears to Sam and Suzy: “These goods are all authentic; they are ‘seconds;’ they have only minor imperfections.” (“Seconds” are authentic goods, but with minor imperfections, which prevent them from being sold at top retail price.) Sam buys one of the Rolex watches, knowing it’s a fake, and Suzy buys a Louis Vuitton handbag, believing it is an authentic, discounted “second.” Sam and Suzy then run into Suzy’s BFF Betty, who admires Sam’s Rolex watch and Suzy’s Louis Vuitton handbag. Suzy tells Betty about the “bargains” she and Sam just found, which, in turn, causes Betty to become enraged about Suzy’s failure to include her in their shopping spree. A heated discussion ensues during which Betty angrily and repeatedly yells at the top of her lungs: “Sam and Suzy Shopper are liars and thieves; they buy knock-offs.” People passing by hear Betty’s assertions and sneer at Sam and Suzy, obviously believing Betty. Sam and Suzy suffer nervous breakdowns. Suzy becomes so distressed that she removes one of her Christian Louboutin stiletto heels (with red soles) and raises it in an intentionally threatening manner towards Betty. Betty ducks and flinches and collapses to the ground injuring her head. Meanwhile, Lenny Lifesaver sees what is going on from down the block and sprints to the rescue, bumping various pedestrians to the ground along the way. When he is about 5 feet away, he slips on kitchen grease from leaky garbage bags placed there by the swanky French restaurant Le Bon Hotdog. Broken concrete on the sidewalk, left there by AJ Construction Company (“AJ”) the day before while repairing the curb, also contributed to Lenny’s fall. AJ’s employees knew they left broken concrete on the sidewalk but wilfully neglected to clean it up because they were anxious to go home. A New York City ordinance requires owners and tenants to maintain in a safe and reasonable fashion the sidewalks in front of their premises. Lenny breaks his ankle. Being unable to stand and stop the fight, he reaches for a piece of broken concrete and hurls it at Suzy. It’s a perfect strike, but Suzy ducks and the concrete hits Pam Passer-by who is videotaping the scene on her iPhone. Pam is knocked-out and taken to the hospital. Her iPhone is shattered.
INSTRUCTIONS: Identify each and every applicable cause of action (the legal theories) that apply. Who is liable to whom? What are the damages obtainable, if any? What are the defense? Argue both sides of the case and identify the party likely to succeed. To the extent facts are missing to complete your analysis, identify those facts.
