1.(TCO A, C) Major Media Station, which broadcasts TV and radio programs around the country, contracts with shock jock Don Marco, who hosts the station’s most successful morning drive radio program in the country: Mark My Words. The program consists of traffic and sports updates, interviews with sports figures and celebrities, and Mark’s Words, which are in the nature of rants and opinions on whatever topic of interest the host decides to focus on, including news articles and happenings around the country and locally. Audience participation is encouraged by way of phone calls to the station during the program.
On more than one occasion, Mark My Words has made national news because of controversial statements made by the host regarding people’s looks, religion, lack of intelligence, actions, race, etc. In fact, the contract between Major Media Station and Don Marco specifies that Mark My Words is to be controversial. The greater the controversy, the higher the audience ratings and the higher Marco’s compensation. However, the term controversial is not defined, although the station manager who broadcasts Mark My Words is responsible for activating a delay button in the event Marco uses a word or makes comments that would cause the FCC to fine the station.
One morning, Mark My Words featured a rant full of derogatory sexual and racial comments about the members of a visiting ball team that succeeded in beating the local favored team at the championship game. As soon as the program aired, Major Media Station was bombarded with complaints. Following letters to sponsors and pressure from respected public figures, three large sponsors cancelled their advertising contracts. This happened in spite of the host’s public apology in which he claimed to have just made another stupid comment. In spite of fan protests, the station terminated Don Marco’s five-year $20 million contract. The contract was in its second year.
Marco is now suing Major Media Station for breach of contract, and the insulted players are also suing the station for defamation and intentional infliction of emotional distress.
i. What arguments do you think Marco will make in his suit against Major Media Station?
ii. In order to support his claim against the station, Marco wishes to introduce parol evidence regarding the term controversial. What would be the purpose of introducing this evidence? What arguments will Major Media Station make in opposition to the introduction of this evidence? Will Marco be successful in this regard, and why?
iii. As for the tort claims by the insulted players, Major Media Station argues it has no liability, as Don Marco is an independent contractor who is solely responsible for his rants, and that his public apology constitutes an admission of liability. Is Major Media Station off the hook?
2.(TCO B, D) Kimberly is a general partner with Jared, Joshua, and Diane in a general partnership called KJJD Partners. The partnership operates a fast food joint called We Nail The Burger! Each partner contributed $100,000 to capitalize the business. The partners hire staff to run the restaurant and stop in on occasion for lunch. The business gets its chopped meat from a local supplier to all the local diners.
While enjoying a beer and a burger after taking this Final Exam at We Nail The Burger!, Patricia bites into her burger and cracks a tooth on a fake nail, which is now embedded in her tongue. She gathers her classmates as witnesses, and lisping heavily, says to the manager, “I will THUU you.” The partners, who happen to be there for lunch, laugh at the irony of a nail in the burger, but are not worried about liability because they have insurance and they have nothing to do with the running of the place, especially ordering food and cooking. Unfortunately, Patricia loses half her tongue as a result of the injury, and the judgment against the partnership exceeds the insurance coverage and partnership capital by $1 million.