Read the following contract:

RELEASE OF ALL CLAIMS AND COVENANT NOT TO SUE
 
 
	This RELEASE AND COVENANT NOT TO SUE (“Release”) is made and entered
into by and between seller ________________________________ (“Dealer”)
and ___________________________________ (“Purchaser”).
 
	FOR AND IN CONSIDERATION of the promises and the mutual covenants
herein exchanged and intending to be legally bound hereby, the parties
hereto agree as follows:
 
1.	Purchase and Sale.
 
1.1	Purchaser hereby agrees to purchase and Dealer agrees to sell the
motor vehicles listed on page 3 of this Release (“Cars”) “as is.”
 

2.                  Release of Liability and Covenant Not to Sue.
 
2.1	Assumption of Risk.  Purchaser understands that driving the Car at
or near the speeds at which it is capable presents inherent and
inevitable risks which can never be completely eliminated.  Factors
beyond the control of Dealer and of Racing (the manufacturer) will
affect the operational safety of the Car under these conditions.  Such
factors include, but are not limited to: (a) the skill and experience
of the driver; (b) the performance by or on behalf of Purchaser of
inspections, maintenance procedures, and repairs; (c) weather,
lighting, and track conditions; (d) the presence of other operating
Cars; and (e) the speed at which the Car is driven.  PURCHASER
UNDERSTANDS AND ACCEPTS ALL RISKS ASSOCIATED WITH MOTOR VEHICLE RACING
AND HIGH-SPEED DRIVING.  Purchaser further understands that the
operator may lose control when driving the Car under racing
conditions, and Purchaser accepts all risks associated with any such
resulting loss of control.
 
2.2	Release and Covenant Not to Sue.  PURCHASER AND HIS/HER SPOUSE,
HEIRS, LEGAL REPRESENTATIVES, ASSIGNS, NEXT OF KIN AND INSURERS HEREBY
RELEASE AND COVENANT NOT TO SUE DEALER AND RACING, AND THEIR
RESPECTIVE PARENT, SUBSIDIARY, AFFILIATED COMPANIES, AND JOINT
TORT-FEASORS, AND THEIR RESPECTIVE OFFICERS, DIRECTORS AND EMPLOYEES
FROM ANY AND ALL DAMAGES, LIABILITIES, CAUSES OF ACTION, JUDGEMENTS,
AND CLAIMS FOR PERSONAL INJURY, DEATH AND PROPERTY DAMAGE ARISING OUT
OF OR RELATED TO THE USE OF THE CAR, WHETHER NOW EXISTING OR ARISING
IN THE FUTURE.
 
2.3	Indemnity.	Purchaser further hereby agrees to indemnify and hold
Dealer and Racing and their respective parent, subsidiary, affiliate
companies and joint tort-feasors, and their respective officers,
directors, and employees, harmless from and against any and all
damages, liabilities, causes of action, judgments, and claims for
personal injury and property damage, and from any fees, expenses, or
costs of any kind, including reasonable attorneys’ fees, incurred in
connection with any damages, liabilities, causes of action, judgments,
and claims brought, claimed, or asserted at any time on account of the
use of the Car.
2.4	The foregoing Release, Covenant Not to Sue, and Indemnity are
given in recognition of the inherent dangers of motor vehicle racing
and high-speed driving and with the knowledge that Purchaser or third
parties could be injured or killed during the use of the Car.  The
Release, Covenant Not to Sue and Indemnity are intended to protect the
released and/or indemnified parties should the Purchaser or a third
party later raise claims of negligence, defective design, defective
manufacture, failure to warn, or conditions which otherwise would
support the imposition of compensatory or punitive damages.
 
3.	Damages.	Under no circumstances shall Dealer or Racing ever be
liable to Purchaser under any theory for recovery of damages in excess
of the purchase price of the Car.
 
4.	Safe Operation.	  Purchaser agrees he/she will not drive the Car or
allow others to drive the Car while impaired by drugs, alcohol,
illness, or fatigue or during hazardous weather conditions.  Purchaser
agrees and acknowledges that the Car is not designed, equipped, or
intended to be operated on public roads, off-road, or on any surface
other than an INEX sanctioned automobile race track and Purchaser
agrees he/she will not improperly operate or allow others to operate
the Car in these or other conditions for which it was not designed.
 
5.	Minors.
 
5.1	Purchaser hereby agrees that if he/she allows his or her minor
children to operate, service or participate in the operation or
servicing on the Car, that all terms of this Release, Waiver,
Indemnity and Covenant Not to Sue shall apply to and be binding upon
such minor child or children, and Purchaser hereby agrees on behalf of
said child or children to release, waive, indemnify and never to sue
Dealer or Racing, or their respective parent, subsidiary, affiliated
companies or joint tort-feasors, in accordance with all the other
terms of this Agreement.
 
5.2	Purchaser agrees on behalf of him/herself and his spouse, heirs,
legal representatives, assigns, next of kin, and insurers to release,
waive and indemnify from liability and never to sue Dealer or Racing,
or their respective parent, subsidiary, affiliated companies or joint
tort-feasors, for any injuries, medical expenses or death of any minor
child allowed to operate, service, or participate in the operation or
servicing on the Car.
 
6.	General.
 
6.1	deleted
 
6.2	This Agreement was not executed in reliance upon any statement or
representation and constitutes the complete expression of the entire
agreement between the parties with respect to the subject matter
hereof, all other or prior agreements, statements, representations
whether written or oral, being merged herein.  This Agreement may not
be modified or amended orally or unilaterally but only by a writing
signed by both parties.
 
6.3	Purchaser agrees and assumes the risk of serious injury, death and
property damage.  Purchaser agrees that the foregoing release, waiver,
indemnity, and covenant not to sue is intended to be as broad and
inclusive as permitted by law and that if any portion is held to be
invalid, the remainder shall continue in full force and effect. 
Purchaser agrees that this Agreement may be pleaded in complete bar to
any action by him and his spouse, heirs, legal representatives,
assigns, next of kin, and insurers.
 
 
	IN WITNESS WHEREOF, the parties have executed this Agreement by the
personal signature of the Purchaser and the duly authorized signature
of Dealer/Seller as of the ______ day of ________________, 200__.
 
 
PURCHASER REPRESENTS THAT HE/SHE HAS READ AND UNDERSTANDS THIS
AGREEMENT, THAT HE/SHE IS EIGHTEEN (18) OR MORE YEARS OF AGE, AND THAT
HE/SHE IS LEGALLY COMPETENT TO MAKE AND ENTER INTO THIS AGREEMENT.
 

 __________________________________________
Bill Smith, Purchaser


___________________________________________
ABC, Dealer



Four days after purchase, Bill brings the car to a mechanic to examine
the engine.  The latter tells him that the car’s engine is not proper
for a racing vehicle; in fact, it is an engine from a Toyota Corolla. 
The dealer specifically told Bill that the engine was a rebuilt racing
engine (Bill had two witnesses to this statement).  Unfortunately, the
mechanic was correct.

3a.  Bill files an action against the Dealer seeking a new engine from
the Dealer, compensatory damages, and punitive damages in excess of
$500,000.  Other than Breach of Contract, identify the best eight (8)
specific causes of action that Bill could raise in his Complaint.  For
each cause of action, write one or two sentences as to why that cause
of action fits the circumstances detailed in this case.   List a
particular cause of action only one time.  If there is more than one
legal theory under that cause of action, it is okay to identify them
under that cause of action (but it only counts as one cause of
action).  For example, the cause of action of “infliction of emotional
distress” can be negligent or intentional.  This would count as one
cause of action for the purposes of this exam (FYI – I’m not looking
for that tort for this question J).

3b.  In your opinion, what legal effect will clauses 1, 2.4, 3 & 6.2
of the contract have, when confronted with the lawsuit referenced in
the prior question.  You can address these clauses cumulatively.  In
other words, each clause does not require a separate analysis.
(2-3 paragraphs)  

3c.  Explain the legal effect of clauses 2.2 (spouse release) & 2.3
(Bill’s indemnity) on the following facts:

Bill’s spouse never signed this contract.  Ten days after Bill brought
the car home, she took it to the grocery store for milk, unbeknownst
to Bill.  Unfortunately, the car went into sudden acceleration (a
phenomenon caused by a faulty “cruise control” device).  As a result,
she broke her arm and hurt her back (damages claimed in excess of
$200,000).  Assume that she never read the contract and that there
were no warnings posted in the car that the vehicle was not to be
driven on city streets.  Give your opinion as to whether these clauses
will be upheld by a judge in a lawsuit against the manufacturer,
RACING, as you explain all relevant legal concepts.  (2-3 paragraphs)

3d.  Assume the same facts in 3c, and that Bill and his spouse reside
in Fulton County, Georgia, where the accident occurred; RACING is a
company based in San Francisco, CA.  Identify five (5) specific courts
which could have jurisdiction over this matter.  Explain each answer
in one or two sentences.  1