Law

I. Is there a valid contract
A. Mutual Assent.   There is mutual assent when meeting of the offer and the acceptance upon the thing and the consideration which constitute the contract.  There is also mutual assent when there is concurrence of the wills of the parties to a contract with respect to the object and the consideration.  In this case, there was a mutual assent to buy a house at a particular price.

B. Offer and Acceptance.  Usually, contracts start when an offer which is initially made by one party.  When the offer is accepted by the other party and its acceptance is communicated to the other party there is a meeting of minds between the parties.

1.  Offer of Dan.  Dan initially made an offer to sell Pat a house and that he would help Pat with the financing.
2.  Acceptance of Pat.  Pat accepted the offer to buy  the house at the price of 250,000 and that its acceptance was communicated to the Dan.

C. Lawful Object.  To have a valid contract the object of the contract must be lawful.  A lawful object is that which is not forbidden by law, is of such a nature that it permitted would not defeat any law, is not fraudulent, does not involve injury to the person or property of another or is not regarded as immoral or opposed to public policy.  In this case, the lawful object of the contract is the house which Pat is interested in buying.

D. Lawful Consideration.  The third requirement of a valid contract is lawful consideration.  Consideration is simply the essential reason why the contracting parties entered into a contract.  It is the moving force or the direct and immediate reason which justifies the creation of an obligation.  In contracts, the consideration must exist at the time the contract was entered into or that it must be lawful otherwise the contract will be void.  The consideration for the house is 250,000 which Pat intends to buy from Dan.

II. Defenses
While the essential elements of the contract are present making it a valid contract, it does not follow that that contract is legally enforceable in court.  If Pat decides to bring an action in court to compel Dan to sell to her the home, Dan may allege that the contract is not legally enforceable because it is not in writing which is required under the principle of the Statute of Frauds.

A. Statute of Frauds.  Dan may allege as a defense that there is no written contract between the parties to sell the land.  Pat will not be able to present any evidence of the agreement to sell since there was only an oral agreement to the sale.  The Statute of Frauds imposes additional requirements before a contract may be legally enforceable in court.  The Statute of Frauds requires that certain contracts must be in writing and that the document must be signed by all parties to be bound by the contract.  For some contracts, it is not therefore enough that there is consent, lawful object and lawful consideration for the contract to be enforced in court.  The purpose of the Statute of Frauds is to ensure that there is an evidence of the agreement between the parties to avoid fraud.  The requirement is necessary for evidential purpose only.  If one of the parties disputes the agreement to sell the house then no action can be maintained in court to enforce the agreement between the parties.

A contract involving the sale of land or piece of land is covered under the Statute of Frauds.  The sale of home is presumed to include the sale of the land on which the home is built.

B. Partially PerformedExecuted Contract.  However, there are exceptions to the Statute of Frauds.  This means that while the contract does not appear in writing the same may still be enforced in court.  One of the exceptions is when the contract has been partially performed and executed.

1. Pat moved in to the house.  In this case, there are indications that the contract of sale of the piece of land has been partially performed.  One of these indications is that Pat has moved in to the house she purchased from Dan.  Pat has been living in the house for six months before Dan decides to repudiate the contract.

2.  Installation of furniture.  Pat also installed carpeting, window coverings and a patio cover.  In addition, Pat has been sending checks to Dan in the amount of 1,000 as commission which he religiously cashed every month.

Conclusion.  Though there is no evidence of a written agreement between Dan and Pat, the contract of sale has been partially performed and executed.  Dan cannot invoke the defense that the contract of sale does not appear in writing to prevent its fulfillment.  The court will rule that the contract is an exception to the requirement of Statute of Frauds and is enforceable in court.

FACTS
The case involves the imposition of death penalty over a respondent, who is black, for the intentional firearm killings of two individuals.  The United States sought to have the death penalty imposed.  Respondent, Bass, argued that the government only sought to have the death penalty imposed on him because of his race.  He then moved to have the death penalty notice dismissed on the ground of selective prosecution.  Requesting for the discovery of information relating to the Governments capital charging practices, respondent claims that nationwide statistics demonstrated that the United States charges blacks with death eligible offenses more than twice as often as it charges whites.  The motion for discovery was granted but the United States refused to comply with said discovery order.

HELD
The Supreme Court, in deciding to reverse the ruling of the Sixth Circuit, cited the case of United States v. Armstrong, 517 U. S. 456, 465, where it held that for there to be a proper claim of selective prosecution to justify the removal of the death penalty notice and to justify the discovery there has to be evidence of discriminatory effect and discriminatory intent.  There must be credible showing that similarly situated individuals of a different race were not prosecuted.  The Supreme Court ruled that the Sixth Circuit assumed that this was the case as the nationwide statistics demonstrated.  However, the Supreme Court noted that even if the requirements under Armstrong were met, there has to be a clear showing that charges have been brought up against similarly situated defendants.  There being none, the Supreme Court reverses the decision of the Sixth Circuit.

Without much ado, on a bare perusal of the facts of this case, it is quite evident that Stan has inadvertently caused Mikes death but whether or not he will be held liable on a charge of manslaughter as a result of it, is a matter of law and not of fact. Taking into consideration the facts of this case as well as the law in this regard the following article shall attempt at delineating the extent of Stans liability as far as Mikes death is concerned.

As has been stated in the very first line, Stan is responsible for the death of Mike, even though he certainly did not foresee the chain of events that was to follow after he set Ollies house on fire. Thus in criminal law parlance, it shall not be incorrect to state that Stans mens rea or motive was only to the extent of destroying the hedge in dispute and not to the commission of a homicide. In fact, Stan had set the hedge ablaze believing that Ollie and his entire family was away, so it can be safely said that he did not intend to do anything beyond that. Admittedly his actions would constitute the crime of arson (in the third degree) but on a direct assessment of the motive and malice behind Stans actions, it would appear that a charge of simple voluntary manslaughter would not be tenable against him.

However, to understand how liabilities are affixed as regards different distinct criminal charges against the same person, the two theories of causation and foreseeability must first be understood. Both these concepts originated in English common law and have gained considerable importance in the law of torts and crimes. Under the causation rule, a person is liable for all acts that were caused by his actions, unless there has occurred any new action (referred top as novus actus interveniens) that has intervened and affected this chain of causation. This rule disregards the notion of foreseeability, i.e. it is immaterial whether the person committing the act could reasonably foresee the subsequent effects of his actions, as long as he was responsible for the initial effect. Contrarily, the rule of foreseeability holds that liability extends only to the point of reasonable foreseeable consequence and not any further. Both these tests have vociferous support from their respective schools of thought. And criminal cases often turn on the issue of foreseeability when proximate cause is in question.

In general courts have held that a person could be held liable only if it could be shown that a probable or foreseeable consequence of his act would cause serious injury or death. Now, as per the foreseeability test the court has to analyse the act from the point of view of a reasonable man. In this case, whether Stan ought to have reasonably foreseen that Mike would have been present in the house and that there would be a wind that would spread the fire to the house and that Mike would succumb to his burns at the hospital owing to an erroneous medication  all these questions are matters of fact and is for the jury to decide. But even though one may state that it could be reasonably foreseen that the fire would spread to the house, and that Stan ought to have known that there was a likelihood of someone being present on the premises (based on the lights and the music playing etc. etc.) it is a bit of a stretch, (both legally as well as in a purely common-sensical manner) to expect that Stan should also have known that the person inside the house at the time of the fire was Mike, and moreover, that Mike suffered from an allergy and would not respond to the prescribed medication.

In an English case that dealt with the concept of novus actus interveniens, R v Smith, where a man had stabbed another man, who eventually died as a result of improper medical attention to his stab wounds, the accused was convicted of manslaughter rather than murder. However, it is pertinent to note two things here firstly, the victim was in fit condition and suffered from no known allergies or chronic defects and secondly that the defence was able to prove that if the victim had received proper medical treatment subsequently, he would have survived. In contrast with that case, here Mike suffered from a medical deformity (even though Stan was unaware of it) and while perhaps a more experienced doctor would have been able to prescribe the proper medication, taking Mikes allergy into account, there is little on record to show that the junior doctor had not exercised due care and caution in dealing with Mikes burns. In any case, to determine whether the fire injuries suffered by Mike was enough to cause his death or whether the ingestion of the prescribed medicine was, legally speaking, a novus actus interveniens, the medical evidence on record (autopsy report and the junior doctors diagnosis) must be scrutinized carefully.

There is however one more bone of contention. If Stan had deliberately set Ollies house on fire, knowing that Mike would be inside, then he may have ended up being convicted, either for voluntary manslaughter or for murder. But in the present scenario, Stan had no intention of killing Mike (or anyone else) or even burning down the house, for that matter. Should Stan be charged with the either or both of the aforementioned offences, the prosecution would have a hard time convincing the jury of Stans mens rea as regards those offences.

This does not absolve Stan from facing any kind of homicide-related charges though. Aside from voluntary manslaughter and murder, there is also the question of involuntary manslaughter, i.e. manslaughter caused without any intention to kill. Also over the years, American criminal jurisprudence has also come to recognize a different class of homicides known as felony homicides. Under this concept, a person can be held liable for a charge of murder if the death of a victim had occurred while the former was committing a felony or during an attempt to commit a felony, even though the latter may have had no intention of killing the latter. As an example, if a person sets fire to a warehouse, he is naturally guilty of the crime of arson, but if the resultant fire caused someone inside the warehouse to be burnt to death, then the accused can also be held guilty of murder under this rule. As regards the necessary mens rea for the offence of murder, it is imputed to the mens rea for the initial offence (i.e. arson in this case), and thus a homicide committed in the course of a felony, qualifies as a murder in the first degree. This rule has come under a fair degree of criticism for its harshness, and indeed most American courts are loath to slap murder convictions in cases of this nature. Nevertheless, the fact remains that felony murder is a statutorily recognized offence in most States in the US and is seen as serving as a deterrent to the commission of such felonies.

However even a charge of felony murder against Stan in the present case (the felony being of course, arson) seems rather flimsy in light of the stated facts. Under criminal law, the offence of arson involves the deliberate burning of a building and in this case Stan had no intention of burning Ollies house. However, in light of the fact that there was a breeze blowing at the time Stan set fire to the disputed hedge, it seems that a jury would be inclined to hold that the burning down of the house ought to have been reasonably foreseen by Stan.

Notwithstanding the foreseeability test, it is also pertinent to note here that certain American States have classified arson into various degrees depending on the severity of the offence (all of which are also felonies) and consequently Stan can still be charged with the commission of arson (albeit of a lesser degree) which, in turn, would make him susceptible to a charge of felony murder. For instance if this entire incident occurred within the territorial jurisdiction of the State of California, then Stan would have been charged with, inter alia, committing an offence under Sections 451 and 452 of the CA Penal Code, which deal with the offences of arson and unlawful setting of fire to structure forest land or property  the former is a felony while the latter is a misdemeanor. The only distinction between the two is that in the latter it is an act of wanton recklessness while the former is an intentional act. Now, even if Stan did not intend to burn down Ollies house, he did intend to burn down the hedge and so his act would still fall under the category of arson.

Thus on analysis of the entire case, it seems that Stan could be held liable for arson (in a lesser degree) and depending on the manner in which the jury interprets his actions, felony murder or involuntary manslaughter. Of course, if the jury decides in favor of substituting the charge of arson to a lesser one of unlawful burning of property (which is a misdemeanor), then Stan can only be found criminally liable of involuntary manslaughter and not felony murder. Also, crucially, the prosecution must also establish that the fire, on its own, was sufficient to cause so much injury to Mike as to result in his death sooner or later, and that consequently, the negligence on the part of the junior doctor did not any way alter the foreseeable sequence of events. If however, the prosecution is unable to show that this was the case, Stan can only be convicted of an attempt to commit involuntary manslaughter or felony murder.

The treatment of discrimination cases based in racial classifications has been subjected to the most rigorous type of judicvial review, known as strict scrutiny, and this strict scrutiny standard is comprised of three main elements. (Richmond v. J. A. Croson Co., 1989, pp. 469-470)  First, the law must serve what is defined as a competing state interest.  This element is distinguished from other standards of review in that a compelling state interest means that the law is necessary as opposed to be substantially related or a rational basis for ensuring the satisfaction of that interest.  Second, there is a requirement that the law at issue must be drafted or tailored in a manner that is very specifically designed to accomplish the aforementioned compelling state interest.  This allows the Supreme Court, in racial discrimination cases, to examine the scope of the challenged laws that is not allowed to the same extant in other discrimination cases with different standards of review.  Finally, there is a least restrictive element of the strict scrutiny tests that requires no other available or lesser restrictive legal means for achieving the same compelling state interests.  The strict scrutiny test, as a consequence, is the highest standard for examining discrimination cases pursuant to the Equal protection Clause because of the tremendous burden it places on states desiring to legislate racial classifications.

The treatment of discrimination cases based on gender classifications has employed a judicial test ranging from what has become known as intermediate scrutiny to what has more recently been strengthened to a test, as enunciated by Justice Ginsburg in United States v Virginia, that more closely resembles a strict scrutiny type of threshold although the majority in that case did not use the strict scrutiny terminology.  Prior to this Supreme Court decision in 1996, the government had the burden of proof to establish that its law functioned in pursuit of a state interest that was important and that the law substantially sought to pursue that important state interest.  However, in the 1996 case, Justice Ginsburg wrote in response to a gender classification that Parties who seek to defend gender based government action must demonstrate an exceedingly persuasive justification for that action before restating the intermediate scrutiny test that To meet the burden of justification, a State must show at least that the challenged classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives (United States v. Virginia, 1996, p. 515).  It would appear, as Justice Scalias dissent asserted, that the Supreme Court in this decision strengthened the intermediate scrutiny test in gender cases that made it more similar to strict scrutiny cases than rational basis standards.

Although the United States Supreme Court has consistently refused to treat discrimination cases predicated on sexual orientation as rising to the level of a specially protected suspect class as is the case in discrimination cases predicated on race, it has finally issued an opinion holding that sexual orientation can in certain cases be used a basis for alleging and proving a violation of the Equal protection Clause via the Fourteenth Amendment.  The constitutional standard of review, however, is quite deferential and it does not demand as much scrutiny as other classes alleging and  seeking to demonstrate constitutional violations. In Romer v. Evans, for example, the United States Supreme Court held that A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense (1996, p. 622).

In the instant case, the people of Colorado has voted in favor of a state constitutional amendment that was designed to prevent all branches of the government from passing laws banning discrimination on the basis of a persons sexual orientation.  Justice Kennedy, writing for the six-member majority, did not apply a strict scrutiny or an intermediate scrutiny test instead he articulated and applied  a rational basis test in which the state of Colorado was vested with the burden to establish that this law had a rational basis upon which to serve a proper legislative purpose.  This being the most deferential standard of review in discrimination cases, the burden of proof appeared to have been relatively easy to satisfy.  Colorados law, in order to withstand constitutional challenge, need to serve a proper legislative purpose and this legislative purpose needed to be rationally designed in fact.  Specifically, this test demanded at the very least that Colorado articulate a factual basis to support the legislative purpose of the law.  Colorado, in the Supreme Courts opinion, did not satisfy this burden of proof even with respect to the extraordinarily deferential rational basis analysis.  The Court found the states proffered factual basis irrational and too attenuated from a proper legislative purpose to withstand constitutional challenge.  More particularly, Justice Kennedy concluded that We cannot say that Amendment 2 is directed to any identifiable legitimate purpose or discrete objective. It is a status based enactment divorced from any factual context from which we could discern a relationship to legitimate state interests it is a classification of persons undertaken for its own sake, something the Equal Protection Clause does not permit. (Romer v. Evans, 1996, p. 624)  What emerges from this case, with respect to discrimination cases based on sexual orientation, is a standard of review known as rational basis and linked to a legitimate legislative purpose.

Although it is the most deferential standard, this case demonstrates that constitutional challenges will be sustained when people are discriminated against without any factual basis or legitimate purpose.
Confrontation Clause and the Sixth Amendment

In the instant case, and given the facts provided, defense counsel would be well-advised to argue that the witness statement is inadmissible because there is a violation of the Confrontation Clause of the Sixth Amendment of the United States Constitution.  In Crawford v. Washington, for example, the United States Supreme Court stated that TheSixth Amendments Confrontation Clause provides that, in all criminal prosecutions, the accused shall enjoy the right  to be confronted with the witnesses against him. We have held that this bedrock procedural guarantee applies to both federal and state prosecutions. (2004, p. 39)  The public policy represented by the Sixth Amendment is that all criminal defendants should be able to challenge witness statements and cross-examine the witness in the interests of justice and fairness.  Although there are some exceptions when a witness is unavailable for a particular reason such as death, the facts in the instant case do not establish any legally recognized reason for the witness absence from the criminal proceedings the day after the statement was made.  A witness against a criminal is broadly defined and includes witness testimony or statements made in an extrajudicial setting similar to the setting provided in the instant case.  In addition, the witness statement functioned as testimony within the Confrontation Clause standards because it was solely on the basis of these facts or evidence that the defendant was convicted in a criminal trial and sentenced to a quarter century in prison.  Finally, the United States Supreme Court has also stated That interrogators are police officers rather than magistrates does not change the picture either.

Justices of the peace conducting examinations under the Marian statutes were not magistrates as we understand that office today, but had an essentially investigative and prosecutorial function and that even if theSixth Amendmentis not solely concerned with testimonial hearsay, that is its primary object, and interrogations by law enforcement officers fall squarely within that class. (Crawford v. Washington, 2004, p. 49)  In sum, defense counsel will have a strong argument that the admission of the witness statement was a violation of the Sixth Amendments Confrontation Clause.

The Worcester Cold Storage case occurred in the Commonwealth of Massachusetts.  In the aftermath of the horrible fire, the public demanded that justice be served for the six firefighters who lost their lives.  The Prosecutors for the Commonwealth answered this call by charging the defendants with manslaughter, but these charges were dismissed due to lack of evidence.  Would a conviction have been more plausible if the charge had been arson  Would the issues have been the same.
     
The crimes of manslaughter and arson are both felony offenses.  The defendants in the Worcester Cold Storage case would have been convicted if the charge had been arson instead of manslaughter.  According to the General Laws of Massachusetts, the crime of arson states that one who, causes to be burned, or whoever aids, counsels or procures the burning of a building which has been erected for public use, or a banking house, warehouse  and whether occupied, unoccupied or vacant, shall be punished by imprisonment in the state prison for not more than ten years, or by imprisonment in a jail or house of correction for not more than two and one half years .   (Crimes Against Property, 2009)  The fact that the defendants were living in the vacant building raises the issues of criminal trespassing.   The voluntary act was established when the defendants chose to leave the building and not report the fire.  The mental state of the defendants was established easily since the physical altercation that created the fire was reckless.
     
A charge of arson would have guaranteed a conviction against the defendants, but a conviction would have been more impersonal to the fallen firefighters. The sentence would only have carried a ten year jail term.  A conviction of manslaughter would have allowed vindication for the firefighters and their families.  The issues would have been very much the same, but the outcome would have been more satisfactory in reference to the public outcry for justice.

Annotation of the Bibliographies

Lawrence Salinger (2004) Encyclopedia of White Collar and Corporate Crime Sage Publishers.

Author Lawrence Salinger, has written the book Encyclopedia of White Collar and Corporate Crime for the use by college and high schools students. It contains 974 comprehensive pages. The language that has been used is simple and the author has ensured that he has included examples of precedents that relate to the white collar crime, as a means of projection of the idea. It also includes simple definitions that enlighten the student and enhances hisher understanding throughout the study. Each topic in the book has been written down with sophistication with summations and references being included to give way to further research and perception by the student.

The book covers all the aspects of white collar crime, putting into consideration the diversity of the topics that surround it. The cases that have been highlighted are those that include the different companies, individuals and Acts. The book is an excellent choice for the study of the topic since it covers the commercial, the legislative, the managerial, the economical and the political crimes. This being the main areas in which White Collar Crime is becoming rampant ensures that the reader has a wide coverage of the concept.

Ellen Podgar, Jerold Israel and Paul Borman (2003) White Collar Crimes Law and Practice Thomson West.

The White Collar Crime is a crime that has frequently not been discovered and in many cases is just let to slide away, due to the ignorance and unawareness that surrounds the concept. The book by Ellen Podgar et al brings out the laws and the cases that have been dealt with so far in the area in an attempt to spread the knowledge of White Collar crimes to its readers. The authors of the book have incorporated all the concepts of law and directed them towards this particular crime. The procedures, both substantive and administrative have been explained clearly in regard to the white collar crimes.

With this book, students are able to appreciate the different procedures that are followed in the identification all through to the prosecution of the corporate and the white collar crimes. The authors of the book were also able to project both the traditional and the modern statutes and cases that govern the crimes giving illustrations where necessary. The book contains 895 pages.

Girish Mishra and Braj Kumar Pandey (1998) White Collar Crimes Gyan Books Publishers.

The book by the Indian authors has been categorized under History. This is because it takes us back to the period before the industrial revolution where there were no crimes rated under white collar. The book clearly brings out the modernity of the crime and its relation with the rich and famous. It has a total of 426 pages. The authors have captured a wide area where the crimes have taken place, laying an emphasis on the business world, the religions, the media houses and the political arena.

 The book then further sheds a light on the concept of mafias which are groups of people who are aimed at destroying each other by defrauding and swindling off finances with an aim of making themselves financially capable, and has also indicated the scams that come up as a result of that. The book narrows its study to the occurrences in India making it very understandable and very easy for the reader to relate the concepts to the happenings of a particular country. The book has been written for explorers, governments, reporters and any other interested readers.

Sutherland, Edwin Hardin (1985) White Collar Crime The Uncut Version Yale University Press.

Sutherland explained the concept of white collar crimes with a lime light on the happening of the United States business arena. The book flamboyantly illustrates the precedents that have been witnessed so far in American courts with a thorough inclusion of the different types of white collar crimes. The book illustrates the lengths at which individuals and a corporate can go to in order to swindle some money for their own financial benefits. The authors have made the book very readable and due to this it can be used by any kind of readers interested in the laws and the prosecutions behind white collar crimes.

Larry J. Siege (2008) Criminology 10th Edition Cengage Learning Publishers.

Siege, the author of the book criminology begins the book with an in depth analysis of the general concept of criminology. The theories and the criminal justice system are well introduced in this part of the book. The different types of crime are then explained one and one and later in the book on page 370, chapter 13, under the topic White Collar and Organized Crimes, the concept of white collar crime is covered. The book is aimed at equipping students with the required skill and knowledge of the concepts with additional end-of-chapter evaluations, synopsis and abstracts represented on tables and instances and cases. The examples are very essential since they ensure that whatever is studied in the book is applied side by side with what is happening in the real world. This therefore, makes it very easy for the student to analyze the concept and be able to detect a corporate or a white collar crime in the future when they are in the working environment.

In consideration of the given circumstances, the legal advice to be given to Lucky with regards to his cases against Whizzkid and Pota as claimant or plaintiff, as well as defendant against Minnie, Prodnose, Sam, Beryl and Julius are as follows

Relevant Legal Principles
The case with regards to Lucky Bstard, Whizzkid and Hari Potta and Luckys liability in respect of Minnie, Prodnose, Sam, Beryl and Julius all refer to the law of tort. The law of tort concerns civil matters of negligence considered wrong and civil action is undertaken by one citizen against another (Rogers, 2002). The word tort is derived from the Medieval Latin word tortum meaning injury.  Here, there are elements of negligence that may be applicable duty of care, breach of that duty, breach that caused harm(s) in fact, and the proximity of the consequences of the breach.

In the case of Heaven v Pender, the tort of negligence and reasonable acts of care in order not to injure or harm the neighbour are laid out Who, then, in law is my neighbour The answer seems to be - persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question, (Lord Atkin, 1932).

With regards to a contract or binding agreement between Lucky Bstard and Whizzkid and Harry Pota, there is binding principle between them as Bstard being a client or customer. The duty of care is thus applicable.  Lord Esher provided an understanding of the duty of care as, ...under certain circumstances, one man may owe a duty to another, even though there is no contract between them. If one man is near to another, or is near to the property of another that, if due care was not taken, damage might be done by the one to the other, (Block and Hostettler, 2002, p 68).

Negligence is a term used in legal systems applicable to tort cases that require monetary compensation for physical or mental injuries (Rogers, 2006). The injured persons Minnie, Prodnose, Sam, Beryl and Julius may recover damages to compensate for the harm done on them as caused by the event which Lucky promoted. The case, if proven legitimate, entitles the plaintiff for compensation on any harm to their body and mental well-being, financial status or even intimate relationships. Resulting damages, however, are necessarily proven in order to recover compensation (Rogers, 2006). In common law, the elements that need to be proven for negligence include duty, breach, causation and damages. Actual cause and proximate cause may also be required.

In the breach of duty, all applicable to Bstard with Whizzkid and Pota, as well as Bstard to Minnie, Prodnose, Sam, Beryl and Julius, it must be established that the defendants (for case of Bstard as plaintiff) must be aware of exposing Bstard to risk of losing his investment or money. As for Minnie, Prodnose, Sam, Beryl and Julius against Bstard, it should be proven that breach of duty on the ascent of Dan - Dans death being the central focus of the causation - has been committed by Bstard.

In the case of Bolton and Others v Stone (1951), Lord Thankerton declared, Bourhill v. Young 1943 A.C. 92 at p. 98, the duty is to exercise  such reasonable care as will avoid the risk of injury  to such persons as he can reasonably foresee might be injured by failure  to exercise such reasonable care , and Lord Macmillan used words to the like effect at p. 104. So, also, Lord Wright in Glasgow Corporation v. Muir 1943 A.C. 448 at p. 460, quoted the well-known words of Lord Atkin in Donoghue v. Stevenson 1932 A.C. 562 at p. 580 You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour, (P 14).

In the case HELEN PALSGRAF, Respondent, v. The LONG ISLAND RAILROAD COMPANY, Appellant, the act of negligence was dismissed as the court noted that, Negligence is not actionable unless it involves the invasion of a legally protected interest, the violation of a right, and the conduct of the defendants guards, if a wrong in relation to the holder of the package, was not a wrong in its relation to the plaintiff standing many feet away, (The Historical Society of the Courts of New York, 2010, P 1). The defendants did not act nor omitted duty to cause harm on the appellant.

Appropriateness of legal authorities
Legal action and judges imposition is needed in the case of Lucky Bstard against Whizzkid and Harry Pota. Bstard is a victim of negligence by the financial advisors. Such can be drawn from the case Johnson v. John Hancock Funds, No. M2005-00356-COA-R3-CV (Tenn. Ct. App., M.S., June 30, 2006) which the court of appeals stated, Securities are goods for the purposes of the Tennessee Consumer Protection Act, and investment counselling and advice is likewise a service. Accordingly, offering securities for sale and providing investment counselling are consumer transactions. The Act explicitly proscribes unfair or deceptive acts or practices in connection with consumer transactions (Tenn. Code Ann. 47-18-104(a), (b)(27). Following the Tennessee Supreme Courts reasoning in Myint v. Allstate Ins. Co., we have determined that acts or practices in connection with the marketing or sale of securities are covered by the Tennessee Consumer Protection Act. Therefore, the trial court erred by granting Signator Investors motion to dismiss. (Day, 2010, P 4).

In the said case, complainant Linda Johnson claimed that she received poor advice from financial advisor which consequently led to Johnsons loss of money.

Rogers (2006) cited the case of Caparo Industries plc v Dickman in 1990 of which duty of care was applied. As service providers, both Whizzkid and  Pota should have carefully studied the financial markets prior to providing an advice to Lucky Bstard about possible investment. Thus, a reasonably foreseeable result of their conduct was established. The second of the 3-fold test is the relationship between Lucky Bstard with Whizzkid and Harry Pota. As financial advisors, there is a relationship established between Bstard and Whizzkid, and another relationship between Bstard and Pota.

Lucky Bstards liability in respect of Minnie, Prodnose, Sam, Beryl and Julius, lies on the death of Dan Dangerous and the consequences of this death. Several consequences that harmed Minnie, Prodnose, Sam, Beryl and Julius are answerable by the same law of tort. This is another case of unintentional tort and may fall under negligence. There was negligence on the part of Lucky Bstard for allowing Dan Dangerous to take on the task of ascending into the air attached only to helium-filled toy balloons. The first thing that Lucky should have done is undertake a contract or a signed agreement with Dan freeing Lucky of obligation on some matters with regards to accident incurred during the event. Lawful obligation should have been stated on the contract such as how much compensation from Lucky is Dan allowed, third-party insurance for any possible accident, and other circumstantial possibilities such as possible fame for Dan, of which Lucky will not be part of.

Another obligation of Lucky prior to holding the charity event is in distributing tickets with agreement written on it against ticket buyers or spectators of the free ascension of Dan. A public announcement should also have been provided through television, radio and other forms of billboards that warn audience about the possible consequences of watching such a dangerous undertaking freeing the event organiser Lucky of any obligation should the watchers proceed to witness the event. The third obligation for Lucky should have been to sign a contract with all personnel involved in the event including Sam, the fireman, that all personnel are physically and mentally fit to witness such event. The contract should also have specified the limited obligation of Lucky that includes compensation for the day work.

Application of the law to the facts
Three stages of test to determine the duty of care applicable on the case of Bstard with regards to Whizzkid and Harry Poa as indicated in the Caparo Industries v Dickman (1990) are as follows

If consequences of the defendants act were foreseeable as in the case of Kent v Griffins in 2000. It can be said that Whizzkid could have first checked the viability of an online company investment prior to giving advice to Bstard. The same can be said of Pota. Both advisors could have prevented the loss of Luckys invested money have they tried to consider the stability of financial securities.

If there is an established relationship or proximity between the parties whether it be legal or physical closeness such as the 1970 case of Home Office v Dorset Yacht Club. The proximity or relationship between Lucky and Whizzkid as well as Lucky and Pota are as client and service providers. Paid or not, the acceptance of the job as financial advisors make Pota and Whizzkid accept a relationship with Lucky.
The circumstances dictate justice and fairness attainable only through lawful imposition of duty such as the 1997 case of Capital v Hampshire County Council. Just and fair acts may be imposed on Pota and Whizzkid on Lucky Bstard as their client. The court of law is the only resort for this being a legal case of tort.

The case of Lucky Bstard against financial advisor Whizzkid and Harry Pota is that both financial advisors were likened to manufacturers selling good who should have the duty of care to ensure that the goods being sold - that is securities investment - should have been carefully checked and double-checked so as not to harm the buyer which in this instance is Lucky.

When it comes to the case of Lucky against Minnie, Prodnose, Sam, Beryl and Julius, duty of care and relationship or proximity must be established. Where there is a possibility of a contract between Lucky and Dan Dangerous indemnifying possible liabilities of Lucky with regards to the ascent as Dans wilful acceptance of the task or participation in the and not as a paid work or obligation, there is a high probability that Lucky will be spared of any damages. As in the case of Bolton v Stone 1951 AC 850, 1951 1 All ER 1078, defendant was seen to have not any reasonably foreseeable consequence of his conduct by hitting a cricket ball. By promoting the ascent, Lucky may have been contracted by the event organisers to promote the ascent and that Lucky may not directly be involved in the process.

Careful consideration of the processes prior to the accident should be examined. The questions that need t be answered include
Was there any contract between Lucky and the organisers of the event or ascent of Dan Dangerous What are the specifications
Was there a contract between Dan and the organizers
In consideration of any contract as mentioned above, was it established that Lucky Bstard and Dan Dangerous are directly linked

Clarity and cogency of argument
The argument of Lucky Bstard against his financial advisors Whizzkid and Harry Pota will encompass the declaration of Lord Esher that, under certain circumstances, one man may owe a duty to another, even though there is no contract between them. If one man is near to another, or is near to the property of another that, if due care was not taken, damage might be done by the one to the other.

Financial loss are the damages done to Lucky by the negligence of Whizzkid and Harry Pota in providing financial advice to Lucky. As advisors, both are burdened with the duty of care, being in proximity or relations as client to service provider. The advisors, too are burdened with the duty to check reasonably foreseeable consequences or harm.

As for Luckys probable defence against Minnie, Prodnose, Sam, Beryl and Julius, he must establish his being a promoter as a professional with contracts to all his partners or associates including Dan Dangerous. In the case where accident insurance was not acquired for Dan for the said event, there is lack of contract or that the contract failed to specify the limitation of Luckys obligation, he will be liable for possible damages for Dan or Dans family. Here, a particular act or omission such as the failure of Lucky to check whether the site of the extravaganza was on any flight path is applicable. Hence he was imposed to pay the estate of Dan.

Insufficient warning or agreement, too, may lead to additional compensation against Lucky in the defence against Minnie, Prodnose, and Sam. While Lucky may argue for the applicability of reasonably foreseeable consequences or harm, it is likely that lack of warning and written agreement will have the case turned against Lucky. The presence of Minnie as audience, Sam as fireman, and Beryl as Dans mother are considered relationships and applicable in the case of negligence and breach of the duty of care. Prodnose, however, as a distant viewer, may not necessarily be directly linked, thereby losing proximity with the defendant Lucky. It was not clear, too, what the role of Dans father Julius identifying the corpse of Dan would be since Lucky accepted to compensate the estate of Dan. It was not clear how Julius had been harmed in the process of identifying the dead body of his son, except as Dans close relative and heir to Dans estate.

Conclusion
Lucky Bstard has acted properly by compensating the estate of Dan Dangerous. He may file a case of tort against Whizzkid and Harry Pota for breach of duty of care as financial advisors that caused him loss of a lump sum of monies. As for Minnie, Prodnose, Sam, and Beryl, a case may be filed against Bstard by the said individuals in consideration of breach of duty of care on the part of Lucky. Lucky may use in the argument the elements of reasonably unforeseeable harm done as well as lack of proximity or relationship between Lucky and the said individuals or probable appellants. As members of the audience who may have bought a ticket with written warnings or agreements, it is highly probable that sufficient information were provided to the audience and workers with regards to the event as heat-stopping, it being extravagant and adventurous in nature. In addition, being a former fianc does not impose any relationship between Minnie and Dan as the question of proximity is in the present.

Sufficient contracts and publicised warnings may add up on the defence of Lucky if these are present. Court examination and decision, however, my not ensure that Lucky Bstard is fortunate enough as elements and details need to be properly considered and legal basis interpreted.