Posted on 10/12/2001 10:02:31 PM PDT by World'sGoneInsane
Edited on 07/06/2004 6:36:44 PM PDT by Jim Robinson. [history]
PANAMA CITY, Fla. (AP) -- A judge ruled Friday that a former waitress can sue Hooters over allegations the restaurant promised her a new Toyota for winning a beer sales contest then gave her a toy Yoda Star Wars doll. Jodee Berry, 26, won the contest in May and believed she'd drive away in a new car. She was blindfolded, led to the restaurant parking lot and found herself in front of a toy Yoda.
(Excerpt) Read more at nj.com ...
Based only on what the article states (you are correct about papers not accurately reporting court hearings), I would have dismissed the case only because if the contract requires arbitration, the parties must first arbitrate their dispute. A possible caveat is the fact that this was a contest and may not be arbitrable unless the arbitration clause has the standard "arising out of or related to" language in it, which you must know based on your position is the broadest of all contract language.
If the contract does indeed state "mediation or arbitration" (language that would surprise me a great deal because mediation prior to a lawsuit would favor the employee). The real key as to whether she must first arbitrate the dispute is whether or not there is a written arbitration clause in a contract or whether it is just part of an employees manual given to her after she signed a contract. If there is no valid contract, she can skip arbitration/mediation if she wants. As for whether she has a cause of action against Hooters, it is clear that she does. There appears to have definitely been at least an implied contract, which means there is a question of fact involved. Where there are questions of fact and a valid claim, the case must go to a jury if one is requested. Quite frankly, if I were the judge on this case, she would win on a motion for summary judgment if one were requested. Even though I think she has a slam dunk case on summary judgment, her attorneys will want this to go for a trial in order to maximize the award. A curious question. Does Florida have a "tort of outrage" as a cause of action in its legal system?
And I'd like to say I yield to no one in my dislike of Hooters. But I also don't believe in a jury assessing legal damages against a company based upon their dislike of the company. Although of course it happens all the time.
Assuming there is a valid arbitration clause in the contract and it was not fraudulently entered in to, the judge clearly should have dismissed the action on that basis alone. As you must know, arbitration clauses are primarily contractual and are thus enforceable under the constitution of the United States, absent some sort of irregularity in its formation or procedure. If the particular clause was "unconscienable" it may be unenforceable.
If the clause is valid, a simple writ of mandamus will result in an automatic reversal of the trial court's decision to not first require arbitration.
I don't know that her humiliation is the basis of her claim (although it certainly goes to her damages theory).
This is pure fraud in the inducement. From the facts in the article, it appears Hooters made a material misrepresentation upon which Ms. Berry relied to her obvious detriment.
The key jury question will likely be whether her reliance was reasonable under the circumstances.
While I agree with you that the newsmedia usually screws up the facts, particularly in legal matters, if the facts are as they are reported in this instance, I wouldn't hesitate to file such a suit.
And lest you think I am sympathetic to frivolous lawsuits, I was very vocal about the stupid waitress that sued Hooters for sexual harassment b/c she supposedly thought "Hooters" only referred to as an owl mascot and supported the company in that particular case.
Some courts make no distinction between various forms of extraordinary writs, and this may be the case in Florida. In Washington, this error would be handled as a petition for a writ of mandamus, but possibly as a writ of cert. The precise form of the writ is not important as most appellate courts will treat the application for a writ as simply a request for extraordinary releif in whatever form is available under the circumstances. Regardless, if there is a valid arbitration clause, the judge erred in his decision. As for whether the plaintiff's bar tends to be favored by the courts; in this case, the defendant's attorney is likely not too upset either since their fees will be considerably higher with a trial than in an arbitration.
As for the arbitration clause itself, if it has the "arising out of or related to" language and given the courts enormous preference to construe questions of arbitrability in favor of arbitration, arbitration would be the appropriate course for this case; assuming there is a valid arbitration clause.
Believe it or not, I am not an attorney, but I know this stuff better than most attorneys. If you want to discuss RICO and Civil Rights actions, I am most well versed in those causes of actions as well since I am involved in a huge case that will make national headlines once I find an honest judge. In case you are wondering, The Washington State Supreme Court makes the Florida Supreme Court look like amatuers when it comes to ignoring the law when someone goes against the government or a judge within the legal system.
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