- Breach of Contract
Two warehouse/distribution companies shared a privately built railroad track that brought goods into the facility and sent goods back out. The defendant built the track before the plaintiff was ever even in business. They had a contract to share the track for over 50 years without mishap. Rather quickly, the plaintiff company wanted to more than double its use of the track for a new line of business it had developed. The defendant objects, saying the new volume of rail traffic would create an interference with their business. “Interference” was a contract term used to protect the defendant from their original track being monopolized by the plaintiffs at some point in the future.
Three focus groups wrestled with the concepts of sharing and interference. Some concluded that the defendants could anticipate that the higher traffic would interfere with their business, while others said the defendant could not claim ‘anticipated interference, but must show “actual” interference. Finally, two strong themes emerged for the defense:
~~“You don’t have to wait for your engine to burn up before you change the oil. You can anticipate damage before it happens.”
~~“If I agree to share my cellphone with a friend, but the friend starts to use it too much so that I have trouble using it like I want, since I was the original owner, I get to say how much the friend can use the phone.”
Voir dire questions regarding the concept of “anticipated” versus “actual” were developed along with other critical attitude variables that differentiated “plaintiff-leaning” jurors from “defendant-leaning” jurors. Ultimately, no money changed hands and use of the track was “capped” at an acceptable level.