JUNE 27 Flashcards
A woman purchased a tract of land from a man by warranty deed. Unbeknownst to the woman, the man was not the actual owner of the tract. The woman built a home on the tract and moved into it. Two years later, the actual owner learned of the man’s transaction with the woman and prevented the woman from entering the tract from that point forward. This led to a costly court battle. When the woman notified the man and told him that she thought it was his duty to straighten this out, he ignored her. The statute of limitations for actions on deed covenants is fours years.
The woman would succeed in a suit for damages against the man for breach of which of the following covenants of title?
A. The covenant of quiet enjoyment only.
B. The covenants of seisin, right to convey, quiet enjoyment, warranty, further assurances, and the covenant against encumbrances.
C. The covenants of seisin, right to convey, quiet enjoyment, warranty, and further assurances.
D. The covenants of seisin and right to convey only.
CORRECT ANSWER: C.
The woman would succeed in a suit for damages against the man for breach of the covenants of seisin, right to convey, quiet enjoyment, warranty, and further assurances, but not on the covenant against encumbrances. A general warranty deed gives the grantee six covenants of title: the right to seisin, the right to convey, a covenant against encumbrances, the covenant of quiet enjoyment, the covenant of further assurances, and a general warranty. Under the covenants of quiet enjoyment, warranty, and further assurances, the man promised that (i) the woman would not be disturbed in her possession of the tract; (ii) he would defend the woman’s title against lawful claims; and (iii) he would perform whatever acts are necessary to perfect the woman’s title. Because the man neither owned the tract of land nor was acting as the actual owner’s agent, he breached the covenants of seisin and right to convey at the time of the conveyance to the woman. When the actual owner prevented the woman from re-entering the property, this interfered with the woman’s quiet enjoyment, and the man’s refusal to “straighten this out” was a breach of the covenant of further assurances. Thus, (C) is the correct answer. Hence, (A) is incorrect because quiet enjoyment was not the only covenant breached. There is nothing in the facts to suggest the property is encumbered; thus, the man did not breach the covenant against encumbrances, and (B) is therefore incorrect. (D) is incorrect because seisin and right to convey were not the only covenants that the man breached.
n antique lover spotted a beautiful Early American bedroom ensemble at her favorite antique store. The ensemble included a bed, a mirror, and two dressers. Over a period of several weeks, the shop owner and the antique lover negotiated over a price, but they were unable to come to an agreement.
On April 3, the shop owner and the antique lover signed a statement whereby the shop owner offered to sell to the antique lover an Early American bedroom ensemble, recorded as items 20465, 20466, 20467, and 20468 in the shop’s registry, if the parties agree upon a price on or before April 12.
On April 6, the shop owner sent a letter to the antique lover, telling her that she could have the bedroom ensemble for $22,000. Also on April 6, the antique lover sent a letter to the shop owner telling him that she was willing to pay him $22,000 for the bedroom ensemble. Both parties received their letters on April 7.
Without assuming any additional facts, which of the following statements is most correct as of April 8?
A. The shop owner and the antique lover had a valid contract from the moment the letters of April 6 were mailed.
B. A contract exists between the shop owner and the antique lover, because the shop owner, a merchant, sent the antique lover an offer in writing.
C. A contract exists between the shop owner and the antique lover, because the crossing offers were identical and received before April 12.
D. No contract exists between the shop owner and the antique lover, because of a lack of mutual assent.
CORRECT ANSWER: D.
Although the crossing offers as to price were identical, there is no requisite mutual assent absent an acceptance. If offers stating precisely the same terms cross in the mail, they do not give rise to a contract despite the apparent meeting of the minds. An offer cannot be accepted if there is no knowledge of it. Here, the shop owner and the antique lover each sent offers setting the price of the ensemble at $22,000. Despite the fact that these offers were identical, there is no mutual assent without at least one of the parties manifesting acceptance of the terms of the offer, and communicating that acceptance to the other. We are told that this has not yet happened even though the shop owner and the antique lover both have received the letters. Consequently, although there is an apparent meeting of the minds as to price, there has not been a sufficient objective manifestation of this agreement as to denote a mutual assent. (C) fails to account for the principle discussed above, that identical crossing offers do not give rise to a contract. Despite their receipt of identical offers before April 12, there is no agreement between the parties. (A) is incorrect because it misstates the mailbox rule. Acceptance by mail or similar means creates a contract at the moment of posting, properly addressed and stamped, unless the offer stipulates that acceptance is not effective until received, or unless an option contract is involved. This rule does not operate to create a contract from the moment an offer is mailed (or in this case, two identical offers are mailed). Thus, (A) is incorrect. Regarding (B), the fact that a merchant sends an offer in writing is significant because it will limit the offeror’s power to revoke if it gives assurances that it will be held open for a stated time. Here, the written offer by the shop owner is irrevocable at least until April 12, but the issue in the question is whether it has been accepted rather than whether it has been revoked.
A vendor entered into a written contract with a purchaser for the sale of a large tract of land. The contract set forth an accurate metes and bounds description of the land based on a professional survey. At closing, the purchaser discovered that the deed was incorrectly transcribed and did not agree with the description of the land in the contract. The deed described the property to be conveyed as follows:
“(i) from the southwest corner of [a specified starting point], proceed South 45 degrees East 200 feet to [a specified point]; (ii) from that point, proceed South 45 degrees West 100 feet to [a specified point]; (iii) from that point, proceed North 45 degrees West 200 feet to [a specified point]; and (iv) from that point, proceed South 45 degrees East 100 feet to the starting point.”
The purchaser refused to proceed with the closing and brought an action to reform the deed to make it conform to the intention of the parties.
Which of the following corrections should be made for the deed to properly describe the land?
Press Enter or Space to submit the answer
A. Direction (i) should be changed to “South 45 degrees East 100 feet.”
B. Direction (iii) should be changed to “North 45 degrees West 100 feet.”
C. Direction (iii) should be changed to “North 45 degrees East 200 feet.”
D. Direction (iv) should be changed to “North 45 degrees East 100 feet.”
CORRECT ANSWER: D.
Direction (iv) needs to be corrected in its course but not its distance. In land contracts and deeds, property may be described in various ways as long as the description is unambiguous. From a designated starting point that can be identified by reference to a government survey or a natural or artificial monument, the boundaries of the property can be described by successive calls of courses (e.g., angles) and distances until returning to the starting point. A course is a statement of direction generally stated as some number of degrees east or west of due north or south. In each call a distance must be stated together with the course. Thus, the boundary in direction (iv) runs at an angle 45 degrees east of due south (i.e., southeast) for a distance of 100 feet. However, because direction (i) went southeast, direction (ii) went southwest, and direction (iii) went northwest, the fourth direction has to be northeast for a distance of 100 feet to bring the final boundary back to the starting point. (In this type of question, diagram the boundaries as shown below to help you visualize the property.) Therefore, the correction in choice (D) is correct. (A), (B), and (C) are incorrect because none of those proposed changes in distance or direction would be sufficient to bring the final call back to the starting point.
A young teenager pointed a squirt gun at an older teenager as if she was going to squirt him, although the younger teenager knew that the gun was empty. The older teenager did not know that the gun was empty and yelled, “A little water isn’t going to hurt me.” The younger teenager pulled the trigger and yelled back, “You’re lucky, it wasn’t even loaded.”
Is the younger teenager liable to the older teenager?
A. Yes, because the younger teenager attempted a battery.
B. Yes, because the younger teenager committed an assault.
C. No, because the squirt gun was not loaded.
D. No, because the older teen was not worried about getting wet.
CORRECT ANSWER: B.
The younger teenager is liable for assault. An assault is an affirmative act by the defendant done with the intent to place the plaintiff in apprehension of an imminent harmful or offensive contact to his person and that actually causes the plaintiff apprehension. Children are deemed to be capable of forming the intent for assault and other intentional torts. The plaintiff need not be placed in fear of the contact; an apprehension of contact that is offensive (that is, not consented to) is sufficient. Furthermore, the apparent ability to inflict the contact is all that is needed; the fact that it could not be carried out is irrelevant. Here, the older teenager was placed in apprehension of imminent offensive contact, namely the squirts of water. The younger teenager’s actions show that she intended to cause the older teenager to believe that he was going to get squirted, thus satisfying the intent requirement. (A) is incorrect. Under the transferred intent doctrine, a defendant who intends to commit a battery and does not succeed may be liable to the plaintiff for assault if the plaintiff was aware of the attempt. Here, however, the younger teenager knew the squirt gun was empty and was intending to commit an assault rather than a battery. (C) is incorrect. The fact that the squirt gun was unloaded does not affect the younger teenager’s liability, because the older teenager was not aware of that fact. As stated above, the apparent ability to inflict the contact is all that is needed; the fact that it could not be carried out is irrelevant. (D) is incorrect. While the older teenager claimed (probably truthfully) that he was not afraid of getting wet, apprehension of offensive contact is all that the tort requires. This element is satisfied here.
The owner of a corner lot allowed a hedge on his property to become overgrown, obstructing the view of motorists at that corner. Two motorists were driving inattentively and each ran a stop sign at the intersection bordering the lot. Their cars collided in the intersection and one of the motorists was injured. She sued the owner of the lot. The jury determined that the lot owner was 10% at fault and each of the motorists was 45% at fault.
Will the injured motorist recover damages from the lot owner?
A. Yes, because she was not more than 50% at fault.
B. Yes, because it was foreseeable that motorists could be injured if the hedge was not cut back.
C. No, because the other motorist’s negligence was a superseding cause of her injuries.
D. No, because the lot owner’s fault was slight compared with the motorist’s fault.
CORRECT ANSWER: B.
The injured motorist may recover damages from the lot owner because the jury found that the lot owner should have foreseen that motorists could be injured if the hedge was not cut back. The lot owner owes the duty of an owner and occupier of land to those off the premises for unreasonably dangerous artificial conditions. In contrast to overgrown weeds, which are a natural condition for which no duty is owed absent a statute, a hedge is considered an artificial condition, analogous to a fence. Hence, by letting the hedge become so large that it created a foreseeable danger to motorists by obstructing their vision, the lot owner has breached his duty to the motorist. The other elements of the motorist’s negligence action (besides a duty and a breach of the duty) are actual and proximate cause, and damages. The motorist can establish actual cause by showing that, although she failed to notice the stop sign, she would have noticed another car traveling on a collision course with hers; i.e., but for the overgrown hedge, the motorist would have been able to avoid the accident. Proximate cause in an indirect case such as this can be established by showing that any intervening forces were foreseeable and not superseding. The other motorist’s negligent failure to stop may also have been caused in part by the overgrown hedge and is a foreseeable intervening force that does not break the chain of causation. Hence, (C) is incorrect. Under pure comparative negligence, the injured motorist can recover 10% of her damages even though her fault was greater than that of the lot owner. (A) is incorrect because a pure comparative negligence jurisdiction allows a plaintiff to recover no matter how great her negligence is. Thus, even though the motorists are both 45% at fault and the lot owner is only 10% at fault, the motorist can recover 10% of her damages from the lot owner. (D) is incorrect because, as discussed above, the lot owner is still liable for some damages in a pure comparative negligence jurisdiction even if his fault was only slight.
A police officer stopped a boyfriend and girlfriend on a college campus under suspicion that they were selling illegal drugs out of their backpacks. The officer asked the two some questions and then asked if he could look in their backpacks. They consented to the search, but the officer found nothing suspicious in either backpack. The officer then patted them both down and found a package of drugs taped to the boyfriend’s chest. The boyfriend and the girlfriend were charged with possession. The boyfriend pleaded guilty to possession. Prior to trial, the girlfriend’s attorney moved to suppress the introduction of the drugs at her trial. At the suppression hearing, the attorney stipulated that the girlfriend owned the drugs.
How should the court rule on the motion?
A. In favor, because the girlfriend was not in possession of the drugs.
B. In favor, because both the boyfriend and the girlfriend had a reasonable expectation of privacy when the officer elected to search them.
C. Against, because the girlfriend has stipulated that she owns the cocaine.
D. Against, because the search of the boyfriend’s body did not violate the girlfriend’s reasonable expectation of privacy.
CORRECT ANSWER: D.
Because the girlfriend’s Fourth Amendment rights were not violated by the unlawful search of the boyfriend, the drugs may be introduced against the girlfriend at trial. Under Rakas v. Illinois (1978), Fourth Amendment rights may be enforced by the exclusion of evidence only at the instance of one whose own protection was infringed by the search and seizure. Ownership of the property seized does not automatically establish violation of one’s reasonable expectation of privacy; it is just one factor in the totality of the circumstances that the court will consider. [Rawlings v. Kentucky (1980)] Here, the drugs were seized from the boyfriend as a result of a search that may have violated his Fourth Amendment rights. However, nothing in the question indicates that the girlfriend had a reasonable expectation of privacy in the boyfriend’s body (such as the right to exclude others from searching the boyfriend if the boyfriend had consented). Under the circumstances in this case, the girlfriend’s ownership of the drugs does not establish a reasonable expectation of privacy with regard to the search of the boyfriend. (A) is incorrect because the fact that the girlfriend did not have actual possession of the drugs does not require that the drugs be excluded from her trial. She may be liable under the jurisdiction’s possession statute if she had sufficient dominion or control over the drugs to be in constructive possession of it. (B) is incorrect even though it is a true statement. The officer’s search of the girlfriend may have violated the girlfriend’s reasonable expectation of privacy, but no evidence was obtained by an illegal search of the girlfriend. The officer’s search of the boyfriend may have violated the boyfriend’s reasonable expectation of privacy but not the girlfriend’s expectation of privacy (as discussed above). Because the girlfriend’s Fourth Amendment rights were not violated by the search of the boyfriend, she cannot use the exclusionary rule to suppress introduction of the drugs. (C) is incorrect because the defendant has the right to testify and stipulate to facts at a suppression hearing without her testimony or stipulation being admitted against her at trial on the issue of guilt. [Simmons v. United States (1968)] This rule allows a defendant to assert a possessory or ownership interest in illegally seized evidence just for purposes of invoking the exclusionary rule; if she fails to have the evidence excluded, she may still deny possession or ownership at trial.
A plaintiff sued a defendant for defamation, asserting in her complaint that the defendant had called the plaintiff a thief in front of a number of business associates. The plaintiff calls two witnesses to the stand, both of whom testify that they heard the defendant refer to the plaintiff as a thief in front of the business associates. The plaintiff does not take the stand herself. The defendant pleads truth of the statement as an affirmative defense and calls a witness to the stand. The defense witness is prepared to testify that he was a co-worker of the plaintiff when the plaintiff supplemented her income by tending bar three nights a week. The witness will testify that he saw the plaintiff take a $20 bill from the tavern’s cash register and secrete the money in her pocket. The plaintiff’s attorney objects.
May the defense witness’s testimony be allowed?
A. Yes, as substantive evidence that the plaintiff is, in fact, a thief.
B. Yes, because theft is a crime indicating dishonesty.
C. No, because specific bad acts may not be used to show bad character.
D. No, because the plaintiff never took the stand.
CORRECT ANSWRE: A.
The defense witness’s testimony is admissible character evidence because the plaintiff’s character is directly in issue in the case. As a general rule, evidence of character to prove the conduct of a person in the litigated event is not admissible in a civil case. However, when proof of a person’s character, as a matter of substantive law, is an essential element of a claim or defense in a civil action, character evidence is admissible because it is the best method of proving the issue. Under the Federal Rules, any of the types of evidence-reputation, opinion, or specific acts-may be used. Here, character is an issue in the plaintiff’s defamation action because the defendant has pleaded as an affirmative defense that his statement claiming that the plaintiff is a thief is the truth. The defense witness’s testimony that he saw the plaintiff take the money from the cash register is relevant because it tends to show that the defendant spoke the truth. Hence, it should be allowed. (B) is incorrect because the fact that the theft here could be considered a crime of dishonesty would be relevant only if the plaintiff’s credibility were being impeached, and only then if proof of an actual conviction were provided. Here, the testimony is admissible because it is being offered as substantive evidence of an aspect of the plaintiff’s character that is an essential element of a defense in the case. (C) is incorrect. One of the few cases where testimony as to specific acts of a person may be used to show that person’s character is when character itself is one of the essential issues in the case, as it is here. (D) is incorrect because the fact that the plaintiff never took the stand only means that she has not placed her credibility in issue and become subject to impeachment. Here, however, the plaintiff’s character is in issue and the testimony is being offered as substantive evidence of her character rather than to impeach her credibility.
The defendant and an accomplice were on trial together for burglary. Both had given confessions implicating themselves and their accomplice. At trial, the defendant maintained that his confession had been obtained through improper coercion by the police. For the purpose of countering the claim of coercion, the prosecution seeks to place the accomplice’s confession into evidence. After objection by the defendant’s counsel, the judge agrees to issue a limiting instruction to the jury that the confession is to be considered only with regard to the question of whether the defendant’s confession was coerced.
May the accomplice’s confession be admitted under that condition?
A. No, because admission of the confession violates the defendant’s right of confrontation.
B. No, unless the accomplice takes the stand and subjects himself to cross-examination regarding the confession.
C. Yes, as long as all portions of the confession referring to the defendant can be eliminated.
D. Yes, because the judge’s instruction limits consideration of the confession only to the issue of coercion.
CORRECT ANSWER: D.
The confession is admissible with the judge’s limiting instruction. Where two persons are tried together and one has given a confession implicating the other, the general rule is that the Sixth Amendment right to confront adverse witnesses prohibits the use of such a statement. This problem arises because of the inability of the nonconfessing defendant to compel the confessing co-defendant to take the stand for cross-examination at their joint trial. As exceptions to the general rule, the statement may be admitted if: (i) all portions of the statement referring to the other defendant can be eliminated (so that there is no indication of that defendant’s involvement); (ii) the confessing defendant takes the stand and subjects himself to cross-examination with respect to the truth or falsity of what the statement asserts; or (iii) the confession of the nontestifying co-defendant is being used to rebut the defendant’s claim that his confession was obtained coercively, in which case the jury must be instructed as to the purpose of the admission. The accomplice’s confession, which the prosecution seeks to introduce into evidence, implicates the defendant in the commission of the crimes charged. Consequently, introduction of this confession raises a problem based on the right of confrontation. However, given that the judge will issue the limiting instruction, the confession is admissible. (D) is therefore correct and (A) is incorrect. (B) and (C) are incorrect because neither of those conditions is necessary for the confession to be admitted as long as the judge issues a limiting instruction, as discussed above.
A plaintiff filed a negligence action against a defendant in federal district court, seeking compensatory damages arising from an automobile accident. The defendant is covered by an insurance policy pursuant to which his insurer will pay any judgment that the plaintiff obtains against the defendant.
Is the plaintiff entitled to obtain information about the defendant’s insurance coverage prior to trial?
A. Yes, as long as the plaintiff serves a proper request on the defendant to produce the insurance policy for inspection or copying.
B. Yes, even if the plaintiff does not request it.
C. No, because the terms of one’s insurance coverage are confidential and outside the scope of discovery.
D. No, because the insurance policy and its terms are not relevant to the claim or defense of any party since the policy does not help prove or disprove the defendant’s negligence or the plaintiff’s damages.
CORRECT ANSWER: B.
The plaintiff is entitled to obtain information about the defendant’s insurance coverage prior to trial. Without waiting for a discovery request, a party must provide to the other parties copies or allow inspection of insurance agreements under which an insurer might be liable for all or part of any judgment that might be entered. (A) is incorrect because the defendant must disclose the insurance policy without waiting for a discovery request from the plaintiff. (C) is incorrect because insurance agreements must be initially disclosed; they are not considered outside the scope of discovery. (D) is incorrect because whether the policy is relevant to the claims and defenses of the parties is not the applicable rule to consider here. Insurance policies must be disclosed if the insurer may be liable for the judgment.
A state’s civil procedure rules allow for “nail and mail” service (posting the summons at the defendant’s dwelling and thereafter mailing him a copy by certified mail) when “regular” service (service by physical delivery or by leaving a copy of the complaint with someone of suitable age and discretion at the defendant’s usual place of abode) cannot be accomplished with due diligence. A plaintiff brought suit against a defendant in the federal district court for that state. After the plaintiff’s special process server made many attempts at serving the defendant, the plaintiff’s attorney directed the process server to nail the complaint and summons to the defendant’s front door, and the attorney mailed (by certified mail) a copy to the defendant in accordance with the state rule.
Has the defendant been properly served?
A. Yes, if “nail and mail” service is reasonably calculated to give the defendant notice of the action.
B. Yes, because under the Erie doctrine the federal court must apply the state’s service of process rules.
C. No, if the defendant only rented the dwelling at which service was posted.
D. No, because “nail and mail” service is not authorized by the Federal Rules of Civil Procedure.
CORRECT ANSWER: A.
Federal Rule 4 provides that summons and complaint may be served on an individual other than an infant or incompetent pursuant to the law of the state in which the district court is located. Notwithstanding, the state provision must be constitutional; i.e., it must be reasonably calculated to give the defendant notice of the action. Thus, (A) is correct and (D) is incorrect. (B) is incorrect because the Erie doctrine provides that federal courts apply state substantive law but federal procedural law. The Federal Rules expressly authorize the use of state service of process methods. Thus, the Erie doctrine is inapplicable. (C) is incorrect. The key to substituted service is whether the dwelling was the defendant’s usual place of abode, not whether it was owned or rented.
A landlord leased office space to a business owner for five years, ending on November 1, reserving a yearly rent of $24,000, payable monthly. On October 1 of the fifth year, the business owner notified the landlord that he was preparing to move, but would greatly appreciate if the landlord could extend the lease for a month or two. On October 10, the landlord wrote to the business owner that she thought they could reach a satisfactory arrangement, but did not hear back from the business owner. The business owner did not vacate the office until November 20. On November 30, the landlord received a check from the business owner in the amount of $1,333 for “November’s rent” and a note that he had vacated the premises.
If the landlord brings an action against the business owner for additional rent, how will the court rule?
A. The business owner is bound to a year-to-year tenancy, because he did not vacate the premises until November 20.
B. The business owner is bound to a tenancy through December because one month’s advance notice was required to terminate.
C. The business owner is not bound, because the $1,333 check discharged him from his obligations.
D. The business owner is not bound if the court admits parol evidence of the October 10 letter from the landlord.
CORRECT ANSWER: A.
The court will rule that the business owner is bound to a year-to-year tenancy because he is a hold-over tenant. When a tenant fails to vacate the premises after the termination of his right to possession, the landlord may: (i) treat the hold-over tenant as a trespasser and evict him; or (ii) bind the tenant to a new periodic tenancy. The terms and conditions of the expired tenancy apply to the new tenancy. At least in commercial leases, the new tenancy will be year-to-year if the original lease term was for one year or more. Here, the businessman was a tenant for years because his lease was for a five-year fixed period of time. A tenancy for years ends automatically on its termination date. Therefore, as of November 1, the business owner became a hold-over tenant and the landlord had a right to bind him to a new periodic tenancy. Because the original lease was for more than one year, the business owner may be held to a year-to-year tenancy, at the stipulated rent of $24,000 per year. (B) is incorrect because even though the rent is payable monthly, the majority view is that reservation of an annual rent results in a year-to-year periodic tenancy. Hence, his notice of termination on November 30 would not take effect until the end of the new tenancy. (C) is incorrect because the business owner’s mere continuance in possession after November 1 gave the landlord the right to bind him to another year’s term. This right was not affected by the fact that the business owner paid 20 days’ worth of rent. Moreover, although a tenancy for years may terminate on surrender, surrender requires the landlord’s acceptance, which is not evident here. (D) is incorrect because even if the court admits the October 10 letter, it merely indicates the landlord’s willingness to consider an extension. Because the business owner did not respond and no agreement was reached by the parties, the letter is not enough to allow the business owner to avoid the additional tenancy.
An employee of the United States Department of Labor was instructed by his superior to solicit subscriptions to the Department’s bulletin on a door-to-door basis in the city in which he worked. While doing so, the employee was arrested for violation of a city ordinance that prohibited commercial solicitation of private residences.
What is the employee’s best defense?
Question ID: ML119
A
Intergovernmental immunity.
B
The First Amendment freedom of expression as it applies to the states through the Fourteenth Amendment.
C
The Equal Protection Clause as it applies to the states through the Fourteenth Amendment.
D
The city ordinance effectively restricts interstate commerce.
CORRECT ANSWER: A.
The employee’s best defense is intergovernmental immunity. State and local governments cannot tax or regulate the activities of the federal government. This principle is often termed “intergovernmental immunity.” The arrest and prosecution of a federal employee who was on the job violates this principle, which is based on the supremacy of the federal government and federal law. (B) is not a bad answer because door-to-door solicitation is protected by the First Amendment. However, at best, (B) would subject the city’s actions to strict scrutiny and allow the city to prevail if it could prove that its action was necessary to achieve a compelling government purpose. In contrast, (A) would automatically invalidate the city’s enforcement of the law against the employee, and so (A) is a better answer. (C) is irrelevant because the Fourteenth Amendment’s restriction on the states has to do with persons, not the federal government, and here there is no claim that the city was discriminating against the employee. The city’s ordinance, as briefly described, does not seem to provide the basis for an equal protection claim. (D) is wrong because nothing in the facts shows any burden on interstate commerce. Moreover, at most such a claim would trigger heightened scrutiny; it would not automatically invalidate the enforcement of the law as would (A).
A man who was a trick shot artist persuaded a college student to audition as his partner in his trick shot performances for a show. The man drove the student to an open field to practice his shooting, but in talking with him, she soon realized that he was no longer a part of that show and refused to participate any further.
If the student brings an action for false imprisonment against the man for the time she was in his car, which of the following would be the man’s best defense?
Question ID: TORT00000210
A
The student was not harmed by the ride in the man’s car.
B
The student went willingly to the practice area.
C
The student did not try to get out while the car was in motion.
D
The man would have stopped the car and let the student out if she had asked.
CORRECT ANSWER: B.
Answer B is correct. For a plaintiff to recover for false imprisonment, she must establish that the defendant acted intentionally to confine her without her consent and that she was in fact confined. It appears from the facts that she went willingly to the practice area. Although the student can argue that her consent was fraudulently induced, in order for fraud or mistake to render consent ineffective, it must go to the essence of the interest invaded. Here, the fraud related to the student’s consent to practicing trick shots with the man. The fact that the man was not part of that show was a matter collateral to the student’s consent to be confined in his car. Thus, the man’s best defense to an action for false imprisonment is that the student consented to being transported to the practice area. Answer A is incorrect. The fact that the plaintiff cannot show harm from the confinement does not matter, because harm is not an element of the tort. Answer C is incorrect. The plaintiff need not actually try to escape the confinement to succeed in a suit, if there is in fact false imprisonment. If the only exit exposes the plaintiff to danger of injury, as jumping from the car would, then it is not a reasonable exit and the confinement is complete. Answer D is incorrect. Because the student went willingly, there is no need to raise the question of whether the man would have stopped the car if she had asked.
A foreman at a plant was stopped at the gate of the plant and surrounded by strikers who had formed a picket line. A striker raised a bat and came running at the foreman. The foreman picked up a brick and threw it at the striker, who leapt out of the way. The brick struck a security guard who had come up behind the striker in an attempt to prevent him from swinging the bat.
Can the security guard recover in a battery action against the foreman?
Question ID: TORT00000460
A
Yes, because the security guard was attempting to help the foreman.
B
Yes, because the foreman did not have the right to use force against the security guard.
C
No, because the foreman did not intend to strike the security guard.
D
No, because the foreman did not have an opportunity to retreat.
CORRECT ANSWER: C.
Answer C is correct. When a person has reasonable grounds to believe that he is being attacked, he may use such force as is reasonably necessary to defend himself. If, in the course of doing so, he accidentally injures a bystander, he is protected by the defense. Here, the foreman had the right to defend himself against the striker running at him with a bat. He did not intentionally strike the security guard, so his right of self-defense remains applicable. Answer A is incorrect. Regardless of the fact that the security guard was trying to help the foreman, the guard cannot recover because the foreman was exercising his right of self-defense. Answer B is similarly incorrect. While the foreman did not have the right to use force against the security guard, he did have the right to do so against the striker. The fact that he accidentally struck the security guard does not negate the defense. Answer D is incorrect. The foreman’s defense is not dependent on having no opportunity to retreat. Most courts hold that one does not need to attempt to escape before using force in self-defense.
