Mixed Questions - Set 1 Flashcards
A pedestrian walking on the sidewalk was struck by a car backing out of a driveway. The driver did not see the pedestrian because her neighbor’s bushes obscured her view of the sidewalk. The pedestrian was seriously injured and brought suit against the driver and the neighbor. The pedestrian also included the city in his lawsuit, alleging that the city failed to enforce its ordinance requiring homeowners to provide a clear view of sidewalks where they intersect with driveways. The trier of fact determined that the driver was 60% at fault, the neighbor was 30% at fault, and the city was 10% at fault. The jurisdiction has adopted comparative contribution in cases applying joint and several liability.
Which of the following is a correct statement regarding liability?
A The city is liable to the pedestrian for the full amount of the damage award.
B Both the driver and the neighbor are liable to the pedestrian for 90% of the damage award.
C Each of the three defendants are liable to the pedestrian for one-third of the damage award.
D The driver is liable to the pedestrian for 60% of the damage award, the neighbor is liable for 30% of the damage award, and the city is liable for 10% of the damage award.
A
The city is liable to the pedestrian for the full amount of the damage award. Under joint and several liability, each defendant found by the trier of fact to be at fault for an indivisible injury is liable to the plaintiff for the entire amount of damages incurred, not just a portion of it. (Of course, multiple recovery is not allowed.) Thus, because the city has been found to be at fault for the accident, the pedestrian could recover the full amount of the damage award from the city. (B) is incorrect because both the driver and the neighbor are liable for the full amount of the damage award rather than 90%. Again, each defendant found to be at fault by the trier of fact for an indivisible injury is liable to the plaintiff for the entire amount of damages incurred. (C) and (D) are incorrect because they are not applying joint and several liability. Under a joint and several liability system, contribution allows a defendant who pays more than his share of damages to recover the excess from the other jointly liable parties; responsibility for the total damages is thus apportioned among those at fault. Traditional contribution rules require all defendants to pay equal shares regardless of their respective degrees of fault (choice (C)), while states with a comparative contribution system impose contribution in proportion to the relative fault of the various defendants (choice (D)). Nevertheless, this simply means that the city (assuming it paid the judgment award to the plaintiff) has contribution rights against the other defendants (i.e., it can recover from the others for damages paid in excess of the amount proportionate to its relative fault). This does not, however, mean that the defendants’ liability to the plaintiff is based on their relative fault. In fact, if one defendant were judgment-proof, the others would still be responsible for the full amount despite the fact that the judgment-proof defendant was mostly at fault.
On December 6, the owner of an electronics store sent a written request to a computer manufacturer asking for the price of a certain laptop computer. The manufacturer sent a written reply with a catalog listing the prices and descriptions of all of his available computers. The letter stated that the terms of sale were cash within 30 days of delivery. On December 14, by return letter, the store owner ordered the computer, enclosing a check for $4,000, the listed price. Immediately on receipt of the order and check, the manufacturer informed the store owner that there had been a pricing mistake in the catalog, which should have quoted the price as $4,300 for that computer. The store owner refused to pay the additional $300, arguing that his order of December 14 in which the $4,000 check was enclosed was a proper acceptance of the manufacturer’s offer.
In a suit for damages, will the manufacturer prevail?
A Yes, because his first communication stated terms calling for cash within 30 days of delivery.
B Yes, because of the mistake as to price.
C Yes, because his first communication did not constitute an offer.
D No, because the store owner’s December 14 letter was a proper acceptance of the manufacturer’s offer.
D
The store owner’s December 14 letter was an acceptance. Whether the letter was an acceptance depends on whether the manufacturer’s letter was an offer, because an acceptance is a manifestation of assent to an offer. For a communication to be an offer, it must create a reasonable expectation in the offeree that the offeror is willing to enter into a contract on the basis of the offered terms. There must be a promise, undertaking, or commitment to enter into a contract with certain and definite terms. Courts usually hold that if a statement is made broadly, such as in an advertisement or catalog, it will not constitute an offer because it is not reasonable to expect that the sender intended to make offers to all who received the advertisement; rather, the courts usually find such advertisements to be invitations seeking offers. However, price quotations may be considered as offers if given in response to a specific inquiry. The courts will look to the surrounding circumstances, and here a court would probably determine that the catalog that the manufacturer sent was an offer because it was sent in response to the store owner’s specific inquiries about prices on a specific computer and it included delivery terms and conditions of sale. (A) is incorrect because although the letter called for payment in cash, tender by check is sufficient unless the seller demands legal tender and gives the buyer time to obtain cash. Moreover, because the contract called for payment within 30 days of delivery, even if the check was not sufficient, the store owner still had time under the contract to obtain cash. (B) is incorrect because the mistake was unilateral. Generally, a unilateral mistake will not be grounds to rescind a contract unless the nonmistaken party knew or should have known of the mistake. Here, nothing in the facts indicates that the store owner knew of the mistake, and the mistake was not so large that it could be said that he should have known of it. (C) is incorrect because, as explained above, the manufacturer’s catalog was sent in response to the store owner’s request for information and his terms for sale constituted an offer.
The defendant robbed a bank and fled in a getaway car driven by an accomplice, not realizing that one of the bundles of money he took had the serial numbers recorded and had a tiny tracking device attached to the wrapper. The bank’s security consultant obtained portable tracking equipment and was able to trace the bundle of money to the defendant’s house. The police were notified and they arrived at the defendant’s house a few hours after the robbery. They knocked on the door, announced their presence, and saw someone matching the description of the robber in the hallway. They entered and arrested the defendant, and then conducted a protective sweep of the house for the accomplice, who they believed had a gun. They did not find him, but while checking a closet, they discovered several of the bundles of money from the bank and a gun the defendant had used in the robbery. The police also discovered two clear plastic bags of what appeared to be marijuana sitting on top of a dresser. They seized the money, the gun, and the two bags. Later testing confirmed that the substance in the bags was marijuana.
The defendant was charged with the bank robbery and with possession of the marijuana. At a preliminary hearing, he moves to suppress introduction of the money, gun, and marijuana.
How should the court rule?
A Grant the motion as to the marijuana but not as to the money or the gun because the money and gun were found as a result of the protective sweep for the defendant’s accomplice.
B Grant the motion as to the money and the gun but not as to the marijuana because the bags containing the marijuana were clearly visible on the dresser during the search.
C Grant the motion as to all of the evidence seized.
D Deny the motion as to all of the evidence seized.
C
The court should suppress all of the evidence because it was the fruit of an unconstitutional arrest. As a general rule, the police must have an arrest warrant to effect an arrest of an individual in his own home. There is no general “emergency” exception to the warrant requirement. While police officers in hot pursuit of a fleeing felon or trying to prevent the destruction of evidence may sometimes make a warrantless search and seizure, the burden is on the government to show that one of those exceptions applies. Here, the police did not arrive at the defendant’s house in hot pursuit of the defendant, and there was no indication that the defendant might be destroying the money or other evidence; i.e., there were no circumstances precluding them from keeping the house under surveillance while they obtained a warrant. Hence, the arrest was unconstitutional. Because an arrest constitutes a seizure under the Fourth Amendment, the exclusionary rule applies, and evidence that is the fruit of the unconstitutional arrest may not be used against the defendant at trial. Here, all of the evidence was seized without a warrant, and none of the other exceptions to the warrant requirement are applicable. While the protective sweep that turned up the money and gun probably would have been within the bounds of a search incident to an arrest because the police had reason to believe an armed accomplice was present, the arrest in violation of the Fourth Amendment makes the search unlawful. Similarly, while the bags of marijuana were discovered in plain view, the police have to be legitimately on the premises for that exception to apply. Thus, (C) is correct; (A), (B), and (D) are incorrect.
A federal statute designed to stop organized crime enumerated certain activities as crimes and provided that, in addition to charging these activities as the crimes they constitute, the activities would also constitute the criminal act of intentional furtherance of the goals of organized crime. Among the enumerated activities was the interstate distribution of cocaine. The statute’s constitutionality has been upheld by the Supreme Court.
The defendant was arrested by federal agents after having driven a truck containing cocaine from Florida to Illinois, where he delivered his illicit cargo as directed. At trial, the defendant is convicted of interstate distribution of cocaine in violation of federal law, and convicted of a violation of the federal statute above.
How may the defendant be sentenced?
A Under either statute, but not both.
B Under both statutes.
C Only under the statute that carries a lesser maximum sentence.
D Only under the statute that carries a greater maximum sentence.
B
The defendant may be sentenced under both statutes. Double jeopardy does not prohibit the imposition of cumulative sentences for two or more statutorily defined offenses specifically intended by the legislature to carry separate punishments, even though constituting the “same” crime under the Blockburger test (i.e., each offense does not require proof of some additional fact that the other does not) when the punishments are imposed at a single trial. Absent a clear intention, it is presumed that multiple punishments are not intended for offenses constituting the same crime under Blockburger. Here, it is clear that Congress, in enacting the statute, intended that certain offenses, such as interstate distribution of cocaine, be subject to separate punishments. (B) is the only alternative that expresses the view that the defendant may be sentenced under both statutes. Thus, it is the correct answer, and (A), (C), and (D) are incorrect.
After a sporting event at a stadium, one of the fans sought out the referees to complain about their handling of the game. The fan took out an electronically amplified bullhorn and knocked on the door of the referees’ room. When one of the referees opened it, the fan began yelling and berating the referee through the bullhorn. The referee slammed the door shut, striking the bullhorn and jamming it against the fan’s mouth, knocking out two of his teeth.
If the fan asserts a claim based on battery against the referee and the referee prevails, what is the likely reason?
A The referee did not foresee that the bullhorn would knock out the fan’s teeth.
B The referee did not know that the door was substantially certain to strike the bullhorn.
C The referee was entitled to use force to protect himself.
D The fan’s conduct provoked the referee’s response.
B
If the referee prevails, it will be because he did not know the door would strike the bullhorn, so he did not have the intent to commit a battery. Battery requires: (i) an act by defendant that causes a harmful or offensive contact to plaintiff’s person; (ii) intent to cause the harmful or offensive contact; and (iii) causation. Here, there was a harmful contact caused by the referee. The only consideration is whether the referee had the requisite intent. If a person knows with substantial certainty the consequences of his action, he has the intent necessary for this type of tort. If the referee did not know that the door was substantially certain to hit the bullhorn the fan was holding, the referee did not have the intent necessary for battery. (For purposes of battery, anything connected to or being held by the plaintiff is usually considered part of the plaintiff’s person.) (A) is wrong because if the referee intended to cause a harmful contact (a battery), he is liable for all of the consequences of his actions, whether he intended them or not. A defendant need not foresee the extent of the injuries caused by his intentional act to be held liable for them. (C) is wrong because this is not a case of self-defense. Self-defense is appropriate when a person reasonably believes that he is being or is about to be attacked. Nothing in the facts shows any basis for the referee to believe that the fan was going to harm him. Thus, self-defense is not appropriate here. (D) is wrong because it does not provide the referee with a defense. The fan’s conduct angered the referee and may have triggered his actions, but because the fan’s conduct was not sufficient to allow the referee to act in self-defense, the referee’s use of force here is not excused.
A corporation whose subsidiaries include a major hotel chain planned to build a new hotel and advertised for bids to build the hotel within the next six months. Four bids were received, for $17 million, $17.2 million, $17.4 million, and $15 million. The corporation’s chief financial officer reviewed the bids, then emphatically told the corporation’s chief executive officer (“CEO”) that there was “no way” the low bidder could make a profit on the $15 million bid. The CEO made no response.
In fact, the builder had stayed up for 72 hours without sleep preparing the bid for the hotel project and had neglected to include the plumbing expenses in the bid. Typically, the cost of plumbing, including the shop’s profit, would have been about $2 million.
Shortly after the $15 million contract was signed by the CEO and the builder, the builder discovered his mistake and telephoned the CEO to tell her that he had forgotten to include the cost of plumbing, adding that he would normally charge $2 million for plumbing. The CEO agreed to pay the additional $2 million, but this arrangement was never reduced to writing. After the builder completed the project on time, the CEO sent him a check for only $15 million.
Can the builder compel the CEO to tender the additional $2 million?
A Yes, because the CEO was on notice of the builder’s mistake.
B Yes, because the builder relied to his detriment on the CEO’s promise.
C No, because the builder had a preexisting legal duty to complete the project for $15 million.
D No, because evidence of the agreement to pay the additional $2 million is barred by the parol evidence rule.
A
The builder will be able to compel the CEO to pay the additional $2 million because the CEO was on notice of the mistake. The builder has the defense of unilateral mistake. Although the general rule is that a contract will not be avoided by a unilateral mistake, there is an exception where the nonmistaken party either knew or should have known of the mistake. Here the facts clearly indicate that the CEO knew that the builder’s bid could not be correct, yet relied on it anyway. Thus, the builder had grounds to avoid the contract. Rather than completely avoid the contract here, the parties agreed to reform it, but they failed to record the reformation in writing. Nevertheless, the court will allow the parties to show the reformed terms because of the mistake. (B) is incorrect because the fact that the builder relied to his detriment on the CEO’s promise would not allow him to collect the additional $2 million. Detrimental reliance is a factor in promissory estoppel, which is a doctrine used by the courts to avoid an unjust outcome when there is no contract. Here, there is a contract supported by consideration, so this doctrine does not apply. The builder is entitled to reformation of the bargained-for contract because the CEO was on notice of the builder’s mistake. In addition, even if this were a proper case for promissory estoppel, the builder would not necessarily be entitled to the $2 million. Courts that follow the Second Restatement approach typically award reliance, not expectation, damages. (C) is incorrect because the unilateral mistake here was sufficient to discharge the builder from his duties under the contract, so there was no preexisting duty. (If the mistake had not been sufficient to discharge the builder, (C) would be correct because where one is under a preexisting legal duty to perform, performance of that same duty generally will not be sufficient consideration to support a promise to pay additional sums for the performance.) (D) is incorrect because the parol evidence rule only prevents introduction of oral statements made prior to or contemporaneously with a written contract. Here, the $2 million term, although oral, was agreed upon after the original contract was made; thus, the parol evidence rule would not be a bar.
A backgammon player was upset after losing a match against the club champion. Rushing out of the club, he inadvertently grabbed the champion’s board, which looked very much like his own but which was much more expensive. The player left the backgammon board in the trunk of his car, as was his usual practice. During the night, the car was stolen and along with it, the champion’s expensive backgammon board.
In an action by the champion against the player to recover the value of the backgammon board, is the champion likely to recover?
A Yes, because when the player took the backgammon board he committed a trespass to the champion’s chattel.
B Yes, because when the backgammon board was stolen along with the car, the player became liable for conversion of the champion’s chattel.
C No, because the player believed in good faith that the board was his when he took it from the backgammon club.
D No, because the backgammon board was lost through no fault of the player’s.
B
The champion will recover from the player for conversion. Conversion consists of (i) an act by defendant interfering with plaintiff’s right of possession in the chattel, (ii) intent to perform the act bringing about the interference with plaintiff’s right of possession, (iii) causation, and (iv) damages—an interference that is serious enough in nature or consequence to warrant that the defendant pay the full value of the chattel. Intent to trespass is not required; intent to do the act of interference with the chattel is sufficient for liability. Therefore, the player was guilty of conversion when he intentionally (i.e., volitionally) took the champion’s board, which resulted in its loss, even though the player did not intend to lose it or even realize that he had taken the property of another. (A) is not the best answer because complete loss of a chattel, permitting the plaintiff to recover its full value, is too serious an interference to be classified a mere trespass. Trespass to chattels consists of: (i) an act by defendant interfering with plaintiff’s right of possession in the chattel, (ii) intent to perform the act bringing about the interference with the plaintiff’s right of possession, (iii) causation, and (iv) damages. Had the champion been able to recover the board, and had he been able to show actual damages during the time of dispossession, he might have been able to recover for trespass to chattels. (C) is wrong because the player’s good faith is irrelevant. Even if the conduct is wholly innocent, liability will attach when the interference with the chattel is serious in nature. (D) is wrong because the fact that the player’s car was stolen does not relieve him of liability. His initial trespassory interference with the champion’s backgammon set was a substantial factor in its complete loss, because it would not have otherwise been in the trunk of his car. Thus, the causation element for conversion is satisfied.
A builder contracted to build a house for a newly married couple. Terms of the contract provided that the builder would receive the contract price when the building was fully completed. Just when the builder had completed one-half of the structure, a tornado struck the area and demolished the building.
What is the builder entitled to recover from the couple under the contract?
A Nothing.
B One-half of the contract price.
C One-half of the fair market value of what remains of the house.
D Cost of materials and reasonable labor costs.
A
The builder will not be able to recover anything from the couple under the contract because he has not performed his duty. Under the parties’ contract, the builder’s completion of the house was a condition precedent to the couple’s duty to pay. The condition precedent was not discharged by the destruction of the work in progress because construction has not been made impossible, but rather merely more costly—the builder can rebuild. Thus, he is not entitled to any recovery. Note, however, that a number of courts will excuse timely performance because the destruction was not the builder’s fault. (B) is incorrect because the contract is not divisible (i.e., it is not divided into an equal number of parts for each side, each part being the quid pro quo of the other); thus, completion of one-half of the house did not entitle the builder to one-half of the price. (C) is incorrect because it is not a correct measure of recovery. As stated above, the builder cannot recover under the contract. However, he could recover restitution if he determined that he could not perform under the contract by rebuilding. Restitution is a remedy that prevents unjust enrichment by imposing on a recipient of requested goods or services a duty to pay for the benefit received when there is a failed contract or no contractual relationship between the parties. The measure of recovery here would be the fair market value of what remains of the house because that is the benefit conferred—it would not be cut in half merely because the house was only half completed. (D) is an incorrect contract recovery because the builder has not fulfilled the condition precedent to the couple’s duty to pay. The only way the builder could recover anything would be in an action for restitution. Sometimes, in cases where there is little or no benefit to the other party, the measure of restitutionary recovery is the detriment suffered by the plaintiff. However, when the plaintiff is in breach, the courts that permit recovery limit it to the contract price less damages caused by the breach. Because the builder only did half of the work, he is in breach by not rebuilding the house. Hence, the couple’s damages, which involve building an entirely new house, outweigh any possible restitution to the builder.
A police officer spent several hours using binoculars to observe an older man loitering on a college campus. The man, who was shabbily dressed and carrying a backpack, would approach certain students as they walked by him, and after a brief conversation with them, discreetly pass the students a small envelope in exchange for cash. The officer stopped the man under suspicion that he was dealing drugs. The man was not dealing drugs, but instead had been soliciting donations for a radical political group. The man grew irate when the officer opened one of the envelopes in question and discovered that they only contained literature about the group. The officer then frisked the man and discovered an illegal weapon taped to his leg. The officer immediately arrested the man.
Which of the following best describes the situation?
A The officer’s actions were unlawful because the officer initially failed to get an arrest warrant before approaching the man, even though he had ample time to do so because the surveillance had been going on for several hours.
B The man’s arrest was unlawful because the officer was mistaken about the man selling drugs and thus the weapon would be inadmissible as fruit of the poisonous tree.
C The officer’s actions were lawful in stopping the man because the officer had reasonable ground to believe that the man was dealing drugs, but the subsequent search was unlawful once the officer realized his mistake about the drug dealing.
D The stop, search, and subsequent arrest were lawful.
C
The stop was lawful but the patdown search was unconstitutional. A police officer has the authority to briefly detain a person for investigative purposes if he has a reasonable suspicion supported by articulable facts of criminal activity. Here, the officer watched the man engage in what reasonably appeared to be drug transactions, and he was justified in stopping and detaining the man to investigate. However, a police officer may pat down a detained person only if the officer has a reasonable suspicion to believe that the detainee is armed and dangerous. Here, the man grew irate when he was stopped, and he belonged to a “radical” group, but these facts are not enough to give the officer any reason to believe that the man was armed. Therefore, the patdown was unconstitutional, and the evidence found as a result must be suppressed. (A) is incorrect. Police generally need not obtain a warrant before arresting a person in a public place, even if they have time to get a warrant. A police officer may arrest a person without a warrant when he has probable cause to believe that a felony has been committed and that the person before him committed it. (B) is incorrect. If during an investigatory detention, the officer develops probable cause for arrest, the officer can proceed on that basis. Although the officer was incorrect in his initial suspicions of drug dealing, the illegal weapon he discovered during the patdown was sufficient to establish probable cause for the man’s arrest. (D) is incorrect because, as stated above, an officer may not pat down a detainee for weapons absent a reason to believe the detainee is armed and dangerous.
