Mixed Questions - Set 13 Flashcards
A man and a woman were in a two-car traffic accident. Immediately after the accident, the man was treated by a physician at a nearby hospital’s emergency room. The man later filed a negligence action against the woman in federal district court, seeking compensatory damages. The woman now seeks discovery regarding the emergency room physician’s observations, opinions, and treatment of the man.
Is the woman entitled to discovery regarding that information?
A No, because such discovery is not relevant to the claim or defense of a party.
B No, because the woman is not entitled to obtain discovery from persons who are not parties to the action.
C Yes as to the physician’s observation and treatment, but the physician’s opinions are discoverable only if the man intends to call the physician as an expert witness at trial.
D Yes, because the physician observed and treated the man and developed opinions about the man’s injuries for purposes other than litigation or trial.
D
The woman is entitled to discovery regarding the physician’s observations, opinions, and treatment of the man because the physician developed opinions about the man’s injuries for purposes other than litigation or trial. (A) is incorrect because the physician’s observations, opinions, and treatment of the man are relevant to the man’s claims and the driver’s defenses. (B) is incorrect because parties may obtain discovery from individuals with knowledge of any discoverable matter, not just parties to the action. (C) is incorrect because it is not applicable to the situation here, where the physician was not retained in anticipation of litigation or trial.
A credit card company filed a civil action against a consumer in federal district court seeking to recover the unpaid balance on the consumer’s account. The credit card company properly served process on the consumer, but the consumer failed to file or serve a timely answer to the complaint. The clerk of court on motion of the credit card company made an entry of default, but default judgment has not been entered.
On which grounds may the court set aside the entry of default?
A For the same limited grounds for which any court judgment may be set aside.
B Only if the court finds that the consumer could not have filed and served a timely answer despite using reasonable diligence.
C If the consumer demonstrates that there was good cause for his failure to file and serve a timely answer and that he has a viable defense.
D On any grounds that the court, in its discretion, finds just.
C
An entry of default may be set aside for “good cause shown.” Although not specifically required by the Federal Rules, a majority of courts also will require some showing of a meritorious defense. (A) is incorrect because the grounds are not limited to the grounds required for setting aside regular court judgments. (B) is incorrect because that answer is also too limiting on the concept of “good cause shown.” For example, a default might result from an honest mistake of the attorney, but the entry of default may nonetheless be set aside if the attorney acts promptly to correct the mistake. (D) is incorrect because a majority of courts will also require a showing of a meritorious defense.
A seller entered into a written contract with a vintner on April 4, whereby the seller agreed to convey a vineyard to the vintner for $2 million. The terms of the contract set the closing date as June 1. At the time the seller entered into the agreement with the vintner, the seller had no interest in the vineyard. On April 15, the seller entered into a written agreement with a landowner, whom the seller believed to be the owner of the vineyard. According to the terms of the agreement, the landowner was to convey the vineyard to the seller on or before May 25. Another term of the agreement stated “time is of the essence.”
On May 24, the landowner conveyed his interest in the vineyard to the seller. When the seller went to record the deed, she discovered from records in the recorder’s office that the landowner held clear title to only seven-eighths of the vineyard. It took some time for the seller to remove the cloud from the title and procure ownership in full of the vineyard. She finally did so on August 1, and on that day she tendered a warranty deed to the vineyard to the vintner. The vintner refused to tender $2 million or any other sum to the seller, asserting that the seller had broken her agreement by failing to close on June 1. The seller then sued the vintner for specific performance.
If the vintner prevails, what is the likely reason?
A Title was unmarketable, because the seller did not own the vineyard at the time she entered into the contract.
B Title was unmarketable, because the seller only owned seven-eighths of the vineyard on the closing date.
C Time was not of the essence in the seller-vintner contract.
D A two-month delay in closing is determined to be unreasonable.
D
If the vintner prevails, it will be because the court determines that the seller’s two-month delay in closing was unreasonable. Generally, courts assume that time is not “of the essence” in real estate contracts. This means that the closing date stated in the contract is not absolutely binding in equity, and that a party, even though late in tendering her own performance, can still enforce the contract if she tenders within a reasonable time after the date. Here, if the court finds that a two-month delay is unreasonable, the seller will not be able to specifically enforce the contract. (A) is incorrect because contracts for the sale of land do not require the seller to hold title at the time she enters into the contract. She is only required to have marketable title at the date of closing so that she can deliver it to the buyer. Hence, the seller did not breach her contract with the vintner by not having an interest in the vineyard at the time of the contract. (B) is incorrect because the seller has a reasonable time after the date set for closing to tender performance unless the contract or circumstances indicate that time is of the essence. Here, nothing in the contract or the surrounding circumstances indicates that time was of the essence in the seller-vintner contract. Moreover, although title was unmarketable on June 1, the seller was able to clear title to the remaining one-eighth of the vineyard and tender performance to the vintner two months after the closing date. A delay of one month after the closing date has been deemed acceptable by courts where the buyer has been delayed in obtaining financing or the seller has been delayed in obtaining marketable title. Nevertheless the court could find that two months is an unreasonable delay, as in (D); if that were the case, it would not grant the seller specific performance. (C) is incorrect because it supports a finding in favor of the seller, as explained above.
A landowner owned a beachfront lot and home in a subdivision occupying several hundred acres near a lake. The recorded subdivision plan grants to each owner in the subdivision an easement to use the private roads therein for personal ingress and egress.
Following seismic activity in the area, the level of the lake dropped substantially, exposing a considerable amount of land between the new shoreline and the old beachfront. It was judicially determined that this “new” land belonged to the county, which put portions of it up for sale. The landowner purchased the land extending from her old property line to the new shoreline, and constructed a boat launching ramp on the new property. She then permitted persons who did not own land in the subdivision to drive through her old property to reach the boat launching ramp on her new property, and thus to utilize the lake, for a small fee. The homeowners’ association brought suit against the landowner, seeking to enjoin her from using or permitting nonresidents of the subdivision from traveling its streets to reach the boat launching ramp.
How should the court rule?
A For the homeowners, because the scope of the easement granted to the landowner as an owner in the subdivision does not extend to the use that she is making of the new property.
B For the landowner, because she has an express easement over the streets of the subdivision.
C For the landowner, because she has an easement by necessity as to the new property over the streets of the subdivision.
D For the landowner, because she has an implied easement over the streets of the subdivision benefiting the new property since it abuts her old property.
A
The express easement for the landowner’s old property benefits that property only and cannot be used for the landowner’s expanded access to the new property. An easement is a liberty, privilege, or advantage that one may hold in the lands of another. The holder of an easement has the right to use a tract of land (called the servient tenement) for a special purpose; e.g., laying utility lines, or for ingress and egress. An easement can be created, as in this question, by express grant. If the parties to the original creation of the use specifically state the location of the easement, its dimensions, and the special use or limits to such use, the courts will honor this expression of specific intent. Absent specific limitations, it will be assumed that the parties intend that the easement meet both present and future reasonable needs of the dominant tenement. However, a basic change in the nature of the use is not allowed. The landowner’s easement by express grant merely allows her to use the private roads in the subdivision for her personal ingress and egress to and from her beachfront property. The use of the easement for access to a new boat launching ramp for which a fee is charged goes beyond the specific language of the grant (and arguably beyond the reasonable needs of the dominant tenement). Therefore, the homeowners will be able to prevent use of the subdivision streets to reach the boat launching ramp. (B) is incorrect because even if the landowner’s express easement over the streets of the subdivision is construed to benefit the property that was recently acquired as well as her old property, the scope of the easement will not be expanded beyond the language of the grant. (C) is incorrect because the elements of an easement by necessity are missing. Where the owner of a tract of land sells a part of the tract and by this division deprives one parcel of access to a public road or utility line, a right-of-way by absolute necessity is created by implied grant over the parcel with access to the public road. The landowner has not purchased her new property from the subdivision owners. Thus, she has no implied right-of-way by necessity over the subdivision streets to reach her new property. (D) is incorrect because the elements of an easement by implied grant are missing. Where an owner sells a portion of his property, and prior to the conveyance a use had been made, the existence of the prior use may give rise to an easement by implication, even though no reference is made to a continuation of that use. Here, when the landowner purchased her original property from the original owner of the subdivision, there was no prior use of the subdivision land to reach her new property (because it did not even exist at that time). Consequently, no such use can now be implied simply by virtue of the fact that the landowner’s new property abuts her old property. The new property was purchased from a different owner, and there is no basis for implying a grant to use the land of the subdivision to benefit land purchased from the county.
The criminal statutes of the state define manslaughter and murder as they were defined at common law. As to insanity, the state has the following provision:
“Under the defense of insanity a defendant may be entitled to acquittal if, because of mental illness, the defendant was unable to control his or her actions or to conform his or her conduct to the law.”
The defendant was put on trial in the state for the murder of his wife and her co-worker. The evidence at trial established that the defendant’s wife was having an affair with the co-worker, and that the defendant learned of it and killed the pair. The defendant did not take the stand in his own defense. In his closing statement to the jury, the defendant’s attorney made a statement, “Ladies and gentlemen, you must consider that there are some things that would provoke any one of us to kill, and there are things that make one unable to control one’s actions.” The defendant’s attorney requested that the judge give the jury instructions on manslaughter and on insanity, and the judge agreed to do so. The judge also issued the following instructions:
“INSTRUCTION #6: In order to mitigate an intentional killing to voluntary manslaughter, the burden of proof is on the defendant to establish that adequate provocation existed.”
“INSTRUCTION #8: Insanity is an affirmative defense and the burden of proof is on the defendant to establish that such insanity existed at the time of the killing.”
The jury found the defendant guilty of murder, and he appealed. He asserts that the jury instructions violated his rights under the federal Constitution.
How should the appeals court rule?
A Reverse the defendant’s conviction, because Instruction #6 was improper.
B Reverse the defendant’s conviction, because Instruction #8 was improper.
C Reverse the defendant’s conviction, because both Instructions #6 and #8 were improper.
D Uphold the defendant’s conviction, because neither Instruction #6 nor Instruction #8 was improper.
A
The court should reverse the defendant’s conviction because Instruction #6 requires the defendant to disprove one of the elements of murder. Due process requires in criminal cases that the state prove guilt beyond a reasonable doubt. The prosecution has the burden of proving all of the elements of the crime charged. Thus, if malice aforethought is an element of murder and voluntary manslaughter is distinguished from murder by the existence of adequate provocation, the defendant cannot be required to prove that he committed the homicide in the heat of passion (i.e., with adequate provocation). Such a requirement would impose on the defendant the burden of disproving the element of malice aforethought, because “heat of passion” negates malice. Although the defendant can be given the burden of going forward with some evidence on the provocation issue, once he has done so, the prosecution bears the burden of proving that the killing was not done in the heat of passion. In the case at issue, Instruction #6 requires a defendant to prove that he committed the intentional killing under adequate provocation. At common law, and consequently in the state, malice aforethought is an element of murder. Therefore, this instruction in effect requires the defendant to disprove the element of malice aforethought, thereby relieving the state of its burden of proving all elements of the crime. As discussed above, such an instruction cannot pass constitutional muster. On the other hand, for an affirmative defense such as insanity, it is permissible to impose the burden of proof on the defendant. Thus, Instruction #8 does not affect the state’s obligation to prove all elements of the crime, and is permissible under the general principles mentioned above. Thus, (B) and (C) incorrectly state that this instruction is improper. (D) is incorrect because it states that Instruction #6 is proper. As explained above, this is not an accurate statement of the law.
The defendant is on trial for fraudulently signing a check for $10,000. The defendant has denied that she signed the check. The prosecutor calls the landlord of the apartment building in which the defendant has resided for three months before her arrest. The landlord intends to testify that it is the defendant’s signature on the check, and he bases his opinion of the authenticity of her signature on the ground that he saw her sign the lease to his apartment.
Should the trial court find this testimony admissible?
A Yes, because there was only a short period of time between when the landlord saw her sign the lease and the time of trial.
B Yes, because the landlord has previously seen the signature.
C No, because the landlord has seen the signature only once and is not acting as a handwriting expert.
D No, because the testimony is inherently unreliable.
B
The court should find this testimony admissible. Any person can testify to the authenticity of another’s signature as long as that witness has seen the person’s signature and can express an opinion regarding its authenticity. The only restriction is that a nonexpert cannot become familiar with the handwriting merely for the purpose of testifying, and this was not the case here. There is no requirement that the witness have seen the signature recently; thus, (A) is not the best answer, even though the length of time since the witness last saw the signature in question may go to the weight that should be given the witness’s testimony. Nor is it decisive that the witness testifying regarding the signature has seen it only once. Under this circumstance, the witness’s testimony may lack reliability, but that is a fact for defense counsel to bring out. Thus, (C) is incorrect. The testimony is of sufficient reliability to permit its admission. Thus, (D) is wrong.
A plaintiff brought a personal injury action against a defendant, the owner of a small fishing resort, for injuries he suffered when a dockside chair he was sitting on collapsed. At trial, the plaintiff testified that he had reported to the defendant the previous day that one of the chairs had a loose leg, whereupon the defendant tightened the screws holding the leg to the chair body, but that the next day the repaired leg of the chair collapsed while the plaintiff was fishing from it, injuring him. The plaintiff now wishes to offer evidence showing that the defendant had attached a new chair leg after the accident.
Should the defendant’s objection to that evidence be sustained?
A No, because it tends to prove the defendant’s negligence.
B No, because it is relevant to the defendant’s state of mind.
C Yes, because it constitutes assertive conduct.
D Yes, for public policy reasons.
D
Evidence that the defendant had attached a new chair leg after the accident is inadmissible because, for public policy reasons, evidence of repairs or other precautionary measures made after an injury is inadmissible to prove negligence or culpable conduct. [Fed. R. Evid. 407] The purpose of this rule is to encourage people to make such repairs. Here, the plaintiff is offering the evidence to prove the defendant’s negligence in the original repair of the chair, by showing the need to attach a new leg. Thus, this evidence is inadmissible, and the objection should be sustained. (A) is wrong because, as discussed above, the evidence may not be used to show the defendant’s negligence. Thus, the tendency of the evidence to prove negligence would constitute a reason for sustaining the objection, rather than overruling it. (B) is wrong because the defendant’s state of mind is not at issue. In addition, the proffered evidence does not really tend to prove anything relative to her state of mind. (C) is wrong for two reasons: (i) Even if the act of replacing the chair leg constituted assertive conduct, it would not be hearsay. If the defendant’s conduct was a statement, it would be a statement of a party-opponent, and thus it would be nonhearsay. (ii) The act of replacing the leg is not assertive conduct constituting a statement under the hearsay rule. Assertive conduct is conduct intended by the actor to be a substitute for words. The defendant was not trying to communicate anything by replacing the leg.
During a presidential campaign, a candidate’s campaign manager secretly engaged in activities that may have violated both state and federal laws. After the candidate was elected President, the FBI investigated the manager’s activities as well as whether the President was involved. After the campaign manager was indicted in federal court, but before trial, the President granted a blanket pardon to the campaign manager for “all federal crimes that may have been committed in the past 20 years.”
Is the pardon valid?
A Yes, because the pardon power is an unqualified power (except as to impeachment).
B No, because a presidential pardon that interferes with an inquiry into the President’s own actions constitutes an obstruction of justice.
C No, presidential pardons must relate to specific crimes; the President cannot issue blanket pardons.
D No, because a President’s pardon power is limited to crimes that allegedly took place while the President is in office.
A
The pardon is valid. Article II, Section 2 of the United States Constitution grants the President the power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment. This pardon power is not subject to control by Congress, and it includes the power to commute a sentence on any conditions the President chooses (as long as the conditions do not offend some other constitutional provision). (B) is incorrect because even if the action of issuing the pardon amounted to the crime of obstruction of justice (a questionable assumption), the pardon itself would not be invalidated. The power to pardon is a constitutional power, superior to laws found in statutes. (C) is incorrect because the pardon power is not so limited. Blanket pardons are valid. (D) is also incorrect because the pardon power is not so limited. Presidents may pardon offenses that occurred before the President took office.
Shortly after a professor at a state university completed her second year of teaching, she was informed that her contract was not being renewed for the following year. By state law, a professor does not acquire tenure until after she has completed three consecutive years of teaching. Before acquiring tenure, state law does not require either a statement of reasons or a hearing when a professor’s contract is not renewed, and the university administration refused to give either to the professor.
Which of the following, if established, sets forth the strongest constitutional argument that the professor could make to compel the university to furnish her a statement of reasons for the failure to rehire her and an opportunity for the hearing?
A She purchased a home in anticipation of renewal of her contract, because most professors who had taught two years were rehired.
B She had been voted the most popular professor on campus in each of her first two years of teaching.
C She was the only teacher at the university whose contract was not renewed that year.
D There is evidence to indicate that the decision not to rehire the professor was not based on her ability to teach.
D
The strongest argument the professor could make is that the decision was not based on her ability to teach. The professor is an at-will employee, and under most circumstances may be discharged “for any reason or no reason at all.” Thus, normally, evidence regarding the motives for dismissal is irrelevant. The question here, however, is what the strongest argument is that the professor could make, and (D) creates at least an inference that an impermissible motive might be present (gender, free speech, etc.). (A) is a weaker answer because the professor has no property interest in continued employment; a mere expectation of continued employment is not enough, even when coupled with reliance (her buying a house). There must be a legitimate claim or entitlement-created by a contract or clear policy-that employment can be terminated only for cause. The bases alleged in (B) are arguably irrelevant; the professor’s popularity may or may not have anything to do with her ability, and even if it does, she remains an at-will employee. (C) might under some circumstances offer an argument, but there could be any number of valid explanations for keeping others and letting a particular professor go, including budget constraints, subject needs, etc. (D) is, accordingly, the strongest of the possibilities.
The defendant discovered that his friend had hit and killed a pedestrian while driving that afternoon, and that he had fled from the scene of the crime before the police arrived. To keep his friend out of trouble, the defendant fixed all the dents in the car caused by the collision and had the vehicle painted a different color. The friend, distraught about hitting and killing someone, eventually turned himself in and told the police what he had done and what the defendant had done for him. The defendant was charged as an accomplice to vehicular manslaughter in a state that follows the modern trend regarding accomplice liability.
How should the defendant be found?
A Not guilty, because he only helped his friend after the crime was already committed.
B Not guilty, because he had no affirmative duty to the victim.
C Guilty, because he aided his friend in the crime.
D Guilty, because as a party to the crime, he is criminally responsible for all crimes committed by his co-felons.
A
The defendant should be found not guilty as an accomplice. Under modern statutes, parties to a crime are divided into three different categories. Principals are those who, with the requisite mental state, actually engage in the act or omission that causes the criminal result. An accomplice is one who, with the intent that the crime be committed, aids, counsels, or encourages the principal before or during the commission of the offense. Under modern statutes, accomplices are generally treated as principals. A third category is “an accessory after the fact.” An accessory after the fact is one who receives, relieves, comforts, or assists another knowing that he has committed a felony, in order to help the felon escape arrest, trial, or conviction. Unlike an accomplice, an accessory after the fact has committed a separate crime with a punishment unrelated to the felony committed. In the instant case, it is clear that the defendant aided his friend in avoiding capture, that he provided no aid to the substantive offense, and that he did not intend the substantive offense to occur. Thus, he is an accessory after the fact and not an accomplice, making (A) the correct answer. (B) is incorrect because, although it is true that one need not prevent a crime from being committed, one cannot help another avoid arrest, as the defendant did in this case. (C) is incorrect. The defendant did not aid his friend in the commission of the crime; his help came afterward. Thus, the aid provided makes him an accessory after the fact, as explained above, and not an accomplice. (D) is incorrect. The criminal liability for other probable or foreseeable crimes arises when one is deemed an accomplice of a principal. As stated above, the defendant is not an accomplice, so, under these facts, he cannot be criminally liable for any other crimes committed by his friend.
A proud grandfather who planned to take pictures of his grandson’s graduation purchased a camera from a camera store. He used the camera on several occasions over the next few weeks without incident, but when he used it on the day before his grandson’s graduation, it caught fire and exploded, burning him and destroying an expensive coat he was wearing. Although the grandfather was in a great deal of pain because of his injuries, he insisted on attending his grandson’s graduation. However, because he no longer had a workable camera, the grandfather hired a professional photographer to take pictures of the special day.
In a breach of warranty action, which of the following represents the most that the grandfather may recover?
A The difference between the value of the camera accepted and its value if it had been as warranted.
B The difference between the value of the camera accepted and its value if it had been as warranted, plus medical costs for treating the grandfather’s burns.
C The difference between the value of the camera accepted and its value if it had been as warranted, medical costs for treating the grandfather’s burns, and the cost to replace the grandfather’s coat.
D The difference between the value of the camera accepted and its value if it had been as warranted, medical costs for treating the grandfather’s burns, the cost to replace the grandfather’s coat, and the cost of hiring the professional photographer.
C
When a buyer accepts goods that turn out to be defective, he may recover as damages any “loss resulting in the normal course of events from the breach,” which includes the difference between the value of the goods accepted and the value they would have had if they had been as warranted, plus incidental and consequential damages. Incidental damages resulting from the seller’s breach include expenses reasonably incurred in inspection, receipt, and transportation, care, and custody of goods rightfully rejected. In this case, the grandfather incurred no incidental damages. Consequential damages resulting from the seller’s breach include any loss resulting from general or particular requirements and needs of which the seller at the time of contracting had reason to know and which could not reasonably be prevented by cover or otherwise, and injury to person or property proximately resulting from any breach of warranty. Here, the grandfather is entitled to breach of warranty damages for the loss of the camera-the difference between the value of the camera accepted and its value if it had been as warranted-plus damages for injury to his person (e.g., medical costs for treating the grandfather’s burns) and property (i.e., the cost to replace his coat) because they were proximately caused from the breach of warranty. Thus, (C) is correct, and (A) and (B) are wrong. (D) is wrong because the cost of hiring the professional photographer was not foreseeable. The seller was not told of any particular requirements and needs of the grandfather at the time of contracting nor would the seller have reason to know that the grandfather planned to use the camera to take pictures of his grandson’s graduation and would hire a professional photographer if he lost the use of the camera.
In answer to a radio advertisement, a teenager two months shy of his 18th birthday contracted to buy a late model car from a car dealership. The agreement required a $1,500 down payment with the remainder of the $7,200 price to be paid in monthly installments to a local finance company. The teenager’s first eight payments were made regularly until his driver’s license was suspended. He then informed the company that no further payments would be forthcoming.
The finance company sued for the remaining payments. The age of majority in the teenager’s state is 18 years.
Would the teenager be liable for the balance of the payments?
A Yes, because the car dealership was liable on the contract from the outset, notwithstanding his minority.
B Yes, because he kept the car for six months after reaching the age of majority.
C No, because he was a minor at the time of contracting, and the contract was voidable by him.
D No, because he informed the finance company in a timely manner after his driver’s license was suspended.
B
The court should rule that the teenager affirmed the contract and, thus, should be liable for the balance of the payments. Although infants generally lack capacity to enter into a contract that is binding on themselves, an infant may affirm, i.e., choose to be bound by his contract, upon reaching majority. Affirmance may be either express or by conduct, e.g., failing to disaffirm the contract within a reasonable time after reaching majority. Disaffirmance discharges all liability. Here, the teenager continued making payments on the car six months after reaching his 18th birthday, and did not disaffirm the contract. Thus, the court should hold that he affirmed the contract and was liable for the unpaid balance. (A) is incorrect because, although it is true that the car dealership was liable on the contract from the outset, that liability did not extend to the infant. A contract entered into between an infant and an adult is voidable by the infant but binding on the adult. (C) is incorrect because, although the teenager could have voided the contract while still a minor, he did not do so and, once he reached the age of 18, was left only with the option of disaffirming the contract within a reasonable time after reaching majority, which he also failed to do. Thus, his minor status at the time of contracting, without more, would not allow him to escape liability for the payments. (D) is incorrect because timely notice of a breach of contract does not mitigate the effects of his liability for the breach, and the teenager’s affirmance of the contract, as discussed above, renders him liable for the unpaid balance.
A mother received a telephone call asking her to meet with the vice principal of her son’s school because he was caught cheating. As she was waiting in the hallway to meet with the vice principal, the school’s janitor, a big man who was an amateur body builder, introduced himself as the vice principal and asked the mother to step into his office, closing the door behind him. For several minutes, the janitor asked the mother a series of flirtatious personal questions, causing the mother to grow very uncomfortable. However, she did not leave the office out of concern for her son’s academic standing. The actual vice principal eventually returned to his office and ended the questioning.
If the mother sues the janitor for false imprisonment, is she likely to prevail?
A Yes, because the janitor was a body builder who could have physically harmed her if she tried to leave the room.
B Yes, because she would not have stayed in the room if the janitor had not pretended to be the vice principal.
C No, because the janitor would have let her leave if she wanted.
D No, because she had no reason to believe that she could not leave.
D
The mother likely will not prevail in a false imprisonment action against the janitor because the mother was in the room willingly and no facts show that she was there against her will. For false imprisonment, a plaintiff must prove that the defendant intentionally confined or restrained plaintiff to a bounded area, and here there is no evidence of that. (A) is wrong because, although a plaintiff need not risk harm by trying to escape, the mother was not trying to escape. (B) is incorrect because, whatever the reason for her staying in the room, there are no facts showing that the janitor intended to falsely imprison her. (C) is not as good a choice as (D) because, while it is unlikely that the janitor would have attempted to keep her from leaving the room, the facts do not establish what his state of mind was.
After picking up a load of hazardous chemical waste, a truck driver for a waste management company set out on the road to his next stop. However, he had failed to secure the latch on the back panel of the truck. Consequently, the panel opened while the truck was on the road, and a metal canister full of chemical waste fell onto the road. A car struck the canister, causing the car to veer off the road and injure the driver. The driver filed suit against the company for his injuries.
The jurisdiction in which the above events took place has adopted a rule of partial comparative negligence. At trial, the driver of the car admitted that he had momentarily taken his eyes off the road to look at his speedometer. When he had looked up again, the canister was there and he could not stop in time. The jury found that the company, through its truck driver, had acted willfully and wantonly and was 90% at fault, while the driver of the car was 10% at fault. The driver filed a motion for judgment notwithstanding the verdict, seeking recovery for 100% of his damages.
If the judge grants the motion, what is the most likely reason?
A A plaintiff’s comparative negligence is not taken into account in cases of willful and wanton conduct by the defendant.
B A state ordinance mandating motorists to stay within the posted speed limit requires as a matter of law an occasional glance at the speedometer.
C The company was more than 50% at fault.
D The company was engaged in an abnormally dangerous activity.
B
If the driver was effectively required by statute to take an occasional quick look at his speedometer to make sure that he was complying with appropriate speed limits, then his momentary glance at the speedometer in the instant case would, as a matter of law, not constitute negligent conduct. Because this is a matter of law, the judge would be authorized to correct this aspect of the jury’s verdict. If the driver is thus found to be not negligent in this matter, his recovery will not be reduced. (A) is incorrect because in most states that have adopted comparative negligence, the plaintiff’s negligence will be considered even in cases where the defendant has acted willfully and wantonly. (C) is incorrect because the fact that the defendant is more than 50% at fault does not mean that the plaintiff is entitled to receive 100% of his damages from the defendant in a partial comparative negligence jurisdiction. It only means that the plaintiff’s recovery is not totally defeated. (D) is incorrect because, although the transportation of chemical waste would probably be considered an abnormally dangerous activity, liability for conducting an abnormally dangerous activity attaches only if the harm results from the kind of danger to be anticipated from such activity; i.e., the injury must flow from the normally dangerous propensity of the activity. The canister falling from the truck is not the “normally dangerous propensity” of transporting chemical waste.
