Mixed Questions - Set 16 Flashcards
The plaintiff was severely injured when a tire on her car blew out and caused her to lose control of the car. She filed an action in federal district court against the manufacturer of the tire, alleging that the tire was defective. The plaintiff intends to introduce remnants of the tire into evidence at trial as part of her proof that the tire was defective.
In what way are the remnants subject to discovery?
A Discovery is not available for such physical items, only for documents and electronically stored information.
B The plaintiff does not have to disclose the existence or a description of the tire remnants unless the manufacturer asks about them in discovery requests.
C Even without a request from the manufacturer, the plaintiff must provide the manufacturer with a description of the tire remnants.
D The court will order the plaintiff to make the tire remnants available for the manufacturer to inspect only if the manufacturer shows good cause.
C
The plaintiff must provide a description of the tire remnants to the manufacturer. Without waiting for a discovery request, a party must provide to the other parties copies or descriptions of tangible things that are in the disclosing party’s possession or control and that the disclosing party may use to support its claims or defenses as an initial disclosure under Rule 26(a)(1). (Separately, the tire remnants would have to be disclosed under Rule 26(a)(3) as a pretrial disclosure of an item that is expected to be offered into evidence.) (A) is therefore incorrect. (B) is incorrect because, as stated above, the plaintiff is planning to use the tire remnants to support her claim, so she must provide a description of the remnants to the manufacturer as part of her initial disclosures. (D) is incorrect. After the initial disclosure process, a party may submit a request for production or inspection under Rule 34 if the manufacturer wants to physically inspect the tire remnants. However, good cause need not be shown for the request.
A storeowner properly filed a complaint for breach of contract against a food distributor in federal district court. After the food distributor timely answered the complaint, the parties proceeded through discovery, which lasted over 14 months and cost the parties over $200,000 in attorneys’ fees and related costs. At the final pretrial conference, the presiding judge indicated that he did not think much of the merits of the storeowner’s claims. As a result, the storeowner wants to dismiss this case and refile in a different federal court to get a more sympathetic judge.
How may the storeowner try to achieve this goal?
response - incorrect
A File a motion for voluntary dismissal without prejudice, and it will likely be granted on the grounds that the judge is biased against the storeowner’s case.
B File a motion for voluntary dismissal without prejudice, but it will likely be denied due to the time and money already invested in the case by the parties and the court.
C File a notice of dismissal with the federal district court, and it will likely be granted because the Federal Rules of Civil Procedure give a plaintiff the right to unilaterally dismiss an action once without prejudice.
D File a motion for voluntary dismissal without prejudice, and it will likely be granted because courts are required to freely grant such motions to further judicial economy.
B
The storeowner can give up his case voluntarily by way of voluntary dismissal. If the defendant has answered or filed a motion for summary judgment or there was a previous dismissal, the plaintiff must file a motion for voluntary dismissal by leave of the court, and the court has the discretion to grant dismissal on such terms and conditions as the court deems proper. Here, because the distributor answered the complaint, this motion for voluntary dismissal with leave of the court was a proper vehicle to attempt to achieve the storeowner’s goal; however, due to the excessive time (14 months) and expense (over $200,000), it is unlikely that the court would deem these conditions proper to grant such a dismissal. (A) is wrong because, although it correctly states that the proper motion to file is a motion for voluntary dismissal without prejudice, the outcome based on the rationale is highly unlikely without other evidence. Judges are free to comment regarding their opinion of the evidence presented, and without more, there is no evidence that such a comment rises to the level of the judge being biased sufficiently to grant such a motion. (C) is wrong because it is not procedurally correct. A notice of dismissal may be filed by a plaintiff who wishes to voluntarily dismiss the case without leave of the court; however, it is only proper if the defendant has not answered or filed a motion for summary judgment. Here, the distributor answered the complaint. Therefore, the notice of dismissal is improper. (D) is wrong because, although like choice (B), it correctly states that the proper motion to file is a motion for voluntary dismissal without prejudice, the outcome based on the rationale is incorrect. There is no such rule that courts are required to freely grant such motions to further judicial economy. In fact this statement is counterintuitive as to do so would cost more judicial time and resources.
A mother died, bequeathing all of her property to a trustee “to pay the income to my husband for life, and to distribute the principal to my son and daughter if they graduate from college. If they do not graduate from college, then the principal shall be distributed to charity.” Subsequently, the son and the daughter graduated from college.
Upon their graduation from college, how would the interests of the son and the daughter in the trust principal be classified?
A Tenants in common to a vested remainder.
B Joint tenants to a vested remainder.
C Tenants in common to a fee simple absolute.
D Tenants by the entirety to a fee simple absolute.
A
Upon their graduation, the interests of the son and the daughter in the trust principal would be classified as tenants in common to a vested remainder. A remainder is classified as contingent if its taking in possession is subject to a condition precedent. Here, because the condition precedent-that the son and the daughter graduate from college-has been satisfied, the son and the daughter’s contingent remainder has “vested.” Also, at common law, it was held that any conveyance to two or more persons was presumed to create a joint tenancy unless a contrary intention was clearly expressed. But today all courts hold that such a conveyance creates a tenancy in common. To create a joint tenancy, words such as “as joint tenants with right of survivorship” must normally be used to show the necessary intent. Thus, the son and the daughter are tenants in common to a vested remainder. (B) is therefore wrong. (C) is wrong because the son and the daughter’s estate is in a remainder interest, not a fee simple absolute, because the facts do not indicate that the life tenant (the husband) has died. (D) is wrong for the same reason and, additionally, because a tenancy by the entirety can be held only by a husband and wife, which is not the case here.
As a result of a personal injury lawsuit, a victim obtained a judgment against a tortfeasor for $100,000. The tortfeasor, who had few assets, did not pay the judgment. On April 1 of the following year, the tortfeasor inherited a parcel of land from her uncle. On May 1, the tortfeasor entered into a contract with a buyer to sell the land for $120,000. The contract was not recorded. The buyer immediately applied to a bank for a loan of $100,000. The bank approved the buyer’s loan, and on May 15, a closing was held. The tortfeasor deeded the land to the buyer, and the buyer executed a mortgage for $100,000 to the bank. Due to an error by the title company, the deed from the tortfeasor to the buyer was not recorded, although the mortgage to the bank was recorded. Neither the buyer nor the bank had any knowledge of the victim’s judgment. On May 20, the victim recorded his judgment in the county recorder’s office where the land was located. At that time, he had no knowledge of the buyer’s or the bank’s rights. When he learned about them, he immediately brought a proceeding to foreclose his judgment lien, naming the tortfeasor, the buyer, and the bank as parties.
The jurisdiction has a typical grantor/grantee recording index, and has enacted the following statute:
“Any judgment properly filed in the county recorder’s office shall, for 10 years from filing, be a lien on the real property then owned or subsequently acquired by any person against whom the judgment is rendered. No conveyance or mortgage of real property shall be good against subsequent bona fide purchasers for value and without notice unless the same be recorded according to law.”
As between the victim and the bank, which party’s interest in the land will be given priority?
A The bank, because the bank recorded its mortgage before the victim recorded his judgment lien.
B The bank, because the victim is not protected by the recording statute.
C The victim, because the victim’s judgment was filed in the recorder’s office before the buyer’s deed was recorded.
D The victim, because the judgment lien extends to after-acquired prope
B
The victim will not likely prevail against the bank because a majority of courts hold that the judgment lienor is not protected by the recording statute. If the statute here, which is a notice statute, were applicable to protect the victim, he would have priority over the bank because his judgment lien was recorded before the buyer’s deed was recorded. Under this view, the bank’s mortgage would have been considered “wild” and would be deemed unrecorded because the preceding conveyance, the buyer’s deed, was actually unrecorded. A searcher in the public records would therefore have been unable to find the mortgage. Hence, if the statute were applicable to protect the victim, he would have priority over the bank. However, most courts reason that either (i) a judgment creditor is not a bona fide purchaser because he did not pay contemporaneous value for the judgment, or (ii) the judgment attaches only to property “owned” by the debtor, and not to property previously conveyed away, even if that conveyance was not recorded. Under the statute in the present question, a judgment does not attach until it is recorded. Here, the victim’s judgment did not attach to the land until after the bank obtained a mortgage on it, and the recording statute does not change that result. The failure of the buyer to record, and the resultant treatment of the bank as unrecorded, is irrelevant. Thus, the bank’s mortgage is superior to the victim’s lien. (A) is wrong because it does not matter whether the bank’s mortgage was recorded, as against a subsequent judgment lien creditor. The judgment lien creditor is not protected by the recording statute, so the bank prevails even though its mortgage would be deemed unrecorded, as discussed above. (C) is wrong because, as discussed above, a majority of courts hold that the judgment lienor is not protected by the recording statute. (D) is wrong because the land was not after-acquired property, because the judgment lien was not filed until the tortfeasor had obtained-and conveyed away-an interest in the property. However, if the victim had in fact recorded his lien before the tortfeasor inherited the land, the after-acquired property provision of the statute would have applied, the victim would have had a recorded lien on the land as soon as the tortfeasor acquired it, and the victim would have gained priority over the bank.
A plaintiff has brought an action for personal injuries against a store, in connection with an incident in which he slipped and fell after the store’s linoleum floors had been mopped. A major issue at trial is the degree of moisture that remained on the floor, because it had been mopped 45 minutes before the plaintiff walked on it. The store offers the testimony of an expert, who will testify about an experiment he conducted measuring the amount of time necessary for a linoleum floor to dry completely after having been mopped.
Under what condition should the court admit this testimony?
A A representative of the plaintiff was present when the experiment was conducted.
B It is shown that the conditions of the expert’s experiment were substantially similar to the conditions of the store’s floor when the plaintiff slipped.
C The plaintiff was given an opportunity to conduct his own experiment with the same type of linoleum used by the expert.
D It is shown that the expert is not an employee or otherwise related in interest to the store.
B
The expert’s testimony is only relevant if the conditions of the experiment were substantially similar to the conditions at the time and place of the accident. Evidence of pretrial experiments that does not require expert testimony is treated no differently under the Federal Rules from other evidence. It will be admissible if it is relevant (i.e., if it has any tendency to prove or disprove a fact that is of consequence to the action) and if it is not barred by a specific exclusionary rule or the general balancing test of Rule 403. To the extent that the conditions of the expert’s experiment replicated the conditions of the accident, the experiment is relevant because whether the expert’s linoleum was wet after 45 minutes tends to establish whether the store’s floor was wet when the plaintiff walked on it, and this fact is of major consequence to the plaintiff’s personal injury action. To the extent that the conditions of the expert’s experiment are not similar, the minimal probative value of his testimony probably would be outweighed under Rule 403 by considerations of unfair prejudice or waste of time. (A) is incorrect because the Federal Rules do not require a representative of the adverse party to be present at the experiment; the plaintiff’s attorney can subject the conditions of the experiment to scrutiny through cross-examination of the expert. (C) is incorrect for the same reason: the plaintiff’s attorney can effectively cross-examine the expert even without having conducted his own experiments. (D) is incorrect because the person conducting the experiment need not be an independent observer. If the expert is an employee, his potential bias can be elicited on cross-examination.
A defendant was involved in an accident in which her car struck the rear end of the car driven by the plaintiff. The police issued tickets to the defendant, charging her with reckless driving and speeding. When the defendant’s case came before the traffic court, her attorney entered into a plea bargain with the prosecutor. Under the plea bargain, the defendant agreed to plead guilty to speeding and to pay a fine of $100, and the prosecution agreed to drop the reckless driving charge. Accordingly, the defendant pleaded guilty and the court fined her $100.
In the later civil suit, where the plaintiff is seeking damages from the defendant for personal injuries, is the guilty plea before the traffic court admissible?
A Yes, because it is a statement by an opposing party.
B Yes, because it is a statement against interest.
C No, because there is a public policy in favor of plea bargaining to promote court efficiency.
D No, because no felony was involved.
A
The defendant’s guilty plea is a statement by an opposing party and thus is admissible. Under the Federal Rules, a statement by an opposing party (commonly called an admission) is not hearsay. [Fed. R. Evid. 801(d)(2)] A plea of guilty to a traffic infraction is a formal judicial statement. The statement is conclusive in a prosecution for that infraction, but if the plea is used in another proceeding, it is merely an evidentiary statement (i.e., it is not conclusive and can be explained). Here, the defendant has acknowledged by her guilty plea that she was speeding at the time of the accident. This fact is relevant to the plaintiff’s suit for personal injuries because it increases the likelihood that the defendant was at fault in the accident that caused those injuries. Therefore, the defendant’s guilty plea is admissible in the current civil action as an evidentiary statement. (B) is wrong because there is no indication that the defendant is unavailable. Statements of a person, now unavailable as a witness, against that person’s pecuniary, proprietary, or penal interest when made are admissible under the statement against interest exception to the hearsay rule. [Fed. R. Evid. 804(b)(3)] A declarant is unavailable if: (i) she is exempt from testifying because the court rules that a privilege applies, (ii) she refuses to testify despite a court order to do so, (iii) she testifies to not remembering the subject matter, (iv) she is dead or ill and unable to testify, or (v) she is absent and the statement’s proponent has been unable to procure her attendance or testimony by process or other reasonable means. [Fed. R. Evid. 804(a)(1) - (5)] Since the defendant apparently is available as a witness in the suit, the statement against interest exception is inapplicable. Although it may be true that public policy favors plea bargaining, (C) is wrong because there is no attempt here to offer a statement made during the plea bargaining process. Under the Federal Rules, withdrawn guilty pleas, pleas of nolo contendere, offers to plead guilty, and evidence of statements made in negotiating such pleas are not admissible in any proceeding. [Fed. R. Evid. 410] However, there is no prohibition against admitting the guilty plea itself. This question asks whether the guilty plea is admissible, not whether statements made in negotiation thereof are admissible. Thus, the policy favoring plea bargains is irrelevant. (D) is wrong because the question asks about the admissibility of the plea rather than a copy of the conviction. Convictions may be introduced to prove any fact essential to the case only if they are felony convictions. [Fed. R. Evid. 803(22)] Because the conviction is not being offered, the fact that a felony is not involved is of no consequence. The defendant’s plea is admissible as an opposing party’s statement even though a felony was not involved.
After the release of various news stories about the President’s possible violation of political campaign funding laws, a federal grand jury investigation and an investigation by a special Senate subcommittee were initiated. The Senate subcommittee subpoenaed documents and records from several top officers of the executive branch. Learning of the subpoenas, the President ordered all executive officials to refuse to turn over materials, claiming “executive privilege.”
Which of the following statements is most accurate?
A The subpoena violates the constitutional principle of separation of powers.
B The President’s executive privilege is absolute, except in cases of impeachment.
C The presidential papers are presumptively privileged, but the privilege must yield to a demonstrated specific need for evidence in a pending legislative proceeding.
D The President’s executive privilege applies to proceedings by Congress, but not to proceedings by the courts.
C
Executive privilege is an inherent privilege necessary to protect the confidentiality of presidential communications. Under this privilege, presidential documents and conversations are presumptively privileged, but this privilege must yield to a demonstrated need for such materials as evidence in a criminal case in which they are relevant and otherwise admissible. [United States v. Nixon (1974)] Although the Supreme Court has not expressly decided that the privilege must also yield to a demonstrated need for evidence in a pending legislative proceeding, such an extension of Nixon is likely, and none of the other alternatives is at all accurate. (A) is incorrect because it is too broad. In Nixon, supra, the Court decided that an evidentiary subpoena to the President in a criminal case does not violate the separation of powers principle. By extension, a subpoena issued by a Senate subcommittee, pursuant to the well-established implied power of Congress to investigate, would not be deemed to violate separation of powers. (B) is also incorrect because it is too broad. As stated above, although a presumptive privilege applies to presidential documents and conversations, that privilege must yield to a demonstrated need in criminal cases. Thus, executive privilege is not absolute. (D) is incorrect because executive privilege does apply to proceedings by the courts; in fact, the privilege is overridden only on a specific showing of need for specific information.
A comprehensive federal health-care reform statute created a Federal Health Policy Board, which was directed to monitor the fees charged for various medical procedures covered by insurance. The board also had the power to subpoena records to determine whether fee increases were a true reflection of cost increases. Nothing in the statute provided for caps on fee increases.
Because of the continuing escalation of health-care costs while the statute was being debated, several states had passed health-care legislation on their own. One state passed legislation that prohibited most fee increases of 10% or more per year for specified health-care services covered by insurance, and created a health-care review board to regulate these costs and impose monetary penalties on health-care providers or insurers that tried to circumvent the cap.
Which of the following would be the best basis for finding the state provision unconstitutional?
A The federal legislation was passed after the state legislation and therefore supersedes it.
B The Federal Health Policy Board was constituted with many of the same powers as the state board but was not given the power to impose sanctions.
C The state provision impairs existing contracts between health-care providers and insurers in violation of the Contract Clause.
D Health-care fee caps create an undue burden on interstate commerce even in the absence of federal regulation.
B
The fact that the federal board was similar to the state board but was not given the power to restrict fee increases and impose sanctions in an otherwise comprehensive bill suggests that such provisions in the state law violate the Supremacy Clause. A state law may fail under the Supremacy Clause even if it does not directly conflict with a federal statute or regulation if it interferes with the achievement of a federal objective or the federal regulations occupy the entire field. Where the federal laws are comprehensive or a federal agency is created to oversee the field, preemption will often be found. The fact that the health-care legislation was comprehensive but the federal board was not given regulatory or enforcement power suggests that Congress did not want specific restrictions in these areas and may have wanted free-market principles to determine fee increases at the outset. The state board’s power to impose these restrictions may violate the Supremacy Clause under these circumstances. (A) is incorrect because the fact that the federal legislation was passed later does not automatically mean that the state legislation has been superseded. In areas of concurrent legislative power, a state regulation will be upheld if it does not conflict with and is not preempted by federal legislation. (C) is incorrect because the Contract Clause prevents only substantial impairments of existing contracts by state legislation, and only if the legislation does not serve an important and legitimate public interest or is not a reasonable and narrowly tailored means of promoting that interest. Here, the law has a prospective effect only, and even if existing contracts between health-care providers and insurers are affected by the legislation, the other requirements for the Contract Clause to apply are not likely to be satisfied. (D) is incorrect because states may regulate local aspects of interstate commerce in the absence of federal regulation as long as the regulation is nondiscriminatory and does not unduly burden interstate commerce, which is a case-by-case balancing test. Here, the legislation appears to be nondiscriminatory and there are insufficient facts to establish that it would constitute an undue burden; hence, (B) presents a stronger argument than (D).
A thief sold some stolen goods to a dealer. Several weeks later, the police raided the dealer’s store and arrested him. In this raid, the police seized the goods the thief sold to the dealer and a record book in which the dealer had recorded this transaction. However, at the dealer’s subsequent trial for receiving stolen goods, the charges against him were dismissed when the court ruled that the search warrant had been improperly issued.
The police were able to trace the stolen goods to the thief because of fingerprint identification and the information contained in the dealer’s record book.
At his trial, the thief made a motion to suppress the stolen goods and record book.
What should the judge do?
A Grant the motion, because the evidence is the fruit of the poisonous tree in that the search of the dealer’s store was improper.
B Grant the motion, because the trial court in the dealer’s case has already ruled that the evidence was improper.
C Deny the motion, because the thief has no standing to object to the search.
D Deny the motion, because the thief’s fingerprints on the stolen goods were what led to his identification.
C
The court should deny the motion because the thief had no standing to object to the search. A person challenging the admissibility of seized evidence must have standing to do so. As a general rule, standing requires a person to have a reasonable expectation of privacy in the place being searched or the item being seized. One may not challenge a search or seizure by claiming that another person’s constitutional rights have been violated. Here, the thief had no ownership interest in the dealer’s store. He had no reasonable expectation of privacy with respect to it; i.e., he was not present when the search was made, and he had no ownership interest in the stolen goods. Thus, he lacks the standing to object to their illegal seizure. (A) and (B) are incorrect because, while the dealer does have such standing and was successful in having the evidence suppressed at his trial, what occurred at the dealer’s trial is not relevant to the thief’s motion. (D) is incorrect because the only evidence containing the thief’s fingerprints were the stolen goods. If it is found that these items were illegally seized, it would follow that the evidence arising out of this illegal seizure, including the thief’s fingerprints, was also illegally seized.
A motorist was driving his car down the street when he struck a 10-year-old boy who had darted into the road to retrieve a bouncing ball. After the accident, the boy’s mother refused to take the boy for treatment on religious grounds. As a result, the boy’s injuries were more severe than they would otherwise have been.
What argument provides the boy with his best chance to recover for all of his injuries?
A The doctrine of avoidable consequences at most bars recovery for the aggravation of his injuries, but not for the original injuries themselves.
B Any negligence on the mother’s part is not to be imputed to her child.
C Victims have no duty to take steps for their own safety after the accident.
D Defendants must take their victims as they find them, including their mothers’ attitudes toward medical treatment.
B
The boy’s best argument is that his mother’s refusal to take him to a physician, if deemed to be negligent, is not imputed to him. A plaintiff has a duty to take reasonable steps to mitigate damages. Thus, in personal injury cases, there is a duty to seek appropriate treatment to effect healing and to prevent aggravation. Failure to do so will preclude recovery for any particular item of injury that occurs or is aggravated due to the failure to mitigate (this is the avoidable consequences rule). Thus, the boy’s not consulting a doctor could limit his recovery to the damages for the original injury only. However, he is a child and his mother decided not to seek medical help for him. In actions against a third party, a parent’s negligence is not imputed to the child. Thus, using the argument in choice (B) that any negligence on the part of the boy’s mother will not be imputed to him, he should receive a full recovery for all of his injuries if he prevails in an action against the motorist. On the other hand, if the boy uses the argument in choice (A), he will probably not recover for the aggravated injuries. (A) presents an accurate statement of law, relative to the effect of the avoidable consequences rule. If the boy avails himself of the avoidable consequences rule, he will succeed in salvaging merely his right to recover for the original injury. Thus, (A) does not give him a chance to recover for all of his injuries, as does (B). (C) is incorrect because it directly contradicts the rule that a plaintiff must take all reasonable measures to mitigate damages after the original injury is inflicted. (D) is incorrect because it misstates the concept of “taking your victim as you find him.” This concept refers to the physical or mental condition of the victim at the time of the injury (e.g., the “eggshell skull plaintiff”); it does not cover the victim’s relationship to others and their attitudes or actions. Thus, the attitude of a victim’s mother toward medical treatment is not included in “taking your victim as you find him.”
A company that was the leading supplier of home water filtration systems had a network of sales promoters who were under contract for two- or three-year terms and were compensated solely by commissions earned from sales and by occasional bonuses. Veteran promoters also earned commissions by recruiting other promoters for the company. One of the company’s veteran promoters was contacted by a former top sales representative for another manufacturer who was looking for similar sales opportunities in the region. The sales rep knew that the promoter might be able to get her a position with his company, which was looking for additional promoters. At the time he met with the sales rep, the promoter’s contract with the company had one more month to run. When the promoter’s contract with the company expired, he announced that he was forming his own business to market a different line of water filtration systems manufactured by a competitor of the company, and that the sales rep would be in charge of his promotional network.
The company brought an action against the promoter for interference with business relations for hiring the sales rep. At a preliminary hearing, the parties stipulated to the above facts and that the promoter was an independent contractor rather than an employee of the company. The promoter then filed a motion for a summary judgment in his favor.
Should the court grant the promoter’s motion?
A Yes, because the sales rep had no business relationship with the company at the time the promoter’s alleged interference occurred.
B Yes, because the promoter was an independent contractor rather than an employee of the company.
C No, because the jury could find that the means the promoter used to obtain the sales rep were not privileged.
D No, because the jury could find that the promoter breached his contract with the company by meeting with the sales rep.
C
The court should not grant the promoter’s motion because the jury could find that the promoter used improper means, while working for the company, to divert the sales rep for his own purposes. To establish a prima facie case for interference with business relations, the following elements must be proved: (i) existence of a valid contractual relationship between plaintiff and a third party or a valid business expectancy of plaintiff; (ii) defendant’s knowledge of the relationship or expectancy; (iii) intentional interference by defendant that induces a breach or termination of the relationship or expectancy; and (iv) damage to plaintiff. Thus, a plaintiff has a cause of action for interference with probable future business relationships for which the plaintiff has a reasonable expectation of financial benefit. On the other hand, an interferer’s conduct may be privileged where it is a proper attempt to obtain business for the interferer, particularly if the interference is only with a prospective business relationship rather than with an existing contract. What is proper depends on various factors, including the means of persuasion used. Here, the promoter’s conduct would not be privileged if the jury were to find that he improperly used his position with the company to develop a relationship with the sales rep. (A) is incorrect because even though the company did not have an existing contractual relationship with the sales rep, it could very well show that it had a reasonable expectation of signing a contract with the sales rep that the promoter knew of and intentionally interfered with. (Note that courts do not permit recovery for negligent interference with business relations.) Whether the company could prove its expectancy to a sufficient degree to establish actual damages would be a question for the trier of fact; hence, summary judgment would not be appropriate on this basis. (B) is incorrect because the promoter can be liable for interference with business relations regardless of whether he was an independent contractor or an employee of the company, as long as he used improper means for steering the sales rep away from the company. (D) is incorrect because a defendant’s breach of his own contract with the plaintiff is not a basis for the tort of interference with business relations. If the promoter breached his contract with the company, the company’s cause of action would be in contract and its remedy would be governed by contract rules. Here, the tort action that the company is suing on does not require establishing a breach of the promoter’s contract with the company.
A gang member threatened to kill the defendant unless he robbed a convenience store and gave the proceeds to the gang member. The gang member also demanded at gunpoint that the defendant kill the clerk to prevent identification. In abject fear of his life, the defendant did everything that the gang member requested.
If the defendant is arrested and charged with murder and robbery in a common law jurisdiction, what result?
A The defendant should be convicted of murder and robbery.
B The defendant should be acquitted of the robbery and convicted of murder.
C The defendant should be convicted of robbery, and the killing will be reduced to voluntary manslaughter.
D The defendant should be acquitted of the robbery, and the killing should be reduced to voluntary manslaughter.
B
The defendant should be convicted of common law murder, but acquitted of the robbery. At common law, murder is the unlawful killing of a human being with malice aforethought. “Malice aforethought” exists if the defendant has any of the following states of mind: (i) the intent to kill (express malice); (ii) the intent to inflict great bodily injury; (iii) a reckless indifference to an unjustifiably high risk to human life (“abandoned and malignant heart”); or (iv) the intent to commit a felony. In the instant case, malice could be found either by the intent to kill (because the clerk was intentionally killed to prevent identification) or by the intent to commit a felony (the killing was committed during the course of a robbery). Robbery is an aggravated form of larceny and consists of the following elements: (i) a taking; (ii) of the personal property of another; (iii) from the other’s person or presence; (iv) by force or intimidation; (v) with the intent to permanently deprive him of it. Clearly, the elements for robbery are met here. Thus, at first glance, the defendant has committed both murder and robbery. However, the fact pattern also raises the defense of duress. A person is not guilty of an offense, other than intentional homicide, if he performs an otherwise criminal act under the reasonable belief that another will imminently inflict death or great bodily harm on him or an immediate family member if he does not commit the criminal act. In the instant case, the defendant committed the robbery under duress and thus should be acquitted of that charge, making (A) incorrect. However, duress would not be effective against a murder charge based on an intent-to-kill theory, and here the defendant intentionally killed the store clerk under instructions from the gang member to prevent identification. Thus, because the defendant could be convicted of an intent-to-kill murder, but acquitted of the robbery charge based on duress, (B) is the correct answer. (C) and (D) are incorrect. An argument could be raised that the killing should be reduced to voluntary manslaughter from murder, given that the defendant was acting under the provocation of a threat of deadly force. At common law, provocation would reduce a killing to voluntary manslaughter if (i) the provocation must have been one that would arouse the sudden and intense passion in the mind of an ordinary person such as to cause him to lose self-control; (ii) the defendant must have in fact been provoked; (iii) there must not have been sufficient time to cool off; and (iv) the defendant did not in fact cool off. Provocation includes being subjected to a serious battery or a threat of deadly force. That said, the reduction to voluntary manslaughter occurs only as to the person who provoked the defendant (or the killing of a third person under the transferred intent doctrine). Thus, had the defendant killed the gang member, he might have been able to claim “adequate provocation” to have the killing reduced to voluntary manslaughter (assuming that a straight self-defense issue could not have been raised). However, as discussed above in terms of a duress defense, it would not justify the killing of a third party.
A manufacturer of high-speed computers entered into a written agreement with a distributor whereby the distributor would purchase a specified computer from the manufacturer for $50,000. The parties had orally agreed that the delivery date would be November 4. However, when the agreement was reduced to writing, a glitch in the word processor caused the printout to show the delivery date as “12/4” instead of “11/4.” Both parties signed the paper without noticing the incorrect delivery date. Before reducing their agreement to writing, the parties had also orally agreed that the agreement would not become binding unless the distributor notified the manufacturer, in writing, by October 7, that it (the distributor) had obtained a buyer for the computer.
On September 25, the distributor found a buyer who needed the computer for her business and who agreed to buy it from the distributor. However, the distributor did not inform the manufacturer that it had found a buyer until October 30.
In the meantime, due to a strike at the manufacturer’s leading competitor, the price of high-speed computers rose rapidly during the month of October. By the end of the month, the market value of the computer in question was $70,000. Because of the increase in the value of the computer, the manufacturer does not want to deliver the specified computer to the distributor for $50,000.
Which of the following provides the manufacturer the best defense if the distributor sues to enforce the contract?
A The increase in value of the computer makes the contract unconscionable.
B There has been a failure of a condition precedent.
C A case of mutual mistake exists because of the word processing error regarding the delivery date.
D There has been a failure of a condition subsequent.
B
By oral agreement, the written agreement between the manufacturer and the distributor was not to take effect unless the distributor notified the manufacturer in writing by October 7 that it (the distributor) had obtained a buyer. The distributor did not provide notice that it had found a buyer until October 30. Generally, under the parol evidence rule, when the parties express their agreement in a writing with the intent that it embody the final expression of their bargain, any other expressions-written or oral-made prior to the writing, as well as any oral expressions contemporaneous with the writing, are inadmissible to vary the terms of the writing. However, if a party asserts that there was an oral agreement that the written contract would not become effective until a condition occurred, all evidence of the understanding may be offered and received. The rationale is that the written agreement is not being altered by parol evidence because the written agreement never came into being. Here, the notification by October 7 was a condition precedent to the effectiveness of the contract. Thus, evidence of the oral agreement is admissible. Since the contract never became binding, the manufacturer has no obligation to deliver the computer for $50,000 or otherwise. (D) is incorrect because the condition that failed was precedent rather than subsequent. The condition was both precedent to the agreement itself and phrased in condition precedent terms. A condition subsequent is one the occurrence of which cuts off an already existing absolute duty of performance. (A) is incorrect because contractual duties will be discharged by unconscionability only if, at the time the contract was made, it was one-sided and terribly unfair to one of the parties. Unequal bargaining positions are usually required. Here, at the time the contract was made, nothing about it seemed unfair, and the subsequent increase in price does not render the contract unconscionable. (C) is incorrect because the mistake regarding the delivery date is a mere clerical error, rather than a mistake of fact going to a point that is material to the transaction. As such, this is not the type of mistake that would relieve either or both of the parties of their obligations under the contract.
A homeowner hired a contractor to make some improvements on his house. They entered into a written contract providing that the contractor would do the improvements for $5,000. Shortly after the contract was signed, the contractor told the homeowner to give the money to his (the contractor’s) daughter when the job was finished, adding, “She is getting married soon and I want her to have a nice wedding present from me.” The daughter was aware that her father made this statement to the homeowner. She married, but soon thereafter the contractor told the homeowner to pay him the $5,000, and not the daughter, because his son-in-law had a gambling problem and would probably use the money to bet at the racetrack.
What is the best argument in favor of the daughter’s being able to recover $5,000?
A Statute of Frauds.
B Parol evidence rule.
C The daughter was an intended third-party beneficiary.
D The daughter married in reliance on the promise.
D
The daughter’s best argument for recovery is that she married in reliance on the contract (detrimental reliance), although she will probably be unsuccessful. Here, the daughter was a gratuitous assignee (because she gave no consideration) and her rights under the contract were revoked. Thus, her strongest argument will be one that nullifies the revocation. Under the doctrine of detrimental reliance, a promise will be enforced to the extent necessary to prevent injustice if it was made with a reasonable expectation that it would induce reliance, and such reliance was in fact induced. The problem with this argument here is that it is not clear that the daughter relied on the promise to give her $5,000, because she already had planned to get married. However, none of the other choices is a possible argument, so (D) is her best choice. (A) would not help her because the Statute of Frauds is a defense to enforcement of certain contracts when there is no writing, including contracts where the consideration is marriage. Here the daughter is seeking to enforce the contract, not prevent its enforcement. (B) is incorrect because the parol evidence rule only prevents the introduction of prior or contemporaneous oral statements to contradict the terms of an integrated written contract. Here, the statement that gave the daughter her rights and the one that took them away were both subsequent oral statements. (C) does not help her because she was not an intended third-party beneficiary. If a contract between two parties contemplates performance to a third party, that third party may have rights to enforce the contract. To do so, the third party must be an intended beneficiary at the time the contract was made (e.g., designated in the contract). An assignment, on the other hand, is a contract that does not contemplate performance to a third party when the contract is made. Rather, later one of the parties transfers his rights to another. Here, the contractor and the homeowner signed their contract and later the contractor assigned his rights to his daughter. Thus, the daughter was not an intended third-party beneficiary who could enforce the agreement, but merely an assignee who gave no consideration for the assignment. As such, the contractor was free to revoke the assignment, and his daughter cannot recover the $5,000.
