Mixed Questions - Set 17 Flashcards
A criminal suspect filed an action in federal district court against the police officer who arrested him and the city that employed the officer, claiming that the officer beat him even though he was not resisting arrest. The suspect’s action asserted a battery claim against the police officer and a federal statutory claim against the city for violation of the suspect’s civil rights. The suspect and the police officer are citizens of State A, and the city in which the arrest took place is in State A. The action seeks $50,000 each from the police officer and the city.
Does the federal district court have subject matter jurisdiction over either of the claims?
A The court has federal question jurisdiction over the federal statutory claim against the city and supplemental jurisdiction over the tort claim against the police officer.
B The court has federal question jurisdiction over the federal statutory claim against the city, but it does not have subject matter jurisdiction over the tort claim against the police officer because the amount of that claim is too small.
C The court has federal question jurisdiction over the federal statutory claim against the city, but it lacks subject matter jurisdiction over the tort claim against the police officer because it is a state law claim between two citizens of the same state.
D The court does not have subject matter jurisdiction over either claim because the amount of each claim is too small.
A
The court has subject matter jurisdiction over both claims. Federal question jurisdiction is available when the plaintiff, in his well-pleaded complaint, alleges a claim that arises under federal law. Here, the suspect claims that his civil rights were violated, which is a valid federal claim; thus, the court has federal question jurisdiction over that claim. The battery claim against the police officer does not arise under federal law, but rather under state law. However, when the federal court has subject matter jurisdiction over one claim, it has discretion to exercise supplemental jurisdiction over related claims that derive from the same common nucleus of fact and are such that a plaintiff would ordinarily be expected to try them in a single judicial proceeding. Here, the suspect’s claim against the city is derived from the officer’s battery, which is the basis of the state law claim. As a result, the two claims arise from the same nucleus of common fact. Thus, the battery claim may be heard in federal court under supplemental jurisdiction. (B) and (D) are incorrect for similar reasoning. It is true that diversity of citizenship jurisdiction does not exist because the claims are too small (and complete diversity does not exist between the parties); however, there is no minimum amount in controversy requirement for supplemental claims. Likewise, (C) is incorrect because complete diversity is not an issue at all when the underlying claim (i.e., the claim invoking the court’s original jurisdiction) is based on federal question jurisdiction.
A national fast food franchisor filed an action against one of its franchisees, alleging breach of contract. Both parties are corporations. The franchisor alleged that the franchisee had failed to pay the franchisor the requisite percentage of the franchisee’s profits as required by the franchise contract. The franchisor timely served on the franchisee corporation a notice of deposition, which named the franchisee corporation as the deponent and which stated that the deposition would inquire into the accounting methods and accounting records of the franchisee corporation.
How should the defendant franchisee corporation respond to the fact that the notice of deposition does not name a person to be deposed?
A It may safely ignore the notice.
B It should alert the franchisor to the flaw in the notice of deposition.
C It should file a motion for a protective order.
D It should designate a person who will testify on its behalf about its accounting methods and accounting records.
D
The franchisee corporation should designate a person who will testify on its behalf about its accounting methods and records. When giving notice of deposition to an organization, a party may name the organization and state with reasonable particularity the matters to be covered. The organization then should designate individuals to testify on its behalf. [Fed. R. Civ. P. 30(b)(6)] Therefore, (A), (B), and (C) are incorrect because the notice to an organization does not have to name a person to be deposed.
An investor owned two adjacent lots in a downtown area, one fronting directly on a public street and the other behind the first. The investor ran a small dry cleaning business on the lot next to the street, and had built a café on the rear lot. Because the rear lot had no access to any public street, the investor used the parking lot of the dry cleaning business, which extended from the street all the way back to the rear lot, for access to the café. The café was only open during the tourist season, from May through September. After several years, the investor sold the rear lot to a chef by a deed that granted an easement over the dry cleaning business’s parking lot, to be used as an accessway to the café for the chef and her customers. The chef promptly recorded the deed.
Two years later, in February, the investor sold the dry cleaning lot to a sub sandwich franchise. The deed did not mention the easement previously granted to the chef. The franchise immediately demolished the small dry cleaning building and constructed its own restaurant. An outdoor patio area completely blocked access to the chef’s rear lot. Because the chef’s café was closed for the winter, nothing came of the franchise’s construction until April, when the chef returned to open her café for the summer season. The shortest alternate route over other parcels from the chef’s lot to a public street would have to pass through several buildings and lots.
If the chef brings an action to compel the sub sandwich franchise to demolish the outdoor patio, how should the court rule?
A For the franchise, because its deed contained no mention of the access easement.
B For the franchise, because construction of the outdoor patio extinguished the chef’s rights to the access easement.
C For the chef, because ownership of the easement gives her the right to use it for access to her lot.
D For the chef, because she has no other access to her lot.
C
The court should rule for the chef because her easement gives her the right to use the sub sandwich franchise’s property for access to her lot. An easement is an interest in land that gives the holder a right to use the land for certain purposes. Here, the investor granted the chef an easement to use a portion of his property for access to her lot. The presumption when an easement is granted is that it is perpetual unless otherwise stated. Thus, the chef’s easement was perpetual and was not destroyed by the transfer of the servient tenement (the investor’s property) to the sub sandwich franchise. Moreover, the easement is valid against the franchise because it was recorded. Easements, like other interests in land, are good against subsequent holders of the burdened (servient) tenement as long as the interest is recorded. The facts here state that the chef properly recorded her easement, so it is good against the franchise; thus, (C) is correct. (A) is incorrect because the chef’s recorded deed is deemed to be constructive notice of the easement; mention of the easement need not be included in the sub sandwich franchise’s deed. A thorough search of the title index would have revealed that the investor, the franchise’s predecessor in title, gave the easement to the chef. (B) is incorrect because the obstruction of the chef’s easement did not continue for the statutory period required to terminate easements by prescription. To terminate an easement by prescription, the owner of the servient tenement must openly and nonpermissively interfere with the use of the easement for the same statutory period as is necessary to acquire an easement by prescription. Although statutes vary, it would never be less than one year, and most statutes set the period at 10 or 20 years. (D) is incorrect. An easement by absolute necessity may be implied when the purchaser of part of a tract has no outlet to a public road or utility line except over the remaining land of the seller, but here, the chef does not need to rely on an implied easement because she has an express easement from the investor.
A landowner and his friend owned a tract of land as joint tenants with right of survivorship. The landowner executed a deed conveying his interest in the land to his grandson. The landowner gave the deed to his attorney with instructions to deliver it to the grandson upon the landowner’s death. The grandson first learned of the deed at the landowner’s funeral the following year. The next day, the grandson recorded the deed.
Who owns the land?
A The friend and the grandson, as joint tenants.
B The friend and the grandson, as tenants in common.
C The friend.
D The grandson.
C
The friend owns the land. A joint tenancy is a concurrent estate in land in which each co-tenant has an undivided right in the property and a right of survivorship-when one joint tenant dies, the property is freed of his concurrent interest and the survivor retains an undivided right in the property that is no longer subject to the interest of the deceased co-tenant. An inter vivos conveyance by one joint tenant, even a “secret” deed that is to take effect only upon the grantor’s death, severs a joint tenancy. However, although acceptance (presumed or otherwise) usually “relates back” to the date of delivery of the deed in escrow, many courts refuse to relate back an acceptance where it would defeat the rights of intervening third parties, such as surviving joint tenants. Thus, the grantee’s acceptance of the deed after the grantor’s death does not relate back to defeat the right of survivorship. Here, the grandson did not accept the deed until after the landowner’s death. In the meantime and because of that death, the friend’s right to the whole property had accrued to her as the surviving joint tenant. Thus, the grandson has no interest in the land, and (A), (B), and (D) are incorrect. Note that if the landowner’s conveyance had been effective, (B) rather than (A) would have been the correct answer. Upon severance of a joint tenancy by inter vivos conveyance, the new tenant holds as a tenant in common with the remaining joint tenant, and not as a joint tenant.
A homeowner returned home from work one day to find a robber in her living room. After a brief physical altercation, the homeowner ran to a bedroom, hid in a closet, and called 911 on her cell phone. Police officers arrived in less than two minutes and were able to apprehend the robber as he tried to run out the front door. Once they made sure he was locked in the police car, one of the officers went to speak with the homeowner about what had happened. She was still crying and shaking when the officer found her, and she said, “Thank you for catching him! He punched me in the head as I was running away!” The robber was charged with robbery and assault. Traumatized, the homeowner left the country and cannot be traced, despite the efforts of the prosecutor. The prosecutor intends to call the officer to testify as to the homeowner’s statement.
Should the court allow the officer’s testimony?
A Yes, because the homeowner’s statement is an excited utterance.
B Yes, because the homeowner’s statement is not testimonial.
C No, because admitting the homeowner’s statement would violate the defendant’s constitutional rights.
D No, because the homeowner’s statement is hearsay not within any exception.
C
The testimony should not be admitted. Under the Confrontation Clause, an accused has the right to be confronted by the witnesses against him. A hearsay statement will not be admitted-even if it falls within a hearsay exception-when: (i) the statement is offered against the accused in a criminal case; (ii) the declarant is unavailable; (iii) the statement was testimonial in nature; and (iv) the accused had no opportunity to cross-examine the declarant’s “testimonial” statement prior to trial. The Supreme Court has established that if the primary purpose of police interrogation is to enable the police to help in an ongoing emergency, statements made in the course of the interrogation are nontestimonial. When the primary purpose of the interrogation is to establish or prove past events potentially relevant to a later criminal prosecution, statements are testimonial. Here, the homeowner’s statement was hearsay because it was made out of court and is being offered for its truth-that the robber punched her in the head. It appears that the emergency had already resolved by the time the statement was made. Although only a few minutes had passed since the physical altercation and the homeowner was still upset, the robber no longer posed any danger because he was locked in the police car and the homeowner was aware of this (“Thank you for catching him!”). Therefore, the homeowner’s statements to the officer were testimonial. Because the homeowner is unavailable to testify at trial and the robber has had no opportunity to cross-examine the statements, admitting them at trial through the testimony of the officer would violate the Confrontation Clause. (A) is incorrect. Under the excited utterance exception, a declaration made by a declarant during or soon after a startling event is admissible if it relates to the startling occurrence and was made under the stress of excitement produced by the startling event. Here, finding a robber in one’s home is a startling event, and the homeowner was still under the stress of the excitement when she made the statement-she was crying and shaking. The statement likely qualifies as an excited utterance. However, even a hearsay statement that falls within an exception may be barred by the Confrontation Clause, as is the case here. (B) is incorrect. As stated above, when the primary purpose of the interrogation is to establish or prove past events potentially relevant to a later criminal prosecution, statements are testimonial. Because the homeowner’s statement was made for this purpose and not to address an ongoing emergency, it was testimonial in nature and its admission would violate by the Confrontation Clause. (D) is incorrect. As stated above, the homeowner’s statement falls within the exception for excited utterances, so it will not be excluded because of the hearsay rule. The testimony will be excluded because of the robber’s constitutional right to be confronted by the witnesses against him.QUESTION ID: ED07
A plaintiff sued a defendant and his employer for personal injuries. The plaintiff claimed that she was struck on the head by a wrench dropped by the defendant from a high scaffold, on which the defendant was working in the course of a construction project. To prove that it was the defendant who dropped the wrench, the plaintiff offers the wrench itself as evidence: The wrench bears the brand name “Craftsman” on the handle, and other evidence shows that the wrenches used by the defendant on the job are “Craftsman” brand wrenches.
Is the wrench admissible?
response - correct
Press Enter or Space to submit the answerANo, because but for the word “Craftsman” the wrench would be irrelevant, and the word “Craftsman” is inadmissible hearsay.BNo, because the wrench is irrelevant as it fails to show that it is more likely than not that the defendant was the person who dropped it.CYes, because the wrench is relevant direct evidence that it was the defendant who dropped the wrench and is not hearsay.CorrectDYes, because the wrench is relevant circumstantial evidence that it was the defendant who dropped the wrench and is not hearsay.
D
The word “Craftsman” is not hearsay, and the wrench is relevant circumstantial evidence on the issue of whether the defendant dropped the wrench that struck the plaintiff. Evidence is relevant if it tends to make the existence of any fact of consequence to the action more probable than it would be without the evidence. [Fed. R. Evid. 401] If the defendant uses “Craftsman” wrenches on the job, and the wrench that struck the plaintiff bears the brand name “Craftsman,” it is more probable than would otherwise be the case that the wrench that struck the plaintiff was dropped by the defendant. Thus, the wrench is relevant to prove that the defendant dropped the wrench. The wrench is circumstantial, rather than direct, evidence because a fact about it is being proved as a basis for an inference that another fact is true; i.e., the fact that the wrench bears the name “Craftsman” is proved to form a basis for inferring that the defendant dropped the wrench. Direct evidence is offered to prove a fact about the object as an end in itself. Here, the wrench bearing the name “Craftsman” is not being offered as a means of proving, e.g., that the wrench is in fact a “Craftsman” brand. Consequently, the wrench constitutes circumstantial evidence. In addition, when offered for the stated purpose, the wrench is not hearsay. Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. [Fed. R. Evid. 801(c)] The wrench is not being offered to prove the truth of the matter asserted (i.e., that the wrench is actually a “Craftsman”). It is of no significance whether the wrench being offered is a genuine “Craftsman.” What is important is that it bears the same name as those wrenches used by the defendant on the job. Thus, introduction of the wrench into evidence will not violate the rule against hearsay. (A) is incorrect because it states that the word “Craftsman” on the wrench creates a hearsay problem. As noted, the wrench is not being offered to prove its genuineness as a “Craftsman,” but rather to form the basis for an inference that it was dropped by the defendant. Thus, there is no hearsay problem. (B) reaches the incorrect conclusion that the wrench is not relevant. As has been explained above, the fact that the wrench that struck the plaintiff bears the name “Craftsman” tends to make more probable the material fact that the defendant is the person who dropped the wrench. Therefore, the wrench is relevant. Also, (B) states an incorrect test for relevance. To be relevant, the wrench need not show that it is more likely than not that the defendant dropped it; rather, the wrench must have some tendency to make it more probable than it would be without this evidence that the defendant dropped it. (C) is incorrect because the wrench is circumstantial, rather than direct, evidence that the defendant dropped the wrench that struck the plaintiff.
To better reflect the age range of its citizens, a city council passed an ordinance providing that no city employee could be hired or promoted unless that employee had reached the age of 55. A 25-year-old city mechanic in the lower pay classification had recently finished first on a promotional exam for the senior mechanic position, which would entitle him to a substantial increase in pay. His supervisor told him that, under instructions from the head of the city administrative office, a 56-year-old city mechanic who scored lower on the exam would be promoted to the position instead.
If the mechanic brings an appropriate action in federal court to challenge the ordinance, which party would bear the burden of proof?
A The mechanic, to prove that there is no compelling state interest furthered by the challenged ordinance.
B The mechanic, to prove that the challenged ordinance is clearly arbitrary and irrational.
C The city, to prove that its ordinance is necessary to further a compelling state interest.
D The city, to prove that there was a rational basis for enacting the challenged ordinance.
B
The burden of proof will be on the mechanic to prove that the challenged ordinance is arbitrary and irrational. Because age is neither a suspect classification nor the type of discrimination entitled to an intermediate level of constitutional scrutiny, the rational basis test applies in an equal protection analysis. Under that test, the challenger must show that the law has no rational basis, and the statute will be presumed constitutional unless a clear showing of arbitrariness and irrationality is made. (A) is wrong because it applies the compelling state interest test, which is the wrong standard. (C) and (D) are incorrect because they place the burden of proof on the wrong party. The mechanic has the burden. Also, (C) requires a stricter test than would be applied.
Congress created a seven-member safety commission to investigate and make recommendations to Congress for new fireworks safety laws, to make further rules for establishing safety and performance standards, and to prosecute violations of these safety standards. The chairman of the commission was appointed by the President. Three members were selected by the Speaker of the House of Representatives, and three members were selected by the President pro tempore of the Senate. An organization with proper standing seeks to enjoin enforcement of the commission’s rules.
Which of the following presents the strongest constitutional argument that the organization can make against the validity of the commission?
A The commerce power does not extend to activities occurring solely within a state.
B Legislative power may not be delegated by Congress to an agency in the absence of clear guidelines.
C The organization is denied due process of law because it is not represented on the commission.
D The commission lacks authority to enforce its standards because some of its members were appointed by Congress.
D
The strongest argument is that the commission lacks authority to enforce its standards. The Appointments Clause of the Constitution permits Congress to vest appointments of inferior officers only in the President, the courts, or the heads of departments. Enforcement is an executive act; therefore, Congress cannot appoint members of a commission that exercises enforcement powers. In these facts, the safety commission consists of some members appointed by Congress. This commission therefore violates the Appointments Clause of the Constitution because it has enforcement powers, since it can prosecute violations. Legislative power can be delegated even under vague guidelines without creating an unconstitutional delegation. Thus, (B) is incorrect. (A) is incorrect because the commerce power extends to many activities occurring solely within a particular state, if, taken as a whole, the activities in question have a substantial economic effect on interstate commerce. There is no constitutional provision requiring that a party or group to be regulated be represented on the commission that regulates it. (C) is therefore incorrect.
A woman was crossing the street at a crosswalk, but did not look both ways. The woman was hit by a truck, and immediately afterwards, she was struck by a car. As a result of these collisions with the vehicles, the woman suffered severe injuries. Although it was impossible to determine which portion of the woman’s injuries was caused by the driver of the car and which was caused by the truck driver, at the trial of the woman’s suit, the jury determined that the driver of the car was 20% negligent, that the truck driver was 40% negligent, and that the woman was 40% negligent. It was further determined that the woman had suffered $100,000 in damages. The woman had already received $10,000 from her group medical insurance plan. The driver of the car had a $500,000 auto liability insurance policy, and the truck driver is now insolvent.
How much will the woman recover in damages from the driver of the car?
A $90,000.
B $60,000.
C $50,000.
D $20,000.
B
The woman will recover $60,000. Under pure comparative negligence, which you should assume is the rule unless the question specifies otherwise, the plaintiff may recover no matter how great her negligence. In this case, the woman has suffered damages of $100,000. Because she was 40% negligent, she may recover only $60,000 ($100,000 less $40,000). Therefore, (B) is correct, and (A) is wrong. Absent a statute, damages are not reduced or mitigated because of benefits received from collateral sources (e.g., health insurance). Thus, the woman’s receipt of $10,000 under her insurance plan does not diminish her recovery. (C) is therefore wrong. The driver of the car and the truck driver are jointly and severally liable for the woman’s injuries because their negligent acts combined to proximately cause an indivisible injury to the woman. Because the driver of the car and the truck driver are jointly and severally liable, the woman may recover the entire $60,000 from the driver of the car. Thus, (D) is wrong.
The owner of a small computer consulting firm was attending the annual trade meeting of the computer industry and spoke with the owner of a second consulting firm about doing joint projects. The owner of the second firm replied by rejecting the idea immediately, stating that she believed that the first owner was incompetent. A sales representative of a computer supply firm overheard the remark. The owner of the first firm sued the owner of the second firm for defamation.
If the first owner does not prevail in this lawsuit, what will be the likely reason?
A It was not reasonably foreseeable that the second owner’s remark would be overheard.
B The second owner did not know that her remark would be overheard.
C There was no publication.
D The sales representative was not a party to the conversation.
A
If the plaintiff does not prevail, it will be because it was not reasonably foreseeable that the defendant’s remark would be overheard, and therefore the fault requirement for the publication element would not be satisfied. To establish a prima facie case for defamation, the following elements must be proved: (i) defamatory language on the part of the defendant; (ii) the defamatory language must be “of or concerning” the plaintiff (i.e., it must identify the plaintiff to a reasonable reader, listener, or viewer); (iii) publication of the defamatory language by the defendant to a third person; and (iv) damage to the reputation of the plaintiff. The second owner’s statement constitutes defamatory language because it adversely affects the first owner’s reputation by attacking his competency. The publication requirement is satisfied when there is a communication to a third person who understands it. However, the communication to the third person must be made either intentionally or negligently; if it was not reasonably foreseeable that the defamatory statement would be overheard by the sales representative, the fault requirement for the publication element is not satisfied. (B) is incorrect. The plaintiff could prevail even if the defendant did not know that her remark would be overheard as long as it was reasonably foreseeable that it could be overheard. (C) is incorrect because there in fact was a publication, i.e., there was a communication, albeit not intentionally made, to the sales representative, who would reasonably have understood it to be defamatory. (D) is incorrect because there is no requirement that the third party be a party to the conversation-the third party need only be a reader, listener, or viewer.
In lieu of a snack vending machine, a small company put candy bars into a box in the office kitchen. Using the honor system, employees were asked to put a dollar into an envelope in the box if they took out a candy bar. The office manager would periodically take the money collected in the envelope and use it to purchase new candy. One night while cleaning the kitchen, the company’s night janitor impulsively took all the money from the envelope. His actions were recorded on the company’s newly installed security camera. The janitor later admitted that he took the money to fund illegal dogfights.
Which of the following crimes did the janitor commit?
A Embezzlement, because the janitor took money that rightfully belonged to his employer.
B Larceny, because he did not intend to purchase replacement candy with the money.
C Robbery, because the theft was motivated by an underlying felony.
D No crime, because the money in the envelope was voluntarily abandoned by his co-workers.
B
The janitor is guilty of larceny, which consists of the taking and carrying away of the tangible personal property of another by trespass, with intent to permanently deprive the person of his interest in the property. The janitor’s actions meet this definition. (A) is wrong because the janitor was not the employee responsible for the candy money. Embezzlement requires the fraudulent conversion of property of another by a person in lawful possession of that property. Here the janitor was never in lawful possession of the money so it was not an act of embezzlement. (C) is also wrong. Motive is not what distinguishes larceny from robbery. Robbery is defined as a taking of personal property of another from the other’s person or presence, by force or intimidation, with the intent to permanently deprive her of it. Robbery is essentially an aggravated form of larceny in which the taking is accomplished by force or threat of force. Here there was no force involved. (D) is wrong because, even though the employees were on their honor to contribute money for the candy, the money was not just abandoned by them. The money was exchanged for candy, originally purchased by the company, and thus belonged to the company at the time the janitor took it.
A wholesale seller sent a fax to a manufacturer with whom he had done business before: “Send 500 ‘Madewell’ chairs at your usual price.” The manufacturer responded, also by fax, that the line was being discontinued, but he would ship his last 500 chairs at $75 per chair, his usual price. The manufacturer immediately began the paperwork for processing the order and started preparing and packing the chairs for shipment. Before the chairs could be delivered, the wholesaler canceled his order, noting that the price was too high. The day after receiving the wholesaler’s cancellation, the manufacturer sold the chairs to another buyer for $75 each.
If the manufacturer sues the wholesaler for damages, how much should he recover?
A Nothing, because this was a contract between merchants and the wholesaler canceled within a reasonable time.
B Nothing, because the manufacturer was able to cover by selling the chairs at the same price he would have received from the wholesaler.
C $37,500, the full contract price, because the wholesaler breached the contract and $75 per chair was a fair price.
D The incidental costs of preparing the paperwork and other office costs connected with preparing and packing the chairs for shipment to the wholesaler.
D
The manufacturer will recover only his incidental damages, i.e., the costs of preparing to ship the chairs. An offer calling for shipment of goods, such as the offer here, may be accepted by prompt shipment with notice or by a promise to ship. Acceptance forms a contract. Here, the manufacturer accepted the wholesaler’s offer by promising to ship, and a contract was formed. The wholesaler breached the contract by canceling his order. When a buyer breaches by repudiating his offer, as the wholesaler did here, the seller has a right to recover his incidental damages plus either the difference between the contract price and the market price or the difference between the contract price and the resale price of the goods, reduced in either case by any expenses saved as a result of the breach. Here, the manufacturer made what he would have if the sale with the wholesaler had gone through-there was no difference between the contract price and the resale price. Thus, the manufacturer would be limited to his incidental damages. Lost profits would not be available because the chairs were the last ones that the manufacturer had and would have because the line was being discontinued. Therefore, the manufacturer would not have been able to sell another set of 500 chairs to another potential buyer. (A) is incorrect because there is no rule under the UCC, which governs the contract here, that makes contracts between merchants cancelable within a reasonable time. (B) is incorrect because, as indicated above, the UCC allows the seller to recover incidental damages. (C) is incorrect because the UCC seeks only to put the nonbreaching party in as good a position as it would have been in had the other party performed. Here, awarding the manufacturer the full contract price would put him in a better position than performance would have, because it would give him a double recovery for selling the same goods. (The result would be different, however, if the manufacturer had had more chairs to sell, because in that case, the breach would have cost the manufacturer additional sales-i.e., he could have sold to the wholesale seller and to the second buyer.)
A park board in a large suburb announced that it was accepting bids for renovation work on its recreation center. A builder advertised for sub-bids for the electrical work, and a local electrician submitted to the builder by electronic bidding service a sub-bid of $130,000. However, due to the bidding service’s negligence, the sub-bid that the builder received from the electrician read $30,000 instead of $130,000. Because this was the lowest sub-bid that the builder received for the electrical work, and $60,000 less than the next lowest sub-bid, the builder awarded the subcontract to the electrician. Based in part on the electrician’s sub-bid, the builder came up with a bid for the job that beat out all of the competition and won the job.
What is the electrician’s best argument to successfully refuse to perform the resulting contract?
A The contract would be unconscionable.
B The builder should have been alerted to the existence of a mistake in the sub-bid.
C The bidding service, not the electrician, was responsible for the faulty bid.
D The builder’s failure to check out all sub-bids precludes enforcement of the contract.
B
The electrician’s best argument would be that the great difference between the electrician’s sub-bid, as transmitted, and the next lowest sub-bid should have alerted the builder to the obvious mistake in the electrician’s sub-bid. Typically, if only one of the parties entering into a contract is mistaken about facts relating to the agreement, the unilateral mistake will not prevent formation of a contract. However, if the nonmistaken party is or had reason to be aware of the mistake made by the other party, the contract is voidable by the party who made the mistake. Thus, the electrician’s best argument is that the $60,000 difference between the electrician’s bid of $30,000 and the next lowest bid should have alerted the builder to the existence of a mistake, so the electrician should be able to refuse to perform the contract. (A) is incorrect because the concept of unconscionability concerns clauses in a contract that are so one-sided as to be unconscionable under the circumstances existing at the time the contract was formed. The concept is typically applied to one-sided bargains where one of the parties has substantially superior bargaining power and can dictate the terms of the contract to the other party. That is not what happened under the facts here. Rather, there was a unilateral mistake and, as discussed above, the builder should have known of the mistake. (C) is incorrect because, under the prevailing view, where there is a mistake in the transmission of an offer by an intermediary, the offer as transmitted is operative unless the other party knew or should have known of the mistake. Thus, the electrician would not be excused from performance based on the faulty transmission alone. (D) is incorrect because a builder has no duty to check out all bids and, thus, the builder’s failure to check out the bids would not, by itself, be grounds for rescission.
Suspecting criminal activity, a police officer acting without a warrant peeked through a small opening in the shutters of an apartment. The officer observed the apartment’s tenant and the defendant making methamphetamine. The officer immediately entered the apartment and arrested the tenant and the defendant, and he confiscated the ingredients for the methamphetamine, the tools used for methamphetamine production, and any completed methamphetamine for evidence. The search is later ruled invalid at a suppression hearing.
May the defendant now claim that her Fourth Amendment rights have been violated by the seizure of the ingredients, tools, and methamphetamine from the apartment?
A Yes, because the items will be used in evidence against her.
B Yes, if she was an overnight guest of the tenant.
C No, because she was not the owner or occupier of the apartment.
D No, unless she admits to ownership of the items.
B
The defendant can claim a reasonable expectation of privacy for Fourth Amendment purposes if she was an overnight guest of the owner of the place searched. To raise a Fourth Amendment claim of an unreasonable search or seizure, a person must have a reasonable expectation of privacy with respect to the place searched or the item seized. It is not enough merely that someone has an expectation of privacy in the place searched. The Supreme Court has imposed a standing requirement so that a person can complain about an evidentiary search or seizure only if it violates her own reasonable expectations of privacy. The Court has held that a person has a reasonable expectation of privacy any time (i) she owned or had a right to possession of the place searched, (ii) the place searched was in fact her own home, whether or not she owned or had a right to possession of it, or (iii) she was an overnight guest of the owner of the place searched. Thus, the defendant would have standing to challenge the search of the tenant’s apartment if she was an overnight guest of the tenant. (A) is incorrect because standing to raise a Fourth Amendment claim does not exist merely because a person will be harmed by introduction of evidence seized during an illegal search of a third person’s property. The person must establish that her own reasonable expectation of privacy has been violated. (C) is wrong because the fact that the defendant was not the owner or occupier of the apartment does not preclude her from challenging the search. As discussed above, an overnight guest may also have a reasonable expectation of privacy in the premises for purposes of the Fourth Amendment. (D) is incorrect. Although the defendant may have standing to object to the seizure of items if she claims ownership of them, that is not the only basis for raising a Fourth Amendment claim; she will have standing to object to the search of the apartment under the circumstances in (B) regardless of whether she claims ownership of the methamphetamine.
