Mixed Questions - Set 18 Flashcards
Pursuant to a contract, a landscaper performed $30,000 of landscape work for a homeowner. By coincidence, the homeowner and the landscaper were involved in an automobile accident that was unrelated to the landscape work. The homeowner was injured in the accident and sued the landscaper in federal district court for negligence, seeking $100,000 in damages. The homeowner and the landscaper are citizens of different states.
May the landscaper assert and maintain a counterclaim against the homeowner for breach of contract, seeking the $30,000 due under the landscape contract?
A No, because the Federal Rules of Civil Procedure permit a counterclaim only if the counterclaim arises from the same transaction or occurrence as the plaintiff’s initial claim.
B No, because, while the court has diversity of citizenship jurisdiction over the homeowner’s negligence claim and the Federal Rules of Civil Procedure permit the counterclaim, the federal court does not have subject matter jurisdiction over the landscaper’s contract claim.
C Yes, because the Federal Rules of Civil Procedure permit the counterclaim, and the court has diversity of citizenship jurisdiction over both claims.
D Yes, because the court has diversity of citizenship jurisdiction over the homeowner’s negligence claim, and it has supplemental jurisdiction over the landscaper’s contract claim because it is a compulsory counterclaim.
B
The landscaper cannot assert and maintain a counterclaim against the homeowner for breach of contract because the federal court does not have subject matter jurisdiction over the contract claim. The court has diversity of citizenship jurisdiction over the negligence claim because there is complete diversity and the amount in controversy exceeds $75,000. A compulsory counterclaim (a claim that arises out of the same transaction or occurrence as the plaintiff’s claim) does not need to meet the jurisdictional amount requirement for diversity jurisdiction. However, a permissive counterclaim (a claim that arises out of an unrelated transaction) must meet the jurisdictional amount requirement. Here, the landscaper’s contract claim would be a permissive counterclaim because it is unrelated to the negligence claim arising from the accident. Therefore, the claim’s amount in controversy would have to exceed $75,000. The claim is only for $30,000; therefore, the court does not have subject matter jurisdiction over the contract claim. (A) is incorrect because a defendant may assert claims against a plaintiff that are unrelated to the plaintiff’s claims, provided there is subject matter jurisdiction. (C) is incorrect because the court does not have diversity jurisdiction over the contract claim. (D) is incorrect because the contract claim is not a compulsory counterclaim.
A husband and wife were traveling in a car with the wife driving when they were in an accident with a truck. The accident occurred in a jurisdiction that followed the traditional rule as to joint and several liability among tortfeasors. The husband sued the truck driver in federal district court. The truck driver, contending that the wife was an indispensable party, filed a motion to dismiss the action because the husband did not join his wife as a party to the action.
How should the court rule on the truck driver’s motion?
A Grant the motion, because the wife is an indispensable party.
B Deny the motion and order service of process on the wife to make her a party, provided she is subject to the court’s personal jurisdiction.
C Deny the motion, because the wife and the truck driver cannot be joined as co-defendants in the action.
D Deny the motion, because the wife is not “needed for just adjudication.”
D
The court should deny the truck driver’s motion because the wife is not “needed for just adjudication.” When deciding whether an absentee party is indispensable, the court considers a number of factors. However, the Supreme Court has held that a joint tortfeasor subject to joint and several liability is not a person needed for just adjudication. [Temple v. Synthes Corp., 498 U.S. 5 (1990)] Because the wife here is a joint tortfeasor subject to joint and several liability, she is not an indispensable party in this case. Therefore, (D) is correct, and (A) and (B) are incorrect. (C) is incorrect because the wife could be joined as a co-defendant if the husband chose to do so; a spouse’s immunity from being sued by the other spouse has been abolished in almost all jurisdictions.
A landlord entered into a written lease of a bakery for a term of 25 years with a baker. The parties agreed to a right of first refusal if the bakery was offered for sale during the term of the lease. The lease also permitted assignments and subleases on notice to the landlord. Three years later, the baker retired and, after notifying the landlord, transferred the lease to a chocolatier. Twenty-one years later, the landlord entered into a contract with a buyer for the sale of the bakery for $100,000. The landlord had informed the buyer of the lease but had forgotten about the right of first refusal. When the chocolatier learned of the sale to the buyer, she informed both the landlord and the buyer that she wanted to exercise her option and was prepared to purchase the bakery for the contract price. The jurisdiction’s Rule Against Perpetuities is unmodified by statute.
Can the chocolatier enforce the option?
A Yes, because an option held by a tenant on leased property cannot be separated from the leasehold interest.
B Yes, because the option touches and concerns the leasehold estate.
C No, because the transfer to the chocolatier made the option void under the Rule Against Perpetuities.
D No, because the option was not specifically included when the lease was transferred to the chocolatier.
B
The chocolatier can enforce the option to purchase because it is a covenant that runs with the land. When a tenant makes a complete transfer of the entire remaining term of his leasehold interest, it constitutes an assignment. The assignee and the landlord are then in privity of estate, and each is liable to the other on all covenants in the lease that run with the land. The covenant runs with the land if the original parties so intend and the covenant “touches and concerns” the leased land, i.e., burdens the landlord and benefits the tenant with respect to their interests in the property. Here, the transfer of the lease to the chocolatier was an assignment, making all covenants in the lease that run with the land enforceable by the assignee. The right of first refusal burdens the landlord’s power of alienation over the bakery, and there is nothing to indicate that the parties intended the option to be personal to the baker. Hence, the chocolatier can enforce the option and purchase the property. (A) is incorrect because most courts do not bar an option from being separated from the leasehold interest if that is the parties’ intent. The tenant may transfer the leasehold interest while retaining the option to purchase, or vice versa. Whether the option in this case stayed with the leasehold interest depends on whether it was a covenant that runs with the land. (C) is incorrect because options and rights of first refusal are not subject to the Rule Against Perpetuities when connected to leaseholds. If a tenant assigns the leasehold, the option generally is considered a running covenant, exercisable by the assignee absent a contrary intent. If the option had been separated from the leasehold estate, so that it was no longer exercisable by the tenant, the Rule would have become applicable to the option (and it would have invalidated the option here because it could have been exercised more than 21 years after a life in being). Here, however, the option was not severed from the leasehold; the entire interest was transferred to the chocolatier as the new tenant. Hence, the Rule Against Perpetuities is not applicable. (D) is incorrect because, as discussed above, the option is a covenant that runs with the land regardless of whether it was specified in the assignment to the chocolatier. The chocolatier, as the assignee of the leasehold, can enforce the option on privity of estate grounds.
A landowner owned two adjoining parcels of land. The landowner sold the western parcel to a buyer by a deed that contained the following clause: “Grantee promises for himself, his heirs, successors, and assigns to not erect a structure over two stories on the land.” The buyer recorded the deed and built a two-story house on the property and lived there for 30 years, after which he sold the land to a movie star by a deed that did not contain the structure height restriction. The movie star decided to tear down the existing house on the land and erect a three-story house. Her neighbor, who purchased the eastern parcel from the landowner 10 years earlier, discovers that the movie star’s house will be larger than his and files suit to enforce the covenant.
Who will prevail?
A The neighbor, because the restrictive covenant runs with the land.
B The neighbor, because privity is not required to enforce an equitable servitude.
C The movie star, because her deed did not contain the restrictive covenant.
D The movie star, because she had no notice of the structure height restriction.
A
The neighbor will prevail because the restrictive covenant runs with the neighbor’s land, which is benefited, and with the movie star’s land, which is burdened. A covenant at law will run with the land and be enforceable against subsequent grantees if: (i) the contracting parties intended it to run; (ii) there is privity of estate between the original promisor and promisee (horizontal privity), as well as between the promisor and his successor (vertical privity); (iii) the covenant touches and concerns the property; and (iv) the burdened party has notice of the covenant. Here, the use of the words “heirs, successors, and assigns” in the covenant shows the intent for the covenant to run. The original parties were in horizontal privity because at the time the buyer entered into the covenant, he and the landowner shared an interest in the land independent of the covenant-as grantor and grantee. Because the neighbor and the movie star hold the entire interest in the parcels held by the landowner and the buyer, respectively, there is vertical privity. The covenant touches and concerns the land because it diminishes the movie star’s rights in connection with her enjoyment of the western parcel. Finally, the movie star has notice of the covenant because it was recorded in her chain of title (in the landowner-buyer deed). Thus, the covenant runs with the land. (B) is incorrect because although privity is not required to enforce an equitable servitude, the covenant here runs with the land at law. Moreover, privity does exist under these facts, as explained above. (C) is incorrect. The fact that the structure height restriction was not contained in the movie star’s deed does not shield her from enforcement of the covenant because it was contained in a previous deed relating to the property (record notice). (D) is incorrect because the movie star had at least record notice of the restriction.
In an action by the plaintiff against the defendant, one of the issues is whether the defendant is a licensed physical therapist. Normally, the names of all licensed physical therapists are registered with the office of the state Department of Professional Registrations. The plaintiff wishes to introduce a certified document, signed by the chief registrar of the department (who cannot be located), stating that an examination of the department’s rolls does not disclose the defendant’s name.
Should the document be admitted?
A Yes, because a statement of absence from public record is admissible.
B Yes, because the chief registrar is unavailable.
C No, because the document is hearsay not within an exception.
D No, because the document is not self-authenticating.
A
The document should be admitted. Related to the exception to the hearsay rule for public records and other official writings, Federal Rule of Evidence 803(10) provides that evidence in the form of a certification or testimony from the custodian of public records that she has diligently searched and failed to find a record is admissible to prove that a matter was not recorded, or, inferentially, that a matter did not occur. Here, the defendant’s status as a licensed physical therapist would normally be revealed in the records of the department. The document here at issue is admissible, under the foregoing hearsay exception, as a means of proving that the defendant is in fact not licensed. (B) is incorrect because this hearsay exception does not require unavailability of the declarant. (C) is incorrect because, as explained above, the statement of absence from public record forms an exception to the hearsay rule. (D) is incorrect because a public document that has been signed and certified is self-authenticating under Rule 902; hence, no testimonial sponsorship for the document is required.
A pedestrian sued a driver after the driver’s car hit the pedestrian at an intersection. The pedestrian claims that the driver ran a stop sign and the driver contends that the pedestrian darted out into traffic. The pedestrian seeks to call her friend to the stand to testify that the pedestrian is an extremely cautious person who invariably obeys traffic laws.
Should the judge admit the friend’s testimony?
A Yes, because it is proper habit evidence.
B Yes, because it tends to show that the pedestrian is less likely to have darted out into traffic.
C No, because the pedestrian’s character is not directly in issue.
D No, because the friend is a biased witness.
C
This is character evidence because it describes the pedestrian’s general tendency to act cautiously. Evidence of a person’s character is generally irrelevant and inadmissible in a civil case except in rare circumstances where character is directly in issue (e.g., defamation or negligent hiring cases). Here, because the pedestrian’s character is not directly in issue in this civil personal injury lawsuit, the friend’s testimony is inadmissible. (A) is incorrect. Under Federal Rule 406, evidence of a person’s habit may be admitted to prove that on a particular occasion the person acted in accordance with the habit. Habit describes one’s regular response to a specific set of circumstances, while character describes one’s disposition in respect to general traits. Since habits are more specific and particularized, evidence of habit is relevant and can be introduced in circumstances when it is not permissible to introduce evidence of character. Here, however, the friend’s testimony is character evidence, not habit evidence. The fact that the pedestrian is cautious and obeys traffic laws is not nearly specific enough to qualify as habit evidence-despite the use of the term “invariably.” (B) is incorrect. The answer choice recites the general rule of relevance-that is, evidence is relevant if it makes the existence of any fact of consequence to the determination of the action more likely or less likely than it would be without the evidence. However, despite meeting the low threshold for relevance, character evidence is generally inadmissible in civil cases to prove that a person acted in conformity with the trait during the events of the case. (D) is incorrect. Although the credibility of a witness may be impeached by showing that the witness is biased, that does not mean the testimony itself is inadmissible. Indeed, most witnesses testifying as to the habit or character of a person will have some sort of personal bias in favor of or against that person.QUESTION ID: ED06
Congress created the National Agency for Burglar Alarms (“NABA”), giving it the power to regulate both burglar alarm hardware and installation personnel. NABA adopted a regulation requiring that all burglar alarm installation companies be licensed, and providing that anyone installing an alarm without a license could be fined. The regulation also provided that any company in the installation business on the day the regulation was adopted automatically would receive a license, but to obtain a license thereafter, an applicant would have to show that he has worked as an installer at a licensed company for at least three years.
A man who has been installing alarm systems for eight years sold his installation business a few months before the NABA regulation was adopted and went to work for the purchaser servicing his old accounts. A few months after the NABA regulation was adopted, a representative from a national department store chain approached the man with an offer to hire him as an independent contractor to revamp the chain’s alarm systems. The man quit his job and applied for a NABA installer’s license. His application was denied because he was not in business on the day the NABA regulation was adopted and had worked for a licensed installer for only a few months. The man decided to install the alarm systems anyway.
Can the man properly be fined for installing alarms?
A Yes, because the NABA was established under Congress’s power to legislate for the general welfare, and Congress may take whatever steps are necessary and proper to enforce its laws.
B Yes, because the regulation falls within the scope of Congress’s commerce power, and Congress may delegate its authority to regulate as it has done here.
C No, because the regulation interferes with the man’s fundamental right to earn a living without a substantial justification and so violates the Privileges and Immunities Clause of Article IV, Section 2.
D No, because a government agency cannot itself levy fines for a violation of its regulations.
B
The man can be fined. Congress has the power to regulate alarm installation companies under the Commerce Clause because the clause permits Congress to regulate any local or interstate activity that, either in itself or in combination with other activities, has an effect on interstate commerce. Burglar alarm companies use instrumentalities of interstate commerce such as phone lines and have a cumulative effect on interstate commerce even though some may only do business locally. Hence, their activities can be regulated by Congress. The delegation to the NABA is valid because Congress has broad discretion to delegate its legislative power; the Supreme Court will uphold almost any delegation of congressional power. Therefore, the man can be fined. (A) is incorrect because it improperly mixes two concepts. Congress does not have the power to legislate for the general welfare-there is no federal police power-but rather Congress has the power to spend for the general welfare. (C) is incorrect because, even assuming that the regulation here interferes with the man’s right to make a living, it would not violate the interstate Privileges and Immunities Clause of Article IV because the clause restricts states, not the federal government. (D) is incorrect. Congress can provide that violation of an agency’s regulations is a criminal offense that can be enforced through the imposition of fines. Furthermore, an agency has the power to impose civil fines and penalties for a violation of its regulations.
A state’s highway speed limits were 65 miles per hour in its flat land regions and 55 miles per hour its mountainous regions. To reduce traffic fatalities and combat the fact that most of the vehicles on state highways were exceeding posted speed limits, the state legislature proposed banning the use of radar detectors. Citizens in the mountainous regions of the state, where most of the state’s highway fatalities occurred, generally supported the ban, but citizens in the flat regions of the state opposed the ban, so the legislature adopted a law banning use of radar detectors on any road with a speed limit below 60 miles per hour.
A driver whose car was equipped with a radar detector lived in the mountainous region of the state but frequently drove to the state’s flat region. While on a mountain highway with a posted speed limit of 55 miles per hour, the driver was pulled over by a state trooper for speeding. While approaching the driver’s car, the state trooper noticed that the driver’s radar detector was turned on. The trooper ticketed the driver for both speeding and illegal use of a radar detector. The driver challenges his ticket for use of the radar detector, arguing that it is unfair to allow people in the flat lands to use radar detectors while prohibiting residents of the mountainous region from using them.
Which of the following statements is correct regarding the burden of proof in such a case?
A The state will have to prove that the ban serves a compelling state interest.
B The state will have to prove that the ban is rationally related to a legitimate state interest.
C The driver will have to prove that the ban does not serve a compelling interest.
D The driver will have to prove that the ban is not rationally related to a legitimate state interest.
D
The driver will have to prove that the ban is not rationally related to a legitimate state interest. Whether the law here is examined under the substantive provisions of the Due Process Clause or the Equal Protection Clause, the analysis is the same: If no fundamental right or suspect or quasi-suspect classification is involved, the law will be assessed under the rational basis standard. Under that standard, government action will be upheld unless a challenger can prove that it is not rationally related to a legitimate government interest. Here, the right involved (using a radar detector) is not fundamental, and no suspect or quasi-suspect classification is involved. Thus, the regulation will be assessed under the rational basis standard. (A) is incorrect because, as explained above, the compelling interest standard does not apply when neither a fundamental right nor a suspect classification is involved. (B) is incorrect because, although it states the correct standard, it placed the burden of proof on the wrong party. The challenger must prove that the law is irrational; the government need not prove that it is rational. (C) is incorrect because it states the wrong standard (compelling interest). Moreover, if the compelling interest test were applicable, the driver would not have to prove that the standard was met; the burden would be on the government.
A boy planned to rob the local currency exchange, but he needed a getaway car and somebody to be a lookout. He asked his sister, who immediately refused and warned him against carrying it out. The boy showed his sister a gun, threatening to shoot her if she did not go along with the plan. The sister consented to help, and the pair left for the currency exchange, with the sister driving. When they arrived, the sister left the car running so that she could get away and contact the police while her brother was inside, but the boy ordered her to go inside with him. During the robbery attempt, the clerk pulled out a gun, and the boy and the clerk shot and killed each other.
If the sister is charged with the killing of the store clerk, should the jury find her criminally liable if it accepts the sister’s version of the facts?
A Yes, because duress is not a defense to murder.
B Yes, because the clerk’s death occurred in furtherance of and during the perpetration of a robbery in which the sister was participating.
C No, because the sister lacked the requisite intent.
D No, because the sister withdrew from the conspiracy to commit robbery and thus is not liable for any acts committed in furtherance of the conspiracy.
C
The sister is not criminally liable for the store clerk’s death. A defendant may, by virtue of her participation in a conspiracy, be liable for the crimes of all other conspirators if the crimes were committed in furtherance of the objectives of the conspiracy and were a natural and probable consequence of the conspiracy (i.e., were foreseeable). Furthermore, liability for felony murder would attach if the killing were committed during the course of a felony. Thus, the sister would be criminally liable for the killing of the clerk if she were a co-conspirator or if she were a principal to the underlying felony (the robbery). However, under the facts, the sister is neither because she lacked the requisite intent. Given the threat to her life, the sister did not freely enter into a conspiracy to commit robbery. (A) is incorrect because, while duress is not a defense to murder, it is a defense to the underlying felony, and thus is a defense to the felony murder charge. Here, the sister was acting under duress during the robbery, and thus she has a defense to the robbery charge. (B) is incorrect because, as stated above, under these facts duress is a good defense to the robbery charge and thus would be a good defense to the felony murder charge. (D) is also incorrect. Although a valid withdrawal would be a good defense to subsequent crimes of any co-conspirator, it is doubtful whether the sister in fact entered into a conspiracy in the first place. Because she never had the intent required for participation in the conspiracy, the jury would not be required to consider her defense of withdrawal.
A boater taking his new powerboat out on a large lake ran out of gas because of a defective seal in the gas tank. The defect was not discoverable by an ordinary inspection. His frantic signaling alerted the captain of a sightseeing boat passing by. The captain pulled up alongside to assist and attempted to restart the boat. A spark ignited a pool of gas that had leaked from the gas tank and collected in the lower part of the boat, causing an explosion and fire. The captain was severely burned and died from his injuries. The captain’s estate brought a wrongful death action based on strict liability against the powerboat dealer and the manufacturer. Evidence at trial established that the dealer had sold the manufacturer’s boats for years without any problems reported by customers.
Can the captain’s estate recover any damages from the dealer?
A Yes, unless the jury finds that the boater was negligent in failing to investigate where the gas had gone.
B Yes, because harm to someone in the captain’s position was a foreseeable result of the gas leak.
C No, because the dealer had no reason to anticipate that the manufacturer assembled the gas tank improperly.
D No, because the captain did not have a sufficient relationship to the boater to make the dealer liable for the captain’s death.
B
The captain’s estate can recover from the dealer on a strict products liability ground because the captain was a foreseeable bystander and the dealer is a commercial supplier. Recovery in a wrongful death action is allowed only to the extent that the deceased could have recovered in a personal injury action had he lived. The captain could have recovered from the dealer in a products liability action based on strict liability because the dealer is a commercial supplier of the boat and is liable if it sold a product that was so defective as to be unreasonably dangerous. The defect in the assembly of the gas tank was unreasonably dangerous because it allowed gas to leak out and collect where it could be ignited. The dealer would be liable to the captain, despite the fact that he was not in privity with the dealer, because he was a foreseeable plaintiff. The disabling effect of the gas leak made it foreseeable that someone passing by would come to the boater’s assistance and thereby come within the zone of danger from the leak (i.e., danger invites rescue). The explosion that resulted from the leak was the actual and proximate cause of the captain’s death. Therefore, the captain’s estate can recover damages from the dealer. (A) is wrong because, as with proximate cause analysis in ordinary negligence actions, the negligence of a subsequent actor is foreseeable and therefore not a superseding cause that would cut off the liability of the original tortfeasor. In any products liability case, the negligent failure of an intermediary to discover the defect or the danger does not void the commercial supplier’s strict liability. Hence, the boater’s negligence would be irrelevant. (C) is wrong because in products liability actions based on strict liability, the retailer may be liable even if it had no reason to anticipate that the product was dangerous or had no opportunity to inspect the product for defects. While the dealer could assert that defense if the action were based on negligence, the call of the question indicates that the action is based on a strict liability theory. Under strict liability, the dealer is liable simply because it is a commercial supplier of a product with a dangerous defect. (D) is wrong because the fact that the captain was not in privity with the dealer is irrelevant in a products liability action based on strict liability. Strict liability applies not only to buyers, but also to the buyer’s family, friends, and employees, and to foreseeable bystanders. As a rescuer, the captain was a foreseeable bystander to whom the dealer may be liable.
The plaintiff was exiting from a parking garage owned and operated by the city when he discovered that the exit ramp was blocked by construction barricades and a pile of broken-up concrete. No workers or detour signs were around and the plaintiff was in a hurry, so he backed up and drove down an entrance ramp that was clearly marked as such. As he came around a corner, his car was broadsided by a pickup truck. The plaintiff was seriously injured in the collision. A statute in the jurisdiction requires drivers to obey all traffic directional markings in both public and private parking lots and garages. The jurisdiction retains governmental immunity for municipalities.
If the plaintiff brings a lawsuit against the city to recover for his injuries, which of the following facts will be LEAST helpful in the city’s defense?
A The plaintiff was aware that another exit on the other side of the garage was open.
B The construction workers responsible for blocking off the exit ramp were employees of an independent contractor rather than the city.
C The city does not collect fees or make a profit in the operation of the garage.
D The pickup truck driver could have avoided the plaintiff but recognized him as an old enemy and deliberately ran into him.
B
The fact least helpful to the city’s defense of the plaintiff’s lawsuit is the identity of the workers who blocked the exit ramp. Under vicarious liability rules, a principal will be liable for the tortious acts of an independent contractor if the duty is nondelegable on public policy grounds; included is the duty of a possessor of land to keep its premises safe for its invitees. If the workers were negligent in leaving the ramp blocked without providing another means of exiting, the fact that they were not city employees would not absolve the city of liability; hence, their identity would be of no help to the city’s defense. (A) is incorrect because if the plaintiff was aware of an alternate route, he may have been contributorily negligent in exiting down the entrance ramp. A plaintiff’s contributory negligence may be established by violation of an applicable statute. However, as with a statutory duty imposed on a defendant, the plaintiff’s violation of the statute may be excused if compliance was beyond the plaintiff’s control. If no other means of exiting the garage were known to the plaintiff, he may be excused for violating the traffic statute; however, if he knew of an alternative exit, the city will probably be able to establish contributory negligence on his part by his violation of the statute, reducing his potential recovery. (C) is incorrect because whether the city collects fees and makes a profit in operation of the garage will be considered by the court in determining whether the jurisdiction’s governmental immunity applies. Where municipal immunity still exists, courts have limited its scope by differentiating between “governmental” and “proprietary” functions of the municipality. If the municipality is performing a function that might as well have been provided by a private corporation, the function may be construed as a proprietary one and no immunity will attach. The inference that a function is proprietary will be strengthened where the city collects revenues by virtue of providing the service. Hence, the fact that the city is not collecting revenues or making a profit in operating the garage will make it less likely that the function will be deemed to be proprietary and more likely that it will be deemed to be governmental and thus immune; in other words, it will be more helpful rather than less helpful in the city’s defense. (D) is incorrect because the pickup truck driver’s conduct under these circumstances would be deemed a superseding force that breaks the causal connection between any negligence on the part of the city and the plaintiff’s injury. Assuming that the city workers were negligent, the fact that an independent intervening force caused the injury generally would not cut off the city’s liability, because its negligence created a foreseeable risk of that harm occurring. However, where this foreseeable harm is caused by an unforeseeable crime or intentional tort of a third party, most courts would not hold the city liable, treating the crime or tort as a superseding force. Here, while blocking the exit ramp created a foreseeable risk that someone might collide with the plaintiff, it was not foreseeable that his enemy would take that opportunity to commit an intentional tort against him. Because the pickup truck driver’s conduct was unforeseeable under the circumstances in choice (D), the city would be relieved of liability for any negligence in blocking the ramp.
A young woman who recently graduated from college landed her dream job teaching kindergarten at the same elementary school she had attended as a child. The young woman’s contract provided that she would be paid $40,000 for the school year, and that she could be fired only for just cause. Days before the young woman was to begin teaching, the school’s principal fired her, without cause, so that he could hire his cousin for the job instead. The young woman submitted her resume to an employment agency, but was so depressed over the loss of her dream job that she turned down a nearby school’s offer for a similar job paying a $30,000 salary, and instead spent the rest of the school year miserably unemployed.
In an action by the young woman against the elementary school for damages, which of the following awards is most likely?
response - correct
A $40,000.
B $30,000.
C $10,000.
D Nothing.
C
The young woman can recover $10,000, the difference between her contract salary and the salary of the position she was offered. When there is a breach of an employment contract by the employer, the standard measure of the employee’s damages is based on the full contract price. However, a nonbreaching party cannot recover damages that could have been avoided with reasonable effort. If a breaching employer can prove that a comparable job in the same locale was available, the damages against the employer will be reduced by the wages the plaintiff would have received in that comparable job. Here, the full contract price is $40,000, but the young woman could have avoided $30,000 damages by accepting the job at the nearby school. Thus, her damages will be reduced by $30,000, leaving her with $10,000 in damages. (A) is also incorrect because it does not take into account the fact that the young woman could have avoided $30,000 in damages. (B) is incorrect because damages are based on the contract price, not the going rate for the position in the area. (D) is incorrect because, even though the young woman failed to mitigate her damages by accepting the other job, she is still entitled to some relief-the $10,000 difference between the two jobs.
The owner of an apartment building contracted with a painter to paint the porches of the apartments for $5,000. The contract was specifically made subject to the owner’s good faith approval of the work. The painter finished painting the porches. The owner inspected the porches and believed in good faith that the painter had done a bad job. The painter demanded payment, but the owner told him that the paint job was poor and refused to pay. The painter pleaded that he was desperately in need of money. The owner told the painter that she would pay him $4,500, provided he repainted the porches. The painter reluctantly agreed, and the owner gave the painter a check in the amount of $4,500. The painter went to his bank, indorsed the check “under protest” and signed his name, then deposited the check in his account. He never returned to repaint the porches.
The painter sues the owner for $500, which he believes is still owed to him on his contract to paint the porches. Will he prevail?
A Yes, because he indorsed the check “under protest.”
B Yes, but only if he repaints the porches.
C Yes, because he performed the contract by painting the porches the first time.
D No, even if he repaints the porches.
D
The painter will be unable to recover the $500 because he did not satisfy the condition precedent to payment under the contract. A party does not have a duty to perform if a condition precedent to that performance has not been met. Here, the parties made the owner’s satisfaction with the painter’s paint job a condition precedent to the owner’s duty to pay the $5,000. Because the owner was not satisfied with the paint job, her duty to pay the painter never arose. The fact that the owner offered to give the painter $4,500 if he repainted the porches has no effect on this analysis, because the offer constituted a new contract, the owner having been excused from the old one. (A) is wrong because it does not matter whether the painter indorsed under protest. The indorsement will not change the result here because the new contract did not seek to discharge any contractual duty-the owner was already excused from her duties because the condition precedent was never met. (B) is wrong because the old contract, which provided for payment of $5,000, is considered to be at an end. Under the terms of the new contract, the painter is entitled to only $4,500, provided he repaints the porches. (C) is wrong because the condition precedent to the payment of $5,000, the owner’s satisfaction, was not met. The courts have held such conditions to be valid-not illusory promises-because of the promisor’s duty to exercise good faith in assessing satisfaction. Here, the facts state that the owner believed in good faith that the painter had done a bad job; thus, the painter is not entitled to payment under the original contract. Note that since he has not performed under the new contract, he is in breach and not entitled to the $4,500 already paid.
The defendant was arrested, given Miranda warnings, and charged with burglary. At the police station, he telephoned his mother and asked her to come to the station to post bail. Instead, his mother immediately called the family attorney. In the meantime, the police had begun questioning the defendant. Although he never told the police to stop the questioning, his answers were at first vague or clearly unresponsive. During the course of the questioning, the family attorney phoned the station and told the police that she had been hired to represent the defendant and would be there in half an hour. The police did not inform the defendant of the attorney’s call. Ten minutes later, the defendant admitted to committing the burglary, and signed a statement to that effect prepared by the police. The attorney arrived a few minutes later and advised the defendant to remain silent, but he told her that he had already signed a confession.
How should the court rule on the attorney’s pretrial motion to exclude the confession as evidence at trial?
A Grant the motion, because the police had a duty to inform the defendant that an attorney was coming to represent him.
B Grant the motion, because the defendant has been deprived of his Sixth Amendment right to counsel.
C Deny the motion, because the defendant’s statement admitting the crime was voluntary.
D Deny the motion, because the defendant waived his Miranda rights.
D
The defendant’s confession should be admitted because he waived his Fifth Amendment privilege against compelled self-incrimination after receiving Miranda warnings. Miranda v. Arizona requires that a person in custody be informed of his right to remain silent and his right to the presence of an attorney during questioning. A suspect may subsequently waive his rights by making a confession, as long as the waiver was knowing and voluntary. In this case, the defendant received proper Miranda warnings, and there is no indication that he did not understand what his rights were. Although his answers during questioning were initially unresponsive, he never asked for an attorney or indicated that he wished to remain silent, and he voluntarily confessed after a relatively short period of interrogation. Hence, he validly waived his Miranda rights. (A) is incorrect because the police have no duty to inform the defendant that an attorney is attempting to see him. The defendant’s ignorance of his attorney’s efforts has no bearing on whether he made a knowing waiver of his Miranda rights. (B) is incorrect because the defendant’s right to counsel was not violated. Although the defendant does have a separate Sixth Amendment right to counsel under Escobedo v. Illinois because he has already been arrested and charged with the crime, this right would only be violated if the defendant, after being informed of his right to counsel, had requested an attorney or had been prevented from seeing his attorney. Here, he made no request to see an attorney-even when he called his mother-and his attorney was allowed to see him immediately upon her arrival. Thus, he has waived his Sixth Amendment right to counsel. (C) is incorrect even though it is true that the defendant made a voluntary statement. Due process requires that for confessions to be admissible, they must be “voluntary,” based on the totality of the circumstances, and here all of the circumstances indicate that the defendant’s confession was voluntary. However, even a voluntary confession will be inadmissible if it was obtained in violation of Miranda rights. (D) is therefore a better choice than (C).
