Mixed Questions - Set 2 Flashcards
The owner of a boat took two friends out on a lake near his home. One of his friends was driving the boat when it struck a partially submerged rock that the owner of the boat had forgotten to tell him about. The owner of the boat and the other passenger were injured; the driver of the boat was not hurt.
In a jurisdiction that applies joint and several liability with comparative contribution, the passenger brought suit against both the boat owner and the driver, and the boat owner also sued the driver. The jury determined that the boat owner was 55% at fault and suffered $10,000 in damages, the driver of the boat was 45% at fault, and the injured passenger suffered $100,000 in damages. After entry of judgment, the boat owner paid the passenger her total damages of $100,000, while the driver of the boat has paid nothing.
How much, if anything, can the boat owner recover from the driver?
A $45,000, because the driver was 45% at fault.
B $49,500, because the driver was 45% at fault and the boat owner suffered $10,000 in damages.
C $50,000, because the boat owner and the driver are jointly liable.
D Nothing, because the boat owner was more at fault than the driver.
B
The owner of a boat took two friends out on a lake near his home. One of his friends was driving the boat when it struck a partially submerged rock that the owner of the boat had forgotten to tell him about. The owner of the boat and the other passenger were injured; the driver of the boat was not hurt.
In a jurisdiction that applies joint and several liability with comparative contribution, the passenger brought suit against both the boat owner and the driver, and the boat owner also sued the driver. The jury determined that the boat owner was 55% at fault and suffered $10,000 in damages, the driver of the boat was 45% at fault, and the injured passenger suffered $100,000 in damages. After entry of judgment, the boat owner paid the passenger her total damages of $100,000, while the driver of the boat has paid nothing.
How much, if anything, can the boat owner recover from the driver?
response - correct
Press Enter or Space to submit the answerA$45,000, because the driver was 45% at fault.CorrectB$49,500, because the driver was 45% at fault and the boat owner suffered $10,000 in damages.C$50,000, because the boat owner and the driver are jointly liable.DNothing, because the boat owner was more at fault than the driver.
A young man proposed to his girlfriend, but she was reluctant because of his meager income and lack of job potential. The young man told his father about her reluctance. The father told the girlfriend that if she married his son, he would support them for six months and send his son to a six-month computer technology training school. This was sufficient to dispel her reservations and the two were married very soon after. When they returned from their honeymoon, the father refused to go through with his offer. Although the girlfriend is happy in her marriage, she sued the father for damages.
If the father prevails, what is the likely reason?
A The father’s promise was not supported by valid consideration.
B The contract is against public policy.
C The contract was oral.
D The girlfriend is happy and therefore has incurred no detriment.
C
If the father prevails, it will be because his promise to the young woman was not in writing. The Statute of Frauds requires that a contract in consideration of marriage must be evidenced by a writing to be enforceable. This includes any promise that induces someone to marry by offering something of value. Hence, the father’s offer of support and education expenses is unenforceable. (A) is wrong because a promise to marry is a sufficient detriment to constitute valid consideration. (B) is wrong because there is no public policy against encouraging marriage. (D) is wrong because a person’s pleasure or displeasure from performing a contractual duty is irrelevant as to whether performance constitutes consideration. The young woman agreed to do something that she was under no legal obligation to do in exchange for the father’s promise of financial support; hence, consideration exists.
A department store buyer and a manufacturer of food processors entered into a written contract whereby the manufacturer would sell to the buyer 50 of its top-of-the-line models for $100 each. When the delivery arrived on May 15, several days early, the buyer noticed that the food processors were a different model that did not have all of the features as the top-of-the-line model that was ordered. The buyer contacted the manufacturer and told him that he was rejecting the food processors that were delivered to him and expected the manufacturer to send 50 top-of-the-line models immediately. The manufacturer replied that because of a backlog of orders that had not yet been filled, the top-of-the-line models could not be delivered until August 15. Because the department store had contracted with a restaurant to deliver three top-of-the-line models by May 31, the buyer delivered three of the nonconforming food processors along with a promise to replace them with three top-of-the-line models in mid-August. The buyer returned the remaining food processors to the manufacturer.
How much could the department store recover from the manufacturer for the three food processors that it delivered to the restaurant?
A Nothing, because they were resold to another.
B Nothing, because it accepted them knowing they were defective.
C The difference between the market price of the top-of-the-line models and the existing food processors’ actual value.
D The difference between the existing food processors’ actual value and the cost of the food processors that the department store must provide to the restaurant in mid-August.
C
The department store was entitled to recover contract damages from the manufacturer for the three food processors that it accepted. If the buyer accepts goods that breach one of the seller’s warranties, the basic measure of damages is the difference between the value of the goods as delivered and the value they would have had if they had been according to the contract, which is best stated by choice (C). The department store’s acceptance of the three food processors did not waive its right to collect damages for the defect in quality. Thus, (A) and (B) are wrong. Having accepted the nonconforming food processors, the department store’s damages would be the difference between the value of the food processors as received and what they would have been worth if they had been as warranted, plus foreseeable incidental and consequential damages. (D) is wrong because the measure of damages is based on market value rather than cost. Also, the agreement with the restaurant was to accommodate the department store only and was not foreseeable by the manufacturer.
A man and a woman were arrested and charged with a series of armed robberies. Each suspect was given Miranda warnings, and different interrogation teams questioned each suspect separately. Upon being questioned, the man told the police, “I’m not going to talk until I see a lawyer.” An officer responded, “You might want to reconsider, because your partner has already confessed, and she’s implicated you in the crimes.” The man then told the police that he wanted to talk to the woman privately. The police escorted the man to the woman’s cell, locked him in with her, and left. Unbeknownst to either of them, the police had bugged the woman’s cell and recorded both the man and the woman making self-incriminating statements during their meeting. The man made no further statements to the police on advice of counsel, whom he called immediately after his conversation with the woman. The man was put on trial first, and the prosecution sought to introduce into evidence tapes of the bugged conversation between the man and the woman. The defense made a motion to suppress the evidence.
Should the court grant the motion to suppress?
A Yes, because the evidence is the fruit of a wiretap that violated the Fourth Amendment.
B Yes, because the police created a situation likely to induce the defendant to make an incriminating statement.
C No, because there is no expectation of privacy in a jail cell.
D No, because the conversation constituted a waiver of the man’s Miranda rights.
B
The conversation should be suppressed because the police conduct violated the man’s Sixth Amendment right to counsel. The Sixth Amendment provides that in all criminal prosecutions a defendant has a right to the assistance of counsel at all critical stages after formal proceedings have begun. For Sixth Amendment purposes, a criminal prosecution begins when adversary judicial proceedings have commenced, such as the filing of formal charges in this case. Because custodial interrogation is a critical stage of prosecution, the Sixth Amendment is violated by post-charge interrogation unless the defendant has waived his right to counsel. Interrogation includes not only direct questioning, but also any other conduct by the police intended to elicit a response. The police conduct here (telling the man that the woman had implicated him and then bugging the conversation) constitutes prohibited interrogation. [See Maine v. Moulton (1985)] (A) is incorrect because the wiretap was not an illegal search under the Fourth Amendment. Wiretapping and other forms of electronic surveillance are subject to the Fourth Amendment prohibition of unreasonable searches and seizures. However, to have a Fourth Amendment right, a person must have a reasonable expectation of privacy with respect to the place searched or the item seized. In a different context, the Supreme Court has held that prisoners have no reasonable expectation of privacy in their cells or in any personal property that they have in their cells. [Hudson v. Palmer (1984)] Hence, neither defendant can assert a Fourth Amendment claim based on the wiretap, because they had no reasonable expectation of privacy in the jail cell. The fact that there was no expectation of privacy does not make choice (C) correct, however. Even though he probably cannot claim that the bugging was an unreasonable search under the Fourth Amendment, the man can claim that it was an interrogation in violation of his Sixth Amendment right to counsel, as discussed above. (D) is incorrect because it is irrelevant. The facts probably would not give rise to a Miranda violation in light of the Court’s ruling in Illinois v. Perkins (1990) that Miranda does not apply unless interrogation is by someone known to be a police officer (on the rationale that Miranda is merely a prophylactic rule designed to offset the coercive nature of a custodial interrogation by a police officer). In any case, Miranda rights and Sixth Amendment rights to counsel can only be waived knowingly, and so the man’s ignorance of the fact that the cell was bugged precludes a finding of waiver here.
A public high school’s drug policy strictly prohibited the use, possession, or sale of any drug on school grounds, including any prescription or over-the-counter medication, unless supervised by a nurse. During lunch, the school principal observed a student ingesting two white pills. The student admitted to the principal that the pills were aspirins and had been given to her by a senior. School officials approached the senior and demanded to search her backpack. When no aspirins were found in the backpack, the officials required the senior to submit to a private physical search by the female school nurse. Some aspirins were subsequently found in the waistband of the senior’s gym shorts that she was wearing under her school uniform, and she was suspended. The senior’s mother sued school officials, claiming that the physical search violated her daughter’s Fourth Amendment rights against unreasonable searches and seizures. In response, the school officials filed a motion for summary judgment against the mother’s claim.
The facts above are stipulated to by the parties. Should the court grant the motion for summary judgment?
A Yes, because the search revealed that the senior had violated the drug policy.
B Yes, because the school officials had reasonable grounds to believe that the search was necessary.
C No, because the trier of fact could determine that the search was excessively intrusive in light of the nature of the infraction.
D No, because the trier of fact could determine that the school officials did not have probable cause to conduct a physical search based on the uncorroborated statement of a minor.
C
The motion should be denied. A school search will be upheld only if it offers a moderate chance of finding evidence of wrongdoing, the measures adopted to carry out the search are reasonably related to the objectives of the search, and the search is “not excessively intrusive in light of the age and sex of the student and the nature of the infraction.” [Safford United School District #1 v. Redding (2009)] In the Redding case, school officials were also attempting to locate lawful pain killers believed to be on a student’s person based on an uncorroborated tip from another student. The medication was prohibited on school premises without a doctor’s note on file. The Court concluded that a search of the student’s outer clothing and backpack did not violate the Fourth Amendment. However, a subsequent strip search of the student was unconstitutional. Here, the trier of fact could find that a search of the senior’s gym shorts that she was wearing under her school uniform was excessively intrusive and not reasonably related to the objectives of the search; hence, the school officials should not be entitled to summary judgment. (A) is incorrect. The fact that a search reveals the contraband that prompted the search does not make the search permissible under the Fourth Amendment. (B) is incorrect because, not only must school officials have reasonable grounds for the search, the search must not be excessively intrusive. Because the Court has held that a strip search to locate over-the-counter pain killers was excessively intrusive, summary judgment for the school officials is inappropriate here. (D) is incorrect because the Court has observed that the school setting requires some modification of the level of suspicion of illicit activity needed to justify a search, and has ruled that only reasonable suspicion and not probable cause is required.
On February 1, the owner of a bowling alley read in a magazine an ad from a major manufacturer of bowling balls offering sets of 40 balls in various weights and drilled in various sizes for $10 per ball. The owner immediately filled out the order form included in the ad for the 40 balls and deposited it, properly stamped and addressed, into the mail. On February 2, the bowling alley owner received in the mail a letter from the manufacturer, sent out as part of its advertising campaign, stating in relevant part that it will sell the bowling alley owner 40 bowling balls at $10 per ball. A day later, on February 3, the manufacturer received the bowling alley owner’s order. On February 4, the balls were shipped.
On what day did an enforceable contract arise?
A February 1, the day the bowling alley owner deposited his order in the mail.
B February 2, the day the bowling alley owner received the letter from the manufacturer.
C February 3, the day the manufacturer received the bowling alley owner’s letter.
D February 4, the day the balls were shipped.
D
The contract arose when the balls were shipped. The general rule is that an offer can be accepted by performance or a promise to perform unless the offer clearly limits the method of acceptance. Here, the offer would be the bowling alley owner’s order, because a magazine ad is usually held to be merely solicitation to accept offers rather than an offer. Thus, the manufacturer accepted and the contract was formed when it shipped the balls. (A) is wrong because the bowling alley owner’s order was an offer to buy, and no contract could be formed until that offer was accepted. (B) is wrong because this is a case of crossing offers; even though both offers contain the same terms, they do not form a contract. (C) is wrong because no contract will be formed until there has been an acceptance, and, as stated, the bowling alley owner’s letter was merely an offer.
A tenant vacated an apartment because he could no longer afford the rent. To ensure that the delinquent tenant made up for past arrearages, the landlord would not let him remove his personal property from the apartment. The tenant found a temporary place to stay with a friend, who wanted to help the tenant get his property back. The tenant remembered that the apartment would be vacant the upcoming weekend and that the landlord would be out of town, so he suggested that they break into the apartment and take the property then. They drove the tenant’s pickup to the apartment, and the friend entered through an unlocked window. The friend then opened the door for the tenant, and the pair collected the personal property. While the tenant was getting ready to drive away, the friend returned to the apartment and carried out some of the fixtures to the apartment. At this point, police officers who had been alerted by neighbors arrived and arrested the pair.
What is the tenant’s best defense to a charge of burglary?
A There was no “entry,” because as an occupant of the apartment, he consented to the entry.
B There was no breaking, because the window was unlocked.
C There was no intent to commit a felony.
D He only took his own property.
C
Absence of intent to commit a felony is the best defense. If the tenant intended merely to retrieve his property, he would have had no intent to commit a felony when he entered the apartment and thus could not be convicted of burglary. Common law burglary consists of: (i) a breaking; (ii) and entry; (iii) of the dwelling; (iv) of another; (v) at nighttime; (vi) with the intent of committing a felony therein. The tenant entered the apartment intending to retrieve his own property. Thus, the facts indicate that the only felony the tenant could have intended to commit at the time of entry would be larceny. Larceny consists of: (i) a taking; (ii) and carrying away; (iii) of tangible personal property; (iv) of another; (v) by trespass; (vi) with intent to permanently (or for an unreasonable time) deprive the person of his interest in the property. Larceny element (iv) would be missing here if the tenant intended to retrieve only his own property. Without the intent to commit a felony, no burglary exists. (A) is wrong because the tenant was no longer an occupant of the apartment and so could not consent to the entry. (B) is wrong because opening the closed but unlocked window was a breaking. (D) is not his best defense. The tenant could argue that the landlord did not have superior rights to the tenant’s property (despite a possible claim of arrearages) and that therefore he did not take the property of another, and also that he did not take part in his friend’s theft. However, he still would be guilty if he entered the apartment with the intent to commit a felony inside; the stronger defense of choice (C) specifically negates that intent.
A husband was on his way to meet his wife for lunch at the restaurant in the lobby of a bank building where she worked. He had just entered the building, which was owned and operated by the bank, when he heard screams and the sound of breaking glass from the restaurant area. He immediately saw that a large piece of artwork made of stained glass had fallen onto the seating area of the restaurant. In the seating area he saw several injured persons, including his wife, lying in the wreckage of the artwork. He fainted and hit his head on the marble floor, fracturing his skull. The artwork had collapsed because the pedestal that the bank had provided for the artwork was not properly constructed.
If the husband sues the bank for his injury, is he likely to prevail?
A No, because he was not personally in the zone of danger of physical injury.
B No, because he did not actually see the artwork collapse onto the diners.
C Yes, because his wife was one of the persons he saw lying in the wreckage.
D Yes, because the bank had provided the pedestal for the artwork.
C
The husband will recover for his injuries because his wife was among those injured by the collapse of the artwork. The duty to avoid negligent infliction of emotional distress may be breached when the defendant creates a foreseeable risk of physical injury to the plaintiff. In most jurisdictions, a bystander who sees the defendant negligently injuring another can recover for his own distress if (i) the plaintiff and the person injured by the defendant’s negligence are closely related, (ii) the plaintiff was present at the scene of the injury, and (iii) the plaintiff personally observed or perceived the event. Observation is typically by sight, but may also be by hearing or other senses under certain circumstances. Here, the husband heard the screams and the sound of breaking glass when the artwork collapsed as he entered the lobby. Even though he evidently did not see the artwork collapse on the diners, he heard it crash where his wife was sitting and saw the immediate aftermath. Because his wife was one of the persons injured by the collapse of the artwork, he can recover damages for the injuries caused by his distress. (A) is incorrect because, as stated above, the majority rule allows a bystander to recover based on the factors stated above even if he is outside the zone of danger of physical injury. (B) is incorrect because, as discussed above, a plaintiff who is present at the scene of the injury may perceive the event by hearing or other senses; under the circumstances here, it was not essential that he observe the actual collapse with his eyes. (D) is incorrect because it does not matter that the bank had provided the pedestal. Even if the negligent construction of the pedestal had been done by a third party, the bank remains liable to invitees on its premises because a business has a nondelegable duty to keep its premises safe for customers.
An attorney came to work on a Saturday. When he signed in, he was advised by the morning security guard employed by the building management that he must be out of the building by 5 p.m., when it closes. However, he stayed past 5 p.m. to complete a brief that had to be filed on Monday morning. At 5:15 p.m., the afternoon security guard set the locks on all the doors of the building and left. Because she was in a hurry, she did not check the sign-in sheet to make sure that everyone had signed out, contrary to mandatory procedures. When the attorney tried to exit 15 minutes later, he discovered that the doors were all locked and could not be opened from the inside. He used his cell phone to call for help, and a supervisor from the building arrived and let him out shortly thereafter.
If the attorney sues the building management for false imprisonment, is he likely to win?
A Yes, because the guard acted recklessly by locking the doors and leaving without checking that everyone was out of the building.
B No, because the attorney became a trespasser by staying in the building past 5 p.m.
C No, because the guard did not know that the attorney was locked in the building.
D No, because the attorney suffered no harm from the confinement.
C
The attorney will lose because the guard did not know that he was still in the building. For false imprisonment, the plaintiff must show (i) an act or omission on the part of the defendant that confines or restrains the plaintiff to a bounded area, (ii) intent on the part of the defendant to confine or restrain the plaintiff, and (iii) causation. Here, because the guard apparently did not know that the attorney was still in the building, she had no intent to confine him when she locked the doors. (A) is incorrect because recklessness is not enough; while the attorney likely has a cause of action for negligence against the guard, and through respondeat superior, the building, his claim is for false imprisonment. For liability for false imprisonment, there must be an intent to confine. (B) is incorrect because his status as a trespasser, while it may otherwise make him liable to the building for trespass, does not preclude him from recovering for false imprisonment. (D) is incorrect because the attorney need not show harm from the confinement to recover for false imprisonment, as long as he was aware of the confinement.
