Mixed Questions - Set 26 Flashcards
A homeowner from State A hired a contractor from State B to build a vacation home for her in State C. The parties signed the contract in State A. The contractor breached the contract, and the homeowner sued the contractor in a court of State A, seeking damages of $100,000. The contractor removed the case to the federal court for State A. The homeowner promptly moved to remand the case to state court, arguing that venue was improper.
Which of the following facts is most relevant to the court’s decision on the homeowner’s motion?
A The contract was signed in State A.
B The contractor resides in State B.
C The homeowner commenced the action in a State A court.
D The vacation home was to be built in State C.
C
The commencement of the action in State A is most relevant. When a case is removed from state court to federal court, venue is set in the federal district court that embraces the state court in which the action was pending, making the federal district court of State A the only appropriate venue choice. Thus, (C) is the correct answer because the most (indeed, only) relevant fact is the fact that the action was commenced in a court of State A. Unlike cases commenced in federal court, in cases removed to federal court, the residence of the defendant contractor (answer choice (B)) and the place where a substantial part of events relating to the claim occurred (answer choices (A) and (D)) are irrelevant.QUESTION ID: MJ233
A builder from State A sued a homeowner from State B for breach of contract in federal court, alleging that the homeowner failed to pay the second half of the agreed-upon price for completion of construction on a house. The process server attempted to serve the summons and complaint on the homeowner at the house, but after two failed attempts, instead served it on an elderly next-door neighbor, who was out in the front yard and volunteered to accept it on the homeowner’s behalf. The neighbor gave the homeowner the summons and complaint later that day.
The homeowner then filed a motion to dismiss for insufficient process. Assume that the requirements for service of process in both states are identical to the requirements of the Federal Rules of Civil Procedure.
Is the court likely to dismiss the action for insufficient process?
A Yes, because the homeowner did not designate the neighbor as an authorized agent to receive service of process.
B Yes, because the neighbor is not considered one residing at the homeowner’s place of abode, even though the neighbor is of suitable age.
C No, because the homeowner filed the wrong motion.
D No, because the homeowner has no meaningful defense for insufficient service of process since she had actual notice.
C
The court will not likely dismiss the action. Insufficient process refers to defects in the documents and their content, whereas insufficient service of process refers to the manner in which the documents were presented, delivered and/or served to the defendant. The key to this answer is reading comprehension. The facts state that the homeowner filed a “motion to dismiss for insufficient process,” not “insufficient service of process,” which are two separate grounds for dismissal. [See Fed. R. Civ. P. 12(b)(4) and (5), respectively] (A), (B) and (D) are all wrong because they all relate to issues regarding insufficient service of process, which is not relevant to the call of the question. (C) is correct, because the homeowner filed the wrong motion. The homeowner should have filed a motion to dismiss based on insufficient service of process. Generally speaking, service of process is sufficient if it is made by: (i) personal service, (ii) service left at the defendant’s usual place of abode with one of suitable age and discretion, or (iii) service upon an authorized agent of the defendant. Alternatively, service may be made under state rules or by mail under the waiver of service provision [see Fed. R. Civ. P. 4(d)].
A landowner owned a large tract of land in an area zoned for medium residential use. Permitted uses in this zone are single-family dwellings, condominium and townhouse developments, and moderate density apartment complexes. The landowner subdivided her land into 10 lots and conveyed each lot by a deed restricting the land to single-family use. All deeds were duly recorded and all lots were developed as single-family homes.
The owner of lot 1 died and his property passed by will to his niece. Some time later, the owner of lot 3 sold his property to a buyer by a deed that did not contain the covenant limiting use to single-family dwellings. The buyer subsequently sold lot 3 to her friend, and did not include the covenant in the deed. Both deeds were duly recorded. A storm destroyed the friend’s home, and in its place he began to build a three-unit townhouse.
May the niece sue to enforce the covenant against the friend to prevent him from building the townhouse on lot 3?
A No, because there is no privity with the friend.
B No, because the zoning laws have not been violated.
C No, because there was no restriction in the friend’s deed.
D Yes, because the friend’s townhouse would alter the landowner’s common scheme.
D
The niece may enforce the covenant as an equitable servitude against the friend because the friend’s townhouse would alter the common scheme the landowner created by using restrictive covenants in all of her deeds. For successors of the original promisee and promisor to enforce an equitable servitude, both the benefit and burden of the servitude must run with the land. For the burden to run and thus bind the successor of the promisor (the friend): (i) the covenanting parties must have intended that the servitude be enforceable by and against assignees; (ii) the covenant must touch and concern the land; and (iii) the party to be bound must have had actual, constructive (record), or inquiry notice. The common scheme (all 10 lots were developed as single-family homes) is evidence that the original parties intended that the restriction be enforceable by assignees. The covenant touches and concerns the friend’s property because it restricts him in his use of the property. The friend had constructive and inquiry notice because the restriction is in his chain of title. Therefore, the burden of the servitude runs with the land. The next issue is whether the benefit of the servitude runs with the niece’s land. For a benefit to run, it must be so intended by the original parties and the covenant must touch and concern the land. As noted above, intent may be inferred from the common scheme. The benefit touches and concerns the niece’s land because it benefits her in her use and enjoyment of the lot. Thus, the niece may enforce the covenant. (A) is incorrect for two reasons: (i) privity is not a requirement for the enforcement of equitable servitudes; and (ii) if privity were a requirement, both horizontal and vertical privity would be satisfied. Horizontal privity requires that, at the time the promisor entered into the covenant with the promisee, the two shared some interest in the land independent of the covenant. The landowner and each of the 10 original owners, as grantor and grantees, shared an interest in the land independent of the covenant. Vertical privity exists when the successor in interest to the covenanting party holds the entire interest that was held by the covenantor at the time she made the covenant. Here, the niece and the friend took the entire interest (fee simple absolute) from their predecessors. (B) is incorrect because both zoning laws and restrictive covenants must be complied with. (C) is incorrect because, as discussed above, the restriction runs with the land and is enforceable against successors of the original parties. Actual notice is not required; constructive or inquiry notice is sufficient, and the friend had both.
Shortly before their wedding, a man and a woman bought a tract of land, taking title in both names. They had intended to build a summer cottage there, but many years after their marriage the land was still a vacant lot. The man decided that their introverted son would have more confidence if he were a landowner; thus, the man drew up a deed conveying a one-quarter interest in the land to him. Not wanting to show favoritism, two weeks later the man drew up a deed conveying a one-quarter interest in the same land to their daughter.
Who owns the land?
A The man and woman share ownership of the land with rights of survivorship, and the son and daughter have no interests.
B The son has a one-quarter interest, the daughter has a one-quarter interest, and the woman has a one-half interest.
C The son has a one-quarter interest, the daughter has a one-quarter interest, and the woman has a one-half interest, with rights of survivorship.
D The woman owns the land.
B
The son has a one-quarter interest, the daughter has a one-quarter interest, and the woman has a one-half interest. There is a presumption that the man and woman are tenants in common. For a joint tenancy to exist, there must be an express creation of such tenancy; thus, there is a presumption of tenancy in common unless the conveyance is to a husband and wife in a state that recognizes tenancy by the entirety. Here, the man and woman were not married when they took title to the land. Each tenant in common has an undivided interest, which may be conveyed by inter vivos transfer. The man started with an undivided one-half interest, one-half of which he conveyed to his son and the other half of which he conveyed to his daughter. The man has thus conveyed all of his interest in the land, and so (A) is incorrect. There is no right of survivorship in a tenancy in common; therefore, (C) is incorrect. (D) is not supported by the facts.
A pedestrian brought suit against the driver of a car that struck him and caused him serious injuries and amnesia. During case preparation, the pedestrian’s attorney was frustrated by his client’s inability to remember any of the facts surrounding the accident. He therefore hired a qualified hypnotist to question the pedestrian. While hypnotized, the pedestrian described details of the accident, stating that the car that struck him ran a red light, and the car’s license plate number was XYZ356. It so happens that XYZ356 is the license number of the driver’s vehicle. At trial, the driver stipulated that his car struck the pedestrian, but asserts a defense that he was not negligent and that the light was green when he entered the intersection. Because the pedestrian’s amnesia persists at the time of trial, the pedestrian’s attorney wishes to call the hypnotist to the stand to testify as to the statements made by the pedestrian under hypnosis. The driver’s attorney objects.
How should the court rule on the objection?
A Sustained, because the hypnotist’s testimony would be hearsay not within any recognized exception to the hearsay rule.
B Sustained, because the jury was not given a limiting instruction on the weight that should be given to testimony under hypnosis.
C Overruled, because the accuracy of the license plate number establishes that the testimony is reliable.
D Overruled, because the testimony falls within the catch-all exception to the hearsay rule.
A
The hypnotist’s proposed testimony is hearsay evidence. It would be recounting an out-of-court statement (the pedestrian’s hypnotically induced recollection of the accident) for the purpose of establishing the truth of the matter asserted in the statement. Therefore, the issue in deciding upon the admissibility of the hypnotist’s testimony is to ascertain whether it fits within a hearsay exception. There is no hearsay exception for out-of-court statements given under hypnosis. The only hearsay exception that seems possibly applicable is the residual or “catch-all” exception, Federal Rule 803(24). Before evidence can be admitted under this exception, however, an elaborate pretrial notice procedure must be followed to assure that the other party has an opportunity to prepare to meet the hearsay evidence. No such notice was given in this case, and so (D) is incorrect. (D) is also incorrect because the catch-all exception was not meant to be a broad exception that could be invoked whenever some semblance of reliability could be attached to a hearsay statement. It was intended to be a narrow exception. It was not meant to revolutionize the law of evidence. To admit the hypnotist’s testimony would have that effect. Because hypnotically induced testimony is generally inadmissible, to allow the admission of hypnotically induced hearsay statements would indeed be a radical change in the law of evidence. Because the hypnotist’s testimony would be hearsay evidence not within any recognized exception to the hearsay rule, (A) is the correct answer. Both (B) and (C) are incorrect because they fail to give proper effect to the hearsay rule. (B) implies that the hypnotist’s testimony would be admissible if the jury is given a limiting instruction on the weight that should be given to testimony under hypnosis. However, no instruction to the jury can cure the hearsay defect in the hypnotist’s testimony; an instruction cannot magically transform inadmissible hearsay evidence into admissible evidence. (C) asserts that the testimony is admissible because the pedestrian’s accurate recollection, under hypnosis, of the driver’s license plate number establishes that the testimony is reliable. That assumption is highly questionable. It does not necessarily follow that, because a person can accurately recall specific numbers (e.g., a phone number), he can also accurately recall related events (e.g., who placed the phone call and what was said in the phone conversation). More fundamentally, the hearsay rule cannot be avoided simply by showing that hearsay evidence might be generally reliable. The hearsay rule can be avoided only if the hearsay evidence fits within a specific exception. Otherwise, the evidence is inadmissible. Because the hearsay testimony offered by the hypnotist does not fit within an exception, it is inadmissible.
The defendant was charged with aggravated assault. The defendant did not testify at trial; however, he sought to offer opinion evidence of his good character for truth and veracity.
Should this testimony be admitted?
A Yes, because a criminal defendant is entitled to offer evidence of his good character.
B Yes, because a party’s credibility is necessarily in issue.
C No, because evidence of character is not admissible to prove conduct in conformity therewith.
D No, because it is evidence of a trait not pertinent to the case.
D
The testimony should be excluded. The accused in a criminal case may introduce evidence of a pertinent character trait because it may tend to show that he did not commit the crime charged. But here, evidence of the defendant’s character for truth is not pertinent to a charge of a violent crime (aggravated assault). (A) is wrong because the character evidence is admissible only if it is pertinent to the charged crime. (B) is wrong because the defendant’s credibility is not in issue, as he did not testify. (C) is wrong because in a criminal trial such evidence may be admitted, if pertinent, at the initiative of the accused.
Due to budget shortages and a critical need of funding to fight a war, Congress enacted a $25 tax on each person flying into an airport in the five most popular vacation destinations in the country, as determined by Congress. The tax was implemented, and officials in the five destinations were outraged, fearing that the number of vacationers to the taxed destinations would decrease due to the tax.
If the tax is challenged in federal court by an official with standing, is the most likely result that the tax will be held constitutional?
A No, because it makes it significantly more difficult for persons to travel between the states.
B No, because the tax unfairly discriminates against certain vacation destinations by taxing them and not taxing other, similar vacation destinations.
C Yes, because the tax is necessary to achieve a compelling government interest.
D Yes, because Congress has plenary power to impose taxes to raise revenue.
D
The destination tax will likely be held constitutional under Congress’s taxing power. Congress has the power to lay taxes under Article I, Section 8, and a tax measure will usually be upheld if it bears some reasonable relationship to revenue production or if Congress has the power to regulate the taxed activity. Despite the protest from the officials of the affected locations, the tax here does appear to be related to revenue production and so will be upheld. (C) is incorrect because it is based on the wrong standard—the compelling interest test does not apply here. (A) is incorrect because the extent of the right to travel is not clearly defined. The Supreme Court has established that the right to travel from state to state is a fundamental right that may be violated by state laws designed to deter persons from moving into a state; however, the Court has not specifically applied this rule to the federal government or to the type of tax legislation present here. The state cases involved treating old vs. new residents differently for purposes of voting or some government benefit, which may have violated the Privileges or Immunities Clause of the Fourteenth Amendment, or treating outsiders differently from residents, which may have violated the Equal Protection Clause of the Fourteenth Amendment. Neither clause is applicable to the federal government, so neither analysis is appropriate. (B) also is incorrect. While the federal government is not subject to the Equal Protection Clause of the Fourteenth Amendment, it is prohibited from unfair discrimination by the Due Process Clause of the Fifth Amendment. Grossly unreasonable discrimination by the federal government could be held to violate due process, but a $25 tax on flights to popular vacation destinations probably does not. The tax is rationally related to the legitimate government interest of revenue production and so will likely be upheld.
A toy makers’ union, angry about poor working conditions and low wages, staged a nationwide strike just weeks before the holiday season. Larger toy sellers immediately hired independent toy makers to fulfill the traditionally increased demand for toys during the holidays. Enraged, striking toy makers committed acts of violence against independent toy makers and attempted to destroy shipments of independently made toys as they were being loaded off trucks at toy sellers’ receiving docks.
In response to the increasing violence, Congress met in emergency session and enacted a measure directing the President to send military troops to the affected areas to preserve order and to ensure the continued flow of commerce.
Is this enactment constitutional?
A Yes, under Congress’s power to raise and support the armed forces.
B Yes, under Congress’s power to regulate commerce.
C No, because it infringes on the President’s authority to faithfully execute the laws of the United States.
D No, because it infringes on the President’s authority as Commander in Chief of the armed forces.
D
The enactment appears to be an unconstitutional infringement on the President’s authority as Commander in Chief. The President’s role as Commander in Chief of the armed forces includes extensive power to deploy the military against any enemy, foreign or domestic. Congress lacks such power. Therefore, this enactment directly infringes on the President’s authority as Commander in Chief to make such orders as he deems proper with respect to the armed forces, and thus violates the doctrine of separation of powers. (A) is incorrect. Congress does have the power to raise and support an army, but the enactment here does not result in the appropriation of money to support the armed forces. Rather, it seeks to control their activities, and Congress has no such power. (B) is incorrect. Congress does have the power to regulate commerce, and when that power is combined with the Necessary and Proper Clause, Congress would have the power to enact legislation protecting the toy shipments at issue here. Nevertheless, the Commerce Clause, even when combined with the Necessary and Proper Clause, does not give Congress the power to violate other aspects of the Constitution. Ordering the President to send military troops violates the separation of powers doctrine because the Constitution gives the President the power as Commander in Chief of the armed forces. (C) states the correct result but is based on an incorrect rationale—the duty to execute the laws of the United States is an obligation, not a grant of authority.
While in a department store, a man picked up a sweater and slipped it under his shirt. The man then started for the door. A woman, who also was shopping in the store, saw the man take the sweater. The woman grabbed a baseball bat from the sporting goods aisle and chased the man into the parking lot. The woman began swinging the bat at the man’s head, hoping to knock him out and thus prevent the theft. The man pulled a knife from his pocket and stabbed the woman, killing her. The man was arrested and charged with murder.
At trial, will the man most likely be found guilty?
A Yes, because the evidence shows that he provoked the assault on himself by his criminal misconduct.
B Yes, because the evidence shows that the man intended to kill or cause serious bodily harm.
C No, because the jury could find that the man acted recklessly and not with the intent to cause death or serious bodily harm.
D No, because the man was acting in self-defense.
D
The man will be found not guilty because he was acting in self-defense. A person is privileged to use deadly force to prevent a crime only if it is an inherently dangerous felony. Shoplifting is not an inherently dangerous felony; thus, the woman’s use of deadly force was not privileged. A person may used deadly force in self-defense if he (i) is without fault, (ii) is confronted with unlawful force, and (iii) reasonably believes that he is threatened with imminent death or great bodily harm. The man was without fault because, although he shoplifted the sweater, he did not initiate any violence or provoke the woman. He was confronted with the woman’s unlawful force, and it was reasonable for him to believe that a baseball bat swung at his head threatened him with death or great bodily harm. Therefore, the man was entitled to defend himself against the woman’s improper use of deadly force by using deadly force himself. (A) is wrong because the man did not initiate an assault. (B) is wrong because even if the man intended to kill the woman, his action was justified. (C) is a misstatement of the law and of the facts.
A woman decided to have a painting done of herself. She contracted in writing with an artist, who agreed to paint the woman for $10,000. The fee was payable on completion of the painting, provided that the painting was to the woman’s “complete and utter satisfaction.” On the same afternoon that the artist entered into the contract with the woman, he assigned the contract to his cousin. The artist then painted the woman’s picture. After the job was done, the woman told him, “That’s a very good likeness of me, but it shows my defects, so I’m not satisfied.” She refused to accept the painting or to pay the artist or his cousin.
Can the cousin recover from the woman?
A Yes, because the condition in the agreement between the woman and the artist did not apply to his cousin.
B Yes, because otherwise an unjust enrichment will occur.
C No, because rights arising under personal services contracts are not assignable.
D No, because the woman was not satisfied with the painting.
D
The cousin will not recover from the woman because she has a defense inherent in the contract. When one of the original parties to a valid contract assigns his rights under the contract to a third party, the assignee may enforce his rights against the obligor directly but is generally subject to any defenses that the obligor had against the assignor. As long as the defense is inherent in the contract, such as failure of a condition, it is always available against an assignee because it was in existence when the contract was made (even if whether the obligor would be able to utilize it was uncertain). Here, the artist (the assignor) and the woman (the obligor) had a valid contract—her promise to purchase the painting only if she was satisfied with it is not illusory because she has to exercise her right of rejection in good faith. When the artist assigned his rights under the contract to his cousin (the assignee), his cousin became subject to the condition in the contract that the woman be satisfied with the painting. Her dissatisfaction with the painting excuses her duty to pay for it; this is a defense inherent in the contract that precludes the cousin’s recovering from the woman. (A) is incorrect because the assignee always takes subject to conditions in the original agreement between the obligor and the obligee. The only defenses that the obligor could not raise against the assignee are setoffs and counterclaims unrelated to the assigned contract that came into existence after the obligor learned that the contract was assigned. (B) is incorrect because the woman has not been enriched by the artist’s services. She has justifiably refused to accept the painting and has received no benefit from the transaction that would constitute unjust enrichment. (C) is incorrect because the only right that the artist has assigned is the right to receive payment from the woman if she accepted the painting. The woman’s duty is the same regardless of to whom she has to pay the money; therefore, the artist could validly assign his right to his cousin. Note that the analysis would be different if the artist had also attempted to delegate his duty of painting the woman to his cousin: duties involving personal judgment and skill may not be delegated. When an assignor assigns “the contract,” the words are interpreted as including a delegation of the duties unless a contrary intention appears. Here, the contrary intention is indicated by the fact that the artist did the painting rather than his cousin; hence, there was no attempt by the artist to delegate a nondelegable duty.
The owner of a television agreed to sell it to a neighbor for $250. The neighbor made a down payment of $70, took possession of the television and agreed to pay the outstanding balance in nine equal $20 installments, beginning on June 5, with subsequent installments due on the fifth of each month until the balance was paid in full.
The neighbor’s friend owed her $200. On May 20, the neighbor and her friend entered into an oral agreement whereby the friend agreed to make the nine $20 installment payments to the seller in exchange for the neighbor’s promise to forgive the friend’s $200 debt. On June 7, the seller called the neighbor to ask her where his first $20 installment payment was, and she told him at that time of her agreement with her friend. The friend has made none of the installment payments.
If the seller files suit against the friend demanding payment, who will prevail?
A The seller, because he was a third-party beneficiary of the agreement between the neighbor and her friend.
B The seller, because he is an assignee of the neighbor’s rights against her friend.
C The friend, because there was no consideration for her promise to the neighbor.
D The friend, because the surety provision of the Statute of Frauds prevents the seller from enforcing the friend’s promise.
A
The neighbor has delegated her duties under the agreement with the seller to her friend, and the friend has agreed to assume the duties by agreeing to make the installment payments to the seller. Where a delegate’s promise to perform the delegated duty is supported by consideration, there results a third-party beneficiary situation, so that the nondelegating party to the contract can compel performance or bring suit for nonperformance. The friend’s promise to make the payments to the seller, totaling $180, was given in exchange for the neighbor’s promise to forgive the $200 debt owed by the friend to her. The neighbor thus relinquished her right to take action against her friend for the full amount owed, thereby incurring legal detriment. Consequently, the promise of the friend was supported by consideration, and a situation arose in which the seller became a third-party beneficiary of the agreement between the neighbor and her friend, and able to enforce performance of the friend’s promise to pay. (C) is incorrect because, as explained above, the friend’s promise to the neighbor was supported by consideration. (B) is incorrect because there was no assignment of the neighbor’s rights as against the friend; that is, the neighbor did not manifest an intent to transfer to the seller her rights against her friend. Rather, the neighbor transferred to her friend the duties that she owed to the seller. (D) is incorrect because the surety provision of the Statute of Frauds requires only that a promise to answer for the debt or default of another be evidenced by a writing. Such a promise must be collateral to another person’s promise to pay rather than a primary promise (a promise to pay directly for the benefits given to another). Here, the friend did not promise the seller that if he sold the television to the neighbor and the neighbor did not pay, she (the friend) would pay. Instead, the friend promised the neighbor that she would directly perform the neighbor’s obligation to pay the seller. Thus, this is not the type of promise required by the Statute of Frauds to be evidenced by a writing.
A delivery company employed several messengers to deliver packages by car to nearby towns. The company also allowed some employees to use company cars for personal use from time to time. A clerical employee had her car in a body shop because she had run a red light and been broadsided by another vehicle. This was the second time she had run a light and been hit. She borrowed a company car for the weekend and was using it to do some grocery shopping. The employee negligently went through a red light and crossed the path of a rented van. The man driving the van swerved to avoid the employee and struck a light post and several parked cars, severely damaging the van. At the time of the accident, the driver of the van was exceeding the posted speed limit; he would have been able to avoid hitting the light post and the cars had he been going the proper speed.
The leasing company that had rented the van to the driver brought a lawsuit against the delivery company employee and the delivery company. The jurisdiction retains traditional contributory negligence rules.
If the delivery company prevails in the lawsuit, what is the most likely reason?
A The delivery company had no reason to know that its employee had a poor driving record.
B The driver of the van had the last clear chance to avoid the accident.
C The driver of the van exceeded the posted speed limit.
D The employee had agreed to assume all liability when she borrowed the delivery company’s car.
A
If the delivery company prevails, it will be because it entrusted its car to its employee without having reason to know that she had a poor driving record. In the absence of negligence on the delivery company’s part, it will not be liable for its employee’s negligent driving either as her employer or as the owner of the automobile she was driving. An employer will be vicariously liable for tortious acts committed by its employee only if the tortious acts occur within the scope of the employment relationship. Here, although the employee was using the company car, she was not conducting any business for the delivery company. Her use of the car to go grocery shopping was a personal errand outside the scope of her employment for which the delivery company is not vicariously liable. The delivery company is also not vicariously liable for permitting its employee to drive its car—the general rule absent a statute to the contrary is that an automobile owner is not vicariously liable for the tortious conduct of another driving the owner’s automobile. However, the owner may be liable for its own negligence in entrusting the car to a particular driver. If the delivery company knew or should have known that its employee had a poor driving record, its furnishing the employee with a car would constitute a breach of its duty to other drivers. However, if it is determined that the delivery company had no reason to know of the employee’s poor driving record, it will not be liable. (B) is incorrect because the fact that the driver of the van had the last opportunity to avoid the accident is irrelevant to the leasing company’s right to recover from the delivery company. The doctrine of last clear chance does not apply because it is essentially plaintiff’s rebuttal against the defense of contributory negligence; it would not be raised by the delivery company as a defense (i.e., if the delivery company asserted that the driver of the van was contributorily negligent, the leasing company could rebut by asserting that the delivery company employee had the last clear chance to avoid the accident). (C) is incorrect. Even though the driver of the van’s violation of the posted speed limit probably constituted contributory negligence, it will not be imputed to the leasing company. Just as an automobile owner generally would not be vicariously liable for the driver’s negligence, a driver’s contributory negligence will not be imputed to the automobile owner who is suing the other driver. Because there is no indication that the leasing company was itself negligent in leasing the van to the driver, the driver’s conduct in exceeding the speed limit will not prevent the leasing company from recovering. (D) is incorrect because the fact that the delivery company had the employee assume all liability may allow it to seek indemnification against the employee if the leasing company prevails against it; however, such an assumption of liability does not affect its liability to the leasing company.
An investor who owned several thriving shopping malls was negotiating to purchase a local mall from the company that currently owned it. A staff attorney for the state transportation department who shopped at the mall regularly learned of the negotiations and contacted the investor. The mall had deteriorated noticeably during the time the current company had owned it and the attorney believed that new ownership would revitalize the mall considerably. Although the attorney had no information to support this, she told the investor that the state was currently planning to construct a new interchange for the turnpike only three blocks from the mall. The investor went ahead with the purchase, believing that the new interchange would boost sales. In fact, no interchange was being considered by the state at that time, and nothing that the investor did after he purchased the mall could stem the decline in sales. He ended up selling the property at a substantial loss several years after the purchase.
Does the investor have a cause of action against the attorney for his losses?
A Yes, for negligent misrepresentation, because the owner made a business transaction in reliance on the attorney’s statements.
B Yes, for intentional misrepresentation, because the attorney was aware that she did not know whether the state was planning an interchange.
C No, because the attorney’s statement pertained to a future event that may not be justifiably relied upon.
D No, because the attorney made her statement to the owner gratuitously.
B
The attorney acted with scienter for purposes of an intentional misrepresentation action because she was aware that she did not know whether the state was planning an interchange. To establish a prima facie case of intentional misrepresentation or fraud, plaintiff must prove (i) misrepresentation by defendant, (ii) scienter, (iii) intent to induce plaintiff’s reliance on the misrepresentation, (iv) causation (actual reliance on the misrepresentation), (v) justifiable reliance on the misrepresentation, and (vi) damages. The element of scienter, which involves defendant’s state of mind, requires plaintiff to show that defendant made the statement knowing it to be false or made it with reckless disregard as to its truth or falsity. Because the attorney made her statement even though she had no information that the state was planning an interchange, she acted with scienter. The other elements of intentional misrepresentation are established by the facts. Thus, the investor has a cause of action against the attorney under the condition stated in (B). (A) is incorrect because an action for negligent misrepresentation is not supported by these facts. Negligent misrepresentation requires (i) a misrepresentation made by defendant in a business or professional capacity, (ii) breach of duty toward that particular plaintiff, (iii) causation, (iv) justifiable reliance, and (v) damages. Here, even though the investor was involved in a business transaction, the attorney was not. She was not acting in a business capacity but rather for her own personal interests. Hence, she is not liable for negligent misrepresentation. (C) is incorrect because the attorney’s statement was a false representation of an existing fact—that an interchange was currently being planned. If the attorney had instead assured the owner simply that the interchange was going to be built in the future without any assertion of present facts, the investor could not justifiably rely on the statement because it is a statement of a future event over which the attorney did not have control. The statement here is actionable because an interchange was not even being planned. (D) is incorrect. The fact that the attorney made the statement to the owner gratuitously rather than in a commercial transaction absolves her from liability for negligent misrepresentation, but it has no relevance to her liability for intentional misrepresentation.
Police officers were executing a search warrant at a home suspected of containing evidence of illegal gambling. No one was at home when the police arrived. After searching the first floor, the officers went upstairs. A friend of the owner then entered the house carrying a briefcase. He set the briefcase on the floor, opened it, and then heard the officers. He became frightened, left the briefcase sitting in the middle of the floor, and hid in a closet. The police officers returned to the first floor and immediately spotted the briefcase, which they knew was not there earlier. Because the briefcase was open, the officers saw its contents—betting slips—and seized them. Because they knew that someone had entered the house since they arrived, they re-searched the first floor. They found the friend and informed him that he was under arrest, clapped handcuffs on him, and read him his Miranda warnings. One of the officers patted the friend down to check for weapons. The officer noticed a bulge in the friend’s pocket. Although the officer knew that the bulge was unlikely to be a weapon, he reached into the pocket anyway, and discovered a package that appeared to be (and later proved to be) heroin. The friend was charged with possession of narcotics.
At a suppression hearing, will the court agree with the public defender’s contention that the friend’s arrest was unlawful?
A Yes, because the police officer who searched the friend knew that he did not have a weapon in his pocket.
B Yes, because the friend’s mere presence in the house did not give the police probable cause to believe he had committed a crime, and they had no basis for searching him at all, because he did not act toward them in a threatening manner.
C No, because the contents of the briefcase gave the police probable cause to arrest the man.
D No, because the police had a right to search the friend for gambling slips, and the discovery of the heroin was merely incidental to a lawful search.
C
A police officer may conduct a warrantless search of a person incident to the person’s lawful arrest. Any arrest is sufficient, as long as it was lawful (e.g., reasonable and based on probable cause). The contents of the briefcase supplied probable cause to believe that the friend was involved in the gambling operation, and thus his arrest was constitutional. The police had searched the house for gambling paraphernalia pursuant to a search warrant. Upon seeing such paraphernalia in the briefcase, which was not previously present, they had reasonable grounds to believe that the person who left the briefcase was involved in the gambling operation. When the officers found the friend, who had not been present during the initial search, they had reasonable grounds to believe that he had left the briefcase and was therefore involved in the commission of gambling offenses. Thus, the friend’s arrest was constitutional/lawful. (A) focuses on the propriety of the search that uncovered the heroin, rather than on the validity of the arrest itself. Do not be sidetracked. The call of the question concerns the lawfulness of the arrest. As has been explained above, the friend’s arrest was constitutional and based on grounds entirely independent of the legality of the subsequent search and seizure. Moreover, because the arrest was lawful, it does not matter whether the officer thought the bulge was a weapon. This alludes to whether a valid warrantless frisk was performed. A police officer may frisk a person for weapons without a warrant if the officer has reason to believe the suspect is armed and dangerous. But here, the friend had been placed under arrest. Incident to arrest, a person may be thoroughly searched for weapons or any type of evidence. Thus, (A) is incorrect. Although it is true that, as (B) states, the friend’s mere presence in the house did not give probable cause to believe he had committed a crime, his arrest was not based on his mere presence. As has been explained, reasonable grounds to believe that the friend was part of the gambling operation arose from the presence of betting slips in the briefcase and the great likelihood that the friend was the person who brought the briefcase into the house. Thus, (B) incorrectly states the basis for the friend’s arrest. Also, (B) incorrectly states that there was no basis to search the friend, because he had not behaved threateningly. In fact, the police may conduct a search incident to a constitutional arrest without actually fearing for their safety. Note also that this second part of (B), similarly to (A), incorrectly focuses on the search of the friend, rather than on the arrest itself. (D) incorrectly asserts a right to search the man independent of any probable cause to arrest him. A search warrant does not authorize the police to search persons found on the premises who are not named in the warrant. However, if the police have probable cause to arrest a person discovered on the premises, they may search him incident to the arrest. Consequently, any right that the police had to search the friend arose from their arrest of him, which was based on probable cause. (D) ignores the necessity of probable cause to arrest. Of course, (D) also attempts the same distraction as (A) and (B); i.e., it focuses on the search of the friend as a means of either justifying or attacking the arrest, rather than on the grounds for the arrest itself.
