Mixed Questions - Set 28 Flashcards
An employee properly sued her employer for wrongful discharge in federal court. During discovery, the employee served the employer with a discovery request for information regarding all employment termination over the previous 15 years, regardless of the position. The employer objected, and the employee filed a motion to compel the requested discovery. The court denied the motion to compel, and the employee wants to file an immediate appeal to review this decision.
Does the employee have a right to an immediate appeal?
A Yes, because the trial court’s order is a “collateral order” that is immediately appealable under the collateral order rule.
B Yes, because the trial court’s order is a “final judgment” that is immediately appealable.
C Yes, because the plaintiff may obtain immediate appellate review of the trial court’s order through a writ of mandamus.
D No, because the trial court’s order is an “interlocutory order” that can be reviewed prior to final judgment only if the trial court certifies it for immediate appeal and the appellate court, in its discretion, agrees to hear the appeal.
D
The employee does not have the right to an immediate appeal. Interlocutory orders are the rulings that trial judges make during the course of pretrial proceedings and trials that do not completely resolve the case. Therefore, they are not final. As a result, interlocutory orders are typically not immediately reviewable on appeal until a final order is made, unless they meet one of the exceptions permitting an appeal as of right (i.e., orders granting injunctions; orders appointing a receiver; orders in admiralty cases finding liability but leaving damages to be assessed later; patent infringement orders where only an accounting is ordered; and orders affecting or changing possession of property). The Interlocutory Appeals Act also may permit a review of an interlocutory order, but it is discretionary, and may be available only when (i) the trial judge certifies that the interlocutory order involves a controlling question of law, as to which there is substantial ground for difference of opinion, and immediate appeal from the order may materially advance the ultimate termination of the litigation; and (ii) the court of appeals then agrees to allow the appeal. A party obtaining such a certificate from the trial judge must, within 10 days, apply to the court of appeals, where two out of three judges must agree to hear the appeal. Here, the trial court’s denial of the employee’s pretrial motion to compel discovery is an interlocutory order. As such, there is no immediate right to appeal. Choice (D) correctly states the rule under the Interlocutory Appeals Act. The Act only offers a discretionary review; it is not reviewable by right. (A) is wrong because it incorrectly classifies the order as a collateral order. The collateral order rule may permit a review if the claim or issue is separable from and collateral to the main suit and is too important to require deferring appellate review. The order then may be classified as a judgment in a separate (“collateral”) proceeding. Here, the order relates to a discovery request involving the main issue—wrongful discharge. Therefore, it is not a collateral order. (B) is wrong because, as stated above, this is an interlocutory order, not a final order. A final order is one that disposes of the whole case on its merits, by rendering final judgment not only as to all the parties, but as to all causes of action involved. Here, there has not even been a trial yet, and the pretrial order only addresses a motion to compel discovery. As such, it is an interlocutory order. (C) is wrong because writs of mandamus are only permitted in exceptional cases. Mandamus commands a trial judge to act, and prohibition commands the judge to refrain from acting. The writs are available only if an appeal will be insufficient to correct a problem and the trial court’s actions constitute a serious abuse of power that must be immediately corrected. The facts in this question clearly do not support such exceptional circumstances.
A citizen of State A sued a local city newspaper for defamation in state court. The newspaper’s defense is that the statements related to the citizen were protected speech under the First Amendment to the United States Constitution.
Which of the following statements regarding federal court subject matter jurisdiction is correct?
A The case cannot be removed or appealed to federal court, including the Supreme Court, because the federal issue in the case is not part of the citizen’s well-pleaded complaint.
B The newspaper can remove the case to federal district court, because there is an embedded federal issue that must be determined for the citizen’s claim to be resolved, and this creates federal question jurisdiction.
C The case must be litigated through the state court system, but once a decision is rendered by the highest state appellate court, the United States Supreme Court would have subject matter jurisdiction over an appeal concerning the First Amendment issue.
D The citizen can remove the action to the federal district court, because the newspaper’s defense has raised a federal question that establishes federal court jurisdiction.
C
The case must be litigated through the state court system. Subject matter jurisdiction in federal court based on a federal question must appear as part of the plaintiff’s cause of action as set out in a well-pleaded complaint. The defendant’s answer or defense is not relevant because the existence of a defense based on federal law will not give federal question jurisdiction. Supreme Court jurisdiction extends to final judgments rendered by the highest court of a state in which a decision could be had. These judgments may be reviewed by the Supreme Court by certiorari where a right is claimed under the federal Constitution. Here, choice (C) essentially reflects these rules because the defamation case is based on a state law claim, and the citizen did not assert a claim arising under federal question jurisdiction. Therefore, the case must be litigated through the state court system; however, the Supreme Court would have subject matter jurisdiction over an appeal from the highest state court in State A concerning the First Amendment issue. (A) is wrong because, as stated, a defendant can appeal the First Amendment issue to the Supreme Court once it has been litigated in the highest state court. In terms of removal jurisdiction, a defendant can only remove an action to federal court that could have been originally brought by the plaintiff in the federal courts. Here, although choice (A) correctly states that the case cannot be removed to federal court because the federal issue was not part of the citizen’s well-pleaded complaint, it incorrectly states that the federal issue cannot be appealed to the Supreme Court. (B) is wrong because it is an incorrect statement of law. The mere existence of a defense based on federal law does not give rise to an action “arising under” federal law. (D) is wrong for the same reason.
A property owner owned a tract of commercial property that he conveyed in joint tenancy to his twin sons as a birthday present. Unfortunately, a few years after the conveyance, the property owner and his sons had a serious falling out over how to run the family business. The property owner no longer wished the sons to control valuable commercial property, and so he demanded that they return the deed with which he conveyed the property to them. The sons returned the deed, and the property owner destroyed it. A few months later, one of the twins learned that he was seriously ill and not likely to live much longer. He executed a quitclaim deed conveying “any interest I have in the commercial property conveyed to me and my brother from my father” to his daughter. The twin who conveyed the property subsequently died.
Who owns the property?
A The living twin.
B The property owner.
C The living twin and the deceased twin’s daughter as tenants in common.
D The living twin and the deceased twin’s daughter as joint tenants.
C
The living twin and the deceased twin’s daughter own the property as tenants in common. A conveyance of a co-tenant’s interest in joint tenancy property severs the joint tenancy, and that interest is subsequently held as a tenancy in common with the other co-tenants. Thus, (D) is incorrect. Because the joint tenancy with right of survivorship was severed before the deceased twin’s death, (A) is incorrect. Returning the deed to the property owner did not return ownership of the property to him; that would require a reconveyance. Thus, (B) is incorrect.
An investor owned a 100-acre parcel that contained several natural asphalt lakes. A construction company was erecting highways for the state in the vicinity of the investor’s land and needed a supply of asphalt. The investor executed a document that, in return for a payment of $1 per barrel, gave the company the right to enter on the land and take asphalt in whatever quantities the company desired. The investor reserved the right to remove asphalt herself and to grant this right to others. Last year, the state commenced an action in eminent domain to take the investor’s land for a public park.
Is the construction company entitled to compensation?
A No, because the nonexclusive nature of the company’s right makes it a license, which is not an interest in property.
B No, because a nonexclusive profit, although an interest in property, has no value separate and apart from the land itself.
C Yes, because the company has a nonexclusive profit, which is a property right for which it is entitled to compensation.
D Yes, because the company has a license coupled with an interest, which is a property right for which it is entitled to compensation.
C
The construction company is entitled to compensation because it has a property right to enter and remove minerals. Like an easement, a profit is a nonpossessory interest in land. The holder of the profit is entitled to enter on the servient tenement and take the soil or the substance of the soil (e.g., minerals, timber, oil, or game). When an owner grants the sole right to take a resource from her land, the grantee takes an exclusive profit and is solely entitled to the resources, even to the exclusion of the owner of the servient estate. By contrast, when a profit is nonexclusive, the owner of the servient estate may grant similar rights to others or take the resources herself. Although here the profit is nonexclusive, it is nevertheless an interest in property for which the company is entitled to compensation in any condemnation proceeding. (A) is incorrect because a license is merely revocable permission to enter on another’s land. Unlike a profit, a license is not an interest in land; it is merely a privilege, ordinarily terminable at the will of the licensor. (B) is incorrect because a profit is the right to take something from another person’s land; it has a value apart from the land itself and is alienable. (D) is incorrect because a license coupled with an interest has the effect of making the license irrevocable, but it does not convert the license into an interest in land for which compensation is required.
In a civil action for personal injuries, a plaintiff asserts that on the previous July 15 he was injured when the defendant negligently operated her motor vehicle and caused it to strike his vehicle when both cars were being driven along a principal north-south arterial street in a small town.
Concerning the following facts that arise during the trial, to which is it most appropriate for the judge trying the case to apply the doctrine of judicial notice?
A The pavement on the street was wet on July 15, based on the judge’s recollection that it was raining heavily that day.
B The street runs in a north-south direction, based on information generally known by residents of the town.
C The brakes on the defendant’s car were faulty, based on the uncontroverted testimony of her auto mechanic and an automotive engineer testifying as an expert for the plaintiff.
D The defendant was exceeding the speed limit when the accident occurred, based on the testimony of the plaintiff, two credible eyewitnesses, and the police officer who examined the skid marks, but controverted by the testimony of the defendant and a passenger in her car.
B
The fact that the street runs in a north-south direction is the most appropriate item for the judge to apply the doctrine of judicial notice to because it is a matter of common knowledge in the community. The Federal Rules conform to the existing state rules governing judicial notice. Federal Rule 201(b) defines a fact that may be noticed as “one not subject to reasonable dispute in that it is either (i) generally known within the territorial jurisdiction of the trial court, or (ii) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” To be considered generally known within the community, the fact must be something that well-informed people generally know and accept. Although usually facts of common knowledge are known everywhere, it is sufficient for judicial notice if they are known in the community where the court is sitting. Because the fact that the street runs in a north-south direction is generally known by the community in which the court sits, judicial notice may be taken of it. (A) is incorrect because judicial notice may not be taken of a fact solely because it is personally known by the judge. A judge may have to ignore facts that he knows as a private person if those facts are neither commonly known in the community nor capable of certain verification by resort to easily accessible sources of indisputable accuracy. Therefore, the judge may not take judicial notice of the wet pavement based solely on his recollection. (C) is incorrect because the fact that the brakes were faulty is subject to reasonable dispute. As discussed above, judicial notice may only be taken of matters of common knowledge in the community where the court sits or facts capable of certain verification. Here, the fact that the defendant’s brakes were faulty was not a matter of common knowledge in the town. They were only faulty in the opinion of two witnesses. Also, the condition of the brakes is not easily verified by resorting to well-established sources. Even though their testimony was uncontroverted, the auto mechanic and engineer would not be considered such sources because their conclusions could be reasonably questioned. Therefore, the condition of the brakes would be considered to be subject to reasonable dispute and not appropriate for judicial notice. (D) is also incorrect because the defendant’s speed at the time of the accident was subject to reasonable dispute. As discussed above, judicial notice may only be taken of facts not subject to reasonable dispute—i.e., matters of common knowledge in the community or facts capable of certain verification. Whether the defendant exceeded the speed limit is not a matter of common knowledge in the community. In fact, there was conflicting testimony concerning her speed. The speed also was not a fact capable of certain verification from well-established sources. The skid marks would not be considered certain enough to be such a source.
The plaintiff instituted suit against a development firm and its employee for injuries suffered by the plaintiff when a basement stair collapsed as he was being shown one of the firm’s buildings that it was leasing. At trial, the employee for the firm claims that he told the plaintiff about the defective stair. The plaintiff then offers evidence that after his fall, the CEO of the development firm called him at home and offered to pay all of the plaintiff’s medical expenses, saying, “I guess I owe you that much after our employee didn’t warn you about the broken stair.”
The statement regarding the lack of warning is:
A Admissible, as a statement against interest.
B Admissible, as an admission by the CEO of the development firm that the employee had not warned the plaintiff about the defective stair.
C Inadmissible, as hearsay not within any exception.
D Inadmissible, on public policy grounds.
B
The offer to pay medical expenses in itself is not admissible as an admission. Here, however, there is a statement that follows such an offer. This statement is admissible as an admission by the CEO of the development firm that the employee had not warned the plaintiff about the dangerous condition of the stairs. Because this is an admission, it is not hearsay under the Federal Rules. (A) is an exception to the hearsay rule and is thus unnecessary. Furthermore, it is an exception requiring the unavailability of the declarant, and there is no indication in the facts that the employee is now unavailable. (C) is wrong because, as mentioned, the statement is not hearsay under the Federal Rules. (D) is a misstatement of the law; only the offer to pay medical expenses is inadmissible on public policy grounds.
A state legislature passed a new law overhauling the state’s education system. Under the new system, the state would provide textbooks to any public or private schools that requested them. Among the schools that requested and received the textbooks was a religious school that admits only Caucasian students.
Which of the following is the strongest argument against the constitutionality of free distribution of textbooks to the students at the private school?
A A state may not constitutionally aid private schools through distribution of textbooks.
B Segregation is furthered by the distribution of textbooks to these schools.
C The distribution of textbooks advances religion because it is impossible to separate their secular and religious uses.
D The distribution of textbooks fosters excessive government entanglement with religion.
B
The strongest argument against the textbook distribution is that it is unconstitutional because it furthers segregation. State provision of textbooks to the segregated private school violates the Equal Protection Clause by giving state support to a racially segregated school. Here, the private school admits only Caucasian students and is thus segregated. (A) is wrong because a state may, under certain situations, aid a private parochial school. (C) and (D) are parts of the test for violation of the Establishment Clause. The Supreme Court has held that a state lending textbooks on secular subjects to all students, including those at religious schools, does not violate the Establishment Clause. Thus, (C) and (D) are incorrect.
Congress enacted a statute appropriating money to the states on condition that the states use the money to support “public performances of classical ballet open to the public.” The statute provided that the money was not to be used to support any other type of dance, and that tickets to any performance paid for with these funds were to be distributed to the public on a first come, first served basis.
A state that accepted a grant of $500,000 under the federal statute gave half of the grant to a state-sponsored ballet company. The company had been started 20 years earlier as part of a state effort to bring culture to poor, inner-city areas. By state law enacted when the company was formed, no less than 35% of the tickets to each performance of the ballet company must be distributed to the inner-city school systems to be given to minority school children.
Is the state’s method of distributing tickets to the state ballet company’s performances constitutional?
A Yes, because the state ballet company is state-operated and the doctrine of federalism prohibits the federal government from directly interfering with state operations.
B Yes, because the state ballet ticket distribution system substantially conforms with the underlying purpose of the federal ticket distribution scheme.
C No, because the state distribution system violates the Supremacy Clause.
D No, because the state distribution system violates equal protection.
C
The state ticket distribution system is unconstitutional because of the Supremacy Clause. A valid act of Congress supersedes any state or local action that conflicts with it. The act here is valid because Congress has the power to spend for the general welfare, and in so doing may place conditions on grants as it sees fit. The state law directly conflicts with the federal law because the federal law requires that tickets be distributed on a first come, first served basis, and the state law requires that 35% of the tickets be given to minority school children. Because the state law conflicts with the federal law, it is invalid. (A), based on the Tenth Amendment, is incorrect because, even if Congress lacks the power to directly regulate the distribution of the tickets in question, the regulation here would still be valid as a spending power condition. The Supreme Court has held that Congress may condition grants under the spending power even where it cannot directly regulate, as long as the conditions are (i) clearly stated, (ii) related to the purpose of the program, and (iii) not unduly coercive. [See South Dakota v. Dole (1987)—conditioning federal highway grants on prohibiting minors from drinking] (B) is incorrect because the Supremacy Clause invalidates all conflicting state laws where there is a clash, no matter how complementary the state law may be viewed. (D) is incorrect because the state program probably is valid under the Equal Protection Clause. State programs that favor racial and ethnic minorities are subject to the same strict scrutiny standards as programs that discriminate against minorities: They must be narrowly tailored to promote a compelling government interest. There is a compelling government interest in remedying past discrimination, and the facts indicate that the ballet company was established to remedy the prior lack of cultural opportunities that existed in the inner city. The program also appears to be narrowly tailored, and so would likely survive an equal protection challenge.
Upon graduation from high school, a young man wanted to enroll in a nine-month program at a community college to study to be an electrician, but he could not afford tuition and the costs of being unemployed for that time period. His uncle told him that if he enrolled and participated in the program, he would pay his tuition and living expenses for the time involved, and that he would also pay him a $1,000 bonus for each “A” he earned as a final grade in a class. The young man told his uncle that he would enroll in the program. The next day, the young man’s grandfather called and told him that he had learned of the uncle’s offer and that if the uncle failed to pay the young man as promised, he (the grandfather) would. The young man attended the program and earned “A’s” as final grades in three classes. Shortly thereafter, the uncle died, and the executor of the uncle’s estate refused to pay the young man the bonus for each of the three “A’s.” When the young man told his grandfather that the uncle’s estate refused to pay, his grandfather sympathized but said he no longer thought it was a good idea to pay for grades. He too refused to pay.
If the young man brings suit against his grandfather for breach of contract, which of the following represents his grandfather’s best defense?
A The contract was illusory.
B The contract was oral.
C There was no consideration flowing to the grandfather.
D The fact that the young man received nine months’ worth of free education and living expenses was sufficient compensation for his efforts in earning the three “A’s.”
B
The young man will not succeed in trying to enforce his grandfather’s promise because the promise was not in writing, as is required under the Statute of Frauds. Generally, contracts do not have to be in writing to be enforceable; however, under the Statute of Frauds, certain contracts will not be enforceable unless they are evidenced by a writing signed by the party to be charged. One such contract is to pay the debt of another, such as the grandfather’s promise here to pay the uncle’s debt if he does not pay. (A) is wrong because the contract clearly is not illusory. Each party is bound by his promise to the other party, so the requisite mutuality exists. The young man agreed to (and did) attend the nine-month program, and he worked hard and earned three “A’s,” by which he incurred a legal detriment because he was doing something he was under no legal obligation to do. The grandfather agreed to pay the young man’s tuition and living expenses plus a $1,000 bonus for each “A” he earned as a final grade in a class if the uncle failed to pay the young man as promised. Detriment to the promisee in performing an act or making a promise is valid consideration. Thus, the contract was not illusory. (C) is wrong because, as discussed above, consideration flowed to the grandfather when the young man participated in the program and earned the three “A’s,” neither of which he was legally obligated to do. (D) is wrong because nine months’ worth of free education and living expenses was not the full consideration for which the parties bargained.
A publisher entered into a contract with a paper manufacturer who used very fine materials, whereby the publisher was given the right to purchase all paper refined by the paper manufacturer for the next five years at a price set at 95% of the domestic market price at the time of delivery. The publisher agreed to purchase no less than 1,000 pounds of paper a week. At the time this contract was signed, the publisher gave written notice to the paper manufacturer that it intended to buy all paper produced by the paper manufacturer until further notice. The paper manufacturer then sold its business to a lumber-processing company.
What is the effect of this sale on the paper manufacturer’s obligation to the publisher?
A The sale discharges the paper manufacturer’s obligation to the publisher because there has been a full performance.
B The paper manufacturer is liable for damages if the lumber processing plant fails to deliver paper to the publisher.
C The paper manufacturer is excused from further performance because it no longer has a factory to produce paper.
D The paper manufacturer breached its contract with the publisher.
B
The paper manufacturer is liable for damages if the lumber processing plant fails to deliver paper to the publisher. Because delivery of paper is not personal in nature, that duty can be delegated. The quantity will be measured by the paper manufacturer’s original output. However, when a duty is delegated to a delegate, the delegator remains liable should the delegate fail to perform. (A) is incorrect because the contract was for five years, and five years have not yet elapsed. (C) is wrong because a delegator remains liable. (C) would be correct only if the paper manufacturer went out of business without delegating its duties to another by selling the other the business, not the case here. (D) is wrong because, as indicated above, such a delegation is proper.
A high school teacher shot and killed one of the students in his class on the spur of the moment. Psychiatric examinations indicated that the teacher believed that the student was trying to ridicule him in front of other students in the class and that he had to do something to stop him. The examinations also indicated that the teacher did not comprehend that killing was condemned by society when he shot his student. If the teacher pleads not guilty by reason of insanity in a jurisdiction that applies the "M'Naghten test," what would be his best argument?
A He did not know that the act of shooting the student was wrong.
B He lacked the substantial capacity to appreciate the criminality of his act.
C He did not know the nature and quality of his act.
D His act was the result of an irresistible impulse.
A
If the jurisdiction uses the M’Naghten test, the teacher’s best argument is that he did not know that his act was wrong. The M’Naghten test provides for a defendant’s acquittal if he has a disease of the mind causing a defect of reason so that at the time of his actions he lacked the ability to know the wrongfulness of his actions or understand the nature and quality of his actions. (A) states one branch of this test and is consistent with the facts (which state that the teacher did not understand that the killing was wrongful), and so it is the teacher’s best argument. (C) is wrong because it is contrary to the facts. Although (C) also states part of the M’Naghten test, the teacher’s illness has not left him so irrational that he is unable to comprehend that his act would result in the student’s death. He seemed to have known that he was killing his student; he just did not know that killing was wrong. (B) is wrong because although the teacher did lack the substantial capacity to appreciate the criminality of his act, this is not a criterion for insanity in a state that follows the M’Naghten test; rather, (B) states the Model Penal Code standard. (D) is wrong because it states conduct outside the scope of the M’Naghten test. Also, the facts do not show that the teacher’s mental illness had deprived him of his volitional controls.
A trainer of homing pigeons brought several of them to a park that he often used for training. He had trained this group of pigeons carefully and was confident that they would readily find their way home. When they were released, one of the pigeons inexplicably turned in the opposite direction from home. Several blocks away at the other end of the park, it collided with a radio-controlled model airplane that its owner had just purchased and was trying out for the first time. The collision sent the airplane out of control; it dipped low across a highway and was struck and run over by a truck.
The airplane owner sued the pigeon trainer for the destruction of his airplane. The parties stipulated to the above facts and the airplane owner presented evidence of his damages. The trainer then moved for a directed verdict.
Should it be granted?
A No, because the trainer’s pigeon caused the destruction of the airplane.
B No, because the jury could find negligence on the trainer’s part under the doctrine of res ipsa loquitur.
C Yes, because the truck, rather than the pigeon, was the direct cause of the airplane’s destruction.
D Yes, because the trainer took reasonable care in training his pigeons.
D
The court should grant a directed verdict for the trainer because the airplane owner has not shown that the trainer breached any duty that he owed to him. A prima facie case of negligence requires plaintiff to show the following elements: (i) the existence of a duty on the part of the defendant to conform to a specific standard of conduct for the protection of the plaintiff against unreasonable risk of injury, (ii) breach of that duty by the defendant, (iii) that the breach of duty was the actual and proximate cause of plaintiff’s injury, and (iv) damage to plaintiff’s person or property. Here, it is doubtful that the trainer’s releasing his pigeons created any duty to other users of the park. To the extent that it did, the fact that he had taken great care to train them to return directly to their roosts indicates that he did not breach his duty to the airplane owner. Because the airplane owner has offered no other evidence of negligence, nor any reason to impose strict liability on the trainer (as discussed below), the trainer’s motion for a directed verdict should be granted. (A) is incorrect because that choice indicates the imposition of a strict liability standard on the trainer. The owner of a domestic or inherently nondangerous animal is not strictly liable for the injuries it causes. The conduct of the trainer’s homing pigeon would not make the trainer liable in the absence of some negligence on his part. (B) is incorrect because the doctrine of res ipsa loquitur applies only to situations where the fact that a particular injury occurred itself establishes that defendant breached a duty. If the doctrine is applicable, no directed verdict may be given for defendant because plaintiff has established a prima facie case. However, the accident must be the type that would not normally occur unless someone was negligent. The collision between the trainer’s homing pigeon and the model airplane is not that type of accident; by itself, it provides no suggestion that anyone was negligent. (C) is incorrect because the truck is not a superseding force that breaks “the causal connection” between the action of the trainer’s pigeon and the airplane’s destruction. In indirect cause cases, where a force came into motion after defendant’s act and combined with it to cause injury to plaintiff, defendant will still be potentially liable for foreseeable intervening forces that are within the increased risk caused by his acts. Even if the intervening force is independent (i.e., not a natural response or reaction to the situation), it will be foreseeable where defendant’s negligence increased the risk that the independent force would cause harm. Hence, if the trainer were negligent in releasing his pigeon, the fact that the destruction of the airplane was directly caused by the truck would not relieve the trainer from liability, because the initial collision with the pigeon caused the airplane to go out of control and created a substantial risk that it would be damaged by an intervening force.
After a power outage, the stoplights at a busy intersection were blinking red for traffic going in every direction. By statute, motorists must come to a full stop at a blinking red traffic signal before proceeding through the intersection. Cars driven by the plaintiff and by the defendant arrived at the intersection at the same time. Due to inattention, neither one stopped for the signal and the cars collided in the intersection.
The plaintiff sued the defendant for his injuries. The trier of fact determined that the plaintiff was more at fault than the defendant.
Will the plaintiff likely recover damages?
A No, because the plaintiff did not stop at the blinking red light.
B No, because the plaintiff’s fault was greater than the defendant’s.
C Yes, if the defendant had the last clear chance to avoid the accident.
D Yes, even though the plaintiff’s fault was greater than the defendant’s.
D
The plaintiff can prevail in a lawsuit against the defendant even though his fault was greater than hers. The plaintiff will be able to establish a prima facie case of negligence against the defendant, because her inattentive driving breached her duty of care to other drivers and was a direct cause of the plaintiff’s damages. The defendant’s defense that the plaintiff’s contributory negligence also caused the accident does not bar the plaintiff’s recovery; comparative negligence jurisdictions allow recovery despite contributory negligence by the plaintiff, and pure comparative negligence rules allow recovery no matter how great the plaintiff’s negligence is. Even if the defendant also was injured (although not indicated by the facts), the plaintiff could still recover damages. While the defendant could counterclaim against the plaintiff for the percentage of her damages that the plaintiff was responsible for, the plaintiff could still have a net recovery—regardless of his greater fault—if his damages are significantly greater than the defendant’s (e.g., if the plaintiff is 60% at fault and has suffered $100,000 in damages, while the defendant is 40% at fault and has suffered $10,000 in damages, the plaintiff would recover $34,000 in damages). (A) is wrong because the plaintiff’s failure to stop, whether it is considered negligent or reckless, does not bar him from recovering in most pure comparative negligence jurisdictions; it merely reduces his recovery. (B) is wrong because the pure comparative negligence approach allows recovery no matter how great plaintiff’s negligence is. If partial comparative negligence had been adopted instead, the plaintiff’s success would depend on a comparison of his fault and the defendant’s fault. (C) is wrong because last clear chance is a mitigation of the “all or nothing” effect of traditional contributory negligence; it permits plaintiff to recover despite his own contributory negligence. Because a comparative negligence jurisdiction rejects the “all or nothing” approach, most comparative negligence jurisdictions do not use the last clear chance doctrine.
A man on parole after being convicted of possession of cocaine was suspected of selling cocaine out of his home. His parole officer came to his house and rang the bell. As soon as the man opened the door to see who was there, the officer entered the home, despite the man’s protests. After searching the home, the parole officer discovered several bags of marijuana in a drawer. The man was arrested and charged with possession of marijuana with intent to sell. A statute in the jurisdiction in which the search took place provides that, as a condition of parole, a parolee is on notice that his parole officer may conduct a search of the parolee’s person or home, without probable cause, at any time of the day or night. The man moved to have evidence of the marijuana suppressed by the court, claiming that the state statute that authorized the search was unconstitutional under the Fourth Amendment prohibition of unreasonable searches and seizures.
Will he prevail?
A Yes, unless probable cause was established by the officer’s tip in conjunction with other circumstances.
B Yes, because a search warrant was not obtained and no exception to the warrant requirement applies.
C No, because the man had a diminished expectation of privacy and the government has a heightened need to search parolees’ homes.
D No, because the search was incident to a lawful arrest.
C
The man will not prevail in his motion to suppress. To be reasonable under the Fourth Amendment, most searches must be pursuant to a warrant. However, several types of inspections and searches do not require a warrant or even probable cause. The Supreme Court has held that the Fourth Amendment is not violated by a statute authorizing warrantless searches of a parolee’s home—even absent probable cause—if a statute provides for such searches. The Court reasoned that in such circumstances, the parolee has a diminished expectation of privacy and the government has a heightened need for searching parolees; thus the search is reasonable in a constitutional sense. (A) is incorrect because while probable cause may be based on this type of tip under the “totality of the circumstances” test, probable cause is not necessary to establish the validity of the search based on the above discussion. (B) is incorrect because a search warrant is not required for a search of a parolee’s home that otherwise complies with procedures. (D) is incorrect because this was not a search incident to a constitutionally valid arrest. There was no basis for an arrest until after the search occurred; if the search were not otherwise independently valid, the fact that the man was arrested after the search revealed the drugs would not make the search valid.
