Mixed Questions - Set 29 Flashcards
The plaintiff and defendant were involved in a car accident in which the plaintiff’s vintage sports car was severely damaged. The plaintiff sued the defendant in federal court for $200,000 in damages, alleging that the defendant had run a red light and caused the accident. The defendant claimed that the light was green. The plaintiff files a motion for summary judgment supported by an authenticated surveillance video that clearly shows the defendant driving through the red light, as well as an affidavit from a vintage car expert who described the value of the plaintiff’s car and the cost of repairing the damage. The defendant opposes the motion for summary judgment but offers no supporting evidence regarding the color of the light. He does, however, offer affidavits from two car experts who stated that the plaintiff’s car was not nearly as valuable as he claimed and that only $50,000 worth of damage was done to it.
May the court grant the motion for summary judgment?
A Yes, the court can grant complete summary judgment.
B Yes, the court can grant partial summary judgment on the matter of liability.
C No, because there is a genuine dispute of material fact.
D No, because federal courts do not have the power to grant partial summary judgments.
B
The court can grant partial summary judgment on the matter of liability and give the issue of damages to a jury. Summary judgment may be partial as well as complete. Because there is no genuine dispute of material fact regarding the cause of the car accident (due to the fact that the defendant failed to submit any evidence in response to the motion for summary judgment), the court can grant partial summary judgment on the issue of liability. (C) and (D) are therefore incorrect. (A) is incorrect because the defendant submitted affidavits from experts that controverted the plaintiff’s expert; thus, there is a genuine dispute of material fact regarding the monetary value of the damage to the plaintiff’s car.
The plaintiff sued the defendant in federal court for breach of contract. The case went to trial, and the jury found in favor of the plaintiff and awarded her $125,000. Judgment was entered on June 1. On June 10, the defendant filed a motion for a new trial. On June 18, the plaintiff files to enforce the judgment. The court has not issued any orders since the final judgment on June 1.
May the plaintiff enforce the judgment?
A Yes, because judgments are enforceable as soon as they have been entered.
B Yes, because judgments are enforceable during pendency of post-trial motions unless the court otherwise orders.
C No, because judgments are not enforceable until 28 days after entry.
D No, because judgments cannot be enforced while a post-trial motion is pending.
B
The plaintiff may enforce the judgment because judgments are enforceable during pendency of post-trial motions unless the court otherwise orders and on such conditions for the security of the adverse party as are proper. Here, the court has not ordered a stay on enforcement; therefore, the plaintiff can enforce the judgment. (D) is therefore incorrect. (A) and (C) are incorrect because execution on judgments is not allowed for 14 days after entry except in the case of injunctions or receiverships, which are immediately enforceable unless otherwise ordered by the court.
A seller entered into a written contract to sell her land to a buyer for $200,000. Before the closing date, the buyer received the title search report, which indicated that a rancher conveyed the land to a farmer by quitclaim deed 25 years ago and that a landowner conveyed the land to the seller by warranty deed 13 years ago. The buyer notified the seller that the records did not indicate how the land was conveyed to the landowner (the seller’s immediate transferor), and that the buyer was concerned about this. The seller replied that she had no knowledge of the matter but would look into it. At the date and time appointed for closing, the seller informed the buyer that she could not locate the landowner or obtain any information as to the conveyance of the land to him. On hearing this, the buyer refused to tender the purchase money, and told the seller that he was rescinding the contract. The seller sued the buyer for specific performance.
Which party is more likely to prevail?
A The seller, because land is unique and therefore a proper subject for a specific performance action.
B The seller, because she took title from the landowner by warranty deed.
C The buyer, because there is a gap in the title.
D The buyer, because the seller cannot supply marketable title.
D
The seller is not entitled to specific performance because she is unable to furnish the buyer with such title to the land as to eliminate a reasonable probability that the buyer will be subjected to a lawsuit. Absent a provision to the contrary, a contract for the sale of land contains an implied promise by the seller that she will deliver to the buyer a marketable title at the time of closing. This promise imposes on the seller an obligation to deliver a title that is free from reasonable doubt; i.e., free from questions that might present an unreasonable risk of litigation. Title is marketable if a reasonably prudent buyer would accept it in the exercise of ordinary prudence. An inability to establish a record chain of title will generally render the title unmarketable. If the buyer determines, prior to closing, that the seller’s title is unmarketable, he must notify the seller and allow a reasonable time to cure the defect. If the seller is unable to acquire title before closing, so that title remains unmarketable, the buyer can rescind, sue for damages caused by breach, or obtain specific performance with an abatement of the purchase price. Here, the title search report fails to indicate how title to the land left the farmer and was conveyed to the landowner. This in turn indicates that some records are missing from the report. The fact that records are missing would create in a reasonably prudent buyer a doubt as to the probability of being subjected to a lawsuit by, e.g., the farmer or someone else who might claim rightful title to the land on the basis of the landowner’s conveyance to the seller being fraudulent or otherwise invalid. Consequently, the seller’s title to the land was unmarketable. It is the seller’s inability to make good her title by the closing date that permits the buyer to rescind the contract and prevents the seller from being able to specifically enforce the contract. It is true that, as (C) states, there is a gap in the title. However, this gap does not by itself render title unmarketable. Rather, it is the seller’s inability to establish a record chain of title or otherwise satisfactorily explain the gap by the closing date, after being notified of it, that renders title unmarketable. Therefore, (C) is not as good an answer as (D). It is also true that, as (A) states, the uniqueness of land makes it a proper subject for specific performance. However, as explained above, the seller’s breach of her promise to deliver marketable title prevents her from specifically enforcing the contract, and permits the buyer to rescind it. Thus, (A) is incorrect. (B) is also incorrect. Because the seller took title from the landowner by warranty deed, she has received some assurance either that the landowner had the authority to make the conveyance or that he will defend on her behalf against any lawful claims of title by a third party. However, even if such protections were extended to the buyer (as the seller’s transferee), title would still be unmarketable. The buyer is not required to “buy a lawsuit,” even if his ultimate success on the merits of such a suit seems likely.
A landowner validly conveyed a parcel of land to a veterinarian “for so long as the property is used as a veterinary practice, but if the property is used for any other purpose, it is to go to the American Cancer Society.” Two years later, the landowner died, validly devising all of his property to his friend. The landowner’s only heir is his daughter. Although this jurisdiction is a common law jurisdiction with respect to all real property considerations, the state’s probate laws provide that future interests or estates in real property may be passed by will or descent in the same manner as present or possessory interests.
Last month, the veterinarian approached the daughter and asked her to join with him to sell the parcel of land, which he had been using as an animal shelter, in fee simple absolute to a developer. The veterinarian and the daughter entered into a contract of sale with the developer. However, after consultation with an attorney, the veterinarian decided against the sale. The developer sued the daughter and the veterinarian for specific performance.
Will the requested relief likely be granted?
A No, because the American Cancer Society did not join in the contract of sale.
B No, because the friend did not join in the contract of sale.
C Yes, because the veterinarian had the power to sell his interest.
D Yes, because together, the daughter’s and the veterinarian’s interests would merge and they would have a fee simple estate.
B
The requested relief will be denied because the friend did not join in the contract of sale. The conveyance purported to create a fee simple determinable in the veterinarian subject to an executory interest in the American Cancer Society. A fee simple determinable subject to an executory interest is an estate that, on the happening of a stated event, is automatically divested in favor of a third person, who holds the executory interest. However, the executory interest in the American Cancer Society is void under the Rule Against Perpetuities because it might vest beyond lives in being plus 21 years. The charity-to-charity exception to the Rule does not apply because the veterinarian is not a charitable organization. Because any interest that violates the Rule is void and stricken from the instrument, what is left is a fee simple determinable in the veterinarian and a possibility of reverter in the landowner. On the landowner’s death, the possibility of reverter passed to the friend. (A) is incorrect because the American Cancer Society does not have any interest in the land. (C) is incorrect because, although the veterinarian had the power to sell his interest, he did not own a fee simple absolute. (D) is incorrect because the daughter does not have any interest in the land. Even if she did, the merger doctrine—which provides that whenever the same person acquires all of the existing interests in land, present and future, a merger occurs and that person holds a fee simple absolute—would not apply because the friend also has an interest in the land.
A plaintiff who was a citizen of State A was traveling to adjoining State B to visit his relatives. While still in State A, the plaintiff’s auto was struck in the rear by a vehicle driven by the defendant, a citizen of State B. The plaintiff suffered personal injuries and damage to his vehicle amounting to approximately $90,000. The plaintiff filed suit in the federal district court for State A and obtained proper service of process on the defendant. Under the laws of State A, the driver of a vehicle that strikes another vehicle in the rear is presumed to have acted negligently, regardless of the surrounding circumstances. Neither the law of State B nor the federal statutes or case law has adopted such a rule.
Should the court apply the presumption in question?
A No, because federal law does not recognize such a presumption.
B No, because the law of State B does not recognize such a presumption.
C Yes, because in a diversity case a federal court applies the substantive and procedural laws of the state in which it sits.
D Yes, because the presumption at issue operates upon elements of the prima facie case.
D
The court should apply the presumption. Under the Erie doctrine, in a case based on diversity of citizenship, the federal court must apply the substantive law of the state in which the court sits. However, the court will apply federal law to procedural issues. Federal Rule of Evidence 302, which follows the Erie doctrine, provides that application of state law is appropriate only when the presumption operates on a substantive element of a claim or defense. The presumption at issue here, by presuming negligence on the part of a driver who strikes another vehicle in the rear, impacts on the prima facie case elements of duty and breach of duty. Matters involving elements of a prima facie case are substantive in nature; thus, state law applies to such matters. Consequently, the presumption of negligence recognized by State A should be applied by the court on this issue, and (A) is therefore incorrect. (B) is incorrect because it is immaterial whether State B recognizes the presumption. (C) is incorrect because it states that a federal court applies both the substantive and procedural law of the state in which the federal court sits. It applies only substantive state law.
The plaintiff sued the defendant, who had constructed the plaintiff’s house, for breach of warranty of habitability. At trial, in cross-examination of the plaintiff, the defendant’s attorney asked whether the plaintiff had sued another contractor 30 years earlier, claiming similar defects in another house built for the plaintiff. The question was not objected to and the plaintiff answered that she had had some “water problems” with the first house she ever purchased, but no suit was filed.
The defendant then called as a witness the contractor of 30 years earlier to testify that the plaintiff had brought suit against him for defects in the earlier house, many of which were like those now claimed to be found in the home the defendant built, but that the case was settled without trial.
Should the trial court rule that the witness’s offered testimony is admissible?
A Yes, as proper impeachment because the plaintiff will have an opportunity to explain or deny the witness’s statement.
B Yes, because the plaintiff failed to object to the defendant’s questions on cross-examination relative to the prior suit.
C No, because the best evidence of the former suit is the court record.
D No, because its probative value is substantially outweighed by the danger that it will confuse the issues and waste time.
D
The trial court should rule the witness’s testimony inadmissible because its probative value is substantially outweighed by the danger that it will confuse the issues and waste time. Where a witness makes a statement not directly relevant to the issues in the case, the rule against impeachment (other than by cross-examination) on a collateral matter applies to bar the opponent from proving the statement untrue either by extrinsic contradictory facts or by a prior inconsistent statement. The purpose of the rule is to avoid the possibility of unfair surprise, confusion of issues, and undue consumption of time. An issue is considered collateral if it would not be admissible other than to contradict the testimony. Evidence that a person has previously filed similar claims is generally inadmissible to show the invalidity of the present claim. At best, this evidence shows the plaintiff’s tendency toward litigation. Unless there is evidence that the previous claim was false, the probative value of such evidence is deemed outweighed by the risk of confusion of the issues. Because the prior suit would not be the subject of proof independent of impeachment, it is a collateral matter, and extrinsic evidence, such as the witness’s testimony, is inadmissible. (A) is wrong because the testimony is not proper impeachment and is inadmissible. Further, this choice states the foundational requirement for introducing a prior inconsistent statement. This is not a prior inconsistent statement and, if the testimony were admissible, the opportunity to explain or deny would not be required. (B) is wrong because the failure to object merely meant that the plaintiff’s answer to the question was admitted into evidence; it does not change the fact that the matter is collateral. Because it is a collateral matter, extrinsic evidence will not be permitted. (C) is wrong for two reasons: First, the suit is a fact that exists independently of the court record, and thus the best evidence rule would not apply. Further, as stated above, extrinsic evidence of any kind is not admissible on a collateral matter; the defendant is limited to cross-examination for impeachment in these circumstances.
A federal law requiring that all automobiles driven on United States military bases be equipped with air bags would most probably be justified by which of the following?
A The Property Clause of Article IV, Section 3.
B The General Welfare Clause of Article I, Section 8.
C The Supremacy Clause of Article VI, Section 2.
D The Commerce Clause of Article I, Section 8.
A
Under Article IV, Section 3, Congress has the power “to make all needful rules and regulations respecting the territory or other property belonging to the United States.” This power would encompass a regulation such as the air bag statute. Therefore, (A) is correct. (B) is incorrect because the General Welfare Clause is part of Congress’s taxing and spending power; it does not authorize nonspending provisions that directly regulate an activity, such as the air bag provision. (C) is incorrect because the Supremacy Clause merely makes federal laws supreme over conflicting state laws. Here, there is no indication of any conflicting state law. (D) could be correct, but it is not the best answer. Congress does have very broad power over interstate commerce, and it could be argued that the regulation here affects interstate commerce, especially because transportation is involved. Nevertheless, (A) presents a more direct justification for the law because of its focus on federal property.
A state statute provides: “Any merchant desiring to sell within this state any product or goods manufactured outside of the United States must (i) obtain a special license from the state for $50 and (ii) clearly mark the goods as to specify their country of origin.” The statute makes it a misdemeanor for any merchant to willfully sell goods without complying with these statutory requirements.
Which of the following statements is correct regarding the constitutionality of the statute?
A The portion of the statute requiring the license fee can be sustained on the ground that reasonable inspection fees are proper; but the balance of the statute is invalid.
B The portion of the statute requiring that the goods be labeled as to country of origin can be sustained because it only requires disclosure; but the balance of the statute is invalid.
C The statute is constitutionally valid as long as the burden on foreign commerce is minimal and is justified by legitimate state interests.
D The statute is unconstitutional in its entirety.
D
The statute is an unconstitutional violation of the Commerce Clause. Regulation of foreign commerce is exclusively a federal power because of the need for the federal government to speak with one voice when regulating commercial relations with foreign governments. The existence of legitimate state interests underlying state legislation will not justify state regulation of foreign commerce. The state statute, in imposing requirements for a license costing $50 and for a clear marking of goods as being from a foreign country, clearly is an attempt by the state to restrict or even eliminate the flow of such goods in foreign commerce. Thus, the statute is unconstitutional. (A) is incorrect because even if the $50 fee represents a reasonable inspection fee, the fee would still constitute an interference with foreign commerce. In addition, the facts do not indicate that the license fee has anything to do with inspection, or that the amount of the fee bears any relation to legitimate inspection purposes. (B) is incorrect because the labeling requirement imposes a burden on goods that flow in the stream of foreign commerce. Although this burden may be relatively small, it is still impermissible in light of the exclusive power held in this area by the federal government. (C) is incorrect because it states factors that would be relevant in a matter involving regulation of interstate commerce, rather than foreign commerce. Congress’s power over interstate commerce is shared with the states, so that a state law may regulate local aspects of interstate commerce if it does not discriminate against out-of-state competition to benefit local economic interests and its incidental burden on interstate commerce does not outweigh the legitimate local benefits arising therefrom. However, Congress’s power over foreign commerce is exclusive, so that factors such as a minimal burden on foreign commerce and the presence of legitimate state interests will not save a state law from a challenge based on the power to regulate foreign commerce.
A woman was stopped at a police roadblock to check for drunk drivers. The police were stopping every third vehicle that came through the checkpoint, and the woman’s car turned out to be a third vehicle. After failing a field sobriety test, the woman was arrested and charged with driving while intoxicated.
Was the stop of the woman’s car legal?
A Yes, because the car was stopped at a fixed checkpoint to check for drunk drivers.
B Yes, because temporarily stopping a car does not constitute a seizure of the automobile.
C No, because not every car was being stopped.
D No, because there was no probable cause to stop the vehicle.
A
Because the stop was at a fixed checkpoint, it was a legal stop. The police may set up roadblocks to stop cars without individualized suspicion that the driver has violated some law, as long as they: (i) stop cars on the basis of some neutral, articulable standard (e.g., every car or every third car); and (ii) are motivated by a particular problem related to automobiles and their mobility (e.g., drunk driving). Here, the police were entitled to stop the woman because the stop was made at a fixed checkpoint to check for drunk drivers and used a neutral standard as the basis for stopping the cars. (B) is incorrect because stopping a car constitutes a seizure for Fourth Amendment purposes. (C) is incorrect because every car need not be stopped at a fixed checkpoint, as long as the roadblock is based on some neutral, articulable standard. Here, the neutral standard was stopping every third car; thus, the roadblock would not be deemed improper for failure to stop every car. (D) is incorrect because, as discussed above, probable cause is not required under these circumstances.
A producer hired a violinist to play in an orchestra that was to leave on a 10-week tour. The violinist turned down another job opportunity in order to accept the producer’s job offer. One week after the start of the tour, the violinist was hospitalized with a bad back and was unable to perform. The producer hired another musician to take the violinist’s part in the orchestra. Four days later, the violinist recovered but the producer refused to allow her to rejoin the orchestra or to complete the tour. She then sued the producer for breach of contract.
If the violinist brings an action against the producer for breach of contract, which of the following represents the violinist’s best legal argument?
A The violinist’s reliance on the job offered by the producer by declining another job opportunity created an estoppel against the producer.
B The violinist’s failure to perform with the orchestra for four days was not so material as to discharge the producer’s duty to perform.
C The violinist’s performance with the orchestra for the four-day period was physically impossible.
D The violinist was never told that an injury might jeopardize her continued employment with the orchestra.
B
The violinist’s best argument is that her failure to perform with the orchestra for four days was not a material breach so as to discharge the producer’s duty to perform. The contract extended for a 10-week period. Missing only four days of a performance to run for 10 weeks would not be considered a material breach of the contract. (A) is wrong because this would tend to go more to a formation problem. Here the contract has already been validly formed. (C) is wrong because a claim of impossibility could conceivably discharge the entire contract, and, therefore, the violinist would have no claim. (D) is wrong because the violinist need not be warned of the consequences of a breach.
An elderly woman regularly corresponded with her only niece (her sister’s daughter), who lived out of town. One day she sent her niece a letter telling her that she planned to leave everything she owned to the niece upon her death. When the woman died, her will left her entire estate valued at $200,000 to her nephew (her niece’s only brother). The nephew wrote his sister a letter telling her that he felt bad about being the only person named in their aunt’s will, and added, “I’m going to share her estate with you. We can discuss the details at the funeral.”
The niece spent $800 on a round-trip ticket to attend her aunt’s funeral. After the funeral, she spoke with her brother, who told her that he had changed his mind about sharing their aunt’s estate with her. He went on to say that he would be willing to share the estate with her if she were willing to share their mother’s estate with him when their mother passed on. The niece responded by telling him that their mother had already signed over all the property to her. He replied that, given her attitude, he would keep their aunt’s estate for himself.
Later, after the two had returned to their respective homes, no longer on speaking terms, the niece sued the nephew for a 50% share of their aunt’s estate.
What amount, if any, should the niece realize from her suit?
A Nothing, because the aunt’s will left everything to the nephew, and the nephew’s letter is an insufficient basis to compel him to share.
B $800, because this represents the niece’s actual expenses incurred in reliance on the nephew’s letter.
C $100,000 (half of the aunt’s estate), because the nephew promised her that in a signed writing.
D $100,000, but only if she shares their mother’s estate with the nephew.
A
The niece should not recover in her suit because there is no enforceable promise (i.e., no contract) between the nephew and the niece. Generally, a contract will not be enforced unless consideration has passed between the parties. Consideration is defined as a bargained-for exchange of a benefit to the promisor or a detriment to the promisee. Here, the nephew offered the niece half of their aunt’s estate, which is certainly a detriment to him, but the niece offered nothing in return. While the nephew told the niece that they would discuss the details at the funeral, the niece’s purchasing a ticket to attend the funeral is not a bargained-for detriment to her (i.e., it is not the price of the exchange) because it does not appear that the nephew’s motive for the promise was to induce the niece to come to the funeral. Rather, the nephew’s offer was simply to make a gift. Thus, his offer was not an enforceable promise. (B) is incorrect because the niece would be able to recover her reliance damages only under a promissory estoppel theory, and there are no grounds for promissory estoppel here. Under promissory estoppel, a promise is enforceable, at least to the extent necessary to prevent injustice, even though there was no consideration for it, if the promisor should reasonably expect to induce action by his promise and that action is in fact induced. Here, the nephew did not promise to give the niece half of their aunt’s estate if she came to the funeral; rather, he only promised to share the estate and said they would talk about it at their aunt’s funeral. It is not reasonably foreseeable that, based on the promise, the niece would make a special trip to attend the funeral. Indeed, it is not clear that the niece was induced to go to the funeral by the promise; she may have been planning to attend in any case. (C) is incorrect because, as explained above, the nephew’s letter was an offer to make a gift; without consideration for that offer, it is unenforceable. (D) is incorrect because it relies on the existence of a contract between the nephew and the niece (he will share their aunt’s estate with her in exchange for her sharing their mother’s estate with him), and there is no such contract here. The nephew certainly made an offer to make such a contract, but the niece probably rejected the offer by saying that their mother’s property was already hers. Even if the niece’s statement was not sufficient to amount to a rejection, the nephew’s reply was certainly a revocation. Thus, a contract was not formed by the exchange, and she cannot recover from the nephew on that basis.
A bicycle manufacturer manufactured a bicycle that it sold to a retail dealer. The bicycle had a serious manufacturing defect in its brakes, but the dealer did not discover the defect before putting it on the sales floor despite a careful inspection of the bicycle. The retail dealer sold the bicycle to a bicycle messenger. Shortly thereafter, while the messenger was riding the bicycle along a busy city street, he saw a traffic light facing him turn from green to yellow. He sped up, hoping to cross the intersection before the light turned red. However, the messenger quickly realized that he could not do so and applied the brake, which failed and caused him to crash. The messenger sustained injuries. Assume that the jurisdiction follows traditional contributory negligence rules.
If the messenger asserts a claim against the retail dealer based on strict liability in tort, will the messenger prevail?
A Yes, because the brake failed because of a dangerous defect present when the bicycle left the factory of the manufacturer.
B Yes, because the brake failed while the messenger was riding the bicycle.
C No, because the messenger contributed to his own injury by speeding up.
D No, because the retail dealer carefully inspected the bicycle before selling it.
A
The messenger will prevail. In a strict liability action, the plaintiff must prove that a product was so defective that it is unreasonably dangerous. The defect causing the harm must have existed when the product left the defendant’s control. The defendant must be a commercial supplier of the product in question. Brake failure on a bicycle is an unreasonably dangerous defect. If this defect existed when the bicycle left the factory of the manufacturer, then the messenger has a viable cause of action sounding in strict liability against the retail dealer, a supplier in the distributive chain. Thus, (A) is correct. (B) is wrong because it implies absolute liability, not strict liability; i.e., the retail dealer is not liable simply because the brakes failed. It must be established that the brakes were defective when placed in commerce. (C) is wrong because, in jurisdictions retaining traditional contributory negligence rules, ordinary contributory negligence does not bar recovery in strict liability cases where the plaintiff fails to discover the defect or to take steps to guard against its existence. (D) is wrong because a careful inspection would be relevant to a negligence action, but not to one based on strict liability.
An eight-year-old girl was playing catch on the sidewalk with her friend when her friend made an errant throw over the girl’s head. The ball hit a pedestrian, who was walking on the sidewalk in the other direction. The pedestrian angrily threw the ball into the street. The girl ran out into the street to retrieve it and was hit and seriously injured by a car.
If the girl’s guardian considers legal action on her behalf against the pedestrian and the driver of the car, which of the following best states the pedestrian’s liability?
A The girl may have a personal injury claim against the pedestrian for negligence.
B The girl has no claim against the pedestrian, but the driver may obtain contribution from the pedestrian.
C The girl has no claim against the pedestrian, but the driver may obtain indemnity from the pedestrian.
D The girl has no claim against the pedestrian, and the driver will not be able to obtain contribution or indemnity from the pedestrian.
A
The girl may have a personal injury claim against the pedestrian for negligence because throwing the ball into the road would expose the children to an unreasonable risk of harm. A prima facie case for negligence consists of: (i) a duty on the part of the defendant to conform to a specific standard of conduct for the protection of the plaintiff against an unreasonable risk of injury; (ii) a breach of that duty by the defendant; (iii) the breach of duty was the actual and proximate cause of the plaintiff’s injury; and (iv) damage to the plaintiff’s person or property. A person is under a legal duty to act as an ordinary, prudent, reasonable person. It is presumed that an ordinary, prudent, reasonable person will take precautions against creating unreasonable risks of injury to other persons. Thus, if the defendant’s conduct creates an unreasonable risk of injury to persons in the position of the plaintiff, then the general duty of care extends from the defendant to the plaintiff. Here, throwing the ball into the road created an unreasonable risk of injury to the girl and her friend. The pedestrian knew, or in the exercise of reasonable care should have known, that one or both of the children would run after the ball, exposing them to the danger of being hit by a car. Thus, the general duty of ordinary, reasonable care extended from the pedestrian to the girl, and he breached this duty by throwing the ball into the road. This breach actually caused the girl’s injury because the girl would not have been in the road but for the pedestrian throwing the ball there. The breach also proximately caused the girl’s injury, despite the fact that the driver was possibly negligent in not watching the road. The driver’s conduct was an independent intervening force; however, it was a foreseeable intervening force that brought about a foreseeable result, because the pedestrian’s act of throwing the ball into the road created a foreseeable risk that the girl would be hit by a car when chasing after the ball. Thus, the driver’s conduct will not cut off the liability of the pedestrian. The final element of a prima facie case for negligence is made out by the damage to the girl’s person. (B) and (C) are both incorrect for the reason that one from whom contribution is sought or against whom indemnity is sought must be originally liable to the plaintiff. Contribution allows a defendant who is required to pay more than his share of damages to have a claim against other jointly liable parties for the excess. Indemnity involves shifting the entire loss between or among tortfeasors. If, as (B) and (C) state, the girl has no claim against the pedestrian, then the pedestrian cannot be considered a joint tortfeasor with the driver. Consequently, the driver would have no right of contribution against the pedestrian, nor would he be entitled to indemnification from the pedestrian. (D) is incorrect because, as discussed above, the girl may have a personal injury claim against the pedestrian.
In order to get some quick cash to pay off a gambling debt, an acquaintance of the defendant asked him to pretend to break into the acquaintance’s home, take some silverware, and return the silverware to the acquaintance. The acquaintance believed that he could both collect the insurance proceeds for the “theft” of the silverware, and sell the silverware on the black market. The acquaintance provided the defendant with his address: “46 Maple Avenue.” However, due to a strong windstorm, the house number “9” for “49 Maple Avenue” became detached and slid out of position, making it look like “46 Maple Avenue.” Thinking that “49 Maple Avenue” was the acquaintance’s home due to the mispositioned house number, the defendant slid open a window that was slightly ajar, entered, and took some silverware he found in the kitchen. The silent burglar alarm alerted the police, who arrived and arrested the defendant a short time later.
Why would a court find the defendant not guilty of burglary?
A He acted under a mistake of law.
B There was no breaking.
C There was no entry.
D He reasonably thought that he was in the acquaintance’s home.
D
The court would find the defendant not guilty because he reasonably thought that he was in the acquaintance’s home. Common law burglary is the breaking and entering of the dwelling house of another in the nighttime with the intent to commit a felony or larceny inside the house. However, in addition to the specific intent to commit a felony, the defendant also must have intended to break and enter the dwelling. If the defendant reasonably believed it was his acquaintance’s home, he would not have the intent to break and enter, as he would believe he had permission to break into and enter the house. (A) is wrong because mistake of law generally is not a defense. Furthermore, the defendant did not appear to be acting under the impression that his acts were lawful. Thus, mistake of law is not an issue in the question. (B) is wrong; opening the window, even though it was ajar, would be considered a breaking under the better view. (C) is wrong; there clearly was an entry into the house.
