Mixed Questions - Set 3 Flashcards
A skier broke his leg when he was knocked down by the chair lift as he tried to avoid other skiers who had fallen off while disembarking. The ski resort employee operating the lift had not been paying attention and had failed to stop the lift. Ski patrol personnel placed the skier on a stretcher, which they then hooked up to a snowmobile to bring him down the mountain. The route down ran along the edge of a ski trail. Midway down, a novice snowboarder tried to see how close he could come to the stretcher without hitting it, but he lost control and landed on top of the skier’s leg, damaging it further. The skier filed a lawsuit against the snowboarder and the resort in a jurisdiction that has adopted a comparative contribution system in joint and several liability cases. At trial, the skier’s physician testified that the skier’s leg was permanently disabled, but that neither injury, by itself, would have caused the permanent disability and it was impossible to quantify how much each injury contributed to the disability. The jury determined that the damages from the permanent disability equaled $2 million, and that the snowboarder and the resort were each 50% at fault.
What amount of damages can the skier recover from the snowboarder for his permanent disability?
A $1 million, because the jurisdiction follows comparative contribution rules.
B $2 million, because it was not possible to identify the portion of the injury that the snowboarder caused.
C Nothing for his permanent disability, because the skier has not met his burden of proof as to the amount of damages that the snowboarder caused.
D Nothing for his permanent disability, because the injury inflicted by the snowboarder, by itself, would not have caused the disability.
B
The skier can recover $2 million from the snowboarder because the snowboarder is jointly and severally liable for the injury. The doctrine of joint and several liability provides that when two or more tortious acts combine to proximately cause an indivisible injury to plaintiff, each tortfeasor will be jointly and severally liable for that injury. This means that plaintiff can recover the entire amount of his damages from any one defendant. The doctrine applies even though each tortfeasor acted entirely independently and at different times. Here, both the snowboarder and the employee of the ski resort breached their duty to the skier to act with reasonable care. Each tortfeasor’s act was the actual cause of the skier’s disability because but for either one of the acts, his leg would not have been permanently disabled. The snowboarder’s act was the proximate cause of the skier’s disability because the disability was the direct result of the snowboarder’s act. The fact that the extent of the harm was unforeseeable is irrelevant; i.e., the tortfeasor takes the victim as he finds him. Thus, the skier can recover the entire $2 million from the snowboarder. (A) is incorrect because the contribution rules govern only whether a defendant required to pay more than his share of damages has a claim against the other jointly liable parties for the excess. Contribution does not involve the amount of damages that the plaintiff can collect in the first place. (C) is incorrect because the skier has met his burden of proof by establishing that the snowboarder was an actual and proximate cause of his permanent disability. Because the injury caused by the tortfeasors was not divisible, under joint and several liability rules, the snowboarder is liable for the full amount of the damages, including that attributable to the permanent disability. (D) is incorrect because but for the snowboarder’s collision with the skier, the skier would not have been disabled. The “but for” test applies in concurrent cause situations—cases where several acts combine to cause the injury, but none of them standing alone would have been sufficient. The fact that the snowboarder’s act standing alone would not have caused the disability is irrelevant to the snowboarder’s liability.
A small processor of specialized steel agreed in writing with a small manufacturer of children’s toys that it would supply, and the manufacturer would buy, all of the manufacturer’s specialized steel requirements over a period of years at a set price per ton of steel. Their contract did not include a nonassignment clause. Recently, the toy manufacturer decided to abandon its line of steel toys, so it made an assignment of its rights and delegation of its duties under the contract to a toymaker many times larger. The large toymaker notified the steel processor of the assignment and relayed to the processor its good faith belief that its requirements will approximate those of the assignor.
Must the steel processor supply the requirements of the large toymaker?
A Yes, because there was no nonassignment clause in the contract.
B Yes, because the large toymaker acted in good faith to assure the steel processor that its requirements will approximate those of the small manufacturer into whose shoes it stepped.
C No, because requirements contracts are not assignable under the UCC
D No, because the steel processor did not give prior approval of the assignment.
B
Because the large toymaker acts in good faith in setting its requirements to approximately those of the small manufacturer into whose shoes it stepped, the contract may be assigned. The contract in this question is a “requirements” contract: The steel processor must sell the small manufacturer of children’s toys all the specialized steel it requires for its toys. Generally, the right to receive goods under a requirements contract is not assignable because the obligor’s duties could change significantly. In fact, here, a significant change would seem possible because the large toymaker is a larger company than the small manufacturer and its needs could be greater. However, the UCC allows the assignment of requirements contracts if the assignee acts in good faith not to alter the terms of the contract. [UCC §2-306] (The UCC applies here because goods are involved.) Thus, assuming the large toymaker’s requirements remain about the same as the small manufacturer’s requirements, the steel processor would be required to honor its contract, now assigned to the large toymaker. (A) is wrong because requirements contracts may be nonassignable, even without a nonassignment clause. Thus, the clause would be irrelevant. The only thing that could allow assignment of a requirements contract is a good faith limitation, as addressed in choice (B). (C) is wrong because the UCC does allow requirements contracts to be assigned, as long as the good faith limitation is satisfied. (D) is similarly incorrect. The UCC would allow assignment without approval by the obligor if there is a good faith limitation on the requirements.
The police received a tip from a reliable informant that a former student at the local university was selling narcotics. A brief investigation revealed that the former student, a college dropout, still hung around the university campus, had no visible means of support, and yet drove a large luxury car and wore flashy clothing and jewelry. The police picked up the former student the next time he showed up on campus, took him to the station, and questioned him all night long without a break and without letting him communicate with anyone else. When the former student tired from the interrogation, he admitted that he sold cocaine to his friend, who is a current student at the university. Based on this information, the police went to the current student’s dormitory room. When they arrived, they found the door open but no one was in the room. The police entered, searched the room, and discovered a vial of white powder. Later laboratory tests established the powder to be cocaine. The former student was then charged with the sale of narcotics. At his trial, the prosecution attempted to admit the cocaine discovered in the dormitory room into evidence.
What is the former student’s best argument for preventing the cocaine from being admitted into evidence?
A The search of the dormitory room was conducted without a warrant and without consent.
B The police arrested the former student without a warrant.
C The former student’s confession was not voluntary under the circumstances.
D The police failed to give the former student Miranda warnings.
C
The former student’s best argument for preventing the cocaine from being admitted into evidence is that his confession was not voluntary. This question is difficult because each of the choices appears to present a good argument for the former student. With regard to (A), the search of the current student’s dorm room appears to be an unreasonable search under the Fourth Amendment. However, a person’s Fourth Amendment rights against unreasonable search and seizure may be enforced by the exclusion of evidence only at the instance of someone whose own protection was infringed by the search and seizure. Here, the former student cannot assert a possessory interest or reasonable expectation of privacy in the current student’s dorm room. Thus, the former student cannot successfully exclude the cocaine on the ground that it was seized in violation of the Fourth Amendment. (B) is incorrect because arrest warrants are usually required only for arrests made in the person’s home. Police generally do not need to obtain a warrant before arresting a person in a public place, even if they have time to get a warrant, as long as the arrest is based on probable cause. Here the police had probable cause to arrest the former student, and because he was arrested on the grounds of the campus, the failure of the police to obtain an arrest warrant will be of no help to him. Choices (C) and (D) both focus on improper conduct during the former student’s interrogation, but (C) is better because the former student will have a better chance of invoking the exclusionary rule if the confession is involuntary. For confessions to be admissible, the Due Process Clause of the Fourteenth Amendment requires that they be voluntary. While voluntariness is a fact question that is assessed by looking at the totality of the circumstances, the duration and manner of the police interrogation here indicate that the confession probably was the result of actual coercion. If the confession is found to be involuntary, the former student can invoke the exclusionary rule to exclude the cocaine as “fruit of the poisonous tree.” In contrast to an involuntary confession, a confession obtained without Miranda warnings, as long as the failure to warn was not purposeful, may not be sufficient to justify excluding the nontestimonial “fruits” of the confession. [See United States v. Patane (2004)] Thus, the involuntariness of the confession, rather than the absence of Miranda warnings, is the best argument for excluding the cocaine.
A defendant charged with driving while intoxicated pleaded not guilty and insisted on a trial. Right before the trial began, he fired his attorney and decided to defend himself. At one point during opening arguments, the defendant began to act like a cat, meowing and chasing an imaginary squirrel out of the courtroom.
If no one else raises the issue of the defendant’s competency to stand trial, what is the responsibility of the trial judge here?
A The trial judge has no responsibility, because the defendant decided to defend himself.
B The trial judge has no responsibility, because she cannot decide whether the defendant is competent to stand trial.
C The trial judge must raise the issue of competency, because the defendant is representing himself.
D The trial judge must raise the issue of competency, because the Constitution obligates her to do so.
D
The judge must raise the issue of competency. If it appears to the judge that the defendant might be incompetent, the judge has a constitutional obligation to conduct further inquiry and determine whether in fact the defendant is incompetent. If the defendant is tried and convicted but it later appears that he was incompetent to stand trial, the judge’s failure to raise the issue or to request a determination of competency does not constitute a waiver of the competency issue. [Pate v. Robinson (1966)] Therefore, if the trial judge observes the defendant acting in such a way that may indicate he is incompetent to stand trial (e.g., meowing, chasing imaginary squirrels), she should conduct further inquiry to determine the competency of the defendant. (A) is incorrect. As explained above, the trial judge has a duty to conduct an independent inquiry if there is evidence that the defendant may not be competent to stand trial. This would be true even if the defendant were represented by counsel. (B) is incorrect. As explained above, the judge can and should decide the issue of competency if there is evidence that the defendant might not be competent to stand trial. (C) is incorrect. If there is evidence that the defendant might not be competent to stand trial, the judge should conduct an independent inquiry into competency regardless of whether the defendant is representing himself or is represented by an attorney.
The owner of an old car parked it in front of his house with a “for sale” sign in the windshield. In response to an inquiry from his neighbor, the car owner said that he would take $400 for the car. The neighbor responded, “You’ve got a deal.” Because it was a Sunday, and the banks were closed, the neighbor told the car owner that he would come to his house with the $400 the next day at about 6 p.m. The car owner said that was fine. At 9:15 the next morning, the car owner called his neighbor and told him that when they had talked the previous day, he forgot that he had just put two new tires on that car and that he would need an extra $50 to cover their cost. The neighbor agreed to bring $450 in cash to the car owner’s house at about six o’clock.
Is the neighbor legally bound to pay the car owner the additional $50?
A Yes, because the original contract was not in writing.
B Yes, because the contract, as modified, does not need to be in writing.
C No, because no additional consideration was given for the oral modification.
D No, because neither the neighbor nor the car owner is a merchant.
B
The neighbor must pay the car owner the additional $50 because the parties have an enforceable contract. A contract for the sale of goods (the car) was formed when the neighbor said, “You’ve got a deal.” The parties then orally agreed to a modification of the contract when the car owner called his neighbor the next morning. Under the Statute of Frauds provision in the UCC, which applies to all contracts for the sale of goods, a promise requires a writing signed by the party to be charged to be enforceable if it is for the sale of goods of $500 or more. Here, the contract as modified is under $500, so it is enforceable even though it is not in writing. (A) is incorrect because the fact that the original contract was not in writing is irrelevant to the issue of whether the modified contract is enforceable. If the modification had caused the contract to reach or exceed $500, the car owner could not have collected the additional $50 from his neighbor. (C) is incorrect because under UCC section 2-209, no consideration is needed for a good faith modification of a contract for the sale of goods. (D) is incorrect because the UCC rules on modifications and the Statute of Frauds apply to all contracts for the sale of goods, not just those between merchants.
A dog whistle manufacturer’s factory was located near a residential area. The manufacturer used the most effective methods for testing its whistles, but it was impossible to completely soundproof the testing area. A breeder of champion show dogs bought some property near the factory and raised and trained her dogs there. Although the whistles were too high-pitched to be perceived by human ears, they could be heard by the breeder’s dogs. Consequently, the dogs often were in a constant state of agitation.
In a suit by the breeder against the manufacturer, what is the likely outcome?
A The breeder will prevail on a trespass theory, because the sound waves are entering onto the breeder’s property.
B The breeder will prevail on a nuisance theory, because the sound of the whistles is a substantial interference with the breeder’s use of her land.
C The breeder will not prevail, because the sound of the whistles is not a substantial interference with the breeder’s use of her land.
D The breeder will not prevail, because the manufacturer has acted reasonably in testing its whistles.
C
The breeder will not recover because there has been no substantial interference with her use or enjoyment of her land, nor has there been a trespass. A private nuisance is a substantial, unreasonable interference with another person’s use or enjoyment of her property. The interference must be offensive, inconvenient, or annoying to the average person in the community. It is not a substantial interference if it merely interferes with a specialized use of the land. Here, the testing of the dog whistles did not bother humans, and so it did not disturb the average person in the community. It is disturbing to the breeder’s dogs, but this affects only her specialized use of her land. Thus, the manufacturer’s actions do not constitute a private nuisance. (Nor do they constitute a public nuisance—an act that unreasonably interferes with the health, safety, or property rights of the community.) Therefore, (C) is correct, and (B) is incorrect. (A) is incorrect because the sounds reaching the breeder’s property do not constitute a trespass. A trespass is an intentional physical invasion of another’s land. Sound waves do not produce a physical invasion. Thus, the facts here do not support a basis for trespass. (D) is incorrect because the manufacturer could be found liable to the breeder even if it acted reasonably. In determining whether there is a nuisance, a court would consider the manufacturer’s care in testing its whistles, but that factor alone would not be determinative. If the activities were offensive to the average person, the court might still find there is a nuisance—even if it is impossible to do a better job of soundproofing. The court would have to consider the “reasonableness” of the interference, i.e., balance the injury against the utility of the manufacturer’s conduct.
A statute requires that any pilot who flies passengers for hire must have a commercial pilot’s license. An experienced pilot who had only a private pilot’s license and not the commercial license required by statute was hired by an attorney to fly her to another city to close a deal. The attorney knew that the pilot did not have a commercial license but the only commercial flight to the city was at an inconvenient time. The pilot flew the attorney through bad weather and landed safely, but because of a minor navigational error he landed at an airport a few miles away from the airport he was heading for. As he was going to start taxiing toward the hangar, another plane struck the aircraft. The student pilot of that plane had ignored the control tower’s instructions and gone onto the landing runway instead of the takeoff runway. The attorney was injured in the collision.
If the attorney sues the pilot for her injuries, who will prevail?
A The pilot, because the attorney knew he lacked a commercial license and voluntarily assumed the risk of flying with him.
B The pilot, because the injuries to the attorney were caused by the negligence of the student pilot of the other plane.
C The attorney, because the pilot violated a statute designed to prevent persons without commercial licenses from flying passengers for a fee, and such violation imposes liability per se.
D The attorney, because the pilot landed at the wrong airport, and but for this mistake the attorney could not have been injured by the other aircraft.
B
The pilot will prevail because the conduct of the other plane’s student pilot constituted a superseding intervening force that relieves the pilot from liability. To establish a prima facie case for negligence, the attorney must show that the pilot’s breach of his duty to her was the actual and proximate cause of her injury. The attorney can establish actual cause because but for the pilot’s error, she would not have been injured. However, not all injuries “actually” caused by a defendant will be deemed to have been proximately caused by his acts. The general rule of proximate cause is that the defendant is liable for all harmful results that are the normal incidents of and within the increased risk caused by his acts. This rule applies to cases such as this, where an intervening force comes into motion after the defendant’s negligent act and combines with it to cause plaintiff’s injury (indirect cause cases). Here, the pilot’s navigational error did create a greater risk of collision with other planes in the process of landing, but it did not increase the risk of a plane using the landing runway to take off in disregard of the control tower’s instructions once the pilot was safely on the ground. Hence, the student pilot’s unforeseeable conduct was not within the increased risk created by the pilot’s negligence and constitutes a superseding force that breaks the causal connection between the pilot’s conduct and the attorney’s injury, enabling the pilot to avoid liability to the attorney. (A) is incorrect because assumption of the risk requires knowledge of the specific risk and the voluntary assumption of that risk. Although the attorney knew that the pilot lacked a commercial license, she also was under the impression that he was a very good pilot. There is no indication that she knew of or voluntarily assumed any risk. Certainly, she did not assume the risk of the type of harm she suffered. (C) is incorrect because even though the pilot may be negligent per se, he would not be liable per se. A clearly stated specific duty imposed by a statute may replace the more general common law duty of due care when: (i) the plaintiff is within the class to be protected by the statute, and (ii) the statute was designed to prevent the type of harm suffered. The statutory duty is clearly stated and arguably applies here because the attorney, as the pilot’s paying passenger, is within the protected class, and runway collisions and other pilot errors are what the license requirement is officially designed to prevent. There are no grounds for excusing the pilot’s violation of the statute, so the pilot’s conduct could be seen as “negligence per se.” This means that plaintiff will have established a conclusive presumption of duty and breach of duty. However, for the attorney to prevail, she must also establish actual and proximate causation. As explained above, the attorney will not be able to show that the pilot’s negligence was the proximate cause of her injuries. Thus, while she may be able to establish “negligence per se,” she has not made a case for “liability per se.” (D) is true as far as it goes. An act or omission to act is the cause in fact of an injury when the injury would not have occurred but for the act, and this injury would not have occurred but for the pilot’s landing at the wrong airport. However, the attorney must also be able to establish that the pilot’s conduct was a proximate cause of her injury. As noted above, the pilot’s conduct was not a proximate cause of her injury because the student pilot’s actions acted as a superseding intervening force.
A retailer entered into an oral contract with an office supply wholesaler to buy 100 file boxes for an upcoming back to school sale at the retailer’s store. The wholesaler agreed to deliver the file boxes in two weeks at a cost of $4 per file box. A week later, the retailer phoned the wholesaler and asked if she could increase her order to 200 file boxes. The wholesaler agreed. The wholesaler delivered the 200 file boxes as promised, but the retailer accepted only 150 upon discovering that she lacked storage space for all 200.
May the wholesaler recover damages with respect to the 50 file boxes that were not accepted?
A Yes, because the retailer accepted $600 worth of file boxes.
B Yes, because the modification was for less than $500.
C No, because the contract as modified was for $800.
D No, because the wholesaler is a merchant with respect to file boxes.
C
The wholesaler may not recover damages. Under the UCC Statute of Frauds, a contract for the sale of goods for $500 or more is unenforceable unless evidenced by a writing signed by the party sought to be held liable. The original contract was for $400 and, thus, was not within the Statute. Whether a modification must be in writing to be enforceable depends on whether the entire contract price as modified is within the Statute. Here, the retailer and the wholesaler modified their original contract to 200 file boxes, bringing the total price to $800. Thus, the modification was unenforceable under the Statute of Frauds, and the wholesaler cannot collect damages with respect to the 50 unaccepted file boxes. (A) is incorrect. Acceptance is an exception to the Statute of Frauds—but only to the extent of the goods accepted. That is, an oral contract for the sale of goods for $500 or more is enforceable to the extent the goods are accepted. Here, the original contract for 100 boxes is enforceable, but the modification is not. However, since the retailer accepted 50 additional boxes, the modified contract is enforceable to the extent of the additional 50 boxes accepted. The fact that the accepted amount meets the Statute of Frauds $500 threshold does not make the contract enforceable for all 200. (B) is incorrect because, as noted above, when determining whether a contract for the sale of goods is enforceable, we look at the whole contract price as modified; the price of the modification itself does not matter. (D) is incorrect because the fact that the wholesaler is a merchant with respect to the goods being sold (file boxes) has no bearing on the enforceability of the contract here.
A woman was arrested, given Miranda warnings, and questioned about an armed robbery. After she asked to speak with an attorney, the police stopped questioning her about the robbery. Several hours later, the police gave the woman a fresh set of Miranda warnings and began to question her about a different robbery. She did not repeat her request for an attorney and instead made several incriminating statements about the robbery. At the woman’s trial for the robbery for which she made incriminating statements, the prosecution seeks to have her statements introduced into evidence.
If the woman’s attorney objects on appropriate grounds, how should the court rule?
A Overrule the objection, because the police did not badger the woman into confessing.
B Overrule the objection, because the woman did not renew her request for an attorney after receiving fresh Miranda warnings.
C Sustain the objection, because the police did not honor the woman’s request.
D Sustain the objection, because a confession obtained in violation of a defendant’s Miranda rights but otherwise voluntary may be used against the defendant.
C
The court should sustain the objection because the police did not honor the woman’s request for an attorney. At any time prior to or during a custodial interrogation, the accused may invoke a Miranda (Fifth Amendment) right to counsel. If the accused invokes this right, all questioning must cease until the accused is provided with an attorney or initiates further questioning himself. Thus, the police questioning of the woman about the robbery was improper, and she can have her statements excluded. (A) is incorrect. After receiving Miranda warnings, if an accused invokes the right to remain silent, the police cannot badger the accused. However, courts have ruled that if the police scrupulously honor the request, they can rewarn the accused and later resume questioning, at least about a different crime. Here, however, the accused did not simply invoke the right to remain silent, but rather requested an attorney. After such a request, as indicated above, all questioning must cease. (B) is incorrect because the accused does not need to reassert the right to an attorney; all questioning must stop until the accused is provided an attorney or resumes the questioning herself. (D) is incorrect. It is stating the rule for impeachment-a confession obtained in violation of a defendant’s Miranda rights but otherwise voluntary may be used against the defendant for purposes of impeachment, but there is no such rule for use of the confession for other purposes.
