Mixed Questions - Set 30 Flashcards
A transportation company from State A sued a tourism company from State B in federal court for breach of contract seeking $76,000 in damages. The transportation company filed an appropriate demand for a jury trial, and both parties stipulated that the jury would consist of 10 people. Following the trial and deliberations, nine of the jurors voted in favor of the plaintiff for $29,000 in damages, but one juror voted for the defendant. The defendant appealed.
On which of the following grounds would the defendant most likely prevail on appeal?
A The court lacked subject matter jurisdiction because the verdict did not exceed $75,000.
B The court lacked personal jurisdiction.
C The ruling was defective because the jury’s vote was not unanimous.
D The ruling was defective because it was rendered by fewer than 12 jurors.
C
The ruling was defective because the jury’s vote was not unanimous. In federal civil cases, a verdict must be unanimous unless the parties agree to the contrary. Here, there are no facts indicating that the parties agreed to less than a unanimous vote. Therefore, the ruling is defective because it was not unanimous. (A) is wrong because, to satisfy subject matter jurisdiction based on diversity, the more than $75,000 jurisdictional amount in controversy requirement is determined from what is claimed in the complaint, not on what the jury actually awards. (B) is wrong because it is too late to assert a lack of personal jurisdiction defense. The defense must raise a defense for lack of personal jurisdiction in a pretrial motion or answer, whichever is first, or the defense is waived. Here, the defense filed an answer and the claim proceeded through trial. Therefore, the defendant waived this defense. (D) is wrong because in federal civil cases, a jury must begin with at least six and not more than 12 jurors, and the parties may stipulate that the verdict may be returned without unanimity and that a jury verdict of fewer than six persons is acceptable. Here, the parties stipulated to a panel of 10 jurors, which satisfies the rule.
A homeowner filed a federal diversity action against the manufacturer of a pressure cooker for a products liability action based on state law, alleging that she was severely burned because the top flew off the pressure cooker during operation. Under the state law, a jury verdict does not have to be unanimous. However, a specific rule under the Federal Rules of Civil Procedure directly conflicts with the state law and provides that jury verdicts in federal court must be unanimous.
Which statement correctly presents what law the federal judge should apply regarding the jury verdict?
A The state law will apply, because a federal district court with subject matter jurisdiction based on diversity of citizenship must apply state law when there is a conflict.
B The state law will apply, because applying the specific Federal Rules of Civil Procedure may change the outcome of the case.
C The specific Federal Rule of Civil Procedure will apply as long as both rules are consistent with the Rules Enabling Act and are not unconstitutional.
D The specific Federal Rule of Civil Procedure will apply, because, on balance, the federal judicial system has the greater interest in having its rules applied.
C
The Federal Rule will apply. Under the Erie doctrine, although the federal court generally applies the substantive law of the state in which it is sitting, when a state law-based claim is brought in federal court based on diversity of citizenship and a specific federal statute or a Federal Rule of Civil Procedure applies, the federal court must apply federal procedural law as long as the federal rule is rationally deemed to be procedural and does not abridge, enlarge, or modify any substantive rights. Here, there is a specific federal procedural rule [Rule 48] under the Federal Rules of Civil Procedure that requires jury verdicts to be unanimous. This rule is procedural because it is designed to deal with what happens in the process of litigation, as opposed to dealing with the rights of the parties outside of court, which would be deemed a substantive rule. Moreover, the federal rule directly conflicts with the state law. Therefore, the specific Federal Rule of Civil Procedure will be applied in federal court, as long as it is consistent with the Rules Enabling Act and is not unconstitutional. (A) is wrong because it incorrectly states that the state law will apply and gives an incorrect statement of the law. State law does not always govern when there is a state-based claim filed in federal court based on diversity, as stated above. (B) is wrong because it incorrectly states that the state law will be followed, and it incorrectly references the “outcome determinative” test. This test was set forth by the Supreme Court to use when the law is unclear regarding whether an issue is substantive or procedural for Erie purposes and holds that an issue is substantive if it substantially affects the outcome of the case. Here, there is a Federal Rule of Civil Procedure that is directly on point. As such, the test does not apply to this situation. (D) is wrong because it incorrectly references the “balance of interests” test, which is another test the Supreme Court set forth to use when the law is unclear regarding whether an issue is substantive or procedural for Erie purposes. Under this test, the federal court is to weigh whether the state or federal judicial system has the greater interest in having its rule applied. Again, here there is a Federal Rule of Civil Procedure that is directly on point. As such, the test does not apply to this situation.
A landlord who owned a strip mall entered into a written five-year lease of one of the units with a discount retail perfumery. The lease provided for a monthly rent of $1,000, payable on or before the first day of each month. The perfumery dutifully paid its rent on time for two years and three months. At that time, with the oral permission of the landlord, the perfumery transferred its interest in the remainder of the lease to a dry cleaner in writing, and added a clause requiring the dry cleaner to get permission from the perfumery for any subsequent assignments. The dry cleaner promptly paid rent to the landlord for 14 months, and then asked the landlord to approve a transfer of its interest in the lease to a video rental store. The landlord gave her oral assent. To obtain the perfumery’s approval of the transfer to the video store, the dry cleaner wrote a letter to the perfumery, promising that if any problems arose and anyone tried to go after the perfumery for money, the dry cleaner would “make it good.”
After the perfumery sent a letter back to the dry cleaner agreeing to the transfer, the dry cleaner executed a written transfer of its interest to the video store. The video store promptly paid rent for three months. Having failed to make any profits, the video store ceased paying any rent to the landlord and cannot be located. The landlord has been unable to find anyone interested in the unit.
Given that any judgment against the video store would be worthless, from whom can the landlord collect the unpaid rent owed on the lease?
A Either the perfumery or the dry cleaner.
B The perfumery only, but the perfumery may recover in turn from the dry cleaner.
C The perfumery only, and the perfumery has no recourse against the dry cleaner.
D Neither the perfumery nor the dry cleaner.
A
The landlord may collect the unpaid rent from either the perfumery or the dry cleaner. A complete transfer of the tenant’s entire remaining term is an assignment of the lease. However, the original tenant can still be held liable on his original contractual obligation in the lease to pay rent; i.e., on privity of contract. (D) is therefore incorrect because the perfumery is liable for the rent. (B) and (C) are also incorrect. Because the covenant to pay rent touches and concerns, and hence runs with the tenant’s leasehold estate, an assignee owes the rent directly to the landlord. If the assignee reassigns the leasehold interest, his privity of estate with the landlord ends, and he generally is not liable for the subsequent assignee’s failure to pay rent in the absence of a specific promise to the landlord. However, even if the assignee made no promise to the landlord but did promise the original tenant that he would pay all future rent, the landlord may sue the assignee as a third-party beneficiary of the promise to the original tenant. Here, while the dry cleaner made no promise to the landlord, the dry cleaner did make a promise to the perfumery regarding the obligation that the perfumery owed to the landlord. Thus, the landlord can sue either the perfumery or the dry cleaner for the unpaid rent.
An uncle validly executed and notarized a deed conveying his beach house to his nephew, and then validly recorded the deed. When the nephew, who was experiencing financial difficulties, learned of the recordation of the deed, he immediately told his uncle that he did not want the beach house and could not accept such an expensive gift anyway. Later, the nephew filed for bankruptcy and the trustee in bankruptcy asserted an ownership interest in the beach house on behalf of the debtor’s estate. The bankruptcy court ruled that the property belonged to the uncle and not to the nephew, and thus was not part of the debtor’s estate subject to distribution.
Which of the following is the strongest reason in support of the bankruptcy court’s ruling?
A There was no presumption of delivery created by recordation of the deed because the nephew did not know of the recordation.
B The nephew’s statements to the uncle were a constructive reconveyance of the property.
C There was never an effective acceptance of delivery of the deed by the nephew.
D The recordation of the deed was invalid because it was done without the nephew’s permission.
C
The nephew’s express rejection of the deed was sufficient to rebut any presumption of acceptance. As a general rule, delivery of the deed is the final operative act to complete a conveyance of title to the grantee, because courts will infer the grantee’s acceptance if the conveyance is beneficial to him. However, all courts will consider evidence that is contrary to the presumption or inference. Hence, the nephew’s express rejection of the gift is sufficient to establish that no conveyance of the property took place. (A) is an incorrect statement of law. If the grantor intends the recording of the deed to be the final act in vesting title in the grantee, then such recording creates a presumption of delivery even where the grantee did not know of the recordation. (B) is wrong because there is no such thing as a constructive reconveyance. Had the nephew accepted the gift (completing the conveyance) and later changed his mind, the nephew would have had to execute a new deed to convey the property back to the uncle. (D) is wrong because knowledge or permission of the grantee has no effect on the validity of the recordation; rather, it determines whether there has been an effective acceptance.
A mother and her six-year-old son were walking through a park where dog owners frequently exercised their dogs and sometimes unleashed them. Suddenly, a large black dog attacked the mother, seriously injuring her. The mother filed a personal injury suit against the dog owner. The dog owner denies that the attacking animal was his dog. At trial, the now eight-year-old son is called as a witness to testify that he was looking directly at the dog owner when the dog owner unleashed the dog, which immediately ran up to them and attacked the mother.
Should this testimony be admitted over the dog owner’s objection that the son is not competent to testify?
A No, because the son is biased in favor of his mother.
B No, because the son’s proposed testimony constitutes hearsay not within any exception.
C Yes, because the son is over the legal age to testify.
D Yes, because there is nothing to indicate that the son is incompetent to testify.
D
The testimony should be admitted because nothing indicates that the son is incompetent. All witnesses are competent unless physically or mentally impaired in some fashion not applicable here, or unless they are too young to understand the oath and the need to testify truthfully. (A) is incorrect. Although a witness may be impeached with evidence of bias, that goes to the weight of the testimony, not its admissibility. (B) is incorrect. The son will testify as to his own observations during the incident; there is no indication that he will be testifying as to any out-of-court statement. Thus, the hearsay rule is not applicable. Furthermore, the objection was based on witness competency and not hearsay. (C) is wrong because there is no precise age at which a child is deemed competent to testify; it depends on the capacity and intelligence of the particular child.
A plaintiff sued a defendant for serious personal injuries he incurred when the defendant allegedly drove through a red light and collided with the plaintiff’s car. Calling the defendant as an adverse witness, the plaintiff asked her if she had been drinking before the accident. The defendant refused to answer, asserting her privilege against self-incrimination. The plaintiff then offers in evidence a certified copy of a court record indicating that, eight years previously, the defendant had been convicted of reckless driving while intoxicated that caused serious personal injury, a felony.
How should the trial court rule on the admissibility of the court record?
A Admit the record as relevant character evidence because the plaintiff suffered serious personal injuries.
B Admit the record as impeachment evidence.
C Exclude the record as irrelevant because as yet the defendant has given no testimony to be impeached.
D Exclude the record because the conviction is too remote and does not necessarily reflect on the defendant’s credibility as a witness in the present proceedings.
C
The record of the conviction should be excluded because the defendant has given no testimony to be impeached. Impeachment involves the casting of an adverse reflection on the truthfulness of a witness. Although the defendant has been called as a witness, she has not given any testimony at this point. Consequently, the plaintiff is unable to introduce evidence that would otherwise constitute proper impeachment evidence. (A) is incorrect because evidence of character to prove the conduct of a person in the litigated event is generally not admissible in a civil case. Circumstantial use of prior behavior patterns for the purpose of inferring that, at the time and place in question, a person probably acted in accord with such patterns raises the danger of unfair prejudice and distraction from the main issues. Consequently, even if the prior conviction resulted from driving while intoxicated, the record of that conviction is not admissible to show that the defendant was intoxicated when she collided with the plaintiff. (B) is incorrect because, as has been noted, evidence cannot be used for impeachment purposes before there is anything to be impeached. (D) is incorrect for two reasons: First, it is unnecessary to address the issue of whether the conviction constitutes proper impeachment evidence, because impeachment is not even called for on these facts. Second, if properly offered to impeach testimony by the defendant, the conviction would not be considered too remote. Under the Federal Rules, a conviction is not too remote if fewer than 10 years have elapsed since the conviction or release from prison.
After the dictator of a Caribbean island country was deposed, the President of the United States extended official recognition to the country’s new government. As ambassador to the newly recognized government, the President nominated an aging industrialist who was a close personal friend of the deposed dictator. Unable to muster enough votes to block approval of the new ambassador, the President’s political opponents in the Senate caused a resolution to be passed requiring that all consular staff below the rank of ambassador be selected from a list of “approved” candidates who have been certified as acceptable by the new country’s government. The President refused to consider any of the Senate’s list of approved candidates.
Which of the following is the President’s strongest constitutional basis for refusing to obey the Senate resolution?
A The Senate could have effectuated its policies by a less intrusive method, such as refusing to appropriate funds to staff the new embassy if the President’s selections were inappropriate.
B The President has the authority to nominate and appoint the diplomatic representatives of the United States.
C The President has exclusive authority, as commander in chief, to protect American interests abroad.
D The President’s control over the foreign policy of the United States may not be limited by other branches of government.
B
Article II, Section 2 provides that the President shall nominate, and with the advice and consent of the Senate shall appoint, ambassadors and other officers of the United States. The section also provides that Congress may vest the appointment of inferior officers in the President alone, in the courts of law, or in the heads of departments. Under separation of powers principles, however, Congress may not vest in itself any broader appointment powers than what is provided for by the Constitution. Where Congress has not vested the appointment power in courts of law or the heads of departments, it is not permitted to restrict the candidates that the President may nominate for appointment. Thus, the Senate’s attempt here to exert some control over the President’s choice of lower-level diplomatic representatives is an unconstitutional violation of the separation of powers. (A) is incorrect for two reasons: First, if the Senate’s action had been constitutionally permissible, there would be no requirement of using a “less intrusive method” to effectuate such action. The President would simply be required to seek the approval of the Senate. Second, if the Senate refused to appropriate funds to staff the embassy because it deemed the President’s selections inappropriate, this would simply be another way of exerting control over the President’s selection of lower-level diplomatic personnel, and would be as unconstitutional as the resolution passed by the Senate. (C) is incorrect because the President’s status as commander in chief is not at issue here. The President does have rather extensive military powers as commander in chief of the armed forces. However, the appointment of a consular staff involves the President’s power in foreign relations, not his power as commander in chief. In addition, (C) incorrectly states that the President has exclusive authority to protect American interests abroad. Although the President has broad authority to protect American interests abroad, Congress also has some authority in this field. For example, Congress has the power to declare war, to raise and support armies, and to give its advice and consent in the making of treaties. Similarly, (D) incorrectly asserts a limitless presidential control over foreign policy. While the President’s authority in foreign policy is quite broad, it has some limits; e.g., the requirement of senatorial advice and consent in the making of treaties.
A state statute makes it a felony for anyone in the corridors or on the grounds of any building in which a court may be in session to make a speech or carry a sign intended to improperly influence judicial proceedings. During a murder trial, a friend of the defendant was arrested under the statute for carrying a sign on the steps of the courthouse bearing the message: “Free the defendant or the judge will die.”
Can the friend constitutionally be convicted under the statute?
A No, because the statute could apply to others whose speech is constitutionally protected.
B No, unless she personally intended to harm the judge.
C Yes, if there was a clear and present danger that the judge would be influenced by the sign.
D Yes, because the statute does not violate the freedom of expression guaranteed by the First Amendment.
D
The friend can constitutionally be convicted because the statute does not violate the First Amendment. Certain public property (e.g., public streets or parks) is so historically associated with the exercise of First Amendment rights that speech thereon can be regulated only by content neutral proscriptions. Other places controlled by the government, however, are not so historically linked to speech activities, and in such locations free speech might interfere with the intended use of such locations. Thus, the government can regulate access to these limited public forums and nonpublic forums based on the subject matter of the speech, as long as the regulation is reasonably related to the purpose served by the property and is not designed merely to suppress a particular point of view. A courthouse and its grounds is not a public forum. (The surrounding sidewalks are, but that is not in issue here.) The statute, although based on the subject matter of speech, is viewpoint neutral and reasonably related to the courthouse purpose of promoting a stable, orderly atmosphere in which judicial proceedings can take place free of improper outside influence or coercion. Thus, the statute is valid and the friend can be convicted for her actions. (A) is wrong because it is based on an overbreadth argument and the statute here is not overbroad. A regulation of speech that restricts substantially more speech than necessary is unenforceable, even if the speech in question could have been properly restricted by a narrower statute. This doctrine is inapplicable here because the statute is not overbroad: it reaches only speech in the courthouse or on its grounds and only that speech that might improperly influence the judicial proceedings; it does not limit all speech at that location. (B) is wrong because the friend’s intent to harm the judge is irrelevant. The statute makes it a crime to make a speech or carry a sign intended to influence the judicial proceeding. The statute does not require that the violator intend to harm anyone. Because the state is entitled to regulate speech or conduct in the courthouse or on its grounds that might interfere with the judicial proceedings, it is entitled to convict the friend for her actions here regardless of her intent to harm the judge. (C) is wrong because it improperly applies the “clear and present danger” test to these facts. Under the current version of the “clear and present danger” test, a state cannot forbid advocating the use of force or violation of law unless such advocacy is (i) directed to producing or inciting imminent lawless action, and (ii) likely to produce such action. The state statute here does not purport to punish advocacy of force or lawlessness, but rather seeks to further the purpose of maintaining the stability and integrity of the judicial proceedings by regulating access to certain nonpublic areas. Therefore, the restrictions are constitutionally valid and the “clear and present danger” test is inapplicable.
The driver of a tractor-trailer lost control of his vehicle after driving onto an icy bridge in excess of the speed limit and slid off the road. A state trooper responding to the accident got out of his squad car and walked toward the vehicle on the roadway. Before he could set up warning flares or safety cones, a delivery van approached the bridge in the oncoming lane. The van slid on the ice and spun out of control, striking and injuring the trooper. The trooper brought an action against the driver of the delivery van and the driver of the tractor-trailer.
Will the trooper prevail as against the driver of the tractor-trailer?
A Yes, because the trooper’s injuries were a foreseeable result under the circumstances.
B Yes, because the “firefighters’ rule” does not apply in this case.
C No, because the delivery van striking the trooper was the actual cause of his injuries.
D No, because the trooper was injured during the course of his job.
D
The trooper will not prevail. As a general rule, a defendant is liable if he negligently puts himself in peril and the plaintiff is injured in attempting a rescue. However, the “firefighters’ rule” will bar firefighters and police officers, on public policy or assumption of risk grounds, from recovering for injuries caused by the risks of a rescue. Here, it was an inherent and foreseeable risk of the job that the trooper might be struck by another vehicle at an accident site. Hence, the trooper probably will not be able to recover, and (A) is incorrect. (B) is incorrect because the rule applies to firefighters and police officers who are injured from the unique risks that are inherent in the type of work they do, and therefore would apply in this case. (C) is incorrect. Although it is true that the delivery van was an actual cause of the trooper’s injuries, it is not a superseding cause that would cut off the liability of the tractor-trailer driver. It is foreseeable that a state trooper, in the roadway responding to an emergency call, might be struck by another vehicle. If not for application of the firefighters’ rule, the driver of the tractor-trailer would be liable to the trooper.
A drug dealer was convicted in federal court of possession of 10 kilos of cocaine with intent to distribute. She was sentenced to a prison term. Subsequently, a federal grand jury indicted the dealer under a separate statute for conspiracy to distribute the same 10 kilos of cocaine. She moved to dismiss the indictment.
How should the court rule on her motion?
A Grant it, because the Double Jeopardy Clause protects her against a second prosecution for the same criminal conduct.
B Grant it, because the Due Process Clause protects her against double punishment for the same criminal conduct.
C Deny it, because the Double Jeopardy Clause does not apply when the second prosecution is for violation of a separate statute.
D Deny it, because each prosecution requires proof of an element that the other does not.
D
The drug dealer’s motion should be denied. The defense of double jeopardy does not apply if the second crime requires an element which is not an element of the first crime and vice versa. In this case, the crime of conspiracy has an element which is not in the possession crime, namely the agreement to commit the crime with another person, and it is lacking an element, namely the actual commission of the crime. (A) is incorrect because it is possible to commit two separate crimes by the same criminal conduct, such as conspiracy and the substantive offense. (B) is incorrect because it is the Double Jeopardy Clause of the Bill of Rights that affords protection against a subsequent prosecution, not the Due Process Clause. (C) is incorrect because even if a lesser included offense to the first crime were contained in a separate statute, the defense of double jeopardy would still apply.
A man loaned $10,000 to his good friend who was heavily in debt. He told his friend that he could have until the following June to repay the loan and to make repayment directly to the man’s grandson. The man knew that his grandson, who would be graduating from law school in June, was hoping to buy a new car upon graduation and could use the money as a down payment on the car. Neither the man nor his friend told the grandson of this agreement. Before the friend repaid the $10,000 loan, the grandson went out and bought his dream car, cashing some savings bonds to make the down payment. A week later, the grandfather suffered a reversal of fortune and told his friend to pay the $10,000 to him after all, which the friend did. A short time later, the grandson learned of the aborted plan to pay the $10,000 to him.
If the grandson sues the friend for the $10,000, will he prevail?
A Yes, because he was the intended beneficiary of the contract between his grandfather and the friend.
B Yes, because he detrimentally relied on the promise between his grandfather and the friend by purchasing the car.
C No, because his rights had not yet vested when the contract was modified.
D No, because the man intended the repayment of the $10,000 to the grandson to be a gift.
C
The grandson will not prevail in his suit. He was an intended beneficiary whose right to collect the $10,000 had not vested at the time the contract was modified. Since the grandson’s rights had not vested, the man and his friend were free to modify the contract, and the grandson could not enforce the original agreement between his grandfather and the friend. The grandson was clearly an intended third-party beneficiary; he was expressly designated in the contract and performance was to be made directly to him. A court must then decide whether his rights have vested, which is necessary to enforce the contract. Vesting occurs when the beneficiary: (i) manifests assent to the promise in a manner invited or requested by the parties; (ii) brings suit to enforce the promise; or (iii) materially changes position in justifiable reliance on the promise. Here, the grandson’s rights had not vested. Neither his grandfather nor the friend told the grandson of the arrangement, so he could not have manifested assent to it. The grandson did not bring suit to enforce the promise prior to the modification of the contract, and he did not materially change his position in justifiable reliance on the promise because he did not know about the agreement when he bought the car. (B) is incorrect because there was no detrimental reliance. The facts do not indicate any action taken by the grandson in reliance on the contract. He did not know about it. (A) is incorrect because although the grandson was indeed an intended beneficiary of the contract, that alone would not be enough to enforce the contract where his rights had not vested prior to the contract’s modification. (D) is incorrect because the general rule regarding the vesting of rights in a third party applies to a donee beneficiary (the beneficiary of a contract benefit intended as a gift) as well as to a creditor beneficiary, so long as he is an intended beneficiary to the contract. Thus, the fact that the grandson was a donee beneficiary would not prevent him from prevailing in a suit had his rights been vested.
The owner of an art gallery entered into a written contract with an avid art collector whereby the art collector agreed to buy and the gallery owner agreed to sell for $7,500 any painting in the gallery by artist Alpha. The contract was to be executed on July 6 according to its written terms. The art collector went to the gallery on July 6 with a certified check in the amount of $7,500. The art collector pointed out a painting by a different artist hanging on the wall, and told the gallery owner that that was the painting he wanted, and that he would also take its old-fashioned $250 gilt frame to go with it. The gallery owner responded that the painting was by the artist Beta, but that the art collector could have it with the frame if he was willing to pay $250 extra for it. This enraged the art collector, and he filed suit against the gallery owner, asserting in his pleading that he remains able and willing to tender $7,500 to the gallery owner. He also asserts that prior to signing the contract, the parties agreed orally that the art collector could have a painting by Beta for the same price in lieu of one by Alpha, and that the gallery owner would throw in the frame for whatever painting he chose. The gallery owner denied that any such conversation took place. There are no other witnesses.
About which agreements should the court allow the art collector to testify?
A The oral agreement for the painting, but not the oral agreement for the frame.
B The oral agreement for the frame, but not the oral agreement for the painting.
C Both the oral agreement for the painting and the oral agreement for the frame.
D Neither the oral agreement for the painting nor the oral agreement for the frame.
B
The court should allow the art collector to testify regarding just the oral agreement for the frame. Contractual terms that are set forth in a writing intended as a final expression of the parties’ agreement cannot be contradicted by evidence of any prior agreement or contemporaneous oral agreement. Although this parol evidence rule prohibits contradicting the writing, the terms of the writing may be explained or supplemented by consistent additional terms, unless the court finds from all the circumstances that the writing was intended as a complete and exclusive statement of the parties’ agreement. To determine whether the parties intended the writing to be the complete and exclusive statement of their agreement, it must be determined whether parties situated as were the parties to this contract would naturally and normally include the extrinsic matter in the writing. Here, the writing at issue states clearly that the painting subject to sale is any painting by Alpha. The art collector’s assertion of a prior agreement allowing him to buy a painting by Beta clearly contradicts the terms of the writing. Consequently, the parol evidence rule will render inadmissible testimony as to such an alleged agreement. (A) and (C) are therefore incorrect. The assertion that the parties agreed prior to signing the writing that the art collector could have a $250 frame at no additional cost does not contradict any of the terms of the writing. However, it does supplement those terms. As noted above, such supplementation is permitted unless there is a finding that the writing was intended by the parties as a complete and exclusive statement of the terms of their agreement. Under the UCC, which applies here because a sale of goods is involved, a writing is presumed not to be the complete and exclusive integration of all of the terms of the agreement. While the presumption may be overcome if the parties actually intended a total integration or it is certain that similarly situated parties would have included that term, there is no indication of that in these facts. Given that the subject of the contract was a $7,500 painting, a promise to throw in a frame priced at a fraction of the cost of the painting is likely to be found to be a consistent additional term. Given this finding, evidence of the alleged agreement regarding the frame will be admissible for the purpose of supplementing the terms of the writing. Thus, (D) is incorrect.
A homeowner hired a computer repair technician to fix his computer. The technician discovered that she needed a different type of memory card than she had, so she drove to the local electronics store to get what she needed. On the way back, she stopped at a liquor store to get a bottle of wine for a dinner party she was attending that night. When she was backing out of the parking lot, she negligently knocked over a pedestrian who was walking on the sidewalk adjacent to the parking lot.
In a negligence action by the pedestrian against the homeowner, is the pedestrian likely to prevail?
A Yes, because a principal is vicariously liable for the negligence of his agent.
B Yes, because the technician was on a detour and not a frolic.
C No, because the technician was on a frolic and not a detour.
D No, because the technician is an independent contractor.
D
The homeowner is not liable for the tortious actions of the technician because the technician is an independent contractor. When there is an employer-employee relationship between a principal and his agent, the employer is vicariously liable for torts committed by the employee within the scope of the employment relationship. This is the doctrine of respondeat superior. On the other hand, the general rule is that a principal is not liable for tortious acts of an agent who is an independent contractor. An agent is likely to be an independent contractor if she: (i) is engaged in a distinct business of her own; (ii) controls the manner and method by which she performs her tasks; (iii) is hired to do a particular job; (iv) supplies her own tools and materials; (v) is paid a given amount for the job; and (vi) is hired to do a short-term, specific job. Despite the general rule, a principal can be held liable for the tortious acts of an independent contractor if: (i) the independent contractor is engaged in inherently dangerous activities; or (ii) the principal has a duty that is nondelegable on public policy grounds (e.g., a land occupier’s duty to keep his land safe for business invitees). Also, a principal can be held liable for his own negligence in selecting an incompetent independent contractor. Here, the homeowner hired a computer repair technician to perform one particular job (fixing the homeowner’s computer). From the facts, it appears that the technician provided her own materials and controlled the manner and method in which she did her job. Therefore, the technician is, with respect to the homeowner, an independent contractor rather than an employee. The technician was not engaged in an inherently dangerous activity, nor is there any nondelegable duty of the homeowner involved. In addition, it does not appear that the homeowner was negligent in hiring the technician. Thus, the general rule applies, and the homeowner is not liable for the tortious conduct of the technician. (A) is wrong because a principal is vicariously liable only if the agent is an employee or the exceptions for independent contractors apply. As explained above, neither of these factors is present here. (B) and (C) are wrong because the frolic-detour distinction is inapplicable to these facts. For an employer to be vicariously liable, the tort must have occurred within the scope of the employee’s employment. To determine whether the tortious acts occurred within the scope of employment, a distinction is made based on whether the tortious conduct was committed while the employee was on a frolic or on a detour. Small deviations from an employer’s directions (a detour) fall within the scope of employment, while major deviations (a frolic) fall outside the scope. Because the technician was not an employee of the homeowner, there is no “scope of employment” issue to be analyzed.
Late one evening, a cook at a diner coming off his shift was grabbed in the parking lot by a large man wearing a ski mask. The man threatened to kill the cook and demanded his wallet. The man then pulled a knife from his pocket and lunged at the cook. The cook, having taken several self-defense courses, was able to fend off the man’s attack. After being struck by the cook several times, the man dropped the knife and fell to the ground. The cook, angry at the assault, took the knife and stabbed the man, killing him instantly.
Should the cook be convicted of murder?
A No, because he was acting in self-defense.
B No, but he may be convicted of manslaughter.
C Yes, because the killing was committed during the course of a felony.
D Yes, because the killing was not committed while acting in self-defense.
B
The cook may be convicted of manslaughter. At common law, murder was the killing of another human being with malice aforethought. Malice is: (i) the intent to kill; (ii) the intent to inflict great bodily injury; (iii) a reckless indifference to an unjustifiably high risk to human life; or (iv) the intent to commit a felony. A killing committed in self-defense, however, is not murder. A person may use deadly force in self-defense if: (i) he is without fault; (ii) he is confronted with unlawful force; and (iii) he reasonably believes that he is threatened with imminent death or great bodily harm if he does not respond with deadly force. Additionally, a killing that ordinarily would be murder is reduced to voluntary manslaughter when the killing is committed under the stress of adequate provocation (e.g., being subjected to a serious battery, being confronted with deadly force, or discovering one’s spouse in bed with another person). In the instant case, although the cook would have been justified in using deadly force to repel the initial attack, the facts indicate that the cook had successfully repelled the attack, and it appears that the cook no longer was facing a threat of imminent death. Thus, the right to use deadly force had passed. This makes (A) an incorrect answer choice. As a result, at first glance, it would appear that the cook committed murder, in that stabbing another in the heart with a knife indicates, at a minimum, that the defendant had the intent to inflict great bodily harm. However, it appears that the cook was still acting under adequate provocation, as he had just been subjected to a serious battery and had been confronted with deadly force. Thus, the killing that ordinarily would be murder is reduced to voluntary manslaughter, making (B) the correct answer choice. (C) is incorrect. While a killing committed during the course of an independent felony is felony murder, the rule does not apply to the homicide felony itself, such as manslaughter. Because the cook was committing the felony by killing the man, he cannot be guilty of murder based on a felony murder theory. (D) is an incorrect answer because it fails to take into account the reduction to voluntary manslaughter, as explained above.
