Mixed Questions - Set 4 Flashcards
A newspaper printed in a news article that a successful businessperson running for the state legislature had attempted suicide and had just been released from the hospital, where he had undergone intensive psychotherapy. Actually, the businessperson had been hospitalized because he had contracted hepatitis. The businessperson’s opponent, the incumbent legislator, read the story into the legislative record the next day.
The businessperson sued the incumbent for defamation. At trial, the businessperson established that the incumbent had serious doubts as to the accuracy of the story when she read it into the record.
Is the businessperson likely to recover?
A Yes, because he established that the incumbent acted with actual malice.
B Yes, because the statement was slander per se.
C No, because the incumbent was relying on the veracity of the newspaper article.
D No, because the incumbent was privileged to make the defamatory statements.
D
The businessperson will not recover against the incumbent because, as a state legislator, she was absolutely privileged to read the story into the record on the floor of the legislature. Under certain circumstances, a speaker will not be liable for defamatory statements because she is afforded an absolute privilege. Such a privilege is not affected by a showing of malice, abuse, or excessive provocation. Remarks made by either federal or state legislators in their official capacity during legislative proceedings are absolutely privileged. There is no requirement of a reasonable relationship to any matter at hand. The incumbent is a state legislator. When she read the newspaper article into the legislative record, she was speaking in her official capacity as a legislator, on the floor of the legislature. Thus, her reading of the article is cloaked with absolute privilege, and she will be shielded from liability for defamation. (A) is incorrect because, even though the businessperson appears to have established actual malice by the incumbent, he will not recover. The businessperson, as a candidate for public office, is a public figure, and information about his health is probably a matter of public concern. Thus, to recover, the businessperson must show actual malice (i.e., knowledge of falsity or reckless disregard for truth or falsity). However, this showing of malice still will not provide the businessperson a recovery because the incumbent has an absolute privilege. If she had only a qualified privilege, a showing of malice would defeat the privilege. (B) is incorrect because slander per se will not provide the businessperson a recovery. Slander per se is a characterization applied to certain categories of spoken defamation. If defamation falls within one of these categories, injury to reputation is presumed without proof of special damages. One such category is a defamatory statement that adversely reflects on the plaintiff’s abilities in his business, trade, or profession. Although statements to the effect that the businessperson suffered from severe psychological problems might adversely reflect on his fitness for public office, this would be significant only in terms of establishing that the businessperson need not prove special damages. However, proof of damages is of no importance here, because the incumbent is not liable due to her absolute privilege. If the incumbent is shielded from liability, the possible existence of slander per se is of no use to the businessperson. Note also that, in any event, any defamation here would be characterized as libel, rather than slander. Libel is a defamatory statement recorded in writing or some other permanent form. Where the original defamation is libel, any repetition, even if oral, is also libel. Here, the original defamation was in a newspaper article and thus was libel. Consequently, the oral repetition of the article would also be libel, if the incumbent were subject to defamation liability. (C) is incorrect because, if the incumbent were not protected by the absolute privilege, the mere fact that she relied on the article would not afford her a defense. A republisher (one who repeats a defamatory statement) is liable on the same general basis as a primary publisher.
An insurer offered a plan to cover an insured’s catastrophic illnesses for the remainder of the insured’s life in exchange for a large one-time payment at the inception of coverage. Because the program was experimental, the insurer would accept only a fixed number of applications during the enrollment period. A recent retiree in good health was one of the applicants accepted, and he enrolled in the program. He paid the one-time premium of $30,000 a few days before coverage began. The day after his coverage started, he was struck by a bus and killed. The executor of the retiree’s estate reviewed the policy and immediately notified the bank to stop payment on it. The insurer then filed suit against the retiree’s estate.
Will the court compel the estate to pay the premium to the insurer?
A Yes, because the insurer necessarily declined to take another applicant during the enrollment period because of the retiree’s promise to buy the policy.
B Yes, because the risk of the timing of the retiree’s death was assumed by both parties and built into the cost of the contract.
C No, because the purpose of the contract between the retiree and the insurer had been frustrated.
D No, because it is unconscionable for the insurer to have charged the retiree so much for so little value received.
B
In entering into the contract, the possibility that the retiree would die shortly after paying the premium and therefore receive virtually nothing in return should have been apparent to both parties. Actually, both parties took risks in this regard, as the retiree could have incurred medical expenses for a catastrophic illness during his lifetime that would have required the insurer to make payments far exceeding the one-time $30,000 premium. The retiree and the insurer were equally aware of these various possibilities, yet they freely entered into an agreement with this knowledge and on terms that were apparently acceptable to each of them. Despite the apparent unfairness of the result, a court generally will not interfere with the parties’ right to make their own deal. Thus, the insurer is entitled to the premium. (D) is incorrect because the price paid by the retiree was freely arrived at by the parties. There is no indication of any inequality in bargaining power or any other factors indicative of hardship or oppression exerted against the retiree by the insurer. The retiree was free to enter into an agreement that turned out to be a bad one for him. Therefore, there are no factors pointing to the existence of unconscionability. (A) is incorrect because the insurer is entitled to the payment of the premium regardless of whether it declined to take another applicant. As detailed above, the possibility of the retiree’s death occurring in the time frame that it did was part of the risk voluntarily undertaken by the parties, and, as such, will not afford a basis for preventing the insurer from recovering the premium payment. The payment of $30,000 in return for the insurer’s promise of catastrophic insurance coverage was part of a bargained-for exchange. Regarding (C), discharge by frustration of contractual purpose requires that, at the time of entering into the contract, the parties did not reasonably foresee the occurrence of the act or event leading to the frustration. Here, the parties should have foreseen the possibility that the retiree would die shortly after the policy took effect. Consequently, this is not a proper case for the application of frustration of purpose.
At the defendant’s trial for murder, facts were introduced that the defendant acted in the heat of passion. After a lengthy trial, the defendant was convicted of manslaughter. On appeal, the conviction was reversed on procedural grounds. The state immediately moved to retry the defendant, again bringing murder charges against her. The defendant moved to strike the murder charge, and the court refused to grant the motion. After the second trial, the defendant was again convicted of the lesser charge of manslaughter. The defendant appeals the second conviction, claiming that it violated her constitutional rights.
May the second conviction stand?
A No, because the state could not refile charges after the acquittal.
B No, because the state could not retry the defendant for murder under the circumstances.
C Yes, because the state could retry the defendant because the manslaughter conviction was overturned.
D Yes, because the defendant was reconvicted of the lesser charge again, so any error was harmless.
B
The second conviction will not stand. The Double Jeopardy Clause prohibits retrying a defendant whose conviction has been reversed on appeal for any offense more serious than that for which she was convicted at the first trial. This right is violated by retrial for a more serious offense, even if at the second trial the defendant is only convicted of an offense no more serious than that for which she was convicted at the first trial. Thus, (B) is correct because the state could not retry the defendant for murder. (A) is an incorrect statement of the law. The state may retry the defendant, subject to the limitation discussed above. (C) is incorrect. Although a retrial is permissible, the retrial is subject to the limitation discussed above. (D) is also incorrect. Such a violation of the Double Jeopardy Clause is not considered to be harmless even if the defendant is convicted of the same lesser offense again.
The defendant and an accomplice were on trial together for burglary. Both had given confessions implicating themselves and their accomplice. At trial, the defendant maintained that his confession had been obtained through improper coercion by the police. For the purpose of countering the claim of coercion, the prosecution seeks to place the accomplice’s confession into evidence. After objection by the defendant’s counsel, the judge agrees to issue a limiting instruction to the jury that the confession is to be considered only with regard to the question of whether the defendant’s confession was coerced.
May the accomplice’s confession be admitted under that condition?
A No, because admission of the confession violates the defendant’s right of confrontation.
B No, unless the accomplice takes the stand and subjects himself to cross-examination regarding the confession.
C Yes, as long as all portions of the confession referring to the defendant can be eliminated.
D Yes, because the judge’s instruction limits consideration of the confession only to the issue of coercion.
D
The confession is admissible with the judge’s limiting instruction. Where two persons are tried together and one has given a confession implicating the other, the general rule is that the Sixth Amendment right to confront adverse witnesses prohibits the use of such a statement. This problem arises because of the inability of the nonconfessing defendant to compel the confessing co-defendant to take the stand for cross-examination at their joint trial. As exceptions to the general rule, the statement may be admitted if: (i) all portions of the statement referring to the other defendant can be eliminated (so that there is no indication of that defendant’s involvement); (ii) the confessing defendant takes the stand and subjects himself to cross-examination with respect to the truth or falsity of what the statement asserts; or (iii) the confession of the nontestifying co-defendant is being used to rebut the defendant’s claim that his confession was obtained coercively, in which case the jury must be instructed as to the purpose of the admission. The accomplice’s confession, which the prosecution seeks to introduce into evidence, implicates the defendant in the commission of the crimes charged. Consequently, introduction of this confession raises a problem based on the right of confrontation. However, given that the judge will issue the limiting instruction, the confession is admissible. (D) is therefore correct and (A) is incorrect. (B) and (C) are incorrect because neither of those conditions is necessary for the confession to be admitted as long as the judge issues a limiting instruction, as discussed above.
A mining company closed down operations at an isolated mine it owned and informed the electric company that electricity in the power poles that led to the mine should be cut off. However, the electric company, following its standard policy, left the power running in the line to deter thieves from stealing valuable transformers and cables. The mining company was unaware that the power was left on.
A hitchhiker who was passing by the entrance to the mine saw that it was closed, so he went onto the property and climbed up a power pole to steal a transformer. He received an electric shock and fell from the pole, suffering serious injuries.
If the hitchhiker sues the mining company, which of the following is the mining company’s strongest defense?
A The hitchhiker was a trespasser.
B The hitchhiker was a thief.
C The mining company asked the utility company to turn off the power.
D The mining company was unaware that the utility company had not turned off the power.
A
The hitchhiker’s status as a trespasser is the mining company’s strongest defense because it means that the mining company owed no duty to the hitchhiker, thereby completely relieving the mining company of any liability for his injuries. An owner or occupier of land owes no duty to an undiscovered trespasser. However, with regard to a discovered trespasser, the owner or occupier must warn of or make safe artificial conditions known to the landowner that involve a risk of death or serious bodily harm and that the trespasser is unlikely to discover. The hitchhiker, having come onto the land owned by the mining company without permission or privilege, is a trespasser. Because the mining company had no notice of the hitchhiker’s presence on the property, the hitchhiker is deemed to be an undiscovered trespasser. Consequently, the mining company owes no duty to the hitchhiker with regard to the injuries incurred on its property. (C) and (D) each present factors that would be helpful to the mining company, but they are not as strong as (A). The fact that the mining company asked the power company to turn off the power, as well as the mining company’s being unaware that it had not turned off the power, would be indicative of the exercise of due care on the part of the mining company (i.e., it took every reasonable step to see that the power was not left running in the abandoned mine, and could not reasonably have known that in fact the power was still on). However, if it is shown that no duty of care extended from the mining company to the hitchhiker, then the first element of a prima facie case for negligence is absent, thus eliminating any need for the mining company to attempt to show that it acted with ordinary, reasonable care. As a result, (A) is a much stronger defense than (C) or (D). (B) is incorrect because the fact that the hitchhiker tried to commit theft of the power company’s transformers is not relevant to any duty that may have been owed to him by the mining company. It is relevant that the hitchhiker was a trespasser, because this means that the mining company owed him no duty. However, the hitchhiker’s status as a thief is of no significance.
A woman was the subject of a murder investigation. The investigation continued for more than two years, with the woman frequently being called in for questioning. Finally, the woman was indicted for the murder. The woman’s lawyer filed a motion to dismiss all charges against her, arguing that the excessively long investigatory period violated the woman’s constitutional right to a speedy trial.
Despite the pending motion, the woman decided that she wanted to “get it over with,” and she told the judge that she wished to plead guilty. The judge then explained the charges to the woman and asked her if she understood them. She replied, “Yes.” The judge then asked the woman if she understood that she was not required to plead guilty. She responded in the affirmative. Finally, the judge described the maximum sentence and asked the woman if she understood that she could receive the maximum sentence, which was life imprisonment. She again responded, “Yes,” and maintained that she still wished to plead guilty. The judge accepted the woman’s plea and sentenced her to 30 years’ imprisonment in the state penitentiary. Six months later, the woman filed a motion to set aside the guilty plea.
Which of the following provides the best argument that the woman has a constitutional basis for relief?
A The judge did not rule on the pending motion to dismiss before accepting her guilty plea.
B The judge did not attempt to determine if the woman had actually committed the murder.
C The judge did not determine whether the files in the prosecutor’s office contained any undisclosed exculpatory evidence.
D The judge did not determine whether the woman understood that she had a right to a trial by jury.
D
The judge’s failure to determine whether the woman understood her right to trial by jury indicates that her guilty plea does not satisfy the constitutional requirement that it be “voluntary and intelligent.” A guilty plea is a waiver of the Sixth Amendment right to a jury trial. To be a valid waiver, the judge must determine on the record that the guilty plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant. To ensure that this is the case, the judge should make sure that the defendant is informed of the nature of the charge to which the plea is offered, of the maximum possible penalty, that she has a right not to plead guilty, and that by pleading guilty she waives her right to a trial. If the judge did not determine whether the woman understood that she had a right to a trial by jury, her plea will not be a sufficiently intelligent choice to satisfy the constitutional standard, and therefore will not be immune from a post-sentence attack on it. (A) is incorrect because the woman had no legitimate grounds for her motion to dismiss for violation of her right to a speedy trial. The Sixth Amendment right to a speedy trial does not attach until the defendant has been arrested or charged. Pre-arrest delays do not violate this standard, nor do they violate general due process requirements unless they were in bad faith and prejudice the defendant. Otherwise, the only limitation on pre-arrest delay would be the statute of limitations for the particular crime. Thus, the failure of the judge to rule on the motion to dismiss would not be a good argument for setting aside the woman’s guilty plea. (B) is incorrect because most jurisdictions do not require that the record contain evidence of the defendant’s guilt or other factual basis for the plea. Unless the defendant claims her innocence while offering a guilty plea, the judge need not determine whether there is evidence to indicate that the defendant actually committed the crime. (C) is incorrect. While the prosecutor has a duty to disclose exculpatory evidence to the defendant, the judge may accept a guilty plea without determining whether the prosecutor has satisfied that duty.
A landowner entered into a written agreement with a real estate broker whereby the broker would receive a commission of 10% of the sale price if he procured a “ready, willing, and able buyer” for the landowner’s property and if the sale actually proceeded through closing. The broker found a buyer who agreed in writing to buy the property from the landowner for $100,000, the landowner’s asking price. The buyer put up $6,000 as a down payment. The agreement between the landowner and the buyer contained a liquidated damages clause providing that, if the buyer defaulted by failing to tender the balance due of $94,000 at the closing date, damages would be 10% of the purchase price. The landowner included that clause because she was counting on using the proceeds of the sale for a business venture that would likely net her at least $10,000.
The buyer became seriously ill and defaulted. When he recovered, he demanded that the landowner return his $6,000, and the landowner refused. The broker also demanded the $6,000 from the landowner and was refused. The broker and the buyer filed separate suits against the landowner, with the buyer pleading impossibility of performance. The two cases are consolidated into a single case.
How should the court rule as to the disposition of the $6,000?
A The landowner keeps the entire $6,000, because the liquidated damages clause is reasonable.
B The buyer gets the entire $6,000, because his performance was impossible.
C The broker gets the entire $6,000, which is 60% of the commission he is entitled to, because he substantially performed his part of the contract by producing a buyer willing to pay the $100,000 asking price.
D The broker gets $600 and the landowner gets $5,400, because the damages clause was reasonable and the broker is entitled to 10% of whatever the landowner realizes from the deal.
A
The landowner may keep the $6,000 as liquidated damages. A liquidated damages clause is enforceable if: (i) damages are difficult to ascertain at the time of the making of the contract, and (ii) the damages are a reasonable forecast of compensatory damages. Here, the landowner was unsure what her damages would be if she did not receive the sales proceeds from the property, but $10,000 seemed a reasonable amount. Thus, both criteria for valid liquidated damages clauses are met. (B) is incorrect because impossibility must be objective; i.e., performance cannot be accomplished by anyone. Physical incapacity of a person necessary to effectuate the contract may discharge contractual duties if that person’s performance is clearly impossible. (Usually this occurs in personal services contracts, where only that one person can perform the required duty.) Although the buyer was seriously ill, it is not clear that this made it impossible for him to produce the $94,000. Without more facts, it is reasonable to assume that someone else could have delivered the money or that his mortgage would still have gone through, etc. (C) is incorrect because the conditions for the broker’s payment were not met: It is debatable whether he produced a “ready, willing, and able” buyer, and in any event the sale did not actually proceed through closing. (D) is incorrect because the broker was to receive proceeds from the sale of the property; the $6,000 was damages and not sale proceeds.
The owner of a corner lot allowed a hedge on his property to become overgrown, obstructing the view of motorists at that corner. Two motorists were driving inattentively and each ran a stop sign at the intersection bordering the lot. Their cars collided in the intersection and one of the motorists was injured. She sued the owner of the lot. The jury determined that the lot owner was 10% at fault and each of the motorists was 45% at fault.
Will the injured motorist recover damages from the lot owner?
A Yes, because she was not more than 50% at fault.
B Yes, because it was foreseeable that motorists could be injured if the hedge was not cut back.
C No, because the other motorist’s negligence was a superseding cause of her injuries.
D No, because the lot owner’s fault was slight compared with the motorist’s fault.
B
The injured motorist may recover damages from the lot owner because the jury found that the lot owner should have foreseen that motorists could be injured if the hedge was not cut back. The lot owner owes the duty of an owner and occupier of land to those off the premises for unreasonably dangerous artificial conditions. In contrast to overgrown weeds, which are a natural condition for which no duty is owed absent a statute, a hedge is considered an artificial condition, analogous to a fence. Hence, by letting the hedge become so large that it created a foreseeable danger to motorists by obstructing their vision, the lot owner has breached his duty to the motorist. The other elements of the motorist’s negligence action (besides a duty and a breach of the duty) are actual and proximate cause, and damages. The motorist can establish actual cause by showing that, although she failed to notice the stop sign, she would have noticed another car traveling on a collision course with hers; i.e., but for the overgrown hedge, the motorist would have been able to avoid the accident. Proximate cause in an indirect case such as this can be established by showing that any intervening forces were foreseeable and not superseding. The other motorist’s negligent failure to stop may also have been caused in part by the overgrown hedge and is a foreseeable intervening force that does not break the chain of causation. Hence, (C) is incorrect. Under pure comparative negligence, the injured motorist can recover 10% of her damages even though her fault was greater than that of the lot owner. (A) is incorrect because a pure comparative negligence jurisdiction allows a plaintiff to recover no matter how great her negligence is. Thus, even though the motorists are both 45% at fault and the lot owner is only 10% at fault, the motorist can recover 10% of her damages from the lot owner. (D) is incorrect because, as discussed above, the lot owner is still liable for some damages in a pure comparative negligence jurisdiction even if his fault was only slight.
A man shopping for a leather jacket at a clothing store could not decide between two jackets, so the proprietor, who knew the man and his family well, let him take one of the jackets on approval. No mention was made by the proprietor of the method of payment he expected. The man wore the jacket on a visit to his grandfather, who liked it so much that when the man told him what the jacket cost and that he had taken it on approval, the grandfather said he would buy it for him if he promised to give some of his old clothes to a favorite charity for the poor at Christmastime. The man wholeheartedly agreed to donate the clothes to the charity at Christmas. Very pleased, the grandfather called the shop and told the proprietor to send the bill for the jacket to him, which he did. Before the bill was paid and before the Christmas season arrived, the grandfather fell ill and died. The grandfather’s executor has refused to pay the bill, and the man has not yet given any old clothing to the charity.
Will the proprietor be able to recover the price of the jacket from the estate?
A Yes, because the proprietor was the intended beneficiary of the promise between the man and his grandfather.
B Yes, because the man has no duty to give the clothing to the charity.
C No, because the grandfather’s implied promise to pay the proprietor arising from the phone call is unenforceable.
D No, because a condition has not yet occurred.
A
The proprietor can recover the cost of the jacket from the grandfather’s estate because the proprietor is an intended third-party beneficiary and his right to enforce the contract has vested. The rights of an intended third-party beneficiary vest 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 his position in justifiable reliance on the promise. Here, the proprietor qualifies as an intended beneficiary of the agreement between the man and his grandfather because the proprietor was expressly designated in the contract, he was to receive performance directly from the grandfather, and he stood in an existing contractual relationship with the man that required the man to either pay for the jacket or return it, making it likely that the young man’s purpose in making the arrangement with his grandfather was to satisfy the obligation to the proprietor. The proprietor can enforce the contract because his rights vested when he sent the bill to the grandfather at the grandfather’s request. Thus, the proprietor will prevail against the grandfather’s estate. (B) is wrong because the man does have a duty to give the clothes to the charity; if he does not do so, he will be in breach of his contract with his grandfather, and this would give his grandfather’s estate a defense to payment. However, the man’s time for performance (Christmastime) has not yet occurred, and so he is not in breach. Nevertheless, this fact is not the reason the proprietor will recover; he will recover due to his status as an intended beneficiary, not because this possible defense has been negated. (C) is wrong because both the result and the rationale are incorrect. The proprietor is not relying on the grandfather’s implied promise to him in the phone call; he is seeking to enforce his rights as a third-party beneficiary of the agreement between the man and his grandfather. Even if the grandfather had not called the proprietor, the proprietor could still have recovered against the grandfather’s estate because of his status as a third-party beneficiary. (D) is wrong because the man’s giving the clothes to the charity is not a condition that must be fulfilled before the grandfather’s estate must pay. The grandfather promised to pay for the jacket if the man promised to donate the clothes; i.e., the consideration for the grandfather’s promise was the man’s promise, not his actually donating the clothes. As soon as the man made the promise, the grandfather’s duty to pay became absolute. (If the man does not donate the clothes, he will be in breach of his contract with his grandfather, but the grandfather’s performance was not conditioned on the man’s donating the clothes.)
