Mixed Questions - Set 5 Flashcards
A company operated a small amusement park on property it owned near a residential neighborhood. On a day when the park was closed, a 10-year-old girl snuck into the park with some friends by climbing over a chain link fence. While climbing on one of the carnival rides, the girl slipped and cut her leg on an exposed gear assembly, sustaining serious injuries.
Through her guardian ad litem, the girl brought suit against the company to recover damages for her injuries. At trial, she presented evidence of the accident and her injuries. In defense, the company established that the girl read and understood the “No Trespassing” signs that were attached to the fence. The company also established that it had not had any previous reports of children sneaking into the park when it was closed. Before submission of the case to the jury, the company moved for summary judgment.
Is the court likely to grant the company’s motion?
A Yes, because the girl was a trespasser who the company had no reason to anticipate would be on the property.
B Yes, because the girl knew she was trespassing and was old enough to recognize the danger.
C No, because the jury could find that the company should have foreseen that children would sneak into the park.
D No, because the appeal of the carnival rides attracted the girl into the park.
C
The court is not likely to grant the company’s motion because the jury must determine whether the attractive nuisance doctrine applies. Under this doctrine, a landowner has a duty to exercise ordinary care to avoid reasonably foreseeable risk of harm to children, including trespassing children, caused by artificial conditions on his property. Here, while the company has presented some evidence against application of the attractive nuisance doctrine, it is ultimately the trier of fact’s role to determine whether the doctrine applies and whether the company exercised ordinary care. Hence, the court will likely deny the company’s motion and allow the jury to make that determination. (A) is incorrect because the jury could find that even though the company was not aware of children trespassing, it should have anticipated that they might try to sneak onto the property because it was an amusement park operation. (B) is incorrect because even though the girl knew she was trespassing, the jury could find that she did not appreciate the risk of playing on the rides. (D) is incorrect because the fact that the girl was attracted onto the land by the artificial condition is just one factor for determining whether the attractive nuisance doctrine applies. Foreseeability of harm to a child is the true basis of liability.
The owner of a used car dealership and his business had been under investigation by the IRS for several months because of suspected fraudulent tax returns. In addition, a police detective who had been investigating a stolen car ring uncovered evidence indicating that the car dealer might be a part of the ring. The detective went to the car lot and found evidence indicating that the ring was operating through there. The car dealer then agreed to accompany the detective to the station to make a statement on the evidence. On the way he voluntarily informed the detective about the fraudulently filed tax returns, because he believed that by revealing these facts he might receive a lighter sentence for his involvement in the stolen car ring.
At his trial for filing false tax returns, the car dealer’s attorney moved to exclude the statement he made. The best argument for admitting the statement is that:
A The police detective was not an agent of the Internal Revenue Service.
B The car dealer had not been formally charged at the time that the statement was made.
C The statement was volunteered by the car dealer.
D The statement was made prior to the arrest of the car dealer.
C
The best argument for admitting the statement is that it was volunteered by the car dealer. Generally, Miranda warnings and a valid waiver are prerequisites to the admissibility of any statement made by the accused during custodial interrogation. If the defendant is not in custody, or if the police are not “interrogating” the defendant, Miranda warnings are not required. Thus, the best argument for admitting a statement made by the defendant who had not been provided Miranda warnings must be either that the defendant was not in custody at the time the statement was made or that the statement was not the result of police interrogation (i.e., that the statement was volunteered). Thus, (C) is the best answer. (A) is wrong because the agency that the officer works for is not relevant. The fact that a confession offered in a federal prosecution was made to a police officer will not automatically allow it into evidence. It will be suppressed if it is the product of some violation of the defendant’s constitutional rights by the police officer. (B) is wrong; if the car dealer had not been formally charged, his Sixth Amendment right to counsel would not be implicated by his confession to the police detective. However, this would not prevent suppression of the confession if his Fifth Amendment Miranda rights were violated. (D) is wrong because Miranda violations can occur before a formal arrest. The test is whether the defendant was “in custody” at the time the statement was made.
On November 5, an electronics store owner realized that his stock of 15 copies of the most popular video game of the holiday shopping season would not last until the first of the next month. Seeing an advertisement from the manufacturer of the game in a trade journal listing its price at $3,000 per hundred, with delivery one week from order, the store owner e-mailed to the manufacturer an order for 100 copies of the game at $3,000 per hundred. There were no further communications between the store owner and the manufacturer. By November 25, the store owner realized that the manufacturer was not going to deliver any of the video games. He thus was forced to obtain additional stock by purchasing from a middleman at a cost of $4,000 per hundred. The store owner brings an action for breach of contract against the manufacturer.
Who will prevail?
A The manufacturer, because the communications between the parties were not definite or certain enough to form a contract.
B The manufacturer, because it never accepted the offer contained in the store owner’s e-mail.
C The store owner, because his e-mail was an acceptance of the manufacturer’s offer.
D The store owner, because he changed his position in reliance on the manufacturer’s promise to deliver the video games within one week.
B
The manufacturer will prevail because it never accepted the offer. For a communication to be an offer, it must contain a promise, undertaking, or commitment to enter into a contract, rather than a mere invitation to begin negotiations. The broader the communicating media, e.g., publications, the more likely it is that the courts will view the communication as merely the solicitation of an offer. An advertisement in a trade journal generally is construed as an invitation to submit offers, not an offer itself. It is an announcement of the price at which the seller is willing to receive offers. Thus, the store owner’s e-mail was an offer that was never accepted by the manufacturer. (A) is wrong because the communications were definite and certain enough to form a contract. Under the UCC, only the quantity term must be definite and certain (or capable of being made so). Here, the quantity term, 100, was clear; the problem is that the offer containing it was not accepted. (C) is wrong because, as discussed above, the ad is not an offer. (D) is wrong because the ad in the trade journal was not a promise; hence, the store owner cannot rely on promissory estoppel or detrimental reliance to recover.
An officer on routine patrol noticed a flashlight moving within a darkened house and stopped to investigate. The suspect, who had broken into the home to steal valuables, caught sight of the patrol car, dropped the bag of valuables as he was about to carry them out of the house, and tried to sneak out the back way. The officer saw him sneaking out and seized him. The suspect, who had a lock-picking device in his possession, pulled out two $100 bills from his wallet, stating that he did not take anything and would like to forget the whole thing. The officer took the money, stating that she would give him a break this time around, and let the suspect go.
How may the officer be charged in this situation?
A As an accessory after the fact to burglary and larceny.
B As an accomplice to the crimes of burglary and larceny.
C As an accessory after the fact to burglary only.
D Neither as an accomplice nor an accessory after the fact.
C
The officer is an accessory after the fact to burglary. An accessory after the fact is one who receives, relieves, comforts, or assists another, knowing that he has committed a felony, in order to help the felon escape arrest, trial, or conviction. The crime committed by the principal must have been completed at the time aid is rendered. Here, the officer had a duty to arrest the suspect and failed to do so, instead letting him go. Her failure to act under these circumstances constituted sufficient assistance to the suspect to make her liable as an accessory after the fact. She almost certainly knew that the suspect had committed the felony of burglary, as she saw him with a flashlight in the darkened house and caught him sneaking out the back way with a lock-picking device in his possession. Under these facts, she can be liable as an accessory after the fact to burglary. (A) is incorrect because the facts do not indicate that the officer knew that the defendant had committed larceny when she let him go. She had stopped him outside of the house, and because he apparently had none of the home’s valuables in his possession, she had no reason to doubt his claim that he had not gotten anything from the house. Although she probably surmised that he had broken in with the intent to commit larceny, she had no way of knowing that he had completed the crime of larceny by carrying the bag of valuables almost out of the house. (B) is incorrect because an accomplice is one who, with the intent that the crime be committed, aids, counsels, or encourages the principal before or during the commission of the crime. Because the defendant had already completed his crimes when the officer stopped him, her only liability will be as an accessory after the fact. (D) is incorrect because, as discussed above, the officer can be held liable as an accessory after the fact to burglary.
A police officer stopped a boyfriend and girlfriend on a college campus under suspicion that they were selling illegal drugs out of their backpacks. The officer asked the two some questions and then asked if he could look in their backpacks. They consented to the search, but the officer found nothing suspicious in either backpack. The officer then patted them both down and found a package of drugs taped to the boyfriend’s chest. The boyfriend and the girlfriend were charged with possession. The boyfriend pleaded guilty to possession. Prior to trial, the girlfriend’s attorney moved to suppress the introduction of the drugs at her trial. At the suppression hearing, the attorney stipulated that the girlfriend owned the drugs.
How should the court rule on the motion?
A In favor, because the girlfriend was not in possession of the drugs.
B In favor, because both the boyfriend and the girlfriend had a reasonable expectation of privacy when the officer elected to search them.
C Against, because the girlfriend has stipulated that she owns the cocaine.
D Against, because the search of the boyfriend’s body did not violate the girlfriend’s reasonable expectation of privacy.
D
Because the girlfriend’s Fourth Amendment rights were not violated by the unlawful search of the boyfriend, the drugs may be introduced against the girlfriend at trial. Under Rakas v. Illinois (1978), Fourth Amendment rights may be enforced by the exclusion of evidence only at the instance of one whose own protection was infringed by the search and seizure. Ownership of the property seized does not automatically establish violation of one’s reasonable expectation of privacy; it is just one factor in the totality of the circumstances that the court will consider. [Rawlings v. Kentucky (1980)] Here, the drugs were seized from the boyfriend as a result of a search that may have violated his Fourth Amendment rights. However, nothing in the question indicates that the girlfriend had a reasonable expectation of privacy in the boyfriend’s body (such as the right to exclude others from searching the boyfriend if the boyfriend had consented). Under the circumstances in this case, the girlfriend’s ownership of the drugs does not establish a reasonable expectation of privacy with regard to the search of the boyfriend. (A) is incorrect because the fact that the girlfriend did not have actual possession of the drugs does not require that the drugs be excluded from her trial. She may be liable under the jurisdiction’s possession statute if she had sufficient dominion or control over the drugs to be in constructive possession of it. (B) is incorrect even though it is a true statement. The officer’s search of the girlfriend may have violated the girlfriend’s reasonable expectation of privacy, but no evidence was obtained by an illegal search of the girlfriend. The officer’s search of the boyfriend may have violated the boyfriend’s reasonable expectation of privacy but not the girlfriend’s expectation of privacy (as discussed above). Because the girlfriend’s Fourth Amendment rights were not violated by the search of the boyfriend, she cannot use the exclusionary rule to suppress introduction of the drugs. (C) is incorrect because the defendant has the right to testify and stipulate to facts at a suppression hearing without her testimony or stipulation being admitted against her at trial on the issue of guilt. [Simmons v. United States (1968)] This rule allows a defendant to assert a possessory or ownership interest in illegally seized evidence just for purposes of invoking the exclusionary rule; if she fails to have the evidence excluded, she may still deny possession or ownership at trial.
After reaching an oral agreement on the terms of representation, a law firm, at its clients' behest, instituted a class action lawsuit against a tobacco company for $100 million. Prior to signing the written contract outlining the parties' rights and responsibilities, including the fee arrangement, the firm's senior partner told the clients' representative in a moment of goodwill and generosity that if they won or the tobacco company settled, he would turn over half of the attorneys' fees in the case to a particular nonprofit group that funds research on lung cancer and other respiratory illnesses. After the law firm won the case and collected its fee of $33 million, it had second thoughts about turning over half of it to the nonprofit group. If the nonprofit group sues the law firm in an attempt to collect the $16.5 million, which of the following is the law firm's best defense to such action?
A The promise to turn over half of the attorneys’ fees was discharged by novation.
B A partial assignment (in favor of the nonprofit group) is ineffective.
C The promise to turn over half of the attorneys’ fees was not in writing.
D The law firm was simply attempting to confer a gift upon the nonprofit group.
D
The nonprofit group did not give consideration to the law firm in return for the law firm’s promise to turn over half of its attorneys’ fees to the group in the event it won or settled the class action suit. Thus, the law firm’s promise was gratuitous; i.e., it was simply attempting to confer a gift upon the nonprofit group, and the group could not compel the law firm to turn over the money. (A) is incorrect because there was no novation and, hence, no discharge of the promise. A novation substitutes a new party for an original party to a contract, and in the process discharges the old contract and creates a new one. Here, the parties to the contract (the law firm and the clients) did not change when the law firm, through its senior partner, made its gratuitous promise. (B) is incorrect because partial assignments are effective—an assignor may transfer some rights under the contract and retain others. (C) is incorrect because the promise did not fall within the Statute of Frauds, which requires a writing signed by the party to be bound. Although the amount in question was $500 or more, the promise was not for the sale of goods. Moreover, this was not a promise that, by its terms, could not be performed within a year—there was a possibility of completion within one year, for example, if the parties settled. Thus, the promise was not unenforceable due to the lack of a written agreement.
A young teenager pointed a squirt gun at an older teenager as if she was going to squirt him, although the younger teenager knew that the gun was empty. The older teenager did not know that the gun was empty and yelled, “A little water isn’t going to hurt me.” The younger teenager pulled the trigger and yelled back, “You’re lucky, it wasn’t even loaded.”
Is the younger teenager liable to the older teenager?
A Yes, because the younger teenager attempted a battery.
B Yes, because the younger teenager committed an assault.
C No, because the squirt gun was not loaded.
D No, because the older teen was not worried about getting wet.
B
The younger teenager is liable for assault. An assault is an affirmative act by the defendant done with the intent to place the plaintiff in apprehension of an imminent harmful or offensive contact to his person and that actually causes the plaintiff apprehension. Children are deemed to be capable of forming the intent for assault and other intentional torts. The plaintiff need not be placed in fear of the contact; an apprehension of contact that is offensive (that is, not consented to) is sufficient. Furthermore, the apparent ability to inflict the contact is all that is needed; the fact that it could not be carried out is irrelevant. Here, the older teenager was placed in apprehension of imminent offensive contact, namely the squirts of water. The younger teenager’s actions show that she intended to cause the older teenager to believe that he was going to get squirted, thus satisfying the intent requirement. (A) is incorrect. Under the transferred intent doctrine, a defendant who intends to commit a battery and does not succeed may be liable to the plaintiff for assault if the plaintiff was aware of the attempt. Here, however, the younger teenager knew the squirt gun was empty and was intending to commit an assault rather than a battery. (C) is incorrect. The fact that the squirt gun was unloaded does not affect the younger teenager’s liability, because the older teenager was not aware of that fact. As stated above, the apparent ability to inflict the contact is all that is needed; the fact that it could not be carried out is irrelevant. (D) is incorrect. While the older teenager claimed (probably truthfully) that he was not afraid of getting wet, apprehension of offensive contact is all that the tort requires. This element is satisfied here.
A motorist driving home one night on a desolate two-lane road stopped when he saw a person lying on the road next to a bicycle. The cyclist had slipped and fallen off his bicycle, and was knocked unconscious when he hit his head on the pavement. Not wishing to get involved and seeing that no one else was around, the motorist got back into his car and drove away without making any effort to help the cyclist, even though he had a cell phone with which he could have summoned aid. The cyclist remained lying in the same place and was later struck by another car.
If the cyclist brings suit against the motorist for injuries suffered when he was struck by the other car, will the cyclist prevail?
A Yes, because a reasonable person under the same circumstances would have come to the cyclist’s aid.
B Yes, because by stopping and examining the cyclist, the motorist, as a matter of law, assumed a duty to aid him.
C No, because the motorist was not responsible for causing the cyclist to be lying by the side of the road.
D No, because the cyclist’s injuries were caused by the negligence of another driver.
C
The cyclist will not prevail because the motorist was not responsible for putting the cyclist in a position of danger. While one whose conduct places another in a position of peril has a duty to assist the person, there is no general affirmative duty to rescue, except by a professional rescuer. Also, once any person decides to assist in a rescue, he must act as a reasonable person in an emergency situation. Here, the motorist was under no duty to assist the cyclist, and his actions when he stopped and got out of his car did nothing to make the cyclist’s situation worse (such as causing others not to stop because they believed the cyclist was receiving assistance). Hence, the motorist will not be liable. (A) is wrong because even though it appears that the motorist acted unreasonably, he is not liable because he had no duty to rescue. (B) is similarly wrong; his stopping did not by itself create a duty to rescue. (D) is wrong because the fact that another driver negligently injured the cyclist would not preclude the motorist from also being liable if he had been responsible for putting the cyclist in a position of danger.
The owner of a factory that uses widgets in making its product and a widget maker entered into negotiations over the telephone and, after a time, reached a general understanding that the factory owner would buy widgets from the widget maker. Following their conversation, the widget maker sent the factory owner a contract, which he had already signed, agreeing to sell 1,000 widgets to the factory owner for a total contract price of $10,000. Upon receipt of the contract in the mail, the factory owner signed the contract and deposited an envelope containing the contract in the mailbox located in front of his workplace.
Before the widget maker received the contract, the factory owner had a change of heart. He telephoned the widget maker and told him that he could not afford to buy the widgets he had ordered, and he was “not interested in that contract we talked about.” The widget maker replied, “That’s all right, I understand. Maybe we can do business some other time.” The next day, the signed contract was delivered to the widget maker’s office. The widget maker, also having had a change of mind, decided that he wanted to enforce the contract.
Is the contract enforceable against the factory owner?
A Yes, because the acceptance occurred prior to rejection.
B Yes, because of the parol evidence rule.
C No, because the offer to rescind was accepted and that discharged the original contract.
D No, because the rejection by telephone voided the acceptance by mail.
A
The contract is enforceable because the mailbox rule applies here. Acceptance by mail creates a contract at the moment of posting, properly addressed and stamped, unless the offer stipulates that acceptance is not effective until received, or an option contract is involved. If the offeree sends an acceptance and then rejects the offer, the mailbox rule applies; i.e., a contract is created upon dispatch of the acceptance. Because no option contract is involved here, and the widget maker’s offer did not state that the factory owner’s acceptance would be effective only when received, his acceptance was effective the moment he placed the envelope containing the contract in the mailbox. His attempt to reject occurred after acceptance took place. Thus, a valid contract was formed and the widget maker may enforce it. (B) is incorrect because nothing in the parol evidence rule would serve to validate the contract. Ostensibly, this choice implies that there is a contract because the parol evidence rule will prevent the factory owner from introducing the oral rescission. However, as discussed below, the rescission is ineffective because there was no meeting of the minds. The parol evidence rule would not prevent introduction of the rescission if it were otherwise valid. The parol evidence rule of the UCC merely prohibits a party to a goods contract from contradicting an integrated writing with evidence of any prior agreement or contemporaneous oral agreement. Subsequent agreements such as the attempted rescission here can be introduced. Therefore, the parol evidence rule does not serve to validate the contract here. (C) is incorrect because there is no “meeting of the minds” concerning the rescission. A contract may be discharged by an express agreement between the parties to rescind; the agreement to rescind is itself a binding contract. Because the widget maker did not know that the factory owner had accepted the contract, his statement that “that’s all right” cannot be construed as acceptance of the factory owner’s offer to rescind. Therefore, a contract to rescind was not formed. (D) is incorrect because the telephone rejection did not void the acceptance by mail. As discussed above, if the offeree sends an acceptance first, followed by a rejection, the mailbox rule applies; i.e., a contract is created upon dispatch of the acceptance. Because the factory owner’s telephone rejection took place after his acceptance by mail, his acceptance was effective and a contract was created when the letter was mailed. While an offeree will be estopped from enforcing the contract if the offeror receives the rejection first and changes his position in reliance on it, the widget maker is the one wanting to enforce the contract here.
