Mixed Questions - Set 6 Flashcards
A dog owner lived next door to a day care center. Because he had a large yard and there were no applicable zoning restrictions, he installed a kennel and began training attack dogs to sell to businesses. As soon as he opened the business and posted signs in front advertising the exceptional ferocity of the dogs, some parents who had children enrolled in the day care center became alarmed at the prospect of the dogs right next to the yard where the children played, especially because the children could see and hear the dogs being taught to attack people. Within a few months of the dogs’ arrival next door, the owner of the day care lost 10% of her enrollment.
If the day care owner brings a nuisance action against the dog owner, what will be the most critical factual issue that the trier of fact must resolve to determine who should prevail?
A Whether the day care owner suffered other damages in addition to her economic losses.
B Whether the day care owner’s use of her property makes her business abnormally sensitive to the presence of the dogs.
C Whether the dog owner conducted his business with reasonable care.
D Whether the dog owner was apprised of the day care owner’s concerns and did nothing to alleviate them.
B
The determining factor for the day care owner in prevailing will be whether her use of the property is abnormally sensitive to the presence of the dogs. Nuisance is an invasion of private property rights by conduct that is either intentional, negligent, or subject to strict liability. Strict liability will be the basis for a nuisance action (sometimes called an “absolute” nuisance or a “nuisance per se”) when wild animals or abnormally dangerous domestic animals are involved, or when defendant is engaged in an abnormally dangerous activity. Thus, dogs known by their owner to be vicious may create a private nuisance when they interfere with the use and enjoyment of the land next door, and the owner may be subject to strict liability because of his knowledge of the dogs’ dangerous propensities. [See Restatement (Second) of Torts §822, comment j] For the presence of the dogs to be an actionable nuisance, however, they must result in a substantial interference with the day care owner’s use of her land. The interference will not be characterized as substantial if it is merely the result of plaintiff’s specialized use of her own property. [See Foster v. Preston Mill Co., 268 P.2d 645 (1954)-D not strictly liable for blasting operations that caused female mink on P’s ranch to kill their young in reaction to the vibrations] Hence, (B) states the most critical factual issue. (A) is incorrect because the day care owner does not need to establish other types of damages to recover once she has established that the dog owner’s activity is an actionable interference with the use and enjoyment of her land. (C) is incorrect because the exercise of reasonable care by the dog owner is irrelevant; the day care owner’s nuisance action arises from an activity for which the dog owner is strictly liable. (D) is incorrect because the dog owner’s knowledge of his interference with the day care owner’s use of her property would only establish that his conduct might also be an intentional nuisance, which would require the day care owner to show unreasonableness, i.e., that her injury outweighs the utility of his conduct. She does not need to make that showing for a nuisance action based on strict liability.
The defendant was fired from his sales job while calling on customers in another city. He failed to return the company car that he was using for his sales visits; instead, he sold the car to a “chop shop” for cash.
As to the car, what crime has the defendant committed?
A Larceny.
B Larceny by trick.
C Embezzlement.
D Theft by false pretenses.
C
The defendant has committed embezzlement because a court will probably find that he had “possession” of the car at the time he appropriated it. Embezzlement is the fraudulent conversion of the property of another by a person in lawful possession of it. In the instant case, the car belonged to the company for which the defendant worked, but the company probably gave the defendant lawful possession of it so that he could make sales calls. When he sold the car rather than return it, he wrongfully converted the car. This is embezzlement. (A) is incorrect. Larceny is the taking and carrying away of the property of another by trespass with the intent to permanently deprive the person of the property. The intent to permanently deprive must be concurrent with the taking and carrying away. In the instant case, the defendant did not have the intent to permanently deprive the company of the car when he was given the car. Thus, the intent element is missing. (B) is also incorrect. Larceny by trick is a specialized form of larceny. For larceny by trick, the defendant must acquire possession of the property by some misrepresentation concerning a present or past fact. The defendant did not come into possession of the car by misrepresentation, making (B) incorrect. For similar reasons, (D) is also incorrect. The crime of false pretenses is the obtaining of title to the property of another by an intentional (or knowing) false statement of past or existing fact with the intent to defraud. As with larceny by trick, the defendant here came into possession of the vehicle without use of a misrepresentation. Furthermore, he also never obtained title to the car. Thus, (D) is an incorrect answer.
A plumber working for a company providing plumbing services to commercial and industrial establishments was required to be “on call” for emergency plumbing services 24 hours a day, and was required to drive his company van home each night so he would have all of his tools and equipment at hand for any calls. However, he was not permitted to use the company van for personal errands. On his way home one afternoon, he took a detour toward a supermarket a few blocks away to pick up some items for dinner. While entering the supermarket parking lot, he drove negligently and struck a pedestrian, seriously injuring him. The pedestrian filed suit against the plumber’s company in a jurisdiction that maintains traditional common law rules regarding contribution and indemnity, and the jury awarded him $100,000 in damages, which the company paid.
If the company sues the plumber to recoup its loss in the lawsuit, which party will prevail?
A The company can recover 100% of the judgment as an indemnity, because the plumber was negligent, not the company.
B The company will prevail, because the company had a rule against using company vehicles for personal errands.
C The company will not prevail, because the company has already been found liable under principles of vicarious liability in the lawsuit by the pedestrian.
D The company will not prevail, because the company required the plumber to be “on call” 24 hours a day.
A
The company can recover 100% of the judgment under common law indemnity rules. The principle of indemnity permits a shifting between the tortfeasors of the entire loss (i.e., the payment made to satisfy plaintiff’s judgment). This is in contrast to contribution, which apportions the loss among those who are at fault. Indemnity is available in vicarious liability situations, where one party is held liable for damages caused by another simply because of his relationship to that person. Hence, an employer such as the plumber’s company that has been held vicariously liable under the doctrine of respondeat superior can obtain indemnification from the employee (the plumber) whose conduct actually caused the damage. (B) is incorrect because the company need not show that the plumber breached a company rule before it can obtain indemnity. The fact that the plumber’s negligence caused the injury and that the company was liable for the judgment solely because of its relationship to the plumber permits indemnification here. (C) is incorrect because vicarious liability is one of the most common areas where indemnity is available. (D) is incorrect because the company’s requirement that the plumber be on call 24 hours a day merely establishes that the company will be vicariously liable for the plumber’s negligence; it does not bar the company from recovering from the plumber because the plumber’s negligence actually caused the damage.
A father and his son were arguing on the front lawn of the son’s house. The father, who was a bigger and slower man, attempted to end the argument by pushing his son as hard as he could. The son, fearful that his father would continue to escalate the fight as he has done in the past, tackled the father and pinned him to the ground, although the son could have easily escaped into his house.
If the son is tried for battery, should he be found guilty?
A Yes, because the son “offensively touched” his father by tackling and pinning him.
B Yes, because the son could have retreated.
C No, because the son was justified in tackling and pinning his father.
D No, because the son did not intend to hurt his father.
C
The son should be found not guilty. Battery is an unlawful application of force to the person of another resulting in either bodily injury or an offensive touching. Battery is not a specific intent crime; criminal negligence meets the state of mind requirement for battery. Given that the son tackled and pinned the father, an offensive touching occurred. Furthermore, the state of mind requirement has been satisfied because the “criminal negligence” state of mind is satisfied by an intentional act—i.e., acting with a higher state of mind satisfies a lower state of mind requirement. However, the son can raise the defense of self-defense: A person is entitled to use such force as he reasonably believes is necessary to protect himself against the use of unlawful force on himself. Here, the son was fearful that the father would escalate the fight because the father had done so in the past. Thus, it appears that the son was justified in using nondeadly force to prevent a further battery upon his person. As a result, (C) is the correct answer. (A) is incorrect because it does not account for self-defense. (B) is incorrect because one has no duty to retreat before using nondeadly force. (D) is incorrect because it implies that the intent to cause harm is an element of the crime of battery. As stated above, battery is a general intent crime requiring, at a minimum, criminal negligence. Furthermore, actual physical harm is not required—an “offensive touching” suffices.
A jeweler sent a fax to a gold dealer offering to sell the dealer 100 ounces of gold at $900 per ounce. The dealer immediately responded via fax, “What are your terms of shipment?” The jeweler faxed back, “F.O.B. my store.” The dealer faxed back, “I accept.”
Who must pay the freight charge from the shop to the dealer?
A The jeweler, because of the F.O.B. term.
B The jeweler, because he is a merchant seller.
C The gold dealer, because of the F.O.B. term.
D The gold dealer, because both parties are merchants.
C
The gold dealer must pay the freight because that is what the offer stated, and he accepted the offer. The term “F.O.B.” is a delivery term under the UCC, which governs the contract here because it is a contract for the sale of goods. That term means “free on board,” and it obligates the seller to get the goods to the location indicated after the term. [UCC §2-319(1)] Here, the term indicates that the goods are “F.O.B. [jeweler’s] shop,” so the jeweler is not obligated to pay for costs of shipment beyond his shop. Thus, (A) is incorrect. (B) and (D) are incorrect because the parties’ status as merchants is irrelevant here. If an acceptance were sent that added the F.O.B. term, whether the parties were merchants would be relevant in determining whether the terms of the contract included only those of the offer or also those of the acceptance. However, we do not have a case where the acceptance added terms. The gold dealer accepted all terms of the offer unequivocally with the fax stating, “I accept.”
A breeder of quarter horses entered into an agreement with a rancher to sell and deliver two quarter horses, one to the rancher and the other to the rancher’s fiancée as a gift. Although the fair market value of each horse was $3,000, the horse breeder agreed to sell both horses together for a total price of $5,000. Under the agreement that the rancher wrote out and both parties signed, the horse breeder agreed to deliver one horse to the rancher on August 1, at which time the rancher agreed to pay the horse breeder $5,000. The horse breeder further agreed to deliver the other horse to the rancher’s fiancée on August 12.
On August 1, the horse breeder delivered the first horse to the rancher and, at the same time, the rancher gave the horse breeder a certified check for $5,000. On August 12, the horse breeder brought the second horse to the residence of the rancher’s fiancée and told her that the horse was a gift from the rancher. The rancher’s fiancée told the horse breeder that she loathed quarter horses and she refused to take the horse. The horse breeder brought this horse back to his farm and sent an e-mail to the rancher, informing him that his fiancée refused delivery and that he (the horse breeder) could not keep the horse. Two weeks later, after not hearing from the rancher, the horse breeder sold the horse to an interested party for $3,000.
If the rancher sues the horse breeder, how much should the rancher recover?
A $3,000, the value of the second horse.
B $2,000, the difference between the value of the horse delivered to the rancher and what the horse breeder received from the rancher.
C Nothing, because the rancher was not financially harmed.
D Nothing, because the horse breeder performed his part of the contract.
B
The rancher should recover $2,000 because that is the amount by which the horse breeder would be unjustly enriched. In a proper tender of delivery under UCC section 2-503, the seller must put and hold conforming goods at the buyer’s disposition for a time sufficient for the buyer to take possession. The seller must give the buyer notice reasonably necessary to enable him to take possession of the goods. Proper tender of delivery entitles the seller to acceptance of the goods and to payment according to the contract. [UCC §2-507] Having made a proper tender of delivery at the place designated by the rancher and having notified the rancher of his fiancée’s nonacceptance, the horse breeder has discharged his duty under the contract. When a party’s duty of performance is discharged, the other party is entitled to restitution of any benefits that he has transferred to the discharged party in an attempt to perform on his side. With the horse breeder’s contractual duty to deliver the second horse to the rancher’s fiancée discharged, the horse breeder would be unjustly enriched, to the detriment of the rancher, if he were permitted to keep the entire $5,000 paid to him by the rancher. The rancher conferred a benefit upon him by paying him $5,000 in exchange for two horses, one of which was to be delivered to the rancher, the other to the rancher’s fiancée. Because delivery to the fiancée cannot be accomplished, the rancher finds himself in a position of having paid $5,000 for one horse, the fair market value of which is $3,000. Thus, if the horse breeder is permitted to retain the sum of $5,000, he will be unjustly enriched by $2,000. Therefore, the rancher should recover restitution of $2,000. (A) is incorrect because $3,000 represents more than the amount by which the horse breeder has been unjustly enriched. Although the value of the second horse is $3,000, keep in mind that the horse breeder’s duty to deliver the horse to the rancher’s fiancée has been discharged (and the horse breeder still has title to the horse under the UCC rule that title passes on delivery). The rancher received a discount of $1,000 off the total fair market value of the two horses because he was buying both of them. Once the horse breeder’s duty under the contract is discharged, the rancher cannot recover the benefit of that bargain under the contract; he can only recover the benefit conferred upon the horse breeder, the retention of which would unjustly enrich the horse breeder. Because the horse breeder has received $5,000 from the rancher for one horse worth $3,000, the amount of unjust enrichment is $2,000. (C) is incorrect because, if the rancher recovers nothing, he will have incurred financial harm by paying $5,000 for one horse worth $3,000. (D) is incorrect because the fact that the horse breeder tendered performance but was unable to complete delivery of the second horse to the rancher’s fiancée, solely due to her refusal to accept the horse, does not justify the horse breeder’s keeping the entire $5,000 paid by the rancher, because the horse breeder would be unjustly enriched.
On February 1, a national department store chain entered into a written agreement with a canoe manufacturer providing that the manufacturer would sell the department store any quantity of 16-foot aluminum canoes that the department store desired at a price of $250 per canoe, deliveries to be made 30 days after any order. The agreement was signed by authorized agents of both parties. On March 1, the department store sent the manufacturer an order for 500 canoes to be delivered in 30 days. The manufacturer immediately e-mailed the department store a confirmation of the order. Ten days later, the department store sent the manufacturer an order for an additional 500 canoes, to be delivered in 30 days. Five days after receiving the department store’s second order, the manufacturer e-mailed the department store and explained that a large sporting goods chain was willing to purchase all of the manufacturer’s output of 16-foot canoes at $275 per canoe and that the manufacturer would be unable to fill any of the department store’s orders.
The department store found another canoe manufacturer willing to provide it with 16-foot aluminum canoes for $280 per canoe and on April 15 filed an action against the manufacturer seeking damages for the manufacturer’s failure to deliver the 1,000 canoes ordered.
How should the court rule?
A The department store is not entitled to any damages because no contract was formed by the parties’ communications.
B The department store is entitled to cover damages of $30 per canoe only for 500 canoes but is not entitled to any damages for breach of the duty of good faith.
C The department store is entitled to cover damages of $30 per canoe for 1,000 canoes but is not entitled to any damages for breach of the duty of good faith.
D The department store is entitled to punitive damages equal to the lesser of 10% of the total sale price or $500 in addition to any cover damages that are due because the manufacturer breached the duty of good faith.
B
This question is best answered by eliminating the incorrect choices first. (A) is incorrect. A contract was formed here for 500 canoes. The original “agreement” between the parties was nothing more than an invitation seeking offers. It did not create a contract between the department store and the manufacturer because it was illusory—an agreement to buy only what is desired is not consideration. The “agreement” probably does not even qualify as an offer. An offer must express a commitment to conclude a bargain on the offered terms. Absent some quantity limitation, a court would probably find the “agreement” here too vague to constitute an offer; otherwise, the manufacturer could be committing itself to sell more canoes than it can supply. Thus, the department store’s first order will be construed as an offer, and the manufacturer’s confirmation will be construed as an acceptance of the offer, thus creating a contract. (C) is incorrect because there was no acceptance of the department store’s second offer. If the original agreement did not create a contract, the second order must be construed as an offer. The manufacturer did nothing to accept the department store’s second offer. The manufacturer’s failure to reject the offer until five days after it was made does not constitute an acceptance. Therefore, no contract was formed for the additional 500 canoes. (D) is incorrect because although it is true that the Uniform Commercial Code (“UCC”) imposes a duty of good faith on all parties, and failure to deliver under a contract simply because a better price can be obtained might violate this duty, the UCC does not provide for punitive damages for breach of this duty. When a seller fails to deliver goods, one remedy available to the buyer is cover damages—the difference between the contract price and the price of substitute goods. Because the manufacturer had agreed to sell the department store 500 canoes and failed to deliver, the department store reasonably bought replacement goods for $30 more per unit and is entitled to recover the additional $30 per unit.
The governor of an arid western state owned a vacation home and permitted his son to have a party there. At the end of the night the son failed to properly extinguish a bonfire that he and his friends had built, and within a few hours, wind-blown cinders had spread the fire to the trees east of the lodge. At the same time several miles away, a worker at a lumber mill was making emergency repairs to a pipe running between two mill buildings. He did not notice some of the sparks from his welding torch land in a pile of dried lumber and catch fire, and he failed to check the area after he was finished. By the time the fire was noticed by another employee, it was out of control. The wind blew both fires toward a landowner’s hunting lodge. They merged a mile away and shortly thereafter totally consumed the lodge.
For political reasons, the landowner did not bring a lawsuit against the governor or his son. He did, however, file a lawsuit against the lumber mill, alleging that its employee’s negligence caused the destruction of his lodge. Evidence at trial established that either fire alone would have destroyed the lodge as well.
Can the landowner recover from the lumber mill?
A No, because the landowner’s lodge would have been destroyed regardless of the conduct of the lumber mill’s employee.
B No, because the damage is indivisible and cannot be apportioned unless the landowner adds the other tortfeasor to the lawsuit.
C Yes, because the negligence of the lumber mill’s employee was a cause of the landowner’s injury.
D Yes, but the landowner can recover only 50% of his damages from the lumber mill.
C
The landowner can recover the full amount of his damages from the lumber mill because the negligence of its employee caused the destruction of the lodge. Before a defendant will be liable for a breach of duty to the plaintiff, it must be shown that the breach was the actual and proximate cause of the injury. The general test for determining whether an act or omission is the actual cause of the injury is the “but for” test, i.e., whether the injury would not have occurred but for the act or omission. Under certain circumstances, however, the “but for” test is inadequate to determine actual cause. Where several causes combine to bring about an injury—and any one alone would have been sufficient to cause the injury—the actual cause requirement is satisfied if defendant’s conduct was a substantial factor in causing the injury. Under this analysis, the fire started by the lumber mill employee was an actual cause of the destruction of the landowner’s lodge because it was a substantial factor in causing the harm. It was also a proximate cause of the harm because no intervening forces broke the causal connection between the act and the harm. Because its employee was acting within the scope of his employment when he caused the fire to start, the lumber mill is vicariously liable for the injury that resulted. (A) is incorrect because the “but for” test is not applicable to these facts. Under that test, neither fire would be the actual cause of the harm because, looking at either fire alone, the harm would have occurred even without it. However, under the substantial factor test, both fires are actual causes of the injury. (B) is incorrect even though it is true that the damage is indivisible. The landowner can still recover from the lumber mill even if he does not sue the other tortfeasor. (D) is incorrect because joint and several liability rules allow the landowner to recover his full damages from the lumber mill. Where two or more tortious acts combine to proximately cause an indivisible injury to plaintiff, each tortfeasor will be jointly and severally liable for that injury, even though each defendant acted entirely independently. The effect of joint and several liability is that the plaintiff may recover the entire amount of the damages from any tortfeasor, who then may have a right of contribution from the other tortfeasor. Hence, even though the negligence of another tortfeasor was also an actual cause of the destruction of the landowner’s lodge, the landowner is entitled to recover all of his damages from the lumber mill.
A statute in the jurisdiction, which was enacted with the express purpose of preventing public employees from taking advantage of the status of illegal aliens, made it a felony to accept money or other benefits in exchange for issuing a state identification card. During an undercover investigation, an illegal alien was recorded offering $500 to a clerk in exchange for issuance of a card. The clerk agreed to the deal and later that day exchanged the card for the money, after which both parties were arrested.
In a jurisdiction following the common law approach to conspiracy, which of the following statements is correct?
A The clerk can be convicted of violating the statute and conspiracy to violate the statute, and the illegal alien can be convicted of no crime.
B The clerk can be convicted only of violating the statute, and the illegal alien can be convicted of no crime.
C The clerk can be convicted only of violating the statute, and the illegal alien can be convicted as an accomplice to violation of the statute.
D The clerk can be convicted of violating the statute and conspiracy to violate the statute, and the illegal alien can be convicted of conspiracy to violate the statute.
B
The illegal alien cannot be convicted of a crime under the statute because it was enacted for his protection, and the clerk cannot be convicted of conspiracy under the statute because the illegal alien, who would otherwise be liable as an accomplice, is not subject to conviction because of a legislative intent to exempt him. If a statute is intended to protect members of a limited class from exploitation or overbearing, members of that class are presumed to have been intended to be immune from liability, even if they participate in the crime in a manner that would otherwise make them liable. Thus, the illegal alien would not be liable as an accomplice under the statute, making (C) incorrect. The clerk clearly can be convicted for the substantive offense, but he cannot be convicted of conspiracy. One of the implications of the common law requirement that there be at least two guilty parties in a conspiracy arises when the crime involves members of a class protected by the statute. If members of a conspiracy agree to commit an act that violates a statute designed to protect persons within a given class, a person within that class not only cannot be guilty of the crime itself, as discussed above, but also cannot be guilty of a conspiracy to commit the crime. (D) is therefore incorrect. Because the member of the protected class cannot be guilty of conspiracy, if no other guilty party exists, the other member of the agreement cannot be guilty of criminal conspiracy because there were not two guilty parties to the agreement. Thus, because the illegal alien cannot be convicted of conspiracy under the statute, neither can the clerk. (A) is therefore incorrect and (B) is correct.
