Presumptions Flashcards
Assume that Missouri has a statute which states that an employee, on duty and driving a vehicle belonging to his employer, may be presumed to be acting within the scope of the employee’s employment. The owner of the residence into which John Clark drove the AB delivery truck wishes to use this presumption against AB in his/her suit against AB. AB opposes this because of their claim that Clark was on a “fun and frolic” detour at the time of the accident.
a. What “basic” facts will the owner of the residence need to prove to be entitled to the presumption?
Must prove that Clark was an employee, on duty, and driving a vehicle belonging to his employer.
Assume that Missouri has a statute which states that an employee, on duty and driving a vehicle belonging to his employer, may be presumed to be acting within the scope of the employee’s employment. The owner of the residence into which John Clark drove the AB delivery truck wishes to use this presumption against AB in his/her suit against AB. AB opposes this because of their claim that Clark was on a “fun and frolic” detour at the time of the accident. b. Assuming that the owner meets this burden in his/her direct case, is the judge required to give a presumption instruction to the jury?
No. The defense has a chance to offer dispute as to the facts. Defense wants to attack the presumed fact: argue that the three basic facts don’t necessarily entail scope of employment liability (“fun and frolic” defense).
Problem 1. Assume that Missouri has a statute which states that an employee, on duty and driving a vehicle belonging to his employer, may be presumed to be acting within the scope of the employee’s employment. The owner of the residence into which John Clark drove the AB delivery truck wishes to use this presumption against AB in his/her suit against AB. AB opposes this because of their claim that Clark was on a “fun and frolic” detour at the time of the accident. c. AB presents no evidence and simply contends that plaintiff’s case is not credible. Is the judge required to give a presumption instruction to the jury?
Yes, unless AB attacks credibility with “fun and frolic.”
Problem 1. Assume that Missouri has a statute which states that an employee, on duty and driving a vehicle belonging to his employer, may be presumed to be acting within the scope of the employee’s employment. The owner of the residence into which John Clark drove the AB delivery truck wishes to use this presumption against AB in his/her suit against AB. AB opposes this because of their claim that Clark was on a “fun and frolic” detour at the time of the accident.d. AB presents evidence in its case which shows that Clark was on a “fun and frolic” detour. What must the judge do relative to plaintiff’s request for an instruction on the presumption?
This kills the presumption, but the case proceeds as normal. (Jury is clueless about the potential presumption and its destruction.)
Assume that Missouri has a statute which states that an employee, on duty and driving a vehicle belonging to his employer, may be presumed to be acting within the scope of the employee’s employment. The owner of the residence into which John Clark drove the AB delivery truck wishes to use this presumption against AB in his/her suit against AB. AB opposes this because of their claim that Clark was on a “fun and frolic” detour at the time of the accident. e. On the facts in “d”, is the plaintiff entitled to a presumption instruction based on his evidence?
No. the statute created a rebuttable presumption.
The facts are the same as in Problem 1, except that the language of the statute requires the presumption if the plaintiff shows that the driver was an employee, on duty and driving a vehicle belonging to his employer. Assuming that the owner of the residence meets this burden in his/her direct case and AB presents evidence in its case which shows that Clark was on a “fun and frolic” detour, what must the judge do relative to plaintiff’s request for an instruction on the presumption?
Judge must grant the mandatory presumption unless AB can attack one of the basic facts giving rise to the presumption. “Fun and frolic” will not work as a defense, have to prove Clark isn’t an employee, wasn’t on duty, or wasn’t driving a company vehicle.
In the criminal case the defendants state that they did not know that C4 wired to an electronic detonator was an explosive. Thus, they state they had no criminal intent. The government responds that C4 is too well known to be an explosive for this to work. They present the testimony of an ATF expert that C4 is routinely portrayed in movies and television as a powerful military explosive. The government then requests the court to instruct the jury that the defendants must be presumed to have known that C4 wired to a detonator was an explosive device. How should the judge rule? How should such an instruction be worded?
No presumption necessary. This is just an opportunity for inference. (Any presumption would require a limiting instruction.) What is the presumption based on?
