February 2019 Questions and Sample Answers
These materials are copyrighted by the NCBE and are being reprinted with the permission of the NCBE. For personal use only. May not be reproduced or distributed in any way.
© 2019 by the National Conference of Bar Examiners. All rights reserved.
NCBE Study Aids: http://www.ncbex.org/study-aids/
State of Franklin Department of Children and Families v. Little Tots Child Care Center
Memorandum to Examinee
Guidelines for persuasive briefs
Ashley Baker’s note on proposed testimony
Notice of License Revocation
Notice of Deficiency reports
Excerpts from Franklin Child Care Center Act
Excerpts from Franklin Administrative Code
Lang v. Lone Pine School District, Franklin Court of Appeal (2016)
Fisher & Mason Law Office
953 N. Main St.
Evergreen Heights, Franklin 33720
From: Gale Fisher
Date: February 26, 2019
Re: Little Tots Child Care Center
We represent Ashley Baker, who became the owner and operator of the Little Tots Child
Care Center eight months ago. She has received notice that, in seven days, the Franklin Department of Children and Families (FDCF) will revoke her license to operate the child care center. Because she has no administrative remedy, we have filed a complaint to challenge the license revocation and a motion seeking a preliminary injunction to prevent the revocation until a trial can be had on the merits. The court has set a date 90 days from today for a trial on the merits. The hearing on the preliminary injunction is this Friday.
At the hearing, I expect to call Ms. Baker and Jacob Robbins, a parent, as witnesses. I have
attached a note Ms. Baker gave me outlining her proposed testimony. I have also attached recent
communications concerning Little Tots and three Notice of Deficiency reports issued by FDCF
within the last seven months. I expect that FDCF will oppose our motion and will call the
inspectors to testify to what they found during the inspections.
Please prepare the argument section of our brief in support of the Motion for Preliminary
Injunction to enjoin FDCF from revoking Ms. Baker’s license to operate Little Tots. Follow our
office guidelines in drafting your argument. Do not assume that we will have an opportunity to file a rebuttal brief; anticipate any arguments FDCF may make and address them. Be sure to address all the requirements for a preliminary injunction. Because judges must make specific findings as to the evidence relied upon in granting or denying motions for a preliminary injunction, you must marshal and discuss the evidence we have available in support of the requirements for a preliminary injunction. Do not include a separate statement of facts, but be sure to incorporate the relevant facts into your argument.
Fisher & Mason Law Office
To: All lawyers
From: Litigation supervisor
Date: August 14, 2016
Re: Guidelines for drafting persuasive briefs
All persuasive briefs in support of motions shall conform to the following guidelines:
Statement of the Case: [omitted]
Statement of Facts: [omitted]
Body of the Argument
Analyze applicable legal authority and persuasively argue how both the facts and the law
support our client’s position. Supporting authority should be emphasized, but contrary authority
should also be cited, addressed in the argument, and explained or distinguished. Do not reserve
arguments for reply or supplemental briefing. Be mindful that courts are not persuaded by
exaggerated or unsupported arguments.
Organize the arguments into their major components and write carefully crafted subject
headings that illustrate the arguments they cover. The argument headings should succinctly
summarize the reasons the tribunal should take the position we are advocating. A heading should
be a specific application of a rule of law to the facts of the case and not a bare legal or factual
conclusion or statement of an abstract principle. For example, improper: “The plaintiff failed to
exhaust remedies.” Proper: “When the plaintiff failed to appear at the administrative hearing, after receiving notice of the hearing, and failed to request a continuance, the plaintiff failed to exhaust administrative remedies.”
Do not prepare a table of contents, a table of cases, or an index.
Ashley Baker’s Note on Proposed Testimony
February 25, 2019
Eight months ago, I took over the Little Tots Child Care Center to offer services no one
else offered in our area. The former owner had a hard time meeting expenses because so many
parents could not afford the fees. Little Tots is open more hours than most child care centers so
that parents who go to work early or work late shifts can use the center. I applied for and received a government grant to subsidize the center. The grant allows me to charge reduced fees to parents whose income falls below a certain level. The grant also allowed me to hire more staff and expand the number of children Little Tots serves. Little Tots is the only child care center in this neighborhood that serves low-income families.
I have had to juggle this expansion while trying to meet all the state standards. Look at
these Notice of Deficiency reports, and you will see that I have been improving all along. If I could have just a few more weeks, I would be able to comply with all the standards.
I understand the need to get completed enrollment forms so that no unauthorized persons
pick up the children. We do not want predators or parents with restraining orders coming here.
Most parents have completed the enrollment forms. I guess I was too patient with those five who
did not complete them. I will have to sit down with these five parents and have them complete the forms when they pick up their children.
Child “A” has been with us for months. He’s five; he knows he’s allergic to milk and can’t
drink it. He’s never tried to take the milk. But I will improve the supervision when food is out. I
found an online education program for child care workers on food safety and will have the staff
The program we offer is excellent. In fact, since I became the owner and expanded the
enrollment and improved the child care program, the State University Early Learning Center has
been sending students to observe our program. The children are safe and are thriving, even if we’ve had some missteps while we expanded. For FDCF to come in now and close me down is too harsh.
Caring for children is my passion and my livelihood. If I’m forced to close, I will be without
any income, will lose that grant, and will have to find a way to repay my business loans. I risk
losing my clients if the court takes too long to resolve this. If my license is revoked, I don’t know
where these children are going to go or what I will do to make a living. I’m afraid that I would not be able to reopen the child care center even if I got the license back.
STATE OF FRANKLIN DEPARTMENT OF CHILDREN AND FAMILIES
Northern Regional Office
830 Highway 17
Evergreen Heights, Franklin 33720
February 22, 2019
Ms. Ashley Baker
Little Tots Child Care Center
492 Oak Street
Evergreen Heights, Franklin 33705
NOTICE OF LICENSE REVOCATION
You are hereby notified that, effective March 5, 2019, the license issued to you to operate Little
Tots Child Care Center will be revoked due to numerous and repeated instances of noncompliance
with critical standards for the operation of a child care center as specified in the Franklin
Administrative Code and as authorized by the Franklin Child Care Center Act, Fr. Civil Code
§ 35.1 et seq. You must cease operating the Little Tots Child Care Center on or before March 5,
The instances of noncompliance are specified in the attached NOTICES OF DEFICIENCIES.
Operating a child care center without a license is a violation of the Franklin Child Care Center Act.
Director, Department of Children and Families
Served by email and in person February 22, 2019, by Cynthia Wood.
STATE OF FRANKLIN DEPARTMENT OF CHILDREN AND FAMILIES
July 16, 2018, Notice of Deficiencies: Little Tots Child Care Center
This report summarizes the noncompliance with critical standards observed during the July
16, 2018, inspection of the Little Tots Child Care Center, 492 Oak Street, Evergreen Heights,
Franklin. This constitutes notice pursuant to § 3 of the Franklin Child Care Center Act.
Thirty days ago, Ashley Baker became the owner and operator of Little Tots Child Care
Center. Upon assuming ownership, Ms. Baker expanded the number of children in the center and
changed some of its operations. This is the first inspection since Ms. Baker became owner. Because of critical deficiencies observed during this inspection, Ms. Baker was warned of the need to improve and was told that, as a result, the center will be inspected every 90 days.
Little Tots has a maximum allowable enrollment of 96 children, in eight rooms: two rooms
of 2-year-old children, two of 3-year-old children, two of 4-year-old children, and two of 5-year-old children. It employs 19 persons. Children may attend from 6:30 a.m. to 7:00 p.m., Monday
Noncompliance with Critical Standards
Enrollment procedures. Enrollment forms for 37 children were incomplete in that they
lacked information identifying those persons authorized to pick up those children. 34 FR. ADMIN.
CODE § 3.06. Ms. Baker promised to correct this “very soon.”
Staff qualifications. A review of the employee personnel files revealed that there was no
documentation indicating that a background check had been conducted on four of the teachers—
Anders, Dunn, Green, and Hanes. 34 FR. ADMIN. CODE § 3.12. Ms. Baker promised to “get to it soon.”
Staffing. The staff/child ratios in the 2-year-old and 3-year-old rooms exceeded what is
allowed. 34 FR. ADMIN. CODE § 3.13. There were nine children and one staff member in each of the 2-year-old rooms and 11 children and one staff member in each of the 3-year-old rooms. Ms. Baker indicated that this would be corrected “very soon.”
Trent Banks, FDCF Child Care Center Inspector
COPY OF NOTICE OF DEFICIENCY REPORT GIVEN TO OWNER/OPERATOR
STATE OF FRANKLIN DEPARTMENT OF CHILDREN AND FAMILIES
October 19, 2018, Notice of Deficiencies: Little Tots Child Care Center
This report summarizes the noncompliance with critical standards observed during the
October 19, 2018, inspection of the Little Tots Child Care Center, 492 Oak Street, Evergreen
Heights, Franklin. This constitutes notice pursuant to § 3 of the Franklin Child Care Center Act.
Noncompliance with Critical Standards
Enrollment procedures. Enrollment forms for 16 children were incomplete in that they
still lacked information identifying those persons authorized to pick up those children. 34 FR.
ADMIN. CODE § 3.06. Ms. Baker again promised to correct this “right away.”
Staff qualifications. A review of the employee personnel files revealed that there was no
documentation showing that a background check had been conducted on two of the teachers,
Anders and Dunn, or for newly hired teacher Kane. 34 FR. ADMIN. CODE § 3.12. Ms. Baker
promised to “get to it soon.” She also said that Anders is a holdover from the previous owner and
should have had the background check done long ago.
Staffing. There were nine children in one of the 2-year-old rooms, with one staff member.
This exceeds the allowable staff/child ratio. 34 FR. ADMIN. CODE § 3.13. Ms. Baker indicated that she was still organizing her staff.
Jerome Waters, FDCF Child Care Center Inspector
COPY OF NOTICE OF DEFICIENCY REPORT GIVEN TO OWNER/OPERATOR
STATE OF FRANKLIN DEPARTMENT OF CHILDREN AND FAMILIES
January 23, 2019, Notice of Deficiencies: Little Tots Child Care Center
This report summarizes the noncompliance with critical standards observed during the
January 23, 2019, inspection of the Little Tots Child Care Center, 492 Oak Street, Evergreen
Heights, Franklin. This constitutes notice pursuant to § 3 of the Franklin Child Care Center Act.
Noncompliance with Critical Standards
Enrollment procedures. Enrollment forms for five children were incomplete in that they
lacked information identifying those persons authorized to pick up those children. 34 FR. ADMIN.
CODE § 3.06. Ms. Baker said that she had given the forms to these five parents but had not yet
received them back.
Staff qualifications. A review of the employee personnel files revealed that there was no
documentation indicating that a background check had been conducted on teacher Anders or newly hired teacher Marin. 34 FR. ADMIN. CODE § 3.12. Teacher Dunn is no longer employed at the center. Ms. Baker again said that Anders was hired by the previous owner and that the background check should have been done then.
Staffing. There were nine 2-year-old children in one room, with one staff member. 34 FR.
ADMIN. CODE § 3.13. Ms. Baker said that one child was due to move out of town next week. In anticipation of that child’s departure, she had enrolled another 2-year-old, but the parents needed the child to begin attending right away. The attendance of the two children overlapped by one week, putting nine children in the same room. Ms. Baker said that by next week, there will be only eight children in each 2-year-old room, and she will be in compliance with § 3.13.
Meals and nutrition. The inspector observed that as children entered the snack room, milk
was available to be picked up. There was no supervision of the food area. 34 FR. ADMIN. CODE
§ 3.37. Child “A” is allergic to dairy products and should not have milk. The restriction is on the
child’s enrollment form, but teacher Kane said that she was unaware of any dietary restrictions for Child “A.” Ms. Baker said that the teacher knew but must have forgotten on a busy morning.
Tiffany Hall, FDCF Child Care Center Inspector
COPY OF NOTICE OF DEFICIENCY REPORT GIVEN TO OWNER/OPERATOR
Email Correspondence Regarding Little Tots Child Care Center
From: Jacob Robbins <firstname.lastname@example.org>
To: Carla Ortiz <FDCFlicense@Franklin.gov>
Cc: Ashley Baker
Subject: Don’t close Little Tots Child Care Center
Date: February 24, 2019, 1:15 pm
I just learned that Little Tots Child Care Center is going to close because you are revoking its
license. I have talked with over a dozen parents who are upset. We do not know where to send our kids. My wife commutes to work in an office downtown, and I am a mechanic at the truck depot.
The way our hours work out, we need Little Tots because it is the only child care center that meets our schedules. Plus, it is affordable.
I know families that used to rely on relatives to care for their children but were able to send them
to Little Tots once Ms. Baker offered discounted rates for those who qualify. Little Tots is a better place for the children than relying on relatives who get sick or just have their own lives to live. It has a good program for the children. My kids love it there. One of my kids was really shy and hesitant to play with other kids but has overcome all that since he started attending Little Tots.
If Little Tots closes, my wife will have to quit her job. That would be bad because her job has the
better health benefits. Plus, we need the money she earns to pay for the kids—their dentists’ bills, their shoes, clothes, school expenses, extracurricular activities—and we save a bit for emergencies.
I heard the same thing from several parents, and I promised them I would write and ask you to
reconsider closing this center which we badly need.
I expect the government to care about our children. This is the only low-income child care center
within 15 miles of our home. You should be advocating for us, not trying to close down such a
wonderful day care.
I am going to get a petition for parents to sign to protest the closing of Little Tots, but I wanted to
contact you right away.
Excerpts from the
FRANKLIN CHILD CARE CENTER ACT
§ 1. Findings and legislative purpose. The legislature of the State of Franklin finds the following:
(a) It is the policy of the State of Franklin to ensure the safety and well-being of preschoolage
children of the State of Franklin through the establishment of minimum standards for child
(b) There is a need for affordable and safe child care centers for the care of preschool-age
children whose parents are employed.
(c) There is a need for affordable and safe child care centers for low-income parents in
underserved and economically depressed communities.
(d) By providing for affordable and safe child care centers, the State of Franklin encourages
employment of parents who, without these child care centers, could not be employed.
* * *
§ 3. Licensing of child care centers.
(a) No person may operate any facility as a child care center without a license issued by
the Department of Children and Families upon meeting the standards established for such
(b) The Director of the Department shall establish licensing standards relating to child care
centers. The Director shall inspect each licensed facility at least once each year to determine that
the facility is in compliance with the standards of the Department.
(f) If the operator of a child care center is in noncompliance with those standards deemed
critical, the Director may, after notice, impose penalties including but not limited to a civil fine of
at least $500 but not more than $10,000, or revocation of the license of the operator.
Excerpts from Franklin Administrative Code
Chapter 34. Child Care Centers
§ 3.01 General
The Department of Children and Families has determined that the standards listed in this Section
apply to child care centers. Because of the actual or potential harm to children, noncompliance
with the following regulations will be determined to be critical violations: Enrollment Procedures,
Staff Qualifications, Staffing, Program, Structure and Safety, Meals and Nutrition, and Health.
* * *
§ 3.06 Enrollment procedures
. . .
(b) A written enrollment application with the signatures of the enrolling parents shall be on
file for each child. The application shall contain the following information:
. . .
(8) Name, address, and telephone number of all persons authorized to pick up the
child, which includes both
(i) a primary list of persons authorized to pick up the child regularly and
(ii) a contingency list of persons authorized to pick up the child occasionally,
including conditions, if any, for releasing the child to such persons.
* * *
§ 3.12 Staff qualifications
(a) Each child care center shall subject all persons who work with children to criminal
background checks and shall require them to authorize the background checks and to submit to
fingerprinting. No person who has been convicted of a felony shall be employed at a child care
. . .
§ 3.13 Staffing
. . .
(d) The group sizes and ratio of staff to children present in any classroom at any one time
shall be as follows:
Children’s age Ratio of staff to children
Two years 1 staff member to 8 children
Three years 1 staff member to 10 children
Four years 1 staff member to 10 children
Five years 1 staff member to 20 children
* * *
§ 3.37 Meals and nutrition
. . .
(g) A child requiring a special diet due to medical reasons, allergic reactions, or religious
beliefs shall be provided with meals and snacks according to the written instructions of the child’s parents or legal guardian.
Lang v. Lone Pine School District
Franklin Court of Appeal (2016)
Blake and Olivia Lang, parents of Michael, age seven, sued the Lone Pine School District
(District) for violating Michael’s rights as a child with disabilities and sought preliminary and
permanent injunctive relief. The trial court conducted a hearing on the Langs’ motion for a
preliminary injunction to allow Michael to attend school with a service animal, and granted that
motion. The trial court stayed the effective date of the order three weeks to permit the District time to prepare for the presence of the service animal. The District filed an interlocutory appeal from the trial court’s grant of the preliminary injunction. This action was brought under the Franklin Education Act. The parties did not raise, nor do we address, the question whether the plaintiffs also have a claim under the Americans with Disabilities Act or the Individuals with Disabilities Education Act.
We review the trial court’s decision under the abuse of discretion standard and affirm.
At the hearing, Blake and Olivia testified that during kindergarten and first grade at Lone
Pine Elementary School, Michael received various accommodations to address his learning
disability, but he still struggled. Last winter, the Langs found a service dog program for children
with disabilities. In late spring, Sandy, a service dog, went home with the Langs, after which the
Langs noticed a significant improvement in Michael’s ability to focus and remain attentive to tasks.
In June, an educational specialist recommended that the service dog should accompany Michael
to school. The Langs then asked the District to permit Michael to attend school with the service
Cody Black, the educational specialist, testified that he observed Michael with Sandy and
found that Sandy provides comfort to Michael and eases his anxieties. This permits Michael to
better focus on tasks before him. Black offered the opinion that Michael would perform better in
school if Sandy were with him. Specifically, when Michael is accompanied by Sandy, his behavior and social skills improve and he is therefore less likely to be disruptive. Black also testified that service animals provide a similar benefit to disabled students at all levels of education throughout the state, as well as a positive educational lesson for all students.
MacKenzie Downs, principal of Lone Pine Elementary School, testified that the District
denied the Langs’ request because (1) a district-wide policy prohibits animals in school buildings
other than service animals for those with vision impairments, (2) the teachers and staff at Lone
Pine are not trained to handle the dog, and (3) there are children at the school who are allergic to
dogs. Downs agreed that Michael needs an accommodation and said that she stands ready to
support Michael with other methods of assistance. Joe Ramirez, Michael’s first-grade teacher,
testified that Michael has improved over the course of the past school year despite not having a
service animal with him at school. He also testified that the District has purchased several new
computers designed for children with learning disabilities. He offered the opinion that using the
new computers would help Michael continue to improve, and he saw no need for the service animal to be at school. He confirmed that he and his fellow teachers have received no training in handling service animals.
Preliminary Injunction Standard
Preliminary injunctive relief is an extraordinary remedy and is disfavored by the courts,
but this relief may be granted in appropriate cases to preserve the status quo pending a decision on the merits. A party seeking a preliminary injunction must meet this four-factor test: (1) that the moving party is likely to succeed on the merits, (2) that the moving party will suffer irreparable harm if the injunction is not granted, (3) that the benefits of granting the injunction outweigh the possible hardships to the party opposing the injunction, and (4) that the issuance of a preliminary injunction serves the public interest.
(1) Likelihood of success on the merits
First, as to the likelihood of success on the merits, the moving party need not meet the
standard of proof required at trial on the merits but must raise a fair question regarding
the existence of the claimed right and the relief he will be entitled to if successful at trial on the
complaint for permanent relief. A party seeking preliminary relief need only demonstrate that his
chances to succeed on at least one of his claims are better than negligible. Smith v. Pratt (Fr. Ct.
App. 2001). As the court ruled, if the movant shows that his chance of succeeding on his claim for relief is better than a mere possibility, the court should grant the motion for preliminary relief.
The trial court found that there was no dispute that Michael is a child with a disability and
requires an accommodation. The trial court found that while there was a dispute as to the type of
accommodation needed and whether the service animal is a proper or necessary accommodation,
this was an issue to be decided when the matter is tried on the merits. In the meantime, the Langs
have established that the service animal may well be the sort of accommodation needed. Hence,
the Langs have shown a fair question regarding the rights of their son and the likelihood of
receiving a remedy at trial.
(2) Irreparable harm
An alleged harm or injury is irreparable when the injured party cannot be adequately
compensated by damages or when damages cannot be measured by any certain pecuniary standard.
In other words, if the moving party, the Langs, could be compensated through damages for the
wrong suffered, they would not have suffered an irreparable injury. The alleged harm here is the
harm to Michael of continuing to attend school without the accommodation that may be most
helpful to him. While the trial court could award damages to the Langs after a trial on the merits,
here it found that no amount of monetary damages could substitute for providing Michael the
education he needs.
(3) Balance of benefits and hardships
The court must weigh the benefits of granting the injunction against the possible hardships
to the party opposing the injunction. Put another way, the court must determine whether greater
injury would result from refusing to grant the relief sought than from granting it. The District
argues that the trial court failed to properly consider the costs of permitting the animal to
The trial court acknowledged that the District would suffer hardships if the injunction were
granted. The District’s policy currently allows service animals for those with vision impairments
but not for those with learning disabilities like Michael’s. To permit the animal to accompany
Michael, the Districtmust expand its policy, prepare its staff for the presence of the animal, educate parents, and determine how to accommodate children with dog allergies. The trial court found that these steps would cost the District time and money—costs that may be substantial. The trial court weighed the harms cited by the District against those of Michael’s loss of an accommodation that will help him overcome his learning disability. Michael is in second grade and has already experienced two years of schooling that has been stressful for him. The sooner Michael’s needs are met, the better for him, the trial court concluded, especially given that Michael is in an early formative period. In sum, the trial court weighed the hardships and found that the balance of harms favored the Langs.
(4) Public interest
Fourth, the trial court must consider whether issuance of the preliminary injunction serves
the public interest. This criterion cuts both ways on the facts of this case. On the one hand, the
District correctly notes that its need to conserve resources and to assure the well-being of all its
students serves the public interest. On the other hand, the Langs are also correct that the injunction will serve the statutory purposes of the laws protecting disabled children by permitting the use of service animals in schools. Additionally, the presence of the service animal in Michael’s classroom provides important educational lessons for his classmates and for children throughout the school.
These children will learn about the important role of service animals in assisting persons with
disabilities. The trial court did not err in concluding that issuance of the injunction served the
public interest. The District also argues that the injunction imposes a continuing duty of supervision on the court, which would be an improper use of judicial resources. “Courts should be reluctant to issue injunctions that transform the court into an ad hoc regulatory agency to supervise the activities of
the parties.” Franklin Envt’l Prot. Agency v. Bronson Mfg., Inc. (Fr. Ct. App. 1999). However, the District overstates the difficulty of enforcement. The trial court ordered the District to permit
Michael to attend school with the animal. Compliance with this order is simple. If the District
admits Michael with the service animal, it will be in compliance with the injunction. If the District refuses to admit Michael with the service animal, it will be in violation of the injunction.
The trial court issued a preliminary injunction effective until trial on the merits. The trial court did not abuse its discretion.
Brief in Support of Motion for Preliminary Injuctive Relief
Re: State of Franklin Departmnet of Children and Familes v. Little Tots Child Care Center
To: District Court of Franklin
Fisher & Mason Law Office
I. Legal Analysis
A. injunctive relief is warranted due to the irreparable harm and the interests harmed in society that might result from the closing of Little Tots Child Care center
T Injunctive relief is a remedy that must be granted in favor of the Little Tots Child Care Center due significant opportunities they have strived to offer within the community and the significant harm that would result to both the center, and to society should they be closed. Peliminary injunctive relief is an "extraordinary remedy" generally disfavored by courts. Lang v. Lone Pine (App. Ct. 2016). however, a it may granted in cases that preserve the present status quo pending a decision on merits. Injunctive relief is subject to a four-factor test. (1) that the moving party is likely to succeed on the merits, (2) that the moving party will suffer irreparable harm if the injunction is not granted, (3) that the benefits of granting the injunction outweigh the possible hardship to the party opposing the litigation, and (4) that the issuance of a preliminary injunction serves the public interest. Based on these four-factors, Little Tots should be granted such relief.
i. Little Tots is likely to succeed on the merits of the case due to the transitory nature of the current deficiencies in operation that would be moot by the time the court could decide the case on the merits
Little Tots Child care center should be granted a preliminary injunction, not only because it is likely to succeed on the merits, but the concerns cited by the FCDC may very well be moot by the time the court hears the case. Generally, to prove likelihood on the merits, the moving party need only show that a fair question regarding the existence of a claimed right and relief they would be entitled to if successful at trial. Lang. To do so, a movant need only show that "his chances to succeed on at least one of his claims are better than neglible." Lang, citing Smith v. Pratt (Fr. Ct. App. 2011). If movant does succeed in the showing that it is better than a mere possibility, the court should grant the motion for preliminary relief.
The present case is not a story of continuing, ever present, or looming failure by the Little Tots Child Care Center. Instead, it is one of increasing compliance and efforts made by Ms. Baker and her staff that have been instead harmed only due to their zealous desire to help the community in which they reside. The case for revocation of license against Little Tots under the FCCA is tenuous at best given the increasing nature of compliance. They were first inspected after only 30 days of Ms. Baker being in control of the facility. At the time they were deficient in several areas, including enrollment procedures, staff qualifications, and staffing. Since that time they have only increased in compliance with the FCCA. The last notice received is dated January 23, 2019, and though it cited similar issues and concerns, the change and efforts to be in compliance is clear. the number of children who have authorization forms for pickup has all but been eliminated and is only existant due to delay by the parents failure to fill it out, not due to the care facilities error. Also, of the two teachers in noncompliance with background checks, one has been a hold over from the earlier child care facility and should have already had a background check performed, it is merely that Ms. Baker has no file or indication left from the previous owner. Staffing has become a non-issue. During the last check, two familes were in overlap, not due only to an attempt to accomodate the families in question that absolutely needed a child care facility immediately. While this is considered a deficiency as far as the FCCA § 3.01, it is also in the spirt of the FCCA's legislative purpose to help the community at large. The last issue cited was for meals and nutrition. under the FCCA 3.37, a child requiring a special diet due to medical reasons, allergic reactions or religiious beliefs shall be provided with meals and snaks according the instruction of the parent's legal guardian. There is nothing in the statute to support a claim that there is a deficiency present. Child A has an allergy to Milk, Milk is generally provided for the the children in the room, and though the teacher at the time stated she was unaware, she had been informed and Ms. Baker was well-aware of the dietary restrictions. the FCDC only contends that there was insufficent supervision of the food table that child could have accessed. However there is no restriction in the statute, or that we can find, that states that noncompliance could be due to insufficient supervision. Furthermore, Child A has no milk, the FCDC cites no issue whereby Child A was given milk negligently. Instead, they only allege that milk was present despite one childs dietary restrictions. To remedy this, Ms. Baker intends to offere a course in dietary restrictions in supervision, however we submit that even this is above and beyond and wholly unnecessary given the statutes clear meaning.
Should the could find that citations were appropriate given the notice of deficiencies provided by the FCDC, at the very least, no deficiency existed as to the finding of Meals and Nutrition under FCCA 3.37. While we contend that the issues will be moot by the time the court hears them, and that Little Tots will be in full compliance, at the very least they deserve injuctive relief. Relief only requires that they have a possibility of winning on the merits as to one claim. We submit that at the very least the Meal and Nutrition guidelines proposed by the FCCA were insufficent to support a finding of deficiency as to that issue, thereby satisfying the requirements.
ii. Irreparable harm is not only likely, but a guarantee should Little Tots be shut down
To show irrepareable harm is to showt atht the injured party cannot be adequately compensated by damages caused by the action initiated. Here, Little Tots and Ms. Baker would be harmed in such a way should their license be revoked. No child care facility regulated by the FCCA is allowed to operate without a license under FCCA 3. Should the license revocation proceed ahead of the trial on the merits, they will be forced to close their doors potentially for good. Ms. Baker is not only at risk for short-term license revocation, instead what is at stake is Ms. Baker's livelihood, business, and the existence of Little Tots child care center. Ms. Baker has sought to provide an excellent facility for those in the community, despite the issues of monetary concerns that plagued its predecessor. To combat this, Ms. Baker successfully received a grant from the government to subsidize the costs of the business to allow for children of low-income families to afford the facility, while still giving the facility the ability to pay its overhead and bills and provide excellent service. Should her license be revoked, that will all be lost. Ms. Baker would lose the grant she worked to get, and the facility will not only shut down, it will be underwater in financial crises due to the lack of funding and general inability of parents to pay for such care in the community. Ms. Baker will furthermore not be able to account for the loans and money she has taken out to buy the business and will be unable to satisfy her creditors. Ms. Baker will not be able to return to the business she loves should her license be revoked. This is an issue for the present. Should here injunctive relief not be granted and her license revoked it will not longer matter at the trial on the merits whether or not she should be allowed to reopen because at that point reopening would be a pipe dream in and of itself. There is nothing the Court can do, nor the FCDC can do, to prevent this inevitability should injunctive relief not be granted.
iii. The Balance and benefits are clearly in favor of Little Tots when the benefits of allowing them to remain open so significantly outweigh the hardships
There is no hardship to the FCDC here to allow the center to remain open. The FCDC is already responsible for ocerseeing the compliance of child care centers, and will continue to do so whether Little Tots remains open. Instead, injuction only provideds us to create a greater record and possible compliance leading up to the trial date. The only potential hardship present is the statutory considerations which may constitute potential harm for the children to attend a facility not in compliance with the FCCA. While we consider these important, this review cannot be so mechanical. The reality is that the children and families attending Little Tots are happy and are benefitted significantly by Little Tots existence. A petition is currently being put together by Jacob Robbins, a father of a Little Tots attendee. Furthermore, he has been on contact with several families and appealed to the FCDC in his own way to prevent Little Tots from closing. the benefit to his, and to other children, is immense. Little tots has provided an environment for children to safely play and interact with one another, an environment necessary for their growth and socialization into society. These years of formation prior to school are essential to their development and there has nothing in the record but praise from those children and families that Little Tots is exemplary. Noncompliance, if so severe as to warrant such harm to children, would and should result in immediate closing of such facilities. Instead the FCDC grants time to be in compliance with such regulations because it understands the benefits these facilities provide. It is not time to give up those benefits when they are so close to compliance, and when the benefits so clearly outweight the potential hardships of the FCDC.
iv. The public interest in keeping Little Tots open is immense, and therefore they should be granted injunctive relief.
This is a case by case, fact sensitive issue for the court to consider. Here, the public value is a serious issue. the FCCA explicitly states under FCCA 1, that its legislative purpose is to assist families in the community and to serve the public at large. They help families that are working by providing places to take care of their children while they work to provide for their families. They provide low-income families with the opportunity for childcare where they did not and could have had it previously, to help them obtain jobs and a work that could assist them from going from "low-income" to productive workers that can provide better for themselves and their children. Little Tots embodies that ideal. Ms. Baker has tirelessly sought to expand Little Tots to provide for those low-income families, and is in fact, the only facility in the area that provides child care to such families. It is the only place for these families to go, the only place where they can get the quality childcare their children need while they work for their family's livelihood. Little Tots first and foremost serves the community, and the public interests at risk are immense should they shut down. Mr. Robbins' statement is but one family that he represents. He will present at trial to the Court that should Little Tots be shut down, then his wife may end up losing her job, and their family will lose the benefits and healthcare that her job provided. This is because without affordable childcare, they have no alternative but to give up on working to take care of their children. This is not only an issue of the community significance, but a public interest at large in keeping the working population working. We submit this clearly shows that Little Tots is an exemplar of what the FCCA is trying to achieve, and should preliminary injunction not occur, they public detriment would be immense.
Little Tots is a child care facility that struggled due to the monetary considerations that plagued the previous owner. Despite the issues known to Ms. Baker and the potential difficulties of continuing to operate, Ms. Baker took over the management and ownership of a failing child care facility. Instead of scaling back the work it does for the community as one would might expect, she has only increased and expanded the work that it does. While the FCDC performs and admirable and necessary function in keeping these facilities from being a danger to children, Little Tots does not pose that risk and does not deserve to be close forever. Given the reasons stated above, we submit that Little Tots more than satisfies that need for Preliminary Injunctive relief, and it should be granted immediately to prevent immediate and irreparable harm to Ms. Baker and the community that she serves.
CC: Carla Ortiz
STATE OF FRANKLIN DEP'T OF CHILDREN AND FAMILIES V. LITTLE TOTS CHILD CARE CENTER
As a preliminary matter, plaintiff Ashley Baker, the owner and operator of Little Tots Child Care Center ("Little Tots"), is moving to request that the Court issue a preliminary injunction to prevent the Franklin Department of Children and Families ("the FDCF") from revoking Little Tot's license until such time a trial can be had on the merits. Although a preliminary injunction is disfavored by the courts, relief may be grant in appropriate cases to preserve the status quo pending a decison on the merits. Lang v. Lone Pine School District, FCP (2016).
A party seeking a preliminary injunction must meet the four (4) factor test: (1) that the moving party is likely to suceed on the merits; (2) that the moving party will suffer irreperable harm if the injunction is not granted; (3) that the benefits of granting the injunction outweigh the possible hardships to the party opposing the injunction; (4) that the issuance of a preliminary injunction serves the public interest. Plaintiff's application satsifies all four (4) factors. Id. at 13. Accordingly, the court should grant plaintiff's motion for prelminary injunction until such time a trial can be conduced on the merits.
I. Ashley Baker, the plaintiff in this matter because Little Tot's existence is consistent with the statutory intent of the Franklin Child Care Center Act ("FCA") and therefore shows that plaintiff may succeed beyond a mere possilbity.
A party seeking preliminary relief "need only demonstrate that his chances to succeed on at least one of his claims are better negligble. Smith v. Pratt (Fr. Ct. App. 2011). Put another way, if the plaintiff can show that his chance of succeeding is better than a "mere possibility", a prelliminary injunction should be issued by the reveiwing court.
Here, Plaintiff is likely to suceed on the merits. As indicated by Plaintiff's testimony, and email correspondence from one of Plaintiff's clients, Jacob Robbins, Little Tots is the only low income child care center in the surrouding area. The faciltiy is open later and charges reduced fees for the demographic of low-income but employed parents. Moreover, the State University Early Learning Center has been sending students to Little Tot to observe the program. In other words, Little Tot is becomign a paradigm for its innovate model of teaching.
The FCA provides that it is the policy of the State of Franklin to "ensure the safety and well-being of prescshool-age children of the State of Franklin through the establishing of minimum standards of child care centers." See FCA Section 1(a). In particular, the FCA provides that there is a "need for affordable and safe child care centers" for "preschool-age children whose parents are employed" and "low income parents in underserved and ecnomically depressed communities." Id. at 1(b)-(c).
In this case, Little Tots's existence is consistent with the FCA"s statutory intent. Although the Notice of Deficiencies and ultimate Notice of License Revocation cited inter alia issues with Little Tots's enrollment proceedures, staff qualificatoins, staffing, and meal nutritions, the record shows unambigously that from 7/16/18 to 1/23/19, Plaintiff has made tremendous efforts to improve the facility's compliance with the FCA. The enrollment forms that were outstanding were reduced form 35 to 5, staff qualifactions and accompaning background checks went form four teachers to merely two teachers, one of which is newly hired. See generally FCA, Sectiion 3.01, 3.06 and 3.12. In addition, all student to teacher rations have been broughout into compliance, notwithstanding a recent devepment invovling a overlap wherein an additional 2-year old child was put into a classroom, exceeding the FCA ration of 1:8 by one, but only for an empheral period of time. The only remaining issue is therefore the meal nutrition and the FCA's requirement that due to allergic reactions, a child should have a "special diet" according to the instructions of the "child's parents or legal guardian." As it were, the restriction is in fact noted on the child at issue enrollment form; however, the teacher was unaware of such a restriction. While this is notable, Plaintiff will be addressing this issue immediately. Moreover, it should be understood in the context of a rapid expansion of Little Tots, in part because of governmetn grants. During this step, some missteps are unavoidable.
In short, Plaintifff has satisfied the first factor. The court's duty at his procedural juncture is not to divine the merits of hte case, but to merely review Plaintiff's application to see if it has shown a "mere possibility" that Plaintiff will suceed on any one claim. For all of the above reasons, Plaintiff has vaulted this factor and the court should grant her request for a preliminary injunction.
II. Plaintiff will suffer an irreperable harm if the preliminary injunction is not issued because many of the children that attend Little Tots will be without a child care center and at least some parents will be forced to quit their jobs.
The second factor is a preliminary injunction analysis is whether the moving party will suffer irreperable harm if the injunction is not granted. In other words, when a plaintiff cannot be adaquately compensated by damages or when damages cannot be mneasured by any certain pecuniary standard. Lang, supra, at 14.
In Lang, a case involving a parents' appliction for injunctive relief persuant to their request to provide a service dog to their student child when he was in school, the court found that no amount of money damages could "substitute for providing [the student] the education he needs." Id. at 14. Similarly, plaintiff will suffer irreperable harm because no amount of money damages could remedy the harm that would be suffered if the license is revoked. According to Robbins' e-mail correspondence, his will have to quit her job, along with other parents, resulting in higher healthcare costs and less wages to provide for already low-income children.
Further, Little Tots is the only low-income child care center in the area. If Plaintiff's license is revoked, it will result in children being displaced, potentially forced to rely on relatives who get sicks and just have their own lives to live. Although Plaintiff will suffer pecuniary harm as a result, the effect on the children is truly irreperable and cannot be compensated by money damages. For all of the above reasons, Plaintiff has vaulted this factor and the court should grant her request for a preliminary injunction.
III. The benefits of granting the injunction outweigh the burdens because the burden is minimial whereas the benefits to Plaintiff and the accompanying children of Little Tots is great.
For the third factor of a preliminary injunction analysis, the court will review whether greater injury "would result from refusing to grant the relief sought than granting it." Id. at 14. In Lang, the court found in the Plaintiffs' favor, despite the fact that that shcool would be required to train its staff to handle the service animal, educate parents, and accomodate allergic students accordingly. The court noted that it would cause the school district both time and money, which may be substantial. However, when weighing the benefits to the plaintiffs, it found found in their favor. In particular, the Lang Court found that the adolescent child was in a early and formative period of time, in which an accomondation to better suit his needs would confer a substantial benefit to the child.
Likewise, the burden is minimal on the state of FDCF and the benefits to Plaintiff substantially outweight such alleged burdens. Much like the student in Lang, Little Tots provides a service to pre-school aged children who are in their formative years of life. Thus, any deleterious effect that would occur by revoking the license of Little Tots is further amplified by the students' young age.
What burdens exist, if any, would be compliance with Franklin's laws and statutes. Little Tots was cited for failure to comply with a few "critical standards." While the undersigned counsel recognize the indellible and incredible importane of complying with a state's laws, here Plaintiff is undergoing a rapid expansion via goverment grants and as previously stated, has all but remedied the issues cited by the FCDF in their notice letters. Moreover, if the license is not revoked, Franklin continues to benefit from a low-income child care center, which enables parents to stay employed and thus contribute to society. For all of the above reasons, Plaintiff has vaulted this factor and the court should grant her request for a preliminary injunction.
IV. The court's grant of a preliminary injunction would greatly benefit the public and citizens of Franklin.
The last factor to be considered by the court when reviewing an application for preliminary injunctive relief is whether the issuance of a preliminary injunction serves the public interest. This criterion is unquivocally in the moving Plaintiff's favor.
In Lang, the court found that it factor cut both ways for the school district and the child. In one regard, it noted the school's need to converve resources, whereas ther service animal would serve the statutory purpose of of the laws protecting disabled children via-a-vis their education. The school distict also argued that by imposing a continuing duty of supervision on the court, and thus transforming it into a "ad hoc regulatory agency to supervise the activities of the parties." Franklin Envt'l Prot. Agency v. Bronson Mfg., Inc. (Fr. Ct. App. 1999). The court in Lang dispensed with the argument, however, by stating that compliance was "simple" and that the school was simply required to admit the service animal into the school.
Like Lang, by granting the injunction the court would be acting consistent with the FCA"s statutory purpose of providing safe and affordable child-care centers to low-incomes while concurrently enabling those parents to continue to say in gainful employment. As previously stated, Little Tots is the only low-income facility in the area, and will be meeting all staffing qualifications, enrollment proceedures, and meal and nutrition requirements in the a few more weeks, according to Plaintiff's testimony/affidavit. Furthermore, if the court were to grant the preliminary injunction, compliance is simple. Plaintiff would merely continue to the facility and address the critical issues. This would not turn the reviewing court into a simpel ad hoc regulatory agency, contrary to Bronson Mfg., Inc. For all of the above reasons, Plaintiff has vaulted this factor and the court should grant her request for a preliminary injunction.
In re Remick
Memorandum to Examinee
Transcript of client interview
Memorandum to file
Excerpts from the Restatement (Third) of Torts (2012)
Weiss v. McCann, Franklin Court of Appeal (2015)
Thomas v. Baytown Golf Course, Franklin Court of Appeal (2016)
Boxer v. Shaw, Franklin Court of Appeal (2017)
Daniels & Martin LLP
Attorneys at Law
3200 San Jacinto Blvd., Suite 270
Franklin City, Franklin 33075
FROM: Susan Daniels
DATE: February 26, 2019
RE: Andrew Remick matter
Our client, Andrew Remick, was injured when his car stalled on a roadway and was struck by
another vehicle. At the time of the accident, Remick was in the backseat of his car with a twisted
ankle while a motorist, Larry Dunbar, attempted to jump-start the car with his truck’s battery.
Another motorist, Marsha Gibson, drove around a bend in the road, was unable to stop in time,
and struck Remick’s stalled car from behind. As a result of the collision, Remick was seriously
injured and his car sustained significant damage.
Remick wants to know if he has any legal recourse. We talked about suing Marsha Gibson, and I
suggested that there may also be a claim against Larry Dunbar. Remick told me that he thought
the collision could have been avoided if Dunbar had either moved Remick’s stalled car to the
side of the road, set out emergency flares, or turned on the hazard lights on his truck.
Please draft a memorandum to me analyzing and evaluating whether Remick has a viable
negligence claim against Dunbar. In addressing the element of duty, discuss the legal theories
under sections 42 and 44 of the Restatement (Third) of Torts. Do not address either Gibson’s
liability or any defenses based on Remick’s conduct.
Do not include a separate statement of facts, but be sure to incorporate the relevant facts, analyze
the applicable legal authorities, and explain how the facts and law affect your analysis. I will ask
another associate to assess the claim against Gibson.
Transcript of Interview of Andrew Remick
February 19, 2019
Attorney: Andrew, it’s good to meet you. How are you doing?
Remick: I’m feeling better than I was a month ago, but I’m still on the mend.
Attorney: Why don’t you tell me what happened.
Remick: Well, on January 20, I was driving my car on Highway 290 down by the coast.
It’s a two-lane road with small towns scattered here and there.
Attorney: Yes, I’ve been down that way before, and I recall that it’s a pretty isolated stretch.
How did the accident occur?
Remick: I was on my way back to Franklin City from a weekend trip. It was about 4:30
p.m., and all of a sudden my car stopped working. It just powered off and the
dashboard display stopped working. I tried to start the car, but the engine
wouldn’t even turn over. I tried to turn on the hazard lights, but they didn’t work
Attorney: Were you able to pull over to the side of the road?
Remick: No, the engine died while I was driving; I didn’t have time to pull off the road.
Attorney: What did you do next?
Remick: First, I tried to use my cell phone to call for help, but I couldn’t get a signal. I
tried to push the car to the shoulder of the road. Since it’s a stick shift, it can be
moved, but when I tried to move it, I slipped and fell, badly twisting my right
ankle. I was in excruciating pain and I could barely put any weight on it. I decided
to get into the backseat to keep my ankle elevated and wait for somebody to
Attorney: And did that happen?
Remick: Yes, about 45 minutes later, a man named Larry Dunbar pulled up on the shoulder
of the road next to my car, got out of his truck, and asked me if I needed help. I
explained what had happened. Larry said that he was a mechanic and offered to
Attorney: What did he do?
Remick: He went back to his truck, grabbed a toolbox, and began poking around under the
hood of my car. I’m not very knowledgeable about cars, but I remember him
mentioning that he thought my car might have a bad alternator, which is part of
the car’s electrical system, so he was going to try to jump-start the car to see if the
alternator was working.
Attorney: Where were you when all this was happening?
Remick: I was still sitting in the back of my car with my right foot elevated on the
backseat. By this time, it was starting to get dark. My ankle had swelled up, and I
was in a lot of pain. I told Larry I was worried about the fact that it was getting
dark and my car was still parked on the road. I asked him if he could push the car
off the road. He told me not to worry because he thought he could get the car
started pretty quickly. I told him that I had emergency flares in the trunk; he said
not to worry.
Attorney: Was he able to jump-start your car?
Remick: I never found out. Right after he attached the jumper cables, I heard another car
coming around the bend behind my car and then I heard the screech of tires as the
driver hit the brakes, but she couldn’t stop in time. She hit my car, with me still in
the backseat! The impact was so hard that it slammed me into the back of the
driver’s seat. I blacked out, and when I woke up, I was in the hospital.
Attorney: I can see a brace on your left shoulder, and your left arm is in a cast and a sling. Is
that from the accident?
Remick: Yes, the impact of the collision dislocated my shoulder, broke my arm, and gave
me a minor concussion. The ankle I initially twisted when I fell is nearly healed,
and my doctor doesn’t anticipate any long-term complications from the
concussion. But the orthopedist thinks I will probably need surgery to repair the
damage to my shoulder, and my broken arm will need to heal for at least another
three to four weeks before the cast can be removed. I’ve been told that I’ll have to
undergo physical therapy for several months to regain full function in my left arm
and shoulder. I’m really worried about my shoulder and my arm. I own a small
landscaping business, and most of my work is very physical. Without full use of
my shoulder and arm, I can’t work.
Attorney: What about Larry Dunbar and the other driver, Marsha Gibson?
Remick: I don’t know. I’ve never met or spoken to the other driver, Marsha Gibson, and I
haven’t seen or spoken to Larry Dunbar since the accident.
Attorney: What about your car? How badly was it damaged?
Remick: It turns out that my car stalled because of a bad alternator, which would have cost
a few hundred dollars to fix. But now it’s going to cost at least $4,500 to repair
the damage caused by the collision.
Attorney: Was a police report generated for the accident?
Remick: I don’t know. In the month since the accident, I’ve been focused on my recovery
and trying to keep my landscaping business afloat. I think that the accident could
have been avoided if Larry had taken the time to move my car to the side of the
road or if he had at least turned on the hazard lights on his truck—you know, the
“flashers”—or used my emergency flares. If he had done any of those things, I
doubt that the other driver would have hit my car, and I would be nursing a sore
ankle instead of facing shoulder surgery and months of rehabilitation.
Attorney: You may have a case against Larry Dunbar as well as against the driver who hit
you. I’ll get back to you as soon as we have completed our initial assessment of
Remick: Thanks. I really appreciate your assistance.
Daniels & Martin LLP
Attorneys at Law
3200 San Jacinto Blvd., Suite 270
Franklin City, Franklin 33075
MEMORANDUM TO FILE
FROM: Peter Nelson, Private Investigator
DATE: February 22, 2019
RE: Andrew Remick matter
As requested, I have obtained a copy of the police report for the car accident that
occurred on January 20, 2019. I also interviewed Marsha Gibson, the driver of the SUV that rearended Remick’s stalled car, and gathered some initial background information about Larry
Dunbar. Below is a summary of my findings.
• A two-car collision involving Remick’s four-door passenger car and Gibson’s SUV
occurred at approximately 6:00 p.m. on January 20, 2019, on a relatively remote, twolane
stretch of Highway 290 between the towns of Castlerock and Highwater.
• At the time of the collision, Remick’s car was stalled on the northbound lane of the
highway, approximately 75 feet beyond a bend in the road.
• Remick was sitting in the backseat of his car at the time of impact.
• Dunbar’s truck was parked on the shoulder of the northbound lane next to Remick’s car.
• The hoods of Remick’s car and Dunbar’s truck were up, and Dunbar was in the process
of jump-starting Remick’s car battery.
• Gibson was driving northbound on Highway 290 at approximately 50 mph (the speed
limit is 55 mph).
• Skid marks measured at the scene of the accident indicate that Gibson immediately
applied the brakes on her vehicle but was unable to avoid hitting Remick’s car. Her
estimated speed at impact was 25 mph.
• The force of the collision caused Remick to slam into the driver’s seat in front of him, as
a result of which he suffered a concussion, a dislocated shoulder, and a broken arm. He
was transported by ambulance to Castlerock Hospital for medical treatment.
• Neither Gibson nor Dunbar was injured by the collision.
• No persons were cited or ticketed for the accident, although the responding police officer
noted that the accident occurred at dusk and that neither Remick’s car nor Dunbar’s truck
had its hazard lights turned on.
Marsha Gibson’s Statement to Police:
• Gibson claims that she was driving under the speed limit at the time of the collision.
• Gibson did not see Remick’s unlit car until she was about 40 feet away from it because it
was getting dark outside and Remick’s car was parked just beyond a bend in the road.
• Gibson estimates that she was driving at about 25 to 30 mph when she collided with
• Gibson was not injured in the accident.
Larry Dunbar Background Information:
• Dunbar is 35 years old and currently works in cable TV sales.
• Dunbar is a former automotive mechanic, having spent three years working for Franklin
City Automotive from 2012 to 2015.
Excerpts from Restatement (Third) of Torts (2012)
§ 42 Duty Based on Undertaking
An actor who undertakes to render services to another and who knows or should know that the
services will reduce the risk of physical harm to the other has a duty of reasonable care to the
other in conducting the undertaking if:
(a) the failure to exercise such care increases the risk of harm beyond that which existed
without the undertaking, or
(b) the person to whom the services are rendered . . . relies on the actor’s exercising
reasonable care in the undertaking.
* * *
c. . . . [A]ffirmative duty based on undertaking . . . The duty provided in this Section is one of
reasonable care. It may be breached either by an act of commission (misfeasance) or by an act of
d. Threshold for an undertaking. An undertaking entails an actor voluntarily rendering a service
. . . on behalf of another . . . . The actor’s knowledge that the undertaking serves to reduce the
risk of harm to another, or of circumstances that would lead a reasonable person to the same
conclusion, is a prerequisite for an undertaking under this Section.
* * *
§ 44 Duty to Another Based on Taking Charge of the Other
An actor who, despite no duty to do so, takes charge of another who reasonably appears to be:
(1) imperiled; and
(2) helpless or unable to protect himself or herself
has a duty to exercise reasonable care while the other is within the actor’s charge.
* * *
c. Distinctive feature of rescuer affirmative duty. This Section is limited to instances in which an
actor takes steps to engage in a rescue by taking charge of another who is imperiled and unable
adequately to protect himself or herself. The duty is limited in scope and duration to the peril to
which the other is exposed and requires that the actor voluntarily undertake a rescue and actually
take charge of the other.
* * *
g. Taking charge of one who is helpless. The rule stated in this Section is applicable whenever a
rescuer takes charge of another who is imperiled and incapable of taking adequate care. The rule
is equally applicable to one who is rendered helpless by his or her own conduct, including
intoxication; by the tortious or innocent conduct of others; or by a force of nature. The rule,
however, requires that the rescuer take charge of the helpless individual with the intent of
providing assistance in confronting the then-existing peril.
Weiss v. McCann
Franklin Court of Appeal (2015)
Plaintiff David Weiss, individually and in his capacity as guardian for Janet Weiss,
appeals the dismissal of his personal injury action against Sue McCann for serious injuries his
wife sustained at a party hosted by McCann. The issue on appeal is whether the Restatement
(Third) of Torts §§ 42 and 44, collectively referred to as the “affirmative duty” or “Good
Samaritan” doctrine, should apply to a homeowner. We find that under the specific facts of this
case the Good Samaritan doctrine does apply. Accordingly, we reverse the order of the trial court
dismissing the action.
The relevant facts and procedural history are as follows: On December 29, 2013,
McCann hosted a party at her home in her basement recreation room. Janet Weiss, a neighbor,
was among the attendees. Both McCann and Weiss had been drinking alcoholic beverages that
evening. When the party ended and everyone had left except Weiss and McCann, Weiss fell,
struck her head on the concrete floor, and lost consciousness. McCann revived Weiss and placed
her on a couch. The next morning Weiss awoke and walked home, without informing McCann
that she was leaving. At 9:30 a.m., McCann called Weiss’s home to see whether Weiss had
arrived home safely. McCann spoke to Weiss’s husband, David, who said that Weiss was home
and asleep. During the call, McCann did not mention that Weiss had fallen and hit her head.
McCann called again at 11:30 a.m. to check on Weiss and for the first time informed David of
his wife’s fall and injury. David checked on Weiss and was unable to wake her, so he
immediately called 911. An ambulance took Weiss to the hospital, where she had emergency
brain surgery for a subdural hematoma. As a result of the injury, she suffered permanent brain
damage. David Weiss brought this personal injury action against McCann, alleging that McCann
was negligent in caring for Weiss after her fall and injury. McCann moved to dismiss the
complaint for failure to state a cause of action, and the trial court granted the motion.
On appeal, the plaintiff claims that his complaint properly stated a cause of action in
negligence based on the common law “affirmative duty” or “Good Samaritan” doctrine set forth
in Restatement (Third) of Torts §§ 42 and 44, which has been adopted by the Franklin courts. To
determine whether the trial court properly granted McCann’s motion to dismiss, this court must
consider as true all of the well-pleaded material facts set forth in the complaint and all reasonable
inferences that may be drawn from those facts. Davis v. Humphries (Franklin Sup. Ct. 1996).
As a preliminary matter, we note that to establish a viable cause of action in negligence, a
plaintiff’s complaint must allege the following four elements: (1) duty: a legal obligation
requiring the actor to conform to a certain standard of conduct; (2) breach of duty: unreasonable
conduct in light of foreseeable risks of harm; (3) causation: a reasonably close causal connection
between the actor’s conduct and the resulting harm; and (4) damages, including at least one of
the following: lost wages, pain and suffering, medical expenses, or property loss or damage.
Fisher v. Brawn (Franklin Sup. Ct. 1998).
On appeal, the plaintiff first claims that he presented facts establishing a duty under the
Restatement (Third) of Torts § 42, which provides, “[a]n actor who undertakes to render services
to another and who knows or should know that the services will reduce the risk of physical harm
to the other has a duty of reasonable care to the other in conducting the undertaking if: (a) the
failure to exercise [reasonable] care increases the risk of harm beyond that which existed without
the undertaking or (b) the person to whom the services are rendered . . . relies on the actor’s
exercising reasonable care in the undertaking.”
We conclude that the language of § 42 envisions the assistance of a private person, such
as McCann, to a person in need of aid. Based on the plain language of the Restatement, we will
not, as a matter of law, preclude the application of § 42 to a homeowner such as McCann.
We now consider whether § 44 of the Restatement (Third) of Torts should apply as well.
Section 44 provides that “[a]n actor who, despite no duty to do so, takes charge of another who
reasonably appears to be: (1) imperiled; and (2) helpless or unable to protect himself or herself
has a duty to exercise reasonable care while the other is within the actor’s charge.” Section 44
applies “whenever a rescuer takes charge of another who is imperiled and incapable of taking
adequate care,” including “one who is rendered helpless by his or her own conduct, including
intoxication.” § 44, comment g. Based on this language, it is clear that § 44 may apply to the
homeowner McCann in this case.
The plaintiff’s complaint alleges that McCann did not contact Weiss’s family or seek
medical assistance for Weiss after she fell and then failed to inform the plaintiff of Weiss’s fall
and injury until nearly noon the next day, at which point the plaintiff was unable to revive his
wife. Based on our review of the language of the Restatement and the applicable case law, we
cannot, as a matter of law, preclude the application of § 44 to McCann.
Reversed and remanded with instructions to the trial court to reinstate the complaint.
Thomas v. Baytown Golf Course
Franklin Court of Appeal (2016)
This interlocutory appeal stems from a wrongful death action brought by the surviving
family members of Seth Thomas, who was killed in an automobile accident. Defendant Baytown
Golf Course (Baytown) petitions for review of the trial court’s order striking Baytown’s notice
that another individual, Glenn Parker, who was not named in this lawsuit, was a participating
cause of the fatality and hence liable for comparative apportionment of damages under Franklin
law. We conclude that Parker could be liable as a nonparty for the fatal accident after Parker
assumed the duty of a “Good Samaritan” to use reasonable care for Thomas, but in fact placed
Thomas in a worse position by giving his keys back to him and allowing him to drive away.
On June 3, 2012, Thomas and Parker played golf and consumed alcoholic beverages at
Baytown. Because Thomas appeared intoxicated, a Baytown employee took possession of
Thomas’s car keys. Parker then stepped forward and offered to drive Thomas home. With that
assurance, and observing Parker’s apparent lack of impairment, the employee gave Thomas’s
keys to Parker. Once in the parking lot, Parker returned the keys to Thomas. Thomas left the golf
course in his own car and crashed into a tree. He died from his injuries.
The plaintiffs brought a wrongful death action against Baytown alleging that Baytown’s
sale of alcohol to Thomas was the cause of the accident. Baytown filed a notice of nonparty at
fault, alleging that Parker was at least partially at fault because he volunteered to drive Thomas
home and then gave the car keys back to Thomas. The plaintiffs filed a motion seeking to strike
Baytown’s notice of nonparty at fault. The trial court granted the motion, and this interlocutory
appeal followed. For the reasons set forth below, we agree with Baytown that the trial court
erred, and so reverse and remand.
Rule 28 of the Franklin Rules of Civil Procedure provides that a defendant can give
notice that a person or entity not a party to the action is allegedly wholly or partially at fault for
the purpose of determining the respective liability of all actors under Franklin’s comparative
negligence laws. The jury is required to consider the fault of all persons who contributed to the
alleged injury, regardless of whether the person was, or could have been, named as a party to the
suit. Once a defendant designates a person as a nonparty at fault by filing the appropriate notice
with the trial court, the defendant can offer evidence of the nonparty’s negligence and argue that
the jury should attribute some or all fault to the nonparty, thereby reducing the defendant’s
percentage of fault and consequent liability.
The issue, then, is whether Parker’s actions contributed to Thomas’s death, rendering
Parker wholly or partially at fault. To find a person at fault in a negligence action, four elements
must be shown: (1) duty, (2) breach of duty, (3) causation, and (4) damages. See Fisher v. Brawn
(Franklin Sup. Ct. 1998). A duty must be recognized by law and must obligate a defendant to
conform to a particular standard of conduct in order to protect others against unreasonable risks
of harm. Id.
Baytown argues that Parker had a duty to Thomas under the Good Samaritan doctrine set
forth in the Restatement (Third) of Torts §§ 42 and 44. In its docket entry striking Baytown’s
notice of nonparty at fault, the trial court stated, “Mr. Thomas was not . . . ‘helpless’ as that term
is used in § 44. He was simply too drunk to drive.” We disagree. The determination of whether
an individual is “imperiled” and “helpless” must be made within the context of each case. A
person who is drunk and slumped in a chair at home in front of the television may not be
considered imperiled and helpless. However, we reach the opposite conclusion if the same
person is put behind the wheel of an automobile and sent down the road. Moreover, comment g
to § 44 specifically provides that § 44 applies where a person “is rendered helpless by his or her
own conduct, including intoxication.”
Although the trial court’s order focused on § 44, we find that both sections of the
Restatement are applicable to the facts of this case. The major difference between the sections is
the requirement of § 44 that the person be in an imperiled, helpless position. Section 42 has no
such requirement, but does require either that the actor’s actions increased the risk of harm or
that the victim relied on the actor. In either event, we believe that the Good Samaritan doctrine
applies when an actor, otherwise without any duty to do so, voluntarily takes charge of an
intoxicated person who is attempting to drive a vehicle and, because of the actor’s failure to
exercise reasonable care, changes the other person’s position for the worse. The rule applies here
because if Parker had not said that he would see that Thomas got home safely, Baytown might
have taken steps that would have avoided the accident.
The plaintiffs argue that Parker did not have a duty to Thomas because it was Baytown
that first provided Thomas with the alcohol that rendered him too drunk to drive. The plaintiffs
contend that the duty of care that Baytown owed to Thomas as a patron in its bar is not one that
can be delegated. We agree that Baytown’s duty cannot be delegated. Baytown, however, is not
trying to delegate its responsibilities to Parker. Rather, Baytown argues, and we agree, that the
duties owed by Baytown and Parker are independent of each other.
When Parker took charge of Thomas for reasons of safety, he thereby assumed a duty to
use reasonable care. Thomas was too drunk to drive. Baytown’s employees had taken charge of
Thomas and effectively stopped him from driving. Parker’s offer deterred the employees from
their efforts to keep Thomas out of his automobile. Rather than use reasonable care to drive
Thomas home or make other arrangements, Parker discontinued his assistance and put Thomas in
a worse position than he had been in when Baytown’s employees had possession of his keys. A
reasonable fact-finder could conclude that Parker’s actions contributed to Thomas’s death,
rendering Parker wholly or partially at fault.
We conclude that the trial court erred in striking Parker as a nonparty at fault and
therefore reverse and remand for further proceedings.
Boxer v. Shaw
Franklin Court of Appeal (2017)
Plaintiff Karen Boxer, as personal representative of the estate of Tim Boxer, appeals the
dismissal of her wrongful death action against defendant Harry Shaw. Tim Boxer was struck and
killed by a truck after exiting Shaw’s car on the side of a highway. The trial court granted
Shaw’s motion for a directed verdict. We affirm.
At trial, Shaw testified that he and Boxer were coworkers who often socialized together.
On the day of the accident, he and Boxer finished work early, around 3 p.m., and decided to go
fishing. Shaw offered to drive because Boxer’s car was in the shop. The two men fished for
about three hours. They then went to a marina, watched the boats, and played pool until about 10
p.m., at which time they decided to go to a nightclub. They were driving on Highway 101 to the
club when they got into a heated argument. Boxer started cursing and demanded that Shaw stop
the car. Shaw pulled onto the shoulder of the road, and Boxer exited the car and lit a cigarette.
Shaw has stated that he thought Boxer would get back in the car after smoking his cigarette, but
Boxer refused to do so. Shaw decided to briefly drive away to allow Boxer to “cool off.” Shaw
drove one mile down the road and then returned. In the meantime, Boxer attempted to cross the
highway and was struck by a truck.
Shaw testified that, although the two men had consumed a few beers while playing pool,
Boxer did not appear to have had too much to drink. The toxicology and autopsy reports
confirmed that Boxer’s blood alcohol level was under the legal limit. It is undisputed that the
accident occurred around 10:30 p.m., it was dark with misting rain, there were no lights on the
highway, and Boxer was wearing dark clothing. The investigating police officer testified that
the shoulder of the highway was “extremely wide” and agreed that there was ample room for a
pedestrian to walk there.
On appeal, the plaintiff argues that the trial court erred by directing a verdict for Shaw on
the issue of duty. The plaintiff contends that she presented evidence that Boxer was “helpless”
and that Shaw had “taken charge of” Boxer after the two men left work to go fishing and thereby
had assumed a duty to leave Boxer in no worse a position than when he took charge of him. We
must determine whether the trial court erred in finding that Shaw owed no duty of care to Boxer
because Boxer was not “helpless” and Shaw did not “take charge of” him.
In reviewing a ruling granting a directed verdict, the evidence and all reasonable
inferences therefrom must be viewed in the light most favorable to the party against whom the
verdict was directed. Ellis v. Dowd (Franklin Sup. Ct. 1995). In a negligence action, if there is no
duty, then the defendant is entitled to a directed verdict. Id.
An affirmative legal duty to act exists only if created by statute, contract, relationship,
status, property interest, or some other special circumstance. The common law ordinarily
imposes no duty on a person to act; however, where an act is voluntarily undertaken, the actor
assumes the duty to use reasonable care. Id.
The Restatement (Third) of Torts § 44 provides that an actor who, despite no duty to do
so, takes charge of another who reasonably appears to be imperiled and helpless or unable to
protect himself or herself has a duty to exercise reasonable care while the other is within the
Under the Restatement, an intoxicated person is considered helpless. § 44 comment g.
However, the undisputed evidence in this case indicates that Boxer was not “helpless.” The mere
fact that Boxer’s car was being repaired did not render him helpless, and his blood alcohol level
was below the legal limit. There was testimony from a family member that Boxer was in the
midst of a nasty divorce and that he was very upset about the breakup of his marriage. However,
the fact that a person may be distraught about a situation does not render that person “helpless”
without additional evidence of actual impairment.
Even if we assume that Boxer was “helpless” under the circumstances, to show that Shaw
“took charge” of Boxer, the plaintiff would have to show that Shaw through affirmative action
assumed an obligation or intended to render services for Boxer’s benefit. See, e.g., Thomas v.
Baytown Golf Course (Franklin Ct. App. 2016) (golfer assumed duty by telling golf course
employee who had taken car keys from an intoxicated man that the golfer would drive the man
home); Sargent v. Howard (Franklin Ct. App. 2013) (driver could be held liable for injuries
sustained by ill passenger who was attacked after being left in an unlocked, running vehicle at
night while driver used a convenience store restroom).
Viewing the evidence in the light most favorable to the plaintiff, the facts do not indicate
that Shaw, through affirmative action, assumed an obligation or intended to render services for
Boxer’s benefit. We disagree with the plaintiff’s claim that Shaw “took charge of” Boxer when
the two men left work to socialize on the day of the accident, nor did he do so at any point
throughout the remainder of the day. Boxer was not legally intoxicated and he was not helpless.
Accordingly, Shaw could not have assumed an obligation to render services for Boxer’s benefit.
Granted, on the day of the accident, Shaw drove. However, Shaw’s driving is not evidence of the
assumption of an affirmative obligation by Shaw to take care of Boxer. It is undisputed that both
men mutually agreed to go fishing, visit the marina, and head to the nightclub. There is no
suggestion that Shaw directed when and where he and Boxer would go, or that he intended to
“take charge of” Boxer.
Because the plaintiff presented no evidence from which a jury could find that Boxer was
“helpless” or that Shaw “took charge of” him, the trial court correctly concluded that Shaw had
no duty to Boxer and properly directed the verdict for Shaw.
To: Susan Daniels
Date: February 26, 2019
RE: In re Remick
Andrew Remick (hereinafter "Mr. Remick") likely does present a viable neglgience claim against Larry Dunbar (hereinafter "Mr. Dunbar") for his injuries, if he can show, under the Restatement of Torts sections 42 and 44, respectively, a duty of reasonable care was owed specifically to Mr. Remick, and that the defendant then breached that care under the circumstances.
Does a defendant owe a duty of reasonable care under the Restatement of Torts, Section 42 and 44, where said defendant undertook a performance of emergency roadside assistance and subsequently neglected to move the vehicle, not set out emergency lights, nor turn on any hazard lights on a remote road? Likely yes, a defendant, through his omission to provide reasonable care under such conditions, breached a duty of care imposed by both Franklin State's Restatement's of Torts' "Good Samaritan" statutes if he put the plaintiff in "worse" condition to recieve further injury in such fashion.
In order for the plantiff to succeed in a negligence claim, the successful plaintiff must allege that: 1) the defendant had a legal obligation requiring the actor to conform to a certain standard of conduct; 2) that the defendant has breached a legal duty owed to the plaintiff by nonconformance to a certain standard of conduct, 3) that the defendant's breach established a reasonably close causal connection between the actor's conduct and the resulting harm, and 4) damages, which is limited to lost wages, pain and suffering, medical expenses, or property loss or damage. Fisher v. Brawn (Franklin Sup. Ct. 1998). A duty must be recognized by law and must obligate a defendant to conform to a particular standard of conduct in order to protect others against unreasonable risks of harm. Id. In negligence, if there is no duty, then the defendant is entitled to a directed verdict. Ellis v. Dowd (Franklin Sup. Ct. 1995). Where duty is concerned under Good Samaritan theory, a plaintiff may either elect to prove a duty under section 42 or 44 of the Franklin Restatement of Torts.
Section 42 of the Resatement of Torts imposes a duty of reasonable care to a plaintiff where the plaintiff knew or should have known that the services would reduce the risk of physical harm to the other if: a) the failure to exercise such cares actually increases the risk of harm beyond that existed without the undertaking, or (b) that the person to whom the services are rendered relief on the actor's exercising reasonable care in the undertaking. Comment C of this section states that this duty may be imposed via an undertaking, where breach may occur through misfeasance or omission. Alternatively, Comment D mandates the threshold for undertaking, where a duty will be imposed upon an actor who voluntarily renders a service to reduce the risk of harm to another. For example, an actor will be held to have had a legal duty to a plaintiff where, "based on the plain language of the Restatement. . ." the defendant, a homeowner, failed to notify the plaintiff of his wife's injury which if he had done so sooner would have increased her chances of recieving proper help and avoiding injury. Weiss v. McCann.
Section 44 of the Restatement offers that an actor who had no such prior duty to a plaintiff may be nevertheless imposed with a duty to exercise reasonable care of another that the other person is imperiled or helpless. Comments C provides for the timeline of the duty, that it is limited in scope; the duty is only imposed on the actor to the extent he actually "takes charge" of the other. In Thomas v. Baytown, the Court granted an interlocutory appeal on the basis of a wrongful death action where a non party to the original suit was declared to be a party to the suit because he put the victim in "worse position" by giving him his keys to drive home. Coment g to Section 44 provides that a person is rendered helpless by his or her own conduct, including intoxication. Id. Additionally, the mere fact that a defendant's car was being repaired and did not itself render him helpless, together coupled with the fact that the blood alcohol level being below the legal limit, will not impose a duty onto the defendant. Boxer v. Shaw (Court of Appeal, 2017). The fact that a person might be anxious or "distraught" will not automatically render him helpless either. Id; but see Thomas v, Baytown Golf Course (Franklin Ct. App. 2016) (finding an actor could be liable as a non party if he places a plaintiff in "worse position" by allowing a plaintiff to be put in a position where he could recieve injury).
The determination of who whether an individual is "imperiled" or "helpless" must be made within the context of each case. Baytown (finding helplessness in a plaitiff who was drunk and slumped in a chair at home in front of the televsion may not necessarily be considered helpless or imperiled, but will be deemed so if he was "put behind the wheel of an automobile and sent down the road").
Rule 28 of the Franklin Rules of Civil Procedure states that a defendant can give notice that a person or entity not a party to the action is allegedly wholy or partially at fault for the purpose of determining the respetive liability of all actors under Franklin's comparative negligence laws. The jury is then required to consider the failt of all persons who ontributed to the alleged injury, regardless of wehtther the person was, or could have been, named as a party to the suit. Once a defendant designates a person as a non party.
Mr. Dunbar probably owed a duty to Mr. Remick to exercise reasonable care. Applying Section 42 to Mr. Remick's case, Mr. Dunbar probably owed a duty to Mr. Remick at the exact moment that he decided to stop and provide roadside assistance to Mr. Remick. The Court will likely find, as it did in Baytown, that he put the plaintiff in a much worse position to recieve injury because he took charge of Mr. Remick's apparant dilemma and failed to exercise reasionable care in not providing a more appropriate remedy because he did not move the car nor put hazards on to alert other drivers on the road. Comment D imposes a duty where a reasonable person would conclude appropriate conduct; Mr. Dunbar is a former mechanic who worked in Franklin, and likely knew of the exact repairs necessary to assist Mr. Remick. Additionally, The Court should impose an affirmative fiding pursuant to comment C an omission that greatly put Mr. Remick in a worse position.
Regarding section 44, the Court shoud find that Mr. Remick clearly and neatly fits within the description of helpless because he had a broken ankle and could not move. The Court will need to find this if Mr. Remick pursues a negligence theory on this specific statutory predicate.
Mr. Dunbar may, however, argue that perhaps mr. Remick was not helpless in that he did not have to wait 45 minutes (see interview) if he wanted true help Mr. Dunbar may argue that Mr. Remick's lack of "distraught"-ness did not impose a duty unto him. He will probably make this argument because if he can affimatively show no duty existed, he should be entitled to directed verdict. Howerver, the law states that a reasonable person's inability to help themselves is all that will suffice. Because Mr. Remick had a broken ankle and could not assist himself, the facts, as well as statements reflecting his injuries in his intereview indicate that he was not in a reasonable position to take care of himself under those circumstances. On balance, Mr. Dunbar will likely lose under this argument because the Court has section 42 to imply and infer and find a duty of reasonable care owed to Mr. Remick.
Mr. Dunbar probably breached his duty of reasonable care to Mr. Remick.
Mr. Dunbar may raise an important issue: that because his hood was up while he was making repairs, he could not likely see a car approaching the vehicle that containted Mr. Redick. This does not negate, of course, the other preventative measures Mr. Dunbar could have taken, that the facts indicate he did not. Mr. Dunbar may argue that he did not have enough time to follow through on his engine repair to fulfill the duty imposed onto him, but, again, this does not negate the fact that he refused willingly to take any preventative measures to caution other drivers on the road, which there was a bend around the corner. The bend was just 75 feet from the road where a speed limit of 55 miles per hour was imposed. Mr. Dunbar may argue that it was a remote road, but the duty imposed onto him and the breach he committed was contigent upon a reasonable person's behavior in these circumstances. Under Restatement section 44, his refusal to perform any preventative measures likely reached the legal threshold of a Court finding breach.
The Court should find a causal connection sufficient to establish a negligence claim against Mr. Dunbar because he did not set out emergency lights, hazard lights, or provide any further assistance in the dark night to mitigate any further injury incurred by Mr. Remick.
Mr. Dunbar will likely argue that he is not responsible for Mr. Remick's damages because it was Marsha Gibson who ultimately caused Mr. Remick's injuries and that he is thus a non party to any suit between him and Mr. Remick. See Baytown. Additionally, pursuant to Rule 28 of the Franklin Rules of Civil Procedure, he has not been given any notice of a suit. But in Baytown, the Court didn't refuse to include a non party on the basis of an additional cause, but instead found such an additional cause where the seemingly "non party" actually put the defendant in a worse position. Mr. Dunbar may argue that he did not put Mr. Remick in a worse position because it was dark out by the time Marsha Gibson hit Mr. Remick. But it was precisely his insistance to Mr. Remick not to worry, and the causal connection that subsequently flowed from not moving his car, or attempting to move his car after he had an affirmative duty to at least try to. There is causal connection because without any hazard lights put on the road, or emergecies lights to deter a vehicle from hitting the car (it was dark out), Ms. Gibson's car may not have hit Mr. Remick. Additionally. Ms Gibson, according the investigative report, was said to have been driving five miles below the speed limit. If Ms. Gibson were to be sued, she would shift the liability to Mr. Dunbar under rule 28. The Court should discern that he was in fact a causal factor in Mr. Remick's injury.
The Court should find that damages were sufficient. In his interview, Mr Remick indicated subsquent necessary medical treatment, property damage to his car in the amount of $4,500. Mr. Dunbar may not be liable for the ankle injury Mr. Remick sustained before he took charge of Mr. Remick's roadside assistance. Further investigation is necessary if Mr. Dunbar will be responsible for injuries that exageratted Mr. Remick's ankle injury that existed before his duty was imposed.
On balance, there are numerous facts that independantly satisfy the damages element of Mr. Remick's claim.
The court should find probably consider the ample evidence to support a viable negligence claim against Mr. Dunbar.
To: Susan Daniels
Date: February 26, 2019
Re: Andrew Remick Negligence matter
Our client, Andrew Remick, was injured when his car stalled on a roadway and was struck by another car while a Mr. Larry Dunbar was attempting to help Mr. Remick restart his car. This memorandum analyzes and dtermines the viability of Mr. Remick's negligence claim against Mr. Dunbar.
"To find a person at fault in a negligence action, four elements must be shown: (1) duty, (2) breach of duty, (3) causation, and (4) damages," (Thomas citing Fisher). This memorandum will approach Mr. Remick's negligence action along these elements. The elements of duty and breach of duty will be taken together for they are so intertwined.
1-2. Duty and Breach of Duty
An affirmative legal duty to act exists if created by statute, contract, relationship, status, property interest, or some other special circumstance (Boxer citing Ellis). According to the Restatement Third of Torts (2012) ("The Restatement"), an actor who undertakes services to reduce the physical harm of another but fails to exercise reasonable care while doing so forms and breaches a duty to that injured person (§42(a)). The undertkaing must be a voluntary act, rendered for another, and the undertaker must either know their services will reduce harm or should have known it will reduce harm (§42(d)). Courts will look to see if the plain language of the Restatement will preclude the application of §42 (Weiss).
Here, Mr. Dunbar may have committed an undertaking of Mr. Remick under §42 of The Restatement. Mr. Dunbar voluntarily stopped his vehicle, offered his assistance to Mr. Remick, and did so with the knowledge that removing his car from the road would most likley reduce any harm to Mr. Remick, Mr. Remick's vehicle, and/or others and their vehicles. Mr. Dunbar went as far as to connect jumper cables between the two vehicles. Nothing in the plain language of §42 would give reason to preclude Mr. Dunbar just as it was not found to preclude in Weiss. "The language of §42 envisions the assistance of a private person," such as Mr. Dunbar (Weiss).
Under §44 of the Restatement, a duty may be imposed on those who take charge of another who is imperiled and helpless to protect themselves. §44 is limited to situations in which the actor engages in a rescue of the imperiled and helpless. The duty is then limited in scope and duration to the peril of which the imperiled is exposed and requires volunatry undertaking by the actor (Id.). Courts will look to the plain language of §44 to determine its applicability (Weiss).
Here, the plain language would make §44 applicable to Mr. remick and Mr. Dunbar. Mr. Dunbar did take voluntary action by voluntarily pulling over and helping Mr. Remick out. Mr. Remick was injured and helpless as he injured his ankle of which he could not put any weight on attempting to move his own vehicle into the shoulder off the roadway. Mr. Remick was also imperiled because his car was stuck on a roadway, not near a town, at nighttime, with no phone service to call for help, and no way of leaving due to his bum ankle. Mr. Dunbar took charge of the situation as seen by Mr. Remick sitting in the car and Mr. Dunbar stating "not to worry."
Mr. Dunbar may argue that Mr. Remick was not "helpless" in terms of §44's lanaguage. Courts have found that "simply too drunk to drive" was not a sufficient reason to considered somone not helpless (Thomas). Mr. Dunbar is unlikely to succeed on an argument along the lines of Mr. Remick was "simply too hurt to run/make himself safe." Context is neseccary for determinations of helplessness under §42 (Thomas) and the context here seems to point to Mr. Remick truly being helpless due to his bad ankle, broken car, and faulty phone signal.
Under other authority, §44 has been ruled not to be upheld as an imposed duty for those not legally intoxicated (Boxer). In Boxer, no affirmative action was shown and therefore the acotr never "took charge" of the imperiled party. "The mere fact that Boxer's car was being repaired did not render him helpless," (Id.) Nor does being distraught over a situation deem you helpless (Id.) For Mr. Remick to find duty under §44, he would need to show he wasn't only helpless from being scared of the incoming nighttime or his car being broken; he would need to show more evidence as to his bum ankle and his shoddy phone signal.
Breach of Reasonable Care:
Mr. Dunbar's conduct must still have breached the reasonable care standard in order for §42 or §44to apply. When a party takes charge of another for safety, they thereby assumed a duty of reasonable care (Thomas). Under the reasonable care standard, a person must act in a reasonable manner given the circumstances and must take all efforts to act with care as if they were a reasomably prudent person. Mr. Remick states he had emergency flares that Mr. Dunbar did not use. Mr. Remick also states his vehicle is a manual, making it easier to move, but Mr. Dunbar never attempted to move Mr. Remick's vehicle into the shoulder of the roadway despite Mr. Remick telling Mr. Dunbar he was worried about his vehicle still parked on the road. There was ample space in the shoulder, for we know Mr. Dunbar's own vehicle, his truck, was parked in the shoulder. Mr. Remick's hazard lights would not turn on, but Mr. Dunbar's presumably working hazard lights were also not put on by Mr. Dunbar. Mr. Dunbar failed to take many steps that a reasonably prudent person would have taken when attempting to solve the issue of a stalld vehicle on a roadway at night and therefore is likely to have breached the reasonable care standard imposed on him by §42 and §44 of The Restatement.
Causation arises when a reasonably close causal connection between the actor's conduct and the result harm occured (Weiss citing Fisher). There must be cause in fact and proximate cause (legal cause).
Here, there seems to be cause in fact under the standard "but for" test. But for Mr. Dunbar's failure to use reasonable care (such as no hazards, not moving the vehicle) Mr. Remick would not have suffered his extensive injuries (everything sans the ankle) nor would his car have been damaged in the accident. You can quickly and clearly make a causal connection between Mr. Dunbar's actions and the injuries that occurred to Mr. Remick he suffered after Mr. Dunbar started his undertaking. Accordingly, cause in fact is met.
Proximate cause will delve greatly into Ms. Gibson's involvement when she hit Mr. Remick's car and as such proximate cause will not be discussed here in length. It would seem their may be some proximate cause issues as intervening forces, and such Mr. Remick's actions against Mr. Dunbar and Ms. Gibson will need to be taken together.
Damages include: lost wages, pain and suffering, medical expenses, and property damage (Weiss citing Fisher). Here, Mr. Remick has told us about his extensive physical injuries of which will probably come with hefty medical bills. He hurt his shoulder, broke his arm, had a minor concussion, and needs to see long-term care for these injuries. Because of his arm he cannot attend his job as a landscaper, likely resulting in lost wages as well. The accident has left Mr. Remick "still on the mend" a month later. Accordingly, Mr. Remick can properly show damages.
It is likley that Mr. Remick has a strong case against Mr. Dunbar, assuming he can get around any potential issues with proximate cause. The elements of an imposed duty seem to be there either under §42 or 44 and that duty of reasonable care seems to have been breached. Cause in fact was established as well as damages, giving Mr. Remick all the elements needed for his negligence claim against Mr. Dunbar.
MEE Question 1
One year ago, a man was injured when the car in which he and a woman were traveling slid off an icy highway during a winter storm and overturned. At the time of the accident, the woman was driving the car. The man was sitting in the front passenger seat, wearing his seat belt. The woman was driving 40 mph at the time of the accident, although the posted speed limit was 50 mph.
The man and the woman were rushed to a local hospital in its ambulance. There, hospital surgeons performed emergency surgery on the man. The man remained in the hospital for 10 days following his admission. Numerous medical instruments were used during his surgery and subsequent hospitalization, including needles, clamps, and surgical tools. However, he did not receive a blood transfusion or any blood products.
Three days after the man was released from the hospital, he developed a fever and visited his personal physician, who is not affiliated with the hospital. The physician ordered routine blood tests. The tests revealed that the man had a serious infection that is transmitted in nearly all cases through exposure to either contaminated blood products or improperly sterilized medical instruments (needles, clamps, surgical tools, etc.) that come into contact with a patient’s blood. There are, however, other possible sources of the infection in a hospital environment, such as a failure of staff to follow proper handwashing techniques to avoid transmitting infection from one patient to another and staff failure to properly identify and discard certain used medical instruments that cannot safely be sterilized.
Infections occurring in individuals who have not received a blood product and have not been hospitalized during the period of likely exposure are possible but rare. The physician told the man that he “must have contracted this infection at the hospital” because the period between infection and symptom development is 10 to 13 days and the man was a patient at the hospital during the entire relevant period. The physician also stated that “at hospitals that have adopted medical-instrument sterilization procedures recommended by experts, cases of this infection have been almost completely eliminated.” The man has no history of intravenous drug use, and he did not receive any medical treatment for several months before his hospital stay. All sterilization procedures at the hospital are performed by hospital employees. However, the particular sterilization procedure used while the man was hospitalized cannot be determined because, while the hospital now uses the sterilization procedure recommended by experts, there is no record of when it started using that procedure.
The man has sued the woman and the hospital, alleging negligence. Neither defendant is judgment-proof, and this jurisdiction has no automobile-guest statute. The parties have stipulated that the man’s damages for the injuries he suffered in the accident are $100,000 and his damages from the infection he contracted are $250,000.
1. Could a court properly find that the woman was negligent even though she was driving below the posted speed limit? Explain.
2. Could a court properly find that the woman is liable for the man’s damages resulting from the infection? Explain.
3. Could a court properly find that the hospital is liable for the man’s damages resulting from the infection? Explain.
4. If a court found that both the woman’s negligence and the hospital’s negligence caused the man’s infection, could the woman’s liability be limited to $100,000 for injuries the man suffered in the accident? Explain.
1. The issue is whether a court could find the woman was negligent even though she was driving below the posted speed limit.
Neglignce per se is a theory under which a person can be found liable if (1) there is a regulatory or criminal law that perscribes the duty of care, (2) the person violated that duty, (3) the injury caused was the type of injury the statute sought to protect against, and (4) the person injured was in the class of people sought to be protected. However, compliance with the statutory duty does not forclose a finding of negligence. That is, a person can still be found to be negligent under a traditional theory of negligence even if they acted in accordance with the duty perscribed by the statute. Under a traditional theory of negligence, the plaintiff must prove duty, breach, causation (both cause in fact and proximate cause, and damages.
Here, a court may find the woman was negligent even though she was travel below the speed limit. The speed limit is a regulatory law that perscribes a certain duty (ie that drivers should not exceed a certain speed). While the woman will not be liable under a theory of negligence per se because she was not violating that statute, the court may nevertheless find that she was negligence.
The woman still had a duty to of reasonable care under the circumstances. Here, the court may find that under the circumstances of icy conditions, driving at 40mph itself was negligent. The court could further conclude that the woman's driving at a speed unsafe for the condition was the but-for and proximate cause of the injuries because if she was driving slower the accident would not have happened (cause in fact) and the accident was a foreseeable result of her driving at 40mph (proximate cause). The facts indicate that the man suffered injuries as a result of the accident (damages). Therefore, the court could find the woman was negligent even though she was driving under the speed limit.
2. The issue is whether the woman's conduct was the proximate cause of the infection.
A finding of negligence requires a finding of duty, breach, causation, and damages. To show causation, a plaintiff must show that the defendant was both the cause in fact and the proximate cause. To show cause in fact, the plaintiff must show that the injury would not have occured but for the defendant's conduct. To show proximate cause, the plaintiff must show that the resulting harm was a foreseable result of the defendant's conduct. A intervening superceding cause will cut off the chain of causation. A superceding cause is an intervening even that was not foreseeable. As a general rule, medical malpractice is foreseeable and does not break the causal chain. A plaintiff is liable for all of the foreseeable harm that results from her conduct.
Here, as stated above, if the woman was driving too fast for the conditiions, she is likely the but for cause of the accident which necessitated medical care. The facts indicate that the blood infection was likely caused by medical malpractice (ie the hospital did not properly was the surgical tools or follow proper handwashing techniques. It was foreseeable that driving negligently would cause an accident, which woudl result in the need for medical care. Medical malpractice is generally foreseeable when the plaintiff is undergoing medical care. Therefore, the woman can be held liable for the injuries resulting from the infection.
3. The issue is whether the hosptial can be held liable for the injuries resulting form the infection in the absence of direct evidence of negligence.
In the absence of direct evidence of negligence a defendant can be found liable under the doctrine of res ipsa loquitor. A defendant can be found negligent under res ipsa if (1) the type of injury that occured typically does not occur in the absence of negligence, (2) the instumentality that caused the harm was in the exclusive control of the defendant, (3) the plaintiff's own negligence did not contribute to the harm.
Here, there is no direct evidence of negligence because we dont know how the hospital sterilized thier tool, but the court could properly find that the hospital was negligent. First, the personal physician indicated that this type of blood infection does not usually occur unless one is exposed to contaminated blood products, the improper sterilization of medical instruments, improper handwashing. In the absence of such conduct, the blood infection rarely results. Therefore, the blood infection is likely the type of injury that does not occur but for negligent conduct (ie those things just mentioned are all negligent conduct). Second, The the instruments used in the surgery and the conduct of the hospital workers is in the exclusive control of the hospital. The man did not visit other hospitals or undergo other surgeries recently. Therefore, it was in the hospitals exclusive control. Third, the man did not contribute to the injury because he is not an IV drug user.
4.The issue is whether the woman could be liable for all of the damages or just the portion attributed to the accident.
Under joint and several liability a defendant can be liable for all of the damages that result from her negligent conduct. If the state allows for contribution, she could go after another defendant for the portion in which she has over paid. A defendant is liable for all the foreseeable harm from her conduct. Therefore, under joint and several liability, the woman could be liable for th full amount and will not be limited to only the $100K
1. Whether a finding of negligence against the woman is appropriate even where she was driving below the speed limit.
To recover for negligence a plaintiff must show duty, breach, causation, and damages. In the absence of a guest statute, a driver does not owe any particular duty of care to its passenger other than the usual requirement to exercise reasonable care under the circumstances. Negligence per se is a doctrine whereby a plaintiff can show that the defendant had a duty to conform their conduct to a particular statutory or regulatory requirement. A showing of negligence per se establishes the duty and breach prongs of negligence, though the plaintiff must still prove causation and damages. Negligence per se is appropriate where a civil or ciminal statute requires a defendant to act in a certain way, the plaintiff is in the class of persons intended to be protected by the statute, and the harm caused to the plaintiff is the type of harm the statute was meant to prevent.
Here, the woman conformed her conduct to the stated speed limit because she was driving 40 mph in a 50 mph zone. Because she did not breach any duty imposed upon her by the speed limit, the man will not be able to prove negligence based on a negligence per se theory. However, he may be able to prove negligence based on the typical negligence theory by showing that the woman otherwise failed to exercise reasonable care. For instance, if he can produce facts showing that she was driving recklessly without her headlights on or without her windshield wipers on, he might be able to make out a case for negligence.
2. Whether the woman could be found liable for damages relating to the man's infection.
Where a defendant has been found liable in negligence, he or she will be responsible for all of the plaintiff's injuries that reasonably and foreseeably flow from the injury. The so-called "eggshell plaintiff" rule applies regardless of whether the plaintiff had any particular conditions before the negligent conduct occured that made their injuries more severe.
Here, the man's infection is a foreseeable result of driving without exercising due care. An accident is likely to result in a visit to the hospital. It is likewise anticipated that an infection could be contracted during a stay in a hospital full of other sick people. Because these outcomes were reasonably foreseeable at the time the woman drove negligently, she can be properly found liable for the consequences of the man's hospital stay, including the infection.
3. Whether the hospital may be found liable for damages relating to the man's infection.
Res ipsa loquitor is a theory of negligence that is available to a plaintiff where no direct evidence of negligence is available. Instead, the plaintiff can plead circumstantial evidence in order to overcome dispositive motions and advance the case to the jury for their determination of the facts. To make a case of res ipsa loquitor, a plaintiff must show that their injury is of the type that is ordinarily caused by negligence, that the instrumentalities involved in the negligent conduct where within the exclusive control of the defendant or defendants, that the negligent conduct was the cause of the plaintiff's injuries, and that the plaintiff did not contribute to their own injuries.
Here, there is no direct evidence that the hospital negligently caused the man to contract this infection. However, his infection is transmitted in nearly all cases via exposure to contaminated blood products or improperly sterilized medical equipment. It can also be transmitted by hospital staff failing to follow proper handwashing techniques. Therefore, the man can show that this type of infection is almost always caused by negligence on the part of hospital staff. The man can only have been infected in the hospital because he was admitted there for 10 days and symptoms of the infection take 10 to 14 days to develop. Therefore, the man can show that his body was in the exclusive control of the hospital for the relevant period. The man is not an intravenous drug user and has not received any other recent medical treatment where he might have contracted the infection. Therefore, the man can show that he did not contribute to his own injuries and that the hospital caused his injuries because he would not have contracted the infection had he not been admitted to the hospital. Because the man can establish the elements of res ipsa loquitor, a court may properly find that the hospital is liable for the man's damages resulting from the infection.
4. Whether the woman's liability can be limited to $100k where both she and the hospital are found liable.
Where two tortfeasors are found to be responsible for a single injury, even where the negligent conduct was not concurrent, the liable defendants may be found joint and severally liable. Joint and several liability means that any one defendant can be found liable to the plaintiff for the entire amount of their damages. The defendant can then seek contribution from any other defendants from amounts that it does not believe itself to be directly responsible.
Here, if both the woman and the hospital are found liable for the man's infection, they will both be liable for his injury and therefore can be found joint and severally liable. The man may seek all of his damages from either the woman or the hospital. Therefore, the woman cannot limit her damages to $100k and can instead be found responsible for the entire $350k. She would be able to initiate a separate suit against the hospital for contribution relating to their responsibility for the injury,
MEE Question 2
A company is in the business of manufacturing and selling stereo equipment. Several months ago, the company borrowed money from a bank, to be repaid by the company in monthly installments. The loan agreement, which was signed by the company’s owner, provided that, to secure the company’s obligation to repay the loan, the company granted the bank a security interest in “all personal property” owned by the company. Also that day, under an oral agreement with the company’s owner (who had full authority to speak on behalf of the company), the bank took possession of one of the most valuable items of the company’s property—an original Edison gramophone that the company had acquired because it was the earliest precursor of the company’s digital music players—as part of the collateral for the loan. The bank properly filed a financing statement in the appropriate filing office, listing the company as debtor and, in the space for the indication of collateral, listing only “all personal property.”
Since borrowing the money, the company has run into various financial troubles. It has missed some loan payments to the bank and recently lost a lawsuit, resulting in a large judgment against the company. Last month, the judgment creditor obtained a judicial lien on the gramophone.
Last week, the bank notified the company that it was in default under the loan agreement. Without giving advance notice to the company, the bank sold the gramophone to an antiques collector in a commercially reasonable manner. The judgment creditor has learned about the sale of the gramophone and asserts that he had a superior claim to it.
The sale of the gramophone did not generate enough money to satisfy the company’s obligation to the bank. The bank would like to seize some of the company’s other property in which the bank has an enforceable security interest.
1. Does the company have any claim against the bank with respect to the sale of the gramophone? Explain.
2. As between the bank and the judgment creditor, who had a superior claim to the gramophone? Explain.
3. Does the bank have an enforceable security interest in any personal property of the company other than the gramophone? Explain.
1) The company has a claim against the bank for wrongful conversion of the gramaphone. The issue here is whether the sale of the gramaphone was proper, and if not, whether the company has a claim against the bank.
When a company is in default, the creditor has several actions in which they can take to get back their investment. This includes replevin, foreclosure, and a judgment lien. Replevin is when a creditor takes possession of the property in which they have a security interest on, foreclosure is when they sell this property in order to satisfy their debt. This sale must be conducted in a commercially reasonable manner. In order to have a proper foreclosure sale, the creditor must have possession of the property, the debtor must be in default, and the debtor must be given proper notice. This notice typically gives them notice of the default and that the property is to be sold, and once they are given notice, they are allowed a chance to pay off the debt (plus interest) and redeem the property. This notice is also to give them notice of the sale in which they have a right to bid on the property. If a creditor improperly forecloses on property, the debtor has a claim against them for the value of that property and for improper sale.
Here, the bank took possession of the megaphone as collateral for the debt (as discussed in further detail below). The debtor then fell into default to which the bank informed the debtor of. The bank then held a sale for the held a sale in a commercially reasonable manner and sold the property to the collector. However, while the bank gave the debtor notice of the default, they did not give them notice of the sale of the gramaphone, nor did they give them the requisite amount of time to pay off their debt and redeem the goods. Therefore, this was an improper sale and the company has a claim against the bank for the gramaphone.
2) The bank has a superior claim in the grmaphone becuase they were the first to perfect and attach their interest. The issue here is who has a superior claim to the gramaphone.
The UCC Article 9 governs security interests. In order to have a valid security interest, the creditor must attach and perfect the goods. Attachment requires that a creditor give value, that the debtor have possession of the goods, and that the goods are reasonably identified. In order to perfect the creditor must either take control or possession of the goods, or file a financing statment. When a creditor follows these procedures, their security interest is perfected and they have priority (or first claim) in the collateral and are first in line to collect upon a debtor's default.
Here, the bank properly attached the gramaphone. The bank gave value (in the form of financing) to the company, the company had possession of the collateral at teh time the deal was made, and the gramaphone was properly identifed. Further, the security interest was perfected upon the bank taking possession of the gramaphone in exchange for the financing to the company. The judgment creditor also has a proper claim to the gramaphone, but since the bank was the first to perfect, they would be a junior creditor and would receive whatever is left over from the sale of the collateral or, if there is not enough to satisfy the debt (as is the case here) they may bring a deficiency action against the company.
Because the bank has a proper and perfected security interest in the collateral, they have the superios claim to the judgment lien.
3) The bank does not have a enforceable security interest in all personal property because that is not a specific enough description to satisfy the requirements of a financing statement. The issue here is whether there was a proper financing statement and perfected security interest in all personal property of the company.
A creditor must have a valid security interest in goods. In order to have a valid security interest, the creditor must attach and perfect the goods. Attachment requires that a creditor give value, that the debtor have possession of the goods, and that the goods are reasonably identified. In order to perfect the creditor must either take control or possession of the goods, or file a financing statment. A proper financing statement must sufficiently identify the creditor, the debtor, and the collateral as well as be properly filed, in order for it to be effective. Goods can either be tangible or intangible. Tangible goods include consumer goods, instruments, inventory, and farm products. In order to have a proper filing statement in these goods, they must be identified in a sufficient manner, i.e. a manner is which they are readily identifiable. Most courts hold that statements such as "all personal property" or "all goods" are an insufficient description for a filing statement.
Here, the bank gave value for the collateral, which was in the companies possession, so the security interest most likely properly attached. However, the the Bank and the company properly filed a financing statement, which listed the debtor and the crediton and listed the collateral as "all personal property." As stated above, this is more than likely not a sufficient enough description of the collateral for the financing statement to be valid. Because the bank did not have a proper financing statement, the do not have interest in teh personal proeprty of the company.
1. The issue is whether the company can make a claim against the bank contesting the sale of the gramophone.
Under UCC article 9, a secured party ("SP") with possession of collateral may dispose of the collateral in a commercially reasonable manner upon default of the debtor-obligor. However, a SP must take certain actions in order to properly dispose of collateral of certain classes. The actions required depend upon the character of the collateral. For moveable, tangible goods, there are four classes: consumer goods, farm products, inventory, and equipment. Consumer goods are goods bought for the purpose of personal, family or household use. Farm products are the yields and precursors of farm work, e.g. crops and fertilizer. Inventory represents any goods kept for the purpose of sale in the holder's ordinary business. Equipment is a residual category for tangible, moveable goods that do not fit the other categories.
Assuming for the purposes of this question that the bank had a valid, attached, perfected interest in the gramophone (discussed further below), the gramophone may qualify as inventory because company is in the business of manufacturing and selling stereo equipment. Company may argue that the gramophone represented equipment because it was not kept for a household use, it is not a farm product, and it was not kept for the purpose of sale but rather as a keepsake, decoration, or otherwise to be held by the company and not sold in its ordinary course of business. Likely the gramophone qualified as equipment because the facts seem to indicate that company sells digital music players, not extremely valuable antiques, as its regular business.
However, the company likely does not have any claim against the bank with respect to the sale of the gramophone because there is a safe harbor for sale of the collateral of a debtor/obligor in default when the sale is made in a commercially reasonable manner. The bank's notice to the company that it was in default would likely be sufficient if there was enough time between the notification of default and the bank's ultimate sale of the gramophone to give the company the opportunity to pay off the balance of the loan and redeem its collateral.
Therefore, the company does not have any claim against the bank with respect to the sale of the gramophone because the default sale was done in a commercially reasonable manner.
2. The issue is whether the bank, a secured party with a perfected interest, or the judgment creditor, a lien creditor, had a superior claim to the gramophone, which was likely equipment.
As a threshold matter, one must consider whether the bank and the judgment creditor had a valid secured interest and valid judicial lien, respectively, in the gramophone. In order for a party to have a valid secured interest, the interest must attach and be perfected. In order for the interest to attach, the SP must exchange value for the collateral, the debtor-obligor must receive rights in the collateral in exchange, and there must be an authenticated security agreement between the SP and debtor-obligor. If the security agreement is too generic, e.g. "all personal property" or "all property and after-acquired property," then the security interest does not attach. However, a security interest will attach by default for any property that is held in possession of the SP. For a security interest to be perfected, a party must engage in one of several methods of perfection, including automatic perfection under specific circumstances, and filing with the appropriate office a financing statement. A financing statement that is highly generic is not invalid, as a security agreement of the same level of specificity would be. Instead, a super-generic statement of collateral in a financing statement is sufficient for perfection through filing.
Here, the bank likely has an attached and perfected claim to the gramophone because the bank has possession of the gramophone, granting attachment of the security interest, and has filed a financing statement with the appropriate office, granting perfection of that interest.
In order for a judicial lien to be valid, there must be a valid judgment entered against the debtor-obligor, filed with the court. Here, the judgment creditor likely has a valid judicial lien.
Under the priority rules, a secured interest that is attached and perfected will prevail over a judicial lien, unless there is some issue with attachment of the secured interest. Here, if the court found that possession was sufficient for attachment of the bank's secured interest in the gramophone, then the bank would have a superior claim to the gramophone. If the court were to hold that the super-generic security agreement and possession of the gramophone as equipment was insufficient to attach, then the judicial lienholder would likely prevail.
3. The issue is whether the security agreement and financing statement filed by the bank were sufficient to have an enforceable security interest in any personal property of the company other than the gramophone.
As discussed above, the bank's interest in any property of the company apart from the gramophone is likely unattached because the security agreement (the loan agreement) was insufficiently specific in its description of the collateral. Therefore, the bank has an unattached interest and would be unable to obtain an enforceable security interest in any personal property of the company.
MEE Question 3
Five years ago, three radiologists—Carol, Jean, and Pat—opened a radiology practice together. They agreed to call their business “Radiology Services,” to split the profits equally, and to run the practice together in a manner that would be competitive. Toward that end, they purchased state-of-the-art radiology imaging equipment comparable to that of other radiology practices in the community.
Shortly after opening the practice, Carol, Jean, and Pat retained an attorney to organize the practice as a limited liability company. The attorney prepared all the necessary documents and forwarded the documents to Carol, Jean, and Pat for signature. However, they were so involved in their radiology practice that they forgot to sign the documents, and they have never done so.
Four months ago, Carol suggested to Jean and Pat that the practice replace some of the imaging equipment. Jean was worried about overspending on imaging equipment, but she did not express her concern to Carol and Pat.
Three months ago, Carol, without discussing the matter further with either Jean or Pat or obtaining their consent, purchased for the practice a $400,000 state-of-the-art imaging machine like those recently acquired by other radiology practices in the community.
After the purchase but prior to delivery, Jean learned what Carol had done and was furious. Jean did not believe the practice could afford such an expensive machine. When Jean confronted Carol, Carol said, “Too bad, it’s a done deal—get over it.” At that, Jean responded, “That’s it. I’ve had enough. This machine was purchased without my consent. It’s a terrible idea. I’m out of here and never coming back. Just give me my share of the value of the practice.” Carol responded, “Fine with me.” Carol and Pat subsequently agreed to continue their participation in Radiology Services without Jean.
Radiology Services is in a jurisdiction that has adopted both the Revised Uniform Partnership Act (1997, as amended) and the Uniform Limited Liability Company Act (2006, as amended).
1. What type of business entity is Radiology Services? Explain.
2. Did Carol have the authority to purchase the imaging machine without the consent of Jean and Pat? Explain.
3. Did Jean’s statements to Carol constitute a withdrawal from Radiology Services? Explain.
4. Were Jean’s statements sufficient to entitle her to receive a buyout payment from Radiology Services for her interest in the practice? Explain.
Radiology Services is a partnership.
A partnership is an agreement, whether express or implied, between individuals to carry on a business for profit. There are many factors that can indiciate whether or not an agreement is a partnership. One factor is whether or not the profits are split equally. Another factor to consider is the nature of the decision making and the authority vested to each individual. Additionally, courts look at the title of the property and whether or not it is in the partnership name.
In this case, Carol, Jean and Pat all became partners five years ago when they opened their radiology practice, "Radiology Services" and split the profits equally and ran the business in a competitive manner. A presumption of a partnership was created based upon the fact that they shared equally in the profits, they engaged in a competitive business and they shared in the creation and maintenance of "Radiology Services."
Carol, Jean and Pat did not create a limited liability company. A limited liability company is a creature of statute - therefore, the statutory requirements must be strictly met in order for an organziation to be considered a LLC. One such requirement is filing the necessary paperwork with the Secretary of State. Here, Carol, Jean and Pat never signed the required documents and never filed such documents.
As a result, they failed to create an LLC and maintained their practice as a partnership.
Carol did have the authority to purchase the imaging machine without the consent of Jean and Pat.
In a partnership, a partnership is held liable for the decisions of the partner made with apparent or actual authority. A partnership is liable to the extent of these agreements made on behalf of the partnership; although, the partner could have violated some other duty of good faith by engaging in these purchases without the consent of all of the partners. For example, if a partner previoulsy purchased a boat for a boating business and without the consent of the other partners, and then later purchased another boat, it is likely that this partner did not require the consent of the others because he was acting on implied actual authority to make this purchase.
In this case, Carol had suggested purchasing imaging equipment for the practice. Previously, the practice had purchased state of the art imaging equipment so as to compete with other businesses in the industry. When Carol suggested that the practice purchase additional equipment, Jean had worried about overspending but had never expressed this concern to Carol or Pat. Therefore, Carol would have no way to know that Jean did not consent to the purchase. Furthermore, as no one explicitly objected, Carol could have believed that neither Jean nor Pat were opposed to the purchase of the equipment.
When Carol purchased the state of the art equipment a month later without the express consent of Jean or Pat, Carol was acting with both apparent and actual authority. Her actual authority was the authority she believed she had, either expressly or through implication, to make these purchases on behalf of the partnership. Additionally, she was acting with apparent authority in that the seller of the equipment believed she was making the purchases on behalf of the entire practice. The practice had made such purchases before and radiology requires up-to-date machinery in order to provide the best and most advanced medical care and stay competitive with other practices. Carol was acting as an agent on behalf of the partnership and was therefore entitled to make decisions based on her knowledge of the scope of her authority. Based on the facts, it is not unusual to think that Carol would have believed she was permitted to make this decision.
As a result, the entire partnership is liable for the imaging machine and Carol did have the authority to make such purchase without the consent of Jean and Pat.
Jean's statements to Carol did constitute a withdrawal from the partnership because Jean expressly stated that she did not want to participate in the practice anymore.
A partner can remove himself or herself from the partnership for a variety or reasons and in a multitude of ways. Under RUPA, a partner can expressly disclaim his or her interest in the partnership and state that he or she no longer is interested in engaging in the agreement for profit. Once this occurs, the partnership can wind up and dissolve or can continue on for profit without that partner.
In this case, Jean had stated that she was at her limit and she was "out of here" and "never coming back" and that to "give [her] [her] share of the value of the practice." This is sufficient for Jean to withdrawl from the partnership. She expressly stated her interest in not continuing in the agreement for profit and that she no longer wanted to be a part of the partnership.
Therefore, Jean's statements constituted a withdrawal from Radiology Services.
Jean's statements were sufficient to entitle her to receive a buyout payment for Radiology Services for her interest in the practice.
To be entitled to a buy out under a partnership, there are no magic words that the partner must say in order to be able to recoup their interest in the practice. Essentially, once a partner has expressed that they no longer are interested nor intend to continue on with the partnership, the partnership dissolves and the partner is entitled to his/her share in the partnership interest.
When a partner leaves, the partnership can continue to exist without the other partner. The partnership would just be required to sell sufficient assets to ensure that Jean, or any partner leaving, is able to recoup what he/she is entitled to.
Therefore, Jean's statements were sufficient to entitle her to receive a buyout payment from Radiology Services for interest in the partnership.
1. Radiology Services is a partnership because, despite Carol, Jean, and Pat's intention to form an LLC, without the requisite filing with the appropriate state office, the LLC has not been formed.
Issue: The issue is what type of entity Carol, Pat and Jean are acting under, as they had good intentions to create an LLC but failed to do so.
Rule: A partnership can be formed without any express written agreement. A partnership is an agreement between two or more people to carry on a business for profit. Numerous things lead to the presumption of a partnership, including the sharing of profits and losses, joint control of an entity, purchasing partnership property, and holding a group of partners out as being involved with each other (e.x. introducing another as "one's partner). Both General partnership and limited partnerships exist. In a general partnership, unless specified otherwise, each partner has equal control of the business and profits and losses are shared equally. In a limited partnership, general partners are responsible for the functioning of the partnership and the day to day activites, and limited partners generally provide capital and act more passively as investors. In a general partnership, each partner is liable for the actions of each other general pratner. In a limited partnership, genreal partners remain liable for the actions of other general partners, but limited partners' liability is limited to their capital contributions. A limited liability company can only be formed with the filing of an intention to create a LLC with the appropriate state office, the secretary of state. Intention to create an LLC does not lead to the presumption that parties are acting as an LLC; the LLC is not created until the secretary of state receives and processes the filing. A LLC must have "LLC" or "Limited Liability Company" in its name.
Analysis: In this case, Carol, Pat and Jean are acting as a partnership. Despite their intention to create an LLC and their hiring a lawywer to prepare all of the necessary documents to sign, because J P and C never signed the documents and thus they were never subsequently filed, the LLC was never created. Moreover, their name, "Radiology Services," does not comport with naming requirements. The parties are carrying on as a partnership; no written agreement is necessary. They are running the practice together, splitting profits equally, and purchasing equipment together for the purpose of enhancing their business. C P and J are acting as general partners, as they are all contributing to the day to day aspects of the business; it is not as though one of them is a part of the business purely to provide capital.
Conclusion: Carol, Jean and Pat are operating as three general partners in a general partnership.
2. As a general partner acting in concert with the overall goals of the partnership, Carol had actual implied authority to purchase the imaging machine without the consent of Jean and Pat.
Issue: The issue is whether one general partner can bind the partnership to the purchase of equipment for the purpose of enhancing the partnership without the express authority of the other general partners.
Rule: While general partners typically act in concert with each other, each general partner is held liable for the actions of all other general partners. Each general partner may act with actual authority, apparent authority, or implied authority. Actual authority can be express or implied. Express actual authority is the most clear type of authority; the partnership, after discussion, implores a partner to purchase X or conduct Y on behalf of the partnership. Actual implied authority is different, in that a partner is acting in what he believes to be in a way that comports with the overall mission of the partnerhsip, although he did not expressly discuss it with his partners ahead of time.
Analysis: In this case, Carol acted with actual implied authority to purchase the imaging machine. The goal of the partnership is to maintain a radiology practice with state of the art radiology equipment. Upon forming the partnership, C J and P purchased state of the art radiology imagining equipment comparable to that of other radiology practices in the community. When Carol purchased the new machine, she purchased the machine that had also been recently acquired by other radiology practices in the community. Whereas the partnership could be more skeptical if Carol had purchased a dental chair (far outside the scope of a radiology practice), the purchase of a $400,000.00 state of the art imaging machine was consistent with the goals of the partnership. Carol did not discuss the purchase with J and P ahead of the purchase, but acted in comport with what she believed to be the best interest of the practice and consistent with prior purchases made to maintain a level of equipment comparable with other radiology practices in the community.
Conclusion: Carol acted with actual implied authority when she purchased the imaging machine without the consent of Jean and Pat because she acted in a manner consistent with prior actions taken by the partnership and in pursuit of the goals of the partnership.
3. Jean's statements to Carol did not constitute a proper withdrawal from Radiology Services because, despite making a clear and unambiguous statement, she did not communicate her intent to all of the general partners.
Issue: The issue is what type of statements constitute a general partner's withdrawal from an existing partnership.
Rule: A general partner may choose to withdrawal from a partnership whenever she believes it is appropriate. She may do so by making an unambiguous and unequivocal statement of her intent to withdrawal and communicating this to all of the general partners.
Analysis: In this case, Jean stated that she was leaving and never coming back, and requested her "share of the value of the practice." This demonstrated not only her intention to leave the partnership in terms of responsibility for the day to day operations of the partnership, but also her intention to separate herself economically from the practice. Jean made her statements in response to Carol's definitive answer, but not in the presence of Pat. While the facts indicate that Carol and Pat subsequently agreed to continue their participation in RS without Jean, there is no indication that Jean communicated her intent to withdrawal to Pat.
Conclusion: Jean's clear and unambigous statements reflecting her intention to withdrawal were not effective in that Jean did not communicate her intention to both Carol and Pat, the other partners of the general partnership.
4. Assuming that Jean's statement constitutes a complete withdrawal, Jean's statements are sufficient to entitle her to receive a buyout payment from RS for her interest in the practice.
Issue: The issue is the effect that a general partner's withdrawal has on a general partnership and, if the remaining partners intend to carry on business, whether the withdrawing partner has a right to a financial buyout of her interest in the partnership.
Rule: A general partner's withdrawal generally prompts the dissolution of a partnership unless two or more of the remaining partners express an interest in continuing to function as a partnership despite the withdrawal. The partner who withdrawals has a right to a financial buyout of her interest consistent with her contributions if the remaining partners intend to continue the partnership in spite of her absense.
Analysis: In this case, assuming Jean's statements constitute a complete withdrawal from the partnership, Jean's withdrawal triggers the dissolution of Radiology Practices. However, Carol and Pat agreed to continue their participation in RS, thus reviving the partnership as two or more general partners intending to carry on. In light of Jean's complete withdrawal, Jean has a right to a financial buyout of her interest consistent with her contributions to RS.
Conclusion: Jean's effective and complete withdrawal from the general partnership RS entitles her to a buyout payment from RS for her interest in the practice although Carol and Pat intend to continue to operate the partnership.
MEE Question 4
An airline is incorporated in State A, where its corporate headquarters are located. The facility where it receives and processes online and telephone reservation requests is located in State B. It employs 150 people at that facility. The airline’s base of physical operations, including its transport hub and major maintenance facility, is in State C, where more than 12,000 of its 15,000 employees are located. The airline serves States A and C but not State B.
In August, a woman who lived in State C called the reservation center in State B to obtain a round-trip ticket for the woman to fly between State C and State A in early September.
In early September, the woman used the ticket to fly to State A. The purpose of her trip was to hunt for an apartment in State A, where she was planning to start working at a new job that was set to begin in December. The woman found an apartment and signed an agreement to rent the apartment for one year, starting on December 1.
On the woman’s return flight from State A to State C, a mechanical failure forced the plane to make an emergency landing in State A. The woman suffered serious and permanent injuries during the emergency landing and was hospitalized for three weeks in State A. Upon leaving the hospital, she returned to her home in State C. Because of the injuries she suffered, the woman has been unable to work, and she has received an indefinite deferral of the starting date for her job in State A. She continues to live in State C, where she has lived her entire life, although she hopes one day soon to move to the apartment in State A and begin working at her new job.
The woman has retained an attorney, who recommended filing a personal injury claim against the airline in State B because of the larger awards that State B juries tend to give in such cases. Accordingly, the woman sued the airline in federal court in State B, making a state-law tort claim for damages in excess of $1 million for the injuries she suffered during the plane’s emergency landing.
The airline promptly filed a motion to dismiss for lack of subject-matter and personal jurisdiction.
State B’s long-arm statute allows its courts to exercise personal jurisdiction to “the maximum extent allowed by the Fourteenth Amendment of the United States Constitution.”
How should the federal district court rule on the motion to dismiss? Explain.
The issue here is how the federal district court in State B should rule on the airline's motion to dismiss for lack of subject matter jurisidiction and personal jurisidiction.
Personal jurisidiction is a determination as to whether a defendant's actions rightfully bring them into the forum state to be adjudicatend, and whether such an adjudication has minimum contacts and offends traditional notions of fair play and substantial justice. In analyzing whether personal jurisidction exists, a court will look at a defendants contacts with the forum state, its relatedness to the forum state, and the fairness of holding out the defendant as liable in the forum state. When reviewing the contacts of a defendant, personal jurisdiction considers whether or not the defendant purposefully availed itself to the forum state and it has done so with minimum contacts that the cause of action is related to its actions within the state. When reviewing the relatedness component to personal jurisdiction, the court will consider whether the defendant has specific or general jurisidiction to the forum state. In determining specific jurisidiction, the court looks at the specific cause of action that relates to the defendant and whether there is an expectation from the the defendant that its actions could foreseeably lead it to adjudication in the forum. The question is of foreseeability, and the courts want adjudication to be foreseeable from the defendant's actions. When there is general jurisidiction, the court looks at the defendant's domicile if it is an individual, and its principle place of business or place of incorporation if it is a business entity. Defendants such to general jurisdiction are liable to all actions within the forum state and are not just defined by the specific act as in specific jurisidiction. Finally, the court will determine whether personal jurisdiction is fair for the defendant. The court will balance the benefits and burdens of pulling the defendant into the forum state and whether it offends traditional notions of fair play.
For personal jurisdiction to be proper, the defendant must satisfy the constitutional test, as described above, but also satisfy the state's test on jurisdiction. Many states mirror jurisidiction on the constitutionality test with a long arm statute, therefore meaning i jurisdiction is proper under the constitution, it is proper under the state as well.
As previously mentioned, a person is deemed to have personal jurisdiction in the state they are domiciled. The domicile is considered the place where they have permanent residence and an intent to return to. A person may change their domicile only when they physically change the forum where they live and have no intention or returning to their previous residence.
The state's have subject matter to hear almost all claims, excluding admiralty and bankruptcy for example, but the federal government has subject matter general by two methods. An action could be heard in federal court if it satisfies either federal question or federal diversity jurisidiction. Under federal question, the law in dispute must originate from a federal statute and relate to federal law. Under diversity jurisdiction, the defendant and plaintiff must have complete diversity, meaning they are domiciled in different states, and they have an amount in controversy exceeding $75k. If the amount in controversy does not exceed $75k or there is not complete diversity amongst the forum states, diversity jurisdiction fails.
Here, the airline has filed a motion to dismiss a woman's claims on lack of subject-matter and personal jurisdiction. For personal jurisdiction to succeed, the airline must have minimum contacts with the forum state, either through specific or general jurisdiction, and it must be fair to hold the defendant accountable in the forum state. The woman here sued the airline and brough the case in federal court in State B. First, we must determine airline's place of incorporation and principle place of business to determine whether general jurisdiction applies. Airline is incorporated and has its corporate headquarters in State A. Generally, the corporate headquarters is considered the principle place of business. While Airline does have a site in State B for processing reservation requests, its principle place of business and place of incorporation is in State A. Therefore, Airline does not have general jurisdiction with State B, so we need to see if it has specific jurisdiction. To have specific jurisdiction, we must look at the minimum contacts it has with State B and determine if it purposefully availed itself to the state. Here, as mentioned, it has a reservation site in State B, but it does not serve State B nor did the plane land in State B. The plane landed in State A after initially departing on the round trip, and subsequently had an emergency landing in State A after the mechanical failure. Therefore, it does not appear that State B has sufficient contact with the Defendant, as the reservation site would not be enough to purposefully avail itself to State B. In addition, forcing airline to defend itself in State B would be unfair when considering traditional notions of fair play. Airline does not hold itself out to be a citizen of State B and nothing from the cause of action occurred in State B. Therefore, it is likely that Airline will be successful in its motion to dismiss on personal jurisdiction.
Next, in looking at subject matter jurisdiction, the woman brings a state-law tort claim in excess of $1 million dollars. To bring a case under federal question, the action must relate to a federal law, which is not the case here. Therefore, the only option the woman has to have her case heard in federal court is under diversity jurisdiction. Here, she has over $75k in controversy with the $1million demand, so the issue comes down to complete diversity. As mentioned, Airline is domiciled in State A as its place of incorporation and principle place of business. Therefore, the woman must not be domiciled in State A to have complete diversity and satisfy the requirements of diversity jurisdiction. Here, the woman initially lives in State C, but flies to State A in order to rent an apartment and start a new job. She signs a lease and intends to relocate and move her domicile to State A starting on December 1. Prior to moving her domicile though, she has her accident and suffers serious harm. After leaving the hospital, she returns to her home in State C, where she continues to treat herself while she recovers. Even though she signed a lease to move to State A, and may have had the requisite intent to permanently leave state C and start her new domicile in State A, the woman has not done so yet therefore making her domicile still in State C. As such, she is a resident of State C at the time of trial, and there is complete diversity with Airline who is a resident of State A. Airline's motion will therefore fail as to subject matter jurisdiction, but succeed on personal jurisdiciton.
As a preliminary issue, we discuss whether the Court has personal jurisdiction over the defendant. Personal jurisdiction is a question of the court's control over the parties and its ability to bind them using a judgment. In order to have personal jurisdiction over a defendant, it must satify a state-statute as well as the U.S. Constitution. Here, the state statute has a long-arm statute which grants the court full jurisidiction as applied through the fourteenth amendment of the United States. Next, to have personal jurisdiction via the fourteenth amendment, we must ask several questions. This is generally requires either specific or general jurisdiction. In order to have general jurisdiction over a defendant, the defendant must be domiciled within the state in question or have such systematic contacts with the forum so as to make them "at home" in the state. With general jurisdiction it does not matter whether the activities in question relate to the claim for which the suit is being filed, instead the court has full power to bind over the defendant. Specific jurisdiction however, requires that the activities within the state relate to the claims submitted by the plaintiff. In order to have specific jurisdiction we engage in a minimum contacts analysis. This analysis entails an analysis of the contact with the forum, which includes elements of foreseeability, relatedness of the claims to the contacts within the forum, and lastly are issues of fairness, where we discuss whether having jurisdiction in the forum offends traditional values of fairness.
First, General jurisidiction is not satisfied in the present case. A companies domicile is located in the state in which they are incorporated, and where there principal place of business is. A companies principal place of business is generally considered its headquarters, where the nerve center of the company resides and where the company is run from. Here, both incorporation and principal place of business is that of State A. There may have been a claim general jurisdiction in State C however, as 12,000 of the companies 15,000 employees are employeed in State C. Furthermore, the state is one in which they operate a substanital portion of there business. This is considered as being "at home" in the state despite no domicile. The contacts with State B are instead insufficient to prove "at home" status in the forum. This is because the company only has one call facility located within the state and otherwise does not operate or perform any functions within state B. Therefore, there is no general jurisdiction over the defendant company.
Specific jurisidiction is satisfied by the earlier stated minimum contact analysis. First, we analyze the contact with the forum state. The company clearly has sufficient minimal contacts with the state, and generally a merely purposefully availing yourself of the forum state or under a theory of stream of commerce. Here, the company actually owns property within the state and has their call center which handles telephonic order for the entire company. That being said, the company has minimum contacts within the forum. Next is the issue of relatedness, whether or not the contacts in the forum in question are related to the claims asserted by the defendant. Plaintiff fails here for several reasons. The tort liability in question is an issue of personal injury resulting from a crash in State A. While the plaintiff called into the center in State B for the reservation for the flight, the related injuries that are cause for the claim exist in State A and are unrelated to the activities the company engages in at its location in State B. Having found that there is no general jurisidiction, or specific jurisdiction to satisfy a court's ability to exercise personal jurisdiction over the defendant, the suit must be dismissed for lack of personal jurisiction.
As to specific jurisdiction, the court in State B does have subject matter jurisdiction. Subject matter jurisdiction arises under two separate theories of law, (1) federal question jurisdiction or (2) diverstiy jurisdiction. Federal question jurisdiction is present when the case or controversy arising under the federal Constitution or federal right guaranteed by statute is in question. This is not present in the instant matter. We then look to diversity jurisdiction. Diversity jurisdiction occurs when a (1) citizen of one state sues a citizen of another state and (2) the amount in controversy exceeds 75,000. Domicile has already been established for the company in State A, as they are incorporated and have there principal place of business in State A. Plaintiff in this situation was almost a citizen of State A as well. In order for a change in citizenship for the purposes of diversity to exist, it must be established that the plaintiff(1) moved to the state in question and physically resides there and (2) an intent to make a permanent home there. Here, while Plaintiff desired to move to State A and had a job lined up, and will likely move there permanently in the future, their domicile still remains in State C. As such we have a State C citizen suing a state A citizen satisfying our first requirement. The amount in controversy is in excess of 1 million dollars, and as long as that amount is calculated in good faith, the amount exceeds 75,000 dollars. The court therefore has diversity jurisdication over the issue.
MEE Question 5
Eight years ago, a settlor created a $300,000 irrevocable trust. The settlor’s brother is the sole trustee of the trust. The trust’s primary beneficiaries are the settlor’s son and daughter. The trust instrument provides, in relevant part:
During the term of this trust, the trustee shall pay to and between my two children so much, if any, of trust income and principal as he deems advisable, in his sole discretion, for each child’s support. Upon the death of the survivor of my children, the trustee shall distribute any remaining undistributed trust principal and income equally among my surviving grandchildren.
The trust contains a spendthrift clause that prohibits the voluntary assignment of a beneficiary’s interest and does not allow a beneficiary’s creditors to reach that interest.
Two months after creating the trust, the settlor died. Both the settlor’s son, now age 35, and the settlor’s daughter, now age 32, survived the settlor and are still alive. The settlor’s son has three living children, now 9, 11, and 14 years of age. These children currently live with their mother, from whom the settlor’s son was divorced seven years ago. The settlor’s daughter is unmarried and has no children. Both the son (employed as a waiter) and the daughter (employed as a bookkeeper) have earned, on average, less than $35,000 per year during the past seven years.
Over the past eight years, the son has incurred and has not paid the following debts:
(a) $10,000 to a hospital for the son’s emergency-room care
(b) $35,000 to his former wife in unpaid, judicially ordered child support
(c) $5,000 to a friend for repayment of a loan, five years ago, to purchase a high-end computer-gaming system for recreational use
Repayment of the debt to the friend was due last year, but the son defaulted on the loan.
During the first year of the trust, the trustee distributed $9,000 of trust income to each of the settlor’s two children for their support. Thereafter, relations between the settlor’s son and the trustee deteriorated. After the son and his wife divorced, the trustee frequently told others, behind the son’s back and without any direct basis, that the son was an “adulterer” and a “terrible father.” The trustee often referred to the son as a “bum,” and he told the settlor’s daughter, without any explanation, “Your brother is rude to me.”
Over the last seven years, although the son’s and daughter’s financial needs were similar, the trustee has distributed $80,000 from trust income and principal to the settlor’s daughter and nothing to the settlor’s son, despite the son’s repeated requests for trust distributions to help him pay his hospital bill, child support, and loan.
1. Given the terms of the trust the settlor created, could the trustee have properly distributed trust assets to the son to enable him to pay (a) his hospital bill, (b) child support, and
(c) the loan to purchase the computer-gaming system? Explain.
2. Did the trustee abuse his discretion in refusing to make any distributions to the son during the past seven years? Explain.
3. In light of both the discretion granted the trustee and the spendthrift clause in the trust, may the son’s three creditors obtain orders requiring the trustee to pay their claims against the son from trust assets? Explain.
1. The issue is whether given the terms of the trust the settlor created, could the trustee have properly distributed trust assets to the son to enable him to pay (a) the hospital bill, (b) child support, and (c) the loan to purchase the computer-gaming system.
A trust is created when there is a settlor with both intent and capacity, that has property, assigned a trustee, and beneficiaries. A trust is discretionary when the Settlor allows the trustee to distribute funds from both the trust income and principal as they see fit. A trustee has a fiduciary duty to the present and future beneficiaries of a trust. A trustee must act with duty of loyalty and care towrds the trust and towards the beneficiaries. A spendthrift provision prevents the voluntary assignment of a beneficiary's interest and does not allow a beneficiary's creditors to reach that interest. However, child support judgments, taxes, among other governmental liens, are able to pierce the spendthrift provision and get funds from the trust. A support trust is created when a settlor includes to the words "for his support" to the trust. These trusts will allow the trustee to disburse fund for the livelihood, maintanence, and need of the beneficiaries.
Here, the trustee could have properly distributed trust assets to the son to enable him to pay the son's emergency room care because the trust provided that the trustee shall distribute trust funds "in his sole discretion, for each child's support." An emergency room bill is considered to be part of the purpose of a support trust because an emergency room bill is in regards to the son's health, which is considered a necessity. Therefore, the trustee could have properly distributed the assets to cover for the son's medical will because it was within the definition of the support provision and the settlor's clear intent for the trust.
Here, the truste could not have properly distributed trust assets to the son to enable him to pay child support because the trust provides that the trust if for the support of both son and daughter up until their death. A trustee cannot disburse funds to the future benficiaries until the present beneficiary's interest vest. Moreover, the son's child support is not considered for the sypport of his livelihood because it is a debt in relation to the support and care of his son, not of him. Moreover, the trustee could not disburse funds to the son's child support beause a spendthrift provision prevents beneficiaries from assigning their interest to others, and the judicially ordered child support payment, would be an assignment of the son's interest.Therefore, the trustee could not have properly distributed the trust assets to the son to enable him to pay child support.
Here, the trustee could not have properly distributed trust assets to enable the son to pay a friend for repayment of a loan for a computer gaming system because it is not for the support of his health and livelihood. The trustee here has discretion to provides funds for the support of the son, and personal loans for recreational purposes are not support because they do ot add to the livelihood and safety of the son. Moreover, the trustee could not have properly disbursed those funds because the spendthrift provision prevents the assignment of benefits. Therefore, the trustee could not have properly ditributed the trust assets.
2. The issue is whether the trustee abused his discretion in refusing to make any distributions to the son during the past seven years. A trustee abused his discretion when he is fundamentally unfair to one beneficiary and when he treates beneficiairies susbtantially different. When a court holds that a trustee has breached his duty of care and loyalty to the beneficiaries, a court has discretion to replace the trustee.
Here, the trustee abused his discretion in refusing to mke any distributions to the son during the past seven years because he disbursed funds very unequally between the son and the daughter. The trustee was unfair because the son and the daughter's financial needs were similar, yet the trustee has distributed $80,000 from trust income and principal to the daughter and nothing to the son, despite the requests. The trustee has abused his discretion because even though he could not have distributed the funds specifically to the son's requested creditors as described above, the trustee could have disbursed the funds to the son directly. Therefore, court will likely hold that the trustee is abusing his discretion.
3. The issue is whether any of the son's three creditors can obtain orders requiring the trustee to pay their claims against the son from trust assets. A discretionary trust and spendthrift provisions have been defined above. However, judgment liens for child support may obtain orders requiring a trustee to pay claims despite a spendthrift provision.
Here, the court could obtain an order to obtain funds from the trust for child support because child support orders are an exception to the spendthift provision. In addition, the emergency room could obain a court order to obtain funds from the trust because hospital and health care bills are considered "support" for the purposes of the suport trust. However, unless forced by the court, the trustee has discretion as provided by the discretionary provision to disburse funds as he sees fit. Lastly, the friend will not be able to obtain a court order to seek repayment of the loan to purchase a computer-gaming system for recreational use because it will be in direct violation of the spendthift provision, since the purpose of the spendthrift provision is to prevent beneficiaries from assigning payment to creditors such as the friend. Therefore, only the hospial and the judgment lien for the child support will be able to obtain court orders.
I. The Settlor Could Have Distributed Assets to the Son For All Three Debts, But Made The Correct Decision Regarding the Third.
A trustee, generally speaking, has broad lattitude to manage the trust, inclusive of its distributions, so long as their actions do not violate a fiduciary duty and is consistent with the purpose of the trust. One such fiduciary duty is to faithfully execute the trust instrument, inclusive of its purpose. It should also be noted, where there is a spendthrift clause, the settlor sought to ensure the indended purpose of the trust would be carried out and it would not be utilized wastefully.
Turning to the instant situation:
(a) Son's Hospital Bills
The son, a beneficiary of the trustee had $10,000 in emergency-room care. Since it is from an ER visit, it should be presumed that the treatment was not cosmetic and needed imminently. As a result, it does not appear to be a frivilous expense and could, and probably should, be seen as part of the individual's care. Thus a disribution of a trust intended for a child's support would have been appropraite since this does not seem to be the type of wasteful expense the spendthrift clause was designed to prevent.
(b) Unpaid Child Support
Similiar to above, this is does not appear to be a frivilous or wasteful expense. In fact, child support is given the highest protection under the law. It is the ultimate responsibility of a parent and it cannot be waived through contract or other instrument. Wages may be garnished to facilitate the payment of child support. Given the importance of this duty on the son, it can reasonably fall within the trusts purview of supporting the son.
(c) Computer System Loan
The trust instrument provided broad latitude to the trustee. If the trustee felt the computer system was needed to support the son, consistent with the purpose of the trust, they could have distributed the amount. However, this facially seems like the exact type of expense the spendthrift clause was supposed to protect the trust from becoming encumbered with. It does not seem necessary but rather frivolous. The record even states it is for recreational use.
II. The Trustee at least Partially Abused His Discretion by Not Giving the Son Any Amount in 7 Years.
The trustee is tasked with faithfully carrying out the purpose of the trust. The settlor, aptly, has put their trust in them.
Here, the trustee appears to be ignoring the purpose of the trust (supporting the children- icluding the son) to settle his own personal vendetta with the son. It is reasonable to believe that making child support paymetns and paying hospitals bills is the exact type of expense the trust was set-up for. It is hard to imagine the daughter, who receved over $10,000 eahc of the last 7 years had a greater justification. Rather, it seems the daughter continued to get more or less the same payout as both got the first year ($9,000) and the son was denied because of the trustee's issues with him. That is not faithfully carrying out the duty of a trustee.
III. The Creditor's for the Hospital Bills and Computer Loan may not Obtain and Order for Payment From the Trust, But Child Support Can Breach the Spendthrift Clause.
A spendthrift clause is designed specifically to prevent the beneficiary from burdening the trust with waste. It does not allow them to assign an interest in the trust. Because the property of the trust belongs to the trust and not the beneficiaries, it is safe from the beneficiaries creditors. A spendthrift clause may not be utilized specifically to deny creditors a claim, however.
In the instant case, the spendthrift clause does not apepar to be utilized merely to hide assets, and thus should be treated as valid. As a result the hospital bill creditors and the computer system creditors cannot access that money. The trust may chose to pay off the debt, but they cannot reach it. Child support, by contrast, is special. A parent has an ultimate duty to support their child and child support cannot be waived. The special status of child support will allow the creditor to asset a claim against the trust, though there will likely be some limitations to how much and from what specifically the claim may be asserted agains.
The trustee could have paid out from the trust for any of the son's debts, though the trustee seemingly made the correct decision by not providing for the computer system. However, by not granting the son any distribution in 7 years, granting the daughter $80,000 over 7 years, especially in light of the son's child support and healthcare debt, there was an abuse of duty. Due to the spendthrift clause, only the child support claim has any recourse, while the other two are the son's responsibility alone.
MEE Question 6
One evening, Ben received a visit from his neighbor. Hanging on Ben’s living room wall was a painting by a famous artist. “I love that artist,” the neighbor said. “I’ve collected several of her paintings.” Ben remarked that the famous artist was his ex-wife’s mother and that whenever his new girlfriend visited, the fact that the painting still hung in his house made her jealous. The neighbor said, “I have a solution. Why don’t you give the painting to me for safekeeping? I have an unsigned print by the same artist that you can hang in its place. The print is not in the artist’s usual style, so your girlfriend will not get jealous and your living room will still have great art.”
Ben thought this was a good idea. He and his neighbor carried the painting to the neighbor’s house and hung it in the neighbor’s dining room. Ben then took the neighbor’s unsigned print home and hung it in his living room.
The next day, Ben decided that he really didn’t like the print, and he took it off the wall. Then, around 10:00 p.m., he decided to retrieve the painting from his neighbor.
Ben went to his neighbor’s house and knocked on the door, but there was no answer. Just as he was about to leave, he noticed that a ground-floor window was ajar. Ben pushed the window fully open and began to climb into the house to retrieve the painting. The neighbor, who had been asleep upstairs, was awakened by the noise and ran downstairs to find Ben halfway through the window. The neighbor became enraged. Ben tried to explain, but the neighbor would not stop yelling. Ben decided that it would be better to return to his home and retrieve the painting later, after the neighbor had a chance to cool off. But the neighbor followed him outside and across the lawn, yelling, “How dare you sneak into my house!” The yelling attracted the attention of a police officer who was passing in her patrol car. The officer stopped to investigate, and Ben was arrested, questioned, and released.
Two days later, the neighbor returned the painting to Ben, saying “Here’s your painting. Give me back the print that I loaned you and we’ll forget the whole thing.” However, the previous day Ben had been so angry with the neighbor about his arrest that he had contacted an art dealer and had sold her the print. Ben did not tell the art dealer that the unsigned print was by the famous artist. Ben simply offered to sell the print at a very low price and told the art dealer, “I can sell this print to you at such a good price only because I shouldn’t have it at all.” Although the art dealer often investigated the ownership history of her purchases, she bought the print without further discussion. An hour after the sale, the art dealer contacted a foreign art collector famously uninterested in exploring the ownership history of his acquisitions, and sold him the print for 10 times what she had paid for it.
The prosecutor is considering bringing the following charges: (i) a charge of burglary against Ben in connection with the incident at the neighbor’s house, (ii) a charge of larceny or embezzlement against Ben for his actions involving the unsigned print, and (iii) a charge of receiving stolen property against the art dealer for her actions involving the print.
The jurisdiction where these events occurred has a criminal code that defines burglary, larceny, embezzlement, and receiving stolen property in a manner consistent with traditional definitions of these crimes.
With what crimes listed above, if any, should Ben and the art dealer be charged? Explain.
Burglary Against Ben
Burgalary is defined as the breaking and entering of the dwelling place of another, in the nighttime, with an intent to commit a fellony therein. This is a specific intent crime. The defendant must intend to commtit a felony once they have entered the home. Many jurisdictions have relaxed the "breaking and entering" reuirement to a mere pushing open or expanding an already existing openning. Here, Ben gave the painting to his neighbor who hung it on his dining room wall. The painting was given for temporayry safe keeping and was not a permenant transference of title. The painting was rightfully owned by Ben.
When Ben approached the neighbor's house , he entered through a gorund floor window that was ajar after knocking failed to yield an answer. This enterance would constitute a breaking under the rule.Ben then began to climb into the house which would constitute an entering. This occurred at 10pm in the neighbor's house constituting the remaining elements of the dwelling place of another in the nighttime.
However, the intent needed for burglary is specific. Ben entered the house with the intent of taking back his painting, of which he was still the rightful owner. He did not intend to take anyting not belonigng to him or commit another felony while in the neighbor's house. Becuase Ben did not intend to do anything felonious, but instead wanted to retreive his own painting, he cannot be successfully charged with burglary.
Larceny Against Ben
Larceny is the taking and carrying away the possession of another with the intent to permenantly deprive the true owner. Larceny requires that the defendant take the item from the possession of the owner. Consent would be a complete defense to this crime. Here, the neighbor gave the print to Ben. Ben would not be able to take and carry away an item that he was already in possession of, even if his intent was to permenantly deprive the neighbor of his possession of the print. Ben could not have committed larceny of an item he already had reightful possession of and therefore may not be charged with larceny of the print even though it resulted in a conversion.
Embezzlement Against Ben
Embezzlement is the taking and carrying away of the possession of another where the defendent was granted physical possession of the item and later converted it for thier own use that permenantly deprives the owner (rightful possession followed by conversion). Embezzlement allows for a defendent to take possession of an item rightfuly and later alter their intent to one of deprivation. Here, Ben was granted physical possession of the print by the neighbor for the limited use in his home. Ben was placed in rightful ownership, albiet temporary, of the print though title still remained with the neighbor. Ben later converted his intent and sold the print, effectively converting it for his own purpose and depriving the neighbor of its possession.
Because Ben was given permission to possess the print and then later converted the print by selling it, taking away possession permenantly from the neighbor, Ben would be properly charged with embezzlement.
Receiving Stolen Property Against Art Dealer
Receiving stolen property is defined as the receipt of an item that is known to be taken without permission from another. One who knows or has reason to know that the item they have recevied is stolen will be help liable for receving the stolen property. Here, the art dealer had reason to believe the print was stolen and had the opportunity to disvcover the fact. When selling the print Ben stated he could sell it for a lower price because he "shouldn't have it at all." This was a clear indicator to the art dealer to confirm ownership through investigation, which was her normal process. Her failure to investigate when given an indication such as Ben's comment will not negate her liability. She was likely to know that the print was not Ben's to sell and for that she is liable.
The guilt or innocense of these crimes comes down to whether the parties exchange of the painting for the print was simply a temporary exchange, or a permanent exchange of which possessory rights to the property in question (i.e. the painting and the print) vested.
The crime of burglary requires the following elements: (1) a breaking and enterning; (2) into the dwelling of another: (3) at nighttime (common law only); (4) with the intent to commit a felony therein. The facts show Ben (B) began to break into the neighbors (N) house. "breaking and entering" for burglary purposes does not require one to actually break something, as these facts show, pushing a window fully open and entering would suffice. Moreover, one does not necessarily have to fully enter the home to be guilty of burglary. As long as he had the present intent to commit a felony in the premises, B might be convited of bulglary because he (1) opened the window fully and was halfway into the home; and (2) it was 10 p.m. However, B did not have the present intent to commit a felony. He was simply deciding to retreive his painting. N told B he would hold the property as safekeeping; i.e. the property was still Bs but was simply located at Ns home. Thus, B did not have an intent to commit a crime inside Ns home; he cannot be found guilty of burglary.
In the alternative, would a court find that N and B exchanged the print and painting insofar as their possessory rights to those items vested, then that would mean N technically now owned the painting. Considering the above, B could be found guilty because he was intending to steal back the painting.
Larceny involves (1) the taking and carrying away; (2) of the personal property of another; (3) without their consent; (4) with the intent to permanently deprive them of that property. B can be found guilty of larceny because B was aware that the painting he sold to the art dealer belonged to N. Both N and B understood the exchange of property was not to instil any type of possessory rights in the property exchanged. For example, 2 days after the incident, N said to give back the print he loaned B. N informed B he would simply keep the painting for safekeeping in exchange for a print B can hang on his wall, implying the painting still belonged to B and the print still belonged to N. Although B initially had the consent of N to hold on to the print, he exceeded the scope of this consent by selling the print. This is known as a "continuing trespass", which will subject one to a larcency charge. Finally, Bs intent to permanently deprive is shown because he sold the painting out of anger toward N. Thus, B can be found guilty of larceny.
Alternatvely, B could be found innocent of larceny if a court were to find that N and B exchanged possessory rights in the property. If that were the case, then N gave the print to B with his consent, and there could be no larceny. Instead, B would be guilty for embezzlement.
Embezzlement involves (1) obtaining title; (2) to the property of another; (3) while the defendant was originally entrusted with the property. Here, I have analyzed above that the facts show that N consented to giving B the print to "hang on Bs wall." He did not give the print to B to sell or otherwise do as with what he wishes with the print. So, although N consented to B hanging the property on his wall, he did not consent to Bs subsequent actions, which was selling the property to the art dealer. Because he went outside the scope of the consent given by N, B could be found guilty of embezzlement.
Art Dealer (AD)
AD can be found guilty of recieving stolen property because she should have known of the nature of the illegality of the print, as evidenced by her contacting another dealer known for not investigating into the legality of an obtained print, and also because AD recieved far more than what she paid for the print.
Recieving stolen property requires that (1) one recieve property; (2) known to be stolen; (3) with no intent to return it to the original owner. Assuming N owned the print, and B subsequently stole it, AD could be found guilty because the circumstanes surrounding the exchange between B and AD indicate that AD was aware of the stolen nature of the property.
Because B either committed larceny or embezzlement, the first prong is met. With regard to the second prong, the "knowingly" standard is often described as imposing liabillity if one knew or should have known the nature of the property. HEre, the facts show that AD knew, or at least should have known, of the possibly stolen nature of the print. AD often investigated sales such as these, but did not do so in this case. Moreover, and probably more importantly, the fact that AD contacted another art dealer who was known in the industry as one who does not inquire to the orgin (i.e. if its stolen or not) only one hour later shows her desire to offload this product quickly, and her desire to not have anyone ask questions regarding how the product was obtained. Additionally, she purchased the print for a very low price, but subsequently sold it to this dealer for 10 times what she paid for it.
Thus, AD knew or should have known that the print was stolen, and when she recieved the print, her actions as explained above shows that she had no intent to return it to the original owner; she could be found guilty of recieving stolen property.