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NEW JERSEY BOARD of BAR EXAMINERS

Independence - Integrity - Fairness - Quality Service

Bar Examination Q&A - July 2015

QUESTION ORDER:

CRIMINAL

CONTRACTS

TORTS

CONSTITUTIONAL LAW

CIVIL PROCEDURE

EVIDENCE

REAL PROPERTY

 

QUESTION 1 - CRIMINAL

 

The Jerseyville police were called to investigate an incident at the local hardware store. When Officer Beth arrived at the store, she was told that Harold had placed a hammer into his coat and left the store without paying for it.   Apparently, before he could flee the store, Harold was confronted by the store manager, whom he hit on the head multiple times with the hammer in an effort to escape.  The store manager was severely injured and required hospitalization.

Witnesses stated they saw Harold run from the store and jump into the passenger side of a car that was waiting directly in front of the store.  The witnesses identified the driver, Joanne, who was well known to the   police as an elderly woman who long suffered from psychotic episodes.  Her car was described as a beige Honda Accord, heading east.

Officer Beth notified the radio dispatcher of this information.  About a mile from the store, another police officer spotted a white Honda Civic, driven by Mike, heading west.   While the car did not fit the exact description from the radio dispatch, the officer stopped the car just to be certain.

Once stopped, Mike calmly produced his valid license and registration documents as instructed. The officer looked into the compartment of the car, but could not see completely into the back-seat   area, so he ordered Mike to step out.  Mike complied.  The officer completed a pat-down and detected a small soft-plastic object that was removed from Mike’s sock and determined to contain marijuana.  The officer then ordered Mike to open the trunk of the car, which contained a suitcase filled with many plastic bags of marijuana and a large sum of cash.  Mike was placed under arrest and the contents of the trunk were seized.

Meanwhile, on the other side of town, Joanne’s car was located.  Once stopped, Joanne jumped from the car and ran towards the woods.   Officer Beth yelled “Stop”, but Joanne continued running. Officer Beth drew her gun and shot Joanne in the back, critically injuring her. 

Harold was placed under arrest and advised of his right to remain silent.  The hammer and a bag of heroin were recovered from under the front seat of the car.  On the way to the station, Harold, still in shock at what had just transpired, muttered:  “You didn’t take my stuff from the car, did you?”

You are an assistant prosecutor and you have been directed to prepare a memorandum outlining the elements of all possible charges that may be brought and the likelihood of success of each charge at trial.  You are also to include all potential pre-trial motions and defenses that may be asserted relative to each charge.    

PREPARE THE MEMORANDUM

 

SAMPLE ANSWER 1A:

Memorandum

 To: District Attorney

 From: Assistant Prosecutor

 Re: Potential Charges against Harold, Joanne, Mike, and Officer Beth

 Date: July 30, 2015

 

 This memo will describe the potential charges that can be brought against Harold, Joanne, Mike, and Officer Beth, and evaluate the likelihood of success of each charge at trial. The memo will also discuss any potential pre-trial motions and defences that may be asserted relative to each charge. I will discuss the charges, pre-trial motions, and defenses of each person individually.

 

 Harold

 Harold may be charged with larceny, battery, and possession of drugs; the prosecution is likely to be sucessful in proving each of these charges at trial. I will first discuss how the elements of each of the charges are satisfied by the facts presented, and then I will address the pre-trial motions that Harold may make regarding evidentiary and constitutional issues. 

 

 First, Harold may be charged with larceny, which is defined as the intentional taking of the property of another with the intent to keep that property. Harold satisfies the "taking" element because he was seen taking the hammer from the store by the store manager and perhaps other customers or store employees. Further, the hammer was discovered in Harold's possession when the police later searched the car that Harold was riding in. Harold's question to the police, "you didn't stake my stuff from the car, did you?" provides further evidence that Harold had been the one to take the stolen hammer. Harold The "intent" element can be proven because Harold hit the store manager on the head with the hammer and then proceeded to flee with hammer in hand. If Harold tries to argue that his taking of the hammer was accidental (for example, if he claims that he stored it in his pocket while he was shopping and then forgot about it), he will most likely be unsuccessful in proving this defense to a jury because he would clearly have been aware that he had the hammer when he used it to hit the store manager on the head.

 

 Second, Harold may be charged with the battery of the store manager. Battery is defined as an unlawful touching with the intent to inflict bodily harm. Harold hit the store manager on the head with a hammer, so he committed an unlawful touching. The prosecution can prove that Harold intended to inflict bodily harm because a hammer is a heavy, dangerous weapon that an ordinary person would know is gravely injurious if used to hit someone on the head. 

 

 Third, Harold may be charged with possession of drugs, which is defined as the intentional possession of an illicit substance. Heroin is an illegal drug, and the prosecution can prove that heroin was in Harold's possession by offering the testimony of officers who discovered the bag of heroin under the front seat of the car that Harold is riding in. Additionally, Harold's question that "You didn't take my stuff from the car, did you?" (if admitted into evidence), supports the fact that the heroin was Harold's and not Joanne's. However, Harold may argue that Harold was not referring to the heroin when he asked about "my stuff from the car," so Harold may be able to cast reasonable doubt on the prosecution's claim that the heroin was his. However, the fact that the heroin was found alongisde the stolen hammer (which Harold was seen taking from the store), supports the prosecution's argument that Harold was intentionally in possession of the heroin.

 

 As to pre-trial motions, Harold can argue that his statement "You didn't take my stuff from the car, did you?" should be excluded either because it is hearsay or because it was made before he received his Miranda warnings. Both of these objections will fail. First, an officer may testify about Harold's statement, "you didn't take my stuff from the car?," and Harold will not be successful in any pre-trial motion to have it excluded on hearsay grounds. Harold's statement is admissible non-hearsay because it is a statement of party opponent, since Harold is a defendant in a criminal case and the prosecution will be submitting evidence of Harold's statement. Second, Harold's Miranda rights were not violated. Criminal suspects who are in police custody have a constitutional right to receive "Miranda" warnings (the right to remain silent, the right to an attorney, etc.) prior to being questioned by the police. The facts state that Harold was advised of his right to remain silent but, based on the facts, he may not have been advised of his right to an attorney or that anything he says may be used against him at trial. Therefore, Harold may not have received a complete set of Miranda warnings before he made his statement. Nonetheless, Harold's Miranda warnings were not violated because criminal suspects do not have to receive Miranda warnings immediately upon arrest, as long as they receive them prior to questioning. Harold made his statement spontaneously prior to any police questioning, and the police did not do anything to induce Harold's statement. Therefore, the use of Harold's statement at trial is not a violation of Harold's Miranda rights.

 

 Harold may also make a pre-trial motion that evidence of the hammer and/or heroin should not be admitted at trial because it was discovered wtihout a valid search warrant, but this motion will also fail. The Fourth Amendment to the US Constitution protects peopel from unreasonable searches and seizures conducted without a valid warrant. Harold had a reasonable expectation of privacy in the heroin and the hammer as well as in the car that he was riding in, so the Fourth Amedment applies. However, there are various exceptions to the warrant requirement, which will support the admissibility of the hammer and heroin at trial. Under the automobile exception, police may stop a moving vehicle with probable cause that a crime is being committed with the vehicle, without a warrant. Because witnesses had seen Harold flee in the automobile, the police had reason to believe that the car was being used in the commission of a crime, and therefore had probable cause to stop and search the vehicle. Moreover, the search of the car was a valid search incident to arrest, as long as Harold was not yet in the back of the police car when the search was conducted. Therefore, the evidence of the heroin may be admitted at trial.

 

 Joanne

 Joanne may be charged with conspiracy to commit larceny, with larceny by accomplice liability, and with battery by virtue of her participation in the conspiracy with Harold. The charges against Joanne are likely to be unsuccessful, because Joanne will probably raise a succesfsul insanity defense. I will first discuss the elements of each offense as though the insanity defense did not apply, and then I will discuss the effect of the insanity defense.

 

 The first issue is whether Joanne engaged in a conspiracy with Harold. The elements of conspiracy are an agreement between two or more persons to commit a crime, along with actions in furtherance of that crime. Joanne may be proven to have engaged in a conspiracy with Harold to commit larceny because she was driving Harold's "getaway car" after he stole the hammer and fled the store. However, this is only circumstantial evidence, and not direct evidence of Joanne's agreement to assist Harold with criminal activity. Joanne may argue that she did not know Harold was stealing the hammer from the store, and that she thought he was just going to purchase it before returning to her car. Additional evidence would be needed in order for the prosecution to satisfy its burden of proving beyond a reasonable doubt that Joanne was actually engaged in the conspiracy.

 

 If Joanne is convicted of conspiracy, she will also be convicted of larceny. When a person is guilty of conspiracy, they are also guilty of all foreseeable crimes committed in furtherance of that conspiracy, even if they themselves did not commit the crime. Here, Harold stole the hammer as part of an alleged agreement between Harold and Joanne to steal the hammer, and Joanne is therefore guilty of larceny as well. Alternatively, Joanne may be found guilty of larceny by accomplice liability. The elements of accomplice liability are: 1) providing assistance to the commission of a crime; 2) with the intent that the crime be committed. Joanne clearly satisfies the first element because she drove Harold's getaway car. However, the facts provided do not prove the intent element because they do not show that Joanne intended or was even aware that Harold was going to steal the hammer. Absent further evidence of intent, the prosecution will not be able to prove larceny by accomplice liability.

 

 Finally, if Joanne is convicted of conspiracy, she may also be convicted of battery, even though she herself did not hit the store manager on the head (and perhaps did not intend for anyone to get hurt). When a person is guilty of conspiracy, they are also guilty of all foreseeable crimes committed in furtherance of that conspiracy, even if they themselves did not commit the crime. It was foreseeable that, in an effort to flee the store, Harold might batter someone standing in his way, so Joanne will be convicted of battery by virtue of her participation in the conspiracy.

 

 All of these charges may fail if Joanne is able to prove an insanity defense. Conspiracy and accomplice liability both require intent, and insanity is a valid defense to intentional crimes. Joanne is known to have psychotic episodes, so she may be able to prove that she was insane at the time of the crime and therefore did not have the requisite intent needed to be found guilty of any of the above crimes.

 

 Additionally, Joanne may be able to make a pre-trial motion to invalidate her arrest because Officer Beth used unnecessary force against her as she was attempting to flee. However, this is likely to fail because hitting the manager over the head with a hammer was likely a felony, and officers are permitted to use deadly force against a fleeing felon who might pose a danger to society.

 

 Mike

 Mike may be charged with drug possession and perhaps the sale or attempted sale of drugs, due to the marijuana that the officer found on Mike's person and the marijuana and cash contained in the suitcase that the officer found in Mike's trunk. However, Mike has significant Fourth Amendment claims which can be raised by pre-trial motion to prevent his convictions. The Fourth Amendment to the US Constitution protects peopel from unreasonable searches and seizures conducted without a valid warrant. Mike had a reasonable expectation of privacy in the marijuana found on his body as well as the marijuana and cash in the suitcase discovered in the trunk of his car, so the Fourth Amedment applies. There are various exceptions to the warrant requirement, but these exceptions will likely not justify the search of Mike's property.

 

 The exception that is most likely applicable is the automobile exception to the warrant requirement, by which police may stop and search an automobile without a warrant if they have probable cause that a crime is being committed with the vehicle. Thus, the prosecution may argue that the police had probable cause to stop mike's vehicle because they thought it was the vehicle that Harold was fleeing in. However, this argument is likely to fail because the car that Mike was riding in is notably different than the car that Harold was riding in, so there is no reason for officers to believe that this was the car used in the crime. Mike will likely be successful in arguing that the search for Harold and Joanne was just an invalid pretext for conducting an illegal search of Mike's car.

 

 Even if the search of the car is validated, the further searches of Mike's person and suitcase will be invalidated under the 4th Amendment. The pat-down of Mike was validb because officers are allowed to conduct a pat-down for their own safety to check for weapons. If the officers identify a weapon or other illegal item during the pat-down without manipulating the item, then they can seize the item found in the pat-down. However, here, the officer detected a small soft-plastic object in Mike's sock and could not tell it was marijuana until after they removed it from the sock. A small soft-plastic object is not self-evidently criminal material, so the officers had no justification for removing it from the sock, because they could not know it contained an ilegal substance wihtout manipulating it. Therefore, the officers violated Mike's 4th Amendment rights when they seized the marijuana in his sock. The remedy for 4th Amendment violations is exclusion, so the evidence of the marijuana in Mike's sock will be excluded at trial.

 

 Additionally, the search of Mike's suitcase was invalid. Even if police had probable cause to search Mike's car, such probable cause would not extend to closed containers such as a suitcase contained inside the car, because those containers are akin to a "footlocker" in that Mike had a distinct expectation of privacy in those items separate and apart from the car. For the same reason, a search and seizure of the suitcase would not be a valid search incident to arrest (although it looks like Mike was arrested after the search, anyway). Therefore, the search of the suitcase was invalid under the 4th Amenmdent and the cash and marijuana contained in the suitcase will be excluded from trial. Absent other incriminating evidence against Mike, the prosecution will be unsuccessful in proving any of the criminal charges against Mike.

 

 Officer Beth

 The prosecution may also wish to bring a battery or excessive force charge against Officer Beth, because she shot Joanne in the back, critically injuring her. However, Joanne was a participation in a conspiracy that likely involved the commission of a felony (hitting the manager over the head), and officers are allowed to use deadly force against a fleeing felon who might pose a danger to the officer or other people. Therefore, Officer Beth will have valid defenses against any battery or excessive force charges brought against her.

 

SAMPLE ANSWER 1B:

To: Bar

From: Assistant Prosecutor

Date: 7/30/15

Re: Possible Charges, Pre-Trial Motions, Defenses and Success

 

 

Bar Examiners, below I have outlined all of the possible charges that may be brought and the likelihood of success of each charge at trial. Further, I have included all potential pre-trial motions and defenses that may be asserted relative to each charge.  

 

 

I. For defendant Harold, we should charge him with larceny, battery, robbery, conspiracy, and possession of an illegal substance. Harold may try to file a pre-trial motion in limine to exclude the witnesses identification of him running into the passenger side of a car, the identification of the car being a beige Honda Accord, the heroin and hammer found in the car after the arrest and his statement to the police in which he stated "You didn't take my stuff from the car did you?". He will not be successful on any of these motions in limine and will be succesfully convicted of robbery, battery, conspiracy to commit larceny and possession of an illegal substance.

 

 

Larceny is defined as acting with intent to permanently deprive another of their property without consent. Larceny is a specifc intent crime, therefore voluntary intoxication or mistake of fact are available as defenses. Once one has acted according to the definition of larceny, the crime is complete, and returning the good will not be a defense if the actor intended at the time to act with the specific intent needed.

 

 

In the current case, Harold entered into a local hardware store and placed a hammer under his coat and left the store. Thus, Harold did intent to take the hammer from the store, without paying or consent, and intended to permantely deprive the store of their property by leaving the store. Therefore, Harold will be charged and convicted of larceny. He does not have any defenses to larceny as he did intend to deprive the store of their property, and was not voluntarily intoxicated, mistook any fact, or has any other defense. Larceny may however merge into robbery.

 

 

Battery is defined as an unlawful or unwanted touching with the intent to cause bodily harm without consent. Battery is a general intent crime, and therefore any act inteding to cause harm to anyone will be sufficient for a finding of battery. Transferred intent applies.

 

 

In the current case, Harold, as he was fleeing from the store, was confronted by the store manager. Harold then proceeded to hit the manager on the head multiple times with the hammer in an effort to escape. He therefore acted with the intent to hit the manager of the store with the store managers consent, and causing bodily injury to the manager. He therefore should be charged and convicted of battery. There are no defenses available as he clearly intended to commit the act and was successful in causing the injury.

 

 

Robbery is defined as larceny plus battery or a threat of battery to induce another into giving up their property. When during the commission of larceny, one threatens, or uses force to commit larceny, the crime of larceny merges and becomes robbery.

 

 

In the current case, as Harold was in the act of larceny, by placing the hammer under his jacket and attempting to leave, he used force on the manager causing the manager bodily injury. Thus, Harold did commit larceny by the use of the force and therefore can be conviced of robbery of the local hardware store.

 

 

Conspiracy is defined as an agreement between two parties to commit a crime or an unlawful act. Under common law, one must only intend to make an agreement, and a unilateral agreement where the other party did not intend to commit the crime still satisfied conspiracy. However, under the MPC, both parties must intend to agree and commit the crime for conspiracy to be satisfied.

 

 

In the current case, Harold left the scene of the crime by entereing into a passenger seat of a case waiting directly in front of the store, which drove off after he entered. Joanne, the identified driver, was waiting there and did not object, implying she knew Harold was in the store and she was waiting for him to get out. It is not clear from the facts if Joanne knew what Harold was doing or if he had simply asked her to wait outside for a moment. However, it is possible that a conspiracy between Joanne and Harold exists based upon their actions after the crime. Joannes role in the crime is unclear, but if there was a prior agreement between Joanne and Harold, Harold can be charged with conspiracy. He may have a defense that the person he entered into a conspiacy with is insane if the MPC defintion applies.

 

 

Possession of an illegal substance requires one to be in possession or have control over an illegal substance. After the car chase, it was found that heroin was in the car with him. It is not clear if he possessed the heroin or if it was in the car at the time. He may defend the possession charge by using a motion to suppress evidence of the hammer and heroin based upon an illegal search and seizure. However, police are allowed under the search incident to arrest exception to the search warrant requirement  to search a car and the area around an actor. Therefore, the search will be upheld and the evidence will be admissible at trial.

 

 

Harold's other pre-trial motions to exclude the witnesses identification of him running into the passenger side of a car, the identification of the car being a beige Honda Accord, and his statement to the police in which he stated "You didn't take my stuff from the car did you?" will all be denied. The identification of the car and Harold's presence in the car from the witness maybe argued that it is hearsay because it is an out of court statement that will be brought in for the truth of the matter asserted. However, the present sense impression exception applies. The present sense exception allows this statement in because the statement was made describing the event live as it took place immediately during the commission of the crime.

 

 

Harolds statement to the police will be admissible because he was read his miranda rights before the statement. After, he volunteered this statement without undue influence or any duress or coercion on behalf of the police. Therefore, the statement will be admissible.

 

 

II. For defendant Joanne, we should charge her with conspiracy and larceny, and accessory to robbery after the fact. Joanne may try to file a pre-trial motion in limine to exclude the witnesses identification that she was driving the car, and the identification of the car being a beige Honda Accord. Further she will raise an insanity defense based upon her psychotic episodes. She may be successful on her insanity defense, but will not be successful in her pre-trial motion in limine. Finally, she may have a civil charge against Officer Beth for unlawful use of force relating to Officer Beth shooting her in the back.

 

 

Larceny is defined as acting with intent to permanently deprive another of their property without consent. Larceny is a specifc intent crime, therefore voluntary intoxication or mistake of fact are available as defenses. Once one has acted according to the definition of larceny, the crime is complete, and returning the good will not be a defense if the actor intended at the time to act with the specific intent needed.

 

 

For one to be an accessory after the fact, one must intentionally aid in the commission of the crime after the crime has been committed in futherance of the crime.

 

 

In the current case, if Joanne is found to be a co-conspirator with Harold, he she may be held liable for the larceny charge as well. It is a weaker claim, but she still maybe liable for anything that happened if she knew about Harold's intentions and was there to act in the commission of the crime. She is much more likely an accessory after the fact because she drove the getaway car for Harold while trying to evade police. She did this in furtherance of the crime, and therefore will be likely convicted.

 

 

Conspiracy is defined as an agreement between two parties to commit a crime or an unlawful act. Under common law, one must only intend to make an agreement, and a unilateral agreement where the other party did not intend to commit the crime still satisfied conspiracy. However, under the MPC, both parties must intend to agree and commit the crime for conspiracy to be satisfied.

 

 

In the current case, Harold left the scene of the crime by entereing into a passenger seat of a case waiting directly in front of the store, which drove off after he entered. Joanne, the identified driver, was waiting there and did not object, implying she knew Harold was in the store and she was waiting for him to get out. It is not clear from the facts if Joanne knew what Harold was doing or if he had simply asked her to wait outside for a moment. However, it is possible that a conspiracy between Joanne and Harold exists based upon their actions after the crime. Joannes role in the crime is unclear, but if there was a prior agreement between Joanne and Harold, Harold can be charged with conspiracy. He may have a defense that the person he entered into a conspiacy with is insane if the MPC defintion applies.

 

 

Joanne's pre-trial motions to exclude the witnesses identification of driving the car, and the identification of the car being a beige Honda Accord will be denied. The identification of the car and Joanne's presence in the car from the witness maybe argued that it is hearsay because it is an out of court statement that will be brought in for the truth of the matter asserted. However, the present sense impression exception applies. The present sense exception allows this statement in because the statement was made describing the event live as it took place immediately during the commission of the crime. Joanne was well known in the community and was therefore easily identifiable.

 

 

However, Joanne may argue for an insanity defense, or at least that she did not act with the intent to commit the crimes above. For an insanity defense, she must prove that she did not substantially appreciate her actions, that she did not know her actions were unlawful or that she did not know her actions were wrongful. It is stated in the facts that she suffered from psychotic episodes. If she can prove she was under an episode during the commission of the crime, and before if she was a co-conspirator, she maybe able to negate the mens rea elements of the crime by claiming insanity. This would absolve her of liability.

 

 

FInally, she should have claim against Officer Beth for shooting her in back without cause. Police must use reasonable force when they feel threatened and cannot use deadly force unless threatened with deadly force. Here, even though Office Beth yelled "stop" and Joanne didnt, Officer Beth was not within her legal duties to shoot Joanne in the back, and therefore is liable to Joanne, and maybe brought even on criminal charges.

 

III. For defendant Mike, we should charge him with possession of an illegal substance with intent to distribute. Mike may try to file a pre-trial motion in limine to exclude the marijuana found in the sock, marijuana found in the trunk and the large sums of cash. He will be succesful in his claims to exclude this evidence because the search of the car was in violation of the 4th amendment search and seizure. He probably will not be convicted of possession of an illegal substance without this evidence.

 

 

Possession of an illegal substance requires one to be in possession or have control over an illegal substance. Intent to distribute depends upon the quantity and the other materials, including many plastic bags being part of the discovery of the illegal substance.

 

 

In the current case, Mike was in possession of an illegal substance, marijuana, which was found in many plastic bags and with large sums of cash. This evidence implies he was going to sell the drugs, making his crime an intent to distribute.

 

 

However, Mike will file a pre-trial motion to exclude the evidence found in the sock, marijuana found in the trunk and the large sums of cash.

 

 

Under the 4th amendment search and seizure, an officer has the right to stop a car he has reasonable suspicion where evidence of a crime reasonably may be. Once the car is stopped, the Officer can ask for identification and can search the passenger compartment, but may not go into locked compartments without probable cause that there might be evidence of a crime inside. The officer must have probable cause to arrest a passenger as well.

 

 

In the current case, an officer relied upon the police radio to stop a white Honda Civic, which is a different car from the beige Honda Accord spotted at the hardware store. He then proceeded to look into the compartment of the car, but could not see the back seat so he ordered Mike to step out. The officer then completed a patdown of Mike and found marijuana in the sock. Further, he went into the trunk and opened a suitcase and found further evidence.

 

 

The officer's stop of the white Honda Civic would not be in violation of the 4th amendment because the officer did have reasonable suspicion that the car was the same as the one used in the crime. Although he knew it wasnt perfect, the cars and color is very simialr as to that an identificaiton of the car could be wrong, making the mistake of fact the officer relied upon reasonable. Therefore, the stop of the car was valid. After asking for the license, the officer ordered Mike to step out because the officer couldnt see into the back seat. While an officer does have the right to search the car, here the officer did not have the right to search an area which he couldnt see. Further, by ordering Mike out of the car, it was clear that there was no woman in the car with him as conveyed over the radio. Therefore there was no reason to order him out of the car, conduct the pat down, or continue to search the trunk and suitcase. All of the actions after ordering Mike out because the officer couldnt see the back seat are in violation of the 4th amendemnt.

 

 

When the 4th amendment is violated, the fruits of the unlawful search are excluded from evidence under the exclusionary rule and are inadmissible at trial. Therefore, the marijuana found in the sock, marijuana found in the trunk and the large sums of cash are all excludable from evidence.

 

 

Yours truly,

 

 

Assistant Prosecutor

 

 

QUESTION 2 - CONTRACTS

Virgil and Lucy own a software business. They have been working hard and need a vacation. They see Ivan, their travel agent, about a sightseeing trip to the Grand Canyon that ends in California. They have a son who requires a wheelchair and handicapped access to travel from place to place.

They plan their trip right before they are both to give special    presentations of their products to potential clients.  If their potential clients enter into agreements with them, Virgil and Lucy expect a profit of over $100,000.

 While at the travel agency, Ivan tells them the itinerary is set for their trip.  Their plane tickets will be purchased on-line and awaiting them at the airport.  He asks for Virgil’s credit card.  The entire trip costs $8,000 including airfare, hotel for two weeks and van rental.  He states that he “guarantees” that they will be well rested and ready for their presentations. He gives Virgil his receipt for $8,000 with “satisfaction guaranteed!” written on it in blue ink with a smiley face.

Virgil and Lucy have planned to drive a rental van with a wheelchair lift from the airport straight to the Grand Canyon.  After spending a week there, they will drive to California and stay near the ocean.

On the date of their flight, Virgil and Lucy look at their itinerary and notice that their flight on Super-Stand-by Airlines (“SSA”) is set for 4 p.m.  They arrive with their son at 2 p.m.  They find out that SSA has sold their tickets to a couple on stand-by.  The representative of SSA tells Virgil and Lucy that the reason they got cheaper rates is because their seats are subject to sale to stand-by customers.  Virgil and Lucy call Ivan and demand that he fix the situation.  Ivan offers a flight on another airline for an additional fee of $200.  Virgil and Lucy decline the offer and choose to board the next available flight on SSA. 

 

The next flight on SSA is delayed for six hours.  Virgil and Lucy now may have to stay at the airport overnight.  They decide to stay at a hotel instead.  Unfortunately, the only available hotel costs $500 per night.  They pay for the hotel room and try to get some sleep. 

The next morning, they finally board the SSA flight to the Grand Canyon. When they arrive, they search for their van rental. The rental company agent tells them that they rented the van to another couple six hours ago because Virgil and Lucy never showed up.   The agent indicates that the rental company has another van available but the wheelchair lift “sticks” on occasion.  It is also twice the price.  Exasperated, Virgil and Lucy accept the offer.

During the whole sightseeing trip, the wheelchair lift would get stuck and Virgil, Lucy and their son would do most of their sightseeing from the van.  On one occasion, Virgil strained his back lifting the wheelchair into the van when the lift did not work.  He later refused to drive the van anywhere else and called Ivan to cancel the California portion of their trip.  Ivan told them that the costs were non-refundable.  Ivan offered to do “whatever I can do to make it right.” Virgil, irate at the situation, hung up on him.

After another week of misery, their flights back home on SSA are delayed and SSA loses their baggage that contained their presentations.   As a result, they miss their scheduled presentations.   They demand that Ivan pay them their money back.  He refuses and tells them that he is not responsible for the problems they experienced on their vacation.

  Lucy’s prospective client refuses to reschedule her presentation. Virgil gets his prospective client to give him a second chance only to miss it again due to his back injury. 

Virgil and Lucy come to your law firm and ask for your legal advice.  Prepare a memorandum that addresses their claims.

PREPARE THE MEMORANDUM

 

SAMPLE ANSWER 2A:

To: Senior Attorney

From: Applicant

Re: Virgil and Lucy

 

You have asked me to outline the causes of action available to VIrgil and Lucy related to their recent trip to the Grand Canyon and California.    See below for an analyis of potential claims by party.

 

Against Ivan

 

a) Breach of Contract

 

Virgil and Lucy have a valid contract with Ivan for their trip.  The issue is whether an oral contract for services will be enforceable. 

 

A contract requires an offer and acceptance, indicating mutual assent, and consideration, or legal detriment, by both parties.  While certain contracts must statisfy the statute of frauds, thus be in writing, personal service contracts that can be completed in less than 1 year do not need to be in writing.  Further, the requirements for a writing are that it name and be signed by the parties, with signature being liberally construed to include letterhead, indicates the subject matter of hte contract, and, for non-goods, the price.

 

Here, there is nothing to suggest that there was no contract between the couple and Ivan.  The parties orally agreed to the material terms, and the receipt for the purchase would likely qualify as a writing sufficent to satisfy the statute of frauds.  The couple paid money as consideration, while Ivan promised to plan the airfare, hotels, and van for their trip.  The terms of the contract can be reasonably be interepreted from the actions of the parties.  All evidence suggests that Ivan is to provide airline tickets for designated flights, a van that adequately allows for wheelchair use, and and hotels for the entirety of their trip.  The actions of the airline and Van Company can be imputed to Ivan as a contractor/subcontractor arrangement.  Ivan can then seek contribution or indemnification for damages resulting from the actions

 

Upon a breach, the nonbreaching party may stop performance or sue for damages. Here, the initial breach occurred when the airline sold the couple's tickets and the couple were forced to find another flight.  When Ivan offered them another flight for more money, this was not an adequate measure of cure for the breach, as Ivan already had a legal duty to deliver the tickets for the agreed-upon price.  While the couple would have been able to mitigate their damages for 200, they reasonably beleived that they could get on the next flight.  That flight, however, was delayed six hours and they were forced to pay additional 500 to stay at a hotel.  Having to stay at a hotel due to plane delays is a reasonably foreseeable result of an airline ticket being improperly sold to another group, thus Ivan will be liable.  The fact that the couple arrived 2 hours before the flight is further proof of the breach.

 

The next material breached occurred when the van company had given away their van, and the couple were forced to use a van with a handicap lift that "sticks" on occassion.  By not ensuring that the van be adequately operational to accomodate their handicapped son, a material term of the contract had been breached and Ivan will likely be held liable for the results of the non-conforming van.  Ivan will argue that he was not in control of which van the couple got and that giving away the original van to another couple was reasonable under the circumstances.  However, Ivan expressly promised a functional van, and a functional van was not delivered.  

 

b) Breach of Express Warranty and Warranty of Fitness for a Particular Purpose

 

An express warranty is where a vendor or seller expressly promises that the fruits of a contract live up to the standard expressly warrantied.  A breach of the warranty will occur where the item does not live up to the express warranty.  A warranty for a particular purpose is where the vendor or seller is aware that the item will be used for a particualr purpose and will be breached if the item is not fit for that purpose. 

 

Here, Ivan "guaranteed" that the couple will be well-rested, and the receipt for the trip included a statement with "satisfaction guaranteed" on it.  Further, he promised that the airline tickets would be waiting at the airport and that the van would be available.  He also impliedly promised that the van would be fit for the purpose of transporting hteir handicapped son.  Finally, he indicated that he woluld do whatever it takes to make things right following the couple's demand for a refund.  The intitial promises related to his "guarantee" that they will sleep well and that satisfaction was guaranteed on the receipt, however, will likely not be viewed as express guarantees, as they do not guarantee with any kind of specificity.  Furhter, the promise to "do whatever I can to make things right" is not an express guarantee and it also lacks specificity.  However, the guarantee that the airline tickets be waiting for them and that the van be functional were likely express and for fitness for a specific purpose, and were breached when the items were not delivered as promised.

 

c) Damages

 

Because of the breachs outlined above, the couple, who had already paid in full, were entitled to end their trip and receive a refund for the pro rata remainder of their trip including the damages sustained during theri trip in obtaining the hotel room and the van costing twice the original price.  Punitive damages are not generally recoverable in contract suits unless under extreme circumstances, and it is unlikely that Ivan's breach here will be considered flagrant breaches.

 

As discussed above, the acts of the airline and the van company will be imputed to Ivan as a general contractor, but Virgil and LUcy could also sue these defendants separately for the breaches incurred. 

 

Lastly, Ivan and Lucy might seek consequential damages.  These damages are available where the breaching party is aware that a particular plaintiff will be specifically damages due to a breach.  Here, while it is unlikely that Ivan's back injury was a foreseeable result of Ivan's breach, but Ivan was aware of the imporant presentations and assured the couple that they would be well-rested.  Ivan and Lucy have a colorable claim that Ivan was aware of the potential consequental damages and by breaching should be liable for the 100,000 of resulting damages to the couple.  

 

SAMPLE ANSWER 2B:

TO: Partner

 FROM: Associate

 DATE: 07/30/2015

 RE: MEMO of Potential Claims for Clients Virgil and Lucy

 

            Virgil and Lucy have claims in contract law and in torts against Ivan-- for breach of contract, breach of warranty, as well as negligence claims against Ivan. Virgil and Lucy may also be able to join SSA for losing their baggage. 

 

 Breach of Contract and Warranty Against Ivan

 

            A valid contract exists between parties when they have reached a meeting of the minds-- there is an offer and acceptance that concludes the deal. This contract is enforceable by law when the contract is supported by consideration. Certain contracts fall under the UCC, however, here this contract does not and Common Law applies. Lucy and Virgil have entered into a valid contract with Ivan, their travel agent who failed to substantially perform his end of the bargain, and as such, should be held liable for the losses the couple suffered. 

 

            Their contract is enforceable because Ivan offered to book their vacation plans, including the entire itinerary, for a payment amount of $8000. Further, Ivan expressly gaurantees that they will be satisfied, in writing, and also that they will be back in time, well and rested for their presentations. These gaurantees constitte Ivan's warranty to Virgil and Lucy. However, Ivan fails to perform his duties. Breach of contract must be substantial, and not merely minor. Here, there is substantial breach because although Ivan clicked a few buttons and booked their trips, he did so in a way that essentially nullfied his performance-- he did not book actual airline seats, but rather booked forfeitable seats that were subject to standby purchase. As a result of Ivan's failure to substantially perform and adequately book their seats, Virgil and Lucy missed their flights, had to pay an extra fee likely, had to pay for overnight costs incurred due to having to stay at the airport because of Ivan's substantial failure to perform. Therefore, Ivan breached their contract and also breached his guarantee that the customers will be satisfied. As a result, Virgil and Lucy should be able to recover compensatory damages for the the damages incurred to them. These damages must be to compensate Virgil and Lucy for the harm they suffered due to foreseeable consequences they incurred as a result of Ivan's breach, and they are. If Ivan had not failed to abide by his contractual duties and express gaurantees, Virgil and Lucy would not have had to get another flight, pay an extra $500 to book a hotel, and would not have lost their rental car. Further, they would not have had to pick up another rental car, which was twice the price. Ivan should be held accountable for all these damages. Additionally, the car that they did receive, was defective and impaired their ability to enjoy their trip and caused Ivan to suffer from a back injury. These are all foreseeable branches of outcome that resulted from Ivan's breach of contract and gaurantee and Virgil and Lucy should be able to seek recovery from him 

 

            Additionally, because Virgil and Lucy were expressly told that they would be back in time for their presentations and they were expressly gauranteed satisfaction, the fact that they were not satisfied at all and in fact greatly convenienced should be considered. These are all duties that Ivan was aware of and arguably, knowingly and maliciously failed to abide by so Virgil and Lucy may be able to seek punitive damages. They relied on their travel agent who is supposed to have expertise and specialize in this field, whereas he breached his duties time and time again, and tried to seek payment for pre-existing duties. This was clear when he failed to properly book Virgil and Lucy's flight tickets like he was obligated to do based on his contract, but then requested an additional fee to "fix" the situation, for which he had a pre-existing duty to perform. It appears that Ivan acted in bad faith and knowingly, purposefully, and maliciously failed to perform his duties. 

 

            In terms of the damages that Lucy and Virgil should be able to collect from Ivan, they should also be able to claim against Ivan that because of his breach, they were forced to rent a car that was defective, causing Virgil's injury, and ultimately his loss for the profit with his client. Also, Ivan's substantial breach can also have been a foreseeable proximate cause of the loss incurred to Lucy because he booked them on a flight back home which was delayed, causing her to lose her baggage, the presentation materials, the presentation, and the overall combined expected profit of $100K. These are possible expectation damages that the couple can recover. 

 

 Negligence

 

            Virgil and Lucy may also be able to assert a claim against Ivan for Negligence. Negligence requires that a defendnat owes a duty, breaches that duty, which causes the damages that result. Duty can be based on the relationship between the parties, and exists where the parties enter into a fidicuary, contractual relationship. Here, Ivan and Virgil and Lucy entered into a contract, and he breached his fiduciary duties to them when he materially breached the contract and failed to substantially perform. His failure to perform and abide by his duties directly caused Virgil and Lucy severe loss, which can be actually and proximately traced back to Ivan, and should be recoverable against Ivan. 

 

 Virgil and Lucy vs. Van Rental Co. 

 

            Virgil and Lucy may be able to pursue a claim against the van rental company-- but would need more information before pursuing such a claim. They had an arrangement with the company to pick up a van, and when they arrived, there was no van available, and were forced to purchase another van. Virgil and Lucy were either intended benficiaries to a contract between their travel agent, Ivan, and the Van Rental Co. or they were in direct privity and the contracting parties with the Van Company. However, the company will definitely argue that the couple failed to pick up their car in time, and so therefore they were discharged of their duty to supply a car because in fact, the couple breached by failing to pick up the van. In response, Virgil and Lucy can claim impracticability. Impracticability is a defense available when it becomes impractical to perform because it would cause an undue burden or hardship on a party based on some occurrence that was entirely unforeseeable. Here, Virgil and Lucy had no idea their flights would be incorrectly booked, they would miss their flights and miss their rental pick up time. As a result, they can claim impracticability. 

 

            Virgil and Lucy can asser a claim that the Van supplied them with a vehicle that was not fit for its intended purpose. The van company contracted with Virgil and Lucy when they finally rented the second car that was supposed to be wheelchair accessible. Contracts have an implied warranty that the product being supplied is fit for its intended purpose and regular use. Here, Virgil and Lucy were not able to use the defective wheelchair lift, and as a result Virgil suffered injuries. 

 

 Virgil and Lucy vs. SSA

 

            Virgil and Lucy may try to assert a claim against SSA, the airline company for the damages incurred due to losing their baggage which resulted in loss of the presentations and the client based on breach of contract and negligence. SSA and Lucy and Virgil entered into a contractual relationship, where SSA had to transport them to their destination, along with their bags SSA breached their contract because they failed to deliver their bags. As a result, SSA should be liable for the value of the bags lost, and the losses incurred as a result of their breach-- the loss of Virgil and Lucy's contracts. 

 

            Virgil and Lucy have a contractual claim against SSA, but also a negligence claim based on the fiduciary duty that SSA owed to them. Again, negligence requires duty, breach, causation, and damages. Here, SSA owed the couple a duty based on their contractual relationship and because they are a common carrier. Common carriers owe a heightened duty of care. However, SSA failed to act reasonably and breached their heightened duty of care by negligently losing Virgil and Lucy's bags, for no reason whatsoever. This harm was a harm that the company understood could result and the damages resulting, were forseeable. As a result, Virgil and Lucy suffered concrete pecuniary loss and are entitled to compensation. 

 

 Overall, Virgil and Lucy have multiple claims they can assert jointly and severally against the defendants, and all of which can be traced back to Ivan's breach of contractual duties. Joint and several liabilty can be imposed on defendants when they act together and are substantial factors that bring about the resulting harm. Here, it seems difficult to apportion the damages, although the damages can be apportioned as above, but the couple should be able to claim the full amount from Ivan, who triggered this entire disaster. 

 

QUESTION 3 - TORTS

Kim owns two acres of land in a residential area.  She hires Barry to remove a large tree stump near the property line.  Barry, a demolition expert, inserts blasting caps around the tree stump, and then detonates them. The resulting explosions loosen the stump, allowing Barry to successfully remove it from Kim’s property.

          Unfortunately, reverberations from the blasts shatter windows in Michael’s home, located on the adjacent property near the site of the explosions.  As a result, Michael’s giant pet orangutan, named Pete, escapes through one of the broken windows.  Pete roams the neighborhood for hours, but causes only minor damage to neighboring homes and yards.

          Vera lives down the road from Kim and Michael.  While working in her garden, she spots Pete swinging from the tree in front of her home.  Frightened by the unexpected sight of the large primate, Vera grabs her shotgun and begins shooting at the animal. Vera had received the gun as a birthday gift, but had never before used the weapon. Unable to handle the strong recoil, Vera accidentally shoots Tony, a stranger, who was hitchhiking in front of Vera’s house.  In the jurisdiction in question, hitchhiking is illegal.  Vera did not see Tony due to the heavy foliage in the area.  Tony is injured by the shotgun blast but eventually recovers.

          Kim, Barry, Michael and Tony consult local attorneys to learn their respective claims and areas of potential exposure. Rather than file individual suits, the lawyers decide to consult you, a noted Torts professor, for a written analysis of the facts to help determine each party’s rights and liabilities. 

PREPARE THE MEMORANDUM

 

SAMPLE ANSWER 3A:

(1) The issue is whether Kim woudl be liable for the acts of an hired contractor (Barry).  

To establish a prima face case of negligence, a p would need to establihs (1) Duty (2) Breach (3) causation and (4) damages. Duty is the duty imposed on the D to conform with standards to prevent unreasonable risk of injury to the p . If there are no special standards applicalbe, then the standard is a reasonalbe prudent person acting udner the circumstnaces. Breach is the failure to comply with those standards. As a result of the breach, it was the cause (the actual "but for cause" and the proximate cause) of the injury and damages to the person's or property.

Here, Kim is a landonwer and owes owes a duty to the premise outside her home. She hired Barry to remove a large tree stump near the property line. Barry is a demolition expert. A principal it laible for the torts of it agents if there was a agency relationshp and the agent was acting within his scope. Generally, principals are not liable for the conduct of independent contractor's conduct. However, an exception exsits where the principal would be liable for the independet contractor if the engages in abnormally dangerous activity. Abnormally dangerous activity are those that can not prevnet harm even with reasonable care, and those activiites that are not usually used in the given neighborhood. Here, the blasing caps around the tree stump is considered an abnromally dangerous activity because even with reaosnalbe care, such blasing can cause injuries.

As a landowner, Kim has the duty to protect those off-premise from injury. A breach occurs when someone off-premise is injured as a result. Here, it's arguable that but for the Kim's blastings the windows would not have shattered Michael's home that's located on the adjacent property. Furthermore, the blasting was the proximate cause of the the orangutan, Pete, from escaping Mike's home. As a result of the blasting, damages to Mike's home occured (his windows were broken). Thus, Kim can be held liable for the damages of fixing Mike's windows.  Even if Kim had to pay for the damages to the window, she can seek indemnity from Barry as Kim was not th person engaging in the activity

 

(2) The issue is whethe Barry can be held liable and accountable for any of the damages that Kim had to incurr; or whether Barry can be responsible for any damages that resulted from the blasting. Furthermore, engaging in an abnormally dangerous liability is a strict liabilit tort that would result in liability regardless of the amount of care being exercised. An abnromally dangerous activity is one that woudl cause injury or risk of injury regardless of the care exercsied due to the nature of the activity. Also, an abnormally dangerous activity must be one that's not common in the neighborhood or the community. Otherwise, itw ould nto be considered an abnromally dangerous activity. Here, Barry is engaging to remove the large tree stumps, specifically she's engaging in blasting which is an abnormaly dangerous activity. Because such activity falls under strict liability, Barry can be held liable for the damages in Mike's window as a resutl of the blasting. Here, if Mike was to sue Barry for the damages to his window, he would be able to recover from Barry due to the nature of the abnormally dangerous activity. Additionally, if it was the case that Mike sought to recover damages from kim, Kim would be able to seek indemnity from Barry for the damages.

 

(3) The issue presented is whether Mike would be liable for the damages to the nieghboring homes and yards as a result of Pete's escape. A person having an wild animal is held strictly liable for the conduct of the animal. In an wild animal situation, the amoutn of care exercised is relevant as the owner of the wild animal would be liable for the damages. A domesticated animal such as a dog, cat or farm animals are not considered wild animals.

Here, Mike has a giant pet orangtan, Pete. Unlike a domesticated animal, an Orangtan can be considered an wild animal. Because Pete is an wild animal, any injury or damaegs as a result of his actions would make Mike liable. Since Pete did not physically injury anyone and made minor damages to nighboring homes and yards, Pete would be liable for fixing those property damages.

 

(4) The issue is whether Tony can bring a claim against Vera for battery. battery is the unconsented to offensive and harmful contact. It also requires the D to bring about such acs. Transferred intent occurs when the D intended to cause a harm on a person, but a different person is injured instead. As a result, tranferred intent doctrine transfers the intent over to the actual person who was injured.

Another issue is whether as a result of Vera'a negligence, Tony was injured. To establish prima facie case of breach, it requies p to show (1) duty; (2) breach; (3) Causation - fact and proximate; and (4) damages. D owes a duty to conform with stanrds to prevent an unreasonable risk of injury to the p , a failure to comply with such standars is a breach, and as a resutl of that breach it was the but for and proximate cause of the injury, and damages. if the duty does not fall within any of hte special standards, then the standard is a reasonalbe prduent person under the circumstances.

Here, Vera was frightended by the unexpected sight of Pete and and grabbed her gun to shoot at the animal. Since she had never worked with the gun before. Vera had the requisite intent to shoot the animal (the intent to bring about that act). However, because it was Tony who got injured as oppose to Pete, the intent was transfferred over when Tony got injured. Thus, Tony can have a claim against Vera for battery through the doctirne of transferred intent

Furthermore, Tony can show that Vera an owner of a gun had was not acting as a reasonalbe prudent person under the circumstances. a reasonable prudent person liek Vera who had never worked a gun before and being frightened from seeing a oranutan would not pull out a gun and use it. A reasonalbe prudent person woul not use a gun in response to being faced with a non-deadly encounter. Pete was not attacking Vera, instead, he was swining from the tree in front of Vera'a home. Vera was not placed in a reaonable risk of injury that required her to pull out a gun. The amoutn of force in response to the threat was unreasonable. Vera was not justified in using a gun to shoot pete. The breach of Vera's duty was the but for cause of Tony's injury. If Vera did not shoot, TOny would not have gotten injured. Additionally, it was reasonable for Vera to see that shooting a gun in public would cause injury. As a result of the breach, Tony suffered injuries. Thus, Tony can seek a claim against Vera for battery and negligence

 

The issue is whether Tony should be able to reover as a result of his negligence of breaking the law. THe issue of whether Tony was contributory neglignet for his own actions. Vera can in her defense establish that Tony's actions were illegla and thus neligence per se resulting in his breach of duty. Negligence per se is applicable if p etstablishes that she's falls under the class that the law was menat t protect and the type of injury that the law was meant to protect. If satisfied, this satisfies the breach of duty aspect of a negligent claim. here there's not indication of the purpose of the type of injury that was to result from the law. Therefore, it can't be said that TOny breached his duty of care. Thus, Vera's claim for neglignece agaisnt Tony would be a weak case.

 

SAMPLE ANSWER 3B:

Memorandum

 

To:       Lawyer

 From: Torts Professor

 Re:     Rights and Liabilities of Kim, Barry, Michael and Tony

 

 You asked me to provide to you a written analysis of the facts you expressed to me in connection with the recent events to help you determine the rights and liabilities of Kim, Barry, Michael and Tony. The following is my analysis of their rights and liabilities. 

 

 Kim

 

 Kim is vicariously liable in strict liability for Barry's conduct of using blasting caps to remove the tree stump. Strict liability arises when a person is engaged in an ultra-hazardous activity. A defendant who engages in an ultra-hazardous activity will be liable for harm that is the natural results of such activity. An ultra-hazardous activity is one which cannot be made safe even if precautions are taken. Using explosives or blasting is an ultrahazardous activity because it cannot be made safer. 

 

 A person is responsible for the torts of its employees committed in the scope of employment. A person is normally not responsible for the torts of its independent contractors, but is responsible when the independent contractor is engaged in an ultra-hazardous activity. A principal cannot delegate that liability to the independent contractor. A principal agent relationship exists when there is an agreement, the agent acts for the benefit of the principal and the principal can control the conduct of the agent. An independed contractor cannot be controlled by the person who hired, him thus, there is not a pricnipal agent relationship for independent contractor. 

 

 Here, Barry is an independent contractor because the facts indicate he was hired to remove the tree stump. He is not Kim's employee and Kim doesnt have control over his conduct. Normally, Kim would not be responsible for his torts, but barry was engaged in an ultra-hazardous activity. Using blasting caps to remove a tree stump is an ultra-hazardous activity because you cannot make such activity safe. Therefore, Kim will be liable for the damages resulting from such ultra-hazardous activity--the breaking of Michael's windows.

 

 Kim will be able to seek indeminty from Barry for his tort. Indemnity is available when one is held responsible for the tort of another. Indemnity usually requires a relationship betwen the parties, such as retailer-manufactuer. Here, Barry committed the tort, but Kim is going to be held responsible. Therefore she will be able to seek indemnity from Barry for the amount she is found liable. 

 

 Kim will not be responsible for the breaking of the windows under a theory of trespass to land because Kim did not intentionally enter the land of another without permission. Trespass to land must be done by the person or a tabgible item and the required intent is to enter the land, not an intent to trespass. Mere reverberations are not enough for a trespass. You cannot trespass with sound or light. Unreasonable interference of another's quiet enjoyment of property is a nuisance, but the one instance of blasting a tree stump will not give rise to an injunction because it is not an ongoing or continuous activity. 

 

 Barry

 

 Barry will be responsible for indemnity for Kim because she will be held liable for his tortious conduct. In addition, Barry may be sued for him own negligence. To establish a negligence claim, a party must show that there was a duty, the duty was breached, that there was causation (factual and proximate) and that you suffered damages. The standard of care is that a person must act as a reasonably prudent person under the circumstances. Failure to adhere to this standard is a breach. To show factual causation, you need to show that but for the breach, the injury would nothave occured. For proximate cause, a party must show that the injury were foreseeable or the normal and natural consequences of the breach. Damages can be shown with monetary loss.

 

 Here, Barry acted negligently by not taking precautions to assure that no damage would be done to neighboring properties in connection with his blasting activities. Barry owed a duty to act as a reasonably prudent person and breached that duty. This breach was unreasonabel because it caused M's windows to shatter and allowed the orangutan to break loose. But for B's negligent conduct, the harm would not have occured. It was foreseeable that the windows owould break as a result of B's negligence and M suffered damages. Therefore, barry will be liable for his negligence. 

 

 Michael

 

 Michael will be liable for the damages caused by his pet orangutam, Pete. A person is strictly liable in tort for the damages caused by its dangerous wild animals. A wild animal is dangerous and incapable of being made safe under the law. No matter the precautions, if a wild animal causes damage, the owner will be held strictly liable.

 

 Here, Michael owned an orangutn that escaped after the windows were shattered. The orangutan frightened Vera and she attempted to shoot the orangutan, but instead, killed Tony. Even though Mike kept the orangutan locked up at home securly in his cage, he will still be liable because one is strictly liable regardless of the precautions taken when an injury results from a wild animal. 

 

 Tony

 

 Tony has a claim for battery against Vera. A battery is the harmful or offensive contact to the person of another. transferred intent applies to the intentional tort of battery. A person can intend to commit one tort and have that intent transferred to another tort. Intent can transfer for the intentional torts of battery, asssault, and trespass to chattels.

 

 Here, Vera intended to shoot P, but missed and hit T. If Verawould have shot O, this would have at least been a trespass to chattels because it would have been an interference with M's property. Vera's intent to commit one intentional tort, can be transferred to the harmful contact she imposed on T when she shot him.

 

 In addition, T has a claim against V for negligence. To establish a negligence claim, as discussed above, one must show duty, breach, causation and damages. Here, Vera owed a duty to act as a reasonably pruident person and breached that duty. She was inexperienced with handling the gun, but still used it out in the open from her garden. This breach was unreasonable because it caused harm to T. But for V's negligence, T would nothave suffered injurry. It was foreseeable that harm or injury would result from V's negligently using the gun. T suffered damages because he suffered phsyical inury when he was shot, even though he eventually recovered. Therefore, T has a viable claim against V for negligence.

 

QUESTION 4 – CONSTITUTIONAL LAW

Several situations have recently transpired in the State of Yokaira and generated widespread media attention. 

 

1. Vanity Plates: The State’s Division of Motor Vehicles (“DMV”) issued regulations prohibiting license plates that are offensive or demeaning.  The DMV rejected Nelka’s application for a customized license plate because she wants it to display a swastika.  The DMV, however, has approved other customized plates with slogans like “Choose Life” and “Fight Terrorism.”

2. Hiring Restrictions: In a cost-cutting measure, Intolerant Township has outsourced its police services to a private entity.  As part of the outsourced services agreement, Intolerant has required the private entity to limit its hiring of police personnel to males and bona fide residents of Intolerant.   Lee, who is undergoing gender transition, graduated from the police academy and received a conditional offer of employment with Intolerant before the outsourcing was implemented. The private entity has withdrawn Lee’s employment offer because he is in the midst of   becoming a female, named Leola, resides in another state and declined to move into the township. A less qualified Intolerant male resident was offered the position after Lee’s offer was withdrawn. 

3. Lethal Injections: Rey was sentenced to death.  During the execution procedure, the drug cocktail administered took much longer than anticipated to cause his death.  He was observed struggling to breathe for nearly 10 minutes before finally expiring.  In response, death penalty opponents have filed litigation to suspend further executions on behalf of other inmates scheduled for lethal injections.

4. Nativists:   Julissa is the leader of an anti-immigrant political party.  She and several party members have been distributing pamphlets at privately owned shopping malls.  Those pamphlets contain political messages in the form of cartoons lampooning various ethnic, religious and racial   minorities as drug dealers, terrorists and monkeys. Fearing that sales will significantly drop if Jullissa’s activities continue unabated on its premises, she was immediately arrested for trespassing on private    property after attempting to distribute another series of derogatory pamphlets at a local mall.  This particular mall has traditionally allowed other “less controversial” groups to distribute literature on its premises.

 

You are a legal commentator for a local cable news channel.  To prepare yourself to interview a law school professor, you will need to write legal memoranda outlining the constitutional law claims and defenses presented in the above-referenced situations.   

PREPARE THE MEMORANDA

 

SAMPLE ANSWER 4A:

1          Nelka's ability to have a swastika on his vanity plate may be protected by the First Amendment's right to free speech. Non-verbal conduct will be considered speech if it is meant to demonstrate an individuals opinion. If it is meant as demonstrative speech, the government can only regulate it if they show that there is an substantial government interest in regulating the conduct and the regulation is narrowly tailered to pursue the government interest. The State of Yokaira could argue that it has a substantial interest in promoting highway safety. Allowing symbols of controversial groups associated with hate speech could impact highway safety by provoking hostile or reckless behavior by other drivers. The state can argue that its refusal to include a swastika on a state license plate is narrowly drawn to promote the state interest because it does not prohibit Nelka's ability to display the swastika on other objects or in other ways. If the state can show that the restriction is necessary to fulfill the important state interest in motor vehicle safety, the denial of the license plate will be deemed constitutional.

 

 2.        Lee may be able to claim that Intolerant Township's outsourcing agreement violates his equal protection rights. The equal protection clause prohibits government entities from enacting laws discriminating against individuals based on membership of a certain class of people or the denail of a fundamental right. The equal protection clause requires a court to apply strict scrutiny when examining laws that discriminate against people based on race, religion, or national origin. If a law discriminates against an individual based on sex or illigitimacy, the court will apply intermediate scrutiny. If some other classification is involved, such as gender or age, the court will apply the rational basis test. In order to trigger strict or intermediate scrutiny, the law must be discriminatory. It can be discriminatory in one of three ways: discriminatory on its face; discriminatory through its application; or disciminatory through its impact combined as a result of discriminatory intent.

            Lee can bring an equal protection claim based on the law specifically limiting hiring to males. Because this is a classification based on sex, intermediate scrutiny will be applied, which means that the state must prove there is a substantial basis for the law related to an important government interest. A government does have an important interest in ensuring that its police force consists of individuals capable of performing their duties. However, there is no indication that men are the only people who are able to perform police duties. In fact, a man less-capable than Lee was offered a position on the police force. This indicates that the town cannot meet its burden under the intermediate scrutiny test.

            Lee could also bring an equal protection claim based on the law discriminating based on gender. Although gender classification is analized under the rational basis test, courts will find that there is no rational basis for a law if the law discriminates against a certain group of people based on animus towards or fear of that group. When Lee initiated his gender transition, his offer to join the police force was withdrawn, indicating that the law was being applied in a discriminatory manner. Because Lee is more capable than the man that was offered the possition instead of Lee, there is an indication that the application of the law was done out of some distaste for Lee's gender identity. Because of that, a court could find that there is no rational basis for the law.

            The law might also deprive Lee of the protection guaranteed by the privileges and immunities clause. State and local governments cannot discriminate against individuals based on their residency outside of the jurisdiction. There is an exception, however, when the government entity can show it has an interest in fulfilling an important government function. Because policing is an important government function, Intolerant Township is likely to be granted leeway in making hiring decisions based on the applicant's residency.

 

 3.        The death penalty opponents' injunction on further use of lethal injections depends on whether the procedure is considered a violation of the Eigth Amendment. The Eight Amendment protects individuals from cruel and unusual punishment. Cruel and unusual punishment is partly determned by assessing societal attitudes towards commonly used methods of punishment. Prohibitions on the use of the death penalty and mandatory life sentences have been expanded as the Supreme Court has found that a majority of the populations oppose those penalties and increasing numbers of states moved to eliminate them from their penal codes. A punishment administered to an individual must also not be likely to inflict unwarranted pain or harm on the person. Therefore, the death penalty opponent's filing will depend on what impact the lethal injection has on people sentenced to death and the public's attitude to the use of lethal injections. The court may determine that, in being sentenced to death by lethal injection, the pain and suffering that accompanies the injection is part of the sentence. However, if the imposition of the death penalty is simply meant to end the defendant's life rather than inflict any pain in doing so, the use of a lethal injection that causes additional harm could exceed the statutorily imposed penalty. Also, the court is likely to be influenced by popular opinion of the lethal injection and efforts by states to either abandon the death penalty altogether or find an alternative to the lethal injection. If a court finds that the lethal injection subjects the convict to impermissible additional punishment and public opinion is shifting to view lethal injection as cruel and unusual, the use of lethal injections to administer the death penalty will be deemed to be unconstitutional and the opponents' injuction will be granted.

 

 4.        Julissa's constitutional law claims depend on the freedoms afforded to her by the First Amendment of the Constitution. The First Amendment limits content-based restrictions of speech that take place in public forums or designated forums. Public forums are areas that are traditionally open to the public, such as sidewalks and parks. Limited public forums are places that are not normally open to the public but which the government designates as places that will be held open for public events, such as auditoriums and meeting rooms. In these forums, restrictions on speech must be content-neutral, they must provide individuals with reasonable notice of what speach is prohibited, and they must leave open alternative venues and times for unrestricted speach. Privately-owned areas, though they are not owned by the government, have been deemed to be public forums if members of the public are free to enter the premisis and people regularly gather and excercise their free speach rights. Because the mall has held itself open for other public demonstrations, it will be considered to be a limited public forum. The privately-operated mall would still be allowed to regulate some speech based on content if the content was specifically directed at negatively affecting one of the private businesses operating in the mall. Because there is no indication that Julissa's activities are directly affecting a specific business, her free speach rights were likely violated when she was forced off the premisis.

 

SAMPLE ANSWER 4B:

Memorandum regarding recent events in State of Yokaira

 

1. Vanity Plates. The state's DMV regulations prohibiting license plates that are offensive or demeaning will be challenged as an impermissible burden on individual's first amendment right to free speech. The state's regulation will not be struck down. The state may argue that this type of speech is not protected as it offensive speech. However, the Supreme Court has ruled that obscene or offensive language is subject to first amendment protection. Thus this case deals with protected speech. The first amendment prohibits the government from impermissibly burdening speech. First the speech must be protected. How a court evaluates the claims depends on the type of speech being regulated and how it is being regulated. Content based regulations, are subject to a strict scrutiny review. Here, the regulation is clearly content based as it bans license plates with a certain type of content-offensive or demeaning speech. Thile the state certainly has an interest in preventing license plates from containing certain offensive terms, especially because they are issuing the plates. A reason is being that license plates are associated with the state, any language on the plates may be imputed to the state as well. Thus, where the language on license plates is racist or offiensive, it may be construed as the state condoning or furthering that view. In additoin, the only means capable of preventing offensive speech on government issued license plates is a ban, and for this reason the regulation prohibiting license plates that are offensive or demeaning is necessary. The state may also argue that because the speech being regulated is present on license plates, that the state, as the issuers of the license plate, does not have to conform to ordinary restrictions on speech. It will likely argue similar points articulated in the above analysis.

            For the reasons stated above, the prohibition on offensive or demaning language on license plates will not be struck down.

 

 

2. Hiring Restrictions: There are three potential constitutional claims: Equal Protection clause, Privilieges and Immunities clause of Article 4, and the Dormant Commerce Clause. While the state has a viable argument against the Privileges and Immunities clause and the Dormant Commerce Clause Claim, it does not have viable defenses to the first and the regulation regarding the hiring of only men will be struck down (EPC can also be invoked against the residency requirement but will not work to strike down that regulation).

            The first issue is whether there is standing for this claim. While the elements of injury and redressability are met, it may be argued that Intolerant is using a private entity, and thus Lee has not standing as private parties are not ordinarily subject to constitutional restaints. However, Intolerant is using the private entity for police services, and Intolerant issued the hiring restrictions. For this reason, Lee has standing to file a claim and Intolerant Township will be subject to the constitutional claims discussed.

            The Equal Protection clause (EPC) of the 14th amendment prohibits states from denying its citizens equal treatment of the law. In evaluating an EPC claim, the court must first determine the standard of review to apply, they are strict scrutiny, intermediate, and rational basis. In evaluating this issue, the standard that will be applied will depend on the suspect class being discriminated against. Here the suspect class is women. Laws that discriminate against gender are generally subject to intermediate scrutiny. The burden of proof for intermediate scrutiny is presumably on the government (has not been formally been decided by the federal courts). The governement must show that its regulations are substantially related to an important government interest. Here, no reason has been provided for the hiring restrictions. Further, if there was a reason, it is unlikely to be considered an important one. For this reason, under the EPC, the restriction on hiring only men will be struck down.

            The restriction on hiring only bona fide residents of Intolerant will be struck down on the Privileges and Immunities clause (P&I) of the Article 4, but not under the dormant commerce clause. The P&I clause of Article 4 prohibits states from discriminating against out-of-state citiizens. The right being denied must be a fundamental right. A state is justified in doing where it has an subtantial justification and interest. Here, the fundamental right being denied is the right to employment, which is likely a fundamental right though there are arguements on both side. Regardless of whether it is a fundamental right or not, there is an exception where the state requires citizenship or residency in order to become a public employee. In these cases, the state's requirement is not impermissible and will be upheld. While technically not a public employee, the private entity is working as an extention of Intolerant, and thus this exception will apply. This same exception would also apply if the EPC were invoked. Residency would be subject to rational basis, but as stated, because the regulation relates to public positions, this regulation will not be held invalid under the rational basis test.

            The restriction will also not be struck down as a violation of the Dormant Commerce Clause. Where the federal government has not regulated a particular area of commerce, the states can do so as long as the regulation does not place an undue burden on interstate commerce and does not discriminate against out-of-state citizens in favor of local economic interests. There is an argument that this clause does not even apply as employment may not be considered an area of commerce. Even if it is, the private entity and subsequently Intolerant is justified in its regulation, as an exception to the dormant commerce clause is the market participant exception, which applies where the state is acting as market participant. Here this is met and thus the dormant commerce clause will not act to strike down the restriction on non-residents of Intolerant.

 

 

3. Lethal Injections. The lethal injections in the state of Yokaira will likely be challenged under both the substantive due process claim of the 14th amendment, as well as being violative of the constitution's prohibition against cruel and unusual punishment. The injections will likely survive both claims and will not be discontinued.

            There may be an issue of standing. As previously mentioned, standing requires that there is an injury that has either occured or is imminent (mootness), there is caustion, and there is redressability. Standing will likely be found. Redressability and causation are clearly met, a court action suspending future ejections will prevent similar situations and the legal injections by the government caused the harm. Issue is mootness, however while it may be argued that this s a one time occurrance, the harm is sufficient enough and likely enough that the future inmates and the group that has filed the claim on their behalf will have adequate standing.

            The cruel and unusual punishment will not bar lethal injections. While there is widespread debate regarding the standard for what is cruel and unusual, lethal injections are still used in a number of states and countries. Though there is a potential for pain due to faulty procedures, the supreme court has not ruled that this punishment is cruel and unusual.

            A more viable argument against lethal injections will be under the substantive due process of the 14th amendment. Substantive due process prohibits state from denying its citiziens fundamenal rights enumerated by the constitution (these rights would normally apply only against the federal government but for this clause). In evaluating a substantive due process claim, the right being denied will determine what standard of rewiew will apply (same standards as EPC). Fundamental rights are subject to strict scrutiny, while all other rights are subect to rational basis. Right to painless death, though arguably a fundamental right will likely be evaluated under the rational basis test. This test is easy to meet and will be likely met here. The state has an interest in a quick and cheap punishment that adequately punishes the crime committed. Lethal injections are rationally related to this legitimate state itnerest and for that reason the suspension of lethal injections will NOT occur.

 

 

4. Nativists. While Julissa and her political party have first amendment claims, the entities against whom it will likely be filed against are private shopping malls. Private individuals and companies are not subject to constitutional claims and for this reason Julissa and her political party will not have standing in court regarding the violation of their first amendment rights resulting form the arrest for trespass.

 

 

QUESTION 5 – CIVIL PROCEDURE

 

On January 5, 2013, Nancy drove her friends, Sarah and Jake Garcia (“Plaintiffs”), to a party in New Jersey (“NJ”).  After Nancy entered onto the NJ Turnpike, her car collided with a truck driven by Liz, a Pennsylvania (“PA”) resident.  At the time of the accident, Liz, an employee of Blinky, was driving through NJ to deliver cakes to several of Blinky’s customers in New York (“NY”).  Nancy and Plaintiffs are NJ residents.  Blinky is incorporated in NY and has its principal place of business in PA.  Blinky does not conduct any business in NJ, but three times a year has Liz drive through NJ to make deliveries to its customers in NY and Delaware. 

          On February 1, 2014, Plaintiffs filed a summons and complaint against Blinky and Liz (“Defendants”) in the federal district court of NJ alleging that Liz was negligent in the operation of the truck, and Blinky, as Liz’s employer, is liable for Liz’s negligent actions.  Plaintiffs seek $200,000 in damages against each of the Defendants.  Defendants were properly served with the summons and complaint. 

          On February 15, 2014, Defendants each filed a motion to dismiss the complaint for lack of personal jurisdiction.  Defendants filed their answer denying Plaintiffs’ allegations.  On September 1, 2014, discovery commenced.  On December 1, 2014, Defendant Blinky filed a motion for leave to file a third-party complaint against Nancy on the basis that Nancy contributed to the accident between Plaintiffs and Liz or may be solely    liable to Plaintiffs for their injuries. At that time, Plaintiffs and Defendants had exchanged and answered interrogatories, but depositions had not been scheduled. 

You are the law clerk to the district court judge who has asked you to prepare a memorandum addressing the following issues.

 

1. How should the court rule on each Defendant’s motion to dismiss for   lack of personal jurisdiction? Explain.

2. How should the court rule on Blinky’s motion for leave to file a third-   party complaint against Nancy? Explain.

3. How should the court rule if Blinky files a motion to join Nancy as a defendant, in lieu of its motion for leave to file a third-party complaint?  Explain.

PREPARE THE MEMORANDUM

 

SAMPLE ANSWER 5A:

To: Judge

From: Applicant

Re: Sarah and Jake Garcia v. Binky and Liz

Date: July 30, 2015

 

 

Motion to Dismiss: The court should deny the Defendants' motion to dismiss for lack of personal jurisdiction. At issue is whether Blink and Liz have sufficient contacts with New Jersey.  

 

 

In order to adjudicate a dispute, the court must have personal jurisdiction, that is, jurisdiction over the parties to the action. In order to have personal jurisdiction, both the requirements of Due Process and the state long-arm statute must be satisfied. The New Jersey long arm statute is coextensive with the requirements of Due Process, so if the Due Process clause is satsified, so is the long arm statute. The court can have either general personal jurisdiction or specific personal jurisdiction over the parties. A court has general personal jurisdiction if the parties' contacts with the forum state are so extensive that they may properly be sued in the forum for any claim, no matter where that claim arises. The court has general personal jurisdiction over natural persons who are domiciled in the forum state and corporations that are "at home" in the forum state. A corporation is "at home" in the state where it is incorporated and the state where it has its principal place of business.

 

 

The court has specific personal jurisdiction when the party's contact with the state is related to the cause of action currently before the court. In order to have specific personal jurisdiciton, due process requires that the party have such minimal contacts with the forum so that being sued in the forum does not offend traditional notions of fair play and substantial justice. The contacts must show purposeful availment of the benefits of the forum state and make it foreseeable that the party will be haled into court in the forum state. The contacts must be related to the claim at issue. Finally, it must be fair for the court to exercise personal jurisdiction over the defendant. The court looks to the plaintiff's interests, the forum state's interest, and the whether forcing the defendant to litigate in the forum state would put them at a substantial disadvantage in the litigation to determine fairness.

 

 

Liz: The New Jersey court has personal jurisdiction over Liz.

 

 

Liz is a Pennsylvania resident, so the court does not have general personal jurisdiction over Liz. It does have specific personal jurisdiction over Liz. Liz's driving through  New Jersey on an errand for her employer and committing a tort on New Jersey (negligence) that causes an injury in New Jersey constitutes sufficient minimal contacts. Liz's purposefully availed herself of the benefits of New Jersey by using the Turnpike for the benefit of her employer. It was forseeable that she would be sued in New Jersey as a result of any torts committed while driving in New Jersey. The contact with New Jersey, driving on the Turnpike, relates to the negligence claim asserted by Plaintiffs. Finally, it is fair for Liz to be sued in New Jersey because, as a Pennsyvlania resident, she lives in the adjacent state and therefore will be able to defend the suit in New Jersey. In addition, New Jersey has an interest in vindicating the rights of the New Jersey Plaintiffs and the Plaintiffs have an interest in prosecuting their claim in New Jeresey.

 

 

Thus, there is personal jurisdiction over Liz, so the case against her should not be dismissed.

 

 

Blinky: The New Jeresey court has personal jurisdiction over Blinky.

 

 

Blinky is a New York corporation with its principal place of business in Pennsylvania, so it is not "at home" in New Jersey. Therefore, there is no general personal jurisdiction. Blinky does have sufficient minimal contacts with New Jersey. Blinky purposefully availed itself of New Jersey roads in order to expand its customer base to New York and Delaware. It was forseeable that Blinky would be sued in New Jersey as a result of its employee's negligence on a New Jersey roadway. The contact with New Jersey, use of its roads, relates to the Plaintiffs' claim. And, it is fair for Blinky to be sued in New Jersey, because as a New York corporation with its principal place of business in Pennsylvania, Blinky will not be severely disadvantaged by having to defend the suit in New Jersey. The Plaintiffs and New Jersey have the same interests discussed above.

 

 

Thus, there is personal jurisdiction over Blinky, sot he case should not be dismissed.

 

 

Motion to File Third Party Complaint: Blinky's motion for leave to file a third party complaint against Nancy should be allowed because it will not prejudice the Plaintiffs.

 

 

A defendant is permitted to implead a third party defendant when that third party defendant may be liable to the defendant for any portion of the defendant's liability to the plaintiff. Therefore, if the defendant has a claim for contribution or indemnity in the case of a loss to the plaintiff, he is permitted to use impleader. Impleader must be made in a timely fashion. A party can implead a third party defendant without court permission within 21 days of the defendant serving her answer. After that, the defendant must obtain court permission for the impleader. The court will generally grant the permission if the plaintiff will not be prejudiced by the delay. Prejudice occurs when the plaintiff detrimentally changes their position as a result of the delay.

 

 

In this case, Nancy may be liable to Blinky for contribution as a joint tortfeasor because Nancy's negligence may have contributed to the Plaintiffs' injuries. Therefore, Nancy is a proper third party defendant. However, the defendants filed a motion to dismiss in February (which presumably was followed by an anwer when it was denied), and did not seek leave of the court to implead Nancy until December 2014.

 

 

Despite the long delay, the plaintiffs will not be prejudiced by the impleader. No depositions have yet been taken, so the parties have not made a decision on how to allocate their limited number of depositions, not knowing that there would be another party to be deposed. The parties have exchanged interrogatories, but would be permitted to send interrogatories to the new third party defendant. The limit on interrogatories applies to the number you can send to a particular party, not the number sent overall. The delay has likley not resulted in any loss or deterioration of evidence because the evidence invovled, Nancy's car, Blinky's truck, any reports on the accident, medical treatment for the plaintiffs, would have been preserved in light of the pending suit. While Nancy's memory may have deteriorated, discovery is only now in progress, so her memory is not any worse than it would be were she impleaded earlier. Therefore, there would be no prejudice to the plaintiffs from her impleader.

 

 

Thus, the motion to implead Nancy should be granted.

 

 

Motion to Join Defendant: The motion to join Nancy as a defendant should be denied. At issue is whether Nancy can be joined.

 

 

Liberal joinder of parties is permitted in order to encourage judicial efficiency. A party may be joined as a defendant so long as there is a common question of law or fact. However, even if there is such a common question, joinder is impossible in some cases. For example, if joining a party would destroy the court's subject matter jurisdiction, then joinder is impracticable and should be denied. If the party sought to be joined is indispensible, then the case may be subject to dimissal.

 

 

In this case, there is a common question of law or fact--the cause of the accident. However, Nancy is a New Jeresy citizen. This case is in federal court under its diversity jurisdiction. The federal court has diversity jurisdiction when there is diversity of citizenship (or alienage) and the amount in controversey is greater than $75,000. There must be complete diversity; each plaintiff must be diverse from every defendant. Nancy is a New Jersey citizen, as are the Plaintiffs. If Nancy were joined as a defendant, the court's subject matter jurisdiction would be detroyed and the case would be dismissed. Therefore, a motion to join Nancy as a defendant should be denied. Nancy's absence from the litigation would not make it subject to dismissal for nonjoinder of an indespensible party because, as an alleged joint tortfeasor, Nancy is not indespensible.

 

 

Note that the subject matter jurisdiction problem does not arise if Nancy is impleaded. If Nancy is impleaded, the court has diversity jurisdiction over Blinky's claim against Nancy because Blinky is a citizen of Pennsylvania and New York (for diversity purposes, a corporation is domiciled in every state where it is incorporated and the one state where it has its principal place of business), Nancy is a citizen of New Jersey, and the amount in controversey is $200,000.

 

 

Thus, a motion to join Nancy as a defendent should be denied.

 

SAMPLE ANSWER 5B:

Memo

To: District Court Judge

From: Law Clerk

Re: Garcia v. Blinky and Liz

 

Personal Jurisdiction for Blinky:    The court should rule that it has personal jurisdiction over Blinky.  At issue is what contacts with the forum state are required to acquire personal jurisdiction over a defendant.  Personal jurisdiction is required over all defendants in the case.  This brings them under the power of the federal court.  General personal jurisdiction may be obtained over a defendant when they are a domicile of the state or said to be at home in that state.  There is general personal jurisdiction in those states over the pary for any claim a plaintiff may have against them.  An individual is a domicile of a state in which they reside, and a corporation is a domicile of any state in which they are headquartered and have their principal place of business.  Specific jurisdiction under the New Jersey long-arm statute (the state where the federal court is sitting in this case) gives the court personal jurisdiction over the defendant for claims arising out of their contacts with the state.  Under this analysis, the defendant must first have minimal contacts with the state such that they should reasonably foresee being haled into court in the forum state due to these contacts.  Additionally, due process requires that the defendant be susceptible to personal jurisdiction in the state only if it satisfies the interests of fairness and substantial justice, such as because the defendant availed himself to benefits of the forum state, and the forum state's interest in providing relief for its citizens.

 

Here, Blinky is not subhect to general jurisdiction here because it is not at home in NJ, the forum state.  It is a resident of New York and Pennsylvania based on its headquarters and principal place of business.  However, the court will get specific jurisdiction over Blinky because of its contacts with New Jersey because its claimed arises out of an accident with its employee in New Jersey.  First, Blinky has sufficient minimum contacts with the state because it was engaged in business that took its products through NJ.  Although it does not often send Liz through New Jersey to make deliveries, it still regularly sends her every year.  It is foreseeable that something could happen (like an accident) while a driver was making deliveries.  The fact that the business itself does not target NJ is no defense, because the company still creates sufficient minimum contacts when it schedules deliveries to go through NJ.  Second, obtaining jurisdiction over the defendant does not offend the notions of fairness or justice.  Blinky availed itself of the benefits of the state by utilizing its roads.  If something happens on the NJ roads, it will have the benefit of the emergency services of that state.  Finally, New Jersey has a substantial interests in providing a forum in which its residents can obtain relief for accidents caused by out of state motorists that drive negligently within the state.  Thus, Blinky is subject to personal jurisdiction and Blinky's motion to dismiss should be denied.

 

Personal Jurisdiction for Liz:  The court should rule that it has personal jurisdiction over Liz.  Although she is a domiciliary of Pennsylvania, she has sufficient minimum contacts from driving through it.  At issue is whether driving through a state in the course of employment is sufficient to give rise to personal jurisdiction.  As with Blinky above, Liz had the necessary minimal contacts because she will be considered to have assented to jurisdicition in New Jersey when she drove on the NJ turnpike.  She purposefully turned onto the NJ turnpike, and availed herself of the benefits of the state by using its roads and likely utilizing its emergency services in the aftermath of the accident.  It was foreseeable to Liz that she could be sued in NJ if she was involved in an accident there.  It is not defense that she was acting at the direction of Blinky.  As before, NJ has a substantial interest in providing a forum in which its residents can bring suit against out of state motorists.  Thus, the court should dismiss Liz's motion to dismiss for lack of personal jurisdiction.

 

Third Party Complaint Against Nancy:  The court should deny Blinky's motion for leave to file a third-party complaint against Nancy.  At issue is when a thrid party complaint is properly brought. Under the Federal Rules of Civil Procedure, a thrid party complaint, or impleader, is proper when the impleading party, or third-party plaintiff, brings a cause of action against a non-party to the action (third party defendant) stating that the third party defendant is liable to the defendant for any amount that the plaintiff is enttitled to recover against the defendant.  This is usually for claims of indemnity arising from a contract or contribution in the case of joint tortfeasors.  It is not available for defendants to use to shift the blame to a nonparty of the case.

 

Here, Blinky is not seeking a claim in indemnity or contribution against Nancy, whcih would allege that Nancy is liable to the plaintiffs for any amount Blinky is found to owe them.  There is no contract for indeminification on these facts. Rather, Blinky is asserting that Nancy, and not Blinky itself, is liable for the damages to the plaintiffs.  This is an improper use of impleader, and instead, it must seek to join Nancy as a defendant instead.

 

Blinky's motion to join Nancy:  Blinky's motion to join Nancy should be dismissed.  At issue is whether it is appropriate to join a party as a defendant that would destroy complete diversity in a diversity action and what makes a party necessary for the case.  A court must have subject matter jurisdiction over each claim before it.  In federal court, diversity jurisdiction requires complete diversity (that no plaintiff is from the same state as any defendant), and that the amount in controversy exceeds $75,000.  A case that lacks subject matter jurisdiction in federal court must be dismissed. Although the plaintiff in a case is said to be master of his claim, a defendant may seek to join a party to the action so long as that defendant was involved in the same transaction from which the underlying action arose.  However, to join a party as a defendant that would destroy diversity jurisdiction, the court must determine if the party is a necessary party to the case.  If the party is indispensable to the case but cannot be joined, the court must dismiss the case without prejudice to be brought in a more proper jurisdiction.  Factors bearing on whether a party is necessary include the whether the party to be joined would be bound by the action and whose rights would be decided, whether the court can tailor the remedy around that party, and whether there is another forum in which all parties could be joined.  Joint tortfeasors are not necessary parties to an action.  Joint tortfeasors are those whose actions act in concert to bring about a harm to a plaintiff.

 

Here, Nancy was involved with the collision, because she was driving the car in which the plaintiffs were riding.  However, bringing her into the case would destroy complete diversity, and thus, subject matter jurisdiction would be destroyed because Nancy is a NJ domicilliary and resident like the plaintiffs.  In this case, Nancy is not a necessary party to the action because she would be jointly and severally liable with the current defendants, if at all.  This is because both her actions and the actions of the current defendants acted together to bring about the motor vehicle accident to the plaintiffs when they collided on the road.  Her rights will not be bound by the action between the plaintiffs and Liz and Blinky, because the plaintiffs could collect from Liz and Blinky with adjudicating her fault.  The court can likewise tailor a remedy around Nancy because they can order the judgment against the other joint tortfeasors, the full amount of which can be enforced against any defendant that is jointly and severally liable.  Furthermore, the defendants would be able to bring a later contribution action against Nancy if they desired.  Thus, Nancy is not a necessary party to the action and thus Blinky's motion to join Nancy should be denied.

 

 

 

QUESTION 6 - EVIDENCE

 

Thomas, a 17-year-old freshman at New Jersey University, decided to pledge at Xi Upsilon Upsilon (“XYY”) fraternity in the Fall of 2014. One of the rituals of XYY requires all pledges to complete a midnight run around the campus track. Unbeknownst to the pledges, the sports drinks they were given to keep them hydrated contained alcohol. Michael, the   fraternity president, and Alvin, the pledge captain, were responsible for monitoring the pledges during this time.

 

Near the end of the run, Thomas complained of blurry vision and feeling lightheaded. After the run, the pledges were instructed to return to the track before dawn. Noticing that Thomas looked pretty unstable, Alvin volunteered to help him back to his dorm. Thomas did not make it to the track the following morning and subsequently dropped out of the XYY pledge line.

 

During the Spring of 2015, Thomas complained to police that he believed Alvin had non-consensual sex with him.  On April 24, 2015, after completing its investigation, the County Prosecutor charged Alvin with sexual assault. During the final pretrial conference of the matter, the prosecutor moves In Limine to allow the introduction of the following at trial:

 

1.  The University’s Board of Student Conduct found Alvin “Responsible” for violating the school's sexual conduct policy with a different student in 2013.

 

2. The testimony of James, Thomas' suite mate, that on the night in question it was his opinion that Thomas was visibly intoxicated when Alvin brought him into the suite and took Thomas into his room.

 

3. The testimony of Thomas’ family physician, Dr. Marx, that Thomas told him, a few days after the incident, he wanted to be tested for sexually transmitted infections because he felt “a fellow student had taken advantage of him.”

 

     During the same pretrial conference, Alvin's defense attorney also moves In Limine to allow the introduction of the following at trial:

 

4. Testimony of Michael that when he called Thomas the following morning to find out why he was not back at the campus track, Thomas said: “I’m not feeling good, but I’ll be ok. Look, I’m dropping out of pledging XYY. It’s too much.” Thomas then hung up the phone.

 

5.  Testimony of Carl, the University’s Student Health Services’ Physician Assistant who treated Thomas the day after the alleged   incident, that he did not treat Thomas for any kind of assault.

 

6.   Proof that Thomas was convicted of shoplifting in 2011.

 

You are the law clerk to the judge assigned to decide the motions.  Prepare a memorandum advising the judge which motions should be granted or denied, and why.

PREPARE THE MEMORANDUM

 

SAMPLE ANSWER 6A:

To: Judge

From: Law Clerk

Re: State v. Alvin

 

 

Motions made by the prosecution:

 

1. The prosecutions motion to admit the evidence of the finding by the University Board of Student Conduct should be denied. At issue is if a prior non-judical conviction may be admitted at trial. The evidence at hand is relevant. Evidence is relevant if it tends to prove or disprove a material issue of fact. Evidence of prior bad acts are generally not admissible evidence because it tends to show that the defendant has a particular propensity for a particular crime. The reason such evidence is not admitted is because its probative value is often outweighed by its predjucial effect. Evidence of prior convictions for sexual assult, however, are admissible to show that the defendant has a general propensity for sexual assult. Here, the prior bad act is relevant because it is regarding a simmilar act in which the defendant is accused. Furthermore the act in question is sexual in nature. However, the defendant was never actually convicted criminally for sexual assult or any related crime, since the finding was not made in court, but with New Jersey University's student conduct board. Indeed, it is unclear as to the exact violation he may have made. Therefore, it would be improper to admit the evidence.

 

 

2. The prosecutions motion to admit the testimony of James should be granted. At issue is if a lay witness may testify to the physical state of another. Lay witnesses may testify to observations that they have made, so long as the opinion would be approrprietly given by a lay person and it would be helpful to they jury. Here, the witness is attempting to testify to his observations that his suite-mate was visibly intoxicated on the night in question. A person not considered a qualified expert in alochol is generally able to testify to the drunkness of another person. Furthermore, the information is relevant since it tends to help prove that Thomas was intoxicated, which may be helpful to the jury in determining if the sexual act in question was consensual. Therefore, the evidence should be admitted.

 

 

3. The prosecutons motion to admit the testimony of Dr Marx should be granted. The issue at hand is if a statement made to a physcian is excluded as hersay. Under the hersay rule, heresay is defined as an out of court statement used to prove the truth of the matter asserted. Heresay is not admissible. There are a number of hersay exceptions, however which allow the admission of otherwise inadmissible hersay. One such exception are statements made to a physical in the treatment of a medical condition. Such statements may be admitted if they are made specifically regarding treatment. Here, Thomas went to the doctor to obtain treatment because he was concerned about sexually transmited diseases.

 

Generally, the exception to hersay stops when the discussion of treatment specifically discusses specifics of the defendant or any information outside the scope of the treatment. Here, there is a fine line between if this testimony is premissible since it specifically discusses a sexual assult. It is probably admissible, however, since there was no specific reference to the defendant and since being involved in a sexual assult is relevant to the course of treatment. Therefore, the evidence should be admitted.

 

 

Motions made by the defense:

 

 

4. The motion by the defendant to admit the testimony of Michael may be granted, but need not be. At issue here is 1. is the testimony relevant and 2.is the testimony hersay.

As to issue 1, all information is relevant if it tends to prove or disprove a material issue in the case. Here, it is unclear as to what the defense is attempting to establish, since the contents of the conversation does not need to help prove or disprove any particular material issue. It is possible the defense is attempting to use the statement to establish that Thomas was hung over or that there were other reasons for Thomas droping out of pledging than the actions of Alvin. The court, in its discretion, should determine its relevance.

 

 

As to issue 2, If the evidence is found to be relevant, it is still hersay. Hersay is defined as a statement made by a declarant to prove the truth of the matter asserted. Here, the testimony is hersay because it is being used to prove what Thomas said to Michael was true- that he did not feel well. Generally hersay evidence is not admissible, but it may be under an exception to hersay. One exception is a present physcial condition. Under this exception, information regarding the current phycial condition of a person made to another is admissible. This statement probably falls under such a an exception because Thomas is describing his current physical condition of not feeling well. Thus, the statement may be admissible.

 

 

5. The motion by the defendant to admit the testimony of Carl may not be granted. The issue is if the doctor- paitent confidentlity extends to physical assistants. Generally, in most jurisductions, the specific course of treatment is protected under a physican- paitent confidental relationship. This privlage is important because it helps promote candor when people discuss their physical ailments with their doctors. Here, Carl is not a doctor, however he still may qualify under the privlage since he is working with the physican and may be considered an extension of the physican in his professional duties. Under public policy considerations alone, this privlage should extend to physican assistants. This the testimony is not admissible.

 

 

Note, it is possible that the prosecution could argue that by admitting evidence given by Dr. Marx, Thomas has waived his right to keeping his other medical records confidental. This is a sound argument, and therefore the court should determine if medical records showing lack of treatment for something around the time of the incident is probabtive enough to be admissible.

 

 

6. The conviction of shoplifting should not be admitted. Is issue here is if a prior criminal conviction should be admitted agianst a witness. Evidence of a prior criminal conviction may be used to impeach a witnesses credibilty if they testify in court. It is unclear if Thomas intends to testify so we will assume he is going to. In order for evidence of a prior conviction to be used agianst a witness the crime must generally be a felony. If it is not a felony the crime must be one that bears on the truthfulness of the witness. Neither is true here, the crime of shoplifting is likely a midemeanor in the jurisdiction. A misdemeanor should only be admitted if it is probabtive of the witnesses character for truthfulness. The crime of shoplifting is not a crime related to truthfulness. Finally, since the crime was committed when Thomas was just 14 years old, the court will likely weigh that in Thomas's favor, determining that it is unfair to admit evidence of a misdemeanor committed when he was a child. Thus, the court should weigh the probative value of admitted the conviction versus the predjucial effect and determine that it is preducial effect outweights the probative value. Thus, the motion should be denied.

 

SAMPLE ANSWER 6B:

1: Board of Student Conduct found Alvin "Responsible" for violating their sexual conduct policy

 

 Thomas will not be allowed to introduce this evidence. The issue is whether there is an exception that allows this character evidence to come in.

 

 Character evidence is typically prohibited (see item #6 below for a full discussion on character evidence). There are exceptions to character evience that can come in-- where the intent is not to prove propensity but to prove something else (intent, motive, common scheme, etc). Even if a character evidence exception applies, the court must also weight its probativeness with its prejudice. Evidence can come in if it has any tendency to make a material fact true or not true. Evidence cannot come in if its probativeness is substantially outweighed by undue prejudice (403 balancing). Undue prejudice includes: time wasting, confusing the issue, mini-trials, etc.

 

 Alvin was found "responsible" for violating the school's sexual conduct policy with a different policy. The inference here is that he did it once so he likely did it again. This is an inappropriate inference. It is likely barred. Thomas will argue that it can come under "common scheme", but the violation here is vague-- it might be a common scheme if it specially talked about drinks that were laced with alcohol. It also doesn't show motive. It might show absence of mistake if Alvin is claiming he thought it was consensual. It is not specific enough to show a modus operandi. It does not show a habit.

 

 Even if it did fall within an exception, it likely will be barred for undue prejudice. A jury might be tempted to go through the "propensity" inference box. They might think "he was guilty then, so he is guilty now". They might confuse the issues. They might try to figure out if Alvin was really guilty of sexual assault back in 2013 (remember that this isn't even a conviction, it is a board of student conduct where the procedures may not be as thorough).

 

 2: Testimony of James

 

 James will allow to testify to his observations. At issue is whether a lay witness can attest to the intoxication of another person.

 

 A lay witness must speak from personal knowledge. Lay witnesses typically are barred from testifying as experts and they should not use legal terminology. But they are allowed to describe their observations in a short-hand way to describe what they saw (the person "looked sick" is fine even though the lay witness is not a doctor). For every piece of evidence, we also need assess for relevance (see explanation above).

 

 James says he saw Thomas visibly intoxicated when Alvin-- Alvin brought him into the suite and took Thomas into his room. These are James' observations, meaning he had personal knowledge of these events. He is allowed to say Thomas looked visibly intoxicated, even though he is not a doctor. Many people have a common understanding for what it looks like when someone is "intoxicated" (slurring, stumbling, bloodshot eyes). Allowing witnesses to use this shorthand allows factfinders better understand what it was James saw.

 

 It is also relevant because it places Alvin both at the apartment and in Thomas's room. These are important facts in Thomas's criminal complaint. It does have some tendency to make it more probable that Alvin committed this sexual assault. It also is not unduly prejudicial because this is an observation that goes to the heart of the matter, whether Alvin was with Thomas that night and in what capacity. Evidence that is bad for the defendant is not necessarily prejudicial-- it must be "unduly" prejudicial. This is the 403 balancing judges have todo with each piece of evidence.

 

 3. Dr. Marx's testimony

 

 Dr. Marx's testimony will likely come in as a hearsay exception. The question is whether Thomas's statement was one that was made to the doctor for purposes of diagnosis and treatment.

 

 Hearsay is an out-of-court statement that is brought into evidence to prove the truth of the matter asserted. It is barred from being introduced unless an exception applies. The justification is that evidence needs to be reliable and if a statement from out-of-court is introduced, neither party can ask the declarant questions to figure out what they meant. We typically want those who testify to be subject to cross-examination. One of the hearsay exceptions are statements that are made to the doctor for purposes of treatment and diagnosis. We think that these statements are especially truthful because we expect patients to tell the truth about their ailments. We assume patients want to get better, so the court will allow these statements in despite not having the witness actually in court. The statements to the doctor must be related to treatment and not be tangential or superflous. Assignments of blame typically are not statements that would come in.

 

 Here, Dr. Marx says Thomas wanted to be tested for STI because he felt a fellow student took advantage of him. At first cut, this seems like a statement of blame that is not used for treatment. However, the court will likely find that this was said for purposes of treatment. Thomas wanted the kind of treatment that victim of sexual assault gets--- which would include an STI test and perhaps something more like a rape kit test, etc. The statement doesn't say Alvin sexually assaulted me. It just points that he was taken advantage of and he wants to know his options. A doctor typically wants to know whether his patient is sexually active, so he can point him to certain precautions and treatment. Knowing that a student was taken advantage of yields better information that if the student said he had consensual sex because now the doctor knows to look for bruises, signs of struggle, etc.

 

 This information is probative and tends to show Alvin committed a sexual assault (or rather, a sexual assault was committed). It's not prejudicial enough to be dismissed.

 

 

 4. Michael's Testimony about Thomas's text

 

 Michael's testimony can likely come in. The issue is whether an out-of-court statement about a person's intention can come in and whether Michael needs to introduce some sort of record in order to testify.

 

 Hearsay is explained above. An exception to hearsay includes a statement of present condition that include both (1) how that person is feeling and (2) what that person intends to do. We think this is especially probative because the person is commenting on his or her own present condition-- he or she is not trying to remember something that happened years ago. The best evidence rule states that if you are trying to prove the contents of a writing/record, that you need to prove that writing/record. However, if you have personal knowledge of that writing, you do not need the writing, you can testify from your own personal knowledge. A record includes texts, video tapes, audio recordings, wills, etc.

 

 Thomas texted that he wasn't feeling good, which is a statement of how he is feeling currently. This can come in as a hearsay exception. He also stated that he was going to be ok-- which can be construed as how he is currently feeling OR a statement of intent (either of which can come in). He then said that he was going to drop out of pledging, which is a statement of intent. "It's too much" is a statement of present feeling. The entire statement can come in.

 

 Michael will be able to testify to the statement because he was the one who received the phone call. Even though Michael and Thomas didn't speak in person, Thomas's statement to Michael can come in. There doesn't need to be a recording of the phone call.

 

 Michael also wants to testify that Thomas hung up the phone immediately after. He is allowed to testify to that as an observation-- "Thomas then hung up". It's possible though that Thomas was trying to make a statement when hanging up, which would make it hearsay. Even if the court entertains this argument, it likely can come in as a statement of present feeling (frustration or fatigue).

 

 All the above evidence is relevant because it tends to to prove that Michael was in fact OK the very next day. A fact finder might expect someone who was recently assaulted to not be ok. This might have limited probative value because a victim of sexual assault might not immediately reveal the assault. However, "a brick is not a wall". This has some probative value and is likely not prejudicial.

 

 5: Testimony of Carl, Physician Assistant

 

 Carl's testimony can likely come in. The issue is whether there is a doctor-patient privilege that protects this information.

 

 Some states have a doctor-patient privilege that disallows doctors from testifying as to their patient's condition (unless privilege is waived). The incentive to get patients to speak truthfully to their doctors. Some states have this privilege. The federal courts do not.

 

 Because this is a NJ ccriminal case, it is likely in NJ state court. We don't know whether NJ has a privilege. However, even if there was one, it was likely waived because the condition of Thomas has been made an issue. It might actually violate Alvin's due process rights to keep him from finding out whether Thomas was treated for sexual assault. If the privilege did apply, it wouldn't matter that Carl is a physician asisstant-- the privilege would cover all healthcare providers.

 

 Carl wants to reveal that he didn't treat Thomas for any kind of assault. The inference here is that Thomas did not complain about an assault and/or there were no physical markings that signified a possible assault. Because privilege likely does not apply, this observation can probably come in as something the physician assistant has personal knowledge about. It is probative, but perhaps not very probative because, again, a victim of sexual assault may not seek treatment for it right away. It's not prejudicial enough to keep out.

 

 6: Proof Thomas was convicted of shoplifting in 2011.

 

 This conviction will only be admitted into evidence if Thomas takes the stand AND the shoplifting is considered a felony. At issue is whether convictions of the alleged victim can come in and for what purposes.

 

 Character evidence is typically not allowed in to court to show that a person has a propensity to commit a crime. It also can't be used to show that a sexual asssault victim is promiscuous (see rape shield). Convictions for other crimes that a person has committed typically can't come in because they are used as character evidence. Propensity to commit crimes is not very probative and extremely prejudicial. So, the default rule is to keep them out. Convictions however may be able to be used to impeach a witness. All crimes involving deception (false statement, perjury) can come in, whether it is a misdemeanor or felony. But conviction must be relatively recent--- not more than 10 years must have passed from when the crime occurred or the person was released from prison. All felonies can come in if they were not committed more than 5 years ago. These convictions are used to cast doubt on the witnesses testimony, not to embarrass the witness.

 

 The conviction here was 4 years ago, so it is within the time limits given. It is not deception crime, however, so it doesn't fall in the first category. Shoplifting could be a felony if it is for an expensive enough item, which might get qualified under the felony impeachment exception. This evidence will only come in to help impeach Thomas if he is on the stand. It cannot come in as defendant's case-in-chief. A defendant is not allowed to prove that the victim had a bad character (except for self-defense cases, where defendant may try to prove that plaintiff was a violent individual).

 

PREPARE THE MEMORANDUM

 

QUESTION 7 – REAL PROPERTY

 

Barbara rents commercial property from Kevin under a 10-year lease executed in 2010.   She operates her growing accounting practice at the property. Several years into the lease, Kevin and Barbara discuss her growing business and execute a written modification to the lease extending it for 10 years and giving Barbara the option to purchase the property for $500,000.  Two years after execution of the modification, Kevin is approached by Donna, who offers to purchase the property for $750,000.  Kevin enters into a contract with Donna for the property.  She tenders the purchase price to Kevin and receives a Warranty deed in exchange.  When Barbara learns of the sale, she sends Kevin notice of her election to exercise her option to purchase.  Kevin does not respond to the notice.

 

Robert and Sandra agree to purchase a small farmhouse on 50 acres of woodland in September 2010.  The deed from the seller to them reads in part “To Robert and Sandra, Grantees.”  They agree that Sandra will reside there.  After closing, Robert is approached by Thomas, the owner of the adjoining property, who asks if he and his family can use the hill at the rear of the property for sledding.  Robert agrees so long as Thomas provides Sandra with firewood during the winter.  In August 2014, Robert and Sandra agree to sell the property to Barbara for $400,000.  During the negotiation for the sale of the property, Robert asserts that Sandra will owe him $50,000 from her part of the proceeds for rent.  Between the signing of the contract and the closing, the farmhouse is destroyed by fire, and       Barbara no longer wishes to purchase it.

Barbara comes to your office seeking advice.  She wants to purchase the commercial property and wants to know her rights against Kevin and/or Donna.  She does not want to purchase the farmhouse but if she is required to, she wants to know how much of the proceeds to pay to Robert and Sandra individually and what her rights are with respect to Thomas. Barbara asks you to prepare a memorandum setting forth all of her rights and responsibilities.

PREPARE THE MEMORANDUM

 

SAMPLE ANSWER 7A:

MEMORANDUM

 

 TO:                             Barbara

 FROM:                      Attorney

 REGARDING:          Property Rights and Responsiblties on the Commercial Lease and Farmhouse

 

 I. Barbara has rights against both Kevin and Donna under the Option in the commercial lease.

 

 The only rights that Barbara has under the option contract are those against Kevin. In order to be able to bring a claim under an option contract there must be privity. 

 

 A option to purchase the property is not revocable for the term provided if it was entered into with consdieration and is in writing. Barbara has a valid contract with a valid option to prurchase. It is valid for a reasonable time or for the time stated in the contract. The lease was for 10 years and it is reasonble that the term for the option was 10 years. An option to purchase is an interest in land and should have been recorded by Barbara (her recording would have put subsequent buyers on notice) 

 

 The issue is whether Barbara has a claim under the option contract against Donna for the property?

 

 Under the notice/and or race notice jurisdictions, a bona fide purchase who takes a property in exchange for value without notice of an existing right (and who records first in a notice jurisdiction) has a superior interest to the other party. Notice can be actual, record or constructive. For example if a reasonble inspection would show that someone is in possession, it would raise a reasonable buyers suspicions to investiage and see if there is a long term commercial lease and what the terms of that lease are. It is likely that there is constructive notice present here, because Barabara was in possession of the property and had Donna inspected she would have found out about the condition. So under both the race notice, and notice theories Barabara is probably not a bona fide purchaser and could be compelled to sell the property to Donna for $500,000. 

 

 Donna would then be able to recover the remainder for the price from Kevin under the warranty deed. Kevin would be liable to Donna and would have defend her under the terms of the Warranty Deed Kevin warrants that the property is free of encumberances that he has made and that he wil not encumber the property in the future. Since, when he sold the property to Donna, it was encumbered by the option K he will be in breach to Donna. Any claims that Barbara would bring against Donna, Kevin would have to defend and ultimatley be liable for. 

 

 Becaue this is a property that she worked in for a long time, Barbara can properly compell specific performance of the contract and force Donna to convey sell the property to her because Donna is not a bona fide purchaser.

 

 II. Barbara is probably requried to purchase the farmhouse because of equitable conversion and pay half to each Robert and Sandra. Barbara can probably revoke Thomas's license to use the hill. However, there is a possiblity that Thomas's interest is an easement or covenant or that the property is subject to litigation because of Roberts claim of Sandra owing him $50,000 making title unmarketable and excusing performance at closing. However, this must be done in good faith which is lacking in this case. 

 

 Since Robert and Sandra are tenants in common, each owning 25 acres of the farmhouse, Barbara should pay each of them $200,000. 

 

 Under common law, when property is conveyed to two individuals without an indication of whether it is a being conveyed as a joint tennacy with rights of surviviorship, it will be defualted to a tenancy in common. The conveyance to Robert and Sandra in the deed created a tenancy in common. Under a tenancy in common, both tenants have right to possess the whole, but there are no rights of survivorship so their part (in this case their 1/2 because there are two) is alienable, sellable. Because either party has a right to possession of the whole, when one party resides in the entire estate with the conesnt of the other and without ouster, as Sandra resided in this case they are not accountable to the other party for rent. Therefore, the $50,000 claim that Robert asserted against Sandra is not likley to succeed. 

 

 Under the doctrine of equitable conversion once an a contact is signed between a buyer and the seller, the law will view as done what needs to be done and the risk of loss for the property passes onto the buyer automatically with the contract signing. Because the risk of loss had passed to Barbara it is highly likely that she will be compelled to complete the closing and pay the contract amount.

 

 Thomas has an license to use the hill at the rear. A license is permission to use land for recreational puroses. Licenses are readily and easily revocable unless the other party has detriementally relied on and made subsntatial changes to their position baed on that license. This occurred in 2010, and it is now 2015 so assuming that THomas provided Sandra firewood for 5 years the court will have to decide if that made the license irrevocable. The improvements must be a substantial change in the position so it is unlikely that the license is irrevocable. There is no writing so it is not a covenant or equitable servitiude that runs with the land. It is not an easement either becuase there was no prescripition, necessity, or express grant in writing. The easement is proably not one of existing prior use because it is not necessary to Thomas's enjoyment of the propertyThomas has an license to use the hill at the rear. A license is permission to use land for recreational puroses. Licenses are readily and easily revocable unless the other party has detriementally relied on and made subsntatial changes to their position baed on that license. This occurred in 2010, and it is now 2015 so assuming that THomas provided Sandra firewood for 5 years the court will have to decide if that made the license irrevocable. The improvements must be a substantial change in the position so it is unlikely that the license is irrevocable. There is no writing so it is not a covenant or equitable servitiude that runs with the land. It is not an easement either becuase there was no prescripition, necessity, or express grant in writing. The easement is proably not one of existing prior use because it is not necessary to Thomas's enjoyment of the property.

 

 This issue with Thomas can be helpful to Barbara because implied in every contract for the sale of real estate is the deliverence of marketable title. Marketable title states that there are no encumberances on the property and the property is not subject to any existing property or litigation disputes. Here, Thomas's license and the slight possibility that it may be an encumerance because it is an irrevocable license and could be the subject of litigation may be able to get her off the hook of going through closing. However, it must be done in good faith, and the destruction by the fire would create an inference of bad faith. In addition, the fact that Robert claims that Sandra owed him money for rent on the property and therefore may be liable to him for part of the property and damages if a partition action were to be brought, as well as an accounting may affect the marketability of title.

 

SAMPLE ANSWER 7B:

To: Barbara

 From: Attorney

 Re: Property Claims

 Date: 7/30/15

 

 Hello Barbara,

 Here is a memo I have prepared about your duties and obligations regarding the building where you accouting practice is and the 50 acre plot.

 Claims against Kevin

 The issue here is whether a party can revoke an option in writing, given as part of a lease renegotiation.

 Contract Formation

 When two parties form a contract there needs to be offer, acceptance and consideration. That consideration can be in the form of an action or promise but just must indicate each party giving up something they have a right to. When an offer is made, it is generally revocable at any time by the grantor. Even if she promises to keep it open, it can generally be withdrawn. However, when the option is given for consideration, it cannot be withdrawn for that period.

 In this case, several years into your lease you renegotiated the contract. It was a written renegotiatin and included an option and 10 year extension of the lease. You gave consideration by your promise to pay rent for the new 10 year period. He gave consideration by promising to keep the option open and let you use the property. Therefore, your option contract should be binding.

 No Statute of Frauds Defense

 There are certain contracts which must be reduced to a signed writing to be enforcable. Included among them are real estate conveyances and contracts which cannot be fulfilled within a year. In that case, there needs to be a writing signed by the party it is being enforced against, containing all the essential terms of the contract.

 Here, the written modification to the lease, assuming it was signed by Keving would satisfy the Statute of frauds. Therefore, he could not use this as a defense.

 Damages v. Specific Performance

 Generally, the relief for failure to keep open an option for real estate are either specific performance of restitution. The courts are much more likely to grant specfic performance for real estate contracts than personal service contracts becaus of the unique nature of the real estate. However, if it would result in injustice then the courts may opt for damages.

 In this case, you could either get a court to enforce the option contract of receive teh 250K$ in damages. SInce that is the difference in cost between the option and present market value. That question would partially depend on Donna's notice upon the purchase of the land. If she had notice of your option, then she would not be considered to have clean hands and a court would be more likely to enforce specific performance and recission of her contract with Kevin. However, since your option was not recorded, if she had no reason to know about the option you will have no strong recourse to recover from her. 

 

 Claims Against Donna

 The issue is whether an unrecorded option can be enforced against a subsequent good faith buyer and if a buyer needs to respect the leases existing on a property.

 Good Faith

 As we stated above the enforcement of an option after the land has been illegally sold, will depend on the clean hands of the buyer. 

 If Donna had notice you can get the land back from her, upon payment to Kevin. If she did not you will have no claim against her.

 Leases

 A lease is a right to occupy real property for a period of time. That lease is both a property right and a contract. Although the contract is formed between the lessor and the lessee, the property right is inherent in the property. As such, when a property which has been leased is sold, the new owner is assumed to take it subject to the existing leases, unless otherwise provided for in the contract. The new landowner is liable to respect the terms of the existing lease.

 Donna needs to respect the current terms of the lease, both with respect to cost, duration and rights. She does not, however, need to be bound to the option clause which was not a property right. Therefore, you can enforce your lease against Donna

 

 Title in the Farmhouse

 The issue is whether a buyer of land from two "Grantees" needs to pay them in proprtional shares or offset for rent because one occupied the land exclusively.

 Title in Joint Owners

 Real property can be owned in tenancy in common, joint tenancy and tenancy by the entirety. Joint tenancy has a right of survivorship, which is unilaterally alienable. Tenancy by the entirety is limited to married couples, but tenancy in common is the default tenancy between unmarried partners. 

 When title was transferred "To Robert and Sandra, Grantees" there is no indication that they were married making a joint tenancy. Therefore, the default title will rule and they will be treated to have a tenancy in common.

 Tenancy in Common

 When parties own property in tenancy in common they each have an indivisible right to possess the whole property. Their financial interest in the property, though, is proportional to their purchase price or agreement. Therefore, even if one party is the 90% owner, the other may live there always. However, when the land is sold it will be apportioned 90/10. The other element of each party having a right to occupy the whole is the no party may recover rent from the other. While there is an obligation to split profits from renting out the land, as well as splitting taxes and mortgage payments, when conducting an accoutning, there is no obligation for one party to reimburse the other for the use of the land.

 In this case, while you were negotiating with Sandra and Robert, you were negotiating with Tenants in Common. As such they are each entiteld to an equal portion of the proceeds (unless they bought in with a different proportion). Robert's comment is irrelevant because Sandra does not owe him any money for her occupancy. (Additionally, that would not be your requirement to settle their debts anyway.) While we will deal with the requirement to close presently, if you need to close, you should give Robert and Sandra 200k each, unless the payment is less--but maintain the 50/50 division as they are tenants in common.

 

 Closing on the Farmhouse

 The issue is whether a buyer is required to close on a transaction when the property was destroyed between signing and closing. 

 Equitable Conversion

 Under the doctrine of equitable conversion, equitable title in a property transfers to the buyer upon signing. Although the seller still has legal title and is generally still occupying the land, the risk of loss shifts to the buyer. The buyer is generally also seen to then have an insurable right in the property. If the property is destroyed, then, the risk is borne by the buyer. However, if the seller maintained insurance on the property, the price paid at closing may be offset by the value of the insurance recovery. 

 In this case, the parties had already signed the contract for $400k for the 50 acres of woodland. While Sandra and Robert still were the legal owners, you had become the equitable owner and therefore bore the risk of loss. You will be required to pay them the full 400k for the property unless they had insurance proceeds from that fire. If so, it would be applied to the price you will need to pay. 

 

 Rights with Respect to Thomas

 The issue is whether an agreement between neighbors to exchange goods for access to land will run with the land.

 Easements

 Easements are a property right in the land, often a right to access the land. Easements can be granted expressly, by prescription, by implication or necessity. An easement can either be in rem or in gross. While an easement in rem, runs with the land, and easement in gross, is specific to a person. An easement in rem requires two lands, a servient estate which needs to allow something and the dominant estate which is benefited by the easement. In general, for an easement in rem to run with the land there must be some sort of notice to a subsequent buyer of the servient estate (whether actual, record or constructive).

 In this case, the right to sled on land could certainly be considered an easement. However, it would be hard to understand why is would be an easement in rem. There is no benefit to the neighbor's property if the tenants may sled next door. If the easement would provide access to the property then it would clearly help the land but here it seems to be, at most an easement in gross. Therefore, it would not run with the land. Additionally, the fact that the easement was granted in exchange for a personal service--delivery of firewood, strongly mitigates against finding this as an easement which would run with the land. It much more appropriately seems to run with the person and once Robert and Sandra leave, so would the easement.

 License

 In addition to an easement, a license could be granted to a person to conduct certain activity's on the property of another. This license would be subject to the normal rules of contract, requiring offer, acceptance and consideration.

 In this case, if the sledding right is not found to be an easement in gross, it could be a license. This seems particularly likely because of the nature of the transaction requiring delivery of firewood in exchange for the right to sled. If it is a contract, then the contract would be between Sandra and Robert and Thomas. However, that license would not run with the land either.

 

 In sum, Barabra:

 

●  In order to purchase the land you willl need to prove that Donna had notice of your option

  ●  Absent notice, you can recover damages from Kevin

  ●  Donna must let you continue your lease under the curent terms

  ●  You are obligated to close on the deal with Robert and Sandra, but offset by any insurance proceeds they have

  ●  You should pay them 50/50 for the property because they are tenants in common

  ●  After you take possession Thomas has no right to sled on the land.

 

I look forward to working with you as we go ahead to settle these issues in your best interests. Feel free to reach out with any questions or for clarification, I know this can seem daunting.

 

Best,

Attorney