NEGLIGENCE
You practice law in a state that has retained the common law categories of trespasser, licensee, and
invitee; you have been approached by Natalia, a prospective client. Natalia wishes you to consider
bringing a personal injury action on her behalf against Marie. Natalia tells you that Marie invited her to a
party at Marie's home. Natalia did not want to go but because she, Natalia, had been thinking of asking
Marie to invest in Natalia's start-up business, Natalia “felt [she] had no choice.” Natalia suffered a head
injury when she fell from a tree branch on Marie's property. Natalia had climbed the tree on a dare.
The main weakness in the duty element of a negligence claim by Natalia against Marie is
(A) Natalia's status as a trespasser.
(B) Natalia's status as a licensee: the danger of climbing onto the tree branch was not hidden.
(C) Natalia's status as a licensee: Marie acted with reasonable care.
(D) Natalia's status as an invitee: although Natalia was owed reasonable care, nothing in the facts
indicates breach by Marie.
Answer (B) is correct. The problem asks you to come up with a correct label for Natalia as land visitor
and then identify the duty owed to a visitor so labeled. As a social guest, Natalia was a licensee.
Licensees are not owed reasonable care. The land possessor must warn them of hidden dangers, but the
danger on Marie's property was not hidden.
Answer (A) is incorrect because Natalia, made welcome by Marie, was not a trespasser.
Answer (C) is incorrect because as a licensee, Natalia was not owed reasonable care. That level of care is
owed only to invitees.
Answer (D) is incorrect because Natalia was not an invitee. The start-up business point would have
mattered if Natalia was on the land to advance Marie's business interests. Moreover, alone among the
choices, this one does not focus on duty and can be easily rejected for that reason.
Late one night, a sneak thief named Rugrat broke a window to enter the home of Joplin, who lived
alone. Rugrat used a chisel to gain entry. Holding the chisel, Rugrat began roaming through Joplin's dark
house, hoping to spot a wallet or a purse in easy view. Joplin was awakened by the noise and, after
retrieving a pistol he kept under his bed, walked to the door of his bedroom. Joplin saw Rugrat just as a
beam of light from the street illuminated the chisel. Joplin thought the chisel was a handgun and
promptly shot Rugrat in the chest, injuring Rugrat severely.
In a battery action by Rugrat against Joplin, Joplin ought to prevail because
(A) although Joplin had a duty to retreat before injuring Rugrat preemptively, Joplin fulfilled this duty by
remaining inside his bedroom.
(B) Joplin had no duty to retreat and reasonably believed that Rugrat threatened his life.
(C) Joplin did not have the mental state to sustain a prima facie claim of battery by Rugrat.
(D) Rugrat's status on the land was that of a criminal trespasser
Answer (B) is correct. The privilege to inflict deadly force on another arises when a person reasonably
believes that such deadly force is necessary in order to fend off an attack. When it appears that a burglar
is holding a firearm, a homeowner or other person in possession of a home is privileged to defend
himself or herself through deadly force. This person has no duty to retreat inside the home.
Answer (A) is incorrect because Joplin had no duty to retreat.
Answer (C) is incorrect because Joplin had the mental state to sustain a prima facie claim of battery by
Rugrat. The claim is defeated by Joplin's privilege of self-defense.
Answer (D) is incorrect because there is no such status in tort law as a “criminal trespasser.” Moreover,
Rugrat's entering another person's home in order to commit a crime is not the reason that his battery
claim fails. The privilege turns on Joplin's reasonable beliefs, not Rugrat's reasons for being there.
At a block party, a man overheard his neighbor talking to the paperboy. The neighbor offered to pay the paperboy $100 if the paperboy raked the front yard of the neighbor’s house when he delivered the neighbor’s next paper. Later that day, the man went to the neighbor’s house and raked the front yard. When he was done, he rang the doorbell and asked the neighbor to pay him $100.
Is the neighbor legally bound to pay the man $100?
Incorrect
Incorrect
Answer option C is correct. An offer may only be accepted by the person or group of people invited to accept the offer. Here, the neighbor was only inviting the paperboy to accept the offer. The man did not have the power to accept the neighbor’s offer, even if he intended to be legally bound. Therefore, the neighbor will not be obligated to pay the man $100.
Answer option A is incorrect because being aware of an offer is not enough to create the power of acceptance in the man. The man must be an intended offeree, and this must be clear in the terms of the offer itself. Here, the neighbor made the offer only to the paperboy, who would have been the only person with the power to accept the offer.
Answer option B is incorrect in its reasoning, because the identity of the offeree is not a term that can be negotiated between an offeror and an offeree. Here, the man did not have the power to accept or to make a counteroffer; any proposal he was making to the neighbor at best is a new offer.
Answer option D is incorrect because the neighbor’s offer to the paperboy likely was one that could have been accepted by the paperboy via performance. The offer suggested payment for performance of a service, therefore the paperboy would expect that performance of the service would indicate acceptance and trigger the neighbor’s obligation to pay. However, as stated above, only the paperboy was entitled to accept the neighbor’s offer.
Two police officers arrived at a downtown apartment house
in response to complaints from neighbors about a noisy
party. Binh answered the door, clearly inebriated. The
officers told him to step outside to the sidewalk so that they
could talk to him, insinuating that he would get into trouble
if he did not do as told. When Binh went outside to speak
with the officers and he reached the sidewalk, the officers
arrested him for being drunk in public.
The best answer is C. Courts generally imply a requirement of
voluntary action even if the statute or ordinance in question
does not specify such a requirement. Judges will imply such
an element because of the importance of the actus reus
requirement throughout the history of the common law. Such
a mandate is thus viewed as intended by the legislature, even
if not explicitly included. Here, it seems likely that a court
would see Binh's drunkenness as a voluntary action, but not
his decision to go into public while drunk. If the officers'
conduct appears to be intended to lure him into public space
in order to arrest him for the crime, the defense will have a
winning voluntariness argument. State v. Eaton, 177 P.3d 157
(Wash. App. 2008).
Since the courts usually imply a voluntary
act requirement, answer A is incorrect.
Answer B is not correct, even though courts usually have
little tolerance for excuses made for drunkenness, as
shown in the later problems involving intoxication as a
defense. Here, however, it does not appear that Binh
intended to venture out in public, and that he did so
only under coercion by the police. A factfinder would
certainly have enough evidence to conclude that Binh's
walk to the sidewalk was involuntary, and that the act
requirement implied in the statute was absent. Even
though the elements of the crime might otherwise be
shown, Binh could not be convicted. For this reason,
answer D is also incorrect.
To reduce the risk of fire, by city ordinance the town of Elysium regulates the disposal of cigarette
debris. Earl, a smoker, lives on the fifth floor of a condo building. He is in the habit of throwing still-lit
cigarettes off his balcony, an act prohibited by the ordinance. His neighbor, Vanessa, who lives directly
below him on the fourth floor, often finds his cigarette butts on her balcony. Vanessa has asked Earl
repeatedly to stop tossing this debris. On one particularly windy evening Earl tossed one of his lit
cigarettes off his balcony. This time the cigarette landed on Vanessa's balcony and fell where Vanessa
had piled bags of trash from a party the prior evening. Vanessa would have brought the bags downstairs
for disposal but the condo's maintenance staff was off that day, all bins were full, and Vanessa didn't
want to keep her garbage indoors because it smelled bad. Earl's cigarette ignited grease on one of the
bags and started a fire that caused damage to Vanessa's condo.
If Vanessa brings a negligence claim against Earl, her action will most likely
(A) fail, because the wind that directed the cigarette onto Vanessa's balcony causing the fire originated
in nature.
(B) fail, because Vanessa knew about Earl's habit of tossing his cigarettes onto her balcony and should
have known better than to have kept trash on her balcony.
(C) succeed, because Earl's violation of the statute regulating cigarette disposal constituted negligence
per se.
(D) succeed, under res ipsa loquitur.
Answer (C) is correct. Earl violated a statute the purpose of which was to reduce the risk of fires. He had
no cognizable excuse for his violation. His act was a cause in fact and proximate cause of the fire, and
the fire brought about physical harm to Vanessa's property.
Answer (A) is incorrect. Regardless of the wind, a reasonable person in Earl's position would know that it
was unduly risky to neighbors to toss cigarettes off the balcony, especially on a windy day. Even though
the wind was a natural event beyond human control (an “act of God”), the wind was a natural, everyday
event of insufficient significance to relieve Earl of liability.
Answer (B) is incorrect. Although Vanessa was aware Earl threw his cigarette butts on her balcony, the
facts do not indicate that she was or should have been aware they were lit at the time. Therefore, she
had no reason to believe that the trash she left on her balcony would ignite if it came in contact with
one of Earl's cigarettes. Vanessa is therefore not contributorily negligent. (Even if Vanessa were
contributorily negligent, her recovery would only be reduced according to the jurisdiction's rules for
comparative negligence; she probably would still recover something.)
Answer (D) is incorrect. The mere fact that a fire occurred is not sufficient to establish negligence under
res ipsa loquitur. To apply that doctrine, Vanessa would have to demonstrate that this was the sort of
accident that is usually caused by negligence. That showing might be difficult to make. In addition,
While hiking in the woods, a hiker saw an acquaintance a little way down the trail. The hiker was very afraid of all snakes, and the acquaintance knew about the hiker’s fear. Wishing to scare him, the acquaintance told the hiker that a small rope in her hand was a snake that she had just found and said she was going to toss it to the hiker. The hiker could only vaguely see something in the acquaintance's hand and became very apprehensive that he was about to be hit by a snake. The hiker started freaking out and shouting for the acquaintance to stop. The acquaintance then swung her hand back like she was going to throw the object in it at the hiker, but she then broke down laughing instead of throwing anything. Although the hiker was never hit by anything, he suffered emotional distress.
If the hiker sues the acquaintance for assault, is it likely that the hiker can establish all the elements of an assault claim?
Answer option D is correct. An assault is: (1) an overt physical act by the actor, (2) of which the victim is subjectively aware, and (3) that is intended to and does create in the victim a reasonable apprehension of an imminent battery. Battery is: (1) an act (2) that is intended to and does bring about (3) physical contact with the victim that is either harmful or offensive. The reasonable-apprehension test is objective. This means, for a victim's apprehension to be reasonable, a reasonable person in the victim's position would expect that a battery is about to happen. However, there is an exception if the actor knows about the victim's particular sensitivity to something and exploits it. This is similar to the test for battery that can make an actor responsible for a normally reasonable touching if the actor knows that particular victim would find the touching offensive.
Answer option A is incorrect because, for an assault, it is irrelevant whether the actor actually has the ability to carry out the battery. Rather, the victim need only reasonably believe that the actor is able and willing to commit the battery imminently. Therefore, the fact that the acquaintance did not actually have a snake in her hand does not prevent an assault here. Because it was reasonable for the hiker to think that the acquaintance had a snake in her hand and was about to toss it at him, the hiker's apprehension was reasonable.
Answer option B is incorrect because no contact is necessary to commit the tort of assault. However, contact of some sort is necessary to commit the tort of battery.
Answer option C is incorrect because being contacted by something that is not offensive or harmful is not the definition of an assault. An assault is the reasonable apprehension of an actual battery. For the reasons given above, it was reasonable for the hiker to believe that an actual battery by snake was imminent.
When a woman’s dog went missing, she posted missing-dog fliers around the neighborhood. The fliers offered a $200 reward for anyone who returned the dog to her. The next day, a man walking in the neighborhood saw the dog and recognized it as belonging to the woman. The man took the dog to the woman’s house and returned it to her. Neither party made any mention of the reward. Later that afternoon, the man saw one of the missing-dog fliers for the first time. Upset that the woman did not pay him $200, he went back to her house and demanded the money.
Is the woman obligated to pay the man the $200 reward?
Answer option B is correct. In order to accept an offer, the offeree must know of the offer at the time of the acceptance. Here, the man only became aware of the offer after returning the dog to the woman. Because of this, the woman is not obligated to pay the man the $200 reward.
An offer cannot be accepted if the offeree did not know that it existed.
Betty drove two of her friends home from work. On the drive,
she lost control of the car and slammed into a big tree. The
two friends were both killed. Apparently, while driving, Betty
lost consciousness and ran off the road. A later medical
examination indicates that Betty had an undiagnosed brain
disorder in the portion of her brain that regulates
consciousness, and this disorder very likely caused her to
become unconscious while driving.
Can Betty be held criminally responsible for the deaths of her friends?
(A) No, because the law only punishes people for voluntary acts and Betty did not act voluntarily when she slammed into the tree.
(B) No, because Betty was only offering assistance in driving the others and the law does not punish good Samaritans.
(C) Yes, because Betty could still be convicted even without a voluntary act.
(D) Yes, because Betty committed a voluntary act when she agreed to drive passenger.
The best answer is A. The law can only punish
those who act consciously and voluntarily. State v.
Hinkle, 489 S.E.2d 257 (W. Va. 1996). Because the
cause of the accident was the unknown brain
disorder, Betty will not be found guilty of any crime.
Answer C, then, is wrong. While offering to drive
her friends was a conscious and voluntary act, the
specific cause of the accident was her disorder, not
her offer, so answer D is also wrong.
Answer B does not apply to this situation. Once the offer of the ride was made, Betty would be responsible generally for her friends, though not here where she was unaware of her medical problem.
You practice law in a state that has retained the common law categories of trespasser, licensee, and
invitee; you have been approached by Natalia, a prospective client. Natalia wishes you to consider
bringing a personal injury action on her behalf against Marie. Natalia tells you that Marie invited her to a
party at Marie's home. Natalia did not want to go but because she, Natalia, had been thinking of asking
Marie to invest in Natalia's start-up business, Natalia “felt [she] had no choice.” Natalia suffered a head
injury when she fell from a tree branch on Marie's property. Natalia had climbed the tree on a dare.
The main weakness in the duty element of a negligence claim by Natalia against Marie is
(A) Natalia's status as a trespasser.
(B) Natalia's status as a licensee: the danger of climbing onto the tree branch was not hidden.
(C) Natalia's status as a licensee: Marie acted with reasonable care.
(D) Natalia's status as an invitee: although Natalia was owed reasonable care, nothing in the facts
indicates breach by Marie
Answer (B) is correct. The problem asks you to come up with a correct label for Natalia as land visitor
and then identify the duty owed to a visitor so labeled. As a social guest, Natalia was a licensee.
Licensees are not owed reasonable care. The land possessor must warn them of hidden dangers, but the
danger on Marie's property was not hidden.
Answer (A) is incorrect because Natalia, made welcome by Marie, was not a trespasser.
Answer (C) is incorrect because as a licensee, Natalia was not owed reasonable care. That level of care is
owed only to invitees.
Answer (D) is incorrect because Natalia was not an invitee. The start-up business point would have
mattered if Natalia was on the land to advance Marie's business interests. Moreover, alone among the
choices, this one does not focus on duty and can be easily rejected for that reason.
Elise, a college student, thought it would be funny to blow cigarette smoke in the faces of the
staunchest anti-smokers she knew. The flaw in her plan was she was a novice who did not know how to
smoke—how to hold a cigarette, what it means to inhale. Elise thought she could start with basic
smoking and then move to blowing smoke in rings. She acquired a package of cigarettes and, sitting on
her dormitory bed, lit one to practice this new activity. Lighting a cigarette, as Elise knew, violated
dormitory rules: Elise thought she was alone and that nobody would know what she was doing. Elise
found inhalation difficult and decided to abandon her malevolent plan, but not before her cigarette
smoke wafted into a nearby room occupied by Johanna. Johanna experienced coughing and shortness of
breath
Would Johanna have a good battery claim against Elise?
(A) Yes, because Johanna's inhalation of particulate matter constituted harmful contact.
(B) Yes, because Elise intended harmful contact.
(C) No, because the battery was inchoate: Elise failed at the task of smoking.
(D) No, because Elise lacked the intent to inflict harmful contact.
Answer (D) is correct. The claim might fail for other reasons, but (D) is the better of the two No answers.
Some courts have accepted the touching of cigarette smoke as sufficient to constitute harmful contact,
but intent requires either purpose or substantial certainty that the smoke will reach a person's body.
Because Elise thought she was alone, she could not have believed that the smoke would inflict harmful
contact upon Johanna.
Answer (A), though true as far as it goes, is incorrect because it neglects the lack of intent on Elise's part.
Answer (B) is incorrect because it is not true: Elise thought she was alone and so lacked intent to inflict
harmful contact on anyone.
Answer (C) is incorrect because an actor can be liable for battery if the elements of battery are met,
even if the actor failed to accomplish what he or she wanted to achieve.
A local farmer had been providing a monthly shipment of her produce to a grocery store for the past year. Each month the grocery store sent an email to the farmer with an order, and if the farmer had the items in the correct quantities, there was no additional communication and she shipped the requested items within two weeks. If the farmer did not have what the store wanted, she called the store immediately and asked whether they would like different items or whether they would like to cancel that month’s shipment.
This month, the store sent an order to the farmer as usual. After a week, there has been no communication and no shipment by the farmer.
Has the order been accepted?
Incorrect
Answer option B is correct. Generally, the silence of an offeree is not considered acceptance of the offer. However, an exception is when the prior dealings between the parties makes it reasonable for the offeror to expect to be notified of a rejection, and in the absence of a rejection to conclude acceptance. Here, the farmer had been dealing with the store every month for a year. Because the farmer always called the store to inform the store if she would not be able to fulfill an order, it is reasonable for the store to conclude that, without a phone call, the order has been accepted.
Restatement 69
Jolinda had severe muscular dystrophy. Michael was
a nurse paid through a trust fund to take care of
Jolinda. Authorities recently found Jolinda in an
appalling condition. She appeared emaciated, with
sores from lying in bed for several weeks straight.
Although the police took Jolinda straight to the
hospital, she could not be saved and died a few days
later from malnutrition.
Under the common law, would Michael be guilty of
murder?
(A) No, because he had no duty to act.
(B) No, because he did not commit any act that resulted
in Jolinda's death.
(C) Yes, because he was obligated to take care of Jolinda
and failed to do so.
(D) Yes, because the law punishes any person for allowing
another human to live in such a condition.
Answer C is the best answer. At common law, an
omission is normally not criminal. Under most
circumstances, the criminal law does not require
strangers to act on behalf of others. A failure to act
is only criminal under the common law when a legal
duty to act exists. Such a legal duty to act can be
created by statute or by contract. Commonwealth v.
Pestinikas, 617 A.2d 1339 (Pa. Sup. Ct. 1992).
Because Michael entered into an employment
contract to take care of Jolinda, he can be held
criminally liable for his failure to care for her. Hence,
answer A is incorrect.
A failure to act can be the cause of death as much as an
affirmative act. Where there is a duty, the failure to act
fulfills the actus reus element of the crime, and no overt
act is required. Answer B is incorrect because the law only
punishes those with a duty to act in such circumstances.
Michael's failure to act, in violation of his legal duty to act,
was the cause of Jolinda's malnutrition that resulted in
her death. An omission to act is not criminal where only a
moral duty to act, and not a legal duty, exists. Societal
norms do [111/112] not define the elements of a crime.
Answer D is wrong because Michael's failure to act on a
moral duty does not make him a criminal. Here, Michael
can be found criminally liable only because of his legal
duty to act, not because he had a moral obligation to care
for Jolinda.
A state statute prohibits the wearing of headphones by any individual while riding a bicycle or
motorcycle. Shimen, a bicycle messenger, generally obeys this law but finds it very burdensome, and
one day he lapsed: While a song played loudly through his iMoozik headphones, Shimen could not hear
a stranger yell “Look out!” His bicycle hit Phreddie, a homeless person sleeping near the sidewalk, whom
Shimen hadn't seen. But for the headphones and the music playing, Shimen would have heard “Look
out!” and had time to brake or steer away safely.
Phreddie brings an action against Shimen for negligence. In a jurisdiction that follows the majority
approach to negligence per se, which of the following statements is most accurate?
(A) Because Shimen violated a statute designed to protect a class of persons including Phreddie from the
kind of harm that occurred in this case, Shimen was negligent.
(B) Because Shimen's violation of the statute is not sufficiently connected with the injury that occurred,
Shimen's violation of the statute does not make him negligent.
(C) Because Shimen violated a statute designed to protect a class of persons including Phreddie from the
kind of harm that occurred in this case, the jury will be permitted to take into account his violation in
determining whether he breached his duty of care.
(D) Because safety is only one purpose of the headphone statute, this statute cannot of itself establish
duty and breach by Shimen.
Answer (A) is correct. The statute prohibiting headphones on cyclists was almost certainly designed to
reduce the risk of injuries that could be avoided by cyclists who can hear what's going on around them.
Headphone music prevented Shimen from hearing a warning that could have avoided the collision with
Phreddie.
Answer (B) is incorrect because it is almost certain that this was the type of injury the statute was
designed to prevent. It is difficult to imagine what other type of injury the statute might have been
aimed at preventing.
Answer (C) is incorrect because, under the traditional negligence per se doctrine, violation of a statute
that meets the requirements set forth above does not present some evidence of negligence for the jury
to consider. It establishes negligence (at least in the absence of a recognized excuse, none of which
apply here).
Answer (D) is incorrect because, as long as safety is one purpose of the statute, it can qualify for
application of the negligence per se doctrine
Eldridge's great-uncle died, leaving Eldridge a Beretta handgun in his will. Eldridge tried to refuse the
bequest, but his great-uncle's lawyer told him he had to accept it and could get rid of the handgun later
if he so desired. Accepting the handgun, Eldridge saw to it that it contained no bullets. Gradually,
Eldridge grew used to this new possession and felt relaxed about it.
One evening at home, after splitting a bottle of wine with a new acquaintance, Eldridge said that he just
might shoot the acquaintance dead with a bullet to the head. He was joking. Eldridge then removed the
Beretta from the safe in which he stored it, aimed it at the acquaintance, and pulled the trigger. The
empty Beretta did not fire.
Does the acquaintance have a good intentional tort claim against Eldridge?
(A) No, because no harmful contact occurred.
(B) No, because any apprehension of imminent harmful contact on the part of the acquaintance would
not be reasonable.
(C) Yes, because apprehension of imminent harmful contact need not be reasonable.
(D) Yes, and the claim would be for assault
Answer (C) is correct. A person who forms the intent to contact and carries out the contact is liable for
battery, if the contact is unlawful. Even if the person suffers from an illness that makes her delusional or
affects her ability to recognize the impropriety of her conduct, she is liable. Here, Zebbia intended to
strike Brion. Zebbia is liable for battery.
Answer (A) is incorrect because it provides only a policy reason for holding a person suffering from
mental illness liable for battery. Zebbia cannot be held liable, however, unless she harbors the necessary
intent.
Answer (B) is incorrect because a person must commit an “act,” which in tort law means a volitional
movement. If she did not control her arm's movement, Zebbia did not commit an act. (On the facts here,
she did “act.”).
Answer (D) is incorrect because the law of intentional torts does not base liability on the defendant's
moral shortcomings if she intended to commit a contact that is sufficient (assuming the contact
occurred and it is one that society deems unlawful)
A large computer store changed its logo. The computer store orally contracted with a printing company to create new business cards, stationery, laptop bags, and other items with the new logo, at a cost of $10,000. The computer store forwarded payment in full to the printing company, which deposited the payment in its operating account. After the printing company had accepted the payment, but before beginning any preparation or any work on the job, the computer store called the printing company and said that it had changed its mind and did not want to move forward. The computer store demanded that the printing company return the $10,000. The printing company, which was facing cash-flow problems and had already applied the $10,000 payment to its other debts, insisted that the parties had an enforceable contract.
If the printing company sues the computer store, is a court likely to enforce the oral contract despite the statute of frauds?
Correct
Answer B is correct. For contracts for the sale of goods for $500 or more, there are three exceptions that allow a contract to be enforceable without a signed writing: (1) the goods are specially manufactured goods, but only if the seller has already made a substantial beginning in manufacturing the goods or made a commitment to procure the goods by the time the buyer’s repudiation is received; (2) the noninjured party admits in court that the contract was made; and (3) payment has already been made and accepted, or the goods have already been received and accepted.
Here, the parties have orally agreed to the sale of $10,000 of printed goods. As a contract for the sale of goods priced at $500 or more, the computer store’s contract with the printing company is typically subject to the statute of frauds. However, the computer store already paid, and the printing company accepted, the full $10,000 payment. Therefore, the contract falls within the third exception to the statute of frauds, under which payment has already been made and accepted. As such, a court will likely enforce the contract despite the lack of a signed writing.
Answer option A is incorrect because it incompletely states the exception. The Uniform Commercial Code’s (UCC) statute of frauds contains an exception for specially manufactured goods like the printed goods here, but only where the seller (here, the printing company) has already made a substantial beginning in manufacturing the goods or made a commitment to procure the goods by the time the buyer’s repudiation is received. Here, no facts indicate that the printing company made a substantial beginning in manufacturing the printed items, or otherwise made a commitment to procure those items before the computer store changed its mind about the contract. Therefore, the exception for specially manufactured goods does not apply. However, the contract falls within another exception to the statute of frauds because the computer store already paid and the printing company accepted payment. As such, a court will likely enforce the contract despite the lack of a signed writing.
Answer option C is incorrect. Answer option C’s recitation of the facts is correct – the printing company did not make a substantial beginning in manufacturing the printed items. Because the printing company had not made a substantial beginning or otherwise made a commitment to procuring the goods before the computer store changed its mind, the UCC’s exception to the statute of frauds for specially manufactured goods does not apply. However, another UCC exception to the statute of frauds does apply. [See reasoning above]
Answer option D is incorrect. It is not necessary for the computer store to have received and accepted any goods under the contract in order for the third exception to the statute of frauds to apply. The third exception requires only that payment has already been made and accepted or that the goods have already been received and accepted, not both. The computer store already paid, and the printing company accepted, the full $10,000 payment. Therefore, the contract falls into the third exception to the statute of frauds for contracts under which payment has already been made and accepted.
Restatement (Second) of Contracts § 110; U.C.C. § 2-201(3)
Amy and Bess were good friends until Bess “stole”
Amy's boyfriend Bernardo a month ago. Amy wanted
to “remove Bess from the picture.” Amy saw Bess at
the mall and talked things over with her. Amy said
she forgave Bess for going out with Bernardo.
Friends once again, they went out driving together.
Amy began speeding down the road, shouting with
exhilaration into the wind. Amy wrapped her car
around a telephone pole while driving at speeds in
excess of 130 mph. Bess was killed in the crash.
Is Amy guilty of murder?
(A) Yes, because driving at such high speeds shows a
complete disregard for the safety of others.
(B) Yes, because Amy previously had the intent to kill Bess.
(C) No, because Bess voluntarily got in the car with Amy.
(D) No, because Amy was having fun and did not stop to
think that they might be in an accident
Answer A is the best answer. An act that causes death
must be committed with malice in order for a person to
be convicted of murder. As noted above, malice is
defined as: (1) the intent to kill; (2) the intent to commit
serious bodily injury; (3) gross recklessness (implied
malice); or (4) a crime committed during the commission
of a felony. The malice element of murder can be
established by an act that creates a very high probability
of death or serious bodily injury. Brinkley v. State, 233
A.2d 56 (Del. 1967). Driving at extremely high speeds
creates a great probability of death. On this basis, Amy
could be found guilty of murder. Driving over the speed
limit but at lower speeds may be unreasonably risky,
which could result in a charge of involuntary
manslaughter.
Answer B is not correct because prior intent that
has been abandoned is not relevant to an act that
occurs later. Although malice can be implied from
Amy's reckless behavior, it cannot be satisfied from
an abandoned intent to kill. Bess did not have
control over the car after Amy began speeding.
One Sunday, Hank was home with his son Bobby, age 10. Bobby was bored, so Hank decided to take him
to Arlene's, a hardware store, where Hank planned to shop for a new drill. While Hank was looking over
the selection of drills, Bobby wandered away into the power saw aisle. Bobby was touching a power saw
hanging on a hook when the hook gave way and the saw fell, its blade cutting Bobby's arm. As it
happens, the hook was loose. Bobby brings an action against Arlene's for negligence. Assume the
jurisdiction follows the common law rule about plaintiffs as entrants to land. Arlene's moves for
summary judgment.
Which of the following statements is most likely correct?
(A) Because Bobby was not in Arlene's for the purpose of purchasing anything, he will be classified as a
trespasser. Because Arlene's only owed Bobby a duty to refrain from willful and wanton misconduct,
and it is clear that no such conduct occurred, the court will grant Arlene's motion for summary
judgment.
(B) Even though Bobby was not in Arlene's to purchase anything, he will be classified as an invitee to
whom the store owes a duty of reasonable care. The court will deny Arlene's motion for summary
judgment.
(C) Bobby's status in Arlene's was that of a licensee. Because Arlene's only owed Bobby a duty to warn of
hidden dangers of which it was aware, and because there is no evidence that Arlene's knew the hook
was loose, the court will grant Arlene's motion for summary judgment.
(D) Regardless of Bobby's status, the court will grant Arlene's motion for summary judgment because
Hank's negligence in allowing Bobby to wander away superseded any potential liability of Arlene's
Answer (B) is correct. Though Bobby was not in the store to conduct any business, he was accompanying
Hank, who was there for such a purpose and was therefore an invitee. Under the circumstances, it is
unlikely that Hank could have done his shopping without taking the kid along, so in a sense, his presence
in the store was necessary to Hank's doing business there. Thus, Bobby was also an invitee, to whom a
duty of reasonable care was owed. Because a question of material fact remains about whether Arlene's
exercised reasonable care in maintaining its display of power saws, summary judgment is not
appropriate.
Answer (A) is incorrect because, as explained above, Bobby was an invitee.
Answer (C) is incorrect because Bobby was not a licensee.
Answer (D) is incorrect because even if Hank negligently supervised Bobby, his negligence would not be
imputed to Bobby so as to defeat Bobby's claim against Arlene's. (Once again, duty is not implicated in
this choice.)
A five-year-old had a psychological disorder that made her think that other children were threatening her. During a delusional episode, the five-year-old bit another child. The bite broke the skin, caused bruising, and left a permanent scar on the victim’s arm. The victim’s mother brought a tort lawsuit on her child’s behalf for battery. Battery is an intentional tort under the laws of the jurisdiction.
Could the five-year-old have sufficient intent to be liable for the intentional tort of battery?
Answer option A is correct. Even though they may not be held criminally liable because of their incapacity, under the tort laws, minor children, incompetent people, and insane people can form the requisite intent to commit an intentional tort and be held civilly liable. For example, one case held that a five-year-old child could be found to have formed the requisite intent for battery, depending on the strength of the evidence. See Garratt v. Dailey, 279 P.2d 1091 (Wash. 1955). Here, the five-year-old child could have formed the necessary intent to commit the intentional tort of battery despite her age and psychological disorder. Therefore, the child is potentially liable for this intentional tort. Answer options C and D are incorrect for that same reason.
Answer option B is incorrect because intentional torts (like assault, battery, false imprisonment, and trespass) all require a showing of the mental state of intent. Although criminal liability also requires a showing of intent, note that the intent needed to commit an intentional tort is not necessarily the same as the intent that may be required under criminal laws.
An accountant placed an order with a silkscreen printer for 200 computer bags to be printed with the accountant’s firm name and logo, at a cost of $2,000. The printer gave the accountant an invoice for future payment. Neither party signed the invoice. A week later, when the printer had already completed 90 computer bags, the printer sent a sample bag to the accountant. The accountant called the printer and said, “I know we had an agreement, but please cancel the order.”
If the printer sues the accountant for payment, which of the following facts will likely be dispositive?
Answer option D is correct. The contract here is subject to the statute of frauds, because it is for the sale of goods for $500 or more. The statute of frauds requires such contracts to be evidenced by a signed writing. Here, the invoice could suffice as a “writing” that memorialized the agreement, but since the accountant did not sign the invoice, it does not satisfy the statute of frauds (making answer option B incorrect).
However, there is an exception to the statute of frauds for the sale of specially manufactured goods that are not suitable for sale to others in the ordinary course of the seller’s business, where the seller has already made a substantial beginning in manufacturing the goods at the time the seller receives the buyer’s notice of repudiation. UCC § 2-201(3)(a). Here, the printer completed close to half the accountant’s order of customized computer bags before the accountant canceled the order. This fact, since it is directly relevant to a recognized exception to the statute of frauds, would likely be dispositive
A second exception to the statute of frauds exists where the party against whom enforcement is sought admits in court to making the contract. UCC § 2-201(3)(b). Here, however, the accountant’s admission was not made in court, and therefore it is unlikely to be dispositive, making answer option C incorrect.
Answer option A is incorrect because it does not offer a fact that would support a recognized exception to the statute of frauds for a contract for the sale of goods over $500. While the Uniform Commercial Code (UCC) § 2-201(3)(c) presents an exception to the statute of frauds where the goods are received and accepted by the buyer, a single sample is not likely to suffice.
For two years, Rick had been leaving his two young daughters in the care of his
live-in girlfriend, Tamika. Though Tamika had a nasty temper, Rick loved her.
The situation worked out well for him because he worked nights and the girls
could remain at home with Tamika. One morning when he returned home
from work, his oldest daughter was on the living room floor, crying, in obvious
pain. Tamika claimed nothing odd had occurred the previous night. After the
girl’s condition did not improve throughout the day, Rick grew concerned that
she was very sick and brought her to the hospital The emergency room doctor
determined that the girl had been beaten in the abdomen and severely
injured. Tamika fled and was never found. Rick was later charged with felony
child abuse, for “knowingly subjecting a child to significant injury or neglect.”
If the state demonstrates that Rick's younger child had been treated for a
similar injury while staying with Tamika several months before this incident,
could Rick be convicted on this charge?
A) No, because Rick had no way to know his girlfriend might be
abusing his daughter.
(B) No, because it is unfair to hold Rick responsible for the actions of
his girlfriend.
(C) Yes, because the previous incident — combined with his
awareness of Tamika's temper — means that Rick knew his
girlfriend could be violent and posed a serious risk to his daughters.
(D) No, because the evidence could not establish that Rick had knowledge of serious risk
The correct answer is C. The required state of mind
for the statute is knowledge. This is interpreted to
mean that an actor can be held responsible for
injuries to his child, under the statute, if he was
subjectively aware that his child was at risk. Fabritz
v. Traurig, 583 F.2d 697 (4th Cir. 1978). The prior
similar episode, along with Tamika's known [85/86]
violent temper, would likely be enough to find Rick
guilty of the crime. In cases such as this, Rick would
be held culpable because, among other reasons, his
knowledge of the situation put him in the best
position to prevent the harm to his children.
Answers A and D are wrong because Rick did
have the opportunity to realize the threat to his
children. If, however, there were no prior
incidents to create this knowledge on Rick's
part, and Tamika did not have an especially
violent temper, answer B would be correct.