STATE v. DEBBIE
1) Assault
An assault is an act which causes an immediate apprehension of a harmful or offensive contact.
In this case, the state may argue that when Debbie pointed the gasoline dispenser at Vickie, while shouting at her, Vickie could have reasonably apprehended an unlawful and offensive contact, i.e., being sprayed with gasoline.
Debbie has committed an assault.
2) Battery
Battery is an act which causes a person to suffer a harmful or offensive contact. The state may argue that spraying Vickie with gasoline, soaking her hair and clothes, constituted a harmful and offensive contact. Debbie has committed a battery, but it will merge with the crimes discussed below.
3) Homicide
Homicide is the death of a human being, which is caused by another human being.
In this case, Vickie was burned to death, so there is a death of a human being.
4) Actual Cause
But for Debbie's act of spraying Vickie with gasoline, she would not have been burned to death, so Debbie is the actual cause.
5) Proximate Cause
The state will argue that a personal being burned to death is the foreseeable result of spraying them with gasoline. Debbie will argue that it was Jon's cigarette that ignited her clothes, which constitutes an independent intervening act which broke the issue of causation.
Debbie's argument will fail, especially if she could in some way tell that Jon was smoking a cigarette, i.e., saw smoke or smelled smoke. Debbie is the proximate cause of Vickie's death, and is therefore responsible for her homicide.
6) Murder
Murder is an unsuccessful homicide, with malice aforethought. Malice is established by showing:
1) An intent to kill, or
2) An intent to cause great bodily injury, or
3) The death resulted from an awareness of and conscious disregard for a high risk to human life, or
4) The death resulted during the commission of an inherently dangerous felony.
There is a homicide as discussed above. In this case, the state may argue that when Debbie yelled, “You're not marrying anyone, you slime,” and then sprayed Vickie with gasoline, she demonstrated an intent to kill, or an intent to cause great bodily harm.
The state may also argue that by spraying gasoline onto a person, Debbie demonstrated an awareness of and disregard for a high risk to human life (Depraved Heart). The state will be able to establish malice.
7) First Degree Murder/Second Degree Murder
Murder that is willful, deliberate and premeditated is First Degree Murder, Second Degree is other types of murder. If the state can convince a jury that in the brief seconds between seeing Jon and Vickie and spraying her with gas, Debbie decided to kill her, They will establish First Degree Murder.
The state will have a difficult time showing that Debbie reflected upon her act, so she has probably committed second degree murder under a depraved heart theory.
8) Voluntary Manslaughter
Voluntary manslaughter is an intentional killing of a human being, where malice is mitigated by adequate provocation. To be adequate, the provocation must be sufficient to enrage the passion of a reasonable person, and the defendant must actually be provoked. Additionally, there must not have been enough time for a reasonable person to “cool” down, and the defendant must not have actually “cooled” down. If the state cannot prove murder, it may argue that Debbie intended to kill Vickie, but that she was provoked by seeing Jon and Vickie passionately kissing in the car next to her. Seeing a boyfriend kiss your best friend is sufficient to enrage the passion of a reasonable person, so Debbie's provocation is reasonable.
Additionally there was a break in time between Debbie witnessing the incident and her actions so she did not cool down, nor is there sufficient time for a reasonable person to cool down.
Debbie has committed voluntary manslaughter, if the state can show an intent to kill.
9) Involuntary Manslaughter
Involuntary manslaughter is an unintended homicide that results from criminal negligence, or the commission of an unlawful act, not amounting to an inherently dangerous felony.
Debbie may argue that at most she has committed an involuntary manslaughter, because she did not intend to kill Vickie, and that Vickie's death resulted from Debbie's criminal negligence or the commission of a battery.
If Debbie did not intend to kill, she may have committed an involuntary manslaughter.
10) Attempted murder—Jon
An attempt is a substantial step beyond preparation toward the commission of a crime, with the specific intent that the crime be committed. The state may argue that when Debbie sprayed gas on Vickie, while Jon was seated next to her, smoking a cigarette, she took a substantial step toward killing Jon also. However, there are no facts to suggest that Debbie intended to kill Jon, so the state will not be able to prove an attempted murder of Jon.
I. What law applies: Uniform Commercial Code (UCC) or common law?
The UCC is the governing law for the sale of goods. Goods are movable items and do not include services, real estate, or intangibles. Here, the governing law is the UCC.
2. Is Seller a merchant as defined by the UCC?
The UCC defines merchant as someone who trades the types of goods in question or holds themselves out to be knowledgeable regarding the goods. Here, Seller is a television set retailer and is clearly a merchant. Note: Seller's salesperson, since acting within the scope of her/his
employment, binds Seller Sets, Inc. to any contracts/offers, etc., that she makes (respondeat superior).
3. Did Buyer and Seller have a contract for the sale of a TV set for $300?
A contract consists of an offer, an acceptance, and consideration. An offer is a manifestation to be presently found or committed, communicated to specific offerees, with definite subject matter and material terms. Under the UCC, quantity and subject matter are generally the only two terms required.
Offer
Here, the salesperson clearly offers Buyer the television set for $300.
Acceptance
Acceptance is the manifest willingness to be presently bound to a valid offer. It can be express or implied. Under the UCC acceptance can occur by a means stipulated by the offer, or if no such means is provided, in any reasonable manner.
Here, Buyer clearly does not accept Seller's offer because Buyer states that she would like to “shop around.”
Therefore, as of the time of the Buyer's first visit to Seller Sets, there is no contract between Seller and Buyer.
4. Did Seller make a Merchant Firm Offer to Buyer?
Under the UCC, an offer can remain open if supported by consideration (an options contract) or if a merchant firm offer is made. A merchant firm offer occurs when a merchant makes a signed writing to keep an offer open. The offer remains open for the stated period of time not to exceed three months or for a reasonable period of time if no time is stated, again not to exceed three months.
Here, Seller is a merchant as discussed above. Seller wrote on the T.V. sales brochure that described the set “Seller Sets, Inc. $300.” Buyer will argue that this is a signed writing because of Seller's handwritten note. Seller, on the other hand, will argue that Seller's writing is not a signature. In general, the UCC favors contracts and a trier of fact may determine that Seller's handwritten notes with the words “Seller Sets” constitutes a signing.
Here, no specific time is given for the length of the firm offer. Seller will argue that the printed phrase “Available for a limited time only” suggests only for a period of time in which Seller has inventory. Also, this phrase suggests a short period of time. Buyer, on the other hand, would argue that one week, the time in which the Buyer returned, is within a “limited time” and furthermore one week is within a reasonable time as contemplated by the UCC, which cuts off firm offers without consideration at three months.
Because one week is a reasonable time for holding open an offer to sell a TV, Seller must keep its offer open for one week.
Therefore, Seller gave Buyer a merchant firm offer that was open for at least one week.
Detrimental Reliance
In the event that Seller was not found to have made a merchant firm offer, Buyer may argue that she detrimentally, reasonably, and foreseeably relied upon Seller's statement that T.V.'s at $300 would be available.* If so, this detrimental reliance in effect provides the consideration to keep Seller's offer open.
*Here, in addition to the facts pertaining to the merchant firm offer, Seller says Buyer will not find anyone that can beat Seller's price.
5. What damages can Buyer recover if Seller violated its merchant firm offer?
Assuming a merchant firm offer was made by Seller that stayed open for a week, Seller broke that offer when Buyer returned a week later to purchase the TV (Salesperson tells Buyer TV out of stock and could not sell Buyer one at $300.)
Expectation Damages
Parties to a contract are awarded expectation damages—damages to make them whole so that they receive the benefit of their bargain. Under the UCC, when a seller breaches, by not providing the goods to buyer, buyer can cover, that is purchase an identical or equivalent good and the seller owes the buyer expectation damages equal to the difference in prices. Here, Buyer covers her purchase by buying an identical TV two months later at a $150 increase in price ($450 - $150). Seller may argue that Buyer waited too long to cover herself and, if TV prices increased during this time, Seller should not have to pay for such increases. Here, there are no facts to support this and therefore Seller owes Buyer $150 in expectation damages.
Consequential Damages
Consequential Damages may be awarded to the non-breaching party if at the time of contract formation (in this case the merchant firm offer) the non breaching party makes clear to the breaching party that there are special circumstances that would not be obvious that would cause harm if the
contract were breached.
Here, Buyer does not tell Seller that the TV is necessary to retaining customers at Buyer's service station, and Seller would have no reason to know this. Furthermore, Buyer could have covered much sooner than two months in order to mitigate damages (that is, loss of customers to the service station). In addition, Seller would argue that Buyer's consequential damages are too speculative, too remote, and cannot be reasonably determined by a court because it would be hard to determine whether the lack of a TV resulted in a specific number of customers not using Buyer's service station. Therefore, Buyer will not recover consequential damages.
I. Anna's Crimes
A. Conspiracy.
A Conspiracy is where two or more people agree/intend to commit an unlawful act and do something in furtherance of the act. Here, after hearing of Anna's money, Bob suggested that they hire someone to burn down the warehouse since Bob wanted to build condominiums on the
warehouse property and they could both use the insurance proceeds. Their conspiracy was complete once Bob contacted Cindy to burn down the warehouse—they have now done an act of doing something in furtherance of their unlawful act. Both (sic) Bob, Anna and Cindy will be charged with conspiracy to burn down (arson) the warehouse.
1 Pinkerton's Rule.
This rule states that all co-conspirators will be responsible for the unlawful acts of other co-conspirators done in furtherance of the conspiracy. Here, Anna will be held responsible for all acts done by Bob and Cindy to further their unlawful conspiracy.
B. Solicitation.
Solicitation is when one encourages, asks, incites another into committing an unlawful act. Here Anna would be charged with the solicitation of Cindy because Bob asked Cindy to burn down the warehouse. However, when Cindy agreed she then merged the crime of solicitation into conspiracy.
C. Attempted Insurance Fraud.
To be charged with the crime of attempt the defendant must specifically intend to commit the unlawful act and do something in furtherance to show that the defendant actually intended the crime. Here, Anna will be charged with the intent to commit insurance fraud. Because Anna and Bob agreed to commit arson in order to collect insurance money. The attempt will be considered complete when Bob asked Cindy to burn down the warehouse and Cindy set fire to the warehouse as instructed. Even though Anna and Bob decided not to make any insurance claims they will still be charged with attempted insurance fraud. It was because Daryll the homeless man was killed that they did not want anyone to be suspicious of them. And possible guilt of him dying that caused Anna and Bob to not go through with their insurance claims. Anna will be charged with attempt to commit insurance fraud.
D. Arson is when the defendant intentionally burns down the house of another. Modernly, basically all structures are included, including one's own business or property in order to collect insurance money. The burning must be at least some type of charring to suffice, blackening will not. Here, Cindy set the fire to the warehouse and we assume that it was burned because it was significant enough to cause Daryll's death and burning also qualified because Anna and Bob could collect insurance claims. The burning of the warehouse was intentional as Anna and Bob conspired to have it burned down by asking Cindy to burn it down for a percentage of the insurance proceeds.
Anna also burned her own property (business inventory) and the burning is supposed to be of another's property. However if one commits arson with the intention of collecting insurance money then this qualifies as arson because Anna did so for illegal purposes. She also destroyed other people's property that was destroyed in the warehouse.
E. Murder.
A homicide is the unlawful killing of another human being. It will be considered murder if malice is proved.
1. Malice.
Malice will be proved if any of the following four elements are met: 1) intent to kill (premeditation and deliberation); 2) intent to seriously injure; 3) wanton and willful conduct (depraved heart); and 4) a killing done in connection with a dangerous felony . Here, the state would most likely focus on a killing done in connection with a dangerous felony as this element and intent to kill/murder the defendant is eligible for a first
degree murder charge.
2. Felony-Murder.
Felony murder is charged when the defendant kills another human being in the course of a dangerous felony. For a felony to qualify the felony must be considered extremely dangerous so as to show dangers to other people. Most jurisdictions list dangerous felonies as a killing during the commission of arson, rape, robbery, burglary or a kidnaping. It does not matter that you did not intend to kill another person but because of the dangerous situation involved in committing the felony a death could foreseeably occur because of the defendant's actions.
Here, Anna conspired to commit the crime of arson, burning down the warehouse and by doing so she was committing a dangerous felony when Cindy went ahead and set fire to the warehouse. Because fire is considered dangerous, a chance of loss of life is easily foreseeable, then
Anna will be charged with the felony murder of Daryll.
1. Involuntary manslaughter. Anna will claim that by her planning to burn down the warehouse and Cindy burning it down that they did not intend that Daryll would die. That the fire was an act of criminal negligence and the felony-murder charge should be reduced to involuntary manslaughter. However, this is an unlikely defense because Anna planned on committing arson which qualifies as a dangerous felony because it was foreseeable that another person might be seriously injured or die because of their actions.
II. Bob's Crimes.
A. Conspiracy. See supra. Bob will be charged with the crime of conspiracy as proven in the discussion above under Anna.
1. Pinkerton's Rule. Supra. Bob is a conspirator and has coconspirators. He will be charged for any crimes by his co-conspirators in furtherance of the crimes.
B. Solicitation. Supra.
C. Attempted Insurance Fraud. Supra.
D. Arson. Supra.
E. Murder. Supra.
1. Felony Murder. Supra.
2. Involuntary manslaughter. Supra.
III. Cindy's Crimes.
A. Conspiracy. Supra.
1. Pinkerton's Rule. Supra.
B. Attempted insurance fraud. Supra.
C. Arson. Supra.
D. Murder. Supra.
1. Felony Murder. Supra.
2. Involuntary Manslaughter. Supra.
Jean v. Mugger
1. Issue—Is Mugger Liable to Jean for Tortious Assault?
Under common law, assault is the voluntary act with intent to place another in immediate apprehension of a battery (harmful/or offensive contact). Here Mugger, expressly “threatened” Jean by saying, “Hand over your purse or I'll beat you up.” This express threat is sufficient and of which Jean was aware to cause a reasonable person in immediate apprehension of being beat up (harmful/offensive contact). Therefore Mugger will be liable to Jean for assault.
2. Issue—Is Mugger liable to Jean for Tortious Battery?
Under common law, battery is the voluntary act with intent to cause harmful/offensive contact and does cause such contact. Here, Mugger used his threat to obtain the purse. Because Jean actually held her purse out to him, rather than him taking it by force (no harmful/offensive contact occurred), Mugger will probably not be liable for battery.
3. Issue—Is Mugger liable to Jean for Conversion?
Conversion is the unreasonable interference with another person's chattel to sufficiently dispossess them of it. Here, Mugger's interference is the crime of robbery (Trespassory taking and carrying away of personal property of another with the intent to permanently deprive for the person/presence of through the use of force or fear). Because his words and actions expressed that he intended to take and keep the purse, which he in fact did, Mugger will be liable to Jean for conversion.
Jean v. Craft Village
4. Issue—Can Craft Village be liable to Jean for negligence?
Negligence is the failure to use due care that a reasonable person would use in the same or similar circumstances. A prima facie case of negligence requires the showing of the elements of duty, breach, actual and proximate cause and damages.
5. Did Craft Village owe Jean a Duty?
Under common law, the duty owed is that of reasonable or due care under most situations where there is a duty owed. Normally there is no duty to strangers, absent a special relationship or statute. Where duty is owed by relationship, varying standards of care may be imposed depending on the nature of the relationship. Here, at minimum, the town is required to use due care in the protection of their citizens and visitors.
6. Did Craft Village owe Jean a higher standard of duty?
Craft Village is a town [in] which streets are open to the public. Jean's status as a public invitee (licensee) requires that the town exercise a higher standard of care. The standard required is to warn of known dangers. If the town knew or should have known they had a problem with crime, they have a duty to warn/repair.
7. Did Craft Village breach their duty?
Breach occurs when the defendant fails to use reasonable care. Here, the town provided street lighting which may be viewed as a reasonable care to deter crimes which often happen in the dark, such as robbery. The town also required all businesses to remain open until 8:00, that could be to ensure that there are a lot of people around during “core” hours, which provides another level of protection from crime. However, if Craft knew or should have know they had a crime problem, and these security features they've employed (lights, hours) are not sufficiently reasonable to mitigate the threat of crime, they may be found to have breached their duty. Absent their knowledge of the crime, Craft will not be found to have breached.
8. Was Craft Village actions the legal/proximate cause?
Unless it can be found that Craft Village failed to act reasonably in the protections it provided, the town itself is not the legal or proximate cause of Jean's mugging, the mugger is. Therefore the town will not be held responsible.
Jean v. Northwoods
9. Issue—Can Northwoods be liable to Jean in negligence?
Negligence and its elements are discussed above. Northwoods may owe a duty to its customers to discover and repair all known dangers. Here, Jean only made it halfway to the store, so she wasn't on the premises. However, Northwoods is the only store that stays open until 11:00 pm at night. Therefore if it can be found that Northwoods' late hours are not reasonable for the safety of its customers, they may owe a duty to warn its customers of potential dangers to include criminal activity in the area.
ACTUAL CAUSE — is the “cause in fact” of the harm done.
PROXIMATE CAUSE
—is the legal scope of responsibility. Under Palsgraf, Cardozo asserted that one is responsible for those plaintiffs in the zone of danger, however, Andrews asserted a duty to one is a duty to all. Here, the Mugger is the “But, for” or cause in fact of Jean's mugging (Damages). However, if Northwoods' late hours are a substantial factor in her mugging (Jean wouldn't have been on the street after 8:00 because the other stores close then), and on the street to the store is sufficiently within the zone of danger, then Northwoods may be found to have had a duty which they breached.
Jean v. Snooze Inn
10. Can Snooze Inn be liable to Jean for negligence?
Negligence (see supra). As an innkeeper, Snooze Inn owes a duty of care to its patrons. Jean was a patron of the hotel as she stayed overnight for two days. The standard of care of innkeepers is determined by a special relationship under which Jean was an invitee. Under this standard, the hotel will have a duty to warn of all known dangers, including a danger of criminal activity if they knew or should have known. Absent the knowing of this fact, Snooze Inn, there are no facts to show that Snooze failed to act reasonably. Therefore, they will not be liable to Jean for Negligence.
11. Does Northwoods/Snooze/Craft have a defense of assumption of the risk?
Assumption of the risk is when a person knows and appreciates the nature of risks inherent to an activity and assumes that risk by voluntarily proceeding with the activity. Here, Jean, as a visitor, may not have known of the crime potential in the town. However, the fact that all but one of the stores close at 8:00 pm may be an indicator that the town does not want people on the streets after that time. The fact that Northwoods was open until later may negate that logic. If a reasonable person would not walk in the streets after 8:00 because of obvious dangers or risks (especially to a woman traveling alone), the business and hotel may be able to assert the defense of assumption of the risk. Assumption of the risk is a complete bar to the plaintiff's recovery.
12. Does Northwoods/Snooze/Craft have a defense of comparative negligence?
At common law, a person has the responsibility to act reasonably for the protection of their own self. Here if Jean was not acting reasonably in walking alone, after dark, on an unoccupied street, the hotel/business may be able to assert comparative negligence which is a partial bar to recovery. Jean's recovery will be apportionately reduced by the percentage of fault attributed to her. In some jurisdictions, comparative fault is a complete bar, if the percentage of fault of the plaintiff is half or more (51%).
WINDCO v. SAM
Does the UCC Apply?
The UCC applies to all contracts for the sale of goods. Goods are moveable, tangible property.
Here, the subject matter is shown to [be] predominately goods because “installation comprises 15% of Windco’s total price.” Therefore, the UCC applies.
Merchants?
A merchant is one who regularly deals in goods of this kind or who, by his occupation, has some special skill or knowledge as to this type of goods. Here, “Windco manufactures and installs insulated window-frame units” and Sam, “a commercial dealer,” likely has special knowledge of windows. Therefore, both parties are merchants.
Valid Contract
In order to determine if any rights exist we first must determine if there is a valid, enforceable contract. A contract consists of an offer, acceptance, consideration and lack of formation defenses.
Offer
An offer is manifestation of present contractual intent, communicated to an identified offeree, containing definite and certain terms. Here, Windco’s ad will be considered only an invitation to accept offers. When Sam mailed this order form he made an offer to Windco, containing terms (30 window frames @$100/frame). A reasonable person would believe Sam made a commitment to enter a contract because of this information. Therefore, there is a valid offer.
Acceptance and Acceptance With Addition[al] Terms UCC2-207
An acceptance is an unequivocal assent to the terms of a[n] offer, unlike common law, where the acceptance must be the “mirror image.” The UCC allows additional terms.
At issue here are the terms Sam first added to his offer guaranteeing installation within 15 days. Windco’s acknowledgment of order altered this term guaranteeing installation “within 60 days.” As between merchants any additional term will become part of the contract unless the contract limits it to its own terms, there is an objection within 10 days, or the term materially alters the contract.
Here, while Sam wanted installation within 15 days, the question arises if this qualifies as a time is of the essence condition. Because Sam did not object upon receiving Windco’s acceptance with additional terms, it likely will be held that this is not a material term. And this term will become part of the contract.
Shipping cost language will not be a material term as “shipping costs are customarily borne by the buyer.”
Warranty disclaimers are valid if conspicuous and use the term merchantability. Therefore, unless a court finds the installation date guaranty to be a material term, all of these terms will become part of the contract.
Consideration
Consideration is a legally sufficient, bargained-for exchange. Here, there appear to be no consideration issues as Sam is to pay money, Windco
is to provide window frames which neither were legally obligated to do.
Defenses-Statute of Frauds (SOF)
Under the statute of frauds certain contracts must be evidenced by a writing to be enforceable. Contracts for goods of $500 or more fall under the statute of frauds. Such contracts can be taken out of the statute of frauds by performance. Facts here state “Windco installed the windo[ws].” Therefore, this contract can be taken out of the SOF.
In any case, because there are documents authenticated by both parties (mail order form by Sam & acknowledgment of order by Windco) that are writings sufficient to bring the contract within the statute of frauds.
Therefore, the statute of frauds will no[t] prevent this contract from being enforceable.
Unconscionability
Unconscionability arises if there can be shown both procedural and substantive unconscionability.
Here, Windco’s form stated “contract of sale subject to terms herein.” Sam may attempt to claim this is substantively unconscionable, however to be procedurally unconscionable a party must show a lack of bargaining power. Nothing in the facts indicates that Sam could not have purchased window frames elsewhere. Further, to be substantively unconscionable the term must be one-sided. On these facts there is no indication Windco was greatly or significantly in a position to make such a windfall.
Therefore, unconscionability will fail as a defense.
There is a valid enforceable contract.
Terms and Conditions
As shown above Windco performed by installing the windows. This condition precedent was fulfilled. It therefore falls upon Sam to meet his obligation or be in breach.
Breach
When one does not fulfill their obligation under a contract or excuse a condition they are in breach.
Here, Sam’s refusal to pay the $200 shipping fee is a breach. As noted above, this term became part of the contract because as shown by the usage in trade such a cost is “borne by the buyer.” Sam must pay the $200.
At issue here is the disclaimer of warranty discussed above. Often disclaimers of warranty can be material. However, as shown above, this disclaimer met the requirement of “bold & conspicuous” type and expressly mentioned “merchantability and fitness.”
Therefore, Sam will have no claim under either warranty or merchantability claim or a warranty of fitness for a particular purpose. In fact, Sam did not indicate a particular purpose at time of contracting so as to become a basis of the bargain.
Remedies
As discussed above, Windco will receive the full contract price plus the $200 shipping fee.
However, if Sam can demonstrate that the late installation did cause the “several delay-related expenses” th[at] he claims this will be considered a minor breach (usually timely performance is not a major breach and, as shown above, this contract does not qualify as a “time is of the essence” contract).
Therefore, Sam will be able to offset the delay-related costs against the contract price, thus reducing his payment by that amount, because Windco will be found to have substantially performed. The court abhors a waste and will reduce Sam’s debt by the difference between what the building now is worth and what it would have been worth if the contract was fulfilled as expected.
STATE V. DAN (D)
AGGRAVATED ASSAULT
Assault is either a substantial step toward an intended battery or the intentional
placing of another in reasonable apprehension of imminent bodily harm. Modernly,
an aggravated assault is an assault committed with a deadly weapon.
Here, the facts indicate that D shot at Vic (V), intending to wound him. If V was
apprehensive of being shot, D will be guilty of assault. Additionally, because D shot
at V with a deadly weapon, a gun, D will modernly be guilty of aggravated assault.
D will be guilty of aggravated assault. However, the assault will merge with the
subsequent homicide.
AGGRAVATED BATTERY
Battery is the unlawful application of force to the person of another. Modernly, a
battery is aggravated if it is committed with a deadly weapon.
Here, D intended to wound V by shooting V in the leg. However, the bullet actually
killed V by striking him elsewhere. Under the doctrine of transferred intent, D will
be guilty of the battery because the intended harm was criminal, and there is great
similarity between the intended harm and the harm that actually occurred.
Furthermore, because D used a gun to batter V, D will be guilty of aggravated
battery.
D will be guilty of aggravated battery, though it will merge with the subsequent
homicide.
HOMICIDE OF V
HOMICIDE is the killing of a human being by another human being. Here, the facts
indicate that D killed V by shooting at V with a gun. There is a homicide.
CAUSATION - ACTUAL CAUSE
But for D shooting at V, V would not have died.
CAUSATION - PROXIMATE CAUSE
It is foreseeable that shooting to someone with intent to injure could result in a
death.
MURDER
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Murder is an unlawful homicide committed with malice aforethought. Malice
aforethought may be proven under any of four theories.
1) INTENT TO KILL - Intent requires the conscious desire to cause the criminal
result. The facts indicate that D only intended to wound V, not kill V. Thus, D did
not have the specific intent to kill.
2) INTENT TO INFLICT SERIOUS BODILY HARM - Here, the facts indicate
that D shot at V with the intent to hitting [sic] V in the leg. Shooting someone in the
leg is likely to cause serious bodily harm and the facts indicate that D intended to
wound V. Under this theory, then, D intended to cause serious bodily harm.
3) DEPRAVED HEART ACT - A depraved heart act is a wanton and reckless
disregard for the value of human life. Here, D shot at V in a public place with an
intent to wound V in the leg. Shooting someone in the leg present[s] numerous,
dangerous risk[s] to his welfare and court[s] normally hold that any act that [is] likely
to cause serious harm to others is a depraved heart act if the risk is disregarded.
4) APPLICATION OF THE FELONY MURDER RULE - A killing will be felony
if it 1) occurs during the res gestae of a dangerous felony or a felony committed in
a dangerous way, 2) is foreseeable, and 3) is independent of the target crime.
Here, the State will not bring a charge of felony murder, because the only predicate
felonies would merge with the crime. Because of public policy reasons, courts
refuse to apply felony murder to felonious assaults and batteries, otherwise, strict
liability for first degree murder would result from each killing.
Having found malice under the theories of 2) intent to inflict serious bodily harm,
and 3) depraved heart act, the State will proceed as follows.
FIRST DEGREE MURDER
First degree murder is an unlawful homicide committed with premeditation and
deliberation and specific intent to kill. Premeditation and deliberation may be
proven by application of the felony murder rule, or a killing by poison, bomb, torture,
or ambush.
Here, the facts indicate that D lacked the specific intent to kill and the felony murder
rule will not apply. The State will not bring a charge of first degree murder.
SECOND DEGREE MURDER
All murder not raised to the first degree shall be second degree murder.
Here, because the State proved malice under two theories, but did not raise the
charge to first degree murder, the State will bring a charge of second degree
murder. Because the State established malice under 2) intent to inflict serious
bodily harm, and 3) depraved heart act, D will be guilty of second degree murder
absent a defense.
D will be guilty of second degree murder.
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VOLUNTARY MANSLAUGHTER
Voluntary manslaughter is an intentional homicide committed with malice, but with
mitigation. Mitigation may be proven by adequate provocation or mistaken
justification.
Here, D may try to claim that he was provoked into shooting V. However, the first
element of adequate provocation requires that a reasonable person be provoked
by the conduct. Here, a reasonable person would not have been provoked by V’s
approach, so V may not claim provocation. Additionally, D may claim that his
defense of self-defense is imperfect and results in a charge of voluntary
manslaughter. As discussed infra, D will raise a defense of self-defense, and this
defense will be imperfect. A court may apply this rule of mitigation to lessen the
offense to voluntary manslaughter.
The State may bring a charge of voluntary manslaughter. D will be guilty of
voluntary manslaughter if he succeeds in mitigating his crime by an imperfect selfdefense
claim.
INVOLUNTARY MANSLAUGHTER
Involuntary manslaughter is an unintentional homicide that results from 1)
application of the misdemeanor manslaughter rule, 2) intent to inflict non-serious
bodily harm, 3) criminal negligence.
Here, D will try to mitigate his charge by claiming that the homicide was only
involuntary manslaughter. D will claim that he only intended non-serious bodily
harm and the killing was accidental. However, court[s] consistently hold that any
intent to harm with a deadly weapon infers an intent to inflict serious bodily harm.
Additionally, D may claim that he was only criminally negligent, not reckless. D’s
claim may work depending on the surrounding situation of the terrain.
The State may charge D with the lesser included offense of involuntary
manslaughter.
DEFENSES TO HOMICIDE
SELF-DEFENSE
Self-defense [is] the actual and reasonable apprehensions of bodily harm.
Here, D may claim that he believed V would harm him. However, this belief is not
reasonable, because a reasonable person would not have assumed V’s approach
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meant V intended to do harm. Furthermore, D used unreasonable force because
V was not threatening any harm.
D’s claim of self-defense will fail, but may constitute an imperfect self-defense that
mitigates the homicide, as discussed supra.
INSANITY - M’NAUGHTEN RULE
The defendant is entitled to acquittal, if at the time of the crimes and as a result of
a mental condition, he 1) did not know the nature or quality of his act, 2) or that his
act was wrong.
Under this rule, D may claim that he believed V was going to attack D and kill D. If
D subjectively held this belief, then he would have been permitted to defend himself.
Even though this believe was unreasonable, in jurisdictions applying the
M’Naughten rule, D may not have believed his act was wrong.
D may be able to escape guilt under the M’Naughten rule.
INSANITY - MODEL PENAL CODE
Defendant is entitled to acquittal if at the time of the crime and as a result of a
mental condition, he 1) lacked the capacity to conform his conduct to the
requirements of the law, or 2) did not know his act was wrong.
Even though D was capable of conforming to the requirements of the law, he may
claim that he did not know his act was wrong, because he believed he needed to
defend himself. In jurisdictions holding to the MPC insanity position, D would need
to prove he did not know his act was wrong.
D may avoid guilt under the MPC test for insanity.
IRRESISTIBLE IMPULSE TEST
Defendant is entitled to acquittal if his crime was the result of an irresistible impulse
that overcame his will.
Under this test, D would need to prove he was unable to control himself when he
shot V. This test would probably not provide a defense because D could have
controlled himself, he just thought he needed to defend himself.
D will probably be guilty in jurisdictions applying the irresistible impulse test.
DURHAM RULE
Defendant is entitled to acquittal if his crime was the product of a mental defect.
Here, D’s crime appears to be the product of a mental defect. That is, D believed
V would kill D because of a delusion.
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In the minority of jurisdictions that apply the Durham Rule, D may avoid guilt
because the crime was the product of mental defect.
WELLS-GORSHEN RULE
Under the Wells-Gorshen rule, insanity defenses that do not give rise to absolute
defenses may negate the mens rea requirement of a crime.
Here, D may claim that he lacked the mens rea to commit murder because he
thought V was going to do harm to D. However, under the malice theories, the
State proved that D intended to harm V. Even though D thought he was acting in
self-defense, he still intended this harm.
The Wells-Gorshen rule will not apply here.
DIMINISHED CAPACITY
Here, D may try to argue that his delusions diminished his capacity to form the
intent to commit murder. This rule only applies in a small minority of jurisdictions
and usually is applicable only to negate the mens rea of a crime. Here, D is not
seeking to negate the mens rea.
Diminished capacity will not apply.
Contracts
This is a contract primarily for services and will be analyzed using common law
principles. Debbie is a photographer and contract is for services - taking the
photographs (not for the photos themselves) for common law. UCC rules discussed
when they apply only. (Uniform Commercial Code).
I. Don v. Debbie - Enforceable Contract?
A. Formation
1. Mutual Assent
a. Offer must contain subject matter, definite terms, and intention
to be bound. Here, Jon called Debbie and discussed the 10
photos and their purpose, the terms, and expressed intention
to be bound. Offer is valid.
b. Acceptance. Must be a mirror image agreement to the offer
and express the intention to be bound. Here, Debbie accepts
Jon’s offer, and both agree to the specific terms.
c. Consideration. Is a bargained for exchange of legal detriment.
Here, Debbie agrees to take pictures in exchange for Jon’s
payment of money. Consideration is adequate.
II. Defenses
A. Statute of Frauds - (SOF) valuable and easily misunderstood
contracts must be in writing.
1) UCC $500 Rule - In order for the contract to be enforceable, it must
be in writing if the value of the goods is more than $500 (valuable).
Here, under UCC, a writing is necessary. But because this contract
is primarily a services contract, it would be enforceable without a
writing.
a. One year rule - Both UCC and Non-UCC. If a contract, at time
at formation, cannot be performed within one year, a writing is
necessary for the contract to be enforceable. Here, (hopefully)
Jon can lose 50# in less than one year, and this rule does not
apply. The contract is valid without a written contract.
b. Impossibility/Impracticability
If there are intervening events that occur which are
unforeseeable, the performance is excused (leg. [sic] illegality
destruction of subject matter, death/incapacity of the parties).
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Here, Debbie became uncomfortable when she found out that
Jon’s spa was a nudist camp. She would try to assert that
being uncomfortable once was enough; the second time was
impossible for her.
c. Mistake
When âDebbie did not know that Jon’s spa was a nudist
camp, ãJon did not tell her that it was a nudist camp, and
äneither party knew (at formation) that Debbie was not
comfortable in the nudist camp, there was a mutual mistake.
The contract is voidable by either party.
Unilateral mistake - If Jon could argue that Debbie should have
known or asked about certain circumstances that precluded
her work, he can prevail on this issue.
If Debbie can show that Jon should have told her that his spa
was a nudist camp, Debbie would prevail. The mistake is
chargeable to the more unreasonable party.
d. Detrimental Reliance - Promissory Estoppel
Partial performance - Jon would argue that there was a partial
performance by Debbie and that he relied reasonably and
detrimentally that Debbie would finish the job.
e. Modification
At common law, modification requires additional consideration.
At UCC, only good faith is necessary. Consideration
substitutes can be used, e.g. detrimental reliance, supra.
Here, Debbie wishes to modify contract from $1,000 for 10
photos to $500 for 5 photos. She can prevail at common law
if she can show additional consideration, or, at UCC, good
faith. But Jon has no consideration. This modification is not
valid.
III. Can Jon require Debbie to take “after” pictures?
A. Delegation of Duty - Courts favor assignment and delegation. The
delegation must be with the consent of the obligee or must not be to
his detriment. Here, if Jon does not want to give consent for
delegation of duty to Debbie’s assistant, he must show that there is
diminution in value of the services.
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B. Personal Services - Contracts are not assignable. If Jon can assert
that Debbie’s services were so personal that her duties cannot be
delegated, he would prevail. Debbie would argue that photography
is not like a portrait and that an equally qualified photographer (such
as her assistant) could perform just as well. However, courts are
reluctant to enforce specific performance on personal service
contracts. Damages would likely be in expectation damages.
IV. Is Debbie entitled to a $500 payment at this time?
A. Express v. Constructive Conditions
All express conditions must be completely performed to avoid breach.
Constructive conditions must be substantially performed to avoid
breach. Here, the question would be whether there was an express
(v. constructive) condition that the total job would need to be
completed before payment in order to avoid breach. The courts won’t
likely construe this to mean the entire contract.
B. Divisible Contract?
If Debbie can successfully argue that the contract consisted of 2 parts
(before and after) she would be entitled to partial payment for partial
performance. This is not a divisible contract and Jon would prevail.
C. Modification valid?
No, for inadequate consideration, supra.
D. Quasi - Contract Recovery
In order to avoid unjust enrichment the court considers recovery in
Quasi-Contracts. Traditionally, only the non-breaching party could
recover. In modern law, the breaching party could also recover if the
breach were not willful and in good faith. Here, Debbie would be able
to recover $500 for value of the before photographs, because her
breach was in good faith.
V. Damages under UCC
1. Seller’s breach - When seller breaches, the buyer is entitled to market
price minus contract price. Alternatively, buyer can “cover.”
A buyer is entitled to seek replacement from another buyer and sue
the seller for the difference.
Child v. Zoo
Strict Liability
Owners of trespassing wild animals will be held strictly liable (no fault need be
shown) for damages proximately caused by the animals.
Zebra a Wild Animal?
A wild animal is one that is not domesticated (does not serve man). A zebra is a
wild animal because its only use is to be displayed in a zoo. This zebra is from a
zoo and thus is considered wild.
Causation.
The damage to the child was both actually (BUT-FOR TEST) and proximately
(LEGALLY) caused by the zebra because the zebra bit off the child’s fingers [sic].
But for this biting, the child would not have lost his fingers [sic]. There are no
superseding causes.
Damages.
The child lost his fingers [sic].
Defense.
Because contributory negligence is not a defense to strict liability, the only question
is whether Child assumed the risk.
ASSUMPTION OF RISK requires plaintiff to understand the nature and extent of the
risk and to disregard that risk. Here there is no evidence that Child apprehended
a risk when approaching the Zebra. Indeed, Child’s offer of candy was a friendly
gesture that showed Child probably was comfortable and had no idea that his
fingers were in danger.
Therefore Child did not assume the risk of injury.
Domestic Animal?
Zoo could try to claim that, like a horse, a Zebra is a domestic animal, and as such,
Zoo would not be strictly liable unless the zebra had known dangerous tendencies.
However, this claim should be dismissed because a zebra only looks like a horse;
they [sic] are not, however, domesticated.
Under the facts Child should be able to recover from Zoo in Strict Liability.
Negligence?
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Negligence is conduct that falls below the standard of care set by law to protect
others from unreasonable risk of harm.
Here Child may also assert a claim in negligence if he can show that Zoo breached
an owed duty to him, actually and proximately causing Child’s damages.
Vicarious Liability
Under the doctrine of RESPONDEAT SUPERIOR Zoo will be liable for torts
committed by its employees if they act within the scope of their duties.
Here the maintenance employee was doing his duties, cleaning up, when he threw
the rag into the hot room. Zoo will be liable for any tort arising from this act if it is
tortious.
Duty.
Zoo owes a duty to act as a reasonable zoo. In addition, as possessor of land, they
owe a duty not to harm others outside their land by activities on the land.
Breach.
Under Cardozo from the Palsgraf decision a duty is owed to all foreseeable
plaintiffs, generally within the zone of the activity. Here it is foreseeable that an
escaped Zebra would run into civilians and so Zoo was under a duty to be very
careful this wouldn’t happen.
Here Zoo breached this duty in possibly several ways.
1. First, Child could argue that Zoo’s employee was negligent in not realizing
that a rag soaked with a flammable liquid could spontaneously combust in a hot
enclosed room. This, however, is a poor argument because most maintenance
men do not have that understanding of physics and chemistry.
2. Second, Child could claim that Zoo did not build a strong enough fence to
keep the zebras penned in. This is not so strong either because the force from the
broken water main probably exceeded any natural force that could reasonably be
foreseen. But if the fence was not strong for normal wear and tear Child could show
breach here.
3. A third argument, much better, is that Zoo has a duty to notice when wild
animals escape and has ready plans to round them up or tranquilize them if they do
escape. Here it seems Zoo did nothing while the zebra ran away.
Therefore Zoo has breached its duty to control its animals.
Causation.
Zoo might claim that the Child’s offer of candy was superseding cause that breaks
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the chain of proximate causation. However, Child would have to be doing
something independent and unforeseeable for Zoo to prevail. While carrying candy
is not a response to an escaped zebra, it is not unforeseeable that a child should
have candy, nor is it unforeseeable that such a child might offer it to the zebra.
Damages.
Discussed supra.
Defenses.
CONTRIBUTORY NEGLIGENCE is conduct by the plaintiff that fails to conform to
the standard of care set by law for the plaintiff’s own protection.
Here a CHILD STANDARD OF CARE applies. Child will be expected to act as a
reasonable child of similar age, experience, and education will act in similar
circumstances.
Here Child’s behavior is typical of a “young child” and is therefore not negligent.
ASSUMPTION OF RISK fails for the similar reason as discussed supra.
Therefore Child could also recover for his damages under Negligence theory.