June 2004 Question 1 [Torts]
Penelope and her friends went shopping at Deals Department Stores (“Deals”). They entered Deals on the first floor and decided to take the elevator to the third floor. Penelope pressed the button for the elevator. While waiting for it to arrive, Penelope chatted with her friends with her back to the elevator door. When she heard the elevator door open, Penelope, without looking, stepped backward into the elevator opening while continuing to chat with her friends. No elevator car was present, she fell into the shaft, and dropped fifteen feet to the basement floor.
While Penelope suffered only minor physical injuries as a result of her fall, shortly thereafter she suffered an acute psychotic breakdown from which she has not recovered. Penelope’s doctors have concluded that the elevator accident aggravated a pre-existing psychological condition which has caused permanent disabilities.
Deals owns the store building and contracts with Reliable Elevator Company (“Reliable”) to maintain the elevator. Reliable also manufactured and installed the elevator. This type of accident involving a Reliable elevator has never happened before and there is no evidence of what caused the elevator car to be out of position when the elevator door opened.
1. Under what theory or theories should Penelope bring an action for recovery of damages for her injuries, and against whom? Discuss.
2. What defenses should be raised and what are the likely results? Discuss.
June 2004 Question 2 [Contracts]
GrainCo, a regional grain distributor, sent an offer to sell ten railroad cars of wheat to Processor. The entire offer is contained on a signed form. The front side of the form contains GrainCo’s name and address, along with blank spaces for the description of the goods, quantity, price, and delivery date. The blanks were filled in with the desired information. The following statement appears at the bottom of the front side of the form:
“Any contract resulting from acceptance of this offer shall consist only of those terms appearing on the front and reverse sides of this document.”
The reverse side of GrainCo’s form has six paragraphs. Paragraph five reads as follows:
“Any disputes arising under this agreement shall be resolved through binding arbitration under the rules of the Commercial Arbitration Association.”
Processor responded to GrainCo’s offer with its standard acceptance form. Processor’s form contains its name, address, and company logo embossed at the top of the page with the words “Purchase Order” just below. It has blank spaces for the description of the goods, quantity, price, and delivery date, which Processor filled in with information matching the information on GrainCo’s offer. Processor’s Purchase Order form has five paragraphs on the back. Paragraph five states:
“The laws of the State of California shall govern this agreement and any claims or controversies arising during performance shall be resolved through proceedings in the courts of the State of California.”
Processor’s Purchase Order form has a signature line at the bottom of the front side, but due to a clerical error the form sent to GrainCo was not signed. Soon after receiving Processor’s Purchase Order form, GrainCo purchased ten railroad cars of wheat from local suppliers for shipment to Processor.
1. Assume that before any wheat is shipped to Processor, the price of wheat falls sharply. If Processor informs GrainCo that it will not accept the ten railroad cars of wheat, will Processor be liable to GrainCo for breach of contract? Discuss.
2. Assume instead that GrainCo delivers the ten railroad cars of wheat to Processor, and Processor pays to GrainCo the full contract price. If Processor has a complaint about the quality of the wheat it received, must Processor submit its claim to the Commercial Arbitration Association? Discuss.
June 2004 Question 3 [Criminal Law]
After drinking heavily, Art and Ben decided that they would rob the local all-night convenience store. They drove Art’s truck to the store, entered, and yelled, “This is a stick- up,” while brandishing their unloaded pistols. They discovered that the only persons in the store were Mark, who worked at the store, and Fran, a customer. Art became enraged, since he regarded Fran as his steady girlfriend and was jealous that she had been spending time with Mark. Art announced, “We’ll chill these lovers out,” and loaded them into the truck. Art drove a very short distance down the dirt road behind the store to a large refrigerator. Art locked Fran and Mark in the refrigerator. Art then returned to the store to pick up Ben, who took $250 from the cash register on his way out of the store.
The next day, the store manager saw that things were amiss and called police, who rescued Fran and Mark from the refrigerator. Fran suffered no significant injury, but Mark soon developed pneumonia and died as a result of it several weeks later. The coroner’s report showed that Mark had an extraordinary susceptibility to pneumonia and that it was triggered by exposure to the combination of viruses and the intense cold of the refrigerator.
1. What criminal charges, if any, should be brought against Art and Ben? Discuss.
2. What defenses, if any, do Art and Ben have to the criminal charges? Discuss.
June 2004 Question 4 [Torts]
Carol stopped her car at the entrance to her office building to get some papers from her office. She left her car unlocked and left the ignition key under the car’s front floor mat while she went briefly into her office.
While Carol was gone, Peter entered Carol’s car, found the ignition key where he had seen her leave it, and started the car, intending to drive it to the hospital where his spouse had just been taken for emergency treatment. After Peter had driven the car for about a block, the brakes failed, the car hit a tree, and Peter was injured. In a dazed condition from the accident, Peter entered a nearby public building and pulled the lever of an emergency fire alarm. A city fire truck, responding to the alarm, hit and seriously injured Carol as she was emerging from her office building.
What claims, if any, do Carol and Peter have against each other, and what defenses, if any, may each assert? Discuss.
October 2004 Question 1 [Criminal Law]
Al went to Dan’s gun shop to purchase a handgun and ammunition. Dan showed Al several pistols. Al selected the one he wanted and handed Dan five $100 bills to pay for it. Dan put the unloaded pistol and a box of ammunition in a bag and placed it on the counter.
While Al was filling out the necessary registration papers, Dan went to the cash register to make change. As he was doing so, Dan noticed that the bills Al had handed him were counterfeit, and he exclaimed, “You rotten bum! You’ve given me phony money.”
At that moment, Al grabbed the bag that had the gun and ammunition in it and fled from the gun shop. Dan grabbed a loaded pistol he kept under the counter and ran after Al, yelling at him to stop. As Dan pursued Al down the street, he fired a shot into the air, and yelled, “If you don’t stop, the next shot will stop you.” Al kept running, and, as he did so, he loaded a cartridge into the pistol he had fled the gun shop with, turned, and shot toward Dan. The bullet struck and killed Dan.
1. What legal justification, if any, did Dan have (a) pursuing Al, and (b) threatening Al with deadly force? Discuss.
2. With what crimes can Al be charged, and what defenses, if any, can he assert? Discuss.
October 2004 Question 2 [Contracts]
Seller inherited a collection of antique dolls from her aunt. In her aunt’s estate, the collection had been valued at $15,000. On September 1, Seller wrote, signed, and sent the following letter to several well-known doll collectors in her area:
Dear Doll Collector:
I now own a collection of antique dolls that I’m willing to sell for $15,000 to the first person who lets me know he or she wants the collection. This offer will be good for 30 days. If you want to inspect the dolls, I’ll be happy to make an appointment. Phone me at 555-1765.
Seller
On September 3, Buyer, who was familiar with the collection, received the letter and immediately called Seller to arrange to inspect the dolls on the same day. Buyer appeared at Seller’s home and inspected and photographed the dolls. She told Seller, “I’m interested, but I want to do some research. I’ll get back to you.” Seller said, “Okay, but my letter went out to a number of other people. I’m selling to the first one I actually hear from who wants to buy the entire collection.”
On September 4, Buyer took the photographs to an expert doll appraiser and paid the appraiser $1,000 to evaluate and authenticate the collection. The appraiser told Buyer the dolls were authentic and worth at least $30,000. Buyer immediately phoned Seller, who was not at home. Buyer left a message on Seller’s telephone answering machine saying, “This is Buyer. I like the dolls. Please call me at 555-8876 when you get home.” Also on September 4, and just to be doubly sure, Buyer wrote and signed a letter to Seller stating, “I accept your offer to sell your doll collection for $15,000. Buyer,” and deposited the letter in the mail at the Post Office.
Soon after Buyer returned home from depositing the letter at the Post Office, she received a phone call from Seller. Seller said, “I got your voice mail message. However, I just want to let you know that I’ve had an appraisal made of the collection, and I’m not willing to let it go for less than $35,000.” Buyer responded, “You can’t do that. I accepted your offer of $15,000, so you have to sell it to me for $15,000.”
Was an enforceable contract formed binding Seller to sell the doll collection to Buyer for $15,000? Discuss.
October 2004 Question 3 [Torts]
Prof is a professor of torts and commercial law at University Law School (“ULS”). Prof’s employment contract with ULS requires him to teach a certain number of hours, conduct research, publish scholarly works, be available for consultation with his students, and engage in community service.
Dave, one of Prof’s students and research assistants, applied for a summer job with the State Office of Youth Assistance, an agency that houses and counsels troubled youths. Dave asked Prof to write a letter of recommendation for him. Prof agreed and wrote a letter recommending Dave highly and in unqualified terms. He sent the letter to the Office of Youth Assistance in a sealed envelope marked “Confidential.”
Prof knew that the job for which Dave had applied required the incumbents to be in frequent close and unsupervised contact with young children. Prof also knew at the time he wrote the letter that Dave had admitted during a confidential disciplinary investigation by ULS that he had molested his girlfriend’s young daughter and that Dave was undergoing counseling related to the incident. Prof did not mention anything about this in the letter because he did not want to hurt Dave’s chances of getting the job and because he was convinced that Dave would not repeat his conduct.
Dave was hired by the Office of Youth Assistance. Toward the end of the summer, while conducting a private interview with a six-year-old girl, Dave succumbed to temptation and attempted to molest her. The girl’s screams attracted the attention of Gina, a youth counselor working nearby. Gina ran to the rescue, but the stress of the situation caused Gina to suffer a debilitating heart attack.
Gina sues Prof and ULS for negligent misrepresentation, alleging that Prof is liable because of his neglect in failing to disclose what he knew about Dave in his letter of recommendation and that ULS is liable under the doctrine of respondeat superior.
Prof moves to dismiss Gina’s suit on the grounds that (i) he owed no duty of care to Gina to disclose what he knew about Dave and (ii) even if did have such a duty, his breach of the duty was not the proximate cause of Gina’s injuries.
ULS moves to dismiss Gina’s suit on the ground that ULS cannot be held vicariously liable because writing letters of recommendations for his students was outside the scope of Prof’s employment duties as a professor.
How would a court be likely to rule on each ground of the motions filed by Prof and ULS to dismiss Gina’s suit? Discuss.
October 2004 Question 4 [Criminal Law]
Dan intensely disliked his co-worker, Mona, with whom he was in direct competition for an important promotion at work. He knew that Mona and her husband, Otto, had a troubled marriage and that Otto suspected Mona of infidelity. He also knew that Otto had a very bad temper when provoked.
Hoping secretly that it would provoke Otto to kill Mona, Dan told Otto that he had seen Mona and another co-worker in a compromising position in the storeroom on several occasions. Believing what Dan told him, Otto went to Mona’s workplace and hid in the storeroom. As he waited, he became angrier and angrier with each passing moment. When Mona entered to get some supplies, Otto jumped out from behind a cabinet, flew into an uncontrollable rage, yelled “Dan has told me what you do when you come in here. I’m going to kill you,” and began to strangle her. Mona’s screams attracted a security guard, who subdued Otto and freed Mona.
Dan and Otto have each been charged with solicitation of murder, conspiracy to commit murder, and attempted murder.
Do the facts support each of the charges against Dan and Otto, and what, if any, defenses might they each assert? Discuss.