1. Explain the social utility theory of private property rights.
Private property rights should be protected so that the owners will be motivated to invest labor and money in it to bring it to its highest value use for society. The person who could make best use of a thing should be the one to own it. (pg. 37)
2. A subterranean cave lies directly below two separate farms. Dick owns one farm, and Jane owns the other. However, there is only one entrance and it is on Dick's farm. Dick has invested a great amount of effort in fixing up the cave into a tourist attraction. Jane, claiming that she owns the part of the cave beneath her property, seeks to exclude Dick from her portion of the cave. Should Jane be allowed to exclude Dick from the portion of the cave under her property? Why? What theories of property best describe your answer?
Jane should not be able to exclude Dick, because since the only entrance is on Dick's property, only Dick could make use of the cave. It is in best interest of society that Dick be awarded property rights to the cave because he is the only person who can make valuable use of it. A person should only own what he can take from the earth and use for his own profit or happiness. To allow Jane to take property rights to the cave would allow her to hold out indefinitely in any negotiations between the two because Dick has already expended great effort. Dick should be rewarded for taking a previously worthless cave and turning it into a profitable business, thus benfiting society in general. Under both the social utility theory and the labor theory, Dick should be allowed to continue to exploit the cave without trespassing on Jane's property. (Edward v. Sims)
3. Why should the finder of a meteorite be allowed to take possession of it from the owner of the land in which it fell and was buried?
Since it fell from the sky, it would be a new piece of property, which would not belong to anyone until it was found and claimed. The finder has expended effort to recover the meteorite, and probably only did so in expectation of being able to take the meteorite for his own profit. To encourage persons to discover previously unclaimed property and bring it to social use, the finder should be rewarded for his efforts. (Note 2 to Goddard v. Winchell, dissenting, pg. 95).
4. Explain the doctrine of accretion. What is the policy behind it?
If a person's land is bounded by a stream, gradual deposits of soil over time will both bring new soil to his land, and wash soil away to deposit it on another's land. As long as these deposits are gradual and not sudden, the soil becomes the property of the person who owns the land where it comes to rest. This doctrine promotes stability in property rights because it prevents landowners from making claims to soil which was moved as a result of natural forces against which they took no precautions. (Note 2 to Goddard v. Winchell, pg. 95)
5. (T/F) A valuable pool of oil lies partly under land owned by Dick, and mostly under land owned by Jane. Dick has the money to build an oil derrick, and drills straight down into the oil and begins pumping. As he pumps, the oil that was previously under Jane's land moves under Dick's land and gets pumped out. Dick has stolen Jane's oil.
False. Underground oil is mineral ferae natural and therefore not the property of anyone until it is reduced to possession. It is the nature of oil to move based on pressure and gravity. The person who expends the labor to extract it should be rewarded with possession. (Note 6 to Goddard v. Winchell, pg. 96).
6. While riding his motorcycle in the desert on the outskirts of Glamis National Park, Dick discovered a covered wagon partially sticking out of the side of a sand dune. Apparantly it had been buried by some hundred year old storm, and was only now being exposed due to constant wind erosion. In the back of the wagon was a locked chest which was so heavy, that Dick suspected it was full of gold. Unable to open the chest, Dick rode back to camp intending to come back with tools in the morning. Unfortunately, tools are hard to come by in the desert, and due to his work schedule, it was several weeks before he could return to get the chest. However, when he arrived at the wagon, Dick found Jane placing the chest in her dune buggy. Does Dick have title to the chest? Why or why not?
Dick does not have title to the chest because he only discovered the chest. In order to obtain title to lost, abandoned, or previously unowned property, a person must have intent to possess, and actual taking. Dick had intent, but he did not take action sufficient to be deemed actual taking. Dick should have expressed his intent by warning others away with some type of marking, and then made persistent efforts to reduce the chest to possession. By waiting several weeks to return, Dick was not making diligent or persistent efforts to reduce the chest to possession. (Eads v. Brazelton, pg. 96).
7. Why should the person who discovers lost, abandoned, or previously unowned property not obtain title to the property if he cannot reduce it to possession?
To reward mere discovery with the exclusive rights of ownership would provide no incentive for the discoverer to invest the time and effort required to actually reduce the property to possession, and return it to a socially useful purpose. (Note 4 to Eads v. Brazelton, pg. 100).
8. (T/F) Physical touching required to satisfy the requirement of actual taking when attempting to obtain title to newly discovered property.
False. What is sufficient for actual taking depends on the nature of the discovery and the circumstances surrounding it. Generally, to satisfy the actual taking requirement a finder must have: 1) expressed intent to possess, 2) means to possess, and 3) persistent effort to possess. To require physical touching would encourage physical fighting as competing finders wrestled for the property. (Class notes 9/1)
9. Dick is an avid mountain biker. While riding through the Peñasquitos Canyon Preserve, Dick found what appeared to be a stolen VCR behind a bush. Thinking to himself, "finders keepers", Dick took out a classified ad in the newspaper offering it for sale. Jane replied to his ad, and came over to see it. While looking it over, Jane noticed that the serial numbers had been removed, and figured that it was stolen. Figuring that she had just as much right to the VCR as Dick, Jane refused to give the VCR back, and instead drove off with it. Which of the following is true:
A. Jane was right in taking the VCR because the original owner was unknown, and so she had just as much right to it as Dick.
B. Dick has exclusive rights to the VCR against the world because he found it in a public place.
C. Dick has exclusive rights to the VCR against all but the original owner because he discovered it and reduced it to possession.
D. Jane has exclusive rights to the VCR against all but the original owner because possession is 9/10ths of the law.
C is the correct answer. A person who finds lost property in a public area has exclusive rights against all but the original owner, even if the property is suspected stolen (Armory v. Delamirie and Bridges v. Hawkesworth, pg. 100, class notes 9/6).
10. Why should a person who has "found" a ring be allowed to possess it against all but the rightful owner, even if it suspected stolen?
The original owner is more likely to be able to track down his stolen property if the law prevents a string of thefts, and leaves possession with the original thief. Additionally, this prevents the possessor of property from having to take extra precautions to guard all property for which he does not have good proof of ownership, thus frustrating the transferrability of property to its highest value use.
11. If the owner of the ring in Armory v. Delamirie shows up after the court has given judgement for the chimneysweep, does the owner have an action against anyone? Who? Why?
The owner has an action against the jeweler. The chimneysweep was awarded title by judgment to the ring, however, his rights were imperfect. He did not have rights against the original owner. Thus, when the jeweler was forced to pay the value of the ring to the chimneysweep, he gained only the rights that the chimneysweep had. Therefore, the original owner can recover from the jeweler, and the jeweler ends up paying twice for the same ring.
12. Dick frequently takes the bus between San Diego and Los Angeles. One day as he is getting up from his seat, he notices an expensive watch on the floor at his feet. He asks around the bus, but nobody knows who the real owner is. Satisfied that he has done all he should do to find the owner, Dick pockets the watch. However, the bus driver refuses to let Dick leave the bus without turning over the watch to him, and says, "I'm the guy in charge of this bus. Whatever is found in it belongs to me." Who should retain possession of the watch? Why?
The issue here is whether the floor of the bus is a public place or a private area subject to the positive control of the bus line. Although the bus is privately owned, and only ticketed persons can ride in it, unless the bus line has a manifest intention to assert custody and control of lost articles, it is a public place because large numbers of the general public are passing through it on a daily basis. To award possession to the bus line, there must be some evidence that the bus line regularly searched for and recovered lost articles on the bus. If the bus driver has any right at all to the watch, it is only as an agent of the company. (Parker v. British Airways Board, pg. 104).
13. Why is it better to give possession of lost articles which have been found in private areas to the landlord of the premises as opposed to the finder?
The landlord who exerts positive control over his premises should be given possession of lost articles which are found there for two reasons. First, the original owner is more likely to be able to recover the lost property from the landlord because of reliance on the owner's good will towards his guests. Second, it creates a perverse incentive for persons other than the owner to rifle through the private possessions of the owner, looking for property to which the owner may not have a solid claim. (Class notes 9/13). In this arena, we value exclusivity of property rights of the owner of the premises over the rights of the finder.
14. Dick sells antique furniture at the swap meet. One day, a customer, Jane finds a Mickey Mantle rookie baseball card in mint condition which appeared to have fallen into a slot in between the drawers of a child's dresser. Jane, realizing the value of the card, attempts to slide it quietly into her purse, but Dick notices and demands the card back. The police come and take custody of the card pending a court determination of possessory rights between Dick and Jane. How should the court rule? Why?
Dick never knew that the card existed until Jane found it, so any possession that he had was solely by possession of the dresser which contained it. Such a possession does not itself confer a right. Furthermore, Dick cannot claim that the swap meet was a private area under his positive control, and it is very unlikely that the original owner will return to claim the card. Jane brought the lost item back to valuable social use. (Durfee v. Jones, pg. 107). However, in this particular case, since Jane attempted to steal the card, we should not reward her with any rights.
15. Dick is 10 yrs old. While walking through an alley on his way home from school, Dick notices a plain envelope on the ground. He picks it up and opens it, and finds several one hundred dollar bills inside. Because he is afraid that he will get in trouble, he hides it in a trash can and then runs back to school to ask his teacher what he should do. The teacher asks to see the money, and Dick leads him to it. The teacher helps Dick to bring the money into the police station according to the local estray statute. If the money goes unclaimed, who should get the money?
Both Dick and his teacher should share equally in the money. Although Dick originally found the money by himself, and the teacher would not have found it if Dick had not shown him where it was, it was the teacher's help that brought the money back into social use. Therefore, the money was not "found" in a legal sense until it was taken from the trash can by both the teacher and Dick as joint finders. (Edmonds v. Ronella, pg. 107).
16. How does mislaid property differ from lost property, and what policy implications does the difference have on the possessory rights of the finder?
Mislaid property is different from lost property in that "the former is property which the owner intentionally places where he can again resort to it, and then forgets." It is more likely that the owner of mislaid property will remember where he put it, and return for it later. Thus, the owner is more likely to be reunited with his property if possession is given to the owner of the premises where it was mislaid, rather than to the finder. Even though the finder brought the property back to good social use, it is likely that the owner would have returned anyway. (Schley v. Couch, pg 111).
17. Match the following bailments with their respective duties of care:
A. Gratuitous bailment
1. Diligent care
B. Bailment for benefit of bailee
2. Reasonable care
C. Bailment for mutual benefit
3. Slight care
Gratutious bailment = Slight care
Bailment for benfit of bailee = Diligent care
Bailment for mutual benfit = Reasonable care.
18. Dick and Jane are shopping at Nordstrom during their Christmas break. While shopping, Jane inadvertently leaves her purse near the piano player. When the piano player goes on break, he notices the purse and takes it to the lost and found where it is put in a cubby hole behind the counter to await claiming. Near the end of the day, Jane comes to the lost and found and sees her purse. At first she is relieved that it has not been carried off by strangers, but soon she is horrified because the gold nuggets that she had found in the desert (back in question 6) were missing. Should Jane be able to recover against Nordstrom for the missing gold? Why or why not?
A voluntary bailment for the mutual benefit of both Nordstrom's and Jane was created when the piano player turned the purse over to the lost and found. Nordstrom attracts business in part by providing the lost and found service to ease customer's fears of losing personal property which is inadvertently left behind. Nordstrom therefore owns a reasonable duty of care to protect the purse and any reasonably foreseeable contents until the purse is reclaimed. Although it may not be reasonable care to put a purse in a cubbyhole behind a counter, gold nuggets are not reasonably foreseeable contents of a lost purse. To hold Nordstrom liable would motivate them either to rummage through all purses they find to determine what the actual contents were so that they could be adequately protected, or to cancel their lost and found policy altogether. Thus, for privacy and security reasons, Nordstrom should not be held liable. (Shamrock Hilton and notes pg. 124).
19. (T/F) Dick and Jane go to the beach. Dick gives Jane a ring to hold while he goes surfing. Jane, however, is unaware that the stone is a valuable opal, and so lays it on Dick's beach towel while she goes for a walk. When Jane returns, she notices the ring is gone just as Dick comes in from the surf. However, Jane has nothing to fear; she is not liable for the loss because she did not know the ring was valuable.
False. (Peet v. Roth Hotel, pg. 124). "One who accepted possession of a ring...was a bailee even though he was unaware that the ring was very valuable." A voluntary bailment was created. Although it may have been entirely gratuitous, Jane still owed a duty of slight care. By placing the ring in full view, and then leaving it unattended while she went for a walk, Jane probably did not exercise even "slight care" of the ring.
20. Dick is too shy to propose to his girlfriend Jane in person, so he hands the diamond engagement ring to his friend Bob to deliver to Jane on his behalf. Bob has never seen Jane before, but Dick says, "There are two blond girls named Jane at the ∆∆∆ house. She's the prettier one." Bob apparently has a different idea about beauty than Dick because he gives the ring and the proposal message to the wrong Jane, who promptly accepts. Dick sues Bob for conversion. Should Bob be liable even though he was innocent in his intentions?
Yes. When Bob accepted the ring, a voluntary bailment was created. A voluntary bailee has the duty to deliver the bailed article to the right person. Delivery to the wrong person is not excusable by any showing of good faith or innocence on the part of the bailee. (Cowen v. Pressprich, pg. 125).
21. (T/F) An involuntary bailee is not liable for intentional damage to the bailed property.
False. Both voluntary and involuntary bailees have an absolute duty not to intentionally damage the bailed property.
22. Which of the following is NOT a characteristic of a bona-fide purchaser?
A. The purchase must be in the ordinary course of business from a person who deals in the sale of that commodity.
B. The purchaser must have no knowledge that the property has voidable title.
C. The purchaser must take reasonable steps, based on the surrounding circumstances, to verify the title before buying.
D. None of the above.
D is the correct answer. Each of A-C is a characteristic of a bona-fide purchaser. (UCC §2-403, and definition of "good faith").
23. Dick grew tired of the watch that his father gave him 20 years ago, and wished to buy a new one. Dick went to Jane's Watch Shop to purchase a new watch. He was so excited about the new watch that he bought, that he forgot to take his old watch with him when he left the shop. Jane discovered the watch on the counter, and immediately realized that it was a valuable antique. She placed it in the sale display case, and it was bought by Bob, a customer, the next week. Later on that month, Dick's new watch broke, and it was then that he realized that "the good old watch that Dad gave him" was missing. When he returned to the shop, Jane offered him the money she made from the sale, but Dick demanded the watch. Can Dick recover the actual watch from Bob? Why or why not?
Assuming that Bob is a bona fide purchaser, he would have good title to the watch if Dick had entrusted the watch to Jane. However, when Dick left the watch in Jane's shop, it became mislaid property. "Entrusting" requires delivery and acquiescence in retention of possession. Dick did not deliver the watch to Jane, he mislaid it. Furthermore, Dick did not acquiesce in Jane's possession. When he realized the watch was missing, he returned to the shop to get it. Jane only acquired rights against all but the original owner, and even if Bob was a good faith purchaser, he could not acquire good title from Jane. Thus, Dick can recover the watch from Bob. (UCC §2-403).
24. Jane owns a baseball card shop. Dick enters the shop as a customer and charges $500 to a MasterCard to buy back the Mickey Mantle rookie card of question 14. The following day, Jane finds out that the credit card had expired, and feels foolish for not validating Dicks credit at the time he "bought" the card. She goes to the swap meet and finds Dick, who says that he already sold the card to the car audio guy who sets up next to him. Can Jane recover the card from the car audio guy? Why or why not?
Assuming that the car audio guy is a bona fide purchaser, he would have good title to the card. The car audio guy was under no obligation to verify the title of the card before he purchased, and swap meet vendors sell all kinds of miscellaneous items, including baseball cards. When Dick defrauded Jane, he gained a voidable title to the card, which was then perfected upon sale to a good faith purchaser. (UCC §2-403). It is better to let the title remain with the bona fide purchaser, because Jane was in a better position to avoid the loss. Futhermore, the smooth functioning of commercial transactions seems to require that bona fide purchasers be protected from claims of ownership by third parties.
25. How do recording statutes affect rights between original owners who were defrauded and subsequent purchasers?
A recording statute protects the original owner from losing out to a subsequent purchaser who has not verified proper title by examining the title record. It does not add any requirements to the UCC definition of good faith purchase, but helps define what a good faith purchaser is under those circumstances. Recording statutes are common for land because they promote stability and security in real-estate. They are also common among autos because they are easy to steal and very mobile. (Sheridan Suzuki, pg. 134, and class notes 9/15).
26. Jane inherits an antique chair from her grandmother. Assuming it to be valuable, she takes it to Dick's Antique Furniture Store to have it appraised. Dick says he's busy, but that she should leave it out on the floor where he can take a look at it later. Jane does so, and leaves to get her hair done. Bob, one of Dick's salesmen, sees the chair and assumes that it is part of the delivery that came in this morning, and happily sells it to a customer. When Jane returns, she sees the customer walking out of the store with "her" chair. Can Jane recover the chair from the customer?
Assuming that the customer is a bona fide purchaser, Jane is prevented from recovering it under the doctrine of bona-fide purchase. Jane entrusted the chair to Dick, who is a dealer in that commodity. Therefore he could transfer good title to a bona fide purchaser. (UCC §2-403 and class notes 9/15).
27. (T/F) A person who has lost the ability to recover property due to adverse possession still has the right of "self-help" to retake by peaceable means if he can.
False. The adverse possessor, after satisfying all the elements of adverse possession, obtains good title to the property against the original owner. The statute of limitations not only extinguishes the right of recovery of the original owner, but also vests good title in the adverse possessor.
28. Name the requirements of adverse possession.
1) Actual possession; 2) Uninterupted possession; 3) Open and Notorious; 4) Hostile and Exclusive; 5) Statute of Limitations must have run; 6) (Optional) Good faith claim of right (Class notes 9/22).
29. Why should an adverse possessor be given good title to a property?
By allowing adverse possession, property which would otherwise go unimproved or abandoned can be brought to valuable social use. Additionally, it promotes long-term security and repose in property rights by putting an end to latent lawsuits. It frees up otherwise encumbered property to be freely transferred. (Class notes 9/20).
30. Every morning for the past 20 years, Dick has driven his beat up old VW-bus onto Jane's beachfront property in San Clemente. He eats breakfast, changes clothes, and goes for a 2 hour surf session. When he returns, he eats lunch, brushes his teeth, and goes to law school. One day, Jane becomes tired of waking up every morning to the sound of his car, and decides to block his access across her land to the beach. Dick brings her to court claiming that he has good title to the access way by adverse possession. Assume the statute of limitations in California is 15 years. Should Dick win? Why or why not?
Dick would lose. To gain title by adverse possession, the possession must be continuous. Dick only possesses the property for a short period of every day. Furthermore, it must be hostile and exclusive. Under these facts, one could argue that Dick's possession was not exclusive because it did not prevent Jane's use of the same land during the same time period, and it may not have been hostile because Jane may have permitted it. It was also not under a mistaken claim of right. Additionally, as a matter of policy, Dick did not add any value to the land or bring it to a better social use.
31. Dick is a reclusive hermit. He would rather spend time alone than suffer the inconveniences of society. He hatches a slick plan to build himself a cabin in the middle of a forest owned by Jane. According to his calculations, if he can come and go under the cover of darkness for the next 20 years, although it may be inconvenient, he can obtain title to the land in and around the cabin by adverse possession. Is Dick correct?
Probably. By building a cabin, Dick's possession would be open and notorious, even if Jane did not have actual notice of the cabin. The court would probably say that she had constructive notice because a cabin is something that a property owner should notice. Even though Dick, the person, may be hiding, the cabin is not hiding. Under these facts we can assume that his possession was hostile and exclusive.
32. Old Mac Riley owns an avocado grove in Fallbrook. For as many years as he can remember, groups of migrant workers have camped in the southwest corner of his grove year-around while they work the avocado harvest in the general area. Being a compassionate man, Riley never took any action to remove them, and even brought them extra clothing every year during the winter. One day, Riley got an offer to sell his land for a large profit, and so he did. The new owners were not as tolerant, and ordered the sheriff to have the workers removed. Assuming the statute of limitations has run, can the workers avoid ejectment by claiming adverse possesion?
No. Under these facts, the migrant worker's possession of the land was permissive. Futhermore, there may have been several successive possessors who were not in privity with each other.
33. About 20 years ago, Riley owned a pair of garden gnomes that he set out in his garden, near the edge of his property. He always liked those cute little gnomes, and was disappointed the day he discovered that they were missing. He reported them stolen to the police, but that was the end of his search. One day last week, while walking through the neighborhood, he noticed out of the corner of his eye that Amber, whose house was across the street from his, had his gnomes set up in her garden. He brought suit to recover the gnomes. Amber claimed that although she could not remember where the gnomes came from, she should have title by adverse possession because she had displayed them in her garden for the last 20 years. Assuming the statute of limitations is 6 years, should Riley be able to recover the gnomes?
Amber's possession was actual, continuous, and hostile and exclusive for 20 years. However, under the discovery rule, a cause of action will not accrue until the injured party discovers, or by exercise of reasonable diligence and intelligence should have discovered, the identity of the adverse possessor. By diligently pursuing their goods, owners may prevent the statute from running. When the property is of moderate value, such as in the case of garden gnomes, filing a police report is sufficient. Assuming that the gnomes were not stolen, the critical issue in this case is whether displaying the gnome in her garden put Riley on constructive notice of her adverse possession. If the gnome
Kenya Property Law Question Paper
Tort Revision Paper
1. Match the following holdings with the cases that they represent:
A. In Re Polemis 1. A person may not recover for damages
caused by another's negligence unless he is a
member of a foreseeable class of victims.
B. Palsgraf 2. A person may recover for unforeseeable
damages as long as the damages are the direct
result of the other's negligent act.
C. Wagon Mound 3. A person may only recover for damages
that are a foreseeable result of another's
negligent act.
1. A. 2; B. 1; C. 3.
2. Jim owns a tuna boat moored in San Diego bay. On a calm day, it comes loose from it's moorings Assume that the mooring lines were negligently tied, even for good weather. The tuna boat drifts out into the bay where it crashes violently into the bay bridge. The collision sparks a fire onboard the tuna boat. Within minutes, the fire reaches the tuna boat's engine room. The resultant explosion sends tremendous shock waves across the bay, shattering Annette's bayside condo's windows. The flying glass cuts her face severely. May Annette recover damages from Jim under the rule in Polemis? Under Palsgraf? Under Wagon Mound?
2. Annette's injuries were the direct result of the explosion, which was caused by Jim's negligence. However, it is unlikely a court would find that flying glass injuring a bayside resident was a reasonably foreseeable result of negligently mooring a tuna boat, or that it was reasonably foreseeable that bayside residents inside their condos would be injured at all. Under Polemis, the actual injury does not need to be foreseeable as long as it was: 1) the direct result of the negligent act, and 2) foreseeable that the negligent act would result in some injury. Thus, under Polemis, Annette could recover against Jim. Under Palsgraf, even if the damage is a direct result of the negligent act, the injured party may not recover unless he is a member of a foreseeable class of victims of the negligence - a class to which the tortfeasor owed a duty of care. Thus, under Palsgraf, Annette may not recover against Jim because bayside residents are not a foreseeable class of victims to whom Jim owed a duty of care. Under Wagon Mound, the injured party must prove that the actual injury was a foreseeable result of the negligent act. Thus, Annette may not recover against Jim under Wagon Mound.
3. Same facts as in Question 2, but now Annette is sailing her 40 foot yacht around the bay bridge area, instead of being at home in her condo. What affect does this have on the probable outcome under Palsgraf or Wagon Mound?
3. As a boater in the bay, Annette would now probably belong to a foreseeable class of victims of an adrift tuna boat. However the foreseeable injury from an adrift tuna boat is collision with the yacht itself, not cuts due to a shock wave caused by collision of the tuna boat with the bridge. So Annette has met the "duty" and "breach" elements established by Palsgraf. Although in Palsgraf Cardozo did not comment on whether foreseeability of the actual injury was required, it is likely that he would have followed the Polemis rule and allow Annette to recover because the injury was a direct, even though the manner in which it occurred was unforeseeable. Under Wagon Mound, Annette still cannot recover.
4. Jim works in a coal mine. To get to and from the depths of the mine, Jim and his co-workers must take a platform elevator. There is a statute in the Jim's state which requires the passengers in such elevators to wear a safety harness, and to "clip" that harness to the rails of the elevator while it is in motion. Jim thinks that "clipping in" is too much trouble for a hard-workin', budwieser-drinkin', backbone-of-America guy like himself, so he merely drapes the harness over himself loosely, but does not "clip in". While riding the elevator one day, Jim's unclipped harness slips off of him and falls down to the bottom of the elevator shaft where it lands on the head of his co-worker Annette, injuring her severely. Is Jim liable to Annette for her injuries under a per-se negligence theory? Why or why not?
4. Jim is liable under per se negligence only if it was the intent of the statute to protect coal miners from objects that fall off the elevator, in addition to the obvious intent of protecting them from falling off themselves. If it was not the intent of the statute to protect coal miners from falling objects, then Jim's violation of the statute, even though negligent toward the risk of falling himself, was not a proximate cause of Annette's injury. It was only an incidental circumstance surrounding the injury. The foreseeable injury from not "clipping in" was that Jim would fall off the elevator, not that the harness itself would fall off. Thus, Annette would probably have to prove Jim's negligence in some other manner.
5. Jim is a forgetful taxi driver with a broken gas gauge. One night, after picking up Annette at the airport, he runs out of gas in a bad part of town. While Jim and Annette are walking several blocks away to get to the nearest gas station, local thieves seize the opportunity to steal Annette's valuable luggage from the locked trunk. Annette sues Jim for the value of the stolen luggage, claiming that his negligence was a proximate cause of her loss. Jim admits negligence in running out of gas, but claims that he is not liable for the luggage because he exercised his duty to lock the trunk, and cannot be held responsible for the intervening intentional tort of the thieves. Who should win? Why?
5. Annette should win because the theft was a foreseeable result of Jim's negligence. Normally, the chain of causation is broken when an intervening third party commits an intentional tort. However, the chain of causation is not broken if the original wrongdoer puts a person into a situation where the original wrongdoer should have realized that a third person might avail himself of the opportunity to commit that intentional tort. Jim should have known that running out of gas would expose his passengers to a foreseeable risk of theft. Thus, Jim's negligence in running out of gas was the proximate cause of Annette's loss.
6. What is the policy reasoning behind the law refusing to impose a legal duty to rescue a person even if the rescue can be performed successfully at minimal cost to the rescuer?
6. Arguments against imposing a duty are: 1) The higher your ability level, the less inconvenient it would be for you to rescue. This provides a disincentive to invest in activities that would make you a more effective rescuer. 2) It undermines the strength of contract law where the patient could offer the doctor an amount of money less than he normally charges, and the doctor would be forced to take it as long as the difference is small enough. 3) Careless persons would be subsidized at the expense of careful persons.
7. Give an argument for the imposition of a legal duty to rescue when the cost to the rescuer is slight.
7. There is a quasi-contractual argument such that each member of society has impliedly promised to help others in danger, in return for the promise of others to help him/her under the same circumstances.
8. Match the following duties a landowner owes to the traditional classes of persons:
A. Trespasser 1. duty to warn of hidden dangers
B. Licensee 2. duty to keep property in reasonably safe condition
C. Invitee 3. duty to refrain from willful, wanton or intentional harm
4. duty to avoid affirmative acts of negligence
8. A = 3, B = 1+3+4, C = all.
9. Ginger is 8 years old. At the end of her block is a vacant lot with an oil derrick on it. The lot is fenced off, but the neighborhood kids have bent the fence back enough so that they can slip in and out in order to play on the oil derrick. The owners of the oil derrick know that kids often play on or around it, and scare them off every time they come to turn it on. One day, Ginger is playing with some friends on the dormant oil derrick, when the owners show up. They yell at the kids to get off the derrick, and all but Ginger scurry away. Ginger is too scared to run, and instead hides in the derrick. The owners do not check to see if there are any kids hiding on the derrick, and proceed to start it up. If Ginger is then injured by the motion of the oil derrick, would the owners liable for damages? Why or why not?
9. The owners liability depends on the nature of the duty that they owe to Ginger. Ginger would probably be classified as a trespasser. As such the owners generally would only owe a duty of care to refrain from willful, wanton or intentional injuries to Ginger. However, since Ginger is a child, the owners duties may be expanded under the Attractive Nuisance doctrine which requires the owner to exercise reasonable care to protect a trespassing child from an unreasonable risk of great bodily harm presented by his machinery which he should know that children are likely to play on, as long as the cost of prevention is slight. The owners have taken some steps to prevent children from getting hurt, for instance putting up a fence, and chasing away children before they started the oil derrick. However, they have not gone so far as to physically inspect the derrick for hiding children before they started it in motion. It is likely that failing to inspect the machinery before setting it in motion would be viewed as unreasonable, since the cost of taking such a precaution is essentially zero. Even if the operation of the oil derrick was not found to fall under the Attractive Nuisance doctrine, the owners would be liable if their failure to inspect was categorized as willful and wanton, but the burden of proof would be higher.
10. What changes to the traditional approach of landowner duties did the case of Rowland v. Christian make? What was the courts justification for these changes?
10. In Rowland, the court did away with the traditional rigidity of the trespasser/licensee/invitee distinction in determining the standard of care which a landowner owed to those on his property. They held that the reason for a persons presence on the property is a relevant factor in determining the appropriate standard of care, but it was not strictly determinative. The class distinction was held to be too rigid, leading to artificial results. Furthermore, the traditional approach, which was fashioned in times where landowner status was sacred, was held not to reflect community consensus of reasonable care in the modern world. The new standard was reasonable care under the circumstances (standard negligence).
11. Jim is a surfer. While surfing on a particularly stormy day at the jetty, he notices that a lone tourist (Annette) is wandering out too far on the rocks. He says to his buddies that he bets the woman will get soaked with the next big set. Everyone agrees. On the next big wave, Annette not only gets soaked, but also gets washed over the rocks into the pounding surf. Instinctively, Jim begins to paddle over to her. None of the other surfers take any action to save Annette because they think that Jim is going to save her. Jim actually does intend to rescue Annette, but stops short once he realizes that there is a very large probability that he will get smashed onto the rocks if he gets any closer. While he hesitates, Annette drowns. Is Jim liable for Annettes death? Why or why not?
11. To be liable for a gratuitous undertaking, generally there has to be the intent (action) to rescue, and reasonable reliance by others. The presence of these two things establishes a duty on the rescuer to act with reasonable care to rescue the victim. Under these facts, Jim had the intent to rescue, and he also induced reliance of the other surfers on his actions. Thus, he had a duty of care to take reasonable steps to rescue Annette. However, it is unlikely that the court would find that Jim breached that duty by aborting the rescue because there was a very large probability that Jim would be injured severely if he continued. Although one of the other surfers might have been successful in rescuing Annette if they hadnt relied on Jim, reliance only creates a duty. Abortion of a rescue does not conclusively show breach of that duty.
12. Annette takes a trip to Tuscon, AZ. She decides to stay at the Motel 6. At about midnight, she hears a knocking at her door. She asks, "Who is it?" The voice on the other side says, "It's me. Let me in." Thinking the voice to be that of her friend, Jim, she opens the door. Tragically, it was a stranger who robs her and leaves. Annette brings an action against the Motel 6 alleging that a special relationship was created when she rented the room, and that the Motel had breached a duty of care under that relationship to provide for her safety. Should Motel 6 be liable for Annette's damages? Why or why not?
12. The issue here is the extent of the duty that a motel owes to its customers. A close analogy might be the special relationship between a landlord and a tenant, where the landlord has the duty to take reasonable steps to protect the landlord from harm in the common areas under which he has exclusive control. This would probably involve patrolling the common areas and restricting access to customers and their guests only. However, the reasons to impose such a broad duty in the case of a motel-guest relationship are not as compelling as in the landlord-tenant relationship. The motel guest, unlike the tenant, is a short-term resident who can more easily choose to stay at a safer location. There is generally less reliance on a motel to provide protection. The risk of crime is a burden that the guest customarily bears. Due to the tremendous number of people coming and going, it may be impractical for the motel to know who is a guest and who is a criminal. Furthermore, it is common knowledge that it is unsafe to open your motel room door at night without first positively identifying the visitor. Thus, Motel 6 would probably not be liable for Annette's damages.
13. What reasoning did the court in Tarasoff use to find a special relationship was created between the psychiatrist and the intended murder victim of one of his patients once he knew of the patients intent to kill her?
13. The court reasoned that although a special relationship did not initially exist between the psychiatrist and the victim, one arose when he became aware of the patient's intent to kill the victim. The foundation for the special relationship with the victim was the already existing special relationship with the patient. The special relationship with the patient was extended to include the foreseeable victims of his conduct. As a matter of policy, the court stated that the confidential relationship between a doctor and his patient was outweighed by the greater public interest in safety.
14. Jim owns a pit bull which is known to be ferocious. It has gotten loose and bitten other dogs before. Yesterday, it got loose and came into my yard, where it urinated in my flower garden and trampled my prize petunias. Jim is strictly liable to me for the damages because his dog was known to be ferocious. True or False?
14. False. Strict liability for animals applies only to personal injuries, not property injuries. I would have to prove Jim's negligence in failing to take reasonable precautions to keep his dog from escaping in order to recover for property damages.
15. True or False: Fletcher v. Rylands is one of the earliest cases involving strict liability for abnormally dangerous activities.
15. False. Fletcher v. Rylands was ultimately decided on the grounds of "non-natural" use of the land, not "abnormally dangerous activities". Don't confuse the two. It is very unlikely that keeping a reservoir of water on your land would qualify as an abnormally dangerous activity under the Restatement.
16. In determining whether an activity is "abnormally dangerous", the jury should take into account what factors?
16. Trick question. The jury does not decide whether an activity is abnormally dangerous. It is a question of law not fact. The judge, however, would need to consider the following:
1). existence of a high degree of risk of harm,
2). likeliho
Kenya Contract Law Revision Papers
1. What is the challenge of an ideal contracting system? Express your answer in terms of the risk and balance of power.
An ideal contracting system must allow parties the freedom to identify and redistribute all possible commercial risks, while regulating the balance of power between them. (Class notes 8/30).
2. In an ordinary commercial transaction, what are the pre-contractual risks of the buyer and the seller, respectively?
The buyer risks that he could pay less for the item, and that the price will go up. The seller risks that he could get more for the item, and that the price will go down. In simple terms, both risk that they could do less well.
3. (T/F) A person can contract to redistribute risks over which he has absolutely no control.
True. As in Anderson v. Backlund, where one party contracted that there would be water, essentially guaranteeing that it would rain.
4. (T/F) Both parties assume the risk of fulfilling exactly the terms of the contract, however absurd or improbable, as long as it remains possible to fulfill that contract.
True. In School Trustees of Trenton v. Bennett, the contractor was still responsible for completing the school house even after it was destroyed twice by acts of God, because there was no redistribution of that kind of risk in the contract. The parties could just as easily assigned liability for acts of God in the contract.
5. Short of specifically identifying each possible risk and assigning it between parties, what is one way a contract avoid litigation for unforeseen risks?
The contract can contain language that states that in the event of unforeseen events, such as acts of God, the parties will then submit themselves to binding arbitration. (Class notes 8/30).
6. In the absence of fraud, or specific contractual language to the contrary, who assumes the risk that the item being purchased is of a higher quality than either party had known? Buyer or seller?
The seller has the specific pre-contractual risk that he might get more money for the item in a perfect market. Thus, unless the contract specifically redistributes that risk, or the buyer is fraudulent, the seller retains that risk. For example, the woman in Wood v. Boynton risked that the jewel she sold was a diamond and not a topaz. Also, the rancher in Sherwood v. Walker risked that he was selling a cow that he did not know was pregnant. Furthermore, the shareholders in Kennedy v. Panama Mail Co., could not back out once they realized that the company was not as attractive as they had thought because they had not won a lucrative contract.
7. Why should parties not be allowed to exit from a contract when they have ended up worse overall, even greatly worse, as a result of contracting instead of foregoing a contract?
To allow parties to exit contracts because it turned out to be a bad decision would be to defeat the very nature of the contract. It would become useless as a means to regulate commercial transactions because they would no longer be enforceable. (Class notes 9/1).
8. How explicit in a your reservation of power language does you have to be to place yourself squarely within the "zone of safety" and avoid being subjected to contractual liability?
There is no amount of explicitness of language that can exempt you from contractual liability if there is contradicting language or conduct on your part designed to reasonably convince the other party that you have committed. (Class notes 9/6). For example, in Jenkins Towel, Fidelity was very explicit in stating that the final determination of the contract was up to them. However, their actions were such that Jenkins Towel was reasonable in ignoring the explicit language and relying on Fidelity's conduct. Similarly, in Mabley v. Borden, the Mabley Co. was very explicit in absolutely reserving the right to withdraw their offer of pension at any time. However, the nature of the pension document as a whole was to induce employees to remain with the company.
9. Why is the law of contract deliberately fuzzy as to when parties have crossed the line into contractual obligation?
In order to promote good faith, ethical business practices, the courts will not draw a bright line between contract and no contract. This enables them to better regulate the contracting process. The courts realize that contracting parties need room to "wiggle", but the more carefully you couch your terms and equivocate, the more likely that you will lead the other party into reasonably relying on your favorable language and conduct. Courts are quicker to step in when the risk is very lopsided.
10. (T/F) A contract is rendered invalid due to lack of consideration if the parties leave some terms open to be negotiated at a later time.
False. The fact that some matters are left for future negotiation does not preclude the finding that a binding contract was formed during the preliminary stages. In both Itek and Borg-Warner the parties left terms open to be later negotiated, and in both cases, a binding contract was enforced. It is a common equivocation strategy to attempt to reserve power to terminate a contract if some future negotiations turn sour. This enables the parties to keep on the look out for better opportunities in the future, and be able to exit from any obligations that they might already be under. However, when these actions are coupled with conduct that creates a reasonable reliance in the other party, a binding contract is formed. (UCC §2-311).
11. What is the pre-contractual risk between an unconscious patient and a doctor who has performed services upon him? What type of contract is found between them? How would a "sliding scale" based on the patient's ability to pay affect the risks?
The unconscious person risks that he will not be treated, and perhaps die. The doctor risks that he could get more money for his services. A court would construct a "quasi-contract" also known as an "implied in law" contract between them to avoid the patient being unjustly enriched at the doctor's expense. The sliding scale, if used, would determine the amount of the doctor's recovery, thus "fine tuning" the exact amount of risk redistributed between them. The more closely the recovery was fixed to the ability of the patient to pay, the more closely the transaction would resemble a normal doctor/patient relationship of the time, therefore bringing the remedy closer to expectation damages. The court in Cotnam v. Wisdom found that the sliding scale was not applicable to unconscious patients, and thus limited the recovery to restitution damages.
12. In Vickery v. Ritchie, the parties attempted to form an express contract for the construction of a turkish bath house, but they were each presented an improper price by the architect who later left. As it turns out, the construction company spent about $33,000 in materials and labor, but the resulting market value of the property dropped to about $22,000. In terms of risk and good regulatory policy, why should the court award the contractor the fair market value of his materials and labor, as opposed to the resulting fair market value of the property?
Since the bath house had already been built, the landowner had been unjustly enriched at the expense of the builder. Therefore, the court constructed a quasi-contract between the two parties. In determining the remedy, the court must determine the amount of the unjust enrichment. In making their decision, the court observed that the parties had made no redistribution of risk as to who would bear the loss if the resulting value of the property was less than expected. Since this was a pre-contractual risk to the landowner, which had never been redistributed, it was left with the landowner. Thus, the landowner was forced to pay the fair market value of the materials and services because that is how much he was unjustly enriched at the builder's expense.
13. Should a bidder for a government contract be awarded damages if his bid is not considered by the government, or if it is considered but rejected in bad faith? If so, how should damages be awarded? Does the government obtain any benefit from the bidding process?
Yes. When a contractor entertains bids under the advertisement of giving them good faith consideration, he is liable to the bidders for the cost of preparing the bid if he does not give them good faith consideration. Thus, the bidder should be awarded reliance damages. The contractor receives the benefit of getting the lowest price because of the competitiveness of the bidding process. In return, he offers the bidders the opportunity to be considered in good faith for the contract. (Heyer Products).
14. What considerations, other than the conduct of the parties involved, might a court take into account in determining the amount of damages to award in a contract case?
The court takes an active role in regulating commercial transactions. Thus, in order to encourage litigation in cases where the stakes might otherwise be to low, the court will sometimes award expectation damages. This policy sends a clear message of deterrence to potential contracting parties.
15. What is the difference between express and implied in fact contracts? Any difference at the "bottom line"?
An implied-in-fact contract differs from an express contract in the medium of expression. The express contract is in words, either spoken or written, and the implied in fact contract is in terms of conduct of the parties. Both contracts protect the expectation interest, so there is no difference in the remedy. However, the implied in fact contract can be more difficult to prove. (Class notes 9/22).
16. What special problems to contractual obligation are found in cases involving family members?
In cases involving familial relations, the courts tend to presume that the services rendered were solely due to love and affection, and not due to any deliberate contractual re-distribution of risk. The courts prefer to let the families manage risks in their own way without becoming involved unless the transaction has some commercial nature. (Class notes 9/22).
17. If two parties to a transaction leave the price open for further negotiation in the future, but then fail to reach a good faith determination of price when it comes time to negotiate, can the "contract" be enforced? If so, what should the price be set to?
Yes, the contract can be enforced. Even such an essential term as price can be left to future negotiations. If the parties fail to negotiate a price between them, then the price shall be deemed to be a reasonable price at the time of delivery. (UCC §2-305, and Sun Printing, dissent).
18. Where there is ambiguity as to the terms of a transaction in the communications between parties, how is the "mistake" most likely to be construed by the courts?
The courts will most likely construe "mistaken" language to be intentionally equivocal and not merely sloppy, so as to put a strong message forward that the burden is on the communicator to ensure that they are as clear as possible in their communications. The originator is in a better position to avoid ambiguity in communication than the recipient is to interpret it as it was "intended". To hold otherwise would create an incentive for persons to be intentionally ambiguous because they could later claim that the language was a mere "oversight". For example in U.S. v. Braunstein, the gov't made a clerical error in the price on the telegram. Although the ∆ knew it, he was allowed to exit the contract because the burden of clarity was put on the gov't. In Butler v. Foley, the letter omitted the word "subject", meaning "subject to other considerations". Had this word been present, the case would have been judged according to how broad a reservation of power was created by the word "subject".
19. Under what circumstances could silence be viewed as assent?
If the silence of one party causes the other party reasonably conclude that the other party has assented, then the silence is sufficient. The determination depends more upon the reasonable interpretation of the other party than it does upon the "intent" of the silent party. When the nature of the goods, or the market conditions surrounding those goods, requires prompt action on the part of the contracting parties, the silent stalling by one of them constitutes an action from which assent may be inferred. (Cole-McIntyre-Norfleet). UCC §2-204 provides specifically that a "contract for sale of goods may be made in any manner sufficient to show agreement", which includes silence if the facts fit, even if the precise moment of contractual commitment is unknowable.
20. Explain, as precisely as you can, the reliance principle. What measure of damages can be protected by invoking the reliance principle?
The reliance principle protects the π in the situation where the ∆s conduct could reasonably mislead the π into performing an act or forbearance, and the π is reasonably misled by that conduct. The reliance principle can be invoked to protect even the expectation interest. (Class notes 10/4).
21. The "battle of the forms" is a term for the problems that arise when the offeror and the offeree have standard contract forms that each attempt to reserve power for themselves, but are in conflict with each other. Explain how these situations are regulated under modern contract law.
These situations are regulated by UCC §2-207 which provides that additional terms in an acceptance are to be treated as proposals for addition to the contract unless the offer specifically limits the acceptance to the terms of the offer, or they materially alter it, or notification of objection to them is given within a reasonable time. Furthermore, it states that conduct by both parties which recognizes the existence of a contract is sufficient, even if the actual writings of the parties conflict.
22. What are some examples of terms that would be thrown out by a court from a form contract ?
1) Substantial reduction of a customary warranty, 2) Substantial limitation of a customary remedy.
23. How does the reliance principle come into play in Capital Savings to protect the bank customer from having to make up the difference in the mortgage payments that resulted from a miscalculation of the monthly payment by the bank?
Kenya Criminal Law Revision Paper
1. Match the following theories of criminal punishment with their respective attributes:
A. Utilitarianism 1. punish this criminal to deter other criminals.
2. punish this criminal to deter this criminal from future crimes.
B. Retributivism 3. respect the criminals free will choice to commit crime by punishing him.
4. forward looking - focus on preventing crime.
5. backward looking - focus on the crime itself.
6. punish criminal because he deserves it.
7. punish criminal to express societys disapproval of his conduct
1. A: 1, 2, 4; B. 3, 5, 6, 7.
2. What is the difference between the principle of legality and the rule of lenity? What are the policy reasons behind each?
2. The principle of legality is that there is no crime or punishment without a pre-existing law that prohibits that crime. Thus, the conduct must be deemed a crime before the act is committed. The policy behind the principle of legality is that fair warning should be provided to a criminal so that he does not inadvertently commit a crime that he has no reason to believe is illegal. There is no deterrence value in having unwritten crimes because people do not know what actions to avoid. Also, it is not morally culpable to do an act that a person reasonably believes is not illegal. Lastly, it would be unconstitutional under the ex post facto clause to do so. The rule of lenity is a corollary to the principle of legality - it follows naturally from it. The rule of lenity requires that all ambiguities in statutory language be resolved in the defendants favor. The policy reasons are the same as the rule of legality. Also, the rule of lenity encourages the legislature to write more clear statutes.
3. Jim is a hypnotist who hypnotizes Annette at a party. While Annette is hypnotized, Jim entertains the crowd by suggesting that she punch her husband, Bill in the nose. Annette does punch Bill in the nose, but she claims that she does not remember anything during the time she was hypnotized. If Bill were to press charges against Annette for battery, what possible defenses could Annette raise?
3. Annette would attempt to negate the actus reus requirement of the crime, and perhaps the mens rea as well. In either case, these would be failure of proof defenses as opposed to true defenses. To defeat the actus reus, Annette would claim that since she was hypnotized, her act was not voluntary. That is to say that it was not a product of her free will. She could claim automatism or unconsciousness, meaning that she was not conscious of her actions and they were reflexive in nature. Also, the acts could be equated to those of a sleepwalker. However, one can make a policy argument that so little is known about hypnosis that a line can not be drawn between what actions are voluntary and which are not when a person is hypnotized.
4. Robin suffers from a legitimate, documented mental disease called multiple personality disorder or MPD. Her alternate personality, Jennifer, is a wild partier who drinks excessively. One evening, while Jennifer was in control of her body, she was arrested for drunk-driving. What defenses would Robin raise in regards to the DUI charge? Assume that both Robin and Jennifer are rational personalities, the only difference being that Jennifer is much less inhibited than Robin.
4. Robin would attempt (as did Annette in Question 3, above) to defeat the actus reus requirement of the crime. Robin would not claim insanity as a defense to the mens rea because both she and Jennifer are both able to form the intent to drive drunk, and both should know it is illegal. To defeat the actus reus element, Robin would claim that her actions were involuntary because they were performed by her alternate personality, and that she had no control over her body while Jennifer had control. However, a policy argument can be made that since it is difficult to prove, MPD should not be a defense because the courts can not punish one personality separately from another in the same mind and should not have to do so. (See Dressler, pg. 75-76).
5. Harry is a boisterous drunk who likes to drink beer at home each night while he listens to loud music. A neighbor calls the police on Harry, and they come to tell him to quiet down. When they get to his door, they arrest him and take him out into the front yard and begin to argue with him about the noise level. Harry, obviously intoxicated, shouts loud obscenities at the police officers, who subsequently charge him with public drunkenness, which is defined by statute as appearance while intoxicated in a public place and acting in a boisterous manner. What is Harrys defense to the public drunkenness charge?
5. Harry will argue that although his intoxication was voluntary, that the proper voluntary act required to be proven by the statute was the appearance in public. Since he was taken from his home by the police officers, his appearance in public was involuntary. Had he not been arrested by the police officers and removed from his home, his conduct would not have satisfied the public drunkenness statute. (See Dressler, pg. 79).
6. Jane is married to Michael. Michael is a drug dealer. One night, Jane comes home and finds Michael on the floor, doubled over in pain as a result of being beaten by the buyer in a drug deal gone sour. Michael is bleeding internally and is in a lot of pain and can not reach the telephone to call for help. Michael asks Jane to call 911, but she refuses, saying that it serves him right for getting involved with drugs, and that she is going to let him suffer for a while before she calls for help, so that he is sure to learn his lesson. After 15 minutes, she calls for 911, but when the paramedics arrive, it is too late to save Michael, who dies. May Jane be charged with murder for waiting 15 minutes to call for help?
6. The general rule is that there is no liability for an omission in the absence of a legal duty to act. A moral duty to act is insufficient to create criminal liability. However, there are several exceptions, including express statutory duty, contractual obligation, and the common-law duties arising from creation of the risk, voluntary assistance, and special relationship. Married couples, like Jane and Michael are part of a common-law special relationship between spouses. Thus, Jane had a legal duty to summon assistance for her husband, Michael. A factual issue exists whether the delay of 15 minutes caused Michaels death, or whether he would have died anyway as a result of his wounds. Also, Jane must have had the requisite mens rea, which for murder is intent to kill. It is likely that Janes spiteful comment that she was delaying to teach Michael a lesson would be viewed as extreme recklessness and extreme indifference to human life (depraved heart murder).
7. Divide the following crimes into their respective elements: the actus reus, and the mens rea. For each crime, classify the actus reus as a conduct or result crime (social harm element) and identify the attendant circumstances elements.
A. murder - the killing of a human being by another human being with malice aforethought.
B. DUI - intentionally driving under the influence of alcohol.
C. burglary - the breaking and entering of the dwelling house of another at nighttime with the intent to commit a felony within.
7. The actus reus in the following answers are bolded, the mens rea is underlined:
A. murder - the killing of a human being by another human being with malice aforethought.
1. result crime - it is the result that is prohibited.
2. Attendant circumstances are not expressly defined but could include the fact that the murder weapon was loaded.
B. DUI - intentionally driving under the influence of alcohol.
1. conduct crime - no harmful result is required, the conduct itself is prohibited.
2. Attendant circumstances are part of the crime definition - driving must occur while the driver is under the influence of alcohol.
C. burglary - the breaking and entering of the dwelling house of another at nighttime with the intent to commit a felony within.
1. conduct crime - no harmful result is required.
2. Attendant circumstances are part of the crime definition - house must be a dwelling house, conduct must occur at nighttime.
8. An anarchist throws a bomb into the Kings carriage. The King and his valet are riding inside and are killed by the concussion of the explosion. The coachman sitting atop the carriage is killed by being thrown from the carriage and landing on his head. The people lining the street to watch the King go by are killed by flying fragments. When questioned, the anarchist states that he intended to King, and knew that the valet would also die because he was so close. He also stated that he figured the coachman would be hurt, but he wouldnt let that stop him from killing the King. Lastly, he stated that he had no idea that the explosion might kill the people lining the street and was sorry that they died because he did not intend to kill any of them. What was the anarchists mental state with regard to 1) the King, 2) the valet, 3) the coachman, and 4) the bystanders.
8. The Model Penal Code § 2.02 defines 4 mental states: purposely, knowingly, recklessly and negligently. A person acts purposely if it is his conscious object to engage in conduct or cause a particular result. The anarchist stated that he intended to kill the King. Thus, the anarchist acted purposely with respect to killing the King. A person acts knowingly if he is aware or practically certain that a particular result will occur. The anarchist knew that the valet would also die because he was so close. Thus, the anarchist acted knowingly with respect to killing the valet. A person acts recklessly if he consciously disregards a substantial and unjustifiable risk. Whether the risk is substantial and unjustifiable is measured by the law-abiding citizen standard. A law abiding citizen would regard the risk of blowing up a person as substantial and unjustifiable. Since the anarchist figured the coachman would be hurt, but he wouldnt let that stop him from killing the King, he consciously disregarded a substantial and unjustifiable risk, thus acting recklessly with respect to killing the coachman. A person acts negligently if he should be aware of a substantial and unjustifiable risk. Whether the risk is substantial and unjustifiable is measured by the reasonable person standard. A reasonable person would likely have known that an explosion inside the carriage would cause lethal fragments to be thrown into the crowd. Even though the anarchist never intended to kill an innocent bystander, he is held up to the reasonable person standard and thus acted negligently with regard to killing the bystanders.
9. Under the Model Penal Code, if a statute is silent as to the particular mental state required for any particular element, what mental states would satisfy the requirement?
9. When the definition of a criminal offense is silent regarding the matter of culpability as to any material element of the offense, §2.02 provides that the element is satisfied if the person acted purposely, knowingly or recklessly (but not merely negligently).
10. If a statute defines the crime of false imprisonment as knowingly restraining another person unlawfully, how would the Model Penal Code treat the mens rea for each of the material elements of the crime?
10. MPC §2.02(4) provides that if a single mens rea element is given in the definition of a crime, without distinguishing among the material elements of the crime, then that mens rea applies to each material element of the crime. Thus, to be guilty of false imprisonment under this statute, the person must have knowingly restrained the person, and also have known that the restraint was unlawful. See Ratzlaf and Dressler, pg. 123.
11. Jim is pulled over for suspicion of driving drunk. He consents to a search of his car. Under the back seat, the police officer finds a bag of cocaine. When questioned, Jim claims that the car belongs to a friend who loaned it to him to go bar-hopping for the night. Jim states that he had no idea that there was cocaine under the back seat. What issues are raised if Jim is charged with knowing possession of a controlled substance.
11. First, we will deal with the actus reus portion of this conduct crime. Possession requires that the actor have been aware of his control of the object for a sufficient period to have been able to terminate his possession. If Jim were reasonably never aware of his control of the object, then he could not have had a chance to terminate his possession, thus negating the actus reus of possession. As to the mens rea, a person acts knowingly in a conduct crime if he is aware or is practically certain of the existence of a certain fact. If Jim honestly and actually did not know what, if anything, was under the back seat, then he could not have been aware of his conduct. However, if Jim had reason to suspect that there was a controlled substance under the back seat, then he would not be excused merely by avoiding actual knowledge of what was there. Jim may not use willful blindness to negate the mens rea of knowingly.
12. Which of the following is not a factor that the court would consider in determining whether a crime is a strict liability crime:
A. The penalty is small.
B. Legislative policy would be undermined if a mens rea were required.
C. The standard imposed by the statute is reasonable and would be properly expected of a person.
D. The stigma associated with violation of the statute is large.
E. The statutory crime is malum prohibitum, not malum in se (not derived from the common law crimes.
12. D. The stigma must be small not large.
13. What is Lady Wootens Proposal? What are the arguments in favor of it? What are the arguments against it?
13. Lady Wooten proposed that the mens rea be done away with in the definition of all crimes, thus making all crimes strict liability offenses. Mens rea would only be relevant at the time of sentencing. She argued that the mens rea element was solely retributive in nature, going to the moral culpability of the actor. Thus, in a utilitarian system relying on deterrence, failing to prosecute any crime stands in the way of efficient deterrence. The punishment aspect of sentencing was the more rational place to take into account the persons moral culpability. Leniency would be given to those who were not morally culpable. However, this would result in the police being overburdened by having to enforce the law in unnecessary situations, and provide intolerable intrusion into the citizens life. Any casual bump in public would have to be prosecuted as a battery, only to let the defendant off without punishment after a burdensome trial. Thus, the transaction costs in maintaining such a system would be prohibitive.
14. Consider the following short hypos. In each, who is a proximate cause of Vs death?
A. D1 takes aim at V. But before D1 shoots, D2 shoots V, killing V instantly. D1s bullet strikes Vs dead body.
B. Both D1 and D2 shoot V simultaneously in the stomach. Either shot would have killed V in 1 hour, but the combination causes V to die in 5 minutes.
C. Both D1 and D2 simultaneously shoot V in the head. Either shot would have been sufficient to kill him instantly.
D. D1 shoots V in the stomach (which would have killed V in 1 hour). A second later, V is struck in the head by a bullet shot by D2, which kills V instantly.
E. D seriously (but not lethally) wounds V. At the hospital, V receives negligent medical care, and then dies.
F. D seriously (but not lethally) wounds V. At the hospital, V is stabbed by a knife wielding maniac.
Tort Revision Paper
1. Match the following holdings with the cases that they represent:
A. In Re Polemis 1. A person may not recover for damages
caused by another's negligence unless he is a
member of a foreseeable class of victims.
B. Palsgraf 2. A person may recover for unforeseeable
damages as long as the damages are the direct
result of the other's negligent act.
C. Wagon Mound 3. A person may only recover for damages
that are a foreseeable result of another's
negligent act.
1. A. 2; B. 1; C. 3.
2. Jim owns a tuna boat moored in San Diego bay. On a calm day, it comes loose from it's moorings Assume that the mooring lines were negligently tied, even for good weather. The tuna boat drifts out into the bay where it crashes violently into the bay bridge. The collision sparks a fire onboard the tuna boat. Within minutes, the fire reaches the tuna boat's engine room. The resultant explosion sends tremendous shock waves across the bay, shattering Annette's bayside condo's windows. The flying glass cuts her face severely. May Annette recover damages from Jim under the rule in Polemis? Under Palsgraf? Under Wagon Mound?
2. Annette's injuries were the direct result of the explosion, which was caused by Jim's negligence. However, it is unlikely a court would find that flying glass injuring a bayside resident was a reasonably foreseeable result of negligently mooring a tuna boat, or that it was reasonably foreseeable that bayside residents inside their condos would be injured at all. Under Polemis, the actual injury does not need to be foreseeable as long as it was: 1) the direct result of the negligent act, and 2) foreseeable that the negligent act would result in some injury. Thus, under Polemis, Annette could recover against Jim. Under Palsgraf, even if the damage is a direct result of the negligent act, the injured party may not recover unless he is a member of a foreseeable class of victims of the negligence - a class to which the tortfeasor owed a duty of care. Thus, under Palsgraf, Annette may not recover against Jim because bayside residents are not a foreseeable class of victims to whom Jim owed a duty of care. Under Wagon Mound, the injured party must prove that the actual injury was a foreseeable result of the negligent act. Thus, Annette may not recover against Jim under Wagon Mound.
3. Same facts as in Question 2, but now Annette is sailing her 40 foot yacht around the bay bridge area, instead of being at home in her condo. What affect does this have on the probable outcome under Palsgraf or Wagon Mound?
3. As a boater in the bay, Annette would now probably belong to a foreseeable class of victims of an adrift tuna boat. However the foreseeable injury from an adrift tuna boat is collision with the yacht itself, not cuts due to a shock wave caused by collision of the tuna boat with the bridge. So Annette has met the "duty" and "breach" elements established by Palsgraf. Although in Palsgraf Cardozo did not comment on whether foreseeability of the actual injury was required, it is likely that he would have followed the Polemis rule and allow Annette to recover because the injury was a direct, even though the manner in which it occurred was unforeseeable. Under Wagon Mound, Annette still cannot recover.
4. Jim works in a coal mine. To get to and from the depths of the mine, Jim and his co-workers must take a platform elevator. There is a statute in the Jim's state which requires the passengers in such elevators to wear a safety harness, and to "clip" that harness to the rails of the elevator while it is in motion. Jim thinks that "clipping in" is too much trouble for a hard-workin', budwieser-drinkin', backbone-of-America guy like himself, so he merely drapes the harness over himself loosely, but does not "clip in". While riding the elevator one day, Jim's unclipped harness slips off of him and falls down to the bottom of the elevator shaft where it lands on the head of his co-worker Annette, injuring her severely. Is Jim liable to Annette for her injuries under a per-se negligence theory? Why or why not?
4. Jim is liable under per se negligence only if it was the intent of the statute to protect coal miners from objects that fall off the elevator, in addition to the obvious intent of protecting them from falling off themselves. If it was not the intent of the statute to protect coal miners from falling objects, then Jim's violation of the statute, even though negligent toward the risk of falling himself, was not a proximate cause of Annette's injury. It was only an incidental circumstance surrounding the injury. The foreseeable injury from not "clipping in" was that Jim would fall off the elevator, not that the harness itself would fall off. Thus, Annette would probably have to prove Jim's negligence in some other manner.
5. Jim is a forgetful taxi driver with a broken gas gauge. One night, after picking up Annette at the airport, he runs out of gas in a bad part of town. While Jim and Annette are walking several blocks away to get to the nearest gas station, local thieves seize the opportunity to steal Annette's valuable luggage from the locked trunk. Annette sues Jim for the value of the stolen luggage, claiming that his negligence was a proximate cause of her loss. Jim admits negligence in running out of gas, but claims that he is not liable for the luggage because he exercised his duty to lock the trunk, and cannot be held responsible for the intervening intentional tort of the thieves. Who should win? Why?
5. Annette should win because the theft was a foreseeable result of Jim's negligence. Normally, the chain of causation is broken when an intervening third party commits an intentional tort. However, the chain of causation is not broken if the original wrongdoer puts a person into a situation where the original wrongdoer should have realized that a third person might avail himself of the opportunity to commit that intentional tort. Jim should have known that running out of gas would expose his passengers to a foreseeable risk of theft. Thus, Jim's negligence in running out of gas was the proximate cause of Annette's loss.
6. What is the policy reasoning behind the law refusing to impose a legal duty to rescue a person even if the rescue can be performed successfully at minimal cost to the rescuer?
6. Arguments against imposing a duty are: 1) The higher your ability level, the less inconvenient it would be for you to rescue. This provides a disincentive to invest in activities that would make you a more effective rescuer. 2) It undermines the strength of contract law where the patient could offer the doctor an amount of money less than he normally charges, and the doctor would be forced to take it as long as the difference is small enough. 3) Careless persons would be subsidized at the expense of careful persons.
7. Give an argument for the imposition of a legal duty to rescue when the cost to the rescuer is slight.
7. There is a quasi-contractual argument such that each member of society has impliedly promised to help others in danger, in return for the promise of others to help him/her under the same circumstances.
8. Match the following duties a landowner owes to the traditional classes of persons:
A. Trespasser 1. duty to warn of hidden dangers
B. Licensee 2. duty to keep property in reasonably safe condition
C. Invitee 3. duty to refrain from willful, wanton or intentional harm
4. duty to avoid affirmative acts of negligence
8. A = 3, B = 1+3+4, C = all.
9. Ginger is 8 years old. At the end of her block is a vacant lot with an oil derrick on it. The lot is fenced off, but the neighborhood kids have bent the fence back enough so that they can slip in and out in order to play on the oil derrick. The owners of the oil derrick know that kids often play on or around it, and scare them off every time they come to turn it on. One day, Ginger is playing with some friends on the dormant oil derrick, when the owners show up. They yell at the kids to get off the derrick, and all but Ginger scurry away. Ginger is too scared to run, and instead hides in the derrick. The owners do not check to see if there are any kids hiding on the derrick, and proceed to start it up. If Ginger is then injured by the motion of the oil derrick, would the owners liable for damages? Why or why not?
9. The owners liability depends on the nature of the duty that they owe to Ginger. Ginger would probably be classified as a trespasser. As such the owners generally would only owe a duty of care to refrain from willful, wanton or intentional injuries to Ginger. However, since Ginger is a child, the owners duties may be expanded under the Attractive Nuisance doctrine which requires the owner to exercise reasonable care to protect a trespassing child from an unreasonable risk of great bodily harm presented by his machinery which he should know that children are likely to play on, as long as the cost of prevention is slight. The owners have taken some steps to prevent children from getting hurt, for instance putting up a fence, and chasing away children before they started the oil derrick. However, they have not gone so far as to physically inspect the derrick for hiding children before they started it in motion. It is likely that failing to inspect the machinery before setting it in motion would be viewed as unreasonable, since the cost of taking such a precaution is essentially zero. Even if the operation of the oil derrick was not found to fall under the Attractive Nuisance doctrine, the owners would be liable if their failure to inspect was categorized as willful and wanton, but the burden of proof would be higher.
10. What changes to the traditional approach of landowner duties did the case of Rowland v. Christian make? What was the courts justification for these changes?
10. In Rowland, the court did away with the traditional rigidity of the trespasser/licensee/invitee distinction in determining the standard of care which a landowner owed to those on his property. They held that the reason for a persons presence on the property is a relevant factor in determining the appropriate standard of care, but it was not strictly determinative. The class distinction was held to be too rigid, leading to artificial results. Furthermore, the traditional approach, which was fashioned in times where landowner status was sacred, was held not to reflect community consensus of reasonable care in the modern world. The new standard was reasonable care under the circumstances (standard negligence).
11. Jim is a surfer. While surfing on a particularly stormy day at the jetty, he notices that a lone tourist (Annette) is wandering out too far on the rocks. He says to his buddies that he bets the woman will get soaked with the next big set. Everyone agrees. On the next big wave, Annette not only gets soaked, but also gets washed over the rocks into the pounding surf. Instinctively, Jim begins to paddle over to her. None of the other surfers take any action to save Annette because they think that Jim is going to save her. Jim actually does intend to rescue Annette, but stops short once he realizes that there is a very large probability that he will get smashed onto the rocks if he gets any closer. While he hesitates, Annette drowns. Is Jim liable for Annettes death? Why or why not?
11. To be liable for a gratuitous undertaking, generally there has to be the intent (action) to rescue, and reasonable reliance by others. The presence of these two things establishes a duty on the rescuer to act with reasonable care to rescue the victim. Under these facts, Jim had the intent to rescue, and he also induced reliance of the other surfers on his actions. Thus, he had a duty of care to take reasonable steps to rescue Annette. However, it is unlikely that the court would find that Jim breached that duty by aborting the rescue because there was a very large probability that Jim would be injured severely if he continued. Although one of the other surfers might have been successful in rescuing Annette if they hadnt relied on Jim, reliance only creates a duty. Abortion of a rescue does not conclusively show breach of that duty.
12. Annette takes a trip to Tuscon, AZ. She decides to stay at the Motel 6. At about midnight, she hears a knocking at her door. She asks, "Who is it?" The voice on the other side says, "It's me. Let me in." Thinking the voice to be that of her friend, Jim, she opens the door. Tragically, it was a stranger who robs her and leaves. Annette brings an action against the Motel 6 alleging that a special relationship was created when she rented the room, and that the Motel had breached a duty of care under that relationship to provide for her safety. Should Motel 6 be liable for Annette's damages? Why or why not?
12. The issue here is the extent of the duty that a motel owes to its customers. A close analogy might be the special relationship between a landlord and a tenant, where the landlord has the duty to take reasonable steps to protect the landlord from harm in the common areas under which he has exclusive control. This would probably involve patrolling the common areas and restricting access to customers and their guests only. However, the reasons to impose such a broad duty in the case of a motel-guest relationship are not as compelling as in the landlord-tenant relationship. The motel guest, unlike the tenant, is a short-term resident who can more easily choose to stay at a safer location. There is generally less reliance on a motel to provide protection. The risk of crime is a burden that the guest customarily bears. Due to the tremendous number of people coming and going, it may be impractical for the motel to know who is a guest and who is a criminal. Furthermore, it is common knowledge that it is unsafe to open your motel room door at night without first positively identifying the visitor. Thus, Motel 6 would probably not be liable for Annette's damages.
13. What reasoning did the court in Tarasoff use to find a special relationship was created between the psychiatrist and the intended murder victim of one of his patients once he knew of the patients intent to kill her?
13. The court reasoned that although a special relationship did not initially exist between the psychiatrist and the victim, one arose when he became aware of the patient's intent to kill the victim. The foundation for the special relationship with the victim was the already existing special relationship with the patient. The special relationship with the patient was extended to include the foreseeable victims of his conduct. As a matter of policy, the court stated that the confidential relationship between a doctor and his patient was outweighed by the greater public interest in safety.
14. Jim owns a pit bull which is known to be ferocious. It has gotten loose and bitten other dogs before. Yesterday, it got loose and came into my yard, where it urinated in my flower garden and trampled my prize petunias. Jim is strictly liable to me for the damages because his dog was known to be ferocious. True or False?
14. False. Strict liability for animals applies only to personal injuries, not property injuries. I would have to prove Jim's negligence in failing to take reasonable precautions to keep his dog from escaping in order to recover for property damages.
15. True or False: Fletcher v. Rylands is one of the earliest cases involving strict liability for abnormally dangerous activities.
15. False. Fletcher v. Rylands was ultimately decided on the grounds of "non-natural" use of the land, not "abnormally dangerous activities". Don't confuse the two. It is very unlikely that keeping a reservoir of water on your land would qualify as an abnormally dangerous activity under the Restatement.
16. In determining whether an activity is "abnormally dangerous", the jury should take into account what factors?
16. Trick question. The jury does not decide whether an activity is abnormally dangerous. It is a question of law not fact. The judge, however, would need to consider the following:
1). existence of a high degree of risk of harm,
2). likeliho