Essay 1
1 A v. D (1) NEGLIGENCE Duty/ Foreseeable Plaintiff A person owes a duty of care to all foreseeable plaintiffs. Under the majority rule, a foreseeable plaintiff is a person who is “in the zone of danger”. Under the minority rule, a plaintiff’s are foreseeable plaintiffs. D knew there was a risk of knocking the scaffold down if she backed up without someone to guide her, and since A was on the scaffold, he was within the zone of danger. This element is satisfied. Standard of Care A person owes the standard of care of a reasonably prudent person in similar circumstances. A reasonable prudent person in this circumstance probably would have waited for someone to help guide her in backing her car into the parking spot. Or possibly, a reasonably prudent person would have not parked in that spot. Here D most likely did not act like a reasonably prudent person because she knew the risk of knocking the scaffold down and proceeded anyways. In fact, D was angry that S laughed at her and backed into the spot as a result. Breach When someone owes a duty of care and fails to fulfill that duty of care, they have satisfied the breach element. Because D owed a duty of care not to knock down the scaffold, she breached her duty of care when she parked her car and knocked down the scaffold. Causation The Causation element is satisfied if the breach was the actual cause and proximate cause of the plaintiff’s damages. Actual Causation Actual Causation is satisfied by the “but for” test. Under this test, the court will ask “but for D’s conduct, A would not have been injured”. Actual Causation is met. But for D’s parking her car, the scaffold would not have fallen, and A would not have been hurt. As a result, D is the actual causation of A’s injury. Proximate Causation Proximate Causation asks if the type of injury suffered by the plaintiff is a foreseeable result of the defendant’s conduct. Here, A suffered a fractured skull from falling off the scaffold. It is foreseeable that he would fall off the scaffold and be injured when D hit the scaffold’s support with her car. Proximate Causation is satisfied as well.
Damages For all tortuous claims, a defendant must take the plaintiff as they found the plaintiff. This is the rule known as the Egg Shell Skull Plaintiff. A severely fractured his skull when he fell. A could have a very weak skull, it would not matter. He suffered damages. The fact that he was not wearing his hard hat does not matter for this element either, that would be a defense raised by D. (2) DEFENSES Assumption of Risk D can claim that A assumed the risk of injuring his head by not wearing his hard hat, which was contrary to an express rule of his employer. The rule was obviously designed to prevent injuries of the type suffered by A. Because A was not wearing his hard hat, he severely fractured his skull. Had A been wearing his hard hat, he would have suffered only a slight concussion with minimal disability. As a result, D may succeed in reducing A’s recovery on the basis of assumption of risk. The Assumption of Risk defense is only followed in a minority of jurisdictions. Contributory & Comparative Negligence In Contributory Negligence jurisdictions, the plaintiff is barred from recovery if he himself was even slightly negligent in the accident. In Comparative Negligence jurisdictions, the plaintiff’s recovery is reduced by the percentage of negligence, determined by the jury, he is responsible for. While A was negligent in not following his employer’s rule concerning the hard hat, his negligence was not the cause of his injury, and thus contributory and comparative negligence are defenses that D will be unlikely to assert. A v. S (1) NEGLIGENCE Duty Generally, a person does not have a duty to act. A person assumes a duty to act if there is (1) a close relationship that requires a duty to act, such as a spousal relationship, (2) if the person started to act, thereby causing others not to act, or (3) if the person created the danger themselves. Here, S was a stranger who just happened to be walking by. He did not owe a duty to act to S, A, or anyone else. Had S been an employee who worked with A & B, then S would have owed a duty. But he did not. Therefore, the duty element is not satisfied, and A’s claim of negligence would fail. (2) Settlement with B not Evidence It is important to note that even though S settled his claim with B, that settlement is not evidence of any wrongdoing by S. Though it would be logically relevant to show S was
responsible, public policy prevents A to show this. Public policy wants to encourage settlements, because otherwise the judicial system would be overwhelmed with cases.
B v. E (1) NEGLIGENCE Duty/ Foreseeable Plaintiff A person owes a duty of care to all foreseeable plaintiffs. Again, a foreseeable plaintiff is a person who is “in the zone of danger”. When E hit B’s car, B was in the zone of danger and is thus a foreseeable plaintiff Standard of Care A person owes the standard of care of a reasonably prudent person in similar circumstances. As a driver, E owes a duty of care to other drivers and pedestrians. Breach When someone owes a duty of care and fails to fulfill that duty of care, they have satisfied the breach element. E breached his duty of care by rear ending B’s car. Causation The Causation element is satisfied if the breach was the actual cause and proximate cause of the plaintiff’s damages. Actual Causation Actual Causation is satisfied by the “but for” test. Under this test, the court will ask “but for E’s conduct, B would not have been injured. But for E driving into B’s car, B’s prior injury was severely aggravated, resulting in B’s paralysis Proximate Causation Proximate Causation asks if the type of injury suffered by the plaintiff is a foreseeable result of the defendant’s conduct. Here, B suffered paralysis from a car accident. It does not matter how slight the accident was, that issue is determined in the damages analysis. All that is important is to prove that it is foreseeable someone will hurt their back if another person rear ends their car. E rear ended B’s car, and B hurt his back. As a result, proximate causation is satisfied. Damages Damages is the real issue of this negligence claim. As I stated earlier, for all tortuous claims, a defendant must take the plaintiff as they found the plaintiff. Again, this is the rule known as the Egg Shell Skull Plaintiff. Here B fractured his vertebra when he fell of the scaffold. The fracture could have been easily diagnosed by x-ray and a medical doctor could have successfully treated it by immobilization. But B kept working and decided to drive. It doesn’t matter. E must take B as he found B. B had an egg shell
vertebra in this case, and E caused his paralysis. The damages element is satisfied as a result. (2) DEFENSES Assumption of the Risk E may be able to show that B assumed the risk of injuring his back by working and driving after his accident. E may be able to mitigate damages if B was in such a condition that he could not drive safely because of his injury. Contributory Negligence/ Comparative Negligence Definitions- see above. If E can show that the accident was the result of B’s prior injury, then E could use the contributory or comparative negligence defense. But the simple fact that B had hurt his back earlier in the day is not enough to satisfy.
(3) TRESPASS TO CHATTELS A defendant is liable for trespass to chattels if they interfere with a person’s use and/or enjoyment of their personal property. Trespass to chattels to apply, instead of conversion, when the damage is small. Here, E’s collision with B caused only slight damage to B’s car. B can therefore sue E for the costs to repair the damages.
ESSAY 2
1. EXCLUSION OF HEROIN FOUND ON D’s PERSON AT FEDERAL TRIAL The 4th Amendment protects a person from unreasonable searches and seizures. When a person is the subject of an unreasonable search and seizure, the court will apply the Exclusionary Rule, and exclude the evidence at trial. For a person to argue an unreasonable search and seizure, they must show that the search was committed by a government agent, and that they had a reasonable expectation of privacy. Government Agent For the 4th Amendment to apply, the search must be conducted by a government agent. People do not have a constitutional right against searches by non-government officials. Here, F is a federal customs inspector. F is a government agent. But F didn’t search D’s person, a physician did. Even if the physician does not work for the Federal Government directly, he searched D at the direction of F. When a private citizen acts as the request of a government agent, the court deems it equivalent to the government agent acting himself. This element is satisfied. Reasonable Expectation of Privacy D must have a reasonable expectation of privacy in order to claim an unreasonable search. F was ordered to be searched in private and given a full body cavity search. D has a reasonable expectation of privacy in his bodily “cavities”, and thus this element is also satisfied Warrant In order for a government agent to search a person who has a reasonable expectation of privacy, he needs a warrant, signed by a non-partisan magistrate. F did not have a warrant when he had the physician search D’s person. However, if the officer has probable cause to believe the person is carrying a weapon or contraband, he can conduct the search without a warrant. Warrantless Search Obviously this search was more than a stop & frisk, for which an officer would need only a reasonable suspicion. But an government agent can search a person without a warrant if he has probable cause to believe the person is carrying a weapon or contraband. Here, F had probable cause because he found dextrose powder in D’s suitcase, and F knows that dextrose powder is used to dilute heroin, and that heroin is sold in envelopes like those carried by D. Fruits of the Poisonous Tree F received his probable cause as a result of his search of D’s suitcase, which he also searched without a warrant. If D did not have probable cause to search D’s suitcase, then the search of D’s person which resulted in the discovery of heroin would be the Fruits of the Poisonous Tree and would thus be excluded. Under these facts, F did have probable cause to search D’s suitcase. First, they were at an international border crossing into the
United States. F recognized D’s travelmate, A, as a person who had been convicted of smuggling narcotics. A court would likely have found that F had probable cause to search D & A’s suitcases as a result. Even if F could only have searched A’s suitcase at that point, he did find a large quantity of heroin in A’s suitcase and that would likely have given him probable cause to search A’s companion, D. As a result, the court should deny D’s motion to exclude the heroin found on his person from evidence at the federal trial. 2. EXCLUSION OF HEROIN FOUND IN D’s CAR AT STATE TRIAL The 4th Amendment protects a person from unreasonable searches and seizures. Though the Constitution only applies to the Federal Government, the 14th Amendment applies the Bill of Rights to the States. Government Agent O, the person who searched D’s car, was a government agent working for the state. This element is satisfied. Reasonable Expectation of Privacy D has a reasonable expectation of privacy of his car and thus any search of his car by a state agent gives D a claim under the 14th Amendment against unreasonable searches and seizures. Warrant Again, in order for a government agent to search a person who has a reasonable expectation of privacy, he needs a warrant, signed by a non-partisan magistrate. Here, O did not have a warrant, and his search must fall under an exception to the warrant requirement. Automobile Exception A government agent may search a person’s automobile if they have a probable cause to suspect the person has narcotics or weapons in their automobile. However, the automobile exception only applies when the officer stops a person who is in their car, or at least next to it. D was not in his car when it was searched. He was not stopped in his car as he was driving nor was he standing next to it when the drugs were found on his person. As a result, the automobile exception does not apply. Search Incident to an Arrest A government agent may search a person and the immediate vicinity surrounding a person, known as the “Grab Area” to search for weapons. Here, D was arrested at the border, not in his car, and therefore O had no right to search O’s car without a warrant. Inventory Search
The police may search a person’s automobile after impounding the vehicle for the purpose of taking an inventory of the person’s belongings to make sure everything is present when the person gets their car back. The inventory search is a tactic used by police to search a car for contraband without a warrant. For the police to conduct a lawful inventory search, they must have arrested the person in his car, or impounded the car legally. Here, after D was arrested for the federal charge of importing narcotics without a permit, F notified state narcotics agents of the arrest, including O. O located D’s car parked legally on the street near the border crossing and impounded the car. O had not right to impound D’s car because D was not arrested in his car and D’s car was parked legally on the street. Because the police did not have a warrant to search D’s car and no exceptions to the warrant requirement apply and D did not consent to the search, the court should rule in favor of D’s motion to exclude the heroin found in his car from evidence at state trial. 3. D’s CLAIM THAT HE IS ENTITLED TO HAVE BAIL FIXED OR TO BE RELEASED PENDING TRIAL ON THE STATE CHARGE Bail is the amount of money a person must pay to be released from prison pending trial. A court awards bail based on the gravity of the offense, and will deny bail (remand) if they believe that the person is a flight risk or a danger to society. The greater the crime, the higher the bail. The court may also take into account the person’s wealth and indigency in determining the bail amount. Bail Fixed? Here, a state statute permits denial of pre-trial bail when a defendant poses too great a risk to society to remain free pending trial. Here, D was arrested for possession of narcotics for sale. A court is unlikely to find that D poses to great a risk to society to remain free pending trial and will therefore award bail. The state statute was likely created for serious violent criminals, not for drug dealers. D is a drug dealer, according to the facts, and thus is not likely to be considered by the court to pose too great a risk to society to remain free pending trial. Release because D is indigent? A court may take into account a person’s wealth and indigency in determining the bail amount. The purpose of bail is to assure the person’s court appearance. D’s request that he be released simply because he is indigent is unlikely to succeed because a court won’t find that to be helpful in assuring D’s appearance at court. Because D is indigent, a court may lower the bail. But D was also arrested at a border crossing, which may persuade a court to make bail higher. Also, D’s claim of indigence is unlikely to be believed by the court since the police did find a large amount of heroin in his car. Here the court is likely to pose a modest-to-high bail or no bail at all, solely on the fact that D may be a flight risk.
ESSAY 3
1. B’s RIGHT TO CONTINUE TO USE THE ROAD? Creation of Easement An easement can be created in a few different ways: (1) by necessity, (2) by grant, and (3) by prescription, By Necessity 1- An easement is created by necessity in a landlocked land setting, which often occurs when the owner of both parcels sells one parcel, which requires access over the other parcel to get in and out. This easement is created by implication out of its necessity. Here, there is no evidence that B needed the easement by necessity. By Grant 2- Here A granted B an easement through a quitclaim deed. A quitclaim deed is the worst type of deed, because it makes absolutely no assurances. A is not claiming that he has the right to convey the easement, nor that he will protect B from any future claims against her easement. But B does get an easement by grant. However, when A conveyed the parcel to C, he did not mention the easement to C. So C has not granted B the right to use the easement. When C delivered the easement to D, the deed contained no mention of the easement. Therefore D and C did not grant an easement to B. By Prescription 3- an easement by prescription is created when a person earns an easement through adverse possession. To gain an Easement through adverse possession, a person must (1) use the easement continuously throughout the statutory period; (2) use the easement openly and notoriously; (3) actually use the easement, and (4) use the easement to the hostility of the servient owner. Here, B uses the easement for 39 years before D builds a fence blocking the road. B uses the road daily to reach her house and maintains the road as needed. Assuming the 39 years satisfies the state’s adverse possession statute (most states requires 10 years), B has an easement by prescription. But B’s easement by prescription is only for a 20 foot wide road, not the 30 foot wide road granted to her. Therefore, B has an easement by prescription of a 20 foot wide road across D’s land. Type of Easement In 1950, A gave to B a quitclaim deed granting her “an easement of way, 30 feet wide” along the southern boundary of A’s 5 acre residential parcel.” The Easement is an Easement Appurtenant because it touches and concerns two parcels of land, A’s and B’s. A’s land is the Servient tenement and B’s land is the dominant tenement. An easement appurtenant runs with the land if there is a sale of the Servient tenement, as long as the buyer of the Servient land had notice. Notice A bona fide purchaser of land is not subject to claims against the land or encumbrances for which he did not have notice. Notice comes in 3 different forms. (1) Actual Notice.
Here C and D did not have actual notice of the easement because the deeds they received to purchase the Servient land did not mention the easement. (2) Record Notice. Here C and D did not have record notice because B never recorded the deed granting her the easement. (3) Implied Notice. A buyer of land has a duty to inspect their land for any encumbrances. B’s road was graded and graveled and probably apparent to anyone who had inspected the land. C & D each had implied notice of the easement, (but only a 20 foot wide easement), because, they either saw the easement when they inspected the land, or should have seen the easement. As a result, C & D are not bona fide purchasers without notice of the easement, and the easement appurtenant therefore runs with the land. Betty, therefore has the right to continue using the road, but only as a 20 foot wide road. Because she never recorded her deed from A, her 30 foot easement is extinguished by the sales to C and D who only have implied notice of a 20 foot wide road. D has not right to build a fence blocking the road to B’s house. 2. D’S RIGHTS AGAINST C? BASED ON THE CONTRACT In September 1988, C & D signed the following contract concerning the five-acre parcel: “C agrees to sell and D agrees to buy the following land [valid land description]. Price, $90,000 cash, closing December 15, 1998. The contract is satisfied by its requirements that it accurately describe the land and that the sale be supported by consideration. But, the contract has no mention of the easement. Under a contract for the sale of land, there are always two implied promises the seller is making to the buyer. They are (1) the implied warranty of marketability; and (2) the implied warranty against any false statements Implied Warranty of Marketability Under the IWM, C is promising that he is providing D with marketable title. There appears to be no issue here. D can sell the land if she chooses, even with the easement present. Unless the easement created such a burden on the land that it was unmarketable, D has no claim under the implied warranty of marketability. Implied Warranty against Any False Statements Under the IWAFS, C is promising that he is not making materially false statements in the deed to D. There is no false statements, rather just an omission of the easement. C did not breach this implied warranty. As a result, D does not have an action against C based on the contract. BASED ON THE DEED
C executed and delivered a warranty deed to D. A general warranty deed contains 6 covenants, 3 present covenants and 3 future covenants. PRESENT COVENANTS Covenant of Seisin Under this covenant, C is promising D that he owns the property that he is conveying. There is no issue here. It is apparent that C owns the property he is conveying. Covenant of Right to Convey Under this covenant, C is promising D that he has the right to convey the property. Again, there is no issue here. C owns the property and appears to have the right to convey it to D. Unless C owns the property with his spouse in the tenancy in the entirety, there is no issue under this covenant. Covenant Against Encumbrances*** Here is the where the problem is. Under this covenant, C is promising D that the land is free of all encumbrances not named in the deed, including B’s easement. Since B’s easement is not named in the deed, C is in breach of the covenant against encumbrances and D has a cause of action against D as a result. FUTURE COVENANTS Covenant of Quiet Enjoyment Under this covenant, C is promising that he has conveyed legal title free of future claims against the land. C has breached this promise because B has a future claim against the land as a dominant owner of an easement across the land. Covenant to Support against Future Claims Under this covenant, C is promising that he will support D in any future claims against the land. C must therefore assist D in any lawsuit or claim by B for the right to use the easement. Covenant for further Assurances Under this covenant, C promises to do anything else that D would require to help quiet title. As a result, D does have an action based on the deed because C has breached the covenant against encumbrances and the covenant of quiet enjoyment. D may have to allow B to use the easement, but D does have a damages claim against C.