New Jersey Board of Bar Examiners - Bar Examination Sample Q&A

Bar Examination Sample Q&A - February 2010

The answers that you see below are actual candidate answers that are unedited.

Questions and Sample Answers

February 2010

Civil Procedure
Criminal
Constitutional Law
Property
Evidence
Contracts
Torts

QUESTION 1 - Criminal

A invites B, a young woman he was interested in dating, to his apartment for the evening to watch a movie. A serves B alcohol-infused fruit drinks until B becomes unconscious. A leaves B on the couch and goes to bed. In the morning A finds B dead.

A asks his neighbor, C, to borrow his car and removes B’s body from the apartment and disposes of it in the woods outside of town. He returns and tells C what he has done and where B’s body is buried. C tells no one about his conversation with A.

Officer, while investigating the disappearance of B, learns that B was at A’s apartment the night B went missing. He visits A’s apartment, knocks on the door and speaks to A who denies that B had been there. As Officer is leaving the apartment complex, he sees C, shows C a picture of B and asks C if he had seen B at A’s apartment. C denies ever seeing B, but answers in a manner that makes Officer suspicious.

Officer returns to his car outside of the apartment complex where A and C live and is subsequently able to observe A and C engaged in a heated conversation outside the building, during which C points at his own car several times while yelling at A. Officer is unable to hear what is being said.

Before he leaves the area, Officer places a GPS tracking device on C’s car. The device, which Officer purchased online, allows the location of a car to be tracked on the Internet. Later that evening, A takes C’s car and returns to the site where B’s body is buried to remove her personal identification. On his computer, Officer is able to see where C’s car has traveled.

You are a law clerk in the county prosecutor’s office. Your superior has asked you to prepare a memorandum setting forth all possible charges that could be filed as well as any defenses that could be asserted by any defendant.

PREPARE THE MEMORANDUM

SAMPLE ANSWER A

To: County Prosecutor's Office
From: Law Clerk
Re: Criminal Charges of A & C in the death of B

Death of B -- murder vs. manslaughter

A may be charged with manslaughter in the death of B because A lacks the requisite intent to satisfy the common law and NJ definition of murder. Murder is the killing of another with depraved indifference or disregard for human life. Murder is typically a premeditated, deliberate act. This is a specific intent crime for which intoxication of the person charged is a defense to the charge. There are no facts to indicate whether A was also intoxicated so the charge of manslaughter should also be explored/considered as a charge or a lesser included offense. A invited B to his apartment to watch a movie and served her alcohol-infused drinks until she became unconscious. Once she was unconscious, A left B on the couch and went to bed only to find B dead on the counch in the morning. It should be argued that the act of serving B alcohol-infused drinks until she became unconscious demonstrates depraved indifference for human life and a reckless disregard for the consequences of A's actions. A knew that B was unconscious and was the direct cause of placing B in that state. Both the overt act of serving B drinking until she was unconscious and the failure to do anything to ensure her safety once she reaced that state could rise to the standard of depraved indifference for human life. Ultimately, the facts will be for the jury to decide, but there is sufficient evidence to make out a prima facie case for murder. The State can establish beyond a reasonable doubt that A's conduct satisfies the elements of murder.

As a defense to murder, A will likely claim intoxication and mistake. If in fact, A was involuntarily intoxicated and could not form the specific intent necessary for murder, this could be a defense, but there is nothing in the present case to suggest A was also drinking at this time or that he was forced to drink so much that he was not aware of his actions. Maybe only an intoxicated person would leave an unconscious woman on the couch and go to bed, but that is not an affirmative defense established by a preponderance of the evidence. As for mistake, A could assert that he was mistaken as to the state of B and did not realize that she was truly unconscious as opposed to being in a drunken state.

As a lesser included offense, A should also be charged with manslaughter. If the judge/jury decides that A did not have the requisite intent for murder, A should be appropriately charged with the general intent crime of manslaughter. Involuntary manslaughter is defined as the unintentional killing in the heat of passion with adequate provocation. Comparatively, involuntary manslaughter is the unintentional killing based on reckless behavior, criminal negligence or during the commission of the non-serious felony. Voluntary manslaughter should be included in the charges against A because his actions of serving B alcohol until she became unconscious was reckless and by leaving her on the couch instead of seeking medical attention, A's conduct was also criminally negligent. Even if B's death was an accident, A should have known or had reason to know that if you give someone alcohol until they become unconscious, that could lead to their death. A should have sought medical attention once he discovered B was unconscious, but instead went to bed. While A may argue the same defenses as ablove to excuse his actions, there is sufficient evidence for the State to establish a prima facie case of voluntary manslaughter beyond a reasonable doubt.

Accessory after the fact v. Accomplice Liability

C was unaware of A's intentions when A borrowed his car, but by failing to disclose the crime to police after discovering B's death, C could be charged as an accessory after the fact. Accomplice liability requires that C be aware of that a crime is about to be committed and take a substantial step to assist the wrong-doer in carrying out the crime. C was not aware of the date between A & B or A's plan to serve B alcoholic drinks until she was unconscious. When A asked to borrow C's car, C was also unaware that A planned to remove B's' body and dispose of it in the woods. Upon learning A used his car to dipose of B's body and telling no one about the conversation, C became liable as an accessory after the fact. An accessory after the fact is defined as one who did not engage in the crime, but took substantial steps after learning a crime has been committed to aid the wrong-doer in escaping liability for that crime. Not only did C not tell anyone when he first learned of the crime, but when an officer later questioned C about B and whether B had been at A's apartment, C denied ever seeing her. While this is true, C could have and should have used this as an opportunity to tell the officer about the crime and release himself from liability of being an accessory after the fact.

Admissibility of the GPS Tracking

The 4th amendment protects against the unlawful search and seizure of an individual by police, however placing a GPS tracking device on the exterior of a vehicle does not constitute an unlawful intrusion or invasion of privacy so long as the device used is standard and not high-tech. A may assert that the officer's discovery of B's body was fruit from the poisonous tree due to the officer's unlawful intrusion onto C's car. First, the party alleging the constitutional violation must have standing to do so. A is not the owner of the car, so he would be unable to raise a 4th amendment violation. Further, C cannot raise such a violation on behave of a 3rd party. C could assert that his 4th amendment rights have been violated as an accessory after the fact, in which case C must establish the following:(i) that there was government conduct; (ii) a reasonable expectation of privacy; and (iii) a valid warrant or probable cause to execute a search. While an officer did place a GPS tracking device on the car, there is no reasonable expectation of privacy was the location of a vehicle, so C would be barred from claiming that his 4th amendment rights were violated.

In conclusion, the State was proper grounds to indict A for murder, with the lesser included offense of voluntary manslaughter, and indict C as an accessory after the fact, for the death of B. The police discovery of B's body using a GPS tracking device would be admissibe since there is no reasonable expectation of privacy for the location of a vehicle on a public road.

SAMPLE ANSWER B

To: County Prosecutor's Office
From: Law Clerk
Re: Criminal Charges of A & C in the death of B

Death of B -- murder vs. manslaughter

Accessory after the fact v. Accomplice Liability

Admissibility of the GPS Tracking

QUESTION 2 – Constitutional Law

The State of Anxiety has been extremely hard hit by the real estate downturn. A significant number of houses in the State are at risk of foreclosure because their adjustable rate mortgages will soon reset to much higher rates. Many at-risk homeowners have been taken advantage of by unscrupulous loan modification companies that have been advertising heavily, even going door to door, promising to help for a large upfront fee and then doing nothing. Only a few non-profit organizations, largely sponsored by religious groups, have been successful in helping homeowners modify their mortgages. However, limited funds have prevented these non-profits from helping more than a small percentage of the homeowners at risk. Indeed, because of their lack of funds, most of these religious-based non-profits have begun limiting their loan modification help to members of their own congregations.

In an attempt to help alleviate these problems, the Governor has requested that the State Legislature pass laws doing the following:

1) Precluding any bank or mortgage company doing business in the State from charging more than 5% interest on existing home mortgages for the next two years.

2) Outlawing any print, radio, television, or door-to-door advertising by any entity that charges a fee to assist with loan modifications. Only loan modification entities that do not charge a fee for their services may advertise in any way within the State of Anxiety.

3) Appropriating $10,000,000 in funding for non-profit loan modification programs to assist at-risk homeowners and setting aside 25% of this funding solely for programs sponsored by religious organizations.

You are counsel to the Governor. Concerned about litigation, the Governor has asked you to prepare a memorandum outlining any and all possible challenges to these three laws and the likely outcomes.

PREPARE THE MEMORANDUM

SAMPLE ANSWER A

MEMORANDUM: Here is a list of the possible challengs to these three laws and the likely outcomes.

1) This law can be challenged as unconstitutional as a violation of the Contracts Clause. The issue is whether this action consitutes a violations of the Contracts Clause. The Contracts Clause prevents state goverments (not federal) from interfering with pre-existing private contracts. To determine whether the Clause has been violated, intermediate scruitiny is applied. Intermediate scruitiny puts the burden of proof on the state of proving that the law is substantially related to an important goverment interest and that the law is narrowly tailored to serve this interest. If the state can prove this, there is no violation. To be more specific. If the state law consitutes substantial interfernces with a pre-existing contract, the law must be narrowly tailored to serve an important goverment interest. The goverment interest here is to prevent excessive foreclosures leaving many of its residents without homes are worsening the already bad economic situtations. It appears that this is a good enough interest to rise to the level of "important." The goverment doesnt want to see the situation get worse and it does not want its citizens to become homeless. However by putting a limit on mortgage rates, this is a substantial interference with these pre-existing contracts, because it is not the goverment's job to assign terms to these contracts, they should allow the terms in the pre-existing contracts to govern. The question turns on wheter this law is narrowly tailored to serve this important goverment interest. That can be argued both ways. The goverment can say this cap on mortgage rates is the best possible alternative they have and it only affects mortage rates and nothing else. The mortgage companies can argue that is not narrowly tailored and that there is other paths the goverment could take that are narrowly tailored. This most likely outcome will be that this law will be deemed constitutional. Although it is a substantial interference with preexisting contracts, the law appears to be narrowly tailored to server an important government interest.

2) This law can be challenged as an unconstitutional violation of these people 1st Amendment right to freedom of speech, and possibly a violation of 14th Amendment equal protect. This is a content-based regulation because it is preventing the advertising of a certain content, that of advertising for loan modification. Normally content-based advertising is held to a level of strict scruitiny, but because this is commercial advertisment, strict scruitiny does not apply. The applicable standard of review is Intermediate scruitiny. Intermediate scruitying puts the burder on the state of proving that the law is substantially related to an important goverment interest and that the law is narrowly tailored to serve this interest. The intermediate scruitiny test is applied to commercial advertising. However, commercial advertising that is false, illegal or deceptive is not protected and this test is not applied. The goverment can argue that because these loan modification serves were going door to door, collecting a fee, and then doing nothing, that this advertising is deceptive and illegal. But although these few companies might be charged with fraud, there might be other companies that are legitimatly able to help, and the goverment cannot prevent these companies from advertising unless Intermediate scruitiny is met. This interest here is important, the government is trying to protect is citizens from deceptive advertising, but the law does no appear to be substantially related to this goverment purpose, because it is not narrowly tailored to serve this purpose. To have a complete can on all loan modification advertisement would violate legitimate companies constitutional rights. The goverment can make a law more narrowly tailored to only prevent deceptive advertisment and not ALL advertisement. This law might also be challenged as a violation of the 14th Amednment right to equal protect. Because this law allows non-profit loan modification serves to advertise but not other serves to advertise the goverment is creating a distinction between these 2 types of serves. Because this is no a suspect or quasi-suspect class, only rational basis will be applied. For the law to be valid the burden of proof will be on the challenger to prove that this law is not rationally related to a legitimate government interest. Even a concievable legitiamate interest is ok. It will be very hard to prove this, because this is related to a legitimate interest, and that is prevent deceptive advertisement and fraud. The challenger will most likely lose, and do most challengers under the rational basis test. Another challenge to this law might be under the commerce clause. A state violates the dormant commerce clause if there regulation of an economic activity as an undue burden on interstate commerce. The state has to prove that the benefit of the law outweighs the burder and that it is necessary to acheieve an important goverment interest. It is unclear whether this law has an effect on interstate commerce, on the face it does appear to but because many of these loan companies might be located outside of the state it might. This is a better challenge them the 14th Amendment challenge because the challengers have a better likely hood of success. The law must be least restrictive alternative to achieve the government interest, and in the case it does not appear to be the least restrictive alternative so it would most likely be a violation of the dormant commerce clause. This law will most likely be deemed constitutional as a violation of the entities 1st Amendment right to freedom of speech, as well as a violation of the dormant commerce clause.

3) This law can be challenged as unconstitutional under the establishment clause. The issue is whether the law violates the establishment clause. The establishment clause says that the goverment must make know law to inhibit or advance the establishment of religion. In order for a law to be valid under the establishment clause it must pass a three part test. First, the law must have a secular purpose. Second, the law must neither be to advance or inhibit religion, and Third, the must not produce goverment entanglement with religion. The initial appropriation of the $10,000,000 for non-profit organizations is a valid exercise of the states spending power, however the fact that 25% of these funds are to go specifically to religious organizations might constitute a violation of the establishment clause. We must analyze this law under the three part test. First, does this law have a secular purpose? Yes, the law is to assist at-risk homeowners from foreclosure. Second, does the law advance or inhibit religion. On it's face it does not appear to advance or inhibit religion, however, in the facts is said that many of the religious organizations were only helping members of their own congregations because of lack of funds. If they got this government funding and continued to only help their own, this could be argued to advance religion, but it appears that if they had more funds they would help everyone equally so must likely this law will pass part to because it does not advance or inhibit religion. The third part is where this law will probably fail. Because these religious organizations were previously helping more members of their congragations then everyone equally, this might create government entanglement because the government would have to monitor these funds to assure that the religious organizations were using these funds to help everyone equally. Because of this, the law will most likely be deemed unconstitutional as a violation of the establishment clause. The government can still give this money but if the law is deemed an violation of the establishment clause, they will not be able to allocate the 25% specifically to religious organizations but must make the funds available to all non-profit organizations equally.

SAMPLE ANSWER B

To:      Governor
From: Esquire
Date:   3-25-10
Re:       State of Anxiety laws
MEMORANDUM

(2) One possible challenge to these laws will most likely be based on the First Amendment. The First Amendment protects an individual’s freedom of speech. Normally, a content-based regulation by government will require strict scrutiny analysis (compelling interest and narrowly tailored means) while content-neutral regulations will require intermediate scrutiny analysis (important interest and substantially related means). Some areas of speech are protected under the First Amendment, while others are unprotected. Commercial speech is a protected area of speech if advertising is lawful and truthful. In order to regulate, government must have a (1) substantial interest (2) directly advances that interest and (3) means must be narrowly tailored. Untruthful, misleading, and fraudulent advertising is unprotected. Here, the entities charging fees to assist with loan modification would argue that their advertising is truthful and lawful. They will argue that, because they are honest in their efforts to help homeowners modify their mortgages, their advertising speech deserves constitutional protection under the First Amendment. In this case, the State of Anxiety has the burden of proof to show its law has a substantial interest, directly advances that interest and is narrowly tailored. State would argue it has a substantial interest in protecting at-risk homeowners in a time of real estate downturn. It would argue that the law directly advances that interest because, by outlawing advertising for entities that charge fees, they are lessening the likelihood of non-profit organizations taking advantage of the at-risk homeowners. They will argue this is narrowly tailored because there is no other motivation for this action.

The State would also argue that the advertising is misleading and hence the speech is unprotected. State would argue that the advertising promising to help for a fee is misleading because the companies then do nothing. This argument will likely be successful, thus overriding the entity’s constitutional challenge.

The entities would also argue a substantive due process challenge to the law. Substantive due process tests the reasonableness of a law and prohibits arbitrary government conduct. If a fundamental right is regulated, the government has the burden of proof to show its actions are narrowly tailored to meet a compelling interest. If a fundamental right is not involved, the burden of proof is on the challenger to show the law is not rationally related to meet a legitimate government interest. Here, the fundamental right of freedom of speech is involved. The State of Anxiety needs to meet the strict scrutiny standard. This argument would most likely fail. The State’s actions are not necessary in that they are probably not the least restrictive means to protect at-risk homeowners, without violating 1st amendment rights of others. There would not be a compelling interest for allowing other entities to advertise and forbidding others from doing so.

(3) There may also be an Establishment Clause challenge to this law. The Establishment Clause prohibits the government from endorsing one religion over another. If the government is discriminatory between religions, it must meet a strict scrutiny standard to justify the actions. If the question is about government involvement with religion, the law must meet the following test: (1) must have a secular purpose (2) purpose must not be to inhibit or advance religion (3) no excessive entanglement. Here, there is no discrimination between religions, so the question is with the State of Anxiety involvement with religion, choosing to fund non-profit programs (largely sponsored by religious groups) and setting aside funding for programs sponsored by religious organizations. The State of Anxiety would argue that its law has a secular purpose in that it is not designed to be involved with religion, but just to fund programs that have actually been successful in helping homeowners modify their mortgages. Under the facts, and considering the State’s interest in protecting at risk homeowners from companies that do nothing, this argument is plausible. Also, State would argue that the purpose of this funding is strictly to improve the real estate situation and not as an excessive entanglement with religious issues. The challenger’s argument should fail for these reasons.

(1) The in-state mortgage and loan companies will argue this law is unconstitutional based on the Contracts Clause. If the government interferes with existing private contracts, it need to meet an intermediate scrutiny standard, showing its actions are substantially related to a legitimate government interest. If the government is interfering with a government contract, strict scrutiny analysis is used and the government must show that its actions are necessary to meet a compelling interest. Here, the mortgages are private contracts so intermediate scrutiny is used. State of Anxiety would argue it has an important interest in preventing companies from charging higher rates for at-risk homeowners. They would argue that precluding a charge of more than 5% interest is substantially related to this interest, because it keeps the rates low which means the risk that companies may take advantage of homeowners during this time, at least during the real estate downturn will be substantially lower. This argument has merit and will most likely stand under intermediate scrutiny analysis.

QUESTION 3 – Civil Procedure

GET SMART! (“SMART”), a California corporation, with its principal place of business in San Diego, California, operates an Internet website that contains information about SMART, SMART advertisements, and an application for SMART’s Internet news service. SMART’s website states “we make you smarter, because we provide all news worthy to behold and download,” and SMART offers subscribers a 100% money-back guarantee. To subscribe to the news service, a customer fills out an on-line application that asks for a variety of information, including the person’s name and address. The customer pays by credit card over the Internet or by telephone. Once SMART receives payment, SMART processes the application and assigns the subscriber a password that permits the subscriber to view and/or download Internet newsgroup messages stored on SMART’s server in California.

SMART’s offices, employees, and Internet servers are located in California. SMART maintains no offices, employees, or agents in New Jersey. SMART only advertises on its Internet website. SMART has over 140,000 paying subscribers worldwide, and approximately two percent of those subscribers (3,000) are New Jersey residents. These New Jersey subscribers have contracted to receive SMART services by visiting SMART’s website and filling out the application. In addition, SMART has contracted with seven New Jersey Internet access providers so that New Jersey subscribers have access to SMART services.

Tom, a SMART subscriber and resident of New Jersey, wants to sue SMART in New Jersey for breach of contract, false advertising, and consumer fraud because SMART’s news services did not live up to his expectations and SMART refused to refund Tom’s money.

Tom has come to your law firm for advice. As associate to senior partner, draft a memorandum setting forth the arguments for suing SMART in New Jersey and the likely arguments SMART may raise.

PREPARE THE MEMORANDUM

SAMPLE ANSWER A

Memorandum
To: Senior Partner
From: Associate
Re: Arguments for Suing SMART in New Jersey and SMART's defenses

Personal Jurisdiction

SMART will have to litigate in NJ because there is sufficient minimum contacts and fair play and substantial justice with the NJ forum. Under NJ court rule, personal jurisdiction over a defendant exists to the extent permitted by due process under the US Constitution. Under due process, for a state to have personal jurisdiction over a defendant there must be sufficient minimum contacts with that state by the defendant and fair play and substantial justice must exist. To have minimum contact with the forum state the defendant must purposefully avail themselves and it must be reasonably foreseeable that the defendant might be hauled into court in that the forum. There are two types of jurisdiction, general and specific. A state has general jurisdiction over a defendant when the defendant is physically present in the state or when the defendant is domiciled there, consent to jurisdiction will also provide general jurisdiction. A state had specific jurisdiction if the state cause of action arrises out of the few instance that the defendant has purposefully availed himself to the state and the cause of action must be tied much more narrowly to those availments.

If minimum contacts are found the court must determine whether fair play and substantial justice would exist if they force the defendant to try the case within the state. The elements of fair play and substantial justice are how related the cause of action is to the availment, the convenience of the forum to the defendant, and the state's interest in the litigation. It should be noted that the state's interest is given significant weight in the analysis and only a showing of severy inconvenience will prevent the state from having personal jurisdiction.

SMART is domiciled in CA and NJ does not have general jurisdiction over it. For the purposes of personal jurisdiction a corporation resides in the state it is formed and where it's principal place of business is located, for SMART both are in CA. Therefore, NJ does not have general jurisdiction over SMART.

SMART has purposefully availed themselves to NJ and it was foreseeable therefore NJ has specific jurisdiction. Here, SMART has contracted with 7 NJ companies to offer the website in that state so that NJ residents could become customers. There was no additional advertizing beyond the website, but the website was made accessible in NJ. Unlike many of the Supreme Court cases regarding this issue a website is not a physical good that is transported through the stream of commerce to a location. Instead, the website exists in California and NJ customers have to intentionally access it for it to come up on their computers in NJ. The Supreme Court in the Asahi case split 4-4 whether for minimum contacts it was necessary for a company to "do something more" than merely know that the product will be sold in the state. NJ Supreme Court has not rulled on this issue, however some lower courts in NJ have taken the position that nothing greater, such as advertizing, is required for a company to purposefully avail themselves to the forum. SMART contracted with the service providers knowning that the product would be purchased by customers in NJ and it is likely even with nothing extra that a NJ court would find personal jurisdiction. It was also foreseeable to SMART that they could be sued in NJ. SMART should have known that it would likely be in court if the claim arose from a breach of contract with one of their customers. There are sufficient minimum contacts for SMART to be sued in NJ court if there is fair play and substantial justice.

NJ has personal jurisdiction over SMART because there is sufficient minimum contacts and there is fair play and substantial justice. The elements of fair play and substantial justice are that there is relatedness, it is not too inconvenient for the defendant and the state's interest will all be weighed. The claim by Tom against Smart is related to the purposeful availment. Tom is suing Smart because of a contract entered into by Tom with Smart when it made it's website available online. The suit for smart is not convenient, all its employees are in California and none are located in NJ. There is a strong state interest that NJ has of not allowing it's residents to be defrauded by consumer fraud. The state interest will be enough to overcome any inconvenience that SMART will endure by having to litigate in NJ court. Therefore, NJ has personal jurisdiction over SMART.

Forum Non Conveniens
SMART will unsuccessfully argue that the NJ court should dismiss the case for forum non convenience. Under NJ law, a state court will dismiss the case, because transfer is not possible to another state, if there is an extreme burden on the parties and witnesses by litigating in NJ. SMART will argue that the NJ court is too inconvenient since all of its offices and employees are in California. It will argue that most of the witnesses in the trial will be its employees. The NJ court is not likely to dismiss because the showing of inconvience is not great enough and Tom, the plaintiff resides in NJ. NJ courts give great defferance to the choice of forum that the plaintiff selects and do not dismiss for forum non convenience lightly.

Subject Matter Jurisdiction
NJ state court has subject matter jurisdiction over the case. NJ courts are courts over general jurisdiction, meaning that the court has the power to hear cases unless expressly disallowed by NJ law or by congress, bankruptcy cases are not covered for example. Here, Tom is suing for breach of contract, false advertising, and consumer fraud. The NJ court will be able to hear each of these claims and make a rulling on each because none of them are excluded from its jurisdiction.

Removal/Transfer
SMART will try to remove to federal court. Removal permits any case that could have been brought in federal court to be removed from the state court to the federal court if all defendants agree. SMART will try to have the case removed to federal court and then transferred within the federal system to California district court. SMART wants this not only because CA is more convenient for them but also becuase federal procedure requires a unanimous jury decision as opposed to NJ civil procedure which only requires a 5/6ths majority to find for the plaintiff. Subject matter jurisdiction requires that the case either have diversity of citizenship and an amount in controversy of greater than $75,000 or a federal question. There is no federal question. The amount in controversy is not stated but is likely less than $75,000. If it is less than $75,000 although the diversity requirement is met the NJ state court will not remove becaus the amount in controversy is not. If the amount in controversy is met by Tom suing for more than $75,000 then the diversity requirement also is, Tom is a resident of NJ and SMART a resident of CA, so the court will remove and SMART will try to tranfer.

SAMPLE ANSWER B

Memorandum

To: Senior Partner
From: Associate
RE: Suing SMART in New Jersey

Subject Matter Jurisdiction

New Jersey courts are courts of general jurisdiction and will have subject matter jurisdiction to have this case. Since the case would be looking for legal remedies, we will file a complaint in the NJ Civil Court - Law Division - Civil Section. (If Tom wants to request any equitatble remedies such as an injunction to keep SMART from contracting with NJ residents, the case would have to go to the NJ Civil Court - Chancery Division.)

Personal Jurisdiction

To sue SMART in NJ, we will need to show that there is personal jurisdiction over SMART. Personal jurisdiction is found if it is provided for under state law and it is constutional. In NJ, personal jurisdiction can be found in several ways: presence in the state, domiciled/incorporated in the state, waiver to personal jurisdiction, consent, and through the NJ long arm court rule. The long arm rule in NJ stretches personal jurisdiction over people and companies to the extent permitted under the due process clause of the constitution. Since none of the above-listed ways provide personal jurisdiction, we will need to look to the long arm rule and the consitutional analysis to ensure that NJ can have personal jurisdiction over SMART. Under International Shoe, personal jurisdiction over a defendant is consitutional if there are such minimum contacts with the forum state as to not offend the traditional notions of fair play and substantial justice. Additionally, the defendant must have notice. Minimum contacts are determined by looking at whether the defendant has purposefully availed itself of the benefits of NJ and whether being haled into court in NJ was foreseeable based on those contacts. Fairness is determined by looking at a number of factors such as the relationship of the contacts to the law suit, the convenience of the forum to the parties, the forum state's interests, the plaintiff's interests, etc.

Here, SMART has several contacts with NJ. Two percent of its subscribers are NJ residents, comprising 3,000 people. Smart has collected money from those people, and has therefore availed itself of the benefits of the money collected. Additionally, Smart has an ongoing, continuous contractual relationship with NJ internet access providers through which it uses NJ infrastructure to provide its services to the NJ residents. Therefore, Smart has purposefully availed itself of the benefits of NJ. Additionally, by contracting with those internet access providers and with the NJ subscribers, it is foreseeable that if something were to go wrong with either types of contracts, SMART would have to answer to it in a NJ court. Furthermore, it is fair to bring suit against SMART in NJ. The contacts that SMART has with NJ are directly related to the suit that Tom wants to bring against SMART There is both specific jurisdiction over SMART as the contract with Tom that Tom entered into in NJ is what Tom is suing over, as well as general jurisdiction, as the contracts with the internet service providers is a continuous, ongoing relationship with residents of the state of NJ. Additionally, NJ has a signifant interest in the litigation as it wants to protect its residents from false advertising, consumer fraud, and contract breaches. While it is somewhat inconvenient for SMART to defend suit in NJ since it is in California, the rest of the factors sway heavily in favor of NJ. Therefore, the requirements of International Shoe are met.

Lastly, we would have to ensure that SMART receives notice of the lawsuit in order for personal jurisdiction to be established. Notice is established through service of process. In NJ, service of process can be affectuated by personally serving the defendant, or serving its authorized agent. Additionally, a defendant can waive service of process and thereby agree to personal jurisdiction, in exchange for additional time to file its initial pleadings. Since SMART is a corporation, we will need to serve its authorized agent to establish service of process and to ensure notice is met under the personal jurisdiction requirements.

Venue

We also will need to establish that venue is proper. Venue it proper where the action arose, where property at issue is located, or where any defendant is subject to personal jurisdiction. Here, the contract was established and breached in NJ at Tom's residence, so venue would be proper in the county where Tom resides.

Arguments SMART may raise

Lack of Personal Jurisdiction

SMART will first argue that there is no personal jurisdiction, because if there is no jurisdiction, the law suit may not proceed. It will likely argue that its contacts with the state are not substantial enough to establish minimum contacts that make suit in NJ foreseeable and fair. However, as discussed above, the multiple contacts with the state of NJ that are all related to the claim will likely render this argument null.

Improper and Inconvenient Forum

If SMART fails at the lack of personal jurisdiction argument, it will next likely argue that NJ is an improper forum because the contract is with SMART in California. However, as discussed above, the court will likely find that the contract with SMART was also partially executed in NJ, and SMART is subject to personal jurisdiction here, and therefore venue is proper. If SMART loses that argument, it will next argue that the forum is inconvenient. SMART can point to all of the aspects of the contract and the action that arise in California in support of this argument. It also can point to the small number of customers in NJ in comparison to its total number of users. If a court finds that the forum is inconvenient and the case is transferred, the new court will still apply NJ law however, as the initial forum was proper. However, it is unlikely that the case will be found to be an inconvient forum, as the state's interest and plaintiff's interest are strong to have the case in NJ.

Removal

SMART may also move to remove the case. A motion to remove the case must be filed in the federal district court in which the state court lies within 30 days of removal being possible (and not more than one year from the beginning of the case). Removal is appropriate where a case can originally be filed in federal court. Federal courts have two types of subject matter jurisdiction: federal question jurisdiction and diversity jurisdiction. Federal question jurisdiction is present when a complaint alleges a challenege or violation of a federal statute, constitution, or case law. That is not present here. Diversity jurisdiction is present where a there is complete diversity and there is a minimum amount in controversy of more than $75,000. Complete diversity means that no party is of the same residence at the time of filing (or removal) as an opposing party. Here, Tom is a resident of NJ and SMART is a resident of California (the location of its principal place of business). Therefore, complete diversity is met. However, the amount in controversy element must also be met. While the facts do not provide how much Tom spent on the service, it is unlikely that the case would be worth over $75,000. Therefore, removal will not be permitted.

QUESTION 4 – Evidence

Gwen was injured at a party in June 2009 when the second-story deck at the Ocean City, New Jersey, beach house rented by Mark suddenly collapsed. Gwen sued Bob, the owner of the house, for negligent construction and maintenance of the deck, and Bob filed a third-party complaint against Mark. At a pre-trial conference, Gwen’s counsel advised the court she will offer the following evidence.

1) The testimony of Maria, author of “The Decks of Savannah,” that the deck, which had only 4 wooden support posts, was improperly constructed because, based on its size and shape, it should have had 6 concrete support posts.

2) A copy of an inspection report, dated April 15, 2008, provided to Bob by Termites-R-Us stating there was substantial termite damage to 2 of the deck’s wooden support posts.

3) A copy of the building permit, issued in October 2009 by an Ocean City construction official, authorizing Bob to reconstruct the deck using “TuffDex,” a new synthetic material created specifically for the construction of commercial decks.

4) The testimony of Bob that, when Mark signed the lease for the beach house, Bob told Mark the deck was not intended to hold more than 10 people at a time and Mark responded: “Don’t worry, I don’t have that many friends!”

5) The testimony of Jill, the owner of the property next to Bob’s beach house, that approximately one hour before Bob’s deck collapsed, she saw “way too many people, at least 30,” partying on the deck.

6) A copy of the Certificate of Occupancy, issued on September 8, 2003 by the City Engineer of Ocean City, certifying that Bob’s beach house was built in compliance with all applicable building codes and was suitable for occupancy.

You are the trial judge’s law clerk and are assigned to prepare a memorandum advising the court how to rule on all possible evidentiary issues raised by the parties.

PREPARE THE MEMORANDUM

Sample Answer A

To: Judge
From: Applicant
Date: February 25, 2010
Re: Evidentiary Rulings in Gwen v. Bob

You have requested that I advise you on how to rule on each of Gwen's and Bob's proposed pieces of evidence. This memorandum addresses each piece of evidence in turn, in the order in which they were presented by the parties:

Gwen's Evidence

(1) Testimony of Maria, author of The Decks of Savannah

Gwen proposed to offer the testimony of Maria, an author, to establish that the 4 wooden support posts were improperly constructed because, based on their size and shap, it sould have had 6 concrete support posts. Maria would serve as an expert witness, who would opine based on her professional knowledge, not her personal knowledge of the subject matter. While lay witnesses must testify based on personal knowledge (FRE 701), experts are permitted to testify, provided that their testimony is relevant, based on facts learned by them in connection with the trial, as long as the facts are of the type that a expert in that field would ordinarily rely on in rendering such an opinion. Therefore, Maria may testify as to her opinion of the deck and its faulty construction, even though she had no personal knowledge of Bob's deck or its construction. Furthermore, an expert may opine based on evidence that in issue or not admitted into evidence or based on hearsay, again as long as the evidence is of the type that an expert in that field would ordinarily rely upon in rendering such an opinion. Also, an expert may opine on an ultimate issue in the case. Before an expert may testify, however, the judge should satisfy himself that the expert is duly qualified in the area and that her opinion is based on generally accepted principles of science. This is often done by holding a Daubert hearing to before the judge, who then determines the admissibility of the expert testimony. If Maria is found to be qualified to testify, then Bob's counsel may question her on cross not only about the subject matter of her testimony, but also about her compensation and any bias or prior inconsistent statement made in other trial or publications.

(2) Copy of an inspection report, dated April 15, 2008, stating that there was substantial termite damage in 2 of the deck's wooden support posts.

Evidence is admissible if it is relevant. Federal Rule of Evidence ("FRE") 402. Evidence is relevant if it tends to make the existing of a fact of consequence in the action more or less probable than it would be otherwise. FRE 401. Relevant evidence may still be precluded, however, if its probative value is substantially outweighed by its risk of unfair prejudice, confusing the jury, or other similar problems. FRE 403. The inspection report is definitely relevant, because it tends to make the fact of negligent maintenance more probable, and it does not risk unfair prejudice, confusion of the jury, undue delay, or the like. Therefore, it should be admitted as long as it is not hearsay.

Hearsay is a statement made by one other than the declarant at the trial or hearing that is admitted to show the truth of the matter asserted therein. Here, the inspection report will be admitted to prove that 2 of the wooden support beams were rotted due to termites, so it is admitted for the truth of the matter. Therefore, it is also an out-of-court statement. Therefore, it is hearsay. Under FRE 803(a), however, business records are exempted from the hearsay rule. A business record is a record made in the ordinary course of business by one familiar with the facts and familiar with the making of such records. Here, it appears that the inspection report is a business record made by Termites-R-Us in the ordinary course of business. Therefore, it will be admissible.

(3) Copy of building permit, issued in October 2009 by a construction official, authorizing Bob to reconstruct the deck.

As a matter of public policy, evidence of subsequent remedial measure taken by the defendant that, if taken prior to the accident would have made the accident less likely to occur, are not admissible in court to prove the negligence of the defendant, because the state wants to encourage individuals and corporations to take remedial measures as necessary without working that fixing the problem will subject them to liability. However, evidence of subsequent remedial measure is admissible for other purposes, such as to show control, if the defendant argues that he did not control the deck, or to show the feasibility of such measures, if the defendant were to argue that he could have fixed the deck in order to avoid the accident. Therefore, Gwen cannot offer the building permit to establish Bob's negligence, but she might be able to offer it for other purposes, depending upon Bob's defenses, though it does not appears that Bob is .

If admitted, the building permit would be admissible under the public records exception to the hearsay rule, which allows statements that would otherwise be hearsay to be admitted into evidence if there are records created by a public agency in the ordinary course of its public duties. A building permit is a document created by a municipal building authority in the ordinary course of its duties. Therefore, the permit would fall under the public record exception.

Bob's Evidence

(4) Testimony of Bob that, when Mark signed the lease of the beach house, Bob told Mark that the deck was not intended to hold more than 10 people at a time and Mark responded: "Don't worry, I don't have that many friends."

It appears from Bob's proposed testimony that Bob intends to argue that Mark was also negligent, and should be held liable, at least in part, for Gwen's injuries because he knew the deck could not hold so many people and held a big party on the deck anyways. Bob's testimony is relevant to the fact of Mark's notice, and therefore the evidence is admissible.

Bob's testimony contains two distinct statements: (1) Bob's statement to Mark that the deck cannot hold more than 10 people, and (2) Mark's reply, "Don't worry, I don't have that many friends." While both are out-of-court statements, neither is being admitted for the truth of the matters asserted therein. Instead, both statements are being admitted to show notice. Therefore, both statements are admissible as non-hearsay.

(5) Testimony of Jill, owner of the property next door, that one hour before Bob's deck collapsed, she saw "way too many people, at least 30," partying on the deck.

This evidence is relevant to the fact of Mark's conduct, to establish that Mark was also neglient (especially in light of Bob's prior warning), so it is admissible. A lay witness may testify as to any matter reasonably within the the witness's personal knowledge, as long as it is not a matter requiring specific scientific or technical knowledge. Here, Jill will testify as to what she personally observed, so such testimony is admissible.

(6) Copy of the Certificate of Occupany, issued in September 3, 2003, by the City Engineer of Ocean City, certifying that Bob's beach house was built in compliance with all applicable building codes and was suitable for occupancy.

If the Certificate of Occupany ("C of O") covers the deck built on the outside of the beach house, then it is relevant evidence because it tends to make the fact of neligent construction less probable and does not risk any unfair prejudice, and therefore the C of O should be admitted. After all, if the deck met all Ocean City building codes, then its construction was not negligent, since negligence is conduct that falls below generally accepted standards in the industry. [Note: If the C of O applies only to the building structure, and not the outside deck, however, than the C of O is not relevant ot Gwen's action based on the deck, so it is not relevant and should not be admitted into evidence. Thus, the court needs more facts regarding the scope of the C of O in order to determine if it should be admitted under FRE 401 and 402.]

Like the building permit that Gwen wishes to admit into evidence, the C of O would be admissible under the public records exception to the hearsay rule, because it is a record created and kept by the City Engineer of Ocean City in the ordinary course of his public duties.

Sample Answer B

To: Honorable Judge, J.S.C.
From: Law Clerk
Date: February 25, 2010
Re: Admissibilty of Evidence -- Gwen v. Bob v. Mark

I. Introducted

As requested, please find the analysis of the admissibility of the various pieces of evidence in Gwen v. Bob v. Mark.

II. General Rules of Admissibility

In order to be admissible, evidence must be relevant. That is, it must tend to prove or disprove a claim asserted by a plaintiff or defense asserted by defendant. Additionally, relevant evidence will be inadmissible if its probative value is outweighed by the prejudicial effect it might have on the jury. Evidence of liability insurance, settlement offers or subsequent repairs is inadmissible as a matter of public policy because we want to encourage people to purchase insurance and attemtp to settle disputes. Witness testimony will only be admissible if it is about something of which the witnesses has personal knowledge. Lay persons are only allowed to give opinions based on their observations and on subjects about which no expertise is required. Experts are allowed to give opinions if properly qualified and if the testimony is about a subject uniquely within the witnesses's area of expertise. The opinion must be based on testing generally accepted within the scientific community and the expert must have been subject to peer review. See Frye; Daubert

Hearsay is an out-of-court statement offered for the truth of the matter asserted, and is generally inadmissible. There are several exceptions to this rule, however. For example, business records are admissible hearsay. The business records must have been prepared in the usual course of business (i.e. not in anticipation of litigation), must have been prepared by the defendant or someone in defendant's position, and must be authenticated. Public records are also an exception to the hearsay rule: if the document is prepared by the governement and available to the general public, it will not be considered hearsay.

Finally, documents are subject to the best evidence rule. This rule states that any document or non-testimonial evidence being submitted must be an "original," defined as the original document itself, a Xerox of the document or a carbon copy. Evidence violating the best evidence rule will be deemed admissible if the original is lost, destroyed or unavailable for reasons not the fault of the party seeking admissions

III. Testimony of Maria

The first piece of evidence sought to be admitted by Gwen is the testimony of Maria. Maria wrote "The Decks of Savannah" and plans to testify that the deck by which Gwen was injured was improperly constructed becase it should have had six concrete supports as opposed to four wooden supports. As the author of a book, Maria may have extensive knowledge of deck construction, but would not be qualified as an expert. She has no scientific background relating to the safe construction of decks; therefore, she would not qualify as an expert. Additionally, the record does not indicate that her book has been subject to peer review (i.e. book reviews). Therefore, she may not offer her opinion as an expert.

Additionally, her opinion about the unsafe condition of Bob's deck would not be proper lay opinion. The record reveals no evidence of her having personally visited Bob's residence nor inspecting the deck. Therefore, she does not have personal knowledge of the condition of Bob's deck and may not testify as to her opinion on its construction or safety.

IV. Copy of Inspection Report

The second piece of evidence sought to be admitted by Gwen is a copy of the April 15, 2008 inspection report produced by Termites-R-Us, which documents "substantial termite" damage to two of the deck's wooden support posts. This is relevant to show that Bob failed to maintain conditions at his house reasonably and thus tends to prove his negligence. Additionally, the report would be admissible hearsay under the business rule exception. It was prepared in the ordinary course of Termites-R-Us providing pest control services to customers rather than in anticipation of the litigation between Gwen and Bob. Additionally, the reports are usually prepared by the pest inspector who walks through the house. Thus, if an employee of Termites-R-Us authenticates the document, it is admissible as a business record. Additionally, because it is a photocopy of the original report, it comports with the best evidence rule.

V. Copy of Building Permit

The third piece of evidence sought to be admitted by Gwen is a copy of a building permit issued by an Ocean City construction official "authorizing Bob to reconstruct the deck using . . . a new synthetic material created specifically for the construction of commercial decks." Gwen was injuried in June 2009; the permit was issued in October of that year. Therefore it is inadmissible as evidence of a subsequent repair both for reasons of relevance and for reasons of public policy. This is inadmissible because it does not tend to prove Gwen's claim of negligence, Bob's claims against Mark, nor any of the defenses asserted by either defendant or third-party defendant. Much in the same way that liability insurance is inadmissible because it is irrelevant to prove fault, evidence of subsequent repairs is inadmissible as irrelevant. Also, public policy precludes admission of subsequent repairs because we want people to fix conditions on their property that cause injuries. Therefore, the building permit would not be admissible at trial.

VI. Testimony of Bob

Bob told Mark, who was renting his beach house when Gwen was injured, that the deck was not intended to hold more than ten people at a time. Bob wants to testify that Mark responded "Don't worry, I don't have that many friends!"

Bob's testimony is relevant because it tends to prove that Bob acted reasonably in warning Mark of the restrictions on deck use and therefore Mark was negligent rather than Bob. Additionally, it is an out-of-court statement; therefore, it is hearsay if offered to prove that Mark does not have ten friends. However, Bob seeks to admit the hearsay statement to demonstrate that he warned Mark about having too many people on the deck and that Mark understood the warning. Therefore, it is not offered for the truth of the matter asserted, and is thus admissible.

VII. Testimony of Jill

Bob also seeks to admit the testimony of the owner of a piece of property adjacent to his beach house, Jill. Jill will stipulate "that approximately one hour before Bob's deck collapsed, she saw 'way too many people, at least 30,' partying on the deck.

Jill's testimony is definitely relevant, especially in light of Bob's testimony that he warned Mark not to have more than ten people on the deck at one time. It is relevant to prove that Mark is at least somewhat responsible for Gwen's accident, as he was warned about having too many people on the deck but did so anyway, leading to its collapse. Jill actually saw the large group of people on Bob's deck, and therefore it is within her personal knowledge to testify as to the number of people she saw that night.

Additionally, this is not hearsay because it is not an out-of-court statement and is thus reliable because Jill will be subject to cross examination by Gwen's counsel. Therefore, Jill's testimony is relevant.

VIII. Copy of Certificate of Occupancy

Finally, Bob seeks to introduce a copy of the 2003 Certificate of Occupancy issued by the City Engineer of Ocean City. It cerifies "that Bob's beach house was built in compliance with all applicable building codes and was suitable for occupancy."

This is admissible as relevant, because it tends to prove that Bob was not negligent per se by violating the city's building code. It also proves that he exercised the care a reasonable person would have used in similar circumstances when hiring contractors to build the house and in having the building inspected by the city.

This document is admissible hearsay under the buisness record exception. It was prepared by the City Engineer, who normally issues Certificates of Occupancy, and it was done in the normal course of business. It was clearly not created in preparation of this litigation, as it was issued approximately six years before Gwen was injured. Therefore, it satisifies the business record exception to the general rule making hearsay inadmissible. It is also satisfies the public record exception to the hearsay rule because it was prepared by the Ocean City governement and is made available for public inspection. In fact, Certificates of Occupancy are generally displayed in the buildings for which they are issued for public view.

Finally, this document satisfies the best evidence rule. Although the original might be available and maintained, a photocopy is sufficient to be considered an original. Therefore, the Certificate of Occupancy is admissible.

IX. Conclusion

Bob's testimony, Jill's testimony and the photocopy of Bob's Certificate of Occupancy are all admissible. The inspection report of Termites-R-Us is also admissible. However, Maria's testimony and the copy of the building permit are inadmissible.

QUESTION 5 – Property

Darryl subdivides a parcel of land into Lots 1 and 2. He records a subdivision plan which states that no alcohol is to be manufactured or sold on Lots 1 and 2 and that the restriction “shall be binding upon all grantees, successors, heirs, and assigns.”

Darryl sells Lot 1 to Louis. The deed given to Louis does not mention the recorded subdivision plan. Louis constructs a building on Lot 1 where he opens a bar. Thereafter, Darryl sells Lot 2 to Rich. The deed given to Rich does mention the recorded subdivision plan. Rich builds a one-family house on Lot 2 and leases it to Steve for five years.

Louis’s bar is open six nights a week until 2 a.m. The patrons are very noisy as they leave the bar and many toss debris onto Lot 2. The lights from the bar and its parking lot shine directly into the windows of the house on Lot 2. As a result, Steve complains to Rich that his family is unable to sleep in the house because of the noise and the lights. He also states that he is tired of picking up debris tossed onto Lot 2 by the bar patrons. Steve tells Rich that, unless the situation changes, he and his family will move out of the house and will pay no further rent.

Rich purchases another parcel of property with Elizabeth (the “Parcel”) as joint tenants. The Parcel consists of thirty acres with a large house located on one side and a small house located on the other. After purchasing the Parcel, Rich and Elizabeth both live in the large house.

After a time Rich moves out of the large house and away from the Parcel. Unbeknownst to Rich, Elizabeth leases the small house on the Parcel along with four surrounding acres to Anne for ten years. Anne agrees to pay $12,000 per year as rent to Elizabeth. After moving in, Anne discovers that the soil on the four acres she has leased contains a type of clay desired by local manufacturers. Anne starts excavating and selling the soil. Anne receives $20,000 for the soil. The excavation leaves gaping holes in the ground.

When Rich travels to the Parcel, he is unhappy to discover that Anne is leasing the small house and surrounding four acres. He is disturbed to learn about Anne’s excavating activities.

Rich does not want Steve to move from Lot 2, he wants Louis to shut down the bar, he wants Anne to leave the Parcel, he no longer wants to own the Parcel with Elizabeth, and he believes he should receive monetary compensation from Elizabeth and Anne.

Rich comes to your law firm for advice. Analyze Rich’s potential rights, obligations, and liabilities with respect to Louis, Steve, Elizabeth, and Anne.

PREPARE THE MEMORANDUM

SAMPLE ANSWER A

Memo

Rich has several claims that may be asserted, rights that may be enforced as well as obligations & liabilities discussed below.

Louis

Rich can seek to enforce the restrictive covenant created by Darryl & recorded in the subdivision plan. The issue is whether the buyer Louis, had notice, since the other requirements necessary to enforce the RC as an Equitable Servitude appear to be present. A restrictive covenant is an agreement not to do something to or with or upon land. A restrictive covenant runs with the burdened land if the agreement is in writing signed by the grantor, there was an intent to bind successors in interest, it touches & concerns the land & the subsequent purchaser has notice; horizontal & vertical privity are also required. Touch & concern means that it affects the parties as landowners. Horizontal privity is between the original owners of the land & vertical privity requires that successors have all taken by valid transfer, not adverse possession.

In order to seek an injunction, the RC must be enforced as an Equitable Servitude. An ES requires the above elements minus both privity elements.

Here, Rich can seek an injunction of Louis’ use of the land as a bar. The subdivision plan is a writing which demonstrated the intent to bind the parties & also provides record notice because it was appropriately recorded. Touch & concern is satisfied because the use of the land affects the parties as property owners.

The injunction should be granted.

Steve

Steve may have a claim against Rich for constructive eviction and/or a breach of the warranty of habitability. The issue is whether Steve can vacate or assert these claims based on Louis’ use of the land. Warranty of habitability occurs when a property is so far below an acceptable standard of residential use that it cannot fulfill the needs for which it was leased. It is not fit for human living. The tenant has the right to move, repair the problem & reduce rent by the cost, reduce rent from court or remain & sue for damages. Here, the family is unable to sleep because of noise & lights until 2:00 a.m. This makes the property unfit for a residence.

Constructive eviction occurs when the person renting cannot make reasonable use of the property. Steve must warn of the substantial interference & give the landlord notice. If Rich does not remedy it, Steve must move out to claim constructive eviction.

Finally, if Rich’s claim for injunctive relief above is unsuccessful, he can advise Steve to sue Louis for private nuisance, a substantial interference with another’s use & enjoyment of the land that is unreasonable & would bother a reasonable person. Injunctive relief and/or damages can be sought.

Elizabeth

As joint tenants with rights of survivorship, Rich can sue for half of the rent based on his undivided ½ interest in the land. He can also sever the tenancy by sale of his share or in a suit for partition.

Rich’s issue here is whether Anne’s rental payments can be recovered & how he can get away from Elizabeth without losing his own money or interest. A joint tenancy entitles any owner to complete possession of the whole with no rental requirement to other joint tenants. However, rental income must be divided according to the percentage of ownership of the land. Here Rich is entitled to half of the $12,000.00 rent. He has no right to disturb the tenancy.

A joint tenancy can be severed by sale, mortgage (in a title state) or partition. His options for release of ownership are sale of his interest or a partition through the court. Either way, he will receive value. He can sell without Elizabeth’s consent or knowledge.

Anne

Anne has committed waste upon the property. The issue is whether her use of the land is allowed under the circumstances.

Affirmative waste is that which devalues a property. Mining and/or sale of natural resources upon a leased property or a life estate holder’s property cannot take place absent prior use, a grant, or the only viable purpose for the land is mining. If prior use, then restricted to the “open mines” already in operation when possession was taken. Here, the facts indicate that Anne “discovers” the soil is valuable & “starts” excavating & selling. This is not permitted & Rich has a claim for injunctive relict &/or damages.

SAMPLE ANSWER B

Rich v. Louis

Rich, owner of lot 2, leases it to Steve. Upon purchase of the property Rich was given a deed referencing a recorded subdivision plan stating “no alcohol is to be manufactured or sold on Lots 1 or 2” and that the restriction “shall be binding upon all grantees, successors, heirs, and assigns.”

Louis, owner of lot 1 opens a bar on the property. His deed however, makes no mention of the subdivision plan. It appears that Darryl, prior owner of Lot 1 and 2, created a valid covenant concerning the now subdivided lots. To create a covenant a landowner 1) must hold a parcel of land, the land, 2) owner must have the intent to place a valid restriction on the land or use of the land, 3) the restriction must touch or concern the land, 4) lastly there must be privity between the landowner and future owners.

Here Darryl placed a valid land restriction on his parcel. The land restriction touched and concerned the land by binding all successors to the no alcohol provision. Further there is privity between Darryl and Louis and Darryl and Rich.

The problem arises due to the fact that Louis’s deed contains no reference to the subdivision plan created by Darryl. Usually a covenant on the land is unenforceable if the restriction is not in the landowner’s deed or is not recorded. In this case, however, the subdivision plan was properly recorded by Darryl therefore it can be established that Darryl took with constructive notice of the restriction. If he had properly researched the deed before conveyance he would have discovered the restriction.

Rich can try and obtain an injunction against Louis to have him discontinue the running of the bar on his property and have the injunction enforced.

Rich v. Steve

Rich rents the land he owns to Steve. Louis’ bar is open until 2 a.m., the patrons are noisy, the lights shine directly into the windows of the house Steve rents and bar patrons leave trash on Property 2. Steve is now threatening Rich that he will move out and pay no further rent. Here Rich or Steve could bring a claim against Louis for a private nuisance. To establish private nuisance, Rich or Steve have to establish that the use or enjoyment of their property had been substantially impaired due to the actions of the defendant and that the behavior complained of is of the nature that a reasonable person in the community would also complain of.

Here Steve is substantially impaired of the use of his home and Rich is impaired from using his property in a way he wishes (renting it to Steve). The reason for this impairment is from Louis’ bar operation. Steve can’t sleep because lights are shining in his home and loud patrons are keeping him up until 2 a.m. six nights a week. Further, trash and debris is being left upon his property requiring him to clean up daily.

This behavior is of a nature that any reasonable person in the community would be offended by.

Since Louis’ activities substantially impair Steve and Rich’s land use the claim should be successful.

Further, if Steve does move it, it is through no fault of his landlord Rich. Steve would not be permitted to just leave the premises and pay no further rent. Since the lease of the property is for five years, it is likely there is a signed writing between Steve and Rich. If Steve chooses to leave, he can try and find someone to assign his interest to or will be liable for breach of contract to Rich.

If Steve did leave without finding someone to take over his remaining lease, Rich has a duty to mitigate damages. He should try to find a new tenant to take over payments made to him.

Elizabeth v. Rich

Elizabeth and Rich are joint tenants. As joint tenants, both Elizabeth and Rich have full rights regarding the property. Both parties have right to possession and use of the property. Further, both parties have a right to a share of any income produced on the property. Lastly, joint-tenants have the right of survivorship.

In this case after Rich moves off the property, Elizabeth leases a small house and 4 acres to Anne. Anne pays $10,000 per year to Elizabeth in rent. Rich is entitled to his fair share of these proceeds. Elizabeth is required to share these funds.

The next issue deals with Rich not wanting to be a joint tenant anymore. In order to end a joint tenancy, Rich would seek judicial petition from the court or sever the unities. Here Rich can sell his interest in the property to sever the ownership interest, thereby severing the joint tenancy.

Either method would effectively sever tenancy.

Rich v. Anne

Here Anne is a tenant renting the property from Elizabeth & Rich. Tenants have a duty to keep the property in good repair and not commit waste. Anne is liable to Rich for committing waste on the property. Her excavating endeavor is seriously damaging the property and leaving it in disrepair. Rich can bring a claim against Anne for her waste. Further he can try and bring an eviction motion against her since he did not consent to her rental. This motion will likely be unsuccessful.

Lastly, Rich is entitled to proceeds from the rent she pays to Anne. Additionally, he will be entitled to proceeds from the clay she is excavating from his property.

QUESTION 6 – Contracts

BUYER runs a luxury jet transportation business providing domestic and international travel to wealthy clients and desires to purchase two new “Phantom” jets from SELLER, a manufacturer of luxury jets in Los Angeles. BUYER had recently taken a flight on one of SELLER’s Phantom jets and was very impressed by the luxury cabin, large reclining seats, private baths, etc. Ninety percent of BUYER’s business involves New York to London nonstop service.

BUYER faxes a document to SELLER indicating, “I need two top of the line Phantom jets, fully outfitted for domestic and international flights for my luxury jet service, at a cost of no more than $10,000,000. (Total for both jets.) Payment in cash, upon delivery by January 28, 2010.”

SELLER faxes back, “I have two new Phantoms available, $6,500,000 each, well aware of your business and clientele and these jets are everything you need. I can deliver by your date.”

BUYER responds by fax stating, “I may be able to go to $11,000,000, but delivery must be in N.Y., N.Y. by the specified date and must be ready for top of the line luxury service.”

SELLER responds by fax, “Deal, F.O.B. N.Y., N.Y., by January 28, 2010.” All the faxes from SELLER have a clause stamped on the bottom of the page, “No warranty, neither expressed nor implied, is offered except as required under law.”

SELLER immediately begins outfitting the jets for BUYER. Unknown to BUYER, SELLER manufactures two different models of the Phantom jet: the top of the line PH1 for $12,000,000 with a transoceanic range of 4000 miles which allows direct N.Y. to London flights; and the commercial grade PH2 for $6,500,000 with a transoceanic range of 1500 miles which requires refueling in Greenland in order to make the N.Y. to London flight. (BUYER had flown on the PH1 prior to attempting to purchase a jet from SELLER.) Both jets meet the requirements for international flights under U.S. law, but the PH2 is not typically utilized in the luxury jet business.

SELLER begins to fall behind schedule, and decides to fly the jets directly to N.Y. One jet arrives safely on January 28, 2010 but is rejected by BUYER as nonconforming goods because of the limited transoceanic range and the commercial, non-luxury quality of the cabin. The other jet experiences a mechanical malfunction and could not complete the trip. SELLER offers to take both PH2 jets back in exchange for one PH1 at a cost of $10,000,000, which is $2,000,000 less than the fair market value of the jet. BUYER rejects SELLER’s offer.

SELLER comes to your law office and wants to sue for $13,000,000 for both jets. Prepare the memorandum describing the claims and defenses of both parties.

PREPARE THE MEMORANDUM

SAMPLE ANSWER A

To: Seller
From: Law Office of Applicant
Date: 2/25/2010
RE: Claims and Defenses to Against between Buyer and Seller

As requested, outlined below is a description of the claims and defenses that may be made as a result of the communications between you, the Seller, and Buyer concerning the purchase of two luxury jets. Since this issue resolves around the sale of a good (jetliners), Art. 2 of the Uniform Commercial Code (UCC) controls.

What Agreement Was Made Between the Parties

The first issue is what constitutes a lawfully formed contract between buyer and seller. A contract requires first an offer and then valid acceptance of an agreement between parties (for valid consideration) and there are no valid defenses to the formation of the agreement. To be an enforceable agreement, any goods valued at $500 or more, it must be in writing to be enforceable. Here, the communications was made by fax which will constitute a valid written agreement. When Buyer first contracted you – faxing a document stating his needs – he made an invitation to dial rather than an offer. Your response, stating that you had two jets available for $13,000 constituted an offer to the Buyer. However, Buyer’s return for included a counter offer – stating that he offered to purchase your 2 jets for $11,000 and that delivery must be to N.Y. by the specified date. Your faxed reply was an acceptance of the Buyer’s offer to sell the 2 jets for $11,000 to be delivered to N.Y. on January 28, 2010.

Because a signed writing may liberally be construed to include a faxed document (presumably on corporate letterhead), and there do not appear to be any defenses available to the formation of this agreement (except mistake which is discussed later in this memo), it appears that this is an enforceable contract against both Buyer and Seller.

Warranties:

A question exists as to whether a Seller can disclaim any implied or express warranties in the contract. Under Act 2 of UCC, because both parties to this agreement are merchants, a modification may be made to an agreement so long as it is not a material change to the agreed upon terms, and the other party does not reject the modification within ten days of the change. Here, Seller’s clause at the bottom of the fax that accepts Buyer’s offer may be incorporated into the Agreement.

Buyer may challenge the boilerplate language disclaiming any warranties, except those required by law, as a material change. It is unclear whether the Court will find this to be a material change. However, and more importantly, Seller’s disclaim of any express and implied warranties may not be permissible as a matter of law.

Express warranties may never be disclaimed by another party. The issue here is whether there were any implied warranties of fitness and merchantability that may be disclaimed by the Seller. An implied warranty of merchantability, such as that the product being sold may not be fit for its intended purpose (e.g. Phantom jets, to be used for flying), may only be disclaimed if the party was conspicuous language, as here, is not enough to put the other party on notice and seller cannot disclaim an implied warranty of merchantability.

Another issue is whether the Seller’s modification can lawfully disclaim an implied warranty of fitness. Buyer will try to use Parol Evidence to show that the earlier communication between Buyer and Seller reflect both parties intention and knowledge. That the jets were to be used specifically for Buyer’s intended purpose for luxury jets that can handle international travel (since 90% of Buyer’s business is non-stop service between N.Y. and London and Seller indicated that he is aware of Buyer’s business and clientele and can accommodate Buyer’s specific needs). Therefore, Seller will be liable for his warranty to supply Buyer with goods for this specific purposes.

Unilateral Mistake

Buyer’s unilateral mistake that Seller manufactures two different models of jets would ordinarily not excuse performance under the contract. Here, however, Seller had reason to know of buyer’s mistake because he was familiar with Buyer’s type of business that utilized the luxury, transatlantic model of the Phantom jet.

Because Seller should have known about Buyer’s mistake he should be excused for performance. Additionally, Seller knew that the PHZ was not typically used in the luxury jet business, which was Buyer’s intended use.

Delivery

The agreement between Seller and Buyer was a destination contract (FOB N.Y.) and Seller bears the risk of delivery of the goods until they safely reach N.Y. Further, the agreement specified the deadline in which Buyer must receive the goods (January 28, 2010) and the agreement between the parties is therefore controlling. Seller had the obligation to Buyer to deliver both jets safely to N.Y. by the specified delivery date this failure to perfectly the goods under the agreed upon terms of the contract constitutes a breach and Buyer is permitted to reject the goods.

Damages

Seller is not entitled to the $13,000 – both because that was not the agreed upon contract price and Seller breached many terms of the agreement. Seller may receive incidental damages for manufacturing the jet specifically for Buyer – but this is unlikely. Moreover, Seller is likely liable to Buyer for mandatory damaged for his breach.

SAMPLE ANSWER B

Memorandum

RE: Buyer and Sellers’ claims and defenses

The issue is whether a valid contract was formed and therefore whether the parties here breached.

Buyer v. Seller:

Buyer sent a fax indicating an offer. A valid contract requires an offer, acceptance and consideration. There must be a valid bargained – for exchange and while Courts do not inquire as to the adequacy of consideration there must be some legal benefit conferred or determent to the parties. An offer can be revoked and may be accepted only if the other party is aware of its acceptance. In addition, under the UCC, Article 2 all contracts for the sale of goods over $500 must be in writing to be enforceable. Contract must have all – material terms, particularly quantity. If certain items are missing, such as price, Courts will use the UCC to fill in any missing gaps.

Buyer will argue that Seller’s return fax is merely a counter – offer. As such, it renders the previous offer for $11,000 which Seller accepted via fax. However this deal is arguably not valid because it is lacking quantity of goods. Assuming a contract was formed, the issue arises whether the warranty clause disclaiming liability is valid and integrated or excluded from the contract.

The common law required a mirror image rule of the offer and acceptance. Under the UCC, when parties include additional terms to their acceptance and they are material, the additional terms are excluded from the contract, absent an agreement to the contrary. Buyer will therefore claim, the entire disclaimer is not included because it is written on the faxes from Seller and did not become part of their contract because it is material to the terms and not agreed upon implicitly. In addition, a warranty of merchantability is implicitly guaranteed in all contracts for the sale of goods.

Seller will defend the disclaimer saying Buyer was aware of it because it’s on fax and because Buyer did not object within a reasonable time, it did become part of the contract. As for the warranty, Seller’s defense is that it is not implied and not unconscionable so the Court will find it reasonable. Courts generally here hold that disclaimers of all liability do not protect a party in event of a breach of contract.

Assuming a contract was validly formed, the issue mutual or unilateral mistake arises. A unilateral mistake is where one party is mistaken as to an essential element of the contract. Mutual mistakes are generally found where both parties are mistaken as to the actual element of the contract. As the Peerless can be held, where both parties are mistaken there is no valid agreement of the minds – and therefore the entire contract is void. Courts generally do not excuse unilateral mistakes and the Buyer is still liable.

Seller will argue that the parties do not have a mistake here because he mentioned two Phantoms at $6,500 in the negotiation – which is the price for a PH2 and therefore a valid contract exists. Buyer will claim he traveled on a PH1 and specifically requested the luxurious version (and perhaps was unaware of the PH2). At a minimum, Buyer would want to void the contract due to mutual mistake but Seller will claim it is a unilateral mistake on Buyers part and as such he should have known and is liable.

The next issue is when a Buyer can reject non-conforming goods. As per the perfect lender rule, a Buyer is entitled to receive a perfect shipment. If the goods arrive and are not as per his specification, he can reject and use for breach. In the alternative, a buyer can keep the goods. Buyer had the rights to reject the jet because it did not conform to his expectations under the contract. To put him into the position he would be in had the contract been performed, buyer will ask for damages including any incidental damages resulting from the breach.

The second jet malfunctioned. The issue is what the rights are regarding damaged goods. Under the doctrine of equitable conversation, the risk of loss can in transferred to the Buyer. When goods are transferred by FOB, they must get to N.Y. in good condition, and the risk remains with Seller. Seller will attempt to cure the contract, within a commercially reasonable time but Buyer rejected the new offer.

In conclusion, because the contract dispute goes to the material terms of the actual goods, the Court will need to determine whether a contract existed and if so – whether a mutual or unilateral mistake exist. Seller will request damages to put him in the rightful position that he would have been in had Buyer accepted his goods or at least accepted the second offer to cure for fair market value. In determining Seller’s damages, Courts usually grant contract price minus cover price (Buyer) or the contract price minus resale price. Since Seller is in breach, he will not recover any damages With regard its breach of contract damages, courts will determine whether the breach itself was minor or material. However, Buyer will claim (assuming the contract was valid) that delivery of a completely different jet or one that malfunction is a material breach.

QUESTION 7 – Torts

On Saturday morning Sam and Chace, both 12 years old, were playing at Sam’s house. Sam’s dad was home working around the house and watching both of them. They were good natured boys, but a bit wild and rambunctious. Dad told them to stay near the house and not wander off. While playing in the garage, the boys decided to take the motorized dirt bike out for a ride. Dad had placed a chain lock around the bike and hidden the key, because Sam had taken the bike a few times without his permission. Sam and Chace found the hidden key. Sam easily started the motor, and Chace happily jumped on the back.

The boys wanted to see the progress at Jim’s new pool. Jim lived on a large farm that bordered Sam’s property. All the boys cut through his farm on the way to school, and Jim was constantly yelling at them to stay off his fields. Jim had recently started the pool excavation. He put “keep out” signs and red flags around the excavation area but no fencing because it was easier to dig without fencing and the pool was not near any roads.

Sam and Chace rode across Jim’s fields, speeding toward the excavation site. Sam did not realize the ground was uneven or see the many ruts and rocks from the excavation. The bike hit a large stone and Sam lost control of the bike, throwing them both off. Sam was not hurt, but Chace suffered significant injuries.

Chace’s parents consult your law firm about seeking damages for Chace’s injuries. Your senior partner asks you to prepare a memorandum analyzing any and all actions they may have and any and all defenses that may be raised.

PREPARE THE MEMORANDUM

SAMPLE ANSWER A

Memorandum

To: Senior Partner
From: Associate
Re: Chase v. Sam

Chase's parents have consulted our law firm seeking damages for Chace's injuries. Below please find an outline of actions they may have and any and all defenses that may be raised.

Because there does not seem to be any evidence that Sam intentionally injured Chase, I will not go into details with those claims. The most likely suits invovled will be negligence actions.

I. Negligence action against Sam

To prove that Sam acted negligently against Chase, four requirements must be met: (1) duty, (2) breach, (3) causation - actual and proximate, and (4) damages. I will address each requirement in order.

First, a person owes a duty to all foreseeable plaintiffs. A person owes as much duty as a reasonably prudent person acting in the defendant's position. A reasonably prudent person standard may be different depending upon the defendant. For instance, someone with specialized knowledge or experience - an expert - will owe a much higher standard of duty: that of a similarly situated specialist of that type of speciality in the local where the action occurred. For a child tortfeasor, a child is held to the standard of a similar child with the same knowlege, age and experience. If, however, the child is conducting an adult activity, the child will be held to the reasonably prudent person standard.

Here, Sam is 12 years old. Normally he would be held to the same standard of care as a similar child with Sam's knowledge, age and experience. However, because he was conducting an adult activty, namely riding a motorized dirt bike, he will be held to a reasoanbly prudent person standard of care.

Second, a person has breached a duty to another when the tortfeasor has failed to exercise the reasonable care. This is measured by custom and sometimes a cost-benefit analysis of whether the activity could have been made more safe by the tortfeasor.

Here, the issue of breach will most likely not be a problem. Chase was injured because of Sam's actions when driving the dirt bike. If Sam owed a duty to Chase, he breached the duty by causing injury to Chase.

Third, the actions taken by a tortfeasor must be the actual and proximate cause of the plaintiff's injuries. Actual cause is a determination that the injuries would not have occurred but-for the defendant's actions. Proximate cause is a determination that the injuries caused were reasonably foreseeable.

Here, there will be a big dispute as to whether Sam's actions were the actual and proximate cause of Chase's injuries. There are many intervening factors ibetween Sam's actions and the injuries Chase suffered including Sam's dad's negligence in not locking the dirt bike properly, or Jim's negligence in failing to make the pool excavation cite safe, or the unseen rocks and ruts from the excavation on Jim's property.

When there is more than one possible cause of a plaintiff's injuries that could have, by itself, caused the injuries, all defendants in this status will be held jointly and severally liable for the plaintiff's injuries. If there is only one cause of the plaintiff's injuries, but it is unclear which defendant caused the injuries, the burden shifts to the defendant's to prove that they were not the cause. I

This will likely be the most disputed area between the parties. Sam, Sam's Dad, or Jim, could all be jointly liable.

Fourth and finally, the plaintiff must have suffered damages. This will not be an issue here, as Chase suffered significant physical injuries by being thrown from the dirt bike.

2. Negligence action against Sam's Dad

Chase may be able to bring a suit against Sam's dad. Normally, a parent is not liable for his children's actions. A parent may be liable in negligence, however, if the parent acted negligently themselves. A parent may act negligently themselves if they know of their child's propensity to act in a certain way and fail to ensure that the child does not act in that way again.

Here, Sam's dad had placed a chain lock around the bike and hidden the key because Sam had taken the bike a few times without permission. It appears that altough Sam's dad new of Sam's propensity to take the bike without permission, he did not act negligently in this case. It appears that he took reasonable steps to ensure that Sam would not take the bike out again but putting a chain lock and hidding the key. As long as he did this like a reasonably prudent person (under the 4 part negligence test outlined above), he will not be liable for negligence due to his own actions or by vicarious liability for his son.

3. Negligence action against Jim as landowner

A landowner is another special case that requires a slightly different determination of negligent liability based on the status of the land entrant. Generally, a landowner does not owe any duty to unforeseen or unknown trespassers. If the trespasser is foreseeable, a landowner owes a duty to protect against all known, hidden, manmade death traps. If the trespasser is a licensee (enters the land with the landownerss permission for his or her own purposes), a landowner owes a duty to protect against all known, hidden traps. And if the trespasser is an inviteee (enters the land with the landlord's permission for the landownerss own business purposes), a landowner owes a duty to protect against all known or reasoanbly knowable traps.

In order to protect against these traps, a landowner may either fix to make the condition safe or provide sufficient warning so that the condition is no longer hidden.

Here, the boys frequently cut through Jim's farm on the way to school and Jim was constantly yelling at them to stay off his fields. From this information, the boys would be in the status of a known/foreseeable trespasser. Therefore, Jim must protect against al lknown, hidden, manmade death traps. A pool would be just the sort of trap to warn against or make safe.

Jim did put "keep out" signs and red flags around the excavation area, but no fencing because it was eaiser to dig without fencing and the pool was not near any roads. This may be sufficient warning, but here Jim was aware that this constituted an attractive nuisance.

An attractive nuisance is an activity or manmade object on the land that the owner should reasoanbly foresee to attract children. The children need not be attracted to enter the land because of the object, but if it is reasonably foreseeable that children will enter the land, the landowner must be a reasonably prudent person and foresee what will happen. In making the determination of what exactly a landowner must do, the court will look conduct a cost benefit analysis of what safety precautions could have been errected on the land.

Here, Jim should have known that the pool excavation would be an attractive nuisance because he was aware that children were constantly trespassing on his land. Although he put up signs and red flags, under the cost-benefit analysis to be performed by the court, a fence may have been the more safe way to protect against an accident like this. It is interesting to note that Chase was not injured by falling into the pool excavation, but rather was injured when traversing the uneven ground surrounding the excavation caused by ruts and rocks.

If this is the case, Jim may be found liable of negligence for Chase's injuries.

4. Defenses likely to be raised by all defendants

All defendants will likely claim contributary negligence. Contributory negligence is the plaintiff's own negligence in putting themselves in the position they were injured. If a plaintiff is found to be contributorily negligent, the court will determine what the degree of fault of each party. In a pure comparative negligence state, plaintiff's award for injuries will be decreased by the percentage they are at fault. In a modified or partial comparative negligence state, plaintiff's award for injuries will be decreased by the percentage they are at fault so long as the plaintiff is less than 50% at fault.

Here, all the defendants will argue that Chase was contributorily negligent for his injuries. They will attempt to prove that Chase assumed the risk of riding with Sam and therefore they should not be completely liable for his injuries.

SAMPLE ANSWER B

The first issue concerns Chase’s rights against Jim. First, may Chase’s parents commence an action against Jim for negligence?

To prevail in a negligence action, one must establish duty, breach, cause and damages.

The law distinguishes between the duty owed by a landowner to those
entering on his land by the entrant’s status. For example, an invitee is one who enters for the landowner’s purposes (e.g. a friend, mailman); a licensee is one who enters land open to the public (e.g. a store customer); and a trespasser, such as Sam and Chase, enter or remain on the land without the landowner’s consent. A landowner owes the least duty to a trespasser, which is only to warn of known latent dangerous conditions once the trespasser’s presence is known. The landowner owes no duty to inspect the property.

Here Jim posted “Keep Out” signs and flags around the excavation. Because Chase was a trespasser, Jim had no duty to inspect the property and he posted warnings of the dangerous conditions on his land. Thus, he is not liable for Chase’s injuries.

However, Chase’s parents may have a secondary claim against Jim based on the attractive nuisance doctrine in where there is an artificial condition on one’s land that may be attractive to kids, one may owe a duty to guard against injury. Courts consider the following factors:

The type of condition on the land
The ability of the child to appreciate the danger
The cost in fixing/changing the conditions
The cost/benefit analysis of whether the utility of the condition outweighs the
cost to change the condition

A pool may be an attractive nuisance, but a child of age 12 is able to appreciate the danger and should have known not to enter the property.

However, Chase was not injured by the natural condition of the pool (e.g. by drowning), but because of the excavation. Accordingly, Jim’s cost in fencing off the area is not outweighed by the benefit of easing the excavation process. He is in a better position to insure against such injuries caused and should be held liable.

The next issue is whether Chase’s parents have a claim against Sam and his father for negligence. To prove negligence, you must show duty, breach, causation and damages.

First, Dad owed a duty to reasonably supervise Chase, which standard was breached when he did not watch them.

There are two types of causation: factual (also known as “but for” cause) and proximate cause. “But for” Dad’s negligent supervision, Chase’s injuries would not have occurred. Generally, a parent is not liable for the torts of his child. However, a parent will be liable in the following circumstances:
Where the child acts as the parents servant or agent in an employment situation
Where the parent entrusts an instrumentality to the child
Where the parent consents to the child’s conduct/activity
Where the parent has knowledge of the child’s propensity of certain
activities/behaviors

Here, Dad did not entrust the bike, a dangerous instrumentality, to Sam. However, the had knowledge of Sam’s prior use. He guarded against Sam’s use by locking the bike up with a chain.

However, the children easily found the key. It is likely that a jury might find that Dad should have done a better job locking up the bike. Damages in this case are Chase’s injuries. It is possible to prove all elements of a negligence claim against Dad.

It is also a possibility to prove that Sam is a tortfeasor. Specifically, he is a concurrent or subsequent tortfeasor who proximately caused Chase’s injuries.

First, Sam owed Chase a duty. Sam will be held to an adult standard. This is because he was using an adult’s bike. He used a dangerous instrumentality and will be held to the higher standard.

Next, he breached the duty owed when he entered Jim’s field and crashed. Next, “but for” Sam’s actions, Chase would not be injured. Next, Sam is the proximate cause, i..e., it is reasonably foreseeable that a child operating the bike might cause the bike to lose control and crash.

Damages are Chase’s injuries. Both Dad and Sam are liable for Chase’s injuries.

Note, that where there are concurrent tortfeasors, the plaintiff need only establish that both tortfeasors could have caused the tort at issue and the resulting damages, but need not prove which one was responsible. The burden shifts to the tortfeasors to establish which one is responsible. Generally, if they are unable, the fact finder will establish a percentage of liability for each or they will be jointly and severally liable.

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