practice bar exam essay


Question 1

Abel v. Diana

 

Intentional Battery

 
Abel’s first cause of action against Diana will be for the intentional tort of battery.  A battery occurs when one acts intending to cause an offensive or harmful touching to the person of another.  The intent to act can be inferred from knowledge that the result, an offensive or harmful touching, is likely to result.  The actor is presumed to have intended to cause the natural and probable results of her acts. 
 
Here, Diana maneuvered her car near the scaffolding knowing that there was a risk of knocking the scaffold down.  By knowing that this risk was present, and consciously disregarding this known risk of injury, Diana acted in a reckless manner.  Acting in a reckless manner will result Diana being liable to Abel for battery.
 

Negligence for failure to act with reasonable care

 
Abel’s second cause of action against Diana will be for negligence.  Negligence is present when the defendant has a duty to act, breaches that duty, causes the plaintiff harm, resulting in injury or damages to the plaintiff.
 
Diana had a duty to act as a reasonable person would under the circumstances.  She owed this duty to foreseeable victims of her harm (Cardozo), or in a minority of jurisdictions, to anyone who is injured as a result (Andrews).
 
Diana breached this duty by failing to act as a reasonable person would under the circumstances.  Knowing that scaffolding was present, and knowing that there was a risk of knocking the scaffolding down, a reasonable person in Diana’s situation would have either not parked her car next to the scaffolding, or not parked unless someone assisted her by giving her instructions in guiding her car.
 
Diana was the actual cause of Abel’s harm in that it was her maneuvering of her car which caused the scaffolding to collapse, which was the direct cause of Abel’s scull fracture. 
 
In order to be liable for the injuries, Diana must have also been the proximate cause of Abel’s harm.  This requires the injury to have been reasonably foreseeable.  Diana will argue that because Abel was not wearing his hard hat, the fractured skull was not foreseeable.  Abel will argue that while the extent of his injuries may not have been foreseeable, injury to a worker on the scaffolding was foreseeable, because she knew there was a risk that her car would cause the scaffolding to collapse.  Once Abel establishes that the injury was foreseeable, Diana is liable for the full extent of the injury.
 
Abel clearly suffered damages, in that he fractured his skull and undoubtedly has medical bills and pain and suffering damages.
 
Diana will claim in her defense that Abel was contributory negligent by failing to wear a hard hat.  Contributory negligence is a defense in a negligence suit when the plaintiff was also negligent, and that negligence contributed to the harm suffered.  In some jurisdictions, contributory negligence is a complete bar to plaintiff’s recovery; in other comparative negligence jurisdictions it is a partial bar.
 
Diana will argue that a reasonable scaffolding worker would have been wearing a hard hat.  She will point out that the employer required Abel to wear a hard hat, and that it is the industry custom for scaffolding workers to wear hard hats.  While not dispositive, this will be evidence of what a reasonable scaffolding worker would do.  Therefore, if Diana is able to prove that a reasonable scaffolding worker would have been wearing a hard hat, in a contributory negligence jurisdiction this will be a complete defense to liability; in a comparative negligence jurisdiction it will reduce her liability.
 
Diana may also try to show that a reasonable scaffolding company would have blocked off street parking if there was a danger that a car could collapse the scaffolding.
 
Abel will refute Diana’s claim of contributory negligence by showing that Diana knew there was a risk of knocking the scaffolding down, and consciously disregarded the risk, thereby acting recklessly.  In some jurisdictions, contributory negligence is not a defense to reckless conduct, and therefore she would be precluded from using contributory negligence as a defense.
 

Abel v. Sam

 
Abel will sue Sam for negligence, for failure to assist Diane in parking her car next to the scaffolding.  The elements of negligence are the same as above.
 
In order to prove negligence, Abel must establish that Sam owed Abel a duty of reasonable care.  There is no general duty to act, and unless one of the exceptions applies, Sam owes no duty to Abel.  The possibly applicable exceptions to the general “no duty to act” rule include when the defendant causes the harm complained of, or starts a rescue but leaves the plaintiff in worse condition. 
 
Here, Sam did neither:  Sam did not cause the scaffolding to collapse by refusing to assist Diane, because it was Diane’s actions of maneuvering the car into the scaffolding which caused it to collapse.  Nor did Sam attempt to aid Abel and leave him in a worse position.  Instead, Sam simply did nothing to aid or harm Abel, and therefore cannot be liable in negligence.
 

Baker v. Ed

 
Baker will sue Ed based on negligence, for failure to operate Ed’s car in a reasonable manner.  The elements of negligence are the same as set forth above.  Ed has a duty to operate his car in a reasonable manner and as a reasonable driver would under the circumstances.  A reasonable driver would have stopped his car in time to prevent a collision with the car in front of him.  By failing to control his car and keep it from rear-ending Baker’s car, Ed breached that duty.  Ed’s breach of his duty caused his car to run into Baker’s car.  The real question is the extent of injury for which Ed is liable.
 
Ed will argue that his failure to stop his car did not proximately cause Baker’s injuries.  Proximate causation requires that the injury suffered by the plaintiff be reasonably foreseeable by the defendant, and not caused by an intervening factor unforeseeable enough to cut off liability.  Here, Ed will argue that Baker’s injuries were not caused by his negligent operation of his car, but by Diane’s previous injury to Baker’s back.  He will argue that it was not foreseeable that a minor fender-bender accident would result in paralysis.
 
This argument will not succeed, however.  Once a tortfeasor, such as Ed, causes a foreseeable injury, he is liable for the full extent of damages resulting from that injury, even if the extent of the damages themselves is not foreseeable.  Baker’s injury was not caused by a subsequent intervening act – it was caused by a prior act.  Therefore, Ed is liable for the paralysis he caused Baker, and Baker’s preexisting injury (akin to an eggshell-thin skull) is not a defense to liability.
 
Similarly, Ed may allege that Baker’s failure to seek medical attention after the morning accident limits his liability because Baker failed to mitigate his damages.  However this argument will not apply to Ed, because it was not Baker’s injury which Ed failed to mitigate; it was Diane’s.  Ed would only be successful on this claim if he failed to mitigate the paralysis, and the facts do not indicate any such failure.
 
Therefore, Baker can recover from Ed for his paralysis, and the damage to his car.
 

Question 2

Dan’s Motion to Exclude Heroine Found on Person

 

The Fourth Amendment guarantees the right to be free from unreasonable searches and seizures.  Suppression or exclusion of evidence from trial is the proper remedy when the evidence has been obtained by an unlawful or unreasonable search or seizure.

 

Search of Luggage

 
Dan will first argue that the search of his luggage was unlawful because he was detained and searched without probable cause.  Normally, a search of one’s person and belongings requires the police to have probable cause.  Probable cause is a reasonable belief that the thing to be searched contains evidence of a criminal act.  However, at international borders, there the Fourth Amendment right against unreasonable searches and seizures is extremely limited.  Customs inspectors may detain and question a person for a reasonable time without probable cause.  Search of luggage at international boarders requires only a reasonable suspicion that the luggage contains contraband.
 
Here, Dan was walking across a US border with Anon, who Fred, a customs inspector, recognized as a convicted narcotics smuggler.  This would likely give Fred reasonable suspicion to believe that Dan may have had contraband in his luggage.  International borders are high traffic areas for drug smuggling, and the drugs are often kept in suitcases.  A traveler would not normally walk across the US border, as opposed to driving or taking a bus.  Therefore, it is reasonable that Fred would be suspicious when Dan came walking across the border, carrying luggage, talking to a known drug smuggler.  Therefore, Fred had reasonable suspicion to search the luggage.
 
Body Cavity Search
 
A search of a body cavity, even at international borders, requires a strong showing of probable cause and reasonableness.  Probable cause is a reasonable belief that the thing to be searched contains evidence of a criminal act.  Fred based his probable cause on the fact that Dan was carrying dextrose powder, used to dilute heroine, and envelopes in his luggage.  Both items are completely legal and not contraband, even though they are used in the sale of narcotics.
 
Possession of dextrose and envelopes alone would not properly give Fred probable cause to search Dan’s body cavity.  Fred had no articulable information to make him believe that Dan was carrying drugs in a body cavity.  It is entirely possible for a person to carry dextrose and envelopes, without having drugs on their person or belongings.  Therefore, Fred lacked probable cause to search Dan, and evidence of the heroine should be excluded.
 
Even if Fred had probable cause to conduct the body cavity search, the search was done in an unreasonable way.  A body cavity search, even when performed by a physician, is a highly invasive procedure which is allowed only on a strong showing of strict necessity.  Here, less invasive alternatives exist, such as an x-ray of Dan’s body cavity which would have shown the drugs.  Because Fred lacked probable cause to arrest Dan, Fred could not have just waited for Dan to naturally expel the drugs (another reasonable alternative to a body cavity search).  Nonetheless, because an x-ray is an available alternative, there was no strict necessity for the body cavity search and the search was therefore unreasonable.
 
As a product of a search lacking probable cause and which was unreasonable, the heroine must be excluded.
 
Search of Dan’s Car
 
The Fourth Amendment offers little protection against searches in things which we have no or little reasonable expectation of privacy.  A car parked on the public street is one such instance in which there is little reasonable expectation of privacy.  The police are permitted to search a vehicle if they have probable cause to believe contraband is located inside the vehicle.  Due to the inherent mobile nature of a car, the police do not need a warrant to conduct the search, provided that they have probable cause.  Once the police have probable cause, they can search the entire car, including the contents of packages which could reasonably contain the evidence which they are looking for.
 
Here, once Dan was arrested, Fred told the state authorities that Dan had been arrested on a drug charge.  Dan will argue that conveying this information to Olsen did not, by itself, give Olsen probable cause to believe the car would contain drugs.  Dan had drugs and drug paraphernalia on his person and luggage, but there was no indication that his car would contain more drugs.  Olsen may argue that some drug smugglers keep drugs in their car, or that cars are used to transport drugs.  But Olsen had no articulable reason to believe that Dan’s vehicle contained drugs, and therefore Olsen did not have probable cause to search Dan’s vehicle.
 
If Olsen did have probable cause to search Dan’s vehicle, Olsen could have searched the car in its present location on the street, or, as he did, have it towed to the police station to have it searched there.  Moving the location of the car and delaying the search to the following day do not negate the ability of the police to search the car, once they have probable cause.
 
Therefore, because Olsen lacked probable cause in searching Dan’s car, the court should exclude the evidence of the drugs found in Dan’s car.
 
Bail
 
The Constitution does not contain a guarantee of bail, and thus states are not required to provide bail to those incarcerated on suspicion of committing a crime.  However, many states do have provisions for bail in the state constitutions, and in those cases, the federal Constitution provides that such bail must not be unreasonable, given the crime charged.
 
Bail may properly be denied when the defendant has committed a highly dangerous crime, such as murder, in order to ensure defendant remains incarcerated and unable to harm anyone else.  The purpose of bail is to ensure the defendant remains available for trial.
 
Here, Dan was charged with smuggling narcotics.  He will argue that this crime is not inherently dangerous to society.  The prosecution will argue that bail should be denied, because drug smuggling is dangerous in that it supplies dangerous drugs to this country.  Additionally, Dan poses a flight risk since he was arrested at a U.S. border crossing into this country.  Nothing would stop Dan from walking out of the country the same way he came in, if bail was granted or Dan was released on his own recognizance.  Therefore, because trafficking of heroine does pose a danger to society, and because Dan poses a flight risk, bail should be denied.
 
Dan will argue that he is indigent, and that if bail was to be set, he would be unable to pay it and therefore he should be released on his own recognizance.  This argument will fail.  The constitution requires that bail not be set at an unreasonable amount, but there is no right for indigents to be released on their own recognizance because they cannot pay the bail amount.  As long as the amount set is not unreasonable given the crime charged and the underlying purpose of bail (securing defendant’s presence at trial – discouraging him from fleeing), Dan has no right to be released on his own recognizance.

Question 3
Peter v. Al

Nuisance
 
Peter’s first claim against Al will be based on nuisance.  A nuisance occurs when the defendant unreasonably interferes with the plaintiff’s use and enjoyment of his land.  Peter uses his land as a commercial hotel.  One of the features of Peter’s land and hotel which attracts customers is that Peter’s hotel has a nice view of the landscape across Al’s land.  Peter will argue that by allowing ten billboards to be constructed on his land, Al is unreasonably interfering with Peter’s view and sunlight.  There are ten billboards, which are neon-lit, and when block the view of the landscape and the sunlight.  Peter will also show that the presence of the billboards has reduced the popularity of the hotel among vacationers.
 
Al will argue that the billboards do not unreasonably interfere with Peter’s use of his land, because Al also has a right to make use of his land.  Al will argue that any interference is not unreasonable because the guests are still able to stay at the hotel without any disturbance, and that if the billboards block their view, the view is no more blocked than if Al built a building on his land, which he would be entitled to do.  Further, Al will argue that his billboards do not limit Peter’s use and enjoyment of the land, they merely limit his enjoyment of the scenery, and therefore not protected from a nuisance.
 
A jury could find either for or against Al, depending on the how unreasonable they find the interference to be.  The quantity (10) of the billboards, coupled with the fact that they are neon-lighted, located in the country, and block the view of hotel guests who come to the hotel specifically for the view, would be strong evidence that a nuisance exists.
 
Implied Easement for Light and View
 
Peter will argue that he has an implied easement for light and view over Al’s property, which would prevent Al from constructing anything on his property which interferes with Peter’s light and view.  In a minority of jurisdictions, such an easement is recognized, but in the majority of jurisdictions, there are no implied easements for light or view.  Therefore, Peter’s argument will fail.
 
Easement by Prescription
 
Peter will argue that he has a prescriptive easement over Al’s property for the view.  A prescriptive easement exists when the dominant tenement (Peter) meets the elements of adverse possession: Hostile, exclusive, for the statutory period, use, visible, and actual. 
 
In this case, Peter fails to meet these elements.  Peter will be unable to show that by having a hotel on his property, Peter’s use of the view over Al’s property was hostile to Al’s use of his property, or that such use was exclusive.  The statutory period at common law is 25 years, and that element is met.  It is debatable whether the “use” element is met or not, since the use was by view, and not actual possession.  Normally an adverse possessor must use the property in the way in which an actual owner would use it, and an actual owner of property probably wouldn’t use the property solely for the purpose of looking across it.  Peter’s use was also probably not visible, since a reasonable person would likely not know that Peter was using Al’s property for its view.  Peter’s use was also not actual, since Peter did not occupy Al’s property in any way. 
 
Therefore, Peter does not have a prescriptive easement over Al’s property.
 
Bret v. Al

Easement
 
Bret will sue Al for an injunction against interfering with the billboards.  An injunction is a proper equitable remedy to prevent the defendant from doing something that would injure the plaintiff’s interests in land.
 
Bret will claim that Al granted Bret an express easement to construct and maintain the billboards.  This type of easement would be “in gross” because there is no dominant estate.  The easement gives Bret the right to enter on to Al’s land to construct and maintain the billboards.
 
The statute of frauds requires that transfers of interests in land for more than one year be evidenced by a writing setting forth the names of the parties, the price, and a sufficient description of the land.  An easement is an interest in land.  Here, there was no writing evidencing the grant of the easement, and therefore Bret will be unable to claim that he has an easement from Al.
 
An exception to the writing requirement exists when the possessor of the land (Bret) has satisfied two of the three requirements for exception to the statute of frauds:  Tendered purchase price; has actual possession of the land; and has made improvements to the land.  In this case, there was no consideration paid, thus no tendering of the purchase price.  However, Bret has actual possession of the land in that he constructed billboards on the land, and has made improvements to the land in the form of the billboards.  Therefore, Bret may be able to establish an easement despite the lack of a writing.
 
An easement which fails due to lack of a writing may qualify as a license.  A license is not an interest in land, but rather the right to enter onto land without being considered a trespasser.  A license may be oral, therefore Bret would be able to prove that he has a license.  The licensor, Al, is generally free to revoke the license at any time, which Al has attempted to do by threatening to remove the billboards.  The exception to this rule is that a license is not revocable when it is coupled with an interest in the land.  Here, the fact that there was no consideration paid for the license does not negate the interest in land – consideration would merely establish a contract and provide for damages under breach of contract.  Rather, the interest in the land is the 10 billboards which Bret constructed at a total cost of $25,000.  This interest makes the license revocable.
 
Carl’s Testimony
 
Relevance
 
Al may claim that he never granted Bret an interest in the land, and that if an interest was granted, it was not an easement.  Bret will want to have Carl testify at trial that Carl heard Al grant to Bret “the right to construct and maintain 10 billboards on Blackacre”, which is language of an easement.  Carl, as an attorney, would have recognized that this language was that of an easement.
 
In order to be admissible, Carl’s testimony must be relevant.  Only relevant evidence is admissible, and nonrelevant evidence is inadmissible.  Evidence is relevant if it has a tendency to show that a fact is more probable than not to have occurred.  Carl will be able to testify as to what he heard Al say, and this is relevant because it has a tendency to show and prove that Al granted Bret an easement.
 
Hearsay
 
Al will object to the testimony because the statement which Carl overheard is hearsay.  A statement is hearsay if it is an out of court statement, used to prove the truth of the matter asserted.  In this case, Al’s statement was not said in court at the present proceeding, and it is being offered to prove the truth of the matter asserted: That Al granted Bret the easement.
 
An exception to the hearsay rule prevents testimony as to the statement when the statement was a legally operative statement.  In this case, because the statement was a grant of land, a legally operative statement is present, and will be admissible to show that the grant took place.
 
Additionally, Al’s statement granting the land to Carl is an admission of fact, which he will be estopped from denying at trial.  The admission exception to the hearsay rule allows testimony regarding a fact which the opposing party admitted.  Al is the opposing party in this case, so Bret will be allowed to show, by Carl’s testimony, that Al admitted granting an easement in the land to Bret.
 
Statute of Frauds
 
As mentioned above, because Al granted Bret an interest in land, the statute of frauds requires that there be proof of the grant in writing in order to prove that the interest exists.  Because no writing exists in this case, Al will claim that Carl should not be allowed to testify as to the oral grant.  However, the statute of frauds does not prevent a person from testifying in court.  The court may hear Carl’s testimony for purposes other than proving that an easement exists, such as for the purpose of determining if a license, which does not fall under the statute of frauds, exists.

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