First Year Law Students’ Examination Essay Questions and Selected Answers June 2021

California

First-Year Law Students'

Examination

Essay Questions

and

Selected Answers

June 2021

ESSAY QUESTIONS AND SELECTED ANSWERS

JUNE 2021

CALIFORNIA FIRST-YEAR LAW STUDENTS’ EXAMINATION

This publication contains the four essay questions from the June 2021 California First-Year Law

Students’ Examination and two selected answers for each question.

The answers were assigned high grades and were written by applicants who passed the

examination. The answers were produced as submitted by the applicant, except that minor

corrections in spelling and punctuation were made for ease in reading. They are reproduced

here with the consent of the authors.

Question Number Subject

1. Contracts

2. Torts

3. Criminal Law

4. Contracts

OFFICE OF ADMISSIONS

COMMITTEE OF BAR EXAMINERS

June 2021

ESSAY QUESTION 1 OF 4

Answer All 4 Questions

California

First-Year Law Students'

Examination

Answer all 4 questions.

Your answer should demonstrate your ability to analyze the facts in the question, to tell the

difference between material facts and immaterial facts, and to discern the points of law and

fact upon which the case turns. Your answer should show that you know and understand the

pertinent principles and theories of law, their qualifications and limitations, and their

relationships to each other.

Your answer should evidence your ability to apply the law to the given facts and to reason in a

logical, lawyer-like manner from the premises you adopt to a sound conclusion. Do not merely

show that you remember legal principles. Instead, try to demonstrate your proficiency in using

and applying them.

If your answer contains only a statement of your conclusions, you will receive little or no credit.

State fully the reasons that support your conclusions, and discuss all points thoroughly.

Your answer should be complete, but you should not volunteer information or discuss legal

doctrines that are not pertinent to the solution of the problem.

You should answer according to legal theories and principles of general application.

QUESTION 1

Seller owns a van used in her plumbing business. When Seller purchased a new van, she

decided to sell the old one. On MONDAY, Seller sent an email to Buyer, who runs a lawn

service

company located across the street from Seller, stating:

Dear Buyer, I would sell my old van to you for $15,000 cash. [Signed] Seller

Buyer immediately responded with an email that said:

I'm interested. If you can give me until Sunday to decide, I'll have my mechanic

stop over

this week and check it out. [Signed] Buyer

A few minutes later, Seller responded:

Your mechanic can stop over any time. You can have until Sunday to decide.

[Signed]

Seller

On TUESDAY, the mechanic checked over the van and reported to Buyer that, although

the

van needed a new set of tires, $15,000 was a great price. Buyer decided to purchase the

van and told the mechanic to order the new tires it would need. Late Tuesday evening, Seller

sent an email to Buyer stating:

Jones Dry Cleaning just said they might be interested at $17,000 for the van.

Buyer did not read the email and, on WEDNESDAY, Buyer mailed a letter to Seller stating:

I agree to buy the van for $15,000. I'll drop off the check on Saturday. [Signed]

Buyer

On THURSDAY, Seller sent an email to Buyer stating:

Sold the van to Jones Dry Cleaning.

On FRIDAY, Seller received the letter from Buyer and immediately sent an email to

Buyer

repeating that the van had already been sold. Seller fails to deliver the

van to Buyer. Buyer

sues Seller for breach of contract.

Will Buyer prevail? Discuss.

QUESTION 1: SELECTED ANSWER A

Buyer will prevail in his suit against Seller for breach of contract; see infra.

Buyer v. Seller

Applicable Law

The Uniform Commercial Code (UCC) controls agreements for the sale of tangible,

movable goods. All other types of agreements are controlled by common law. Here, the

agreement is for the sale of a used van. A van is a tangible, movable good. Therefore,

the UCC controls this agreement.

Standard of Conduct

Parties will be held to "good faith" or honesty in fact.

Merchants

Under the UCC, a merchant is someone that presents themselves as having special

knowledge or skill in the subject matter or who normally deals with the subject matter of

the agreement. Here, the subject matter of the agreement is a van. The parties involved

are a plumbing business owner and a lawn service company owner; neither regularly

nor normally deal with vans (autos). Moreover, no facts indicate either of the parties

presented themselves as having special knowledge or skill in the subject matter.

Therefore, neither buyer nor seller are considered merchants under the UCC.

Formation

Under common law, an offer is an outward manifestation of present contractual intent,

in clear & precise terms, communicate to offeree as to create in him/her a belief that

offeror is willing to enter into a contract. Under common law, an offer must include

quantity, time of performance, identity of the parties, price, and subject matter.

Under UCC, an offer is an invitation to deal with invites’ acceptance in any reasonable

means under the circumstances. Moreover, under UCC, an offer does not fail for

indefinites as long as it contains the quantity amount.

Here, on Monday, Seller sent an email to Buyer stating that she would sell him her old

van for $15K cash. Because Seller is inviting Buyer to deal and because Seller's email

contains not only the identity of the parties, subject matter, price and also the quantity

term necessary under the UCC, Seller's email constitutes an offer to purchase her old

van and creates the power of acceptance in Buyer.

Under common law, an acceptance is an outward manifestation of unequivocal assent

to the terms of an offer.

Under UCC, a definite and seasonable acceptance, operates as an acceptance.

Here, Buyer "immediately" responded to Seller's offer stating that he was "interested"

but asking to be given until Sunday to decide. Because Buyer expressed interest, but

did not express any type of acceptance, his email likely does not constitute an

acceptance under UCC.

UCC 2-205 Merchant's Firm Offer

Under UCC, an offer in writing by a merchant stating that an offer will be held open for a

certain period of time, not to exceed 3 months, does not require consideration and must

be held open for such time. Otherwise, an offer to hold an offer open for a c

ertain period

of time by a non-merchant, requires additional consideration.

Here, after receiving Buyer's email stating that he was interested in the van, but asking

until Sunday to decide, Seller sent Buyer an email stating she would hold her offer open

and that he had "until Sunday to decide". Because Seller is not a merchant (see supra

under "Merchants"), UCC Merchant's Firm Offer does not apply and her offer to hold the

offer open until Sunday required additional consideration to be enforceable. Therefore,

Seller's statement that she would hold the offer open until Sunday is not enforceable.

Possible Revocation

An offer is revocable by offeror before acceptance.

Here, on Tuesday evening, Seller sent an email to Buyer informing him that Jones Dry

Cleaning is interested in purchasing the van for $17K. This email by Seller does not

clearly state she is selling or sold the van to Jones Dry Cleaning or give any indication

that she is revoking her offer to Buyer. Therefore, Buyer still holds the power of

acceptance.

Here, on Wednesday, Buyer mailed Seller a letter stating he agreed to buy the van for

$15K and to drop off the check on Sunday. As mentioned earlier, under UCC, a definite

and seasonable acceptance operates as an acceptance. Moreover, under UCC, an

offer invites acceptance in any reasonable means under the circumstances. Buyer's

letter to Seller clearly stating that he agrees to buy the van constitutes an acceptance

under UCC.

Mailbox Rule

Under common law and UCC, an acceptance is effective on dispatch. Therefore,

Buyer's acceptance of Seller's offer was effective the moment he placed his acceptance

letter in the mail on Wednesday.

Attempted Revocation

Under common law and UCC, a revocation after acceptance is not valid. Here, on

Thursday, Seller sent Buyer an email informing him that she had sold the van to Jones

Dry Cleaning. Seller's email is an attempted revocation of her offer to Buyer. However,

because Seller's attempted revocation was done after Buyer had already accepted the

offer, it is invalid.

Thus, because there is an offer and an acceptance, there is mutual assent by the

parties.

Under both common law and UCC, consideration is a bargained for exchange of legal

detriment for legal benefit. Here, Seller and Buyer bargained for such exchange; Seller

was selling her old van and gaining $15K, Buyer was given his $15K for an old van.

Therefore, there was adequate consideration. Thus, a contract for the purchase/sale of

Seller's old van to Buyer was formed.

Statute of Frauds

Under common law and UCC, the following type of agreements must be in writing to be

enforceable; contracts for sale of land, contracts in consideration of marriage, contracts

which cannot be completed within one year, suretyships and contract for goods of $500

or more. Here, the contract is for the sale of goods because it involves the

selling/purchase of a van. Moreover, the selling/purchase prices of such van is $15K

which is well above the $500 required for the Statute of Frauds. Therefore, the contract

falls within the Statute of Frauds. However, the Statute of Frauds is satisfied because

there are multiple writings (emails) between Seller and Buyer, signed by each, but

specifically Seller, which constitute "sufficient memoranda".

Remedies

Monetary Damages

Buyer will be entitled to monetary damages he incurs for not being able to purchase

Seller's van and having to purchase a van elsewhere (cover).

Equitable Relief

Specific Performance is not available under the facts indicated.

Mitigation of Damages

Buyer has a duty to try and mitigate his damages with cover.

QUESTION 1: SELECTED ANSWER B

Buyer v Seller

Governing Law

Contracts for the sale of goods are governed by the Uniform Commercial Code (UCC).

Goods are defined as things that are movable at the time of identification to the

contract. All other contracts are governed by common law.

Here, the contract was for the sale of a large van. A van is a movable object and

therefore a good.

Therefore, the UCC governs.

Merchants

A person who deals in goods of the kind or who possesses the knowledge and skill to

the goods involved or to whom such knowledge and skill may be attributed based on

their profession.

Here, Seller has a plumbing business and Buyer runs a lawn service. Both use vehicles

for their jobs but neither one deals in Vans regularly.

Therefore, neither party is a merchant.

Contract Formation

A valid contract requires: offer, acceptance, consideration and no defenses to

formation.

Offer

An offer is the manifestation of willingness to enter into

a bargain which justifies another

in understanding that their assent will conclude the bargain. An offer must contain

certain and definite terms including: quantity, time of performance, identity of the

parties, price and subject matter.

Seller’s Email Monday

Here, Seller sends an email to Buyer (identity of the parties) which says Seller would

sell her old van (subject matter, and quantity 1 van) to Buyer for $15,000 (price). The

email does not specify a time for performance but the UCC will allow a gap filler of a

reasonable time. Seller will argue that the letter is just an invitation to receive offers

because it says Seller "would" sell the van to Buyer. Buyer will argue that the offer

contained certain and definite terms and indicated a willingness to enter into a bargain.

A court will likely agree with Buyer.

Therefore, there is a valid offer.

Acceptance

A manifestation of assent to the terms thereof made by the offeree in a manner invited

or required by the offer.

Buyer’s Email Response Monday

Here, Buyer responded to Sellers offer by stating they are interested but need time to

think about the offer. Buyer states they want to have their mechanic look at the vehicle

before they commit to buying the van. Buyer may argue that he stated he was

interested which indicated assent. Seller will contend that Buyer's email did not

manifest assent to the offer as it was written and that because it added that the Buyer

wanted their mechanic to look at the van, there was no valid assent to the offer.

Therefore, this was not a valid acceptance, it was more likely a counteroffer asking for

permission for Buyer’s mechanic to look at the van.

Seller's Response to Buyers Email Monday

Here, Seller agrees that the mechanic can stop by and look at the van, and Buyer has

until Sunday to decide, leaving acceptance open to the Buyer still. This is likely a revival

of the offer with the added agreement that the Buyer can have a mechanic look at the

van.

Therefore, this is not a valid acceptance.

Is the offer revocable?

Merchant's Firm Offer

Under the UCC, if a merchant sends a signed writing expressly promising to hold an

offer open, the offer may not be revoked within the time period specified.

Here, neither party was a merchant, so Seller's email on Monday offering to hold the

offer open until Sunday is not a Merchant’s Firm Offer.

Therefore, the offer is not a merchant’s firm offer and may be revocable.

Detrimental Reliance

When, prior to revocation, the offeree foreseeably relies on a promise to their detriment,

the offer may not be revoked.

Here, the Buyer's mechanic checked the van out on Tuesday and found out it was a

good deal. Buyer was advised the van needed new tires. Buyer then told mechanic to

order the tires needed for the van. Buyer will argue that this is detrimental reliance,

since tires for a large van tend to be expensive. Seller will argue that the reliance was

not foreseeable because Buyer had not agreed to buy the van yet. Buyer will argue that

reliance was foreseeable because Seller had told Buyer they had until Sunday to

accept the offer.

Therefore, there was detrimental reliance and the offer is not revocable.

Mailbox Rule

An acceptance is valid upon dispatch, rejections and counteroffers are valid upon

receipt.

Seller’s Email on Tuesday Evening

Here, Seller attempted to revoke the offer by sending an email to Buyer stating Seller

found another buyer willing to pay more for the van. Buyer will contend that they did not

read the email so there was no receipt of the revocation. Seller will argue that if the

email was sent to Buyer's inbox, that is a valid receipt and Buyer had a duty to read.

Buyer will argue this was not a revocation because it said Jones Dry Cleaning "Might"

be interested and the email was not clear that the offer was revoked. Additionally, Buyer

will argue that this was not a valid revocation because of Buyer's detrimental reliance.

Therefore, this was not a valid revocation.

Buyer’s Email on Wednesday

Here, Buyer emailed Seller accepting the terms of the offer and stating they would

make payment Saturday, prior to the period the Seller allowed for Buyer to accept the

offer. Because Buyer detrimentally relied on the offer, and sent this email prior to a

clear cut revocation from Seller, this is an acceptance and is valid as of Wednesday.

Therefore, there is a valid acceptance of the offer on Wednesday.

Consideration

A bargained for exchange of legal value.

Here, the exchange is a van for money. Both are of legal value and the exchange was

bargained for by both parties.

Therefore, there is valid consideration.

Defenses to Formation

Statute of Frauds - Goods

Under the UCC a contract for the sale of goods for $500 or more must be in writing and

signed by the party to be charged. The writing must contain the important terms of the

contract.

Here, Seller will argue that there is no writing signed by seller expressly agreeing to sell

the van to Buyer. Buyer will argue that Seller signed each of the emails and these

emails contain all the important terms of the offer such as price, subject matter, time for

performance, etc. These writings are enough to evidence a contract.

Therefore, the Statute of Frauds is satisfied.

Therefore, there is a valid contract.

Anticipatory Repudiation

If a party to the contract, prior to time for their performance, indicates unequivocally that

they will not render performance once it is due, the other party may treat it as a

repudiation. The non-repudiating party has four options: sue immediately, wait until

performance is due to sue, encourage the other party to render performance, or treat it

as an offer to rescind the contract.

Here, Seller send an email to Buyer on Thursday advising Buyer that they sold the van

to someone else. This unequivocally indicates that Seller will not perform if Buyer were

to render payment. On Friday Seller sends another email again reiterating that the van

has already been sold. Another unequivocal indication that Seller will be unable to

perform.

Therefore, there is an anticipatory repudiation and Seller is in Breach.

Defenses to Breach

Impossibility

If the contract is theoretically unable to be performed by anyone due to an unexpected

event occurring after the contract was made, then this defense may be used.

Here, Seller will argue that, because the van was sold to someone else, it was

impossible for Seller to sell the van to Buyer. Seller will argue that the van was sold

before acceptance was received and the contract was already impossible. Buyer will

argue that this was not an unexpected event occurring after the contract was made.

Seller will contend that they were not aware of the acceptance because they believed

that they had revoked the offer on Tuesday and were not aware that Buyer had

detrimentally relied on the offer.

Therefore, this defense will likely succeed.

Impracticability

When an unexpected event, which occurs after the contract is made, makes

performance of the contract highly impractical, this defense may be raised.

Here, the difference in price can be argued as making the sale of the van to Buyer

impractical but pure economic impracticability is not valid unless Seller would be taking

a large loss.

Therefore, this defense is not valid.

Frustration of Purpose

This defense will not apply.

Remedies

Expectation Damages

Expectation damages put the non-breaching party in the position they would have been

in had the contract been fully performed. Under the UCC the buyer may obtain cover

and damages will be the difference between the contract price and the cover price. If

Buyer does not obtain cover, damages will be the difference between the contract price

and the fair market value at the time Buyer learned of the breach.

Here, Buyer did not obtain cover. Seller sold the van for $17,000 which is $2,

000 above

the contract price with buyer. If the defense of impossibility fails, then Buyer may be

entitled to expectation damages.

Therefore, Buyer may collect damages in the amount of $2,000.

Reliance Damages

Reliance Damages put the non-breaching party in the position they would have been in

had the contract not been entered into.

Here, Buyer spent money on tires for the van in reliance on the contract.

Therefore, Buyer may recover money spent on the tires.

Specific Performance

Specific performance requires the breaching party to perform the contract. It is used

when money damages are insufficient.

Here, money damages are not insufficient, and the van has been sold to a bona fide

purchaser so there is no way for Seller to perform.

Therefore, there will be no specific performance ordered.

June 2021

ESSAY QUESTION 2 OF 4

Answer All 4 Questions

California

First-Year Law Students'

Examination

Your answer should demonstrate your ability to analyze the facts in the question, to

tell the difference between material facts and immaterial facts, and to discern the points

of law and fact upon which the case turns. Your answer should show that you know

and understand the pertinent principles and theories of law, their qualifications and

limitations, and their relationships to each other.

Your answer should evidence your ability to apply the law to the given facts and to

reason in a logical, lawyer-like manner from the premises you adopt to a sound

conclusion. Do not merely show that you remember legal principles. Instead, try to

demonstrate your proficiency in using and applying them.

If your answer contains only a statement of your conclusions, you will receive little or

no credit. State fully the reasons that support your conclusions, and discuss all points

thoroughly.

Your answer should be complete, but you should not volunteer information or discuss

legal doctrines that are not pertinent to the solution of the problem.

You should answer according to legal theories and principles of general application.

QUESTION 2

Fireworks Shack is a store the size of a large supermarket that stocks a large volume and wide

variety of fireworks. Fireworks Shack is located in an otherwise entirely residential neighborhood

in the city of Hometown.

The owner of Fireworks Shack takes extensive safety measures to prevent fires on the premises,

including the posting of warning signs to customers not to smoke in the store, installation of a

sophisticated sprinkler system, and frequent inspections throughout the store by employees

specially trained in fire prevention. Despite these measures, a fire broke out in the store and

caused an explosion that severely injured Neighbor, who was in the back yard of his home,

which is adjacent to Fireworks Shack.

A thorough investigation by the local fire marshal has failed to identify the source of the fire or

any evidence that Fireworks Shack was in any way negligent or that it could have taken

additional precautions to prevent the fire.

In the absence of any evidence of negligence, are there any other theories that might support a

claim by Neighbor against Fireworks Shack? Discuss.

QUESTION 2: SELECTED ANSWER A

Neighbor v. Fireworks Shack

In the absence of any evidence of negligence, are there any other theories that might

support a claim by Neighbor against Fireworks Shack?

Strict Liability - Abnormally Dangerous Activity

Where the defendant engages in an activity that is abnormally dangerous -

that is, there

is a risk of substantial harm that cannot be mitigated even when reasonable care is

exercised by all actors, and the activity is not one of common usage -

defendant can be

held liable in strict liability for damages that are proximately caused by the dangerous

nature of the activity.

Here, defendant is a seller of fireworks and maintains a large supermarket size facility

that stocks a large volume and wide variety of fireworks. Fireworks are explosive and

the collection of a large volume and wide variety of fireworks to a single building is an

extremely dangerous activi

ty since a malfunction of any one of the plethora of fireworks

within could cause a fire that explodes the entire building. Further, defendant has

chosen to locate this warehouse full of fireworks in a residential neighborhood. Even

when all due care is ex

ercised, fireworks can still explode during manufacture, transport

or storage - this is why fireworks factories consist of many tiny huts separated by a

considerable distance - so that if one explodes (as they sometimes do, even in the

exercise of utmost care), the whole factory does not explode with it. Accordingly, since

the risk of harm by explosion is substantial and cannot be mitigated even with the

exercise of reasonable care, defendant is engaged in an abnormally dangerous activity.

It is foreseeable that neighbors to the Fireworks Shack could be damaged if there is an

explosion of the building, and indeed, plaintiff's damages (severe injury from explosion

of the Fireworks Shack) were actually caused by the explosion (but for the explosion,

plaintiff would not have been severely injured) and proximately caused by the explosion

(since it was foreseeable that neighbors could be damaged by an explosion).

Plaintiff can sustain a claim for damages under a theory of strict liability for

unreasonably dangerous activity.

Strict Products Liability

In order to sustain a claim of strict products liability, plaintiff must show that the

defendant is in the chain of commerce of a commercial product, the product was

defective, and the defect was the actual and proximate cause of harm to a person.

Causation

Here, plaintiff was injured by an explosion of fireworks. Plaintiff will argue that a defect

in some product contained in the Fireworks Shack was the actual and proximate cause

of his damages because but for the fire by the defective product, the explosion would

not have injured him, and further because it is foreseeable that if a firework is defective

it could cause an uncontrolled fire and explosion that injures people around it.

Chain of Commerce - persons and entities in the chain of commerce are the

manufacturer, vendor and retailer of the product.

Defendant, Fireworks Shack, is a retailer of fireworks. So, defendant is in the chain of

commerce for the product.

Defect

A product can be defective through design, manufacture or warning.

Design Defect

A design defect occurs if the product is dangerous beyond the expectations of the

ordinary consumer because of a defect in design or packaging, and such defect is

unreasonable because the burden to resolve the defect is less than the magnitude of

harm times the chance of harm.

Unfortunately, there is no indication that any of the fireworks were defectively designed

since they have all been destroyed. Plaintiff could present evidence that this kind of

event happens frequently with a type of firework in the building, but such evidence

would be difficult to gather or prove.

Manufacturing Defect

A manufacturing defect occurs if the product comes off of the assembly line more

dangerous than other products and is dangerous beyond the expectations of the

ordinary consumer.

Here, since the facts state that there was not any negligence on the part of Fireworks

Shack, the most likely reason for the fire and explosion is a defective product. However,

as in the design defect instance, plaintiff will have a difficult time proving that one or

more fireworks in the store were defective because of a manufacturing defect since

they have all exploded and been destroyed.

Defective Warning

A product must contain sufficient warning labels to alert the consumer to any dangers

that are not readily apparent.

There is no indication that the problem was caused by a defective warning label,

however plaintiff could examine the product from the various manufacturers whose

goods were sold by the store to determine if any of them had improper labeling

regarding shipping or storage.

Damages

As discussed above, plaintiff was severely injured by the explosion.

Since the product has been completely destroyed in the fire and explosion of the

Fireworks Shack facility, plaintiff will have a hard time proving what the defect was and

will be unlikely to succeed via a Strict Products Liability claim.

Public Nuisance

Where the defendant presents a danger to the health, safety or property rights of the

public, a public nuisance is present. Plaintiff can only claim damages for public

nuisance if they are harmed in a unique way to the rest of the community.

Here, Fireworks Shack is located in a residential neighborhood. A firework’s shack

necessarily presents a danger to the health, safety and property rights of the residential

neighborhood in which it sits because fireworks are explosive and can easily catch fire

and destroy property. Further, an explosion of a fireworks shack releases a cloud of

noxious gasses and debris that the surrounding community will inhale and could make

them all quite sick.

Here, neighbor was damaged more than and in a unique way compared to the other

residents in the community because he was in the back yard of his home at the time of

the explosion, and he was severely injured by the explosion.

Neighbor can sustain a claim of public nuisance and recover on this theory because his

damages were unique to those experienced by the other members of the community.

Private Nuisance

Where the actions of the defendant interfere with the plaintiff's rights of reasonable use

and enjoyment of his property, and such interference is substantial and unreasonable,

plaintiff can sustain an action for private nuisance.

A substantial interference is one which is offensive, inconvenient, or annoying to an

ordinary person in the community.

Being severely injured in one's backyard would be extremely offensive to an ordinary

person in the community.

An unreasonable interference is one in which the damage to the plaintiff outweighs the

utility of the conduct of the defendant.

A person has a right to safety in his own backyard and should expect to not be injured

by explosions on neighboring property. A large supermarket full of fireworks should not

be allowed to be in a residential neighborhood of a city. Although the Fireworks Shack

likely employs some people and provides business to the city, the risk of extreme

physical harm and damage to property far outweighs the commercial usefulness of the

activity.

Plaintiff has a tentative claim for private nuisance, if he can convince the jury that the

injury was only offensive. It will be better to proceed under strict liability for abnormally

dangerous activity and public nuisance, since it seems more like the explosion event

was a health hazard rather than an annoyance.

Negligence - Res Ipsa Loquitur

A claim for negligence requires duty, breach, causation and damages.

Duty

Generally, all persons have a duty of reasonable care to avoid injuring all foreseeable

plaintiffs. Under the majority rule, a foreseeable plaintiff is one who is within the zone of

danger of the negligent act. Under the minority rule, anyone who is injured as a

proximate result of the negligent act is a foreseeable plaintiff.

Here, it is foreseeable that if any negligence occurs within Fireworks Shack, fireworks

could catch fire and explode the building, damaging those around it. Plaintiff is a

property owner whose yard is adjacent to the Fireworks Shack, so it is foreseeable that

any explosions could damage him and his property.

Breach via Res Ipsa Loquitur

Where the instrument that caused the damage was in the sole control of the defendant,

but it is not possible for the plaintiff to ascertain what exact negligence took place, and

the damage would not have occurred but for some negligence on the part of the

defendant, plaintiff can seek recovery under a res ipsa loquitur theory.

Here, Fireworks Shack had exclusive control of the explosive fireworks. Although it is

not known what negligence caused the event, a fire broke out and then an explosion.

Much as barrels should not fall from a second- floor warehouse without some

negligence, a fire should not break out in a fireworks building absent some negligence.

Causation & Damages

As discussed above, plaintiff was severely injured as an actual and proximate result of

the explosion of the Fireworks Shack.

Plaintiff could proceed via Res Ipsa Loquitur

, but arguments submitted in support of this

claim will weaken the strict liability - dangerous activity claim, so it is not preferred to

proceed in this way.

Damages in tort are for the purpose of making the plaintiff whole. In support of this

principle, the following damages are available in a tort action:

Nominal Damages - a symbolic fine levied in order to formally recognize the tort, so

that the plaintiff can seek injunction to stop the activity in case it happens in the future.

Plaintiff could seek nominal damages for private nuisance, so that the Fireworks

Factory can be pressured to rebuild somewhere else to avoid steep penalties for

damaging the plaintiff again.

Special Damages - reimbursement for economic damages, such as reimbursement for

medical treatment, lost wages and the like.

Here, plaintiff presumably needed medical attention for his severe injuries. Plaintiff can

be reimbursed for medical care already incurred and any future, projected medical care

that he will need to recover from his injuries. If plaintiff's ability to work was affected, he

can be reimbursed for lost wages.

Special damages are independent of co-existing insurance.

General Damages - these deal with non-economic losses, such as pain and suffering

or loss of consortium.

Plaintiff presumably has suffered serious pain from his severe injury. The prosecution

can work up an estimate for the value of the pain and suffering experienced by the

plaintiff.

Punitive Damages - where the defendant is morally in the wrong, by committing fraud

or the like, the court can also levy punitive damages to punish the bad behavior.

There is no indication of foul play on the part of the defendant. Plaintiff is unlikely to be

awarded punitive damages.

QUESTION 2: SELECTED ANSWER B

NEIGHBOR (N) V. FIREWORKS SHACK (FS)

NEGLIGENCE OF FS

Here, the facts state that there is absence of any evidence of negligence; therefore, to

have a negligence cause of action a plaintiff must prove (1) foreseeable plaintiff (2)

owed a duty or special duty (3) duty was breached (4) damages and (5) lack of any

defenses.

BREACH

RES IPSA LOQUITUR

Under RIL, the plaintiff must prove that (1) The plaintiff would not be injured absent

someone's negligence (2) the event was in exclusive control of any instrumentality by

defendant and (3) plaintiff did not contribute to their injuries.

N could possibly prevail under RIL in a negligence cause of action. However, since the

facts state that there was an absence of any negligence on behalf of FS, other theories

of tort will be explored below.

INTENTIONAL TORTS

ASSAULT

Placing a plaintiff in reasonable apprehension of an immediate harmful or offensive

touching.

Apprehension

Apprehension is not simply fear, but actual knowledge that the party can carry out the

harmful or offensive contact.

Here, N would have to prove that he had knowledge that some part of this explosion

could hit him.

Immediate

The touching that could occur must be immediate and future harm will not suffice.

Again, N would have to prove that there is a potential immediate touching about to

occur.

There are not enough facts here to fully dissect whether or not N was in reasonable

apprehension of the immediate touching. Furthermore, FS did not act with intention.

Here, FS did not act intending to cause any harm. Furthermore, they have taken

extensive safety measures. They will most likely not be liable for assault.

BATTERY

A person may be held liable for battery where he acts intending to: (1) cause a harmful

or offensive touching, or reasonable apprehension of such contact; and (2) the harmful

or offensive touching directly or indirectly results.

Offensive

If a reasonable person would be offended.

Here, N will argue that a reasonable person would be extremely offended by this type of

conduct. However, N has to prove that FS acted "intending" to cause such contact,

therefore this element cannot be met.

Harmful

Anything connected to the plaintiff's person. The contact can be direct or indirect.

Again, as stated supra, FS did not act intentionally and therefore, it will be hard for N to

prevail here.

Here, FS did not act intending to cause any harm. Furthermore, they have taken

extensive safety measures. They will most likely not be liable for battery.

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS (IIED)

When a party engages in outrageous conduct that leaves the plaintiff suffering from

severe emotional distress.

Outrageous

Conduct will be outrageous where it transcends all bounds of decency tolerated in a

civil society.

FS will argue that this conduct was not outrageous as they do not know what caused it.

However, N is going to prevail on this argument most likely because a huge explosion

in a large supermarket -sized fireworks shop in a residential area is going to be

considered outrageous.

Element met.

Severe Emotional Distress

Plaintiff must suffer severe emotional distress and cannot be merely annoyed.

The facts are silent as to if N suffered severe emotional distress. However, if he can

show in court that he is suffering from such distress, this element will be met.

Intent

Unlike other intentional torts, recklessness can be shown to prove intent under IIED.

Where N can prove that FS acted recklessly, he can prevail on this element.

If N can prove severe emotional distress (not stated in the facts) and also prove

recklessness as to intent, N could prevail in an IIED suit.

TRESPASS TO LAND

An act of physical invasion onto the plaintiff's real property.

Intent

For a trespass to land, the person may have

merely intended to be on the land. There is

no intent to trespass and where the person

or a physical object is on the land, the intent

requirement will be met.

Here, N will claim that part of the explosion (shrapnel or contents) came onto his land.

N does not need to prove the FS intended to trespass, and just by the physical invasion

of the explosion, this element has been met.

Physical Invasion

The person or a tangible object must be on the land. Sounds, smells,

and vibrations will

not suffice.

Here, it appears that remains of the explosion, most likely shrapnel, has come onto N's

land and therefore, causing injury. The court will have to show that this injury was

actually caused by a physical object and the facts are silent as to what caused N's

injury. An explosion will most likely lead to contents flying out into the vicinity and

therefore causing injury. In that case, this element has been met. However, if the sound

of the loud "boom" caused injury to N, for example, in his ears, it will depend on what

type of jurisdiction we are in and whether or not that would suffice as to a physical

invasion since usually sounds will not suffice.

Real Property

The property must be real property that belongs to the plaintiff. Here, the explosion

trespassed onto N's real property (his home) causing injury.

N could raise a trespass to land claim against FS and will most likely prevail.

DAMAGES TO TRESPASS TO LAND

N can collect general, compensatory damages to the damage to his property and for

the invasion onto the property. Punitive damage may only be awarded where the

conduct was wanton, willful, or reckless. If the court can prove recklessness on behalf

of FS, N could collect punitive damages although it will be unlikely since the facts state

the local fire marshal cannot identify the source of fire or any evidence that FS could

have taken additional precautions.

DEFENSES TO INTENTIONAL TORTS

There are no applicable defenses that FS could raise.

STRICT LIABILITY (SL) - ABNORMALLY DANGEROUS ACTIVITY

In order to prevail under strict liability, there must be (1) an absolute duty on behalf of

the defendant to make safe (2) a breach of that duty (3) actual and proximate causation

and (4) lack of any applicable defenses.

A plaintiff must show that (1) even when reasonable care is exercised, the activity still

poses a foreseeable risk of harm to others and (2) the activity is not of common usage

in the community.

Here, N is going to have to show that even though FS used reasonable care, having a

fireworks store the size of a large supermarket is still relatively dangerous. The facts

state that FS is "large" and also located in an entirely residential neighborhood. The

courts will most likely deem that having such a large store with explosives like fireworks

in an entirely residential neighborhood, does show and pose foreseeable risk of harm

even with due care. N will most likely prevail on proving this element.

N also has to prove that the activity is not of common usage in the community. FS is

going to argue that their store is of common usage as it is very large and is in a

residential neighborhood for the people to enjoy and buy. This argument is not going to

be very strong and N will most likely prevail in showing that it should be uncommon to

have such a large supermarket of such dangerous materials in a town that is full of

residents.

DEFENSES TO SL

Contributory Negligence

Where a plaintiff is negligent himself, this can be a complete bar to recovery.

Here, N was not negligent in anyway, therefore, this defense will not apply.

Comparative Negligence

Comparative negligence jurisdictions reduce the plaintiff's recovery by their own

percentage of negligence.

Again, N was not negligent in anyway, and therefore, this defense will not be at issue.

Assumption of Risk

This is a strong defense to SL. Where the plaintiff knew of the risk and voluntarily

proceeded in face of that risk.

This defense, however, will not be strong to FS because N did not proceed in the face

of any risk. FS will try to argue that they take extensive safety measures by posting

"warning signs to customer not to smoke in the store" However,

N was not smoking (the

facts do not state he was) and he was not even in the store. Therefore, this defense will

not work.

N is most likely going to prevail in a strict liability cause of action.

NUISANCE - PRIVATE

A substantial, unreasonable interference of another private individual's use and/or

enjoyment of their property, which they actually possess.

Substantial

An interference will be substantial

where the average, ordinary person in the community

would be annoyed, inconvenienced or offended. Mere hypersensitivity will not be

substantial.

Here, N will have to prove that the average citizen would be offended by this type of

conduct. Clearly, N now has severe injuries due to the explosion by the FS. This would

be substantial as this type of action does not happen often in the community and any

neighbor or resident of N's would most likely be annoyed, inconvenienced or offended.

Element met.

Unreasonable

The injury to the plaintiff must outweigh the utility of the conduct by the defendant.

Courts take into account that people are entitled to use and/or enjoy their property in a

reasonable manner and will take into consideration factors such as land value,

neighborhood and whether or not other alternatives were available.

The courts will take into account things like the neighborhood. N will raise the issue that

there should not be such a large supermarket of fireworks in a residential area and that

it is very dangerous to everyone surrounding. Courts will also look at other potential

alternatives which the facts state FS use extensive safety measures. FS will argue that

there were not any other alternatives as they use a lot of safety measures, post signs,

have sprinkler systems, etc. However, the facts are silent as the whether or not these

"Safety measures" are top tiered or whether or not there are any alternatives. This

element will most likely be met by N unless FS can prove their conduct was not

unreasonable.

N will most likely prevail here.

NUISANCE - PUBLIC

An unreasonable interference with the health, safety and property rights of the

community. A private individual may bring a public nuisance claim only if they have

suffered some unique, special harm.

Here, N will also bring a claim of public nuisance. N will have to prove that the

interference unreasonably interfered with his health and safety as an explosion

occurred adjacent to his property and severely injured him. It is also apparent in the

facts that no other resident endured these severe injuries. If N can prove that his

damages are special and no one else in the neighborhood also was injured in his way,

he could prevail in public nuisance.

DEFENSES TO NUISANCE

Conduct of Others

No one party will be liable for the full damage if other parties contributed to the

damages.

Here, it is evident that the explosion came from FS and there are no other parties

involved. Therefore, this defense will not be applicable.

Contributory Negligence

Generally, not a defense unless the claim rests on a negligence theory.

This defense will not be applicable here.

Coming to the Nuisance

One may come to the nuisance and bring a suit. However, this is not a strong defense

unless the plaintiff solely came to the nuisance to bring a harassing lawsuit.

This is not going to be a strong defense to FS as N did not come to the nuisance.

Legislative Authority

For nuisance activity (zoning ordinances), it is not a full defense, but it is persuasive.

DAMAGES TO NUISANCE

Damages

A plaintiff will usually collect compensatory damages for the injuries that resulted.

Punitive damages will be available only if the defendant's conduct was particularly

egregious.

N will collect compensatory damages like general and special.

Injunction

An injunction may be available where monetary damages are inadequate or

unavailable. An injunction is a legal remedy where the court orders a party to refrain

from doing something or insists that they do something.

Here, it is most likely that N's monetary damages will be adequate, therefore an

injunction will not be needed.

PRODUCTS LIABILITY

LIABILITY BASED ON NEGLIGENCE

Here, the facts state that the investigation could not prove any negligence on behalf of

FS. Therefore, it is unlikely N will prevail under negligence in products liability as N

would have to prove there was a breach by showing (1) a manufacturing defect (2)

design defect or (3) inadequate warning.

N will not have a cause of action here.

STRICT PRODUCTS LIABILITY (SPL)

DUTY OWED BY COMMERCIAL SUPPLIER

Under S

PL, N has to prove that FS is a commercial supplier and not just a casual seller.

A commercial supplier can be a manufacturer, wholesaler or retailer.

Here, FS is a retail store that stocks large volumes of fireworks. They are a commercial

supplier.

Element met.

BREACH OF THAT DUTY

Simply putting a defective product into the stream of commerce.

Here, N is going to argue that something caused a fire or explosion inside of the store

and therefore, there was a defective item inside the store. FS is going to argue that

there was not since they have frequent inspections and that the local fire marshal could

not identify the source. Therefore, it may not have been a defective item in the store.

This element will not be met.

It will be unlikely the N prevails in a SPL cause of action since there is no evidence of a

defective item being in the stream of commerce. Without that evidence, the courts

cannot prove whether the product was substantially altered and whether it was used

foreseeably.

June 2021

ESSAY QUESTION 3 OF 4

Answer All 4 Questions

California

First-Year Law Students'

Examination

Your answer should demonstrate your ability to analyze the facts in the question, to

tell the difference between material facts and immaterial facts, and to discern the points

of law and fact upon which the case turns. Your answer should show that you know

and understand the pertinent principles and theories of law, their qualifications and

limitations, and their relationships to each other.

Your answer should evidence your ability to apply the law to the given facts and to

reason in a logical, lawyer-like manner from the premises you adopt to a sound

conclusion. Do not merely show that you remember legal principles. Instead, try to

demonstrate your proficiency in using and applying them.

If your answer contains only a statement of your conclusions, you will receive little or

no credit. State fully the reasons that support your conclusions, and discuss all points

thoroughly.

Your answer should be complete, but you should not volunteer information or discuss

legal doctrines that are not pertinent to the solution of the problem.

You should answer according to legal theories and principles of general application.

QUESTION 3

. Karl lived with Martha, Martha’s son Sonny, and their dog. One morning, Karl told Martha about

his plan to steal from the house of Barry Rich. Karl’s plan was to go to Rich’s house with Martha

and the dog. Karl planned to pretend the dog was lost and pretend he was trying to find the dog’s

home. Karl planned to let the dog escape into Rich’s house.

Karl asked Martha to come with him. He wanted her to chase after the dog in Rich’s house in

order to distract Rich while Karl went to Rich’s bedroom to look for jewelry. At first, Martha told

Karl she would not help. Karl then looked at her and said, “You’d better do what I say or Sonny

is going to be badly hurt.” In response, Martha agreed to help Karl.

That afternoon, Karl and Martha went to Rich’s house with the dog. When Rich opened the door,

Karl let the dog run into the house. As planned, Martha ran after the dog and distracted Rich

while Karl went to the bedroom. In the bedroom, Karl found a valuable diamond ring and put it

in his pocket. The ring is worth $5,000.

While Karl was in the bedroom, the dog ran past Rich and knocked him down. Rich hit his head

on a table and died.

1. With what crimes can Karl reasonably be charged and what defenses can he reasonably

raise? Discuss.

2. With what crimes can Martha reasonably be charged and what defenses can she reasonably

raise? Discuss.

QUESTION 3: SELECTED ANSWER A

TATE v. KARL

SOLICITATION

Solicitation is the requesting or urging of another to commit the crime with the intent that

the solicitee commit the crime. Solicitation is a specific intent crime with the specific

intent being that the solicitee commit the crime. Solicitation is an inc

hoate

offense which

means it

’s complete once the requesting is done.

Here Karl did request another to commit the crime because the facts state that Karl

asked Martha to come with him to commit the crime or burglary. Here Karl does have

the specific intent t

hat Martha (the solicitee) commit the crime because his plan was to

steal from the house of Barry

Rich, which Karl would gain valuable items or money. In

other words

, Karl has a financial stake in the crime because he will obtain money or

valuable items fr

om it.

Therefore

, Karl may be charged with Solicitation.

MERGER

Solicitation will merge into a conspiracy if and when the other party agrees.

CONSPIRACY

A conspiracy is an agreement between two or more parties to commit a crime with the

intent that

the crime be committed. Common law conspiracy requires two guilty minds;

otherwise

it will be considered a feigned agreement. Under the unilateral theory one

party may be charged with conspiracy even though only one guilty exists. Modernly

, an

overt act is required in furtherance of the conspiracy.

PINKERTON'S RULE

Under the Pinkerton'

s Rule, co-conspirators are vicariously liable for all crimes

commit

ted that are foreseeable and in furtherance of the crime agreed upon.

Here, the facts state that Karl requested Martha to join him on his burglary and Martha

agreed, but Martha only agree

d due to Karl's threat that he will hurt her son badly if she

does not go. Therefore

, here we only have one guilty mind and if the jurisdiction follows

the unilateral theory Karl may be charged with conspiracy to commit burglary.

OVERT ACT

Modernly, an ove

rt act that is in furtherance is required for the defendant to be charged

with conspiracy.

Here, the overt act occurred when Karl went to Rich's house and the dog was let inside

his house. Therefore

, we have an overt act.

Therefore

, Karl may be charged with conspiracy to commit burglary if the jurisdiction

follows the un

ilateral theory.

ASSAULT

A criminal assault is an attempted battery or intentionally causing reasonable

apprehension of receiving an immediate battery. An attempted battery is a substantia

step towards the completion of a battery with the intent that the battery be completed.

Both types of criminal assault are specific intent crimes with the specific intent being to

cause a battery or to cause the reasonable apprehension.

Here the facts state that after Karl requested Martha to commit the crime of burglarizing

Rich's house and she refused, Karl stated that if she would not do what he says he will

hurt Sonny badly. Here the assault was directed at Martha's son, not Martha.

Therefore

, Karl may not be charged with assaulting Martha.

LARCENY

Larceny is the trespassory taking and carrying away of the personal property of another

with the intent to permanently deprive.

TRESPASSORY

Trespassory means without the consent of the rightful owner, in o

ther words the owner

does not authorize the taking.

Here the facts state that Karl found a valuable diamond ring and put it in his pocket and

Rich did not consent to that taking. Therefore

, we have the trespassory element.

TAKING AND CARRYING AWAY

Taking

and carrying away means the defendant must obtain control and dominion and

an asportation must occur.

Here Karl did obtain control and dominion and aspor

ation did occur because he put the

ring in his pocket and walked away. Therefore

, we have the taking and carrying away

element.

PERSONAL PROPERTY OF ANOTHER

Here we do have personal property of another because the ring is personal property

and it belongs to Rich who is another person. Therefore

, we have this element.

INTENT TO PERMANENTLY DEPRIVE

Intent t

o permanently deprive is a specific intent to steal.

Here we do have an intent to permanently deprive because Karl's original plan was to

steal Rich's items. Therefore

, we have this element.

Therefore

, Karl may be reasonably charged with Larceny.

MERGER

Larceny w

ill merge into burglary because it’s a lesser included offense.

BURGLARY

Common law burglary is the trespassory breaking and entering the dwelling house of

another in the nigh

t-time with the intent to commit a felony therein.

TRESPASSORY

Trespassory means without the consent of the owner.

Here

, there is no evidence to state that Rich consented to them entering; on the

contrary

, they had to use the dog to enter, which means they did not have consent.

Therefore

, we have this element

BREAKING AND ENTERING

Breaking will suffice if any door or window is moved however slightly to make an

opening. The breaking element will also be sufficed if fraud, threats of force, o

r force is

used. Entry is accom

plished if any part of the defendant’s body enters the home.

Here

, we have a constructive breaking because Karl used fraud to enter. The fraud he

used was to trick Rich into thinking the dog accident

ally ran into his house. Therefore,

this element is

satisfied.

ELLING HOUSE

A dwelling house is one that is used regularly for sleeping purpose

and it also includes

structures within the curtilage.

Here, the facts state that Karl entered the house of Barry Rich. Therefore

, this element

is satisfied.

IN THE NIGH

TTIME

In the nighttime element is satisfied if the crime occurs half hour or hour after sunset.

Here the facts state that Karl entered in the morning. Therefore

, this element is not

satisfied.

INTENT TO COMMIT A FELONY T

HEREIN

Intent to commit a felony therein is a specific intent to enter the home to commit a

felony inside.

Here

, Karl entered to commit a grand theft which would most likely be considered a

felony. Therefore

, this element is satisfied.

Here

, we do not have a common law burglary because the crime did not occur in the

nighttime.

Therefore

, Karl may not be charged with common law burglary.

MODERN BURGLARY

Modern burglary is entry into any structure with the intent to commit a crime.

Here

, as proven above, Karl did enter into Rich's home and he did have the specific

intent to commit a larceny.

Therefore

, Karl may be charged with modern burglary.

MURDER

Murder is a homicide with malice.

HOMICIDE

A homicide is the killing of human being by another.

Here,

Rich died; therefore, we have a homicide.

BY ANOTHER

The defendant must be the actual and proximate cause of the death.

ACTUAL CAUSE

Here

, but for Karl committing a burglary, Rich would not have died when, where, and

how he did. Therefore

, we have actual cause.

PROXIMATE CAUSE

A defendant is responsible for all of the natural and probable consequences that occur

as a result of his actions as long as there are no super

seding events that break the

ausation chain. A superseding event is one that is unforeseeable and intervening.

Essentially proximate cause shows that is foreseeable for the result to occur.

Here

, it would be foreseeable that if Karl commits a burglary, a death could result

because the person living t

here might use force to protect his property and

himself/herself. Therefore

, we have proximate cause.

MALICE

Malice can be found by intent to kill, intent to cause serious bodily injury, wanton

conduct, and felony murder.

INTENT TO KILL

Malice can be foun

d through intent to kill if the defendant desired to kill the victim or

knew with substant

ial certainty the death will occur.

Here

, there is no evidence that Karl intended to kill Rich. Therefore, we will not find

malice through intent to kill.

INTENT TO

CAUSE SERIOUS BODILY INJURY

Malice can be found through intent to cause serious bodily injury if the defendant

intended to cause serious bod

ily harm to the victim.

Here

, there is no evidence that shows that Karl intended to cause serious bodily injury

to R

ich. Therefore, we will not find malice through intent to cause serious bodily injury.

WANTON CONDUCT

Malice may be found through wanton conduct if the act the defendant is commit

ting

has:

1. Little or no social value.

2. Has a very high risk of death

Defendant did the act intentionally

4. Defendant was aware of the risk

Here

, burglarizing another’s home does have little or no social value. Karl did in fact act

intentionally. Burglarizing someone's home defini

tely has a very high risk of death

because

it would be foreseeable that the homeowner would protect his or her property

and themselves from intruders. We can imply that defendant was aware of th

at, which

is why he requested Martha to help him to be a decoy.

Therefore, the court may find malice through wanton conduct.

FELONY MURDER

If a death occurs during the perpetration of a

n inherently dangerous felony, malice will

be implied. Timing starts when an attempt is viable and ends when the defendant

reaches a place of temporary safety. The death must

be independent and collateral

from the crime that causes. Traditionally enumerated felonies for felony murder were

burglar

y, arson, rape and robbery, but modernly, have expanded to kidnapping,

mayhem and other felonies.

Here

, a death did occur during the perpetration of an inherently dangerous felony

because the facts state that Rich hit his head on a table an

d died while Karl was

committing a burg

lary. The felony of burglary is an enumerated felony, and it is

inherently dange

rous. Here, Karl did not reach a place of temporary safety, because he

was

still inside Rich's house while the death occurred.

Therefore

, we can find malice through felony murder.

FIRST DEGREE MURDER

First degree murder is murder completed with the specific intent t

o kill plus

premedi

tation and deliberation or through felony murder.

Here

, as proven above, felony murder applies.

Therefore

Karl may be charged with second degree murder through wanton conduct or

first degree felony murder.

DEFENSES

None available

If the court somehow does not prove malice, the next best theory would be involuntary

manslaughter.

INVOLUNTARY MANSLAUGHTER

Involuntary mansl

aughter is when a death occurs during a wrongful act without malice.

The wrongful act could be intent to cause seriou

s bodily injury, misdemeanor

manslaughter rule, or recklessness. Under involuntary manslaughter the death does not

have to be independent or collateral to the act that causes the death. The misdemeanor

manslaughter rule includes felonies that are not inher

ently dangerous, but the

misdem

eanor must be malum in se and not merely malum prohibitum. Recklessness

means the defendant consciously disregards a high risk of death.

Here

, Karl most likely committed a felony, but at a minimum he was committing a

misdem

eanor. Here, a death did occur during the perpetration of a misdemeanor

because Karl was stealing and burglarizing Rich's house. Also

, burglarizing someone's

house would at a minimum be considered reckless, because there is a high risk that a

death might oc

cur.

Therefore

, Karl may be charged with involuntary manslaughter.

STATE

v. MARTHA

CONSPIRACY

A conspiracy is an agreement between two or more parties to commit a crime with the

intent that the crime be committed. Common law conspiracy requires two

guilty minds;

otherwise

, it will be considered a feigned agreement. Under the unilateral theory, one

party may be charged with conspiracy even though only one guilty exists. Modernly

, an

overt act is required in furtherance of the conspiracy.

Here

, the facts state that Martha did in fact agree to commit the crime of burglary with

Karl and she did have the specific intent to complete the crime because she did not

want her son injured, but Martha will have the defense of duress.

DEFENSE

DURESS

Duress is a valid defense if a defendant was forced to complete a

due to threats of

force or force to themselves or to close family members

, which includes children.

Here

, Martha may not be charged with conspiracy to commit a burglary because Karl

stated t

hat if she does not help him, he will seriously injure her son. Therefore, Martha

has a valid defense of duress.

Therefore

, Martha may not be charged with conspiracy.

-CONSPIRATOR LIABILITY (PINKERTON'S RULE)

Here

because it is proven above that Martha was under duress when she agreed to the

conspiracy and to commit the crime of burglary

, she may not be charged with any

crimes that are foreseeable and in furtherance of the burglary.

LARCENY

Trespassory taking and

carrying away of the personal property of another with the

intent to permanently deprive.

Here

, as stated above, even though a larceny did occur, Martha may not be charged

with larceny because she has the effective defense of duress.

Therefore

, Martha may not be charged with conspiracy.

COMMON LAW BURGLARY

Trespassory breaking and entering the dwelling house of another in the nighttime with

the intent to commit a felony therein.

As proven above

, a common law burglary did not occur.

MODERN BURGLARY

Comm

on law burglary is the trespassory breaking and entering of

the dwelling house of

another in the nighttime with the intent to commit a felony therein.

Here

, as stated above, even though the burglary did occur, Martha may not be charged

with the burglary be

cause she has the effective defense of duress.

DEFENSE

DURESS

Duress is a valid defense if a defendant was forced to complete a

due to threats of

force or force to themselves or to close family members

, which includes children.

Here

, Martha may not be ch

arged with burglary because Karl stated that if she does not

help him

, he will seriously injure her son. Therefore, Martha has a valid defense of

duress.

Therefore

, Martha may not be charged with burglary.

MURDER

Homicide with malice.

Here

, as explained above,

even though a murder did occur, Martha may not be charged

with murder because she has the effective defense of duress.

DEFENSE

DURESS

Duress is a valid defense if a defendant was forced to complete a

due to threats of

force or force to themselves or to close family members

, which includes children.

Here

, Martha may not be charged with murder because she only helped Karl commit

the crime

because Karl threatened to seriously injure her son if she didn't.

Therefore

, Martha may not be charged with murder.

ACCOMPLICE LIABLITY

An accomplice is one who aids, abets, or encourages another to commit a crime with

the specific intent that the crim

e occur.

Here

, Martha did in fact aid Karl to commit the crime of burglary when she let her dog

, which allowed Karl entry into Rich's house. This will be considered aiding Karl to

commit the crime. She did have the specific intent that the crime occur

because she

wanted to save her son from injury by Karl, but Martha does have the effective defense

of duress.

DEFENSE

DURESS

Duress is a valid defense if a defendant was forced to complete a

due to threats of

force or force to themselves or to close family members

, which includes children.

Here

, Martha may not be charged with being an accomplice because Karl stated that if

she does not help him

, he will seriously injure her son. She only did the act to protect

her son. Therefore, Martha has a valid defense of duress.

Therefore

, Martha may not be charged with being an accomplice.

QUESTION 3: SELECTED ANSWER B

QUESTION 1

STATE v. KARL

SOLICITATION

Solicitation is where a person invites, encourages, requests, commands, or counsels another

into committing a crime with the specific intent that the person solicited commits the crime.

Specific Intent

Here, Karl had clear intent that he wanted Martha to come with him to help him steal. He has

the specific intent required that Martha contribute to helping him commit this crime and to use

the dog to distract Rich. Even though she says no at the beginning, he then "commands" her

to do it by threat.

This element has been met.

Merger

Solicitation will merge into the crime of conspiracy and one cannot be convicted of both.

Karl may be liable for solicitation of Martha unless he is convicted of conspiracy, then this

charge will merge.

CONSPIRACY

Conspiracy is defined as an agreement between two or more people to either commit an

unlawful act or commit a lawful act by unlawful means. In most jurisdictions, an overt act is

required.

Mental State

In order to be guilty of conspiracy, a person must have had the specific intent to (1) enter into

the requisite agreement and (2) the achieve the unlawful act/target crime.

Here, Karl possesses definite intent to enter into this agreement with Martha. He also appears

to have the intent to commit the crime of stealing from the house of Barry Rich by the facts

stating the specifics to his plan.

This element has been met.

Overt Act

In most jurisdictions, an overt act is required along with the agreement. An overt act is

something done (an act) in furtherance of the agreement. Modernly, this is the rule. At

common law, an overt act was not needed.

Here, Karl and Martha go to Rich's house with their dog. Therefore, an overt act has been

taken.

This element has been met.

Liability - Pinkerton's Rule

Under Pinkerton's Rule, a co-conspirator may be liable for foreseeable crimes committed in

furtherance of the target crime by other conspirators.

Here, Karl can be liable for crimes committed by Martha.

Merger

Conspiracy does not merge into the target crime and one can be guilty of both conspiracy and

the target crime.

Karl will be guilty of conspiracy.

BURGLARY

The unlawful breaking and entering into the dwelling of another, at nighttime, with intent to

commit a felony therein. Modernly, the nighttime element has been abolished. For these

purposes, the nighttime rule will not apply.

Here, a major issue will be whether or not Karl is liable for burglary.

A defendant must have unlawfully broken and entered into a dwelling. Constructive breaking is

where the defendant uses some type of threat or language to coerce the person into letting

them in. Here, the courts will have to decide if the letting the dog run into the house constitutes

a breaking. It is going to appear as so since Rich does not "invite" or let Karl and Martha into

the house. The dog ran into the house, which forced Karl and Martha's entry. This element will

be met. Entering can be established by any body part coming into the house. Here, Karl's

person was inside of the house; therefore, this element is met. The dwelling belongs to Barry;

this element has been met. Lastly, there must be intent to commit a felony within at the time of

breaking and entering. Here, Karl clearly had intent to steal something of Barry's; therefore,

this will be met.

Karl can be convicted of burglary if the jury rules that letting the dog run into the house

constitutes a constructive breaking and entering. Also, modernly, where this does constitute

breaking and entering, the nighttime rule will not be at play, so the afternoon will suffice for a

charge of burglary.

LARCENY - diamond ring

The trespassory taking and carrying away of another person's property with the intent to

permanently deprive the owner of their property.

Here, Karl had clear intent to go into Barry's home and steal. A trespassory taking is one

where the defendant does not have consent to take the property. Here, Karl had no consent to

take anything from Barry. Carrying away can be met by simply moving the item ever so

slightly. Karl took the diamond ring and put it in his pocket; therefore, there is asportation of the

item. The item must belong to another person. Here, the ring is clearly Barry's; therefore, this

element is met. Lastly, the defendant must have had intent at the time of taking to permanently

deprive the owner. Karl appears to have no intention of returning this ring and went to the

house to specifically steal. Therefore, this element is met.

Karl will be guilty of larceny.

ASSAULT

Assault is an attempted battery or placing a person in reasonable apprehension of imminent

bodily harm.

Karl is not intending to commit a battery so the prosecution will have to prove that Barry was

put in imminent bodily harm by the dog. Where he was, then Karl can be liable for assault.

BATTERY

Battery is defined as the unlawful application of force onto the person of another.

Here, the dog knocks over Rich. The dog is in the possession of Karl and Martha. Karl does

not have to be the one who directly applies the force. The force can come from something

else.

Battery is a general intent crime, meaning that Karl does not have specific intent to commit a

battery.

Karl may be liable for battery.

Merger

Here, battery will merge into homicide.

HOMICIDE

The unlawful taking of a life of a human being by another human being.

FIRST-DEGREE MURDER (FDM)

FDM is defined as the intentional killing done with premeditation and deliberation.

Intentional Killing

The defendant must have had specific intent to kill the victim.

There was no specific intent to kill Barry; therefore, this element is not met.

Premeditation

Premeditation can be met by merely a moment's reflection.

Here, Karl had no intention to kill Barry and there appeared to be no reflection upon the killing.

Element not met.

Deliberation

Deliberation is a killing done in a cool, dispassionate manner.

The facts do not state that there was any cool, dispassionate killing. This element is not met.

Karl will not be guilty of FDM.

SECOND-DEGREE/COMMON LAW MURDER

In order to be charged with second-degree murder, there must be (1) an act of homicide (2)

actual and proximate causation and (3) malice.

Act

There must be an act of homicide.

Here, the facts clearly state Rick was knocked down and died.

Causation

The defendant must be the actual and proximate cause of death.

Actual Cause

Actual cause is met by the but for test. But for Karl being knocked down by Karl's dog, he

would not be dead.

Actual cause is met.

Proximate Cause

Proximate cause is met by foreseeability. Here, the prosecution will argue that it is foreseeable

that if you bring a dog into a house to distract someone, it could potentially knock them over

and they could hit their head. However, the defense will argue back that a dog, especially if

there are no facts to state what size it is or if it is a rowdy, aggressive dog, would not

foreseeably cause a death.

The defense will most likely prevail, and proximate cause may not be met.

Malice

Malice can be met by either: (1) intent to kill (2) intent to cause serious bodily harm (2) reckless

indifference to the value of a human life or (4) felony murder.

Intent to Kill

This is where the defendant maliciously intended to kill the victim.

Here, Karl did not intend to kill anyone, therefore this element will not be met.

Intent to Cause Serious Bodily Harm

This is when the defendant intends to cause serious bodily harm but death results.

Here, Karl did not intend to cause serious bodily harm to Rich; therefore, this element will not

be met.

Reckless Indifference

The defendant must manifest an extreme, unjustifiable indifference to the value of a human

life. This is also known as depraved heart murder.

The prosecution will again try to argue that coming into someone's house to distract them with

a dog may be considered a reckless indifference to human life. However, they will not prevail

here, as Karl was not even in possession of a deadly weapon nor was he trying to harm

anyone. A dog, especially without facts to show if it was aggressive, is not a threat to human

life. This element is not met.

Felony Murder Rule

Felony murder is defined as any killing that occurs during the commission, or attempt to

commit, a felony. An inherently dangerous felony would be burglary, arson, robbery, rape or

kidnapping.

Here, Karl may be convicted of burglary. However, if he is not, then he cannot be liable for

second-degree murder.

FELONY MURDER

Guilty of the Underlying Felony

Supra.

If Karl is guilty of burglary, then this element has been met.

Distinct from Killing

The killing must be distinct from the predicate felony.

Here, Barry died from the dog knocking into him. Karl was in the house to steal a ring, and

most likely is in the commission of a burglary.

Therefore, this killing is distinct from the felony. This element has been met.

Foreseeability

The victim's death must have been a foreseeable cause by defendant's actions.

Here, the prosecution will again have to argue that being knocked over by the dog running all

over the house is foreseeable. Here, it will most likely be foreseeable since Karl brought the

dog specifically to distract Rich and it would be assumed that the dog is running all over the

house causing a commotion. It is also foreseeable that if a dog knocks you over, you could fall

and hit your head and die.

This element will most likely be met.

During the commission of the Felony

The death must occur during the commission, or attempt to commit, the felony and not when it

is terminated. This element requires both (1) temporal and geographical proximity between the

killing and the felony and also (2) a causal relationship between the killing and the felony.

Here, Barry dies during burglary (if the jury deems this to be a burglary.) Furthermore, there is

temporal and geographical proximity as Barry dies in his house, which is where the events are

taking place. Therefore, this element will be met.

If Karl is guilty of burglary, and the dog knocking Barry over is foreseeable, he is going to be

liable for felony murder.

VOLUNTARY MANSLAUGHTER

Voluntary manslaughter is an intentional killing done in a sudden heat of passion with

adequate provocation and no cooling-off period.

Here, voluntary manslaughter does not apply as there was no intentional killing, no

provocation, or no cooling-off period.

Karl will not be guilty of voluntary manslaughter.

INVOLUNTARY MANSLAUGHTER

Involuntary manslaughter an unintentional killing that can occur through gross negligence on

behalf of the defendant or through the misdemeanor-manslaughter rule (MMR).

Criminal Negligence

This is an unintentional killing that occurs from the defendant's negligence. The defendant

must have been aware of the risk of harm.

Where Karl is not liable for murder, he could be convicted for involuntary manslaughter for the

negligence of bringing a dog into the home of another to distract and cause chaos. However,

Karl will most likely be liable for felony murder but if he isn't, the prosecution will have better

chance of charging him under the MMR.

MMR

An accidental homicide that occurs during the commission of an unlawful act that does not

amount to a felony.

If Karl is not liable for Felony Murder because he is not guilty of burglary, he could be

convicted of involuntary manslaughter under committing larceny.

DEFENSES - KARL

Karl is not going to have any strong defenses.

QUESTION 2

STATE v. MARTHA

CONSPIRACY

Supra.

Mental State

Martha is going to claim that she had no specific intent to enter into this agreement with Karl

nor did she have intent to commit the crime. However, the courts will most likely view her to

have had the specific intent since she does end up completing an overt act and furthermore,

committing the target crime so that Karl can steal.

Martha can be liable for conspiracy.

ACCOMPLICE LIABILITY

Common Law

Under the common law, the principal must be convicted for the principal in second degree to

be convicted. Here, Martha appears to be a principal in the second-degree as she is assisting

Karl in his crime. A principal in the second degree is someone who participates in the act but

does not commit the target crime. Someone can also be an accessory before the fact or after

the fact. However, modern rules are going to prevail.

Modern Law

Under modern law, the common law distinctions have been abolished. An accomplice is one

who aids, abets, assists, or encourages another to commit a crime. The accomplice must have

a "Stake in the venture" and must be actually participating in the crime. Silence or just merely

being present will not suffice.

Martha is going to argue that she was forced into this crime and has no stake in the venture for

wanting to commit any type of crime. This could be a strong argument. However, she does end

up committing the crime with Karl and goes to the house to distract Rich. Furthermore, she

provides direct assistance by distracting Barry as planned. Therefore, it will be likely she is

found to be an accomplice.

Liability

An accomplice can be liable for the target crime. An accomplice can be liable for all

foreseeable crimes committed in furtherance of the target crime.

Martha can be liable for all other crimes committed that are foreseeable.

Martha is an accomplice.

BURGLARY

Supra.