Republic of New Lemuria - Sample Bar Examination Questions

TORTS ANSWERS AND EXPLANATIONS

1. (A) Intentional infliction of emotional distress, answer choice (A) is the best answer. Although it is correct that Dullard has committed both a battery and the tort of intentional infliction of emotional distress we must look to the degree or severity of the conduct. First of all, choice (D) is incorrect because (A) is correct. Answer choice (B) is not correct because Jackson did not suffer from an imminent apprehension of a harmful or offensive contact. Answer choice (C) is correct to the extent that a harmful or offensive contact occurred, but answer (A) is the better answer as Dullard's conduct was extreme and outrageous. Dullard's conduct constitutes the intentional infliction of emotional distress because it occurred in front of interested voters who attended the candidate speeches and because it was extreme and outrageous.

2. (B) Battery is the most probable tort for which Bonnie may be able to assert in a suit for recovery against Alice. Battery consists of the harmful and offensive touching of plaintiff's person. "Plaintiff's person" includes anything connected with plaintiff's body. The freedom from intentional and unpermitted contact extends not only to any part of the body but also to anything which is attached to the body or identified with the body. Thus, the pulling of Bonnie's chair, causing her to fall to the floor, constitutes a battery. Note that this fact pattern must be distinguished from the fact pattern which describes conduct which may be characterized as "extreme" and "outrageous." In these questions, the degree or severity of Defendant's tortious conduct will determine whether plaintiff will most likely prevail under a theory of battery or under a theory of intentional infliction of emotional distress.

3. (C) Under the theory of "pure" comparative negligence a negligent plaintiff can still recover even where his negligence exceeds that of the Defendant. "Pure" comparative negligence allows recovery no matter how great plaintiff's negligence. Under the facts presented in this question, you are told that the jurisdiction follows a system of "pure" comparative negligence. Thus, if Colleague brings suit against Boss for $10,000 and the jury determines that Colleague is 60% negligent, Colleague would still be able to recover $10,000 minus the percentage of his negligence (60% of $10,000), or $4,000. Therefore, answer (C) is correct.

Question 2 is based on the following fact situation.

Mike and Gary were competitors in the car rental business. Mike's business was fairly large and he operated it out of a commercial lot located at the Southland Airport. Gary, on the other hand, was just starting out. Gary had only six cars which he rented out. Gary's business was done out of his house with up to three cars parked in the garage to his house and the remaining cars parked outside of his house alongside the garage. Of course, there were occasions when all of Gary's cars were rented and he had none on his property at all. Mike knew that Gary's business was increasing and that this was putting a dent in the rental market. Mike vowed to put Gary out of business or at least cripple his efforts to rent cars.

At 10 p.m. on last Tuesday evening, Mike went to Gary's house with the specific intent to commit felony crimes, including the common law crimes of larceny, robbery, or arson, and also competitive advantage, a statutory felony in this jurisdiction. Mike jumped the side fence to Gary's house and proceeded straight to the back door of Gary's attached garage. Finding the door open, Mike didn't hesitate to enter. Once inside, Mike thought about stealing the automobiles which were in Gary's garage. There were two autos parked inside the garage and the keys were on a key board located on the wall. Just before Mike picked up the keys, he spotted a five gallon gas can sitting on the floor. A light bulb flashed in Mike's head. He thought for a moment and then concluded that he could only drive one car away. On the other hand, if he was to burn Gary's car, garage, and house, he might be able to force Gary out of business. With that, Mike quickly poured gasoline out of the can. But just after Mike began pouring the gasoline he heard a noise from inside the living room. It sounded like footsteps. Mike panicked. He quickly took a match out of his pocket, lit the match, and threw it at the small puddle of gasoline on the ground. The gasoline did catch fire, but it only created a flame that was large enough to scorch the wall and burn a section of Gary's work bench. Mike ran out the back door and headed for home. Immediately after Mike got out the back door, Gary went into the garage, saw the small fire, and quickly put it out with the fire extinguisher which he kept nearby.

2. If Mike is charged with common law arson only, how should the court rule?

(A) Guilty, but only if the fire had burned Gary's dwelling house.

(B) Guilty, because the fire Mike set was sufficient to constitute common law arson.

(D) Not guilty, because Gary put the fire out.

Question 3 is based on the following fact situation.

Betty booked a flight on a SOUTHLAND AIR airplane which was scheduled to fly from Los Angeles to San Francisco on Friday, February 16. Betty was a businesswoman who infrequently took airplane trips within California to attend business meetings and other work-related events. On this particular day Betty arrived at the airport in Los Angeles with plenty of time to catch the plane. Betty, being very nervous about her meeting in San Francisco, was smoking fervently the entire morning.

At 12:50 p.m. the plane, loaded with passengers, raced down the runway bound for San Francisco. The stewardess informed all passengers about some safety precautions and also stated that the flight would only be 52 minutes in duration. Betty, feeling nervous and apprehensive about the meeting, made her way to the lavatory located in the rear of the plane. Since the lavatory was unoccupied, Betty went right in. While using the lavatory facilities, Betty noticed a sign which stated, "Smoking Is Prohibited On This Flight." Betty also noticed another sign which read, "Tampering With Lavatory Smoke Alarms Is A Crime. Violators Will Be Punished."

Believing that a cigarette might calm her nerves, Betty immediately produced a cigarette from her purse and lit it. As Betty was enjoying the renewed and momentary relaxation which the nicotine gave her, the lavatory smoke alarm sounded. A chill went down Betty's spine. Immediately thereafter, a stewardess was banging on the outside of the lavatory door demanding that Betty open it. Betty complied and was immediately arrested by the airline employee. When Betty arrived in San Francisco the stewardess led Betty to the SOUTHLAND AIR boarding counter where two Federal Agents, working out of the San Francisco International Airport Office, handcuffed Betty and informed her that she was being charged with the violation of a federal statute which read, "It shall be a federal crime for any person to smoke any material on an airline flight when such airline has informed said person that 'Smoking Is Prohibited On This Flight.'"

As a result of the charge against her, Betty has been summoned into Federal Court, located in San Francisco, California. All of Betty's appearances have been made in San Francisco even though Betty resides in Los Angeles, California. At Betty's initial court appearance she argued that she could not be charged with the violation of the federal statute and be summoned into Federal Court because she did not know that what she was charged with was a violation of federal law.

3. If the judge properly holds Betty to answer the charges against her it will be because

(A) Lack of knowledge regarding federal territorial jurisdiction will not relieve one of being held to answer for a charged violation of federal statute.

(B) Lack of knowledge regarding federal territorial jurisdiction is only a defense to a specific intent crime.

(C) Betty may be properly held to answer for the charged violation in the territorial jurisdiction in which she is alleged to have committed the crime.

(D) Betty has no right to object to the territorial jurisdiction in which she is summoned to answer for the charged offense.

Question 4 is based on the following fact situation.

Tommy just finished drinking four Gin Martinis at Bill's Bar. It was twelve noon. Bill didn't know that Tommy had already consumed two shots of whisky before he arrived at Bill's Bar at 11:40 a.m. that Monday morning. When Tommy had finished his drinks he thanked Bill and headed for the door. While making his way for the car, Tommy thought about how much he hated his job, his home, and his life. Tommy repeated to himself the words, "Life sucks!" All of his depression was attributed to his girlfriend leaving him three days earlier. Tommy knew it. He didn't want to admit it. He tried to blame his depression on other things but he knew deep down inside that it was Gertrude that was getting him down. He was having a hard time resigning himself to the fact that she was gone.

Just then it dawned on Tommy that he had to be at work. He quickly jumped into his car and sped off. Tommy was intoxicated but he didn't realize that he was driving at excessive speeds and in an erratic manner. Tommy worked in Houston, Texas. As he was traveling through town on his way to work he decided to run a few stop signs and red lights "to save a little time." As Tommy was traveling at a speed of approximately sixty-five miles per hour he saw a Mazda RX-7 automobile appear in the intersection before him. Tommy had no time to stop. He hit the Mazda automobile.

The Mazda, in turn, went careening into a few people who were crossing the street. Lori Streetwalker, a thirty-six-year old woman, was one person who was crossing the street. Lori died immediately. Several other people were severely injured and required hospitalization. Tommy walked away with only minor bruises, and a pair of handcuffs. The Houston City Police Department arrested Tommy and has taken him into custody.

4. Which legal theory of criminal liability would be most applicable under the circumstances?

(A) Murder

(B) Depraved-heart murder

(D) Battery

Questions 5 - 7 are based on the following fact situations. Read each fact situation and then choose the most serious offense for which the Defendant may properly be convicted. Your choices are

(A) Murder

(B) Felony murder

(D) Involuntary manslaughter

5. Defendant and Neighbor are neighbors in an apartment building. Neither has liked the other very much. Defendant especially dislikes Neighbor because Defendant believes that Neighbor, a single woman, is trying to steal the love and affection of Defendant's husband away from her. One day the two of them get into a mutual disagreement and fight. During the fight Defendant forms the intent to kill Neighbor. Defendant quickly grabs a crescent wrench which was lying nearby and strikes three quick blows to Neighbor's head. Neighbor dies before the ambulance arrives.

6. When Joe refused to pay a gambling debt he owed to Mark, Mark told Joe that he knew members of a gang and that he would have them kill Joe. Both Mark and Joe are adults. Mark then contacted Ron and Sam, both age 15 and members of a local gang. Mark asked them to give Joe a severe beating but expressly told them not to use weapons.

Two days later, while looking for Joe, Ron and Sam, who were unarmed, saw him getting into his car in a parking lot. They began to run toward Joe. Joe saw them running toward him and noticed they were wearing bandanas indicative of gang membership. Thinking that Mark had sent them to kill him, Joe reached in the glove compartment of his car for a handgun and shot at Ron and Sam, wounding both. Although Joe explained Mark's threat to the police, he was arrested and charged with two counts of assault in the first degree. Ron and Sam were also arrested and charged with attempted assault.

Based on Joe's explanation and statements given to the police by Ron and Sam, Mark was arrested and charged with conspiracy and criminal solicitation.

Based on the foregoing facts:

(A) If Joe raises the defense of justification, is it likely to be successful?

(B) (1) Did the actions of Ron and Sam constitute the crime of attempt to commit an assault?

(2) If so, do Ron and Sam have any defenses?

CRIMINAL LAW AND PROCEDURE ANSWERS

AND EXPLANATIONS

1. (C) Johnson is guilty of larceny only in hypothetical fact pattern (C) above. Thus, answer choice (C) is the correct answer. In fact pattern (C), Johnson committed larceny when he ate a sandwich which belonged to Jane. Under the common law, larceny consisted of (1) the trespassory taking, (2) and carrying away (3) of the personal property (4) of another (5) with the specific intent to steal the same. Answer choice (A) is incorrect because Johnson never obtained any personal property of another, nor did he carry any property away. Answer choice (B) is incorrect because Johnson would be guilty of the crime of embezzlement, rather than larceny, when he took his employer's property. Answer choice (D) is incorrect because Johnson merely borrowed the car and had no intent to steal it, or permanently deprive the owner of the property.

2. (B) The correct answer under these facts is answer choice (B) which states that Mike should be found guilty of common law arson. Under the common law, arson consisted of the (1) malicious (2) burning (3) of the dwelling house (4) of another. Students should also remember the rule that the slightest charring is sufficient to satisfy the "burning" element. Furthermore, Gary's garage is attached to the house. This "structure," including Gary's house and garage, is considered Gary's "dwelling house." Once the flame scorched the wall, the crime of arson was completed. Students should also note that the crime of burglary was not present under these facts as there was no "breaking" present. Because the fire here burned Gary's dwelling house, answer choices (A), (C), and (D) are incorrect.

3. Penny’s counsel should argue that State S’s denial of access to its records impairs protected rights, and that State S does not have a substantial reason for its denial that bears a substantial relation to the state’s goal. Penny will likely be successful in establishing a violation of the Privileges and Immunities Clause.

The Privileges & Immunities Clause of Article IV, § 2 of the United States Constitution provides: “[t]he citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” It has generally been interpreted as preventing a state from discriminating against citizens of other states in favor of its own. Hague v. C.I.O., 307 U.S. 496, 511, 59 S.Ct. 954 (1939).

The test to determine whether a State’s actions or policies violate the Privileges & Immunities Clause of Article IV requires a court to consider whether the policy at issue burdens a right protected by the Privileges & Immunities Clause, and whether the state has a “substantial reason” for the discriminatory practice and whether the degree of discrimination bears a close relation to the reason. Toomer v. Witsell, 334 U.S. 385, 68 S.Ct. 1156 (1948), United Building & Construction Trades v. Mayor and Council of Camden, et. al., 465 U.S. 208, 104 S.Ct. 1020 (1984), Supreme Court of New Hampshire v. Piper, 470 U.S. 274, 284, 105 S.Ct. 1272 (1985).

Penny should argue that State S has discriminated against her by denying her access to its official records, and that such denial burdened her ability to complete work projects in the field of lobbying and governmental relations on the same basis as residents of State S, and to engage in the political process.

The pursuit of a common calling is one of the most fundamental of those privileges protected by the Privileges & Immunities Clause. City of Camden, supra. Penny’s inability to perform the functions of her work in the field of lobbying and governmental relations on the same basis as State S residents could be determined to affect her right to pursue a common calling. Toomer, supra., at 396, Lee v. Minner, 369 F.Supp. 2d 527 (D.Del. 2005), affirmed, 458 F.3d 194 (3d Cir. 2006). In the Lee case, a non-resident sought Delaware’s official records in order to carry out his profession as a consumer advocate and journalist. The District Court found that a citizen-only law violated plaintiff’s fundamental right “to practice his common calling…on the same terms and conditions” as residents. Id., 369 F.Supp.2d at 533.

Additionally, it is reasonable to assume that Penny and other residents of State T might be interested in State S’s government operations, and that governmental watchdog organizations, like Company, would have an interest in transparency and accountability in State S government. Penny could argue that her inability to investigate and question State S’s budget may be determined to be a burden on her ability to participate in political advocacy on matters of common public interest between the states. The court in Lee v. Minner found that a citizen’s only law violated plaintiff’s fundamental right “to engage in the political process with regard to matters of both national political and economic importance.” Id., 369 F.Supp.2d at 533.

If Penny’s rights are determined to be protected by the Privileges & Immunities Clause, State S must then establish that it has a “substantial reason” for exclusion of nonresidents from access to its official documents. State S must prove “…that there is an independent, valid reason for the discriminatory treatment of nonresidents, and that nonresidents are a ‘peculiar source of the evil at which the statute is aimed.’” Id., at 535, quoting Toomer, supra, 334 U.S. at 399. State S may be expected to argue that it wants to strengthen the political process by ensuring transparency and accountability in State S government for its citizens.

While ensuring transparency and accountability in government might be found to be a legitimate interest, it is unlikely that the state’s goal is substantially related to the means by which it seeks to achieve that goal. See Lee, supra, 458 F.3d at 201. Allowing non-citizens access to the same public information available to the citizens of State S does not impede or thwart such interest. Id. Moreover, since residents of other states may have a legitimate interest in State S governmental activities, wholesale exclusion of out-of-state residents from access to records is likely to be viewed as an obstacle to such goal. Indeed, Penny’s research on waste in State S government would certainly have been of interest to State S residents, thus furthering rather than hindering State S’s interest in increasing accountability and transparency in State S government. Accordingly, the court will likely find that OGRA violates Penny’s rights under the Privileges & Immunities Clause.

4. In addition to a likelihood of success on the merits, Penny must establish that irreparable injury will result if the injunctive relief is not granted; that harm to Penny will outweigh harm to State S; and that the public interest will not be harmed if the preliminary injunction is granted. Penny will likely succeed in obtaining a preliminary injunction.

Preliminary injunctive relief is extraordinary relief, issued at the discretion of the trial court. JSG Trading Corp. v. Tray-Wrap, Inc., 917 F.2d 75, 80 (2d Cir. 1990). Here, Penny is seeking to enjoin the enforcement of OGRA against her. This is considered to be a mandatory injunction that seeks to alter the status quo by commanding a positive act. Yu Juan Sheng v. City of New York, et al, 181 Fed. Appx. 38, 2006 U.S. App. LEXIS 11928 (2d Cir. 2006).

The criteria for the entry of a preliminary injunction are: (1) a likelihood of success on the merits; (2) irreparable harm resulting from denial of the relief sought; (3) the harm to the non-moving party if the relief is granted; and (4) the public interest. United States v. Bell, 238 F.Supp.2d 696 (M.D. Pa. 2003). Where the preliminary injunction is directed at providing mandatory relief, the burden on the moving party is particularly heavy. Punnett v. Carter, 621 F.2d 578 (3d Cir. 1980).

Since success on the merits is assumed, Penny must establish that she will be irreparably injured should the injunctive relief be denied, that the public interest will not be harmed by the preliminary injunction and that the harm to State S (from granting the requested injunction) will not be greater than the harm to Penny (should injunctive relief be denied). In support of these elements, she will allege irreparable injury due to her inability to complete her thesis should she be denied immediate access to State S financial records, which will cause her to be terminated from the unique and prestigious graduate program in which she is enrolled. She should further allege that it is in the public interest for her as a member of the public to gain access to State S fiscal records, and that State S will not be injured by the entry of preliminary injunctive relief.

It is likely that the court will grant a preliminary injunction. It is clear that the public interest will not be harmed by the granting of the injunction, and, in fact, it may further the public interest for such access to be granted so that the public may benefit from Penny’s research on waste in State S government. Additionally, State S will not be harmed if the preliminary injunction is granted because access to the records by Penny is currently merely restricted rather than eliminated under the statute.

Penny could obtain the records through other means if she were able to identify a State S resident willing to make the request for records on her behalf.

Finally, it is likely that the court will find that Penny will sustain irreparable injury if a preliminary injunction does not issue. An irreparable injury is one that is of a peculiar nature so that money alone cannot compensate for it. Connors v. Shannopin Mining Co., 675 F.Supp. 986 (W.D. Pa. 1987). Most courts hold that when an alleged deprivation of a constitutional right is involved, no further showing of irreparable injury is necessary to support the grant of a preliminary injunction. McCormick v. Hirsch, 460 F. Supp. 1337 (M.D. Pa. 1978). Even if specific proof of irreparable injury were required, it is likely that Penny’s dismissal from the unique and prestigious graduate program for her failure to meet the program’s deadlines, would be viewed as warranting such extraordinary equitable relief, especially in light of the fact that she has been working on the research project for several years. See Faulkner v. Jones, et. al., 10 F.3d 226 (4th Cir. 1993). Penny’s Motion for a Preliminary Injunction will likely be granted.

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TORTS ANSWERS AND EXPLANATIONS