Essay Questions and Selected Answers July 2004

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Answer A to Question 66)WHAT CLAIMS, IF ANY, MAY MELINDA ASSERT AGAINST WILBUR, AND WHATDAMAGES, IF ANY, MAY SHE RECOVER?Standing - Melinda, the widow of Chip, will sue Wilbur either as his representative undera survival action or for wrongful death as his widow.Melinda v. WilburNegligence - a breach of duty which is the actual and proximate cause of damage to theplaintiff.Duty - as the driver of a car, Wilbur owed a duty of reasonable care to the people whowere within the zone of danger (Cardozo) or the entire world (Andrews view). Chip, as aperson crossing the street in front of Wilbur, was within the zone of danger and thereforeowed a duty by Wilbur.Breach - Wilbur drove through a red light and hit Chip because he did not see him. Indriving through the red light, Wilbur was probably negligent. Negligence per se may beimplied if driving through a red light is a violation of an applicable law, since Chip would bethe kind of person that such a law would be designed to protect.Causation - actual - but for Wilbur driving through the light and striking Chip, Chip wouldnot have died.Causation - proximate - it was foreseeable on Wilbur’s part that driving through a red lightwould injure someone. The fact that Wilbur did not see Chip would not relieve him ofliability. Wilbur may argue that the fact that Chip actually died was the result of hishemophilia, which caused him to bleed to death when another person would have easilyrecovered from the gash in his leg. Wilbur may argue that it was not foreseeable that Chiphad this condition and that therefore the cause of Chip’s death was not caused by Wilbur.However, hemophilia is a pre-existing condition, and the rule in negligence cases is thatthe defendant takes his victim as he finds him. This is analogous to the “soft skull” caseswhere a particular plaintiff was particularly susceptible to injury. Therefore, the hemophiliadefense will not work.Damages:. Lost earnings - future earnings are allowed in negligence actions. The court wouldcompute the amount of time that Chip probably would have lived, using some form of52
actuary table. The fact that Chip was a hemophiliac would be relevant to possibly reducingthe amount of future earnings allowed by discovering what the expected lifespan of ahemophiliac of Chip’s age and general heath is. The amount of future ear[n]ings would bereduced to present-day value, because only one recovery is allowed. However, noreduction would be allowed for the fact that Chip is engaged in an especially lucrativeprofession; again, Wilbur has to take his victim as he finds him.. .. Particular earnings - the $100,000 under the contract is not going to be earned atthis point, because the contract between Jack and Chip said that the $100,000 would onlybe paid upon successful completion. Completion will never take place, because Chip isnow dead, and Chip’s performance was a condition precedent to Jack’s obligation to pay.This money would have gone to Chip, but Melinda can bring the suit as the representativeof his estate. She does not need to show that she is a third party beneficiary because sheis not attempting to enforce the contract itself, but to show that Chip would have recoveredunder the contract if he had not been injured. However, if forced to rely on a third-partybeneficiary claim she would probably fail because she was not an intended beneficiary ofthe contract between Chip and Jack, but merely an incidental beneficiary.. .The question will be whether or not Chip would have successfully completed cutting theStar had he not been struck by Wilbur’s car. If it appears that he would have completed,then it is possible that this $100,000 could be recovered. However, there is a very strongargument that Chip would not have completed the task. 19 of 20 master diamond cuttersin the world declined the job because they thought that they could never do it withoutshattering the Star. This means that in the professional judgment of men and women whoare masters in their field, 95% of them (19/20) turned the job down as impossible. Sincethe burden of proof in a civil action is a preponderance of the evidence (51%), it is almostcertain that the burden of proof cannot be met here to show that the $100,000 would havebeen recovered had Wilbur not knocked down Chip.Melinda will probably not recover the $100,000.. Loss of consortium - as Chip’s wife, Melinda can get damages for loss ofcompanionship.. .. Punitive damages - not usually available in negligence cases unless the action ofWilbur in driving through the red light was gross negligence. We have no evidence ofgross negligence here, however, since Wilbur was moving slowly at the time he struckChip.53
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CaliforniaBarExaminationEssay Quest
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TUESDAY MORNINGJULY 27, 2004Califor
Page 5 and 6: Answer A to Question 11)1. A. Dan -
Page 7 and 8: crime.Second Degree MurderDan is mu
Page 9 and 10: Here, Dan’s strongest argument is
Page 11 and 12: ecause the killing of Art took plac
Page 13 and 14: Here, there is no evidence that Chu
Page 15 and 16: Question 2State X amended its anti-
Page 17 and 18: invites abuse of indigent or undesi
Page 19 and 20: Answer B to Question 22)Validity of
Page 21 and 22: Alice’s CaseAlice’s StandingAli
Page 23 and 24: fulfill its duties in transporting
Page 25 and 26: Question 3Hank, an avid skier, live
Page 27 and 28: B. ANN’S CLAIM1. Omitted ChildAnn
Page 29 and 30: e returned to the settlor’s estat
Page 31 and 32: the will. If, however, the presumpt
Page 33 and 34: 2. Fred’s ClaimFred (F)’s claim
Page 35 and 36: ecause the “real” beneficiary i
Page 37 and 38: Question 4Victor had been dating Da
Page 39 and 40: Hearsay is a statement made by the
Page 41 and 42: is to satisfy the prosecution’s b
Page 43 and 44: Answer B to Question 41) The issue
Page 45 and 46: 2) V’s TestimonyRelevanceV’s st
Page 47 and 48: substantial effect an the outcome o
Page 49 and 50: Answer A to Question 55)Duty of loy
Page 51 and 52: interest. On the one hand, it seems
Page 53 and 54: 1. Duty of dignity to legal profess
Page 55: Question 6Jack owned the world’s
Page 59 and 60: Causation - but for Wilbur driving
Page 61 and 62: have been injured and then died.Pro
Page 63 and 64: succeeded on his claim against Wilb
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Essay Questions and Selected Answers July 2004

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