Repeat Offender Model Answers

This article goes hand in hand with the article on repeat offenders commonly found in the FYLSE; for a refresher on that article click here.  That being said, these are model answers, not perfect, not good, not great, just model answers.  Not all model answers are created the same; some are better than others some are worse.  Some model answers are written in a specific style; Flemming, Kaplan, Barbri, etc.

Use model answers to check your issue spotting, review rule statements, and get ideas on how others approach situational analysis.  Model answers are also good for looking at how others transition from one issue to another.

October 2014 Contracts

Model Answer A

Is Zena liable for Carl?
Zena (Z) v. Carl (C)
For a contract to be valid there must be an offer, acceptance, consideration, and no
formation defenses.
Governing Law
The Uniform Commercial Code (UCC) governs contracts that are for the sale of
goods.Service contracts are covered under common law, not the UCC. Here the contract is
for a cleaning service and therefore this contract is governed by common law.
An offer is an objective present contractual intent communicated to the offeree with
clear and definite terms.
Under common law the terms required for a contract are quantity, time for
performance, identification of the parties, price and subject matter.

An advertisement is generally not considered an offer. However if the advertisement
has clear and definite terms such that the advertisement may meet the requirements
for an offer, some courts will allow for an advertisement to be considered an offer.
When Z placed an ad in the paper her terms were:
quantity – my house
time for performance – Once a week for a month
parties – first to apply
price – $35 per hour
subject matter – cleaning
Because Z’s advertisement in the paper has clear and definite terms her
advertisement would likely be viewed as an offer.

Assent to the terms of the offer.
When C stated that, “I accept on the terms you have offered” C assented to the
terms and showed an outward manifestation to be bound by the contract.
Z may argue that because her advertisement stated, “The first to apply will be
accepted” and C stated that he accepted, C did not properly accept the contract.
However a reasonable person would look at the conduct and what was said and
likely find that acceptance was appropriate.
Modes of Acceptance (Mailbox Rule)
The offeror is the “master of the offer” and may specify a specific mode of
acceptance. If the offeror does not, acceptance is done by a reasonable method
given the method of the offer. Additionally, an acceptance is effective upon dispatch
and a rejection is effective upon receipt.
Z included her phone number in the advertisement. This shows Z’s intent that
reasonable acceptance may be done by phone. C called Z the day after the
advertisement was placed.
Timely Response
It is reasonable to assume that the following day after an advertisement goes into
the paper when C called, that the acceptance is reasonably timely.
Mirror Image Rule
Under common law, an acceptance had to be a mirror image of the offer (additional
or different terms would likely be a counteroffer or if asked properly an inquiry).
Consideration is a bargained-for exchange/legal detriment.
Z was not bound to pay C for cleaning the house; the $35 per hour is a bargained-for
exchange and a legal detriment. C was not previously bound or had a preexisting
duty to clean Z’s house. There is valid consideration for both parties.
Contract Formed
As discussed supra, there was a valid offer, acceptance and consideration. Absent a
formation defense, a contract has been formed.
Formation Defense, No offer
Z will argue that the advertisement was not an offer. However for the reasons
discussed supra, she will not win on this argument.
Formation Defense, Mistake
If there is a mutual mistake that goes to the heart of the bargain, the contract may be
rescinded by the harmed party.
In the facts given there is no mutual mistake as a slight increase in the square
footage of the home is not likely significant.
Unilateral Mistake
When there is a unilateral mistake to a contract, the contract may be unenforceable
if it is unconscionable, or the non-mistaken party knew of or should have known of
the mistake.
Z will state that she made a mistake in the offer and therefore she should be let out
of the contract. However the contract on its face is not unconscionable, nor could C
have known of the mistake.
Z will not prevail on this argument.
Statute of Frauds
Contracts for the sale of goods, in consideration of marriage, surety, sale of real
property, and contracts that cannot be completed within a year are required to be in
writing. Here there are no facts to support the statute of frauds is an issue as the
contract is for a month’s time.
A contract may be modified under common law so long as there is additional
consideration and both parties assent to the modification.
When Z stated her house was actually 3000 sq feet and the pay was the same, Z
attempted to modify the contract.
Additional Consideration for Modification
Consideration defined supra.
Because there was additional cleaning to be done 500 sq feet C would have more
cleaning to do. Additional work would be legal consideration. C is being paid by the
hour ($35). Because cleaning additional areas would take longer, C would be paid
Therefore this modification would have consideration.
Assent to Modification
When Z told C that she wanted to modify the contract, C said, “Let me think a
moment”. Let me think is not an outward appearance to agree to the modification
and therefore C is not bound to the modification at this point.
When Z called C back C stated, “I agree to clean for you on the terms you
described. An extra 500 sq ft does not matter to me.” C assented to the modification
and the modification therefore became valid.
Timeliness and Mode of Acceptance of Modification
Defined supra.
Z stated she had another call and would call C right back. Upon calling C right back,
C accepted the modification. Therefore the mode and timeliness of the acceptance
of the modification were valid.
The modification of the contract is valid for the reasons discussed supra.
Revocation of an Offer
An offer may be terminated by communicating to the offeree prior to acceptance.
Z will argue that she terminated the offer when she stated she changed her mind
and would do her own cleaning. Because the offer had already been accepted
(discussed supra) Z cannot terminate the offer.
A breach occurs when one side to a contract does not perform. A breach may be
major (goes to the heart of the contract) or may be minor.
Anticipatory Repudiation
When a party to a contract states clearly (through words or actions) they will not
perform under the contract, the other party may treat the repudiation as a breach.
When Z stated she changed her mind, Z effectively said she was not going to
perform under the contract. Because cleaning the house was the heart of the
contract, this would be seen as a major breach.
C would be excused from his promise to clean.
Good Faith
A party to a contract may not make performance impossible and enforce the
contract. Therefore Z does not have a claim of breach.
Expectation Damages
A party to a contract is entitled to the benefit he would have received had the
contract been performed.
Here C would be entitled to $35 times the number of hours it would have taken to
clean the house (as the modified contract stated) minus any expenses he would
have had in cleaning the house.
Call 1. Is Zena liable to Carl?
For the reasons discussed supra, yes Zena is liable.

Model Answer B

Carl v Zena
Governing Law
The Common Law governs contracts for services, as the Uniform Commercial Code
governs contracts made for the sale of moveable goods.
The facts state the contract is for house cleaning, a type of service.
Thus the Common Law will be the governing law.
First Offer
An offer is a present outward manifestation of contractual intent, with clear and definite
terms, communicated to the offeree.
According to Majority Rule an advertisement is merely a proposal for offers.
Minority Rule states if the Advertisement contains clear and definite terms could be an
Here the facts indicate that Zena places an advertisement in a local newspaper for
house cleaning services, showing a manifestation of present contractual intent, as she
described the service needed.
The advertisement also included the following terms:
Quantity: 1
Time of performance: Once a week/next month
Identity of parties: Zena and 1st to apply
Price: $35 per hour
Subject matter: 4 bedroom house (2500 sq ft)
Since the terms are clear and definite, and stated with particularity they become part of
the offer.
Also, because Zena placed her phone number in the advertisement, and received a call
from Carl, it was communicated to the offeree.
Because all the terms are clear and definite if the courts follow the minority rule they will
construe this advertisement to be an offer.
If the courts decide it is merely an invitation for offers, and follow the Majority rule, it will
not be a valid offer.
Reasonable Person – Objective Theory of Contracts
According to the objective theory of contracts, the most reasonable person would view
Zena’s offer in the newspaper as an offer, because all the terms are clearly stated, and
it states the first person to apply will be accepted. Also a reasonable person would see
Zena’s phone number, not just merely an ad, and would believe that she could be
contacted immediately to accept the cleaning service.
Acceptance #1
An acceptance is an unequivocal assent to the terms of the offer.
Here, Carl calls Zena the next day, stating, “I accept on the terms you have offered,”
showing an unequivocal assent to the terms of the offer, made using her telephone
number, a call assenting to the “master of the offer,” to return an acceptance in phone
call. If the courts find there was a valid offer, then Carl’s acceptance will also be valid.
Zena will argue that because she received the phone call from Carl, their conversation
also included that she made a mistake in the advertisement which she stated before the
conversation was over.
As will be discussed below, if the courts decide that Zena does have a valid point then
the offer will be terminated; if not, then Carl will have made a valid acceptance.
Termination – Oral Conversation.
Because an oral conversation has taken place between Carl and Zena, and Zena made
a statement of making a mistake in her advertisement, at the end of the conversation,
Carl states “Let me think about it,” we can infer that there was no decision made.
Thus the oral conversation terminates the offer, since no decisions were made.
Exception Unilateral
A unilateral contract cannot be terminated once performance has begun. Here,
because Carl and Zena have not made a decision, or agreed upon one, and no
performance has begun the offer is still terminated at the end of their conversation.
Offer defined supra.
During Carl and Zena’s phone conversation, Zena proposed a mistake in her first offer
to Carl. She stated that the pay will be the same, but my house is actually 3,000 square
feet, in which implies different terms, thus creating a second offer to Carl.
Acceptance #2
Because Zena hung up the phone, and called Carl two minutes later, Carl then stated
an unequivocal assent to the terms of her second offer.
Thus a valid acceptance.
An offeror may revoke their offer anytime prior to a timely acceptance. Revocation is
effective upon receipt.
Here, the facts indicate after Carl accepts Zena’s offer, Zena then tells Carl, “I’m sorry,
but I’ve changed my mind,” indicating a revocation of her offer to Carl.
Since Zena’s revocation was not prior to the acceptance by Carl, it will not be effective.
Thus not a valid revocation.
Meeting of the Minds/Mistake
The courts will view the contract by both Zena and Carl to be mutual if they show that
they knew of the contract, and a reasonable person would believe that they were
entering this contract with no doubts.
Zena will argue that there was no meeting of the minds because she made a mistake in
her advertisement, and when Carl called they hung up, and two minutes later before
Zena could respond, Carl is stating that he accepts the terms. This is not giving her
enough time to respond or react to the second offer; he just came out and said I agree
to your terms.
Thus if the courts side with Zena and there was no meeting of the minds then there will
be no contract, if they side with Carl a contract has been formed.
Usually the courts will side with the non-mistaken party and go by what they state was
in the contract at the beginning of formation.
Carl will argue that Zena made a mistake in her advertisement, clearing it up with him
later, and he still accepted her new terms.
Thus the court will side with Carl and use the terms of the contract that were formed
during formation.
Consideration is a bargain for exchange of a legal detriment.
Here, Zena is bargaining for her house to be cleaned, and Carl is receiving $35 per hour
to clean her home.
Thus a bargain for exchange has been made.
Thus a valid contract exists.
Defenses to Formation
Mistake – Unilateral
As discussed above, Zena created a unilateral mistake, but fixed the mistake with Carl
after the advertisement was posted.
Thus not a valid defense.
Statute of frauds requires some contracts to be in writing: Marriage, debt of another,
contracts that cannot be performed within one year, $500.00 or more, and interest in
Because this contract is for house cleaning services it does not fall within the statute of
Thus not a valid defense.
Major Breach – Here because Carl did not receive his benefit of the bargain, Zena has
created a major breach of contract.
Due to the mistake that Zena made in her advertisement, which was later cleared up,
Carl may ask the courts to reform the contract to what both parties intended it to be at
the time of formation.
Due to Zena’s unilateral mistake she may ask the court to rescind the contract, and
apply the agreed upon terms

June 2012 Criminal Law

Model Answer A

Conspiracy is an agreement between two or more people to commit a crime and with
the specific intent for that crime to occur. Most jurisdictions require an overt act in
furtherance of that crime. Modernly, unilateral agreements are allowed. Most
jurisdictions also presume agreement from actions implying an agreement.
Here, Bob suddenly GRABBED Van with Abe. They both beat Van, robbed (infra) him
and left him. The State will argue most criminals will not ask for a signed contract
before agreeing to do criminal activities. The State will state contend the “concerted”
effort in unity and synchronicity illustrated an implied agreement between Bob and Abe
to batter and rob him. Their intents were clear from the fact they actually followed-up
with their implied agreement by not only an overt act in furtherance, but by actually
completing the crimes of battery and robbery (infra).
Abe is not in question here, but should the state choose, he would also be liable for
conspiracy under the modern rules in some jurisdictions.
Bob will contend he never agreed with Abe to do anything illegal and it was just a
sudden reaction.
Bob may be charged with conspiracy to commit robbery and battery, but whether the
State will succeed will be up to the courts.
Battery is the unlawful application of force to the person of another.
Here, Bob and Abe applied an unlawful force when they GRABBED him suddenly.
Generally, grabbing another would cause a substantial force to hold someone so as to
prevent an escape. The facts do not indicate a consent by Van nor a legal privilege by
either Bob or Abe when the grabbed Van.
Thus, Bob will be charged with Battery of Bob when he grabbed him.
Assault is the attempted battery (Supra) or the causing of reasonable apprehension of
an immediate harmful touching.
When Bob grabbed Van suddenly, there may not have been time for Van to feel any
apprehension or notice a threat. However, once the battery occurred, Van could have
been reasonably apprehensive as to what was going to happen next, because grabbing
usually implies a hold without releasing. One would be very apprehensive when two
much larger people grab one suddenly and without provocation.
Here, Bob will be charged with assault of Bob.
Here, Bob and Abe DRAGGED (use of more force) Van into an alley by grabbing him
(forceful touching) and moving him. The facts do not state Van consented to this either
and Bob did not have any legal authority for his actions.
Thus, Bob will be charged with the battery of dragging Van into the alley.
Here, Bob and Abe applied unlawful force upon Van by SEVERELY beating him with
BRASS KNUCKLES, a weapon used to severely injure the body. Once again, Bob had
not legal justifications for his actions of applying harmful force upon Van.
Bob may be charged with aggravated battery as well.
False imprisonment is the unlawful confinement of another within fixed boundaries for
any period of time.
Here, Bob and Abe intended to confine Van by GRABBING him so as to prevent
physical escape and then dragging him into an alley. Alleys make escape more difficult,
because they have at least two walls and sometimes a dead-end. This would
substantially decrease chance of escape. State will also argue Bob had no reason other
than robbery and battery to hold Van against is will for the period of time necessary to
complete the robbery and battery.
Bob does not seem to have any defense.
Bob will be charged with the crime of false imprisonment.
Common Law Kidnapping–under common and old law, kidnapping was taking one out
of their country or state without authorization and against their will. Common law rules
of kidnapping will not apply here.
Modernly, kidnapping is false imprisonment (SUPRA) plus asportation. Kidnapping is
more serious than false imprisonment because asportation (movement) can
dramatically increase risk of harm to the victim.
Here, Bob forcefully grabbed and moved (asportation) Van into the alley where a more
serious harm did occur when Van was severely beaten with brass knuckles. Van being
smaller in stature and confined to an ally with two bigger guys severely beating on him
prevented any reasonable escape.
Bob will attempt to say kidnapping is like false imprisonment and Van was only dragged
a few steps rather than state lines. He will argue there was no substantial asportation.
The State will successfully counter by saying the asportation element is for prevention
of risk to victim. Here, the movement into the alley allowed more time and cover from
detection when Bob unleashed his furry on Bob.
Thus, Bob will be charged with kidnapping as well.
Larceny is the unlawful taking and caring away personal property of another with the
specific intent to permanently deprive.
Here, Bob took SEVERAL ITEMS INCLUDING A RING from Van. These items seem to
have been personal property of Van, another. Bob intended to apparently deprive Van
of his property, because the violent nature of the taking did not leave room for the
likelihood of a civil return of his chattel.
Bob will be charged with larceny of Van’s property and ring.
Robbery is defined as larceny (supra) with use of force, fear or intimidation.
The facts did not state Van consented to the taking of his personal property by Bob.
Further, Bob had to have used sufficient force to enter Van’s pocket and extract the
items and the ring. Further, Bob used brass knuckles to beat and incapacitate Van to
the point where he would be able to easily extract Van’s personal property from Van’s
pocket without any resistance.
Bob may be charged with robbery of Bob as well.
Bob does not seem to have any reasonable defenses based on this fact pattern.
Charles will argue he never had an agreement with Bob when Bob decided to batter
and rob Van. He will further successfully say he did not have any specific intent for any
of those crimes to be committed.
The State will have a daunting task at trying to prove specific intent.
Charles will probably not be charged with Conspiracy.
Receiving stolen property is obtaining property stolen from another with the knowledge
it was stolen and the intent to permanently deprive the rightful owner.
Here, Charles took the ring which he saw being robbed from Van, another. Charles had
scienter of the nature of its acquisition and took it anyway.
Charles will contend he could not say no to two big guys who just beat Van and then
gave him the ring, probably as “hush money.” Charles will contend he didn’t specifically
intend to deprive Van because he would give it back. The facts don’t state such a case
but the facts also abruptly stops with this information.
Charles may be charged with receiving stolen property, but the State will have a huge
task in proving intent to deprive element of the crime.
Parties to a crime may be charged for accomplice liability if the intended for that crime
to occur, had knowledge of its occurrence and actively assisted.
Under common law, accomplices were separated into Principles in the 1st and second
degree. Principles in the 2nd degree were the ones at the scene of the crime but not
committing the actual crime.
Here, Charles will argue he was not only not committing any of the crimes but he had no
knowledge ahead of time, nor did he actively assist.
He will also argue the gratuitous gift was not on a condition that he would thwart the
authorities or not report the crime.
He will not be charged with being principle in the second degree.
He will also argue the gratuitous gift was not on a condition that he would thwart the
authorities or not report the crime.
He will not be charged with being accessory after the fact.
Modernly, all are accessories. Accessories are liable for all foreseeable natural and
probably consequence resulting from their accomplices crimes. However, if the
accomplice has rendered assistance after the crime has been completed, he would not
be liable for acts prior.
There would only be the crime of accessory after the fact.
Charles may be charged with accessory after-the-fact.
Homicide is the killing of a human being by another. A human being is one who is born
and not dead yet. In California, a viable fetus is also considered a human being.
Here, Abe, was an alive human being who was killed in an accident.
There was a homicide.
In order for murder to be proven, there must be both actual and proximate cause.
ACTUAL CAUSE: But for Van stabbing Abe, Abe would not have died instantly.
PROXIMATE CAUSE: It is foreseeable that being stabbed by a deadly weapon such as
a knife, one would sustain life-threatening wounds. Charles was killed instantly from
such a wound and thus there is proximate causation as well.
Murder is the unlawful killing of another with malice aforethought. Malice can be
established by one of the following 4 ways:
1. Felony Murder Rule (FMR)–FMR is the a killing which occurs during the commission
of one or more of the inherently dangerous felonies. These felonies are rape, robbery,
burglary, arson, mayhem and the like.
Here, Van was not in the commission of one of the above-motioned felonies and thus
malice may not be established for FMR.
2. Specific Intent–Malice can be achieved if the defendant actually and specifically
wanted to kill.
Here, the State will argue Van carried a knife, a deadly object used for killing, and took it
out to use it against Abe. The state will also say Van was RAGING and most likely to
get revenge for Abe beating him earlier.
Van will argue he never intended to kill for no reason. Van will attempt to say he was
merely protecting himself.
If the State charges Van with Murder, we would have to go to the degrees.
3. Intent to commit great bodily harm/injury–one needs to only intend to create great
bodily injury to created the intent needed to establish malice.
Here, the State will also argue that carrying a knife and approaching Abe to stab his
was a reckless act creating great bodily harm. State will say Van could have stepped
away and retreated because they were not indoors or a place where escape was not
4. Wanton and reckless act showing careless disregard for human life–Malice may be
established if a defendant realized the risks involved, but acted or omitted to act, and
that act/omission caused substantial harm. Does not apply here.
First Degree Murder
First degree murder is killing with premeditation and deliberation and those killing
enumerated by legislation such as: lying and wait, use of explosives, use of armorpiercing
bullets, and the like.
The State will argue Van carried a knife in anticipation of meeting with Bob and Abe one
day. When Van saw his chance at Abe, he HID his knife behind his back. The State
will argue this was a deliberate plan and premeditation to kill Abe.
Van will argue he was just holding his knife ready to defend himself if the situation
arose. He will insist his previous beating led him to believe, even if mistakenly, he
needed to protect himself from similar harm as before.
If the State does not charge for first degree murder, we move down to second degree
Second Degree Murder
Second degree murder is all murder which is not first degree murder, but there is
Here, the State will argue even if first degree doesn’t apply, there was malice because
of the inherently dangerous act of stabbing someone with a knife. Van will argue there
was no malice, only self defense. He will argue he couldn’t take any chances because
he was GRABBED SUDDENLY the last time and was afraid he would have not time to
Thus, he was merely preparing for self defense.
If Van is not charged with first degree, he may be charged with second degree murder.
Voluntary manslaughter is the intentional killing of a human being with the specific intent
to kill but with malice being mitigated due to some provocation, or other mitigating
Van will argue his killing of Abe resulted with sudden provocation brought about by the
RAGE he felt from his last beating delivered by Abe. He will argue he did not have
sufficient time to COOL DOWN. He will also argue he was acting in self defense
because Abe was REACHING for potentially BRASS NUCKLES, AGAIN.
Abe will most likely be charged with voluntary manslaughter.
Involuntary manslaughter is an unlawful killing of another without the specific intent, but
with negligence. Negligence has to be established by the standard of reasonableness.
The defendant who had a duty of care, breached that duty and that breached caused
harm, will be criminally liable.
If all else fails for the State because of property defense by Van, State may try to offer a
plea deal for involuntary manslaughter so as to get a conviction and reduce court
Van will argue he was reasonably and truly afraid for his life when he stabbed Abe as
Abe was reaching down in his pocket. He will argue the last time Abe saw him, he
grabbed brass knuckles from his pocket and severely beat him.
The State will argue Van could have left the area and called the police rather than stick
his ground and fight.
If Van is not successful in his theory of self defense, he will argue for the defense infra.
Van will say while his tactics were not reasonable, one could foresee the TRAUMA he
was suffering from when he irrationally attempted to defend himself by stabbing Abe
before seeing if there was a weapon.
Van will argue he was also attempting to prevent yet another battery upon himself and
potentially another robber. This will not be successful as preemptively deadly attacks
are not justifiable for situations not showing a threat to his life. Van will argue based on
history, his life was in danger and a crime was going to occur.
This will also fail as a defense.
The facts do not say Van was attempting to make an arrest. Even if he was, as a
private citizen, he would have had to make the arrest at time of the criminal acts.

Model Answer B 

Assault is the criminal intent to cause an offensive or harmful touching or battery.
Aggravated assault is when a weapon is used increase the imminent threat of harm
such as brass knuckles.
Here, the facts state that Van was a much smaller man than Bob and that Bob
approached Van and suddenly grabbed him. The facts are not clear whether Van saw
Bob and Abe approaching or not but if he did see them approaching then Bob will be
liable for an aggravated assault.
A battery is a general intent crime which is the criminal intent to cause an offensive or
harmful touching of another that does actually cause such an offensive contact.
Here, Bob grabbed Van and dragged him and then beat him with brass knuckles. This
is an aggravated battery because Bob and Abe used brass knuckles to beat Van. Brass
knuckles are considered a weapon and weapons used in the battery escalate the
battery to an aggravated battery. Bob will be liable for aggravated Battery.
False Imprisonment is a general intent crime which is usually seen as a misdemeanor is
many jurisdictions but it is the confining of another person to a bounded area defined by
the actor with no reasonable means of escape.
Here because Van was grabbed and dragged to an area he was then confined to that
area while he was beaten and robbed. Bob may argue that Van had a reasonable
means to escape if he had been able to get up and run away but the fact that Van was
grabbed and dragged shows that he was not able to get up and run away and escape
and then beaten severely thus creating an inability to run away or escape. A
reasonable person would have gotten away from such a beating if they had been able
but two men much larger beating on another man would definitely create an inability to
escape for that time period. Bob will be held liable for the crime of False Imprisonment.
Kidnapping is a general intent crime which is the confining of another person with no
reasonable means of escape and then moving them to another location, also known as
asportation. Although most jurisdictions require the movement from one location to
another to be substantial, the state may argue that grabbing Van and dragging him to
another relocation less out of view was a form of kidnapping. Van was confined to that
area and unable to escape on his own and therefore it is possible that Bob will be found
liable for kidnapping.
Robbery is a specific intent crime which is the taking of another’s personal property with
force or threat of force with the intent to permanently deprive.
Here, Bob grabbed a man and dragged him with force to a location where he beat the
man and took several items including a ring. This is clearly force and a threat of force
that created a robbery from Van. Taking of his personal items off of his person is the
traspassory taking required. The facts do not state that either Bob or Abe had any
intent to return the personal items that they took from Bob and it is implied that they had
the intent to permanently deprive, especially since they gave one item away to someone
standing nearby. Bob will be held liable for Robbery of Van.
Larceny is a specific intent crime which is the trespassory taking and carrying away of
another’s personal property with the intent to permanently deprive the owner of their
property. Usually one can only be found liable for either robbery or larceny because
they are merely one version of the other. If for any reason Bob was not found to have
created enough force against Van to be defined as robbery then the trespassory taking
of Van’s personal items, meaning without his consent, and taking them away with the
intent to permanently deprive will hold Bob liable for Larceny of Van’s belongings.
Solicitation is the asking of another to commit a crime. The asking may be implied
through words or conduct and does not necessarily need to be in expressed words.
Here, Bob and Abe gave Charles a piece of stolen property thus implying a request that
he receive the stolen property. It may have been implied in order to buy Charles silence
and create him as part of the criminal conduct so that he would not expose them or call
the police on them but that is not clear on the facts. What is clear is that giving Charles
a ring was asking him to commit a crime through implication and conduct. Bob can be
found liable for solicitation.
Merger Rule
Solicitation merges with the target crime or with conspiracy. If Charles is found to be a
co-conspirator then the solicitation of Charles to commit a crime will merge with
Conspiracy is a specific intent crime which is an agreement between two or more
people to commit a crime. In the minority view it was required merely to have an
agreement but the modern view requires an overt act in furtherance of the crime.
Here, the facts do not state that there was an agreement expressed between Abe and
Bob but it is implied based on their actions that they agreed to commit the crime of
robbery of Van as they worked in cohorts together to grab Van and drag him aside and
then beat him and take his belongings.
Overt Act in Furtherance:
There is clearly an overt act in furtherance of the crime based on the fact that they did
actually carry brass knuckles on their person in order to accomplish this criminal
conduct. Bob also did grab Van and drag him and beat him and rob him thus an overt
act element has been fulfilled.
Bob is liable for Conspiracy with Abe.
Co-conspiracy Liability/Pinkerton Rule
According to the Pinkerton Rule of co-conspiracy liability, any fellow conspirators can be
held liable for the other conspirator’s acts and crimes that were completed in
furtherance of the target crime conspired to. Because Bob and Abe were coconspirators
then they will be held liable for any crimes that were completed in
furtherance of the target crime of attacking, assaulting, battering and robbing Van.
Accomplice Liability is the act of encouraging or counseling another to commit a crime,
mere presence is not enough, aiding must be active. Here, it can be argued that Bob
was an accomplice to Charles in aiding his crime e of receipt of stolen property
discussed infra. Bob not only aided but he gave the ring to Charles after Charles
watched the whole crime happen.
The facts are not clear as to any counseling of Abe but he definitely worked in cohorts
with Abe to grab Van and attack him and create the robbery therefore Bob is held liable
for accomplice liability for Abe and possibly with Charles.
An accessory to a crime is one who aids before or during the crime another who is in
the commission of a crime. A principal is the one who actually commits the crime and is
present at the crime. Bob is the principal of the crimes of assault, battery and robbery
of Van. Bob may be an accessory before the fact for Charles.
Any defense of withdrawal would need to show the defendant withdrawing or trying to
stop the criminal behavior prior to the crime. Bob showed no attempt to withdraw on
these facts.
There are no valid defenses for Bob.
Bob will be found liable for conspiracy, Assault, Battery, Robbery or Larceny, False
Imprisonment with no appropriate defenses.
Solicitation is the asking of another to commit a crime.
Here, Charles did not ask anyone to commit a crime but it can be argued by the state
that his watching of Abe and Bob while they beat another person and stole from him
was an implied invitation to be part of the criminal behavior. The asking may be implied
by actions or conduct and does not need to be expressed through words. Charles
made no movement or conduct or actions that obviously asked to participate in a crime
with Bob and Abe. Charles will probably not be found liable for solicitation.
Merger-defines supra
Charles probably will not be found liable for solicitation so there is no merging of
solicitation to a higher crime.
CONSPIRACY-defined supra
Charles may have been found to impliedly conspire with Abe and Bob as he watched
them committing the criminal conduct to Van. The facts do not state any conduct or
behavior that would indicate an agreement with Abe or Bob accept merely watching
them attack him and steal from him. Charles probably will not be held liable for
conspiracy on the attack of Van but his taking of the stolen ring may be found to be an
agreement with Abe and Bob thus creating a conspiracy regarding the robbery of the
Co-Conspirator Liability/Pinkerton Rule-defined supra
If Charles is found to have impliedly agreed to conspire in the taking of the ring from
Van then he will be held liable for all of Bob and Abe’s crimes that were involved in the
furtherance of the taking of the ring.
Receipt of Stolen Property is the receiving of stolen goods by the defendant who knows
that they are stolen and the defendant has the intent to permanently deprive the owner
of the property of the goods.
Here, Charles watched Abe and Bob take the items including the ring from Van and
when Abe and Bob gave Charles the stolen ring it was clear that he knew it was stolen
from Van. Charles did not give the ring back to Van nor do the facts indicate that he
meant to return the item to Van therefore it is implied on these facts that Charles had an
intention of keeping the ring and permanently depriving Van of his property. Charles
can be found liable for the receipt of stolen property.
Charles stood by and watched Abe and Bob attack and steal from Van. While this may
be morally apprehensible it is not illegal and does not indicate accomplice liability. Mere
silence and presence is not enough. Aiding must be active. If Charles had said
encouraging words or even nodded his head then this would have been seen as
accomplice liability but his watching quietly with no behavior indicating encouragement
does not hold him liable for accomplice liability.
Accessory After the Fact
Someone who assists a criminal after the crime in either hiding or aiding and abetting
them is considered an accessory after the fact. The state may argue that Charles
receipt of the stolen property was a way for Bob and Abe to get rid of the hot goods and
therefore aided Bob and Abe in their robbery and attack on Van. An accessory must
have the intent of helping the criminal and the target crime and the facts do not state
any evidence of Charles having an intent to help Abe and Bob. Charles probably
cannot be found liable for an accessory after the fact.
Mistake is a defense when it negates the criminal intent for a specific intent crime even
if the mistake is unreasonable. Charles may argue that the receipt of stolen property
was a mistake but the facts do not indicate that he made any effort to correct his
mistake or that he felt a mistake occurred when he took the ring from Bob and Abe.
Duress is a defense used when the defendant felt fear of imminent threat of harm to
himself or someone else in close relationship to him and that the threat was reasonable.
Charles may argue that he took the ring from Bob and Abe in fear of what they might do
to him if he did not take the ring. Bob and Abe clearly were larger men that just beat
another man severely in front of Charles. It might be reasonable to assume that
Charles would be afraid that Abe and Bob were threatening to him and if he did not take
the stolen property of the ring that he could fear of an imminent and immediate threat
that Bob and Abe would begin immediately beating him and robbing from him. If
Charles felt any immediate threat from Bob and Abe, this would be a valid defense for
Charles will be found liable for receipt of stolen property but will probably have a valid
defense of duress.
Murder is the intentional and unlawful killing of another human being with malice
Here, Van killed Abe but whether or not it will be murder will depend on whether his acts
were legally justified.
Homicide is the killing of another human being. A human being is considered dead
when their internal organs such as their heart stop functioning or when their brain
activity ceases. Here, the facts state that Abe died thus we have a homicide by Van.
Actual Cause
The actual cause is found by using the “but for” test asking but for the defendant’s
actions, the victim would not be dead.
Here, but for Van’s actions Abe would not be dead. But for Van stabbing Abe with a
knife, Abe would not be dead. Van is the actual cause of Abe’s death.
Proximate Cause
A defendant is only liable for consequences that are reasonably foreseeable at the time
of the injury and are not too remote or improbable.
Here, it is reasonably foreseeable that when you take out a knife and stab someone
with it that they will be injured and possibly die from that action. This is not too remote
or improbable and is a foreseeable consequence of that action. Van will be found to be
the proximate cause of Abe’s death.
Malice aforethought is defined through four factors, intent to kill, intent to cause serious
bodily harm, a depraved heart and/or felony murder. If Van was found to have malice
aforethought then he will be found guilty of murder.
Intent to Kill
When defendant’s actions are substantially certain to cause death to the victim.
Here, it is not clear on the facts if Van had an intent to kill but when one uses a knife it is
seen as a deadly weapon then it is implied that there is an intent to kill and Van used a
knife to stab Abe. It can be implied by the weapon used and the actions of Van that he
intended to kill Abe.
Intent to Cause Serious Bodily Harm
When defendant acts with knowledge that his actions pose a significant threat of serious
injury or death to the victim yet he continues with the actions.
Van stabbing a knife into Abe can be considered an act to at least intend to cause
serious bodily harm. A knife is a weapon such that using it on another human being is
more likely than not to cause serious bodily harm. It is not expressed in the facts but
implied by Van’s conduct that he knew that stabbing Abe with a knife would cause
serious bodily harm if not death and yet he continued anyway. Van can be seen as
having the intent to cause serious bodily harm.
Depraved Heart
Defendant acts with a conscious disregard of his actions posing extreme recklessness
towards the injury or harm to another.
Here, Van took a knife and stabbed Abe with it which would at least be in reckless
disregard for human life at the level of gross recklessness. This action pose a
substantial threat of harm or injury to Abe. Van would be seen as having a depraved
heart at the very minimum of malice aforethought.
Felony Murder
A killing that occurs during the commission of a felonious independent crime that is
inherently dangerous.
Here, Van was not in the commission of a felonious crime when he ran across Abe and
stabbed him so the felony murder doctrine would not apply to these facts.
First Degree Murder is the intentional killing of another human being with malice
aforethought and premeditation.
The state may argue that Van had premeditation as well as malice aforethought and
that Van would be liable for first degree murder of Abe.
Premeditation is the deliberate and conscious planning ahead of time to commit the
murder. There are two main views on premeditation.
The Carroll theory: The theory of premeditation set forth in the Carroll case stated that
there was premeditation if there was deliberate and purposeful thought to the
defendant’s actions. The state may argue that Van carried a knife on him and when he
saw Abe pulled the knife out and hid it behind his back and this constituted purposeful
and deliberate thought enough to be considered premeditation. Van will argue that he
was carrying the knife for his own protection only.
The Anderson Theory: The view of premeditation set forth by the Anderson Case stated
that premeditation is found by a preconceived design and that no time is too short to
formulate such a design. The state may argue that Van carrying his knife on his person
and pulling it out and hiding it behind his back was the manifestation of a preconceived
design that was formulated upon his seeing Abe. Again, Van may argue that his knife
was only carried on his person for self protection.
Based on premeditation, Van could be found liable for First Degree Murder.
Murder in the second degree is defined as the intentional killing of another human being
with malice aforethought, gross recklessness or a depraved heart.
As discussed supra Van can be found to have one of the four factors to define malice
aforethought through either the intent to kill, the intent to cause serious bodily harm or a
depraved heart. Van could be found liable for second degree murder.
Self Defense
When the defendant acted with reasonable force without inciting the need on himself
uses force reasonably necessary to protect himself.
Here, Van felt a need to protect himself which was brought on from his previous attack
from Abe. The use of self defense in most jurisdictions must be such that the defendant
did not provoke this need himself. Van did not provoke Abe to attack him on these
facts. However, Abe will argue that as he was walking down the street he did not even
notice Van and was merely putting his hands in his pocket. Van will argue that because
of Abe’s prior attack on Van that Van feared for his safety and that his use of self
defense was not unreasonable. Van was not attacked to the point of fearing for his life
from Abe or Bob prior to the incident where he pulled his knife and the State may argue
that Van’s need to use deadly force was unreasonable. If Van’s use of a deadly
weapon to protect himself is seen as excessive then he can claim imperfect self
Imperfect Self Defense
When force is required that may be unreasonable but honest belief that it is needed to
protect himself or if the defendant brought the action on himself by instigating the
situation or escalating a situation.
Here, Van may argue that his use of deadly force against Abe was reasonable to him on
a subjective level based on the history of not only being attacked so violently but that
actual recent attack having come from Abe directly. The state may argue as stated
above that when Abe and Bob attacked Van prior to the knife incident it was not with
deadly force and it was not life threatening so that it was unreasonable for Van to use
deadly force to protect himself. Also based on the analysis of voluntary manslaughter
infra Van may be justified in his attack and killing of Abe and Imperfect Self Defense
would be a valid defense for Van.
Reasonable Person
The need for reasonable self defense is actually measured subjectively if a person with
that reasonable experience and situation is found to be reasonable in his belief. Based
on this level, Van will probably be seen as having a reasonable need for self defense
against Abe.
Van will probably be found to have been reasonable in his belief that he needed to
protect himself from Abe and either Self Defense will be a valid defense for him or at the
very lease imperfect self defense based on voluntary manslaughter will be a valid
defense for him.
Mistake-defined supra
Mistake is only a defense if it can show that it negated the intent required for a specific
intent crime so if Van is found to have intended to kill Abe then a defense of mistake
can negate the intent to kill element of murder. Van may argue that it was a mistake to
have stabbed Abe but the fact that he held the knife behind his back and then stabbed
Abe is evidence against a mistake and leans more towards purposeful actions. Mistake
will probably not be a valid defense for Van.
When a defendant is provoked such that a reasonable person would be provoked into
such a passionate act without adequate cooling time
Adequate Provocation:
When Van saw Abe walking towards him, the facts state that he suddenly felt fear and
rage. The adequate provocation must be such that a reasonable person would be
provoked to such a rage or heat of passion. The state may argue that it is not
reasonable to have someone walking down the street putting their hands in their
pockets to incite a person to such rage and fear however, because of Van’s previous
attack from Abe the court will probably find it reasonable that Van would think that Abe
might be carrying his brass knuckles and might be planning another attack knowing now
that Abe had the propensity to cause him such harm. The court will probably find that
Van was reasonably and adequately provoked to rage.
No adequate Cooling Time:
Another element of Voluntary Manslaughter is that upon the adequate provocation,
there is not enough time for the rage or provocation to cool down and for the defendant
to have found a calmer state of mind. Here, Van was walking down the street and his
rage and fear were provoked upon seeing Abe and then Abe continued to come closer
and closer to him thus provoking a more intense feeling which would be the opposite of
adequate cooling time. It is reasonable that there was no adequate cooling time for Van
after being provoked to such rage and fear upon the sight of Abe.
Van will probably be found to have committed Voluntary Manslaughter because of the
provocation being reasonable upon seeing Abe and there being no adequate cooling
Involuntary Manslaughter is the unintentional killing of another human being with gross
Here, Van’s stabbing of Abe was intentional and it created an instantaneous result of
Abe’s death. It would be hard for Van to argue that this was gross negligence. Van
probably will not be found liable for Involuntary Manslaughter.
Van will be held liable for Murder of Abe but will have a valid defense of Self Defense
and can at least mitigate the murder down to Voluntary Manslaughter.

June 2011 Torts

Model Answer A

Answer A to Question 2
Nomenclature: Paula = P; Telephone Company = T
P v. T – P may be able to sue T for the following outlined torts if all the elements outlined
below are satisfied and there are no valid defenses from T on each of the torts.
1. Nuisance
– Nuisance can be established either under the private nuisance theory or
the public nuisance theory as outlined below.
a. Private Nuisance is present when there is a volitional act on part of the
defendant that causes an unreasonable and substantial inference with the use and
enjoyment of the plaintiff’s property.
1. Volitional Act – is present when the defendant affirmatively undertakes
an act. Here, T leases space on the tower for an emergency alert siren. In addition, T
agreed to test the siren regularly. Therefore, it can reasonably be argued that there was
a volitional act on part of T.
2. Unreasonable and Substantial Interference – is present when an
ordinary reasonable person suffers an interference that [is] substantial and one that is
unreasonable under the circumstances. Here, T’s act that may be considered
unreasonable would be the installation of the tower and thereafter the installation of the
siren on the tower and testing it regularly. Here, P may argue that the siren did not exist
4 years ago when P built a cabin on her property. Therefore, P’s argument would be
that T’s building of the siren on the tower was an unreasonable conduct. Usually,
coming to a nuisance is not considered as a defense; however, court may consider it as
a factor in determining whether the conduct of the defendant was unreasonable under
the circumstances. Here, T decided to install the emergency siren at the said location
because that specific location allowed the siren’s warning to be carried farther than from
any other site. An emergency siren is typically installed to warn people of an
impending emergency and an important factor of installing such a siren is to test it
regularly. Comparing the utility of T’s conduct with that of P’s utility in observing birds
and engaging in other activities, it is likely that a court may not consider such an activity
as unreasonable under the circumstances. Furthermore, facts indicate that the siren
rings for 5 minutes every week. Although during those 5 minutes, P has to stop doing
anything that she is doing and cover her ears, a 5 minute inconvenience for the larger
good of the community may not be considered as a substantial interference. It is
unlikely that P may be able to present arguments for unreasonableness and substantial
interference. However, if P is able to show this to the jury, then we move ahead.
3. Use and Enjoyment – is the typical activities that are performed by
ordinary reasonable people that present any use to the property and the enjoyment of
the plaintiff. Here, P began to spend most of her free time at the said property engaging
in bird watching and other outdoor activities. Such activities undertaken by P that may
potentially be interfered with due to the defendant’s act may be utilized to show that the
defendant’s act was impairing the use and enjoyment of P because she could not
perform those activities when the siren rang.
4. Plaintiff’s property – For a nuisance claim it is essential that the property
belong to the plaintiff or that the plaintiff be a land occupier of that property. Here facts
indicate that P owned the property. There are no discussable issues in this regard.
For any tort, it must be shown that there exists causation between the defendant’s act
and the injury suffered by the plaintiff. Such causation can be shown to exist by
showing that actual causation exists because the defendant’s act was the but for cause
of the plaintiff’s injuries and proximate causation can be shown to exist, if foreseeability
is established that the defendant’s cause would result in those injuries or harm to the
plaintiff. Here, but for the defendant’s act of testing the siren, P would not have to stop
doing whatever she is doing and presumably the loss of bird population can be
established due to the siren. It can also be argued that there is no causal link between
the siren and the disappearance of the birds, but it is not done so here in absence of
such facts. Furthermore, it can reasonably be argued that a person may have to cover
their ears and in order to do so may have to stop doing what they are doing, and
therefore such harm to the plaintiff is foreseeable. Also an argument can be made that
birds would be scared of loud noises and it may cause them to move away. Causation
is not an issue here.
– Public necessity is a defense if the defendant did an act for the greater
good of the public and in effect caused a tort to the individual plaintiff. Here, the
arguments presented above for the reasonableness and the importance of the
emergency siren may be utilized and may prove to be a proper public necessity in this
It is likely that P may be able to sue T on [the] basis of a private nuisance. However,
the biggest hurdle [is] with the showing the unreasonableness and the substantial
interference element of this tort. If P is able to pass that hurdle, then an appropriate
action can be maintained for this tort.
b. Public Nuisance is present when the defendant’s volitional act causes an
interference with the health, safety and the property rights of the community at large.
Usually, an action for a public nuisance is actionable only by a public representative.
However, if the individual defendant suffers harm that is distinct from the harm suffered
by the community at large, then an individual defendant may be able to sustain such an
action. Here, the volitional element arguments will be similar to those described above.
The main issue is whether P suffered a harm that was distinct from that suffered by the
community at large and whether that harm was substantial as to have a cause of action.
Here, the arguments for substantial will be similar as private nuisance. P will argue that
her harm was different from that suffered by the community at large because she was
engaged in bird watching and that facts indicate that due to the presence of the siren
and its use on a regular basis, the local bird population was reduced. The facts do not
indicate whether anyone else was engaged in such an activity and that they suffered
such a loss. In addition, it can reasonably be argued by P that due to the location of the
house the siren was probably louder for her that caused her to stop doing anything that
she was doing when the siren rang. If such is the case, then P may be able to establish
a case under public nuisance. However, a counterargument to this is that there may be
other individuals who may be bird watching and that they may also be suffering similar
cases where they have to stop their work. Usually in a nuisance case, the heightened
sensitivity of the plaintiff is generally not a determining factor. Therefore, if other
individuals in the community experience similarly as P or that the defendant T is able to
show that P has heightened sensitivity to sound, then it is likely that P may not be able
to sustain an action here under public nuisance. In absence of such facts, P may be
able to sustain an action. The causation arguments will be similar as above and the
damages are discussed in the preceding arguments. The necessity defense arguments
will be similar as above.
2. Trespass to Land – Not likely for sound
A trespass to land is the volitional act on [the] part of the defendant that causes a
physical invasion of the plaintiff’s property. However, in a majority of the jurisdictions, a
physical invasion of tangible things constitutes this tort. Sound may not be sufficient to
establish a physical invasion in this case. However, in a minority of those jurisdictions
that recognize that a sound may be sufficient invasion, we move ahead with this tort.
The volitional act on part of the defendant will be similar as above. Here, P will have to
show that T intended an act that caused the physical invasion. This is also not an issue
here because T leased the space with the intention to install the siren and test it
regularly. If sound is a tangible thing, then it can be reasonably argued that T knew with
substantial certainty that his act of testing the siren might cause the sound to invade
onto other nearby properties. The elements of this tort may therefore be established in
this case.
Necessity: defense argument will be similar as above.
3. Negligence – Land Occupier – Activity on the Land
Negligence is present when the defendant owes a duty to the plaintiff, that such duty is
breached, that causation – actual and proximate causation- is present and the defendant
suffers a physical injury or property damage and that there are no valid defenses
available to the defendant. Here, P did not suffer a physical injury or property damage
as a result of the defendant’s act. Facts only outline that P had to cover her ears and
that she had to stop doing whatever she had to do. In absence of such a harm, a tort of
negligence may not be actionable. Duty is present when the defendant places the
plaintiff within the zone of danger created by his unreasonable act. The duty element
may be established because T would be a land occupier and the presence and the
operation of the siren would be considered as an activity on the land. In addition, P
would be considered as a plaintiff on an adjacent property. Here, T may owe a duty
towards P. However, the biggest fact would be the breach of duty. A breach of duty
may be established under the Learned Hand test whereby if the burden on the
defendant to take appropriate action is less than the probability of the type of the injury
and the magnitude of the injury then a breach may be established. Here, as argued in
the nuisance section for the unreasonableness of the conduct, it is unlikely that a
breach may be established. T may not have valid defenses here.
This tort may not be actionable because a breach of duty and actual damages may not
be established here.
4. Battery is the volitional act on part of the defendant with the requisite intent to cause
a harmful or an offensive touching to the plaintiff’s person. Here the volitional act will be
similar as explained above. Here, intent may be established if it can be shown that T
knew with substantial certainty that his act would cause the result. Here, T did not
desire that the loud sound cause the residents in the area to have discomfort. However,
T knew that the sound was very loud. Therefore, it can reasonably be argued that T
knew with substantial certainty that the sound may reach the residents in the area and
that such sound may cause a touching. Any minor touching or offensive touching may
be sufficient for the charge of battery. Here, P would argue that the sound was so loud
that it bothered her and that as a result she had to leave what she was doing and cover
her ears. Such a sound may be considered to be offensive under the circumstances.
However, it is possible that T may again present the necessity defense as presented
5. Strict Liability for abnormally dangerous activities – loud sound
is actionable if P
is able to show that such activity poses a high foreseeable risk, that no matter of due
care would reduce that risk and that such activity is typically not conducted in the area.
Here, P may be able to argue that loud sound may severely interfere with a person’s
hearing capability, which is evident from the fact that every time the siren rang, P had to
leave whatever she was doing and cover her ears. In addition, there may be nothing
that T could do because the purpose of such siren was to notify people in the
community and therefore the siren had to be loud. If P is able to show that such sirens
are usually not placed in the area, which is unlikely under the facts because there
existed a telephone tower and that such tower could reasonably be utilized for placing a
siren, and in addition facts also indicated that there was no better place for the utility of
the siren. This tort may not be actionable.
6. Invasion of Privacy – Unreasonable Invasion into plaintiff’s seclusion
This tort is actionable if the defendant causes an unreasonable intrusion into the
plaintiff’s seclusion. Here, T merely placed a siren on the tower and then tested it
regularly. It was this sound that P may argue to have unreasonably intruded into her
seclusion because P would argue that bird watching is typically done in silent conditions
and that the siren interfered with that activity of hers. It is unlikely that a court may
consider mere sound to invade someone’s seclusion although the sound invaded onto
the plaintiff’s property.

Answer B to Question 2

Does Paula have a claim against Telephone Company?
Trespass to Land
An intrusion onto the land of another. Paula will have to establish the Telephone
Company (D) intentionally intruded upon or caused a thing to intrude upon her land,
causation and damages.
The D must have performed a volitional act.
Here, Paula will show the telephone company placed the siren on the tower and
intentionally tested it weekly because the telephone company did install and tested the
siren weekly and knew or should have known the sound waves would come onto her
property; therefore Paula would have established intent.
The D must have intended the harm.
Here, the D intended the harm because D agreed to test it regularly; therefore this
element is met.
The D must be the but-for cause of the harm suffered by Paula.
Here, Paula will show D intent and act of testing the siren was the but-for cause of the
intrusion upon her land because but for the D testing the siren the sound waves would
not have traveled upon her land and hurt her ears; therefore this element is met.
Only nominal damages need be shown in a trespass to land case.
Here, Paula will show she has damages because weekly she has to stop what she is
going to cover her ears; therefore she will have established damages.
The phone company will contend that sound waves are not the type of intrusion upon
which a trespass to land case typically supports. Therefore it is likely the court will not
support Paula’s claim.
Private Nuisance
For a plaintiff to be successful in a private nuisance claim they must establish a
substantial interference to the use and enjoyment of their land and that the substantial
interference is unreasonable under the circumstances.
Substantial Interference
An interference is substantial if a reasonable prudent person (RPP) would find the
interference disturbing and annoying to the use and enjoyment of her land.
Here, the interference would be substantial because an RPP would be disturbed and
annoyed at a noise so loud that it caused pain to their ears such that they would stop
their current activity to protect their ears by covering them on a weekly basis; therefore
this element is met.
The plaintiff must show that substantial interference is unreasonable under the
circumstances by comparing the nature of the interference; effect of the interference;
the value society places on the use and enjoyment; the appropriateness of the location
to the use and enjoyment; and the benefit of substantial interference.
Nature of the interference
What is the type of the substantial interference (SI)?
Here, the SI is a weekly blast of sound lasting for five minutes; therefore the SI occurs
every week for 5 minutes.
Effect of the SI
How is the resulting effect of the SI upon the use and enjoyment?
Here, the SI encompasses all of Paula’s land and beyond because the sound waves
travel in all directions and are not stopped at any point; therefore the effect permeates
all of Paula’s land.
Value of the use and enjoyment
Is the use and enjoyment interfered with valued by society?
Here, the value of the enjoyment interfered with would be of value to society because a
reasonable person would expect to enjoy their land without the interference of sounds
so loud that result is pain to their ears; therefore the value of the use and enjoyment
interfered with would be high.
Appropriateness of location
Is the location of the use and enjoyment with SI appropriate?
Here, the location is appropriate because one should be able to enjoy peace and quiet
and avoid weekly noises loud enough to hurt their ears on their own land; therefore the
location for the use and enjoyment interfered with is appropriate.
Benefit of the SI
Is the SI a benefit to the public?
Here, the D will contend the SI is of benefit to the public because by testing the siren
weekly for five minute intervals the D ensures the siren works in case of an emergency;
further the location ensures the siren’s warning reaches farther than from any other site.
Conclusion: After weighing the factors above the SI to Paula’s use and enjoyment is
Is the defendant the cause of Paula’s harm?
Here, Paula can show D is the cause of her harm because but for D testing the siren
weekly for a five minute period her use and enjoyment would not be substantially
interfered with; therefore D is the cause of her harm.
For a nuisance action the plaintiff can receive monetary damages or an injunction to
abate the nuisance.
General Damages – Paula could be awarded damages for her pain and suffering to her
Injunction – Paula could obtain a court order requiring the D to cease or test less
frequently the siren.
Coming to the nuisance
If a party comes to the nuisance they typically will not be able to recover from the D.
Here, D will state Paula came to the nuisance because she built a cabin on what was
undeveloped property two years after the installation of the tower on which the siren
was placed; therefore D will assert Paula came to the nuisance.
Here, Paula will concede that she did build two years after the erection of the tower;
however the siren was placed on the tower four years after she built that cabin and as
such she did not come to the nuisance; therefore Paula will have rebutted D’s claim that
she came to the nuisance.
Public Nuisance
A public nuisance action is typically brought by the Attorney General or another
government agency to address a nuisance that effects the community at large. For a
private party to bring a public nuisance claim they must suffer a harm different than the
public at large. For a plaintiff they must establish a substantial interference to the use
and enjoyment of their land and that the substantial interference is unreasonable under
the circumstances.
Here, Paula can bring a public nuisance claim, because as analyzed above the use and
enjoyment of her land is SI and the public at large is affected because the local bird
population is greatly reduced; therefore Paula will have distinguished the harm she
suffers from the harm suffered by the public at large.
As analyzed above the harm to her is apparent; the harm to the public at large is a
reduction in bird population. If this effect on the bird population is substantial the court
may require the D to change the frequency of the siren test or find another solution that
provides the same benefit without causing a nuisance

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