CH-5-7 Administrative Law – Smith and Robersons Business Law : Book Guide

This Document Contains Chapters 5 to 7 Chapter 5 ADMINISTRATIVE LAW ANSWERS TO CASE PROBLEMS 1. 1. In 1942, Congress passed the Emergency Price Control Act in the interest of national defense and security. The stated purpose of the Act was “to stabilize prices and to prevent speculative, unwarranted and abnormal increases in prices and rents....” The Act established the Office of Price Administration, which was authorized to establish maximum prices and rents that were to be “generally fair and equitable and [were to] effectuate the purposes of this Act.” Convicted for selling beef at prices in excess of those set by the agency, Stark appeals on the ground that the Act unconstitutionally delegated to the agency the legislative power of Congress to control prices. Is Stark correct in this contention? Answer: Judicial Review of Agency Action. No, Stark’s contention is wrong, and therefore his conviction for selling beef at inflated prices should be upheld. Legislative rules have the force of law if they do not violate any provisions of the U.S. Constitution, such as due process or equal protection, and if they do not involve an unconstitutional delegation of legislative power from the legislature. The requirement that the enabling statute must provide reasonable standards to guide the agency may met by statutory language such as “to prohibit unfair methods of competition,” “fair and equitable,” “public interest, convenience, and necessity,” and other equally broad expressions. The U.S. Supreme Court has stated in Yakus v. United States, 321 U.S. 414 (1944), upon which this case is based, that delegation of legislative authority should be overridden only if there is an absence of standards for the guidance of the agency, so that it would be impossible to ascertain whether the will of Congress has been obeyed. The court held that the standards prescribed by the Emergency Price Control Act were sufficiently definite and precise to enable Congress, the courts and the public to ascertain whether the Administrator, in fixing designated prices, had conformed to those standards. Accordingly, the court found that Congress had not unconstitutionally delegated legislative power to the agency. 2. 2. The Secretary of Commerce (Secretary) published notice in the Federal Register inviting comments regarding flammability standards for mattresses. Statistical data were compiled, consultant studies were conducted, and seventy-five groups submitted comments. The Secretary then determined that all mattresses, including crib mattresses, must pass a cigarette test, consisting of bringing a mattress in contact with a burning cigarette. The department’s staff supported this position by stating: “Exemption of youth and crib mattresses is not recommended. While members of these age groups do not smoke, their parents frequently do, and the accidental dropping of a lighted cigarette on these mattresses while attending to a child is a distinct possibility.” Bunny Bear, Inc. now challenges the cigarette flammability test, asserting that the standard was not shown to be applicable to crib mattresses, since “infants and young children obviously do not smoke.” Bunny Bear argues that the Secretary has not satisfied the burden of proof justifying the inclusion of crib mattresses within this general safety standard. Is Bunny Bear correct? Explain. Answer: Judicial Review of Agency Action. The flammability standard for mattresses was needed to protect the public against unreasonable risk of fire. The court held, "Whether the test is 'arbitrary, capricious' or 'substantial evidence', agencies are not precluded from drawing reasonable inferences from facts commonly known." Infants should be afforded with the same standard of safety as adults. In ruling against Bunny Bear, the court found this to be a test of general flammability to protect against mattress fires whatever their source. Bunny Bear, Inc. v. Peterson, 473 F.2d 1002 (1st Cir. 1972). 3. 3. Reagan National Airport in Washington, D.C., is one of the busiest and most crowded airports in the nation. Accordingly, the Federal Aviation Administration (FAA) has restricted the number of commercial landing and takeoff slots at National to forty per hour. Allocation of the slots among the air carriers serving National had been by voluntary agreement through an airline scheduling committee (ASC). When a new carrier requested twenty slots during peak hours, National’s ASC was unable to agree on a slot allocation schedule. The FAA engaged in informal rulemaking and invited public comment as a means to solve the slot allocation dilemma. The FAA then issued Special Federal Aviation Regulation 43 (SFAR 43) based on public comments and a proposal made at the last National ASC meeting, thereby decreasing the number of slots held by current carriers and shifting some slots to less desirable times. SFAR 43 also granted eighteen slots to New York Air. More specifically, SFAR 43 requires five carriers to give up one or more slots in specific hours during the day, requires twelve carriers to shift one slot to the latest hour of operations, and then reserves and allocates the yielded slots among the new entrants and several other carriers. Northwest Airlines seeks judicial review of SFAR 43, claiming that it is arbitrary, capricious, and not a product of reasoned decision making, and that it capriciously favors the Washington–New York market as well as the new carrier. What standard would apply to the agency’s actions? Should Northwest prevail? Explain. Answer: Judicial Review of Agency Action. Northwest should not prevail, and the court should uphold SFAR 43. The FAA should be held to the substantial evidence test, which requires the conclusions reached to be supported by “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” SFAR 43 was not arbitrary and capricious, as the FAA invited public comment and acted on those findings and on discussions held at a previous ASC meeting. Northwest Airlines, Inc. v. Goldschmidt, 645 F.2d 1309 (8th Cir. 1981). 4. 4. Bachowski was defeated in a United Steelworkers of America union election. After exhausting his union remedies, Bachowski filed a complaint with Secretary of Labor Dunlop. Bachowski invoked the Labor-Management Reporting and Disclosure Act, which required Dunlop to investigate the complaint and determine whether to bring a court action to set aside the election. Dunlop decided such action was unwarranted. Bachowski then filed an action in a Federal district court to order Dunlop to file suit to set aside the election. What standard of review would apply and what would Bachowski have to prove to prevail under that standard? Answer: Judicial Review of Agency Action. The arbitrary and capricious standard would apply to this proceeding. This requires that Bachowski prove that the agency did not have a rational basis for reaching its decision. In the case upon which this problem is based, the reviewing court held the Secretary of Labor Dunlap properly discharged his statutory duties by conducting an extensive investigation and his findings were not arbitrary and capricious. Dunlap v. Bachowski, 95 S.Ct. 1851, 421 U.S. 579 (1975). 5. 5. The Federal Crop Insurance Corporation (FCIC) was created as a wholly government-owned corporation to insure wheat producers against unavoidable crop failure. As required by law, the FCIC published in the Federal Register conditions for crop insurance. Specifically, the FCIC published that spring wheat reseeded on winter wheat acreage was ineligible for coverage. When farmer Merrill applied for insurance on his wheat crop, he informed the local FCIC agent that 400 of his 460 acres of spring wheat were reseeded on the winter acreage. The agent advised Merrill that his entire crop was insurable. When drought destroyed Merrill's wheat, Merrill tried to collect the insurance, but the FCIC refused to pay, asserting that Merrill is bound by the notice provided by publication of the regulation in the Federal Register. Is the FCIC correct? Explain. Answer: Rulemaking. It was held in the case upon which this problem was based that publication in the Federal Register was sufficient notice to all persons, including Merrill and that the doctrine of estoppel did not apply in this case. Thus Merrill will not be able to collect any insurance funds. Today, courts may be open to accepting the argument that the agency was acting more like a private company. In which case, the company/agency might be estopped to deny its original FCIC representation. Federal Crop Insurance Corp. v. Merrill, 332 U.S. 380 (1947). 6. 6. The Department of Energy (DOE) issued a subpoena requesting information regarding purchases, sales, exchanges, and other transactions in crude oil from Phoenix Petroleum Company (Phoenix). The aim of the DOE audit was to uncover violations of the Emergency Petroleum Allocation Act (EPAA). The EPAA contained provisions for summary, or expedited, enforcement of DOE decisions. However, after the subpoena was issued but before Phoenix had responded, the EPAA expired. The EPAA provided that “[t]he authority to promulgate and amend any regulation, or to issue any order under this Chapter shall expire at midnight September 30, 1981, but such expiration shall not affect any action or pending proceedings, administrative, civil or criminal action or proceeding, whether or not pending, based upon any act committed or liability incurred prior to such expiration date.” Using the summary enforcement provisions of the now defunct EPAA, the DOE sues to enforce the subpoena. Phoenix argues that because the EPAA has expired, the DOE lacks the authority either to issue the subpoena or to use the summary enforcement provisions. Is Phoenix correct? Why? Answer: Enforcement. Phoenix Petroleum must comply with the administrative subpoena issued by the DOE. The subpoena was issued for a proper purpose and further was issued under the appropriate authority granted to the DOE. United States v. Phoenix Petroleum Co., 571 F.Supp. 16 (S.D. Tex. 1983). 7. 7. Under the Communications Act, the Federal Communications Commission may not impose common carrier obligations on cable operators. A common carrier is one that “makes a public offering to provide [communication facilities] whereby all members of the public who choose to employ such facilities may communicate or transmit.” In May 1976, the Commission issued rules requiring cable television systems of a designated size (a) to develop a minimum twenty-channel capacity by 1986, (b) to make available on a first-come, nondiscriminatory basis certain channels for access by third parties, and (c) to furnish equipment and facilities for such access. The purpose of these rules was to ensure public access to cable systems. Midwest Video Corporation claimed that the access rules exceeded the Commission’s jurisdiction granted it by the Communications Act of 1934, because the rules infringe upon the cable systems’ journalistic freedom by in effect treating the cable operators as “common carriers.” The Commission contended that its expansive mandate under the Communications Act to supervise and regulate broadcasting encompassed the access rules. Did the Commission exceed its authority under the Act? Answer: Rulemaking. Yes. Judgment for Midwest Video. The Commission has the authority to issue rules to promote its long-established regulatory goals of increasing the number of outlets for local expression and diversifying programming. However, under the Communications Act the Commission may not impose common carrier obligations on cable operators. This prohibition reflects a Congressional belief that the resulting intrusion upon the journalistic integrity of broadcasters would overshadow any benefits associated with increased public access. Since the access rules require cable operators to accept on a first-come, nondiscriminatory basis those members of the general public who wish to use the system, the operators become essentially common carriers and their editorial freedom to control the content of programming is lost. The authority to compel cable operators to provide this type of public access must come specifically from Congress. Thus, the F.C.C.'s access rules went beyond the boundaries of its jurisdiction granted by the Communications Act and are, therefore, set aside. FCC v. Midwest Video Corp., 440 U.S. 689. 99 S. Ct. 1435.59 L.Ed.2d 692 8. 8. Congress enacted the National Traffic and Motor Vehicle Safety Act of 1966 (the Act) for the purpose of reducing the number of traffic accidents that result in death or personal injury. The Act directs the Secretary of Transportation to issue motor vehicle safety standards in order to improve the design and safety features of cars. The Secretary has delegated authority to promulgate safety standards to the National Highway Traffic Safety Administration (NHTSA) under the informal rulemaking procedure of the APA. The Act also authorizes judicial review under the provisions of the Administrative Procedure Act (APA) of all orders establishing, amending, or revoking a federal motor vehicle safety standard issued by the NHTSA. Pursuant to the Act, the NHTSA issued Motor Vehicle Safety Standard 208, which required all cars made after September 1982 to be equipped with passive restraints (either automatic seatbelts or airbags). The cost of implementing the standard was estimated to be around $1 billion. However, early in 1981, due to changes in economic circumstances and particularly due to complaints from the automotive industry, the NHTSA rescinded Standard 208. The NHTSA had originally assumed that car manufacturers would install airbags in 60 percent of new cars and passive seatbelts in 40 percent. However, by 1981 it appeared that manufacturers were planning to install seatbelts in 99 percent of all new cars. Moreover, the majority of passive seatbelts could be easily and permanently detached by consumers. Therefore, the NHTSA felt that Standard 208 would not result in any significant safety benefits. State Farm Mutual Automobile Insurance Company (State Farm) and the National Association of Independent Insurers (NAII) filed petitions in Federal court for review of the NHTSA’s rescission of Standard 208. What standard of review would apply to the rescission? Should it be set aside? Explain. Answer: Judicial Review of Agency Action. Judgment for State Farm and NAII. The Act indicates that motor vehicle safety standards are to be promulgated under the informal rulemaking procedure of the APA. The NHTSA's action in promulgating such standards therefore may be set aside if found to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." The scope of review under the arbitrary and capricious standard is narrow and a court is not to substitute its judgment for that of the agency. Nevertheless, the agency must demonstrate a rational connection between the facts found and the choice made. The most obvious reason for finding the rescission arbitrary and capricious is that the NHTSA apparently gave no consideration whatever to modifying Standard 208 to require that airbag technology be utilized. Even if one accepts the NHTSA conclusion that detachable seatbelts will not attain anticipated safety benefits, this alone would not justify more than an amendment to Standard 208 to achieve the objectives of the Act. The logical response to the faults of the detachable seatbelts would be to require the installation of airbags. Clearly, an agency is not required to consider all policy alternatives in making decisions. However, the airbag is more than a policy alternative; it is an alternative technology already within the ambit of the existing standard. 9. 9. David Diersen filed a complaint against the Chicago Car Exchange (CCE), an automobile dealership, alleging that the CCE fraudulently furnished him an inaccurate odometer reading when it sold him a 1968 Dodge Charger, in violation of the Vehicle Information and Cost Savings Act (the Odometer Act or the Act). The Odometer Act requires all persons transferring a motor vehicle to give an accurate, written odometer reading to the purchaser or recipient of the transferred vehicle. Under the Act, those who disclose an inaccurate odometer reading with the intent to defraud are subject to a private cause of action by the purchaser and may be held liable for treble damages or $1,500, whichever is greater. The CCE had purchased the vehicle from Joseph Slaski, who certified to the CCE that the mileage was approximately 22,600. The CCE did not suspect that the odometer reading was inaccurate. After purchasing the vehicle, Diersen conducted an extensive investigation and discovered that the vehicle’s title documents previously listed its mileage as 75,000. Before Diersen filed this lawsuit, the CCE offered to have Diersen return the car for a complete refund. Diersen refused this offer and decided instead to sue the CCE under the Act. The district court granted the defendant’s motion for summary judgment, relying upon a regulation promulgated by the National Highway Traffic Safety Administration (NHTSA) which purports to exempt vehicles that are at least ten years old (such as the one Diersen purchased from the CCE) from the Act’s odometer disclosure requirements. Diersen then filed a motion for reconsideration of the court’s summary judgment order, arguing that the older-car exemption created by the NHTSA lacked any basis in the Act and was therefore invalid. Should Dierson’s motion for reconsideration be granted? Explain. Answer: Rulemaking. No. Although the district court erred in relying on the regulation promulgated by the National Highway Traffic Safety Administration (NHTSA) which purports to exempt vehicles that are at least ten years old (such as the one Diersen purchased from the CCE) from the Act’s odometer disclosure requirements, the summary judgment is proper. The NHTSA has overstepped its authority by issuing this exception since Congress clearly intended to protect all purchasers of motor vehicles from odometer tampering. The language of the Act neither implies nor spells out any exceptions. The NHTSA does not, without statutory authority, have jurisdiction to tell victims of odometer fraud that they are without a remedy if the car they purchased was ten or more years old. So, why is the summary judgment proper? Why does Dierson not have a basis for his motion for reconsideration? The summary judgment is proper because in order to succeed on his claim of odometer fraud, Diersen must demonstrate two essential elements: (1) a violation of the Act’s odometer disclosure requirements (i.e., the providing of an inaccurate odometer reading), and (2) an intent to defraud. [Citation.] A review of the summary judgment record indicates that a rational trier of fact could not find in Diersen’s favor as to the second element (intent to defraud); therefore, the court was right to enter a summary judgment in the defendant’s favor. 10. 10. The Public Company Accounting Oversight Board (PCAOB) was created as part of a series of accounting reforms in the Sarbanes–Oxley Act of 2002. The PCAOB is a Government-created entity with expansive powers to govern an entire industry. Every accounting firm that audits public companies under the securities laws must register with the PCAOB, pay it an annual fee, and comply with its rules and oversight. The PCAOB may inspect registered firms, initiate formal investigations, and issue severe sanctions in its disciplinary proceedings. While the Securities and Exchange Commission (SEC) appoints PCAOB members and has oversight of the PCAOB, it cannot remove PCAOB members at will, but only “for good cause shown,” “in accordance with” specified procedures. The SEC Commissioners, in turn, cannot themselves be removed by the President except for “inefficiency, neglect of duty, or malfeasance in office.” Parties with standing have challenged the constitutionality of the Sarbanes–Oxley Act's creation of the PCAOB because it conferred executive power on PCAOB members without subjecting them to Presidential control. The basis for the challenge is that PCAOB members were insulated from Presidential control by two layers of tenure protection: PCAOB members could only be removed by the SEC for good cause, and the SEC Commissioners could in turn only be removed by the President for good cause. Decision? Answer: Executive Branch Control. The dual for-cause limitations on the removal of PCAOB members contravene the Constitution's separation of powers. Free Ent. Fund v. Public Co. Acctg. Oversight Bd., 561 U.S. 477, 130 S.Ct. 3138, 177 L.Ed.2d 706 (2101). Our Constitution divided the “powers of the new Federal Government into three defined categories, Legislative, Executive, and Judicial.” INS v. Chadha, 462 U.S. 919, 951, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983). Article II vests “[t]he executive Power ... in a President of the United States of America,” who must “take Care that the Laws be faithfully executed.” Art. II, § 1, cl. 1; id., § 3. In light of “[t]he impossibility that one man should be able to perform all the great business of the State,” the Constitution provides for executive officers to “assist the supreme Magistrate in discharging the duties of his trust.” 30 Writings of George Washington 334 (J. Fitzpatrick ed.1939). Since 1789, the Constitution has been understood to empower the President to keep these officers accountable—by removing them from office, if necessary. See generally Myers v. United States, 272 U.S. 52, 47 S.Ct. 21, 71 L.Ed. 160 (1926). This Court has determined, however, that this authority is not without limit. In Humphrey's Executor v. United States, 295 U.S. 602, 55 S.Ct. 869, 79 L.Ed. 1611 (1935), we held that Congress can, under certain circumstances, create independent agencies run by principal officers appointed by the President, whom the President may not remove at will but only for good cause. Likewise, in United States v. Perkins, 116 U.S. 483, 21 Ct.Cl. 499, 6 S.Ct. 449, 29 L.Ed. 700 (1886), and Morrison v. Olson, 487 U.S. 654, 108 S.Ct. 2597, 101 L.Ed.2d 569 (1988), the Court sustained similar restrictions on the power of principal executive officers—themselves responsible to the President—to remove their own inferiors. The parties do not ask us to reexamine any of these precedents, and we do not do so. We are asked, however, to consider a new situation not yet encountered by the Court. The question is whether these separate layers of protection may be combined. May the President be restricted in his ability to remove a principal officer, who is in turn restricted in his ability to remove an inferior officer, even though that inferior officer determines the policy and enforces the laws of the United States? We hold that such multilevel protection from removal is contrary to Article II's vesting of the executive power in the President. The President cannot “take Care that the Laws be faithfully executed” if he cannot oversee the faithfulness of the officers who execute them. Here the President cannot remove an officer who enjoys more than one level of good-cause protection, even if the President determines that the officer is neglecting his duties or discharging them improperly. That judgment is instead committed to another officer, who may or may not agree with the President's determination, and whom the President cannot remove simply because that officer disagrees with him. This contravenes the President's “constitutional obligation to ensure the faithful execution of the laws.” Id., at 693, 108 S.Ct. 2597. By granting the PCAOB executive power without the Executive's oversight, this Act subverts the President's ability to ensure that the laws are faithfully executed—as well as the public's ability to pass judgment on his efforts. The Act's restrictions are incompatible with the Constitution's separation of powers. The Sarbanes–Oxley Act remains “‘fully operative as a law’” with these tenure restrictions excised. New York, 505 U.S., at 186, 112 S.Ct. 2408 (quoting Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684, 107 S.Ct. 1476, 94 L.Ed.2d 661 (1987)). *** The remaining provisions are not “incapable of functioning independently,” Alaska Airlines, 480 U.S., at 684, 107 S.Ct. 1476, and nothing in the statute's text or historical context makes it “evident” that Congress, faced with the limitations imposed by the Constitution, would have preferred no PCAOB at all to a PCAOB whose members are removable at will. Ibid.; see also Ayotte, supra, at 330, 126 S.Ct. 961. The Constitution that makes the President accountable to the people for executing the laws also gives him the power to do so. That power includes, as a general matter, the authority to remove those who assist him in carrying out his duties. Without such power, the President could not be held fully accountable for discharging his own responsibilities; the buck would stop somewhere else. Such diffusion of authority “would greatly diminish the intended and necessary responsibility of the chief magistrate himself.” The Federalist No. 70, at 478. While we have sustained in certain cases limits on the President's removal power, the Act before us imposes a new type of restriction—two levels of protection from removal for those who nonetheless exercise significant executive power. Congress cannot limit the President's authority in this way. 11. 11. Present and former law review editors who were researching disciplinary systems and procedures at the military service academies for an article were denied access to case summaries of honor and ethics hearings, with personal references or other identifying information deleted, maintained in the United States Air Force Academy’s Honor and Ethics Code reading files. It was the Academy’s practice to post copies of such summaries on forty squadron bulletin boards throughout the Academy and to distribute copies to Academy faculty and administration officials. The editors brought an action under the Freedom of Information Act (FOIA) against the Department of the Air Force to compel disclosure of the case summaries. Which exemptions to FOIA are most applicable? Explain whether any of these exemptions would enable the Academy to withhold the requested case summaries. Answer: Freedom of Information Act. Exemption 2 (records that relate solely to the internal personnel rules and practices of an agency) and Exemption 6 (personnel and medical files, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy). Exemption 2 does not generally apply to matters, such as these summaries, in which there is a genuine and important public interest. The public has a substantial concern with the Academy's administration of discipline and procedures that affect the training of Air Force officers and their military careers. Exemption 6 does not create a blanket exemption for personnel files. With respect to such files nondisclosure is not sanctioned unless there is a showing of a clearly unwarranted invasion of personal privacy, and redaction of documents to permit disclosure of nonexempt portions is appropriate under Exemption 6. Department of Air Force v. Rose, 425 U.S. 352, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976). *** where the situation is not one where disclosure may risk circumvention of agency regulation, Exemption 2 is not applicable to matters subject to such a genuine and significant public interest. The exemption was not designed to authorize withholding of all matters except otherwise secret law bearing directly on the propriety of actions of members of the public. Rather, the general thrust of the exemption is simply to relieve agencies of the burden of assembling and maintaining for public inspection matter in which the public could not reasonably be expected to have an interest. The case summaries plainly do not fit that description. They are not matter with merely internal significance. They do not concern only routine matters. Their disclosure entails no particular administrative burden. We therefore agree with the Court of Appeals that *** “the Agency's withholding of the case summaries (as edited to preserve anonymity) cannot be upheld by reliance on the second exemption.” We *** find nothing in the wording of Exemption 6 or its legislative history to support the Agency’s claim that Congress created a blanket exemption for personnel files. Judicial interpretation has uniformly reflected the view that no reason would exist for nondisclosure in the absence of a showing of a clearly unwarranted invasion of privacy, whether the documents are filed in “personnel” or “similar” files. We hold, therefore, in agreement with the Court of Appeals, “that the in camera procedure (ordered) will further the statutory goal of Exemption Six: a workable compromise between individual rights ‘and the preservation of public rights to Government information.’” ANSWERS TO “TAKING SIDES” PROBLEMS 12. Section 7 (a) (2) of the Endangered Species Act of 1973 (ESA) provides (in relevant part) that: 13. [e]ach Federal agency shall, in consultation with and with the assistance of the Secretary (of the Interior), insure that any action authorized, funded, or carried out by such agency . . . is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species which is determined by the Secretary, after consultation as appropriate with affected States, to be critical. 14. In 1978, the Fish and Wildlife Service and the National Marine Fisheries Service, on behalf of the Secretary of the Interior and the Secretary of Commerce respectively, promulgated a joint regulation stating that the obligations imposed by Section 7(a)(2) extend to actions taken in foreign nations. In 1983, the Interior Department proposed a revised joint regulation that would require consultation only for actions taken in the United States or on the high seas. Shortly thereafter, Defenders of Wildlife and other organizations filed an action against the Secretary of the Interior, seeking a declaratory judgment that the new regulation is in error as to the geographic scope of Section 7(a)(2) and an injunction requiring the Secretary to promulgate a new regulation restoring the initial interpretation. The Secretary asserted that the plaintiffs did not have standing to bring this action. 15. 16. a. What arguments would support the plaintiff’s standing to bring this action? 17. b. What arguments would support Secretary’s claim that plaintiffs did not have standing to bring this action? 18. c. Which side’s arguments are most convincing? Explain. 19. Answer: a. The plaintiff could argue that: (i) its members have visited foreign regions of the world and observed the habitat of endangered species and that they intend to return and view the endangered animals directly at some later date and the planned or existing government-supported projects will adversely affect these habitats and therefore affect the members’ future viewings of the endangered animals; (ii) any person who uses any part of a “contiguous ecosystem” adversely affected by a funded activity has standing even if the activity is located a great distance away; and (iii) anyone who has an interest in studying or seeing the endangered animals anywhere on the globe has standing. b. The Secretary could argue that: (i) the plaintiff’s “intent” to return to the places they had visited before—where they will presumably be deprived of the opportunity to observe animals of the endangered species—is not imminent or actual injury; (ii) a plaintiff claiming injury from environmental damage must use the area affected by the challenged activity and not an area roughly “in the vicinity” of it; and (iii) it is pure speculation to say that anyone who observes or works with an endangered species, anywhere in the world, is appreciably harmed by a single project affecting some portion of that species with which he has no more specific connection. c. The Secretary prevailed. Lujan v. Defenders of Wildlife, Supreme Court of the United States, 1992, 504 U.S. 555, 112 S.Ct. 2130, 119 L.Ed.2d 351. Our cases have established that the irreducible constitutional minimum of standing contains three elements. First, the plaintiff must have suffered an “injury in fact”—an invasion of a legally protected interest that is (1) concrete and particularized and (2) “actual or imminent,” not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of—the injury has to be “fairly . . . traceable to the challenged action of the defendant, and not . . . th[e] result [of] the independent action of some third party not before the court.” Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. When the plaintiff is not himself the object of the government action or inaction he challenges, standing is not precluded, but it is ordinarily substantially more difficult to establish. Even if it is assumed that the governmental actions described will have the alleged effect, these affidavits contain no facts showing how damage to the species will produce “imminent” injury to the affiants. The affiants’ profession of an “intent” to return to the places they had visited before—where they will presumably be deprived of the opportunity to observe animals of the endangered species—is simply not enough. Such “some day” intentions—without any description of concrete plans, or indeed even any specification of when the “some day” will be—do not support a finding of the “actual or imminent” injury that our cases require. In addition to these affidavits, the respondents propose a series of novel standing theories. First, the “ecosystem nexus” theory proposes that any person who uses any part of a “contiguous ecosystem” adversely affected by a funded activity has standing even if the activity is located a great distance away. This approach is inconsistent with the National Wildlife Federation case, which held that a plaintiff claiming injury from environmental damage must use the area affected by the challenged activity and not an area roughly “in the vicinity” of it. Second, the “animal nexus” approach proposes that anyone who has an interest in studying or seeing the endangered animals anywhere on the globe has standing. Third, the “vocational nexus” approach proposes that anyone with a professional interest in such animals can sue. The latter two theories overlook that standing requires, at the summary judgment stage, a factual showing of perceptible harm. It goes beyond the limit and into pure speculation and fantasy, to say that anyone who observes or works with an endangered species, anywhere in the world, is appreciably harmed by a single project affecting some portion of that species with which he has no more specific connection. Therefore, the plaintiffs lack standing to bring this action and the Court of Appeals erred in denying the summary judgment motion filed by the United States. Chapter 6 CRIMINAL LAW ANSWERS TO QUESTIONS AND CASE PROBLEMS 20. 21. 1. Sam said to Carol, “Kim is going to sell me a good used car next Monday and then I’ll deliver it to you in exchange for your computer, but I’d like to have the computer now.” Relying on this statement, Carol delivered the computer to Sam. Sam knew Kim had no car and would have none in the future, and he had no such arrangement with her. The appointed time of exchange passed, and Sam failed to deliver the car to Carol. Has a crime been committed? Discuss. Answer: False Pretenses. Yes. Sam has committed the crime of obtaining property by false pretenses. This crime declares it illegal for one to obtain title to property of another by means of materially false representations made with the intent to defraud and with knowledge of this falsity. Here Sam obtained Carol’s computer by falsely promising Carol that he (Sam) would in return deliver to Carol a used car that Sam was to obtain from Kim. Sam, however, never had any intention or right to obtain Kim’s car and thus falsely represented his intentions and rights and did so with the intent to defraud Carol and with knowledge that his statement was indeed false. 22. 2. Sara, a lawyer, drew a deed for Robert by which Robert was to convey land to Rick. The deed was correct in every detail. Robert examined and verbally approved it but did not sign it. Sara then erased Rick’s name and substituted her own. Robert subsequently signed the deed with all required legal formalities without noticing the change. Was Sara guilty of forgery? Discuss. Answer: Forgery. Yes. Forgery is the intentional falsification with intent to defraud, of a legally significant instrument. In this case Sara intentionally altered Robert’s deed to name herself as grantee in place of Rick. A deed is clearly an instrument of legal significance and hence Sara’s intentional falsification of the document constituted the crime of forgery. 23. 3. Ann took Bonnie’s watch before Bonnie was aware of the theft. Bonnie discovered her loss immediately and pursued Ann. Ann pointed a loaded pistol at Bonnie, who, in fear of being shot, allowed Ann to escape. Was Ann guilty of robbery? Of any other crime? Answer: Robbery, Larceny, Assault. Ann is not guilty of robbery. In order for conduct to constitute a robbery it is necessary for the force or threat of force to accompany or precede the taking. "Thus it is not robbery to steal property without violence of intimidation (e.g., to obtain it by stealth or fraud or sudden snatching) although the thief later, in order to retain the stolen property or make good his escape, uses violence or intimidation upon the property owner." LaFave and Scott, Criminal Law 701 (citing Thompson v. State, 24 Ala. App. 300, 130 SO 679 (1931); People v. Jones, 290 Ill. 603, 125 N.E. 256 (1919); State v. Holmes, 317 MO. 9, 295 S.W. 71 (1927); Mason v. Commonwealth, 200 VA. 253, 105 S.E. 2d 149 (1958) ). Thus Ann did not perpetrate the crime of robbery, but has committed the crimes of larceny and assault. 24. 4. Jones and Wilson were on trial, separately, for larceny of a $10,000 bearer bond (payable to the holder of the bond, not a named individual) issued by Brown, Inc. The commonwealth’s evidence showed that the owner of the bond put it in an envelope bearing his name and address and dropped it accidentally in the street; that Jones found the envelope with the bond in it; that Jones could neither read nor write; that Jones presented the envelope and bond to Wilson, an educated man, and asked Wilson what he should do with it; that Wilson told Jones that the finder of lost property becomes the owner of it; that Wilson told Jones that the bond was worth $1,000 but that the money could be collected only at the issuer’s home office; that Jones then handed the bond to Wilson, who redeemed it at the corporation’s home office and received $10,000; that Wilson gave Jones $1,000 of the proceeds. What rulings? Answer: Larceny. The question of Jones’s criminal liability deals with whether he has taken the lost bond by a trespass from the owner’s possession. Although the owner of lost or mislaid property has constructive ownership of the property, a finder is only held to have committed a trespass within the definition of larceny if (1) he intends to steal the property and (2) he either knew who the actual owner was or could so find out. Here, Jones, who could not read and did not know who the owner was, did not commit a larceny. The question concerning Wilson, on the other hand, is not whether he committed a crime but what crime he committed and that is dependent upon whether or not Wilson ever obtained title to the property. Wilson clearly has committed a taking and carrying away of personal property of another with intent to steal. The question then remaining is whether Wilson obtained possession of the property or title to the property. From the facts it appears that Wilson was solely acting as Jones’s agent and therefore never obtained title to the property. Nonetheless, regardless of the conclusion reached on this issue, Wilson has committed a crime: larceny (larceny by trick) if he did not receive title, or obtaining property by false pretense if he did receive title. In either instance Wilson received the property by false representations made with the intent to defraud and with knowledge of their falsity. A second issue concerning Wilson that should be discussed is whether the personal property is that of another. For larceny the thief need not take the property from its owner; a thief taking the property from another thief is guilty of larceny. Thus, Wilson’s taking of the property from Jones is criminally wrong. 25. 5. Truck drivers for a hauling company, while loading a desk, found a $100 bill that had fallen out of the desk. They agreed to get it exchanged for small bills and divide the proceeds. En route to the bank, one of them changed his mind and refused to proceed with the scheme, whereupon the other pulled a knife and demanded the bill. A police officer intervened. What crimes have been committed? Answer: Larceny, Robbery. This case presents a number of difficult questions. First, regarding whether the drivers committed the crime of larceny is dependent upon whether their conduct demonstrated the necessary intent to steal. In this case they are not simply finders in that they know who the money belonged to and when they took it with the intent to keep it they committed the crime of larceny. Here, unlike in question 4, the drivers knew who was the owner and intended to convert the money to their own use. The crime had not been completed, so the one driver who wanted to back out could return the money to the owner. It would still be an attempted larceny, however. Also, the one driver who pulled a knife on the other is guilty of both an assault and a robbery. As with larceny, a thief stealing from another thief by means of force is guilty of a robbery. 26. 6. Peter, an undercover police agent, was trying to locate a laboratory where it was believed that methamphetamine, or “speed”—a controlled substance—was being manufactured illegally. Peter went to Mary’s home and said that he represented a large organization that was interested in obtaining methamphetamine. Peter offered to supply a necessary ingredient for the manufacture of the drug, which was very difficult to obtain, in return for one-half of the drug produced. Mary agreed and processed the chemical given to her by Peter in Peter’s presence. Later Peter returned with a search warrant and arrested Mary. Mary was charged with various narcotics law violations. Mary asserted the defense of entrapment. Should Mary prevail? Why? Answer: Entrapment. The defense is not valid. If the rule advanced by Mary were adopted, it would not help Mary, for the evidence disclosed that, although the necessary ingredient was difficult to obtain, it was not impossible. Peter merely contributed the ingredient to a criminal enterprise already in progress. Peter did not commit any crime in infiltrating Mary's drug enterprise. The chemical, which the problem did not disclose, was harmless by itself and its possession was legal. The court reaffirmed earlier decisions that the principal element in the defense of entrapment was the defendant's predisposition to commit the crime. The court reasoned that it would not be desirable to grant immunity from prosecution to a person who planned to commit a crime, and then committed it, simply because a government undercover agent induced him by providing an opportunity or facility for commission of the offense. It is only when the government implants the criminal design in the mind of the defendant that the defense of entrapment may be asserted. Therefore, in this case the defense of entrapment is not available to Mary. United States v. Russell, 411 U. S. 423, 93S. Ct. 1637, 36 L. Ed. 2d 366 (1973). 27. 7. The police obtained a search warrant based on an affidavit that contained the following allegations: (a) Donald was seen crossing a state line on four occasions during a five-day period and going to a particular apartment; (b) telephone records disclosed that the apartment had two telephones; (c) Donald had a reputation as a bookmaker and as an associate of gamblers; and (d) the FBI was informed by a “confidential reliable informant” that Donald was conducting gambling operations from the apartment. The affidavit did not indicate how the informant knew of this information nor did it contain any information about the reliability of the informant. When a search was made based on the warrant, evidence was obtained that resulted in Donald’s conviction of violating certain gambling laws. Donald challenged the constitutionality of the search warrant. Were Donald’s constitutional rights violated? Explain your answer. Answer: Fourth Amendment: Search Warrants. The search warrant was not sufficiently supported by the evidence to be valid. The fact that Donald frequented an apartment with two telephones does not prove anything. The statement that Donald was a known gambler is an “unilluminating assertion” of suspicion that is entitled to no weight in appraising the magistrate’s decision to issue the warrant. In determining whether the informant’s tip was sufficient to issue the warrant the following factors must be considered. The affidavit stated that the confidential informant was “reliable”. However, no reason was given to support that conclusion. Additionally, the tip did not contain the underlying circumstances from which the informer concluded that Donald was running a bookmaking operation, or how the tip was obtained. “In the absence of a statement detailing the manner in which the information was gathered, it is especially important that the magistrate may know that he is relying on something more substantial than a casual rumor circulating in the underworld or an accusation based merely on an individual’s general reputation.” Here the only facts supplied were that Donald was using two telephones in conducting gambling operations. This is not sufficient to show probable cause that a crime was being committed. No search warrant should have been issued and; therefore, the evidence obtained by the search was not admissible. Spinelli v. United States, 394 U. S. 410, 89, Ct. 584, 21 L. Ed. 2d 637 (1969). 28. 8. A national bank was robbed by a man with a small strip of tape on each side of his face. An indictment was returned against David. David was then arrested, and counsel was appointed to represent him. Two weeks later, without notice to David’s lawyer, an FBI agent arranged to have the two bank employees observe a lineup, including David and five or six other prisoners. Each person in the lineup wore strips of tape, as had the robber, and each was directed to repeat the words “Put the money in the bag,” as had the robber. Both of the bank employees identified David as the robber. At David’s trial he was again identified by the two, in the courtroom, and the prior lineup identification was elicited on cross-examination by David’s counsel. David’s counsel moved the court either to grant a judgment of acquittal or alternatively to strike the courtroom identifications on the ground that the lineup had violated David’s Fifth Amendment privilege against self-incrimination and his Sixth Amendment right to counsel. Decision? Answer: Fifth Amendment (self-incrimination) and Sixth Amendment (right to counsel). No, as to the Fifth Amendment privilege. Neither the lineup itself, nor anything that David was required to do in the lineup violated David's privilege against self-incrimination. There is no question of the admissibility into evidence of anything David said or did at the lineup that involves his privilege. The privilege protects an accused from being compelled to provide evidence of a testimonial or communicative nature. This was not the case here, and thus the Fifth Amendment provides no basis for striking the judgment. Yes, as to Sixth Amendment right to counsel. Because the lineup was conducted without notice to and in the absence of counsel there may have been a violation of David’s Sixth Amendment right to counsel. The confrontation compelled by the lineup between the accused and the victim or witnesses to elicit identification is filled with numerous dangers and factors that might seriously limit the defendant's right to a fair trial. Because of this a post-indictment lineup is a "critical stage of the prosecution," at which David was entitled to counsel. The U. S. Supreme Court vacated the judgment and remanded the case to determine if admission of the evidence was "harmless error," or sufficient to warrant a new trial. United States v. Wade, 388 U. S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967). 29. 9. Waronek owned and operated a trucking rig, transporting goods for L.T.L. Perishables, Inc., of St. Paul, Minnesota. He accepted an offer to haul a trailer load of beef from Illini Beef Packers, Inc., in Joslin, Illinois, to Midtown Packing Company in New York City. After his truck was loaded with ninety-five forequarters and ninety-five hindquarters of beef in Joslin, Waronek drove north to his home in Watertown, Wisconsin, rather than east to New York. While in Watertown, he asked employees of the Royal Meat Company to butcher and prepare four hindquarters of beef—two for himself and two for his friends. He also offered to sell ten hindquarters to one employee of the company at an alarmingly reduced rate. The suspicious employee contacted the authorities, who told him to proceed with the deal. When Waronek arrived in New York with his load short, Waronek telephoned L.T.L. Perishables in St. Paul. He notified them “that he was short the hindquarters, that he knew where the beef went, and that he would make good on it out of future settlements.” L.T.L. told him to contact the New York police but he failed to do so. Shortly thereafter, he was arrested by the Federal Bureau of Investigation and indicted for the embezzlement of goods moving in interstate commerce. Explain whether Waronek was guilty of the crime of embezzlement. Answer: Larceny/Embezzlement. Waronek was guilty of embezzlement. Waronek was entrusted with possession of the hindquarters under a contract of carriage, and he took and converted these to his own use. Larceny involves an unlawful trespass to the possessory interest of the owner in the property. If the owner is not in possession of the property taken, there can be no larceny. Where the taker has been entrusted with the possession of the property, the crime is more aptly described as embezzlement. United States v. Waronek, 582 F. 2d 1158 (1978). 30. 10. Four separate cases involving similar fact situations were consolidated because they presented the same constitutional question. In each case, police officers, detectives, or prosecuting attorneys took a defendant into custody and interrogated him in a police station to obtain a confession. In none of these cases did the officials fully and effectively advise the defendant of his rights at the outset of the interrogation. The interrogations produced oral admissions of guilt from each defendant, as well as signed statements from three of them, which were used to convict them at their trials. The defendants appealed, arguing that the officials should have warned them of their constitutional rights and the consequences of waiving them before the questioning began. It was contended that to permit any statements obtained without such a warning violated their Fifth Amendment privilege against self-incrimination. Were the defendants’ constitutional rights violated? Discuss. Answer: Fifth Amendment. Judgment for defendants. The long-standing Fifth Amendment privilege against self-incrimination applies to police interrogations of defendants in custody as well as in the courtroom. It guarantees the accused “the right to remain silent unless he chooses to speak in the unfettered exercise of his own will.” Frequently, custodial interrogations by law enforcement officials involve intimidation, trickery, violence, and other coercive measures that tend to deprive the defendant of his free will. Therefore, to safeguard the Fifth Amendment privilege, law enforcement officials must inform the defendant prior to an interrogation that: (1) he has the right to remain silent and anything he says might be used against him in court; (2) he has the right to consult with a lawyer and to have the lawyer present during the interrogation; and (3) if he is indigent, a lawyer will be appointed to represent him. If prior to or during the interrogation, the defendant indicates that he wishes to remain silent, the questioning must cease. If he states that he wants an attorney, the questioning must cease until the attorney is present. If statements are obtained following the defendant’s waiver of his rights, the government has a heavy burden to prove that the waiver was given knowingly and intelligently. If the officials fail to follow this procedure, any statements obtained during the interrogation are inadmissible. In each of these cases, the law enforcement officials did not inform the defendants of their Fifth Amendment privileges before their interrogations. The defendants’ right to remain silent and protection from self-incrimination were not adequately protected, making their confessions inadmissible in court. Therefore, their convictions were reversed. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). 31. 11. Officer Cyril Rombach of the Burbank Police Department, an experienced and well-trained narcotics officer, applied for a warrant to search several residences and automobiles for cocaine, methaqualone, and other narcotics. Rombach supported his application with information given to another police officer by a confidential informant of unproven reliability. He also based the warrant application on his own observations made during an extensive investigation: known drug offenders visiting the residences and leaving with small packages as well as a suspicious trip to Miami by two of the suspects. A state superior court judge in good faith issued a search warrant to Rombach based on this information. Rombach’s searches netted large quantities of drugs and other evidence, which produced indictments of several suspects on charges of conspiracy to possess and distribute cocaine. The defendants moved to exclude the evidence on the grounds that the search warrant was defective in that Rombach had failed to establish the informant’s credibility and that the information provided by the informant about the suspect’s criminal activity was fatally stale. Explain whether the evidence should be excluded. Answer: Fourth Amendment. No. Judgment for the prosecution. The Fourth Amendment contains no express provision mandating the exclusion of evidence that is obtained by an unlawful search and seizure. Consequently, an unlawful search and seizure will not automatically grant an individual a constitutional right to have the unlawfully obtained evidence excluded. When law enforcement officers act in good faith and rely reasonably on a facially valid search warrant issued by a detached, neutral magistrate, the evidence obtained should not be excluded, even if the warrant is subsequently declared defective. To exclude such evidence would punish law enforcement officers, whose conduct is objectively reasonable, for a magistrate’s error. Such a case may also result in permitting some guilty defendants to go free or to receive reduced sentences, simply because of a technical flaw in the application. These considerations weigh heavily in favor of recognizing a good faith exception to the exclusionary rule. 32. 12. Raymond Johnson snatched a purse that had been left in an unattended car at a gas station. The purse contained both money and a firearm. Johnson was convicted for the crimes of grand theft of property (cash and payroll check) and grand theft of a firearm. Johnson appealed, arguing that this conviction is a double jeopardy violation in that it constitutes multiple convictions for a single act. Should he be convicted of two separate crimes for stealing the purse? Answer: Essential Elements of a Crime. No; Johnson cannot be separately convicted for grand theft of property and grand theft of a firearm. The question presented is whether a defendant may be separately convicted and sentenced for grand theft of cash and grand theft of a firearm accomplished by means of snatching a purse that contained both cash and a firearm when the defendant did not know the nature of the purse’s contents. When one commits a theft by taking the property of another, the degree of felony is defined by such factors as the value of the goods or whether a firearm is taken. However, these classifications do not constitute separate crimes. A separate crime occurs only when there are separate distinct acts of seizing the property of another. If Johnson had taken the purse and then picked up the gun separately, there could be two convictions for separate acts. However, in this case, there was one intent and one act of taking the handbag. Accordingly, there could be only one theft conviction in this case. 33. 13. On February 10, Kelm secured a loan for $6,000 from Ms. Joan Williams. Kelm told Williams that the loan was to finance a real estate transaction. Five days later, Ms. Williams received a check drawn by Kelm in the amount of $6,000 from Kelm's attorney. Although the check was dated February 15, Kelm claims that she delivered the check to her attorney on February 10. The following week, Ms. Williams learned the check was uncollectible. Subsequently, Williams received assurances from Kelm but was unsuccessful in her efforts to obtain money from the drawee's bank. When Williams deposited the check, it was returned with a notation that it should not be presented again and that no account was on file. Bank records show that the account was closed on March 8 and that it had negative balances since February 10. Did Kelm illegally issue a bad check? Explain. Answer: Bad Checks. Yes, Kelm illegally issued a bad check. State v. Kelm, Superior Court of New Jersey, 1996, 289 N.J. Super. 55, 672 A.2d 1261; cert. denied, 146 N.J. 68, 679 A.2d 655 (1996). The principal issue on appeal is whether an intent to defraud is an element of Section 2C:21-5 [issuing a bad check] of the New Jersey statutes. The statute provides: A person who issues or passes a check or similar sight order for the payment of money, knowing that it will not be honored by the drawee, commits an offense.… For the purposes of this section as well as in any prosecution for theft committed by means of a bad check, an issuer is presumed to know that the check or money order (other than a post-dated check or order) would not be paid, if: *** (b) Payment was refused by the drawee for lack of funds, upon presentation within 30 days after issue, and the issuer failed to make good within 10 days after receiving notice of that refusal.… This statute, unlike its predecessor, does not contain the language “with intent to defraud.” Kelm's reliance on cases interpreting the prior bad check statute is misplaced. An intent to defraud is not an element of the offense of issuing a bad check. Rather, the current statute requires mere knowledge at the time the check is issued or passed that it will not be honored by the drawee. Addressing Kelm's second assertion, the statute's reference to postdated checks does not completely exempt such checks from its operation. That reference only exempts the drawer of a postdated check from the presumption of knowledge that the check will not be paid. In such cases, the state must prove such knowledge beyond a reasonable doubt. The trial judge's charge to the jury correctly reflected the statutory requirement of knowledge. It also states that if the jury should find that the check was postdated, then the element of knowledge requires proof beyond a reasonable doubt. The jury was correctly instructed by this charge. Therefore, the jury's verdict is affirmed. ANSWERS TO “TAKING SIDES” PROBLEMS 34. Olivo was in the hardware area of a department store. A security guard saw him look around, take a set of wrenches, and conceal it in his clothing. Olivo looked around once more and proceeded toward an exit, passing several cash registers. The guard stopped him short of the exit. 35. (a) What argument would support the prosecutor in finding Olivo guilty of larceny? (b) What argument would you make as Olivio’s defense counsel for finding him not guilty of larceny? 36. (c) Which side’s argument do you find most convincing? Explain. 37. Answer: (a) A shoplifter need not leave the store to be guilty of larceny. The modern definition of larceny aims to protect individual property rights. If a shopper exercises dominion and control over merchandise wholly inconsistent with the owner’s continued rights and the other elements of larceny are present, a larceny has occurred. A customer may exercise such dominion and control—in a manner contrary to that of a prospective purchaser—without leaving the store. In this particular case, Olivo’s suspicious survey of the area, concealment of the tools in his clothing, and movement toward an exit suggest an exercise of dominion and control inconsistent with the store’s continued rights. (b) Olivo has not left the store, so he has not deprived the owner of his rights in the merchandise. As long as Olivo is still in the store, he has a right to hold the merchandise. The owner should have waited until Olivo had actually left the store with the merchandise. (c) Answers will vary. The store’s argument is more convincing because Olivo's actions—concealing the item and bypassing the cash registers—demonstrate intent to steal. These deliberate steps justify the guard's intervention. Chapter 7 INTENTIONAL TORTS ANSWERS TO QUESTIONS AND CASE PROBLEMS 38. 39. 1. The Penguin intentionally hits Batman with his umbrella. Batman, stunned by the blow, falls backwards, knocking Robin down. Robin's leg is broken in the fall, and he cries out, “Holy broken bat bones! My leg is broken.” Who, if anyone, is liable to Robin? Why? Answer: Battery. The Penguin is liable to Robin for battery. Section 13 of the Restatement imposes liability if the actor (Penguin) intends to injure a third person (Batman) and causes injury (directly or indirectly) to the person of the other (Robin). Batman is not liable because he did not act with intent and, as Section 14 states, “To make the actor liable for a battery, the harmful bodily contact must be caused by an act done by the person whose liability is in question.” 40. 2. CEO was convinced by his employee, M. Ploy, that a coworker, A. Cused, had been stealing money from the company. At lunch that day in the company cafeteria, CEO discharges Cused from her employment, accuses her of stealing from the company, searches through her purse over her objections, and finally forcibly escorts her to his office to await the arrival of the police, which he has his secretary summon. Cused is indicted for embezzlement but subsequently is acquitted upon establishing her innocence. What rights, if any, does Cused have against CEO? Answer: Injury or Damage to the Person. CEO might be liable for slander if there was no basis for the embezzlement accusation and there was a publication of the defamatory information to someone else in the cafeteria. By taking the employee’s purse, CEO committed a trespass to personal property, an intentional dispossession or unauthorized use of another’s property. This constituted an interference with the employee’s right to exclusive use and possession. By searching the purse, the CEO has committed the tort of intrusion. Cused could also demonstrate that CEO’s physical contact constituted a battery, which is the intentional infliction of harmful or offensive bodily contact. Cused did not consent to the touching. An action might also lie for emotional distress since the courts now grant recovery for mental anguish despite a lack of physical injury. Also, there may be false imprisonment if there was not a lawful restraint under local shoplifting law. Finally, given the acquittal, a claim for malicious prosecution could be made if CEO filed the charges without probable cause and for an improper purpose. 41. 3. Ralph kisses Edith while she is asleep but does not waken or harm her. Edith sues Ralph for battery. Has a battery been committed? Answer: Battery. Yes. Decision for Edith. Section 18 provides: “(1) An actor is subject to liability to another for battery if (a) he acts intending to cause a harmful or offensive contact with the person of the other or third person, or an imminent apprehension of such a contact, and (b) an offensive contact with the person of the other directly or indirectly results.” All of these elements have been satisfied by the facts of this problem. Moreover, Comment d to Section 18 states: “In order that the actor may be liable under the statement in this Subsection, it is not necessary that the other should know of the offensive contact which is inflicted upon him at the time when it is inflicted. The actor’s liability is based upon his intentional invasion of the other’s dignitary interest in the inviolability of his person and the affront to it while it is being perpetrated.” 42. 4. Claude, a creditor seeking to collect a debt, calls on Dianne and demands payment in a rude and insolent manner. When Dianne says that she cannot pay, Claude calls Dianne a deadbeat and says that he will never trust her again. Is Claude liable to Dianne? If so, for what tort? Answer: Intentional Infliction of Emotional Distress. No. Liability for infliction of emotional distress would not arise out of these facts. Liability clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. There is no occasion for the law to intervene in every case where someone’s feelings are hurt. Comment d to Section 46. In this case, although Claude’s behavior was unthinkable, it was not sufficient to support a claim of infliction of emotional distress. Moreover, there is no defamation because there has been no communication to a third party. 43. 5. Lana, a ten-year-old child, is run over by a car negligently driven by Mitchell. Lana, at the time of the accident, was acting reasonably and without negligence. Clark, a newspaper reporter, photographs Lana while she is lying in the street in great pain. Two years later, Perry, the publisher of a newspaper, prints Clark's picture of Lana in his newspaper as a lead to an article concerning the negligence of children. The caption under the picture reads: “They ask to be killed.” Lana, who has recovered from the accident, brings suit against Clark and Perry. What result? Answer: Invasion of Privacy: False Light. Judgment for Lana against Perry but not against Clark. The facts make out a case against Perry for the tort of invasion of privacy; in particular, placing another in a false light. Section 652E of the Restatement imposes liability for publicity which places another in a false light. It is unlikely that Perry could utilize the First Amendment as a defense because Lana was neither a public official nor a public figure. Even if that defense were available, it is forfeited if Perry acted with “malice,” which appears to be the case here because Perry acted in reckless disregard of the truth. Clark did not commit the tort of intrusion because he photographed an event that occurred in public. 44. 6. In 1963, the Saturday Evening Post featured an article entitled “The Story of a College Football Fix,” characterized in the subtitle as “A Shocking Report of How Wally Butts and Bear Bryant Rigged a Game Last Fall.” Butts was athletic director of the University of Georgia, and Bryant was head coach of the University of Alabama. The article was based on a claim by one George Burnett that he had accidentally overheard a long-distance telephone conversation between Butts and Bryant in the course of which Butts divulged information on plays Georgia would use in the upcoming game against Alabama. The writer assigned to the story by the Post was not a football expert, did not interview either Butts or Bryant, and did not personally see the notes Burnett had made of the telephone conversation. Butts admitted that he had a long-distance telephone conversation with Bryant but denied that any advance information on prospective football plays was given. Has Butts been defamed by the Post? Answer: Defamation. Yes. Decision for Butts. The publication was defamatory because it was a communication that injured Butts’ good name. Although Butts was a public figure, the magazine published the story in reckless disregard of the truth, which constitutes malice and results in a loss of First Amendment protection. Curtis Publishing Co. v. Butts, 388 U. S. 130. 45. 7. Joan, a patient confined in a hospital, has a rare disease that is of great interest to the public. Carol, a television reporter, requests Joan to consent to an interview. Joan refuses, but Carol, nonetheless, enters Joan's room over her objection and photographs her. Joan brings a suit against Carol. Is Carol liable? If so, for what tort? Answer: Invasion of Privacy: Intrusion. Yes, Carol is liable to Joan. Carol has committed the tort of intrusion, the invasion of privacy with unreasonable and highly offensive interference with the solitude or seclusion of another. Restatement, Section 652B. Such unreasonable interference would include improper entry into another’s dwelling. This form of invasion of privacy is committed once the intrusion occurs, as publication is not required. The defense of constitutional privilege would not be available. If Carol published the photograph, she would also be liable to Joan for public disclosure of private facts. The law of privacy imposes liability for the offensive publication of private information about another. As with intrusion, this tort only applies to private, not public, information regarding the plaintiff, but unlike intrusion it requires publicity. This tort applies to truthful private information if the matter published would be offensive and objectionable to a reasonable person of ordinary sensibilities. 46. 8. Owner has a place on his land where he piles trash. The pile has been there for three months. John, a neighbor of Owner and without Owner's consent or knowledge, throws trash onto the trashpile. Owner learns that John has done this and sues him. What tort, if any, has John committed? Answer: Real Property: Trespass John is liable for trespass. Section 158 provides: “One is subject to liability to another for trespass, irrespective of whether he thereby causes harm to any legally protected interest of the other, if he intentionally (a) enters land in the possession of the other, or causes a thing or a third person to do so, or (b) remains on the land, or (c) fails to remove from the land a thing which he is under a duty to remove.” The actor without himself entering the land may invade another’s interest in its exclusive possession by throwing, propelling, or placing a thing either on or beneath the surface of the land or in the air space above it. Comment i. 47. 9. Chris leaves her car parked in front of a store. There are no signs that say Chris cannot park there. The store owner, however, needs the car moved to enable a delivery truck to unload. He releases the brake and pushes Chris's car three or four feet, doing no harm to the car. Chris returns and sees that her car has been moved and is very angry. She threatens to sue the store owner for trespass to her personal property. Can she recover? Answer: Personal Property: Trespass. Probably not. Liability for trespass to a chattel (movable personal property) is imposed only if–(a) the actor dispossesses the other of the chattel, or (b) the chattel is impaired as to its condition, quality, or value, or (c) the possessor is deprived of the use of the chattel for a substantial time, or (d) bodily harm is caused to the possessor, or harm is caused to some person or thing in which the possessor has a legally protected interest. Section 218. The deprivation of use, not amounting to a dispossession, necessary to render the actor liable for his use or other intermeddling with the chattel of another without the other’s consent must be for a time so substantial that it is possible to estimate the loss caused thereby. A mere momentary or theoretical deprivation of use is not sufficient unless there is a dispossession. Comment i. 48. 10. Carr borrowed John's brand-new Ford Escort for the purpose of going to the store. He told John he would be right back. Carr then decided, however, to go to the beach while he had the car. Can John recover from Carr the value of the automobile? If so, for what tort? Answer: Conversion. The tort for which John can recover depends in part on the amount of time Carr has the vehicle. John can definitely recover for a trespass to personal property since Carr dispossessed John of the vehicle beyond the authorized use. This would apply if the beach is just a few miles away and Carr is only gone for a few hours or so. Recovery would not be for the full value of the car. If, however, the beach is hundreds of miles away and Carr keeps the vehicle for an unreasonably long time, John may be able to recover for conversion. This is a much more significant interference with the other’s right of control, and would allow John to recover the full value of the vehicle. Section 222A. 49. 11. Marcia Samms claimed that David Eccles had repeatedly and persistently called her at various hours, including late at night, from May to December, soliciting her to have illicit sexual relations with him. She also claimed that on one occasion Eccles came over to her residence to again solicit sex and indecently exposed himself to her. Mrs. Samms had never encouraged Eccles but had continuously repulsed his “insulting, indecent, and obscene” proposals. She brought suit against Eccles, claiming she suffered great anxiety and fear for her personal safety and severe emotional distress, demanding actual and punitive damages. Can she recover? If so, for what tort? Answer: Infliction of Emotional Distress. Yes, Samms could recover for Infliction of Emotional Distress. The courts recognize a cause of action for severe emotional distress even if not accompanied by bodily impact or physical injury, where defendant engaged in intentional conduct aimed at the plaintiff (1) with the purpose of inflicting emotional distress, or (2) where any reasonable person should have known that emotional distress would result. Also, the conduct must be outrageous and intolerable according to general community standards of decency and morality. Eccles’ conduct constitutes more than a mere solicitation, considering that it persisted for eight months and also involved indecent exposure. The aggravating circumstances are sufficient to give Samms a cause of action based solely on her emotional distress. Samms v. Eccles, 358 P.2d 344 (1931). 50. 12. National Bond and Investment Company sent two of its employees to repossess Whithorn's car after he failed to complete the payments. The two repossessors located Whithorn while he was driving his car. They followed him and hailed him down in order to make the repossession. Whithorn refused to abandon his car and demanded evidence of their authority. The two repossessors became impatient and called a wrecker. They ordered the driver of the wrecker to hook Whithorn's car and move it down the street while Whithorn was still inside the vehicle. Whithorn started the car and tried to escape, but the wrecker lifted the car off the road and progressed seventy-five to one hundred feet until Whithorn managed to stall the wrecker. Has National Bond committed the tort of false imprisonment? Answer: False imprisonment. Yes, National Bond falsely imprisoned Whithorn. The result of Whithorn’s departure would have been an automatic parting with his automobile, which he did not desire to part with and which he did not have to part with, and which the two repossessors had no right to take over his protests. He had a legal right to be in his car at the time the repossessors hooked up the car and forcibly dragged Whithorn down the street. This was a restraint imposed upon him and a detention of his person, such as to constitute a false imprisonment. National Bond & Investment Co. v. Whithorn, 123 S.W.2d 263 (1939). 51. 13. In March William Proxmire, a US senator from Wisconsin, initiated the “Golden Fleece of the Month Award” to publicize what he believed to be wasteful government spending. The second of these awards was given to the Federal agencies that had for seven years funded Dr. Hutchinson's research on stress levels in animals. The award was made in a speech Proxmire gave in the Senate; the text was also incorporated into an advance press release that was sent to 275 members of the national news media. Proxmire also referred to the research again in two subsequent newsletters letters sent to one hundred thousand constituents and during a television interview. Hutchinson then brought this action alleging defamation resulting in personal and economic injury. Assuming that Hutchinson proved that the statements were false and defamatory, would he prevail? Answer: Defamation/Constitutional Privilege. Yes, Dr. Hutchinson would prevail. Proxmire’s speech on the Senate floor was immune from liability, but the advance news release, the newsletters and the comments made by Senator Proxmire during the television news interviews were not privileged under the Speech and Debate clause of the U.S. Constitution. Nor are they protected by the First Amendment as to defamatory comments made. Dr. Hutchinson was not a public figure prior to receiving the Golden Fleece Award since his published writings reached a relatively small audience concerned with research in human behavior. Rather, any notoriety he achieved came as a result of the alleged defamation, and therefore cannot serve as a basis for Proxmire’s defense. Hutchinson v. Proxmire, 443 U.S. 111. 52. 14. Capune was attempting a trip from New York to Florida on an eighteen-foot-long paddleboard. The trip was being covered by various media to gain publicity for Capune and certain products he endorsed. By water, Capune approached a pier owned by Robbins, who had posted signs prohibiting surfing and swimming around the pier. Capune was unaware of these notices and attempted to continue his journey by passing under the pier. Robbins ran up yelling and threw two bottles at Capune. Capune was frightened and tried to maneuver his paddleboard to go around the pier. Robbins then threw a third bottle that hit Capune on the head. Capune had to be helped out of the water and taken to the hospital. He suffered a physical wound which required twenty-four sutures and, as a result, had to discontinue his trip. Capune brought suit in tort against Robbins. Is Robbins liable? If so, for which tort or torts? Answer: Battery/Assault. Yes, Robbins is liable to Capune for battery. Robbins’ throwing the bottles with the intent to frighten Capune constitutes sufficient intent to make Robbins liable in battery for any injuries that resulted. The harmful physical contact resulted from Capune being hit by the bottle thrown by Robbins. Capune v. Robbins, 273 NC. 581, 160 S.E.2d 881 (1968). 53. 15. Ralph Nader, who has been a critic of General Motors Corp. for several years, claims that when General Motors learned that Nader was about to publish a book entitled Unsafe at any Speed, criticizing one of its automobiles, it decided to conduct a campaign of intimidation against him. Specifically, Nader claims that GMC (a) conducted a series of interviews with Nader's acquaintances, questioning them about his political, social, racial, and religious views; (b) kept him under surveillance in public places for an unreasonable length of time including close observation of him in a bank; (c) caused him to be accosted by women for the purpose of entrapping him into illicit relationships; (d) made threatening, harassing, and obnoxious telephone calls to him; (e) tapped his telephone and eavesdropped by means of mechanical and electronic equipment on his private conversations with others; and (f) conducted a “continuing” and harassing investigation of him. Nader brought suit against GMC for invasion of privacy. Which, if any, of the alleged actions would constitute invasion of privacy? Answer: Intrusion. Judgment in part for Nader. The tort of invasion of one’s privacy includes instances of intrusion by physical trespass or otherwise into areas from which an ordinary man would reasonably expect that others should be excluded. The concern is not with one’s broad right to be left alone, but rather with the right to keep one’s private affairs secret from others. Thus, one must show that the questioned conduct was truly “intrusive” and that it was designed to elicit information that would not be available through normal inquiry or observation. In the present case, only two of the activities complained of could constitute an invasion of Nader’s privacy: (1) the unauthorized wiretapping and eavesdropping by electronic means, and (2) certain potentially overzealous surveillance of Nader in a public place by closely observing him in a bank. In contrast, the other activities may have uncovered information of a personal nature about Nader, but this cannot be regarded as an invasion of his privacy since it was gained from third persons. Presumably since Nader confided in these third persons, he also assumed the risk that they would breach his confidence. Nader v. General Motors Corp., 25 N.Y.2d 560, 255 N.E.2d 765, 307 N.Y.S.2d 647 (1970). 54. 16. Bill Kinsey was charged with murdering his wife while working for the Peace Corps in Tanzania. After waiting six months in jail he was acquitted at a trial that attracted wide publicity. Five years later, while a graduate student at Stanford University, Kinsey had a brief affair with Mary Macur. He abruptly ended the affair by telling Macur he would no longer be seeing her because another woman, Sally Allen, was coming from England to live with him. A few months later, Kinsey and Allen moved to Africa and were subsequently married. Soon after Bill ended their affair, Macur began a letter writing campaign designed to expose Bill and his mistreatment of her. Macur sent several letters to both Bill and Sally Kinsey, their parents, their neighbors, their parents' neighbors, members of Bill's dissertation committee, other faculty, and the president of Stanford University. The letters contained statements accusing Bill of murdering his first wife, spending six months in jail for the crime, being a rapist, and exhibiting other questionable behavior. The Kinseys brought an action for invasion of privacy, seeking damages and a permanent injunction. Will the Kinseys prevail? If so, for what tort? Answer: Invasion of Privacy. Judgment for the Kinseys. The tort of invasion of privacy includes four separate torts, two of which are involved here: (1) the public disclosure of true, embarrassing private facts concerning the plaintiff; and (2) publicity that places the plaintiff in a false light in the public eye. In both of these torts there must be a communication to the general public or a large number of people as opposed to private communications. In this case, Macur sent the letters to approximately twenty people. The recipients were such a diverse group, however, living in several different states and totally unconnected either socially or professionally, that her campaign satisfied this requirement. Macur claims that even if she invaded Kinsey’s privacy, it was privileged because he was a public figure by virtue of his participation in the Peace Corps and his widely publicized murder trial. The definition of a public figure is not clear, but membership in the Peace Corps is not sufficient to make a person a public figure. Moreover, once Kinsey had been acquitted at his trial, he was no longer a public figure and should be allowed “to melt into the shadows of obscurity” once again. Kinsey v. Macur, 107 Cal.App.3d 265, 165 Cal.Rptr. 608 (1980). 55. 17. The Brineys (defendants) owned a large farm on which was located an abandoned farmhouse. For a ten-year period the house had been the subject of several trespassings and house breakings. In an attempt to stop the intrusions, Briney boarded up the windows and doors and posted “no trespassing” signs. After one break-in, however, Briney set a spring gun in a bedroom. It was placed over the bedroom window so that the gun could not be seen from outside, and no warning of its presence was posted. The gun was set to hit an intruder in the legs. Briney loaded the gun with a live shell, but he claimed that he did not intend to injure anyone. Katko (plaintiff) and a friend, McDonough, had broken into the abandoned farmhouse on an earlier occasion to steal old bottles and fruit jars for their antique collection. They returned for a second time after the spring gun had been set, and Katko was seriously wounded in the leg when the gun discharged as he entered the bedroom. He then brought this action for damages. Decision? Answer: Defense of Property. The primary issue presented is whether an owner may protect personal property in an unoccupied boarded-up farmhouse against trespassers and thieves by a spring gun capable of inflicting death or serious injury. The value of human life and limb, not only to the individual concerned but also to society, outweighs the interest of a possessor of land in excluding from it those whom he is not willing to admit thereto. So, a possessor of land has no privilege to use force intended or likely to cause death or serious harm against another whom the possessor sees about to enter his premises or meddle with his chattel, unless the intrusion threatens death or serious bodily harm to the occupiers or users of the premises. Spring guns and other man killing devices are not justifiable against a mere trespasser, or even a petty thief. They are privileged only against those upon whom the landowner, if he were present in person would be free to inflict injury of the same kind. 56. 18. Plaintiff, John W. Carson, was the host and star of “The Tonight Show,” a well-known television program broadcast by the National Broadcasting Company. Carson also appeared as an entertainer in nightclubs and theaters around the country. From the time he began hosting “The Tonight Show” in 1962, he had been introduced on the show each night with the phrase “Here's Johnny.” The phrase “Here's Johnny” is still generally associated with Carson by a substantial segment of the television-viewing public. In 1967, to earn additional income, Carson began authorizing use of this phrase by outside business ventures. Defendant, Here's Johnny Portable Toilets, Inc., is a Michigan corporation engaged in the business of renting and selling “Here's Johnny” portable toilets. Defendant's founder was aware at the time he formed the corporation that “Here's Johnny” was the introductory slogan for Carson on “The Tonight Show.” He indicated that he coupled the phrase with a second one, “The World's Foremost Commodian,” to make “a good play on a phrase.” Carson brought suit for invasion of privacy. Should Carson recover? If so, for which tort? Answer: Appropriation. Yes, Carson should recover for violation of his right of privacy. The right of privacy involves four distinct torts, one of which is the appropriation of a person's name or likeness. This tort, also known as the "right of publicity," protects the commercial interests of celebrities in exploiting their identities and applies to these facts. In this case there would have been no violation of Carson's right of publicity if the defendant had used Carson's actual name, such as "J. William Carson Portable Toilet" or the "John William Carson Portable Toilet" or the "J.W. Carson Portable Toilet." The reason is that, though literally using the plaintiff's "name," the defendant would not have appropriated Carson's identity as a celebrity. Here there was an appropriation of Carson's identity without using his "name," because of the public's association of Carson with the phrase "Here's Johnny." Carson v. Here's Johnny Portable Toilets, Inc. 57. 19. Susan Jungclaus Peterson was a twenty-one-year-old student at Moorhead State University who had lived most of her life on her family farm in Minnesota. Though Susan was a dean's list student during her first year, her academic performance declined after she became deeply involved in an international religious cult organization known locally as The Way of Minnesota, Inc. The cult demanded an enormous psychological and monetary commitment from Susan. Near the end of her junior year, her parents became alarmed by the changes in Susan's physical and mental well-being and concluded that she had been "reduced to a condition of psychological bondage by The Way." They sought help from Kathy Mills, a self-styled "deprogrammer" of minds brainwashed by cults. On May 24, Norman Jungclaus, Susan's father, picked up Susan at Moorhead State. Instead of returning home, they went to the residence of Veronica Morgel, where Kathy Mills attempted to deprogram Susan. For the first few days of her stay, Susan was unwilling to discuss her involvement. She lay curled in a fetal position in her bedroom, plugging her ears and hysterically screaming and crying while her father pleaded with her to listen. By the third day, however, Susan's demeanor changed completely. She became friendly and vivacious and communicated with her father. Susan also went roller skating and played softball at a nearby park over the following weekend. She spent the next week in Columbus, Ohio, with a former cult member who had shared her experiences of the previous week. While in Columbus, she spoke daily by telephone with her fiancé, a member of The Way, who begged her to return to the cult. Susan expressed the desire to get her fiancé out of the organization, but a meeting between them could not be arranged outside the presence of other members of The Way. Her parents attempted to persuade Susan to sign an agreement releasing them from liability for their actions, but Susan refused. After nearly sixteen days of "deprogramming" Susan left the Morgel residence and returned to her fiancé and The Way. Upon the direction of The Way ministry, she brought this action against her parents for false imprisonment. Will Susan prevail? Explain. Answer: False Imprisonment. Judgment for Mr. and Mrs. Jungclaus. "If a person is aware of a reasonable means of escape that does not present a danger of bodily or material harm, a restriction is not total and complete and does not constitute unlawful imprisonment." Also, a person cannot recover damages for any period of detention to which she voluntarily consents. For the final thirteen days of the sixteen-day period, Susan willingly remained in the company of her parents. She also had several reasonable and safe opportunities to escape while playing softball, roller skating, and taking her trip to Ohio. Given that the conditioning of the cult may have impaired her free will prior to her "deprogramming," it is reasonable to infer from her subsequent consent that she would have consented to the first three days' detention if she had had her full capacity. Furthermore, parents may place limitations on their adult child's mobility, if they have a good-faith, reasonable belief that the child's judgmental capacity has been seriously affected by a cult and if she at some point assents to the limitations. Thus, Susan's assent during the thirteen-day period relieved her parents of liability for false imprisonment. 58. 20. Debra Agis was a waitress in a restaurant owned by the Howard Johnson Company. On May 23, Roger Dionne, manager of the restaurant, called a meeting of all waitresses at which he informed them that "there was some stealing going on." Dionne also stated that the identity of the party or parties responsible was not known and that he would begin firing all waitresses in alphabetical order until the guilty party or parties were detected. He then fired Debra Agis, who allegedly "became greatly upset, began to cry, sustained emotional distress, mental anguish, and loss of wages and earnings." Mrs. Agis brought this complaint against the Howard Johnson Company and Roger Dionne, alleging that the defendants acted recklessly and outrageously, intending to cause emotional distress and anguish. The defendants argued that damages for emotional distress are not recoverable unless physical injury occurs as a result of the distress. Will Agis be successful on her complaint? Answer: Infliction of Emotional Distress. Yes. An individual "who, by extreme and outrageous conduct and without privilege, causes severe emotional distress to another is subject to liability for such emotional distress even though no bodily harm may result." Mrs. Agis successfully established the following four essential elements: (1) that the defendants intended to cause emotional distress or that they knew or should have known that emotional distress was likely to result from their conduct; (2) that the defendants' conduct was "extreme and outrageous" and "beyond all possible bounds of decency;" (3) that the defendants' actions caused Mrs. Agis's distress; and (4) that Mrs. Agis's emotional distress was "severe" and such "that no reasonable man could be expected to endure it." 59. 21. On July 31, Amanda Vaughn and Jason Vaughn accompanied their mother, Emma Simpson Vaughn, to a Wal-Mart store. Amanda’s friend, Kimberly Dickerson, was also with them. Once they entered the store, Mrs. Vaughn and Jason went into separate areas of the store. The two girls remained together in the front of the store and selected a stamp album to purchase. Kimberly took the album to the checkout register, and while she was at the register, she also selected a pack of gum. Once Kimberly paid for her two items, they were placed in a bag and she was given her change. Kimberly testified that she did not immediately put the change in her wallet while she was at the register. Instead, Kimberly walked back into the merchandise area where Amanda had remained. Kimberly was in the merchandise area, away from the registers, when she placed her change in her purse. Kimberly proceeded to place her hand in the Wal-Mart bag to retrieve the gum she had just purchased. At this time, Ms. Clara Lynn Neal, a customer service manager, observed Kimberly’s hand coming out of her Wal-Mart bag. According to Ms. Neal, because the two girls were in a somewhat secluded area of the store, Ms. Neal walked past the two girls twice to observe them before she walked over to them. Ms. Neal testified that she asked Kimberly if she could see her bag and her receipt and that Kimberly voluntarily gave her the bag. Plaintiffs alleged that Ms. Neal “detained the girls, snatched Kimberly’s bag from her, searched the bag, discovered a receipt, tied the bag, and then personally escorted the girls to an area near the front door away from the registers.” However, Kimberly’s testimony stated that “[Ms. Neal] said she was going to have to check my bag because she doesn’t know if I’m stealing something. So I didn’t say anything. I didn’t really give it to her because I was shocked. So she took it, and she was like searching through it.” Once Ms. Neal checked the purchases with the receipt, the girls were told to go to the front of the store and wait for their party. The girls were never told that they could not leave the store and the girls were not detained by anyone else. According to all parties, from the time Ms. Neal walked up to the girls, verified the purchases, and returned the bag to Kimberly, the entire incident only lasted about one minute. While the girls were waiting at the front of the store, Jason was asked by his mother to inform the girls that she was ready to go. Jason approached the girls, and they responded that they could not leave. When Jason reported to his mother that the girls stated they could not leave the area, Mrs. Vaughn then went to the front of the store to investigate. Before Mrs. Vaughn took the children home, she explained to a store manager what had occurred. Do the girls have a cause of action against Wal-Mart? Answer: False Imprisonment. Under normal circumstances, private citizens have no authority to detain individuals for petty theft. However, Louisiana law gives quasi-police powers to merchants and their agents to protect against shoplifting and gives them immunity from liability for malicious prosecution when the detainer has reasonable cause to believe that a theft of goods has occurred. In a false imprisonment claim, a plaintiff must prove either (1) unreasonable force was used, or (2) no reasonable cause existed for the belief that the suspect had committed a theft of goods, or (3) the detention lasted more than 60 minutes, or more than a reasonable time. Amanda and Kimberly cannot support any of these claims. Though Ms. Neal may have been gruff or impolite, she did not use force. There was a reasonable cause to suspect theft, as Kimberly was standing in the merchandise area with a bag (against store policy) and was reaching into the bag. Once Ms. Neal confirmed that a theft had not taken place, the girls had the option of going to the front of the store and waiting for their party or checking the bag at the customer service desk. At no time was Kimberly told that she could not leave the store, and the “detention” was about one minute long. 60. 61. 22. Pro Golf Manufacturing, Inc., manufactures and repairs golf equipment as well as giving golf lessons. On September 27, the Tribune Review Newspaper published an article stating that several historic buildings, including the building housing Pro Golf’s business, were set for demolition. On February 18 of the following year, the Tribune Review published another newspaper article, stating that the building containing Pro Golf’s business had been demolished. However, the building containing Pro Golf’s business had neither been scheduled for demolition, nor had it been demolished. Pro Golf seeks to recover for the financial loss that these false publications caused. Explain which tort offers the best likelihood of recovery and what Pro Golf would have to prove to recover. Answer: Disparagement. This problem is based on Pro Golf Mfg. v. Tribune Review Newspaper, 809 A.2d 243 (Supreme Court of Pennsylvania, 2002). The tort that offers the best likelihood of recovery would be disparagement (injurious falsehood) and Pro Golf would have to prove: (1) the statement is false; (2) the publisher either intends the publication to cause pecuniary loss or reasonably should recognize that publication will result in pecuniary loss; (3) pecuniary loss does in fact result; and (4) the publisher either knows that the statement is false or acts in reckless disregard of its truth or falsity. RESTATEMENT (SECOND) OF TORTS § 623(A) (1977) ANSWERS TO “TAKING SIDES” PROBLEMS Edith Mitchell, accompanied by her thirteen-year-old daughter, went through the checkout at Walmart and purchased several items. As they exited, the Mitchells passed through an electronic antitheft device, which sounded an alarm. Robert Canady, employed by Walmart as a “people greeter” and security guard, forcibly stopped Edith Mitchell at the exit, grabbed her bag, and told her to step back inside. The security guard never touched Edith or her daughter and never threatened to touch either of them. Nevertheless, Edith Mitchell described the security guard’s actions in her affidavit as “gruff, loud, rude behavior.” The security guard removed every item Mitchell had just purchased and ran it through the security gate. One of the items still had a security code unit on it, which an employee admitted could have been overlooked by the cashier. When the security guard finished examining the contents of Mitchell’s bag, he put it on the checkout counter. This examination of her bag took ten or fifteen minutes. Once her bag had been checked, no employee of Walmart ever told Mitchell she could not leave. Mitchell was never threatened with arrest. Mitchell brought a tort action against Walmart. (a) Explain on which torts should Mitchell base her claim against Walmart? (b) What arguments would support Walmart denial of liability for these torts? (c) Which party should prevail? Explain. 62. Answer: (a) Mitchell could base her claim against Wal-Mart on false imprisonment, assault, battery, defamation, and intentional infliction of emotional distress. (b) Wal-Mart could deny liability base on a merchant’s conditional privilege to investigate a suspected shoplifting. (c) Wal-Mart should prevail. Mitchell v. Walmart Stores, Inc., Georgia Court of Appeals, 1996, 477 S.E.2d 631,http://scholar.google.com/scholar_case?case=2296695846303644766&q= 477+S.e.2d+631&hl=en&as_sdt=2,34 The owner or operator of a mercantile establishment has the right to detain a person reasonably suspected of shoplifting. The cause of detention must be “established by competent evidence” and must be reasonable in length of time. In the case of an establishment utilizing an anti-shoplifting or inventory control device, the automatic activation of the device as a result of a person exiting the protected area shall constitute reasonable cause for the detention of the person. The agent’s alleged rudeness is irrelevant, as his actions were clearly in response to the alarm, establishing probable cause. The plaintiff's claims for false arrest are without merit. “[I]t makes no difference to ‘reasonable cause’ whether or not employee negligence in failing to deactivate the special tag set the device off. What matters is whether the method and time of detention were reasonable within statutory limitations.” Plaintiff was subjected to a ten- or fifteen-minute “detention” in the open, during which the items in plaintiff's shopping bag were individually tested for the presence of the electronic antitheft sensor and after which plaintiff's bag was returned to her and she was free to leave. This procedure was reasonable. Causing embarrassment is not the same as unlawful imprisonment. Although one might conclude that Wal-Mart exceeded its conditional privilege by acting in an excessive manner, this court determined otherwise. Similarly, there was no unlawful restraint either by force or fear here, as is necessary to recover for false imprisonment. It follows that the trial court correctly granted defendant’s motion for summary judgment. Solution Manual for Smith and Robersons Business Law Richard A. Mann, Barry S. Roberts 9781337094757, 9780357364000, 9780538473637