July 2004- Vermont Bar Examination Essay Questions - Model Answers

[Model Answer - Question I]
[Model Answer - Question II]
[Model Answer - Question III]
[Model Answer - Question IV]
[Model Answer - Question V]
[Model Answer - Question VI]

Examination Essay Questions - July 2004


PLEASE NOTE: QUESTION I was a "Multistate Performance Test" (MPT) will not be answered here.


PLEASE NOTE: QUESTION I I was a "Multistate Performance Test" (MPT) will not be answered here.


(1)    What common-law claims does Paula Prentiss have against GCI relating to the accident and resulting chemical spill?
  Discuss fully.

Paula Prentiss may have a claim against GCI for negligence.  Negligence is defined as conduct that falls below the standard established by law for the protection of others against unreasonable risk of harm.  Restatement Second, Torts, § 282.  Tom, who is an employee of GCI, drove the truck too fast around a corner and lost control, thereby causing the truck to leave the road, slide down the embankment and onto Paula’s property, where the tank leaked and spilled chemicals into Paula’s pond.  Tom is an employee of GCI and his accident occurred within the scope of his employment as a driver for GCI.  An employee whose work involves traveling for a company is within the scope of his employment if he is in transit after starting his work.  Because of the employer/employee relationship between GCI and Tom, vicarious liability extends to GCI under the doctrine of respondeat superior. 

In an action for negligence, Paula must show: duty;  breach of duty;  actual causation and harm;  proximate cause;  and damages.  In the present case, Tom had a duty to exercise reasonable care in driving the truck.  When Tom drove the truck too fast around a corner and lost control, he breached that duty of care.  Paula may be able to show that Tom’s driving too fast is direct evidence of his negligence.  The facts do not indicate whether Tom was cited with violating a motor vehicle law by driving too fast.  If he was cited, violation of a safety statute is prima facie evidence of negligence.

As a result of Tom’s breach of duty, the truck overturned and the chemical spilled onto Paula’s property.  Paula has to show that she suffered actual harm.  The harm must involve tangible property damage, not just purely economic harm.  Assuming that actual harm exists, Paula has to prove that Tom’s loss of control of the truck is the proximate or legal cause of harm to Paula’s property.  If the defendant commits a negligent act, he may be liable for any harm that follows in an unbroken sequence.  The test is whether in hindsight, it is fair to hold the defendant liable for all harm caused by his actions.

Paula may have some difficulty showing actual harm.  The facts indicate that although the chemicals temporarily polluted the pond, there was no long-term damage.  Although Paula has been unable to rent out her fishing camp, it is unclear from the facts if this is due to the chemical spill or some other factor.  Further, the lack of income to Paula is economic and not property damage.

GCI may also be strictly liable for any damages resulting from the chemical spill.  Paula could bring an action for strict liability in tort and claim that the transporting of chemicals is an abnormally dangerous activity.  When safety cannot be guaranteed despite the exercise of all due care, an activity may be considered abnormally dangerous. 

Paula may also have a claim against GCI for trespass.  Trespass is the direct physical invasion of another’s right to exclusive possession of property.  Usually, the trespass must be intentional except in the case where a defendant is engaged in an ultrahazardous or abnormally dangerous activity.  However, recovery is only available if actual harm results from the unintentional trespass.  Restatement (Second) of Torts, § 165.  Damages may be recovered for mere interference with possession of the property, even if no harm is done to the land.  Because the trespass in this case was unintentional, in order to prevail on this claim, Paula must show that she owns the property, that GCI was engaged in an ultrahazardous activity and that there was actual harm to her property as a result of Tom’s accident.  Since Paula is unable to rent out her fishing camp, she may be able to show that there are damages under the theory of trespass.   

Paula may also have a cause of action for nuisance.  Nuisance is the nontrespassory interference with the plaintiff’s interest in the use or enjoyment of her land that causes substantial and unreasonable harm.  Whether the defendant’s actions are reasonable depends on a balancing of three factors:  the locality and character of the surroundings;  the nature, extent and frequency of the harm;  and the utility and social value of the activity involved.  The principal difference between an action for trespass and nuisance is that in the case of nuisance, the court will balance all of the factors involved and will grant relief only where the defendant’s conduct is unreasonable under all of the circumstances.

(2)    Does Paula Prentiss have any products liability claims against HazMat relating to the accident and resulting chemical spill?  Discuss fully.

Paula may have a products liability claim against HazMat as a result of the chemical spill on her property.  In order to prevail under this theory, Paula must show that the product was marketed in a defective condition that is unreasonably dangerous.  The defect may be a manufacturing defect, design defect or a failure to warn.  Paula must also prove causation between the defendant’s conduct and the harm she has suffered. 

A design is defective if the foreseeable risk of harm posed could have been reduced or avoided by the adoption of a reasonable alternative design and the omission of the alternative design renders that product unreasonably safe.  This is most likely a defective design case as the facts indicate that this truck has been specially designed with a welded seam in the tank and that most tanks do not have such a seam. 

The test used to determine whether the design of the product is unreasonably dangerous is the risk-utility test.  This test weighs the danger of the design against its benefits.  Here, the risk of an accident is certainly foreseeable.  Also, the accident was not of such great force and since most trucks do not have seams, it is likely that the design is defective and there are other, more reasonable tank designs which could lessen the likelihood of a spill. 

In order to prevail under a strict liability theory, Paula must show an injury in fact and a causal connection between the injury and the design defect.  Paula’s injury is her loss of rental income and the stigma that the pond is polluted.  Even though Paula is not in contractual privity with HazMat, she is still entitled to recovery.  As a bystander, she qualifies as a user or consumer of the product and is protected under a strict liability theory.  Paula must also show that HazMat breached its duty to use ordinary and reasonable care. 

(3)    Does Tom Trucker have any claims against the local newspaper?  Discuss fully.

Tom may have a claim against the newspaper for defamation.  Defamation is the wrongful and unprivileged invasion of the interest in reputation of a person.  Defamation may be either libel or slander.  Slander is made orally and libel is the written defamation of a person.  The difference between the two is significant for the determination of damages.  Libel does not require proof of special damages.  A writing is libel per se if the defamatory meaning is apparent on its face.  The elements of defamation are:  publication by the defendant to a third person;  of a statement of fact that harms plaintiff’s reputation;  the statement is false and defamatory;  and the statement was published negligently.  Where the statement was published, the plaintiff does not need to prove actual damages.

In the present case, Tom had a burger and a soda at a bar before the accident occurred.  The newspaper printed on the front page that he had a few beers at lunch the day of the accident.  Shortly thereafter, Tom is fired from his job at GCI and cannot find work in the area even several months later.  The facts also report that Tom is GCI’s most senior driver.  The newspaper article is a writing, which is published daily and is read by the community.  The statement that Tom had a few beers at lunch is a statement of fact that has harmed Tom’s reputation as he was fired and is unable to find a job in the area.  The statement is false, as Tom had a burger and a soda and not a few beers as reported.

The statement is defamatory as it has harmed Tom’s reputation in the community as evidenced by his firing and inability to find a new job.  The newspaper is at fault because the statement was published negligently.  The reporter assumed that because Tom was at a bar, he must have been drinking beer.  If Tom prevails in an action against the newspaper for libel, he is entitled to compensatory damages.  Tom may also be entitled to punitive damages if he is a private person suing for defamation in a matter which is not of public concern.  He is a private person and not a public official or public figure.  Whether or not his driving of trucks containing hazardous materials is a matter of public concern could be arguable either way.  



  Attempt liability is defined as follows:  one who attempts to commit an offense and does an act towards the commission thereof, but by reason of being interrupted or prevented fails in the execution of the same 13 V.S.A. § 9.  The Vermont Supreme Court has held that the act done towards the commission of the crime  must be of such a character as to advance the conduct of the actor beyond the sphere of mere intent; it must reach far enough towards accomplishment of the desired result to amount to commencement of the consummation.  See, e.g., State v. Vorheis, 2004 VT 10 (2004). 

2.  An accessory aiding in the commission of a felony is punishable as a principal.  Where several persons combine under a common understanding and with  a common purpose to do an illegal act, each one is criminally responsible for the act of each and all who participate in the execution of the unlawful design.  See, e.g., State v. Bushey, 137 Vt. 155 (1979).  The defendant's presence at the scene is, by itself, not enough, State v. Hudson, 163 Vt. 316 (1995) -- but if the defendant is present in order to encourage, incite, or render aid if necessary, that will suffice for accomplice liability.  State v. Carter, 138 Vt. 264 (1980).   The defendant's statement "okay," in the context of Peter's obvious intent to rob the store and to use Daniel's car to get away would probably support a finding of accomplice liability.

3.  Conviction of conspiracy requires an agreement among two or more person to commit an unlawful act, and an overt act other than speech, in furtherance thereof.  The overt act may be committed by either the defendant or a co-conspirator, but it must be committed after the defendant's entrance into the conspiracy.  At least two conspirators must not be law enforcement officers acting in official capacity, or persons cooperating with them, and the overt act must be committed by someone other than a law enforcement officer acting in official capacity or a person cooperating with them.   13 V.S.A. § 1404.  The agreement need not be explicit and may be inferred from the participants' acts or other circumstantial evidence.  State v. Maduro, 174 Vt. 302 (2002).  Daniel's "okay" may be taken as an agreement to commit the proposed robbery, and Peter's approach to the store, masked and armed, the overt act.



A new lawsuit to challenge the enforceability of the covenant not to compete will fail.  The doctrine of claim preclusion, or res judicata, bars Dr. Rusty from initiating a new lawsuit challenging the enforceability of the covenant not to compete.  When Dr. Rusty settled the prior lawsuit by stipulating to the entry of judgment, including an injunction, by the superior court, the court entered an order to that effect and it became final.  A stipulated settlement that is incorporated into the court’s final judgment has the same preclusive effect as any other final judgment.  Lamb v. Geovjian, 165 Vt. 375, 381-82, 683 A.2d 731, 736 (1996).  Claim preclusion bars the litigation of a claim or defense when there exists a final judgment in former litigation in which the parties, subject matter, and causes of action are identical or substantially identical.  It is not limited to claims that were actually litigated in the earlier proceeding but rather bars parties from litigating claims that were or could have been litigated in the prior action.  Id. at 380, 683 A.2d at 734.  Here, Dr. Rusty could have and should have litigated the enforceability of the covenant not to compete in the prior litigation if she wished to challenge its enforceability.  She is therefore precluded from asserting such a claim in a new action. Johnston v. Wilkins, 2003 VT 56, ¶¶ 8-10, 830 A.2d 695.

Dr. Rusty’s only option is to seek relief from judgment under V.R.C.P. 60, through a motion filed with the same court that issued the original order, based on the stipulation.  Johnston, ¶ 9.  Rule 60(b) allows a court to relieve a party from a final judgment or order for any of the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment.

There is some basis to argue that Dr. Rusty meets the grounds for reasons (1) and (3).  Had Dr. Rusty known that the covenant not to compete was most likely unenforceable under Vermont law, she would not have entered into the settlement. Dr. Rusty could argue mistake or excusable neglect based on her pro se status and financial straits.  See Courtyard Partners v. Tanner, 157 Vt. 638, 595 A.2d 287 (1991) (pro se status relevant to determination of excusable neglect).  Dr. Rusty could also argue that Dr. Drake’s attorney engaged in misconduct by giving her legal advice about settling and caused undue duress by threatening her with large legal fees.  Whatever the strengths of these arguments, however, they are clearly time-barred.  Motions for relief from judgment based on grounds (1) – (3) must be filed within one year from the entry of judgment, and Dr. Rusty has missed that deadline.  Godin v. Godin, 168 Vt. 514, 725 A.2d 904 (1998).

Dr. Rusty can, however, move for relief from judgment based on Rule 60(b)(5) and  Rule 60(b)(6).  No specific deadline governs such motions; however, they must be filed within a “reasonable time.”  (A motion under Rule 60(b)(4) is not time-barred, but the facts present no grounds for concluding that the earlier judgment is void.) 

Dr. Rusty should prevail under Rule 60(b)(5), which provides a basis for challenging the continued enforcement of injunctions that involve the supervision of changing conduct and conditions. Boisselle v. Boisselle, 162 Vt. 240, 648 A.2d 388 (1994).  A court that issues an injunction governing future conduct retains the power to adapt the injunction to changed circumstances.  E.g., System Fed’n No. 91, Ry. Employees’ Dept. AFL-CIO v. Wright, 364 U.S. 642, 647 (1961).  The court thus has flexibility to consider the continued equity of injunctive relief.  Dr. Rusty can make several strong arguments showing that continued enforcement of the injunction would be inequitable.  First, circumstances have changed significantly, as Dr. Drake has retired from the practice of medicine and moved across the country.  The covenant not to compete no longer serves any purpose for him and it would be inequitable for the court to continue it.  Second, it appears that Dr. Drake is seeking to use the court for a personal vendetta against Dr. Rusty rather than a legitimate business purpose. This, too, makes continuing the injunction inequitable.  Third, the injunction imposes a very broad restraint on her personal freedom without providing any benefit to Dr. Drake.  A narrower injunction that barred Dr. Rusty from competing directly with Dr. Drake might have been justified.  But her employment as a family physician in a distant part of the state has no economic effect on Dr. Drake. 

The equitable nature of injunctive relief does, however, call Dr. Rusty’s own conduct into question.  First, Dr. Rusty is apparently violating the injunction by working in Vermont part-time.  One maxim of equity is that “she who seeks equity must do equity.”  Dr. Rusty may be weakening her position by acting in violation of the court order before we have a chance to successfully challenge it.  We should advise her to stop working in Vermont for now. 

Second, Dr. Rusty could also make an argument under Rule 60(b)(6) that the injunction is working a hardship on her.  Courts generally construe Rule 60(b)(6) as directed at the prevention of hardship.  E.g., In re Merrill, 157 Vt. 150, 596 A.2d 345 (1991).  The facts do not provide sufficient detail to analyze the likely success of this claim.  If she has a pressing personal need to return to Vermont (such as a family member requiring her care), or particularly strong employment opportunities in Vermont, she may be able to prevail on this grounds as well. Note, however, that Dr. Rusty cannot simply repackage her claims under (b)(1), (3), & (5) and present them under (b)(6).  Subdivision (b)(6) may only be used to present a ground for relief other than those encompassed by subdivisions (1)-(5).  Olde & Co. v. Boudreau, 150 Vt. 321, 552 A.2d 793 (1988).

Third, Dr. Drake may argue that Dr. Rusty essentially drove him into retirement by telling people about their dispute and that she should not benefit from her own misconduct.  He may, in effect, argue that Dr. Rusty has unclean hands.  This argument should fail, as the facts indicate that Dr. Rusty was merely keeping in touch with friends about her situation and not conducting a campaign against Dr. Drake.  If, however, the emails turn out to be defamatory or scurrilous, Dr. Drake might have a stronger argument. 

I recommend that we promptly file a motion for relief from judgment in the superior court in which the earlier case was filed, seeking relief under Rule (b)(5) and (b)(6) as described above.  I also recommend advising Dr. Rusty to stop working in Vermont until the Court rules on our motion. 



1.    The First Amendment to the United States Constitution, applicable to the states through the Fourteenth Amendment, prohibits laws abridging the freedom of speech. In a public forum such as a town park, expression, whether oral or written or symbolized by conduct (such as burning a photo of the town founder), is subject to reasonable time, place or manner restrictions.  Such restrictions are generally valid if they are justified without reference to the content of the regulated speech, they are narrowly tailored to serve a significant governmental interest, and they leave open ample alternative channels for communication of the information.  Clark v. Community for Creative Non-Violence, 104 S.Ct. 3065, 3069 (1984).

The newly-enacted ordinance specifically and broadly regulates speech on the basis of content, and for that reason appears to be unconstitutional.  On the other hand, the blanket ban on fires on the town green appears to be content-neutral, even though in this case it might affect Client’s ability to express himself in the way he had planned.  If the town has  a significant interest in preventing fires on the town green, if the fire ban is narrowly tailored, and if Client has alternative channels for expressing his view, the town may be able to enforce the fire ban without running afoul of the United States Constitution. 

The town’s actions may also run afoul of the Vermont Constitution’s guarantee of freedom of speech.  Ch. I, Art. 13.

2.    Client works for a local business.  Nothing in the facts suggests that the local business is an agent of the state or federal governments.  Because there is no state action with respect to Client’s boss’s actions, those actions do not violate Client’s constitutional rights.

3.    Client can argue that the state funding of a program so infused with religion is unconstitutional.  In framing a constitutional argument, Client should consider both the United States Constitution and the Vermont Constitution, as each is a source of distinct, albeit related, constitutional protections.

4.    The Vermont Supreme Court has adopted the constitutional and prudential components of the standing doctrine enunciated by the United States Supreme Court.  The constitutional component of the standing doctrine requires plaintiffs to demonstrate an injury in fact, a causal link between the injury and the challenged provision, and redressability.  In addition, plaintiffs’ complaint must fall within the “zone of interest” protected by the law they invoke, and they are prohibited from raising the rights of others or general grievances.  Schievella v. Department of Taxes, 171 Vt. 591 (2000).

In this case Client asserts an interest in not being compelled to support religion through his tax dollars.  He can argue that the challenged arrangement, whereby public monies are directed to a religious program, is causally connected to Client’s injury.  Finally, he will argue that a court order striking down the arrangement would redress the issue, and Client’s complaint falls within the zone of interest protected by the constitutional protections he invokes.

In general, the United States Supreme Court has been reluctant to allow a taxpayer to challenge the constitutionality of a federal statute solely on the basis of his or her status as a taxpayer; one’s status as a taxpayer alone may not be enough to establish sufficient stake and adverseness for the purposes of standing analysis.  Frothingham v. Mellon, 262 U.S. 447 (1923).  However, that Court has acknowledged “taxpayer standing” in the context of Establishment Clause claims on the ground that the Establishment Clause was specifically designed to prevent the government from spending its citizens’ tax dollars to aid religion.  Flast v. Cohen, 88 S.Ct. 1942 (1968).  Although the Vermont Supreme Court is not bound by the United States Supreme Court’s analysis in this regard, the latter court’s analysis with respect to standing may well be persuasive to the Vermont Court.

A Vermont Superior Court, is a court of general jurisdiction, including the jurisdiction to adjudicate state or federal constitutional claims.  Accordingly, a Vermont Superior Court will have subject-matter jurisdiction.


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