QUESTION I - JULY 2004
PLEASE NOTE: QUESTION I was a "Multistate Performance Test" (MPT) and is not reproduced here.
QUESTION II - JULY 2004
PLEASE NOTE: QUESTION II was a "Multistate Performance Test" (MPT) and is not reproduced here.
QUESTION III - JULY 2004
Garbage Company, Inc. (GCI), is a small family-owned trucking business that for years has specialized in picking up and disposing of commercial and residential waste, including hazardous waste, in towns located in Washington County, Vermont.
has recently purchased from
HazMat Industrial Design & Manufacturing Corporation the newest
generation of truck capable of safely transporting hazardous
GCI has recently purchased from HazMat Industrial Design & Manufacturing Corporation the newest generation of truck capable of safely transporting hazardous materials.According to HazMat's promotional literature, the truck has been specially designed to transport hazardous materials in a sealed environment so that there is no risk of unintentional leakage or discharge.
Tom Trucker, GCI's most senior driver, is assigned to the new rig. He loves the truck – unlike the others he's driven for GCI, it is bright, clean and shiny, and the engine purrs like a kitten when he gets behind the wheel. He takes it out for its first run, and after visiting ten of GCI's customers to pick up their hazardous waste, decides to stop at a local bar for some lunch. After having a burger and a soda, Tom gets back into the truck and continues on his route.
Two miles down the road, Tom takes a curve in the road too fast, and despite his best efforts to regain control, the truck teeters off the edge and tips over, sliding on its side down a ten-foot embankment. Tom is able to pull himself free of the truck pretty easily, but notices that the chemicals in the truck have begun to leak into the large pond next to the road. The pond is owned by Paula Prentiss, who has a small fishing camp that she rents out for several months every year for bass fishing.
The next day, the local newspaper prints a front-page article about the accident. In describing the accident, the article reports that Tom drank "a few beers" at lunch, which "most likely" caused his loss of control and the resulting accident. Shortly thereafter, Tom is fired by GCI, and, despite looking for several months, he has been unable to find a new trucking job in the area.
During its investigation of the accident, the state's Department of Emergency Management discovered that the chemicals had leaked from a welded seam in the middle of the tank, which apparently was stressed in such a way by the accident that it had torn apart. According to the report, most tanks used for transporting chemicals don't have seams at all. The report, which was issued six months after the accident, also concluded that while the chemicals had temporarily polluted the pond, it appeared that the concentration of the spill was so minor that there was no long-term damage to the water or the surrounding area.
In the meantime, Paula has been unable to rent out her fishing camp as usual, and she is concerned that bass fishers will be reluctant to rent from her in the future once they learn about the chemical spill.
(1) What common-law claims does Paula Prentiss have against GCI relating to the accident and resulting chemical spill? Discuss fully.
(2) Does Paula Prentiss have any products liability claims against HazMat relating to the accident and resulting chemical spill? Discuss fully.
(3) Does Tom Trucker have any claims against the local newspaper? Discuss fully.
QUESTION IV - JULY 2004
Daniel Defendant was driving his car with a friend, Peter Principal, in the passenger seat, when Peter asked him to stop at a convenience store. Daniel pulled over and stopped and, to his surprise, saw Peter take out a handgun and pull a ski mask over his face. Peter said, "Keep the engine running, I'll be right back," and Daniel said, "Okay." Peter stepped out of the car and began walking towards the store. Daniel thought about what he should do, then decided to drive away. He began to pull away from the curb, but at that moment, a police car on routine patrol pulled into the parking lot. Daniel decided to stay to see what happened. The officers got out and apprehended Peter before he ever entered the store. They then took Daniel into custody, but, protesting his innocence, Daniel resisted, at one point biting one of the officers on the hand. Peter has been charged with attempted armed robbery. Daniel has been charged with accessory to attempted armed robbery, conspiracy to commit armed robbery, resisting arrest and aggravated assault.
1. Discuss whether Peter can be convicted of attempted armed robbery on these facts.
2. Discuss whether Daniel can be convicted of accessory to attempted armed robbery on these facts.
3. Discuss whether Daniel can be convicted of conspiracy to commit armed robbery on these facts.
4. Assume that the only difference between aggravated assault and simple assault is whether or not the bodily injury inflicted is "serious." Discuss whether the defendant must be acquitted if the jury finds all of the elements of aggravated assault except for the "serious" element.
QUESTION V - JULY 2004
Your law firm has recently taken on a new client, Dr. Rusty. Dr. Rusty was employed by another physician, Dr. Drake, in a family medical practice in northern Vermont from 1999-2002. She quit that job in January 2002 after a nasty disagreement with her employer. Dr. Rusty's employment agreement with Dr. Drake provided that, after her employment terminated, she could not practice medicine anywhere in Vermont for a period of ten years. The agreement also gave Dr. Drake a right to recover his attorneys' fees should legal action be necessary to enforce the agreement.
joined the staff of a hospital in southern Vermont, over 100 miles away.
Dr. Rusty then joined the staff of a hospital in southern Vermont, over 100 miles away.A sheriff soon served her with a summons and complaint. The complaint, filed by Dr. Drake, alleged Dr. Rusty violated the employment agreement and sought damages, an injunction barring Dr. Rusty from practicing medicine in Vermont, and an award of attorneys' fees. The hospital, concerned about being drawn into the suit, terminated Dr. Rusty's employment.
Rusty spoke to
Dr. Drake's attorney, who told her that she had no chance of winning
and would likely have to pay Dr. Drake tens of thousands of dollars in
attorneys' fees if she fought the suit.
Dr. Rusty spoke to Dr. Drake's attorney, who told her that she had no chance of winning the case and would likely have to pay Dr. Drake tens of thousands of dollars in attorneys' fees if she fought the suit.Unemployed and still paying off her student loans, she decided not to hire an attorney and agreed to settle. Dr. Rusty stipulated to entry of an injunction prohibiting her continued practice in Vermont. In exchange, Dr. Drake dropped his claims for damages and attorneys' fees. Based on the settlement, the superior court entered a final judgment providing as follows: "Defendant Dr. Rusty is enjoined from engaging in the practice of medicine in the State of Vermont until January 1, 2011." The court entered judgment on May 15, 2002. Since then, Dr. Rusty has been practicing in New York, but she now wants to return to Vermont.
Your senior partner, after reviewing the matter, realized that the covenant not to compete was very broad and almost certainly would not have been enforced as written had Dr. Rusty defended the suit. The partner also discovered that Dr. Drake retired in January 2004. The partner wrote to Dr. Drake's attorney asking whether, in light of the doubtful enforceability of the agreement and Dr. Drake's retirement, Dr. Drake would agree to allow Dr. Rusty to practice in southern Vermont. The attorney responded that Dr. Drake had no interest in allowing Dr. Rusty to practice anywhere in Vermont. The attorney also noted angrily that Dr. Rusty had alienated some of Dr. Drake's patients and neighbors in his small town by e-mailing her friends there about the employment dispute and subsequent lawsuit, and consequently Dr. Drake retired earlier than planned and moved to Arizona.
When Dr. Rusty learned that Dr. Drake had moved to Arizona, she again began working part-time in a hospital in southern Vermont while continuing to live and practice in New York. She has asked the firm to pursue whatever legal action is necessary to allow her to practice medicine in Vermont.
(1) What is the likely outcome if Dr. Rusty files a new lawsuit to challenge the enforceability of the covenant not to compete? Discuss.
(2) What other options, if any, does Dr. Rusty have to obtain relief? Discuss.
(3) Assume a court has decided to review whether the injunction should continue. What factors should the court examine? Discuss.
QUESTION VI - JULY 2004
Realizing that most surrounding towns had developed summer education/recreation programs, in 2004 the Town of Addington decided to develop its own program to foster healthy recreational activity and experiential learning for Vermont's school-age children during the summer months. Instead of creating its own program in-house, however, the Town of Addington decided to appropriate funds for two local programs: the Town of Ruttenden recreation department (for those children electing to participate in nearby Ruttenden), and the St. Sebastian recreation department in Addington (for those children electing to participate in that program). Addington sends $500.00 to the host program for each child who participates.
The St. Sebastian program is sectarian and privately run, although it is open to children of all faiths. The program integrates spiritual development, and cultivation of a faith in God, into all aspects of its daily schedule; the day begins with a prayer, many of the learning activities involve biblical study, and the recreational activities incorporate religious themes.
Christopher Client works for a local business. He is a taxpayer and resident of the Town of Addington. He doesn't have any children and strongly objects to Addington's decision to send tax dollars to the St. Sebastian program. About a month ago, he reserved the Addington town green for the first Saturday in August, during his vacation from work. He plans to ignite a symbolic bonfire in which he will burn a life-sized picture of town founder Louis Addington, and then hold a press conference in which he will advocate strongly against Addington's decision to send funds to St. Sebastian.
The Addington selectboard learned of his plans and quickly passed an ordinance forbidding political advocacy on the town green. The selectboard sent Client a letter advising him of the ordinance and also enclosing a copy of a longstanding local regulation forbidding fires of any sort on the town green.
In the meantime, Bernice Boss, Client's employer, told him that his public advocacy of an unpopular cause would hurt business and directed him not to proceed.
Client has come to you for advice.
1) Discuss Client's constitutional rights with respect to his planned bonfire and press conference.
2) Discuss whether Client has any legal claim against Bernice Boss for violating his constitutional rights.
3) Discuss the constitutional arguments Client could make in an effort to end Addington's practice of directing funds to St. Sebastian.
4) Discuss whether a Vermont court will likely allow Client to pursue a lawsuit resting on such claims
Board of Bar Examiners
Mailing address: 109 State St. Montpelier VT 05609-0702
Office Location: 111 State St. Montpelier, VT
Telephone: (802) 828-3281