INSTRUCTIONS This is an OPEN BOOK exam. You may have with you your casebook, handouts distributed to you in class, your notes, and any outlines, casebriefs, or other materials you or your classmates prepared during this term. You may also have with you any commercial outlines, hornbooks or other commercial study guides you like, but I advise against relying upon them, because 1) I have no great confidence in their quality, and 2) they are likely to distract you from analyzing the questions, and cause you more delay than any benefit they may afford you. This exam consists of 5 short answer questions, and one essay. You will be allowed two hours to complete all parts of the exam. The short answer questions are worth a total of eight points each, and should take less than one hour to complete. The essay question is worth 60 points, and should take about an hour to complete. Plan the time you spend on each part of the exam accordingly. If you choose not to type the exam, please write legibly. I will not struggle to make out your handwriting -- if I cannot read it on the first pass I will ignore it. If you type, please double space. On the long essays, please also double space even if you are not typing, and write on only side of the page in the blue books. That way, if you must add more stuff when you proofread your answer, you will have space to do so without a lot of arrows and marginal notations, and it will still be legible.
INSTRUCTIONS FOR PART I - SHORT ANSWER In each of the five questions in Part I below, write or type your answers in the space provided, or on a separate page if you are typing. These are intended to be short answers, and should fit in the space provided, or on no more than five or six typed lines (and probably a good deal less). Overlong answers will do you no good, and will waste the time you should be spending editing your long essay. INSTRUCTIONS FOR PART II - LONG ESSAY The long essay question below is worth 60 out of one hundred points – so leave plenty of time to analyze the problem presented. Issue spotting counts for about one third of the grade, and appropriate application of the law counts for another third. The last third is earned by analysis - if more than one result is possible, or if multiple doctrines can be applied, you should discuss each that makes sense. Well organized essays receive this reader’s appreciation, and that appreciation is inevitably reflected in the grade. Thorough answers need not ramble on and on!
The Examination Begins
on the Next Page! PART I - Short Answer
A ticket holder to a rock concert featuring two warm-up bands and a hugely popular headliner band was dismayed to learn that the main attraction would not be appearing because the entire band had been busted a week before the concert for narcotics possession with the intent to distribute. When the ticket holder refuses to pay the invoice for the tickets she is sent, and is later sued in small claims court for the price of the tickets, what defense(s) might she raise to avoid liability for breach of contract? Is she likely to prevail?
II. ESSAY Part A. Residents of an apartment complex in a neighborhood advertised under the name “Valleygrove,” but known by the residents as “The Bottom,” were dismayed to discover that shortly after the nearby paper recycling facility -- “Re-NEWS-It, Inc.” -- expanded its operations, toilets in the complex were backing up, and the odor of sewage was permeating the apartments. The older residents of the complex (who generally had more time on their hands, and were more sensitive to these issues -- in other words, the busybodies) had studied the situation and determined that the sewage problem was most likely caused by temporary surges in paper pulp discharges from the plant, causing downstream “plugs ” in the sewer line. They also determined that these surges were most frequent in the wee hours of the morning, and that the concentration of pulp in the plant discharges was specifically regulated, under its contract (known as a NPDES Permit) with the local sewerage authority and the Department of Environmental Protection.
The residents are encouraged each to start a lawsuit for injunctive relief and damages by one of the Old-timer tenants in the complex who happens to be a lawyer. Having never learned the newfangled causes of action under the state and federal environmental laws, he presses the residents to sue Re-NEWS-it, Inc., applying common law principles of contract law. Describe what, if any, cause of action would lie against Re-NEWS-It under common law principles of contract law, and what is the likelihood of success on the merits.
Part B. The landlord is a second (and, to some residents, a handier and more immediate target) for complaints. Recognizing his duty to the tenants under ¶ 14 of the lease, which is the only relevant section of the lease, the landlord has retained Three Bozos with a Truck and a Wrench, Inc. (“Bozos”) to investigate and repair the plumbing in the complex as needed. Bozos reports that the plumbing works perfectly, the problem is downstream, and there is nothing that can be done, short of installing an expensive auxiliary sewage pump. This the landlord refuses to do. He tells Bozos to stop work on the sewer line, and refuses to respond further to the tenants’ complaints. The Old-timer encourages the tenants to sue the landlord and Bozos.
The lease contains no prohibition against delegation of duties by the landlord.
¶ 14 of the lease states simply:
“The Landlord will at his own expense make all needed repairs to plumbing in the complex.”
Describe what, if any, causes of action would lie against the landlord and/or Bozos under the common law principles of contract law, and what is the likelihood of success on the merits.