Whether the Jury Can Find Dan Guilty of First Degree Murder

November 19th, 2011

MODEL BAR ANSWERS

Paul Pfau has supplied model answers to the Daily Journal Corporation for over 30 years. Here is a sampling of model answers for past bar questions, in order to give bar applicants a sense of the fundamental writing skills necessary to succeed. Although the Daily Journal may have edited the articles for space purposes, there are specific writing style methodologies that are incorporated into each of the examples. These are methods that bar applicants will learn in order to develop skills sufficient to produce passing standards under exacting timed conditions.

Whether the Jury can find Dan Guilty of First Degree Murder

Traditionally, murder is proved when the defendant is the actual and proximate cause of the homicide of another with malice aforethought. Statutorily, first degree murder occurs as the result of premeditation and deliberation or if the murder occurred during the commission of an inherently dangerous felony.

When Dan “struck Vic with his fist” and “knocked him down” he was both the actual and direct proximate cause of Vic’s death due to the resulting skull fracture.

The prosecution would contend that malice aforethought was established through Dan’s intent to inflict serious bodily injury when he struck Vic with his fist, knocking him to the floor. Alternatively, the prosecution could also argue that Dan’s act evidenced malice through a reckless indifference – and created an unjustifiably high risk to Vic’s life given the severity of the punch in knocking him to the hard floor causing the fatal skull fracture. The prosecutor could additionally argue that Dan’s act of striking Vic constituted a felonious assault for the purpose of establishing malice through the felony murder rule. Dan would counter, however, that the homicide was not the collateral but rather direct result of the assault so that the felony murder rule would be inapplicable.

Dan would also argue, however, that he was justified through self-defense in striking Vic – although this seems implausible under either the objective or subjective views of this defense given the likely unreasonableness of Dan’s action in striking a grocery store customer in response to Vic’s comment that he was crazy.

Presuming malice is not excused or mitigated through one of the mental defenses discussed, below, at issue is whether Vic’s murder is first degree. While only an instant of reflection is necessary to establish premeditation and deliberation as the basis for proving first degree murder, Dan’s “explosion in anger” over Vic’s “crude remark” that he was “crazy and should be locked up” – and that he “could not stop himself from striking Vic” as a result – seems to argue against the idea Dan reflected upon killing Vic before he struck him. Again, felony murder also seems inapplicable as a means to establish first degree murder given the fact Vic’s death was not collateral to the underlying felonious assault.

Whether the Jury can find Dan Guilty of Second Degree Murder

In those jurisdictions allowing statutory first degree murder, any murder that does not qualify through premeditation and deliberation or felony murder is second degree.

A stronger case can therefore be made that Dan be found guilty of Vic’s second degree murder given the difficulty s previously discussed in establishing premeditation and deliberation or that Vic’s death was the result of felony murder. In contrast, if the prosecution can prove malice through reckless indifference to Vic’s life or through Dan’s intent to inflict at least serious bodily injury when he struck Vic with his fist, then a solid case can be established for statutory second degree murder. As noted, below, however, the prosecutor may have greater difficulty in sustaining his burden of proving the case for any degree of murder beyond a reasonable doubt given the substantial issues involving Dan’s mental state. Further, Dan’s potential justification for second degree murder through the same self-defense argument as discussed, above, would also seem implausible.

Whether the Jury can find Dan Guilty of Voluntary Manslaughter

Voluntary manslaughter is a homicide that would be murder but for the existence of adequate provocation. Provocation must arouse a sudden and intense passion that was provoked by the victim and where the defendant did not have sufficient time between the provocation and homicide to cool off. In contrast, involuntary manslaughter is established if the homicide was committed with criminal negligence or during the commission of an unlawful act.

Absent any defense attributable to his potential mental incapacity, Dan would contend that the fact he “could not stop himself from striking Vic” when he “exploded in anger” striking Vic, demonstrated the sudden and intense passion necessary for this crime. Dan would also argue that his act in striking Vic was immediate – and that as a result there was insufficient time between the provocation and homicide for him to cool off. It is unclear, however, whether Vic’s assertion that Dan “was crazy” when Dan “swore at Vic and threatened to kick Vic out of the store” was adequate provocation. A stronger case may be made that Dan’s reaction was inadequate and objectively unreasonable – especially given the fact Dan was working in a public place at the grocery store and presumably encountering customers with varying degrees of daily complaints on a routine basis.

Imperfect Self-Defense

As discussed, above, Dan could argue that voluntary manslaughter is more appropriate than either first or second degree murder because of the Imperfect Self-Defense doctrine.

Here, Dan would argue that even though he may have been at fault in starting the physical altercation by striking Vic, he nonetheless unreasonably but honestly believed in responding with the use of potentially deadly force. This would probably be a more effective argument than self-defense – although Dan would still have difficulty in justifying the degree of force he used in response to Vic’s words that he was crazy.

Alternatively, Dan might also argue that his act was at most criminal negligence in grossly failing to exercise due care in striking Vic with such force as to knock him to the hard floor. If so, Dan would be culpable for involuntary manslaughter.

Whether the Jury can find Dan Not Guilty by Reason of Insanity

There are various views of the insanity defense to determine whether, at the time of the crime, Dan was mentally incapable of forming the requisite intent for any of the crimes for which he may be charged.

M’Naughten

Here, a defendant is entitled to acquittal only if he had a mental disease or defect that either caused him to not know that his act would be wrong or not understand the nature and quality of his actions.

The psychiatrist’s and witnesses testimony regarding Dan’s history of mental illness combined with “his continued erratic behavior despite treatment” would serve as the basis for this view of his insanity defense. Further, Dan’s “explosion in anger” in striking Vic would seem to reasonably infer that Dan did not know his action would be wrong or to even understand what he was doing when he reflexively reacted to Vic’s statement in striking him.

Irresistible Impulse

Under this view, a defendant is entitled to an acquittal if, because of his mental illness, he was unable to control his actions or conform his conduct to the law.

The evidence would strongly support an acquittal for Dan on the basis of this view given the evident history of his mental illness and his obvious inability to control his actions in an “explosive” fit of anger.

Durham

Here, a defendant is entitled to an acquittal if the crime was the product of his mental illness. Again, Dan can make a valid case for this defense in broadly asserting that his history of mental illness – in spite of treatment – and continued erratic behavior was most certainly the product of his mental disease.

Modern Penal Code

This modern trend test supports the view that a defendant is entitled to acquittal if he had a mental disease or defect and that as a result he lacked the substantial capacity to either appreciate the criminality of his conduct or conform his conduct to the requirements of the law.

Embracing both the M’Naughten and Irresistible Impulse views, Dan would also have a strong argument for this insanity defense for the same reasons as discussed with these previous views.

Diminished Capacity

Although short of an insanity defense, some states allow this view for those crimes requiring a specific intent mens rea. In these jurisdictions, Dan might contend that if any of the insanity defenses were inapplicable, he could nonetheless assert this more limited defense for either of the first or second degree murder charges – or even voluntary manslaughter.

While Dan may raise an insanity defense as early as his arraignment, he may also assert the defense at any stage of his jury trial. In addition, many jurisdictions would require him to bear the burden of proof in establishing insanity as a legitimate defense.

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This answer is supplied by Paul Pfau and Cal Bar Tutorial Review who, for nearly 30 years, have customized bar review programs for the individual applicant. Cal Bar may be reached through 800-783-6168 or 800-348-2401. You may also visit the web

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Pat v Danco

November 19th, 2011

MODEL BAR ANSWERS

Paul Pfau has supplied model answers to the Daily Journal Corporation for over 30 years. Here is a sampling of model answers for past bar questions, in order to give bar applicants a sense of the fundamental writing skills necessary to succeed. Although the Daily Journal may have edited the articles for space purposes, there are specific writing style methodologies that are incorporated into each of the examples. These are methods that bar applicants will learn in order to develop skills sufficient to produce passing standards under exacting timed conditions.

PAT v. DANCO

Whether Pat will prevail in a suit against Danco for breach of contract will initially depend on the validity of their contract as well as its terms. The measure of any damages Pat may receive will also depend on these initial issues.

VALIDITY OF CONTRACT

Presuming a valid “written services contract” between Pat and Danco reflecting their mutual assent for Pat to supply four computer programs for use by Danco by May 1st for valuable consideration of $25,000 – and which satisfies the defense of the Statute of Frauds – at issue are the terms the parties agreed upon – and whether they were breached – as discussed below.

TERMS OF THE CONTRACT

Express Condition Precedent

An express condition precedent is one that must occur before an absolute duty of performance arises in the other party.

Thus, payment to Pat of the $25,000 is based on Pat’s duty to perform by completing and delivering the four computer programs to Danco by May 1st. Absent an excuse, Danco may argue that Pat’s failure to meet this time of the essence express condition precedent would relieve the company of its obligation to perform its duty to pay Pat the $25,000.

PERFORMANCE

APRIL 15TH COMMUNICATION BY PAT/CHELSEA

Pat’s call to Chelsea, Danco’s President, on April 15th that he was “having problems” with computer program’s three and four – and that he may not be able to deliver them before May 8th or 15th – constituted the basis of relieving Danco of its duty to perform to Pat. Danco would make the following arguments:

Excuse of Condition by Actual Breach

Although Pat’s statement did not signal his failure to cooperate, Danco might argue that it was an actual and material breach of the express time of the essence condition. Pat would make the argument that the potential delay – while not meeting the May 1st condition – was at best incidental and minor given the need for a one to two week delay. This would only suspend Danco’s duty to perform – but not excuse it.

Excuse of Condition by Anticipatory Repudiation

Anticipatory repudiation must be unequivocal, not just an expression of doubt or the prospective inability or unwillingness to perform.

It seems clear Pat’s expression of doubt – “having some problems” would fall short of the unequivocality standard in which event Danco’s duty to perform would remain.

Excuse of Condition by Waiver or Estoppel

A party may waive a condition by indicating that he will not insist upon it. Such a waiver, however, may be retracted unless the other party relies on the waiver and changes his position to his detriment. Upon such detrimental reliance, the waiving party is estopped from non-performance.

In this regard, Chelsea’s response to Pat’s communication that (Danco) would “have to live with the May 15th (date)” in the event Pat could not resolve the programming problems would seem to constitute a sufficient waiver of the time of the essence condition. On the other hand, Chelsea might argue that she retracted the waiver with her April 28th communication that she would treat Pat’s April 15th statement as a “repudiation” of his duty to perform. Pat, however, could successfully argue that the nearly two week delay in informing him caused him to change his position to his detriment – and especially given the fact at the time of the making of the contract that “he turned away opportunities to take on more lucrative work.” In this event, subject to a valid modification, as discussed below, Chelsea’s waiver would also be valid.

APRIL 28TH COMMUNICATION BY PAT/CHELSEA

Anticipatory Repudiation by Danco

Pat would argue that Chelsea’s representation, as described above, that Danco would treat Pat’s April 15th communication as an actual breach and not pay Pat “because of the language in their contract” – itself is an unequivocal repudiation of the terms of the April 1st contract – supporting a successful cause of action by Pat against Danco for material breach.

Modification of the May 1st Contract

Pat would also contend that Danco’s waiver – as discussed – through Chelsea’s April 15th communication to him – was valid even though it was not supported by consideration. Pat would argue that his detrimental reliance was a valid substitute – and that the modified time for performance was extended to May 15th. As such, his assertion on April 28th that full performance would be satisfied by May 12th was within the terms of the modified contract.

MEASURE OF DAMAGES

Compensatory

Pat would argue that the standard measure of compensatory damages will be expectation damages that will permit him to fully benefit under the terms of the May 1st contract. In this event, Pat would be justified in arguing for the full $25,000.

Consequential

These damages are awarded in addition to compensatory damages in the event a reasonable person would have foreseen at the time of entering the contract that such damages would result from the breach. Here, Pat would argue that his contract with Danco – in “anticipation that it would lead to significant work in the future with Danco” – foreseeably resulted in his turning down more “lucrative work.” Here, Pat would argue that he should also be compensated for the loss of work that at least would cover the nearly one month of time from the start of the contract to Danco’s April 28th repudiation.

Punitive

It is unlikely Pat would be successful in arguing for punitive damages in view of the commercial nature of his contract with Danco.

Duty to Mitigate

Pat should cease work on behalf of Danco in his attempt to find alternative employment that would lead to mitigating any compensatory or consequential damages owed to him by Danco for their repudiation of their duty to perform under the terms of the April 1st contract.

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This answer was provided by Cal Bar Tutorial Review. Cal Bar is a customized and personalized total review course – and has been serving California bar candidates since 1979. Cal Bar may be reached through 800-783-6168. Cal Bar’s website address is: www.cbtronline.com.

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Ten Core Factors For Passing The California Bar On Your First Or Repeat Effort

November 19th, 2011

Whether you are a first-time or repeat examinee, the prospect of preparing and then performing on the California bar exam at a passing standard may seem for many to be one of life’s more challenging endeavors. As a three-day pressure-packed ritual – following the rigors of law school and the usual compressed period for bar review – the certainty of passing may still seem entirely too arbitrary. With this in mind, there are ten core factorsregardless of your course of action in preparing for the exam that I hope you will find useful. They are distilled from having “worked in the trenches” with bar applicants for nearly 33 years.

I

UNDERSTAND THE NATURE OF THE BAR AS A “PROBLEM-SOLVING SPEED EXAM”

This is fundamentally important because it has everything to do with understanding how to more precisely prepare for it. As a three-day, 18-hour exam, your key for passing will be to develop both the stamina and skill sufficient to solve written and multiple-choice questions under exacting, timed conditions. Beyond just learning the law (for the 14 – but really – now 17 subjects) this demands a practical emphasis in learning how to more competitively improve your essay, performance exam and MBE skills in order to upgrade your passing standards. If the Examiners wanted more candidates to pass the exam they would send you home with it – where “time” wasn’t a factor.

II

AVOID GROUP-THINK IN CHOOSING HOW TO PREPARE FOR THE BAR

Given the nature of the bar as a strictly timed text, choose a course of preparation suitable to your specific test-taking needs (key word “your”). Many applicants do not – in generically selecting a “one-size fits all” approach where the review course (if one is taken), for example, dictates when you both start and finish your formal preparation. Everyone learns differently – and common-sensically – the percentage of passing applicants would be higher if more gave greater consideration to the time they needed to prepare and to the development of their more specific timed writing and objective test-taking needs. Put another way, if 90% of applicants engage in the usual generic approach, the statewide passing rate for the Spring Exam should be higher than ±40% or for ±60% who pass the Summer Exam. Until the champion racehorse Seabisquit learned how to run, he didn’t win many races.

III

FIND THE REVIEW PROGRAM SUITABLE TO YOUR SPECIFIC NEEDS

Although there are many fine review programs to choose from, begin the investigative process early enough in making an informed decision suitable to your specific testing needs. Here are some basic questions: Will you benefit from an ultra-structured program, where literally every hour is programmed to assure its efficient and effective use? On an hour-to-hour basis, how will I manage my limited time and build the kind of necessary balance into my individual study program to both learn the law and practically prepare for each of the three sections of the test? Given my study time – and the volume of information for each subject – how will I ultimately memorize the law without under-investing my time in learning how to develop my writing and MBE skills? How will my written work be evaluated – If I get a simple grade and some descriptive comments on each practice essay or performance exam, how will I specifically learn those methodologies that will work (for me) to fix my difficulties? Are all “personal trainers” – tutorial programs – the same? Is a standard generic approach sufficient? What kind of personal access will I have to resolve my personal testing needs?

IV

TAKE SUFFICIENT TIME TO PREPARE FOR YOUR EXAM

In many ways, this is near the top of the core list of factors most critical to pass the bar. And many applicants, in my opinion, do not. The “culture” of the bar review industry is well-ingrained and generally promotes an 8-10 week preparation approach. While sufficient for some, it isn’t for others – where the “time-management playing field” is seriously impacted by work, family, and other commitments – in addition to a host of substantive and other test-taking needs affecting different strengths and weaknesses with individual applicants. Taking more time to prepare can be the great equalizer.

V

PLAY THE ODDS – BRING A BALANCED STRATEGY TO YOUR PREPARATION

Given the “total available net study hours” you have to prepare for the exam, work to apportion it in a balanced way given the proportionate value of each of the three sections of the bar toward your final scaled score. Overall, this means that you proportionately spend about 40% of your time for the essay, 26% of your time for the performance exam, and about 34% of your time for the M BE. There is always some variation, of course, given the emphasis you need to individually bring to each of the three sections of the exam. As noted earlier, avoid just working hard in spending an inordinate amount of time on substantive review – and not enough in the development of your other writing and multi-state skills given the nature of the bar as a timed test. Remember that your goal is to achieve a total of 1,440 points – optimally accomplished by doing well on all three sections of the bar. In contrast, “maxing out” on any one area more rarely makes up for a poor showing on another.

VI

KEY INGREDIENTS FOR SUCCESSFUL BAR PREPARATON

Although substantive review is one of the cornerstones for successful results, remember that the bar as a problem-solving speed exam requires competent but comprehensive analysis – and not just the regurgitation of information. You will not want to take the exam with the law committed to memory – but without the necessary techniques or practical experience that will work to outpoint your competition. Here, passing is definitely in the details. And common test-taking difficulties such as running out of time, conclusory analysis, the failure to identify more nuanced layers of issues – are symptomatic of the failure to integrate other ingredients into a balanced study mix. With this in mind, add these ingredients – beyond substantive review – to your bar review: (1) Technique: Whether through a formal program or not, learn those precise techniques for each of the three sections of the exam that will competitively challenge and elevate your test-taking skills. (2) The Application of Technique to Practice: Apply the techniques that you learn through increased practice to progressively “build” your testing skills and which will ultimately produce consistent passing standards. (3) Qualitative Review: This requires developing your perspective regarding the passing standards needed for your written and multi-state practice. As well, this means every exercise is a two-step process: Do it, but also qualitatively review it. When you see, for example, a professional golfer sink a 30 foot putt – you probably didn’t see the 1,000 practice strokes he made in perfecting his stroke – or in benefitting from a review of each attempt. Again: Do it, review it.

VII

DEVELOP FAITH IN YOURSELF AS YOU ENGAGE IN THE REVIEW PROCESS

Preparing to pass the bar is not a team sport – and so as important as your individual preparation to develop your skills and standards – are matters of the “heart and mind” in developing faith in yourself to succeed. These “intangible” factors are crucial in steadily building the self-assurance you will want to think and feel in actually performing on the exam. The pursuit of all great goals requires at least a little common sense: You must be sure to work hard, be disciplined, a good listener, and be willing to challenge old comfort zones that fail to adequately challenge your necessary passing standards in order to adopt new ones that will. Above all, however, be committed to pass the bar – and to do what it takes to do so – not just to take it.

VIII

LEARN FROM THOSE WHO HAVE CLIMBED THE MOUNTAIN BEFORE YOU

All applicants, to some extent, will have a bad day – but the key is to learn to adapt to your difficulties, fine-tune your skills, and do the little things that over time will yield positive results. The bar is really a test of competence – not perfection – so learn to objectively work at developing the test-taking standards that will lead you to success and avoid the excesses that will compromise your effort to do so. Consult with others – those who have been there before you – in helping to shape your healthy perspective about what it takes to put the bar behind you. And by the way, this includes those who may have passed with their first effort – and d3efinitely from those who did not.

IX

STUDY SMART

I have probably stated this in a number of ways before – but just to put the exclamation point on the idea – study smart. Yes, this means bringing balance to your preparation given the three sections of the exam, but work at translating this into a practical strategy based on your specific “net available study hours.” There is actually a formula for doing this – but in a nutshell this will afford you a better understanding of the “Real Concentration Time” (RCS) you will have to pass the test. This is crucial in knowing how many practice problems you will have time to do – in addition to configuring them in a strategy that will interdiscipline both your substantive and practical writing and MBE skills. It will also help you to reduce your anxiety – which is often the result of arbitrarily creating unreasonable goals not directly tied to your RCS.

X

BE HUNGRY

Gotta be. If your goal is to, figuratively, climb Mt. Everest – take no half-measures in understanding and committing to a day-to-day review regimen that will get you up the mountain. Understand your adversary, train appropriately, and be gently relentless as you work to reach the summit. In choosing to become a lawyer, you have chosen a road less traveled, but one well worth the investment in your time. Again, great goals require great effort.

I hope that your consideration of these ten factors adds to your informed perspective of what it takes to put the bar behind you. In another part of my life – having led four expeditions to Mt. Everest – I know that climbing to the summit of the planet requires knowing the mountain at all of its levels and then identifying and through experience perfecting all of the skills necessary to get the job done. Whatever your course of action, all the very best in “closing the circle” to put your bar behind you.

Have faith – you will do it!

Paul Pfau
CBTROnline.com
1-800-348-2401

© 2011 All Rights Reserved

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Manufacturer’s Motion to Dismiss

November 19th, 2011

MODEL BAR ANSWERS

Paul Pfau has supplied model answers to the Daily Journal Corporation for over 30 years. Here is a sampling of model answers for past bar questions, in order to give bar applicants a sense of the fundamental writing skills necessary to succeed. Although the Daily Journal may have edited the articles for space purposes, there are specific writing style methodologies that are incorporated into each of the examples. These are methods that bar applicants will learn in order to develop skills sufficient to produce passing standards under exacting timed conditions.

Manufacturer’s Motion to Dismiss

An analysis of Manufacturer’s (Mfgr) motion to dismiss Consumer’s (C) complaint is based on the following grounds as discussed below. In either federal or California jurisdictions an involuntary dismissal by the court may be granted if it is determined C failed to adequately prosecute his negligence and strict products liability claims against Mfgr.

Misuse

Mfgr will first contend that C’s injury was caused by her own misuse of the Cold Drink Blender (Blender) which was intended for mixing only cold substances. Mfgr will argue that the Blender did not contain a design defect – including the “removable cover” to prevent liquids from overflowing – because it was intended to be used for cold drinks and not the hot vegetable soup used by C. Mfgr will also assert that the brochure it supplied with its product adequately warned of potential injury if the Blender was used improperly. In this regard, the brochure specified that the Blender was “perfect for making all of your favorite cold drinks” – with examples of cold drinks cited – and included the admonition that the contents should not be filled “2 inches of the top.” Mfgr will also contend that C failed to show in her complaint that the addition of a “locking top” on the Blender to prevent spillage could have been achieved without serious impact on the Blender’s price or utility.

In her negligence cause of action, C will undoubtedly be able to prove that she was a foreseeable plaintiff and that Mfgr as a bailor owed her the special duty to warn of reasonably foreseeable dangerous defects associated with the use of its product. Mfgr will counter that the publication of its brochure noting the use limitation of the Blender for cold drinks was adequate warning – so that C’s misuse of the Blender should not be viewed as a breach of its duty. Although the “severe burning” resulting from the hot soup spillage was both the actual and proximate cause of C’s damages due to this injury, C will contend that the use of hot drinks in the Blender was reasonably foreseeable – and especially in view of the fact that Mfgr’s brochure did not expressly warn against hot drink usage. Mfgr will argue that C’s misuse of the Blender was also compounded by filling the Blender “to the top” with the hot soup – in spite of the brochure’s admonition not to do so. On balance, Mfgr’s motion to dismiss on a misuse theory should be denied given C’s reasonable prosecution of its negligence cause of action. Mfgr’s best argument, however, would be that C failed to assert in its complaint that the addition of a “locking top” on the Blender to prevent spillage could have been achieved without serious impact on the Blender’s price or utility – a necessary factor in establishing a manufacturer’s design defect in the use of its product.

For much the same reasons, Mfg’s motion to dismiss based on a misuse theory in C’s strict products liability cause of action should also be denied. As a commercial supplier, Mfgr was similarly under a duty to warn against potential design defects. C would also argue that Mfgr’s failure to expressly warn against hot drink usage – in spite of the usage specifications recited in the brochure – was both the breach and actual and proximate cause of her damages resulting from “severe burning.” As with the negligence cause of action, Mfgr would not be able to exculpate itself from liability for failure of Retailer to discover the potential manufacturing design defect involving the Blender lid to open.

Contributory Negligence

Mfgr’s motion to dismiss C’s negligence and strict products liability claims should also be denied based on a contributory negligence theory that C failed to exercise due care regarding the use of the Blender.

As discussed above, C’s prosecution of both theories is reasonable, and despite the fact there is substantial evidence she failed to exercise due care in following the usage specifications noted in Mfgr’s brochure by using a hot liquid and filling the Blender to the top. Ordinary contributory negligence, however, would probably fail to protect Mfgr where C merely failed to discover the potential defect associated with the Blender’s non-locking lid or where her misuse was reasonably foreseeable. This is a question of fact that should be determined at trial and which should not be granted through a motion to dismiss where C has a reasonable opportunity to prosecute each theory of liability. Although a comparative negligence theory may be a more effective defense for Mfgr in assessing proportional liability, the motion to dismiss should still be denied given C’s ability to prosecute her claim based on both theories of liability.

Government Safety Standards

A product’s noncompliance with government safety standards establishes in most jurisdictions that it is defective – while compliance with safety standards is only evidence that the product is not defective.

At best, given the compliance of the Blender with “design standards” requiring no locking mechanism as promulgated by the federal Consumer Products Safety Commission, Mfgr would only be able to argue that the evidence supported the result that the Blender was not defective in view of the fact there was no locking mechanism. C would be able to rebut this evidence, however, so that a motion to dismiss by Mfgr on this fact alone should be denied. Again, C could reasonably prosecute his claim based on either theory of negligence or strict liability – with the trier of fact determining the outcome.

Retailer’s Motion to Dismiss

Retailer’s (R) motion to dismiss C’s complaint based on the ground it did not participate in the manufacture of the Blender and that it should therefore not be held responsible for any defect in its design is examined below.

Any foreseeable plaintiff – such as Consumer – may sue any commercial supplier in the chain of distribution regardless of the absence of a contractual relationship between them.

Retailer would clearly qualify as a commercial supplier of the Blender – there is no evidence he is a casual seller – so that C may ultimately allege the negligence and strict products liability theories against R. R’s motion to dismiss should therefore be denied given C’s clear ability to prosecute her case against R as a commercial supplier of the Blender.
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This answer was provided by Cal Bar Tutorial Review who, for nearly 30 years, has been providing customized tutorial review preparation for California bar applicants. Cal Bar may be contacted through 800-783-6168 or 800-348-2401. Cal Bar’s website is www.cbtronline.com.

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