PMBR Question #67 from the 3-day workshop:
Bunky was a 15-year-old who was rather big for his age. He was six feet tall and weighed about 200 pounds. On Halloween night, Bunky decided to dress up as a bank robber. His costume consisted of a black raincoat, a ski mask, and a toy pistol which resembled a real gun. He went to a number of homes in his neighborhood and when a person opened the door, he would hold up his gun, shoot a few blanks, and say, "Your money or your life... trick or treat."
At about 9:30p.m. Bunky went to the home of Mrs. Wrinkles, a 78-year-old widow, who lived alone. When Bunky rang the doorbell, Mrs. Wrinkles opened the door. Bunky then pointed the gun at her face and said, "Your money or your life." Before Bunky could finish his sentence, Mrs. Wrinkles quickly closed the door. She retreated to her living room, sat down on a chair, and suffered a non-fatal heart attack.
If Mrs. Wrinkles asserts a claim against Bunky to recover damages for her heart attack, she will:
(a) recover, because he committed an assault.
COMPARE WITH...
Barbri Question- MDR, Mixed Subjects #89
On Halloween night, Darryl, who is 12 years old, dressed up as a bandit by wearing dark clothes and a pair of panty hose over his head and went trick or treating. Darryl carried a toy gun that looked like a real firearm. Darryl's method of operation was to go up to a house and ring the bell. When the person answered, he pointed his toy gun at the person's face and said, "Your money or your life," and then shouted, "Trick or Treat!" At the fifth house he went to, Darryl began this routine, but before he could say "trick or treat," Patty, the elderly homeowner, screamed and slammed the door in Darryl's face. Still shaken by the experience, Patty suffered a heart attack five minutes later.
Has Patty a cause of action against Darryl?
(d) No, because Patty should have known that the gun was a toy since it was Halloween.
I just typed out both questions in their entirety, hoping I would spot the difference. Is anyone seeing it?
I tend to agree with the Barbri explanation because a reasonable person wouldn't have been afraid since it was Halloween. But PMBR says nothing about basing this on a reasonableness test.
Ugh. ugh. ugh.
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8 comments:
The PMBR dude explained that. I can't recall exactly - but he said that it was like a big kid (looks like an adult) with realistic gun v. little kid (clearly in costume) with toy gun.
I consider myself a reasonable person and that would freak me out. Little kid or not. Either way, I can see the confusion. Lame.
No joke, I was just complaining to my husband that I think PMBR gives out wrong answers. It doesn't make sense that the Barbri answers make sense, and I get them right and they ask THE SAME questions in PMBR but with completely different answers. I'm with you on this one. My lawyer friends keep telling me to stop doing PMBR.
There is this little rule on the Restatements for just this situation (dont bother looking it up): On Halloweeen, when a kid goes trick or treating, and points a toy gun at an old woman, generally, the old woman has no claim against the child for assault, because her fear is not reasonable, unless the child specifically demands money, in which case her fear *is* reasonable, and the child becomes fully liable.
Urr...oops (lol). I should also add that to have a claim, the old woman's last name must start with a W.
Thanks Biff. That totally clears it up. I will spend the next 5 days committing that rule to memory : )
I think PMBR is full of crap.
Explain to me why loosing a rat on an old lady at a soda fountain counter is not IIED? Vulnerable defendants include the elderly...
or - this is my favorite- continuing trespass:
somewhere in the first 100 someone steals skis. He breaks them and returns one of them. Im not much of a skier but I think that counts as conversion.
But, PMBR tells us, clearly NOT larceny.
Then in the 180s, we get the janitor who borrows the necklace for his shady girlfriend. THis is larceny. Lesson? People who ski don't get charged with larceny, janitors do?
I ask PMBR guy. He says well, none of them is right, you just have to know to go with this one because its least wrong. Huh? Then he tells me to stop making this more difficult than it has to be. HUH? IIIIII am making this difficult?! I didn't decide that every state would have a different bar. I didn't instutionalize a caste system for crimes. I didn't write your stupid questions or your even stupider answers.
Maybe these explanations will help...I got the same wrong answer with you by the way. But here is how I think the correct answer could be justified.
1) Rat question. It could be IIED. I would put that on my complaint if I were her. But, under the circumstances, strict liability will be the best because once you show that the rat is a wild animal, you don't have to do anything else. IIED has other elements that you must prove, which requires more facts and arguments. A trier of fact could differ on IIED, but they can't under strict liability.
2) No larceny for the ski because the guy never intended to keep the skis. Yes, it's conversion, but it's not his intent to keep it. He just destroyed it. (As an owner I would be pissed, but remember, you have to be objective on the test.)
3) The janitor took it and he intended to keep it.
One thing I learn is to suspend my legal skill on the MBE because you are the cold-hearted judge not the attorney. Don't argue for the parties, if the facts fit the law. Good that's the answer, if it does not, it's not. No "what if" or "I would do" or "how I would argue"
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