1. In this problem argue for a change in the law.

Your firm represents Amanda and Sam Baker, grandparents of two-year-old Brian Baker. Brian was recently injured in a home accident. The two-year-old stuck a hairpin into an electrical outlet and was severely burned. The parents had not installed safety plugs in the outlets because they felt the plugs gave a false sense of security. The plugs are easily removed and were not present in many of their friends' homes. The grandparents want to bring a negligence suit on the child's behalf against the parents.

Assume the Massachusetts Supreme Judicial Court has decided the following cases:

Sorensen v. Sorensen (1975) A child was injured when his father negligently caused an automobile accident. The court held that children could sue their parents but limited the holding to motor vehicle cases and limited the recovery to the amount of available insurance. For its reasoning, the court stated that neither the argument that such suits would disrupt the peace and harmony of the family nor the argument that such actions would tend to promote fraud and collusion was valid.

Lewis v. Lewis (1976) A wife was injured when her husband negligently caused an automobile accident. The court held that the wife could sue her husband but limited the holding to motor vehicle cases. The court did not limit the recovery to the amount of insurance, stating: "In the present case there is nothing in the record concerning the availability or the amount of the defendant's liability insurance, and we do not refer to insurance as a limiting factor in our holding. We do not interpret the logic (as opposed to the precise holding) of Sorenson as turning on the availability of insurance in each case, and we decline to limit liability in interspousal tort actions in such a fashion." The court cited Sorenson with approval as standing for the proposition that such suits would not disrupt the peace and harmony of the family or tend to promote fraud and collusion. Finally, while acknowledging that some actions that would constitute torts between strangers might not constitute torts if committed between spouses, the court based its decision on the general principle that normally there should be recovery for tortious injury.

Brown v. Brown (1980) A wife was injured when she slipped on the front steps that her husband had forgotten to salt. The court held that the wife could sue her husband. The court reasoned that while certain behavior between spouses might not be tortious, that was for a trial court to determine at trial, and the case should not be dismissed as a matter of immunity.

Based on the prior case law develop arguments both for and against the child's being able to sue his parents for negligence.

2. In this problem show how your case fits with established law.

Your firm represents the Gilberts. Last week the Gilberts went out to dinner at a fashionable lakeshore restaurant. After dinner, they decided to take a stroll down a boardwalk that leads from the restaurant out onto a pier. The walkway was not lighted. About halfway down the pier, Ms. Gilbert stepped on a board that gave way due to dry rot. She fell and was seriously injured. About five years ago the restaurant, which owns the pier, decided it was too expensive to keep up with the necessary repairs and had done nothing to maintain the pier since. The restaurant owners posted a sign near the entry to the pier that said "Danger."

Assume the Nebraska Supreme Court decided the following case:

Weiss v. Autumn Hills (1986) One night the plaintiff, a tenant in the defendant landlord's apartment building, was walking across the unlighted grassy area adjoining the patio of her street-level apartment. Although there was a sidewalk leading to the parking lot, taking the sidewalk took longer than cutting across the grass, and many people chose this shorter route. The area was eroded due to water falling from a defective rain gutter. The plaintiff stepped in a rut covered by weeds and fell. The landlord was found negligent.

Based on the Weiss decision, will your client be able to show that the restaurant was negligent? List all the factual similarities that make you think the restaurant might be negligent. Then list all the factual differences that make you think the restaurant might not be negligent. Decide which of the factual differences or similarities are most important and why.

3. In this last problem base your analysis on a statute and a case interpreting that statute.

Assume you have a client, Jack Brilliant, who has been charged with violating the National Motor Vehicle Theft Act. Last weekend a friend of his, Sam Slick, told your client that he had just acquired a new motorboat but that he did not know how to run it. He asked your client if he would go out for a ride with him on the Connecticut River and show him how to drive the boat. Your client agreed. They left from a marina in Massachusetts and headed south with your client at the wheel. Soon after they crossed the Connecticut border, they were flagged down by the marine patrol and arrested. Apparently, Sam had stolen the motorboat.

Based on the language of the statute and the McBoyle decision (p. 205), what are the arguments that your client should be convicted of violating the National Motor Vehicle Theft Act? What are the arguments that he should not be convicted?

Chambers v. Maroney

399 U.S. 42 (1970)

Mr. Justice White delivered the opinion of the Court.

The principal question, in this case, concerns the admissibility of evidence seized from an automobile, in which petitioner was riding at the time of his arrest after the automobile was taken to a police station and was there thoroughly searched without a warrant. The Court of Appeals for the Third Circuit found no violation of petitioner's Fourth Amendment rights. We affirm.

I

During the night of May 20, 1963, a Gulf service station in North Braddock, Pennsylvania, was robbed by two men, each of whom carried and displayed a gun. . . . Two teenagers, who had earlier noticed a blue compact station wagon circling the block in the vicinity of the Gulf station, then saw the station wagon speed away from a parking lot close to the Gulf station. About the same time, they learned that the Gulf station had been robbed. They reported to police, who arrived immediately, that four men were in the station wagon and one was wearing a green sweater. [The station attendant] told the police that one of the men who robbed him was wearing a green sweater and the other was wearing a trench coat. A description of the car and the two robbers was broadcast over the police radio. Within an hour, a light blue compact station wagon answering the description and carrying four men was stopped by the police about two miles from the Gulf station. Petitioner was one of the men in the station wagon. He was wearing a green sweater and there was a trench coat in the car. The occupants were arrested and the car was driven to the police station. In the course of a thorough search of the car at the station, the police found concealed in a compartment under the dashboard two .38-caliber revolvers . . . and certain cards bearing the name of Raymond Havicon, the attendant at a Boron service station in McKeesport, Pennsylvania, who had been robbed at gunpoint on May 13, 1963. . . .

II

We pass quickly to the claim that the search of the automobile was the fruit of an unlawful arrest. Both the courts below thought the arresting officers had probable cause to make the arrest. We agree. . . .

In terms of the circumstances justifying a warrantless search, the Court has long distinguished between an automobile and a home or office. . . . [A]utomobiles and other conveyances may be searched without a warrant in circumstances that would not justify the search without a warrant of a house or an office, provided that there is probable cause to believe that the car contains articles that the officers are entitled to seize. . . .

On the facts before us, the blue station wagon could have been searched on the spot when it was stopped since there was probable cause to search and it was a fleeting target for a search. The probable-cause factor still obtained at the station house and so did the mobility of the car unless the Fourth Amendment permits a warrantless seizure of the car and the denial of its use to anyone until a warrant is secured. In that event, there is little to choose in terms of practical consequences between an immediate search without a warrant and the car's immobilization until a warrant is obtained.10

Affirmed.

CASE DISCUSSION QUESTIONS

1. What was the Court's holding?

2. Do you think that holding hurts or helps Mr. Benson? Why?