Reference no: EM133400864

Assignment:

1. It is not always easy to know whether something is a question of fact or a question of law. In fact, there have been cases when the issue on appeal was whether something was a question of fact or a question of law. That question is itself a question of law. To see how that can happen, assume there was a negligence trial in which a grocer was sued when a customer slipped and fell. The customer testified that she slipped on a banana peel in the produce section. The grocery store owner testified that when he came to the assistance of the customer, there was no peel on the floor. One of the store employees also testified that he had mopped the floor in that area just five minutes before the accident and that there were no banana peels on the floor.

Nonetheless, the jury found the store liable. Can the store appeal on the grounds that it was telling the truth and the customer was lying? No. Why? Because that is a question of fact, and factual determinations generally cannot be appealed. But can the store appeal on the grounds that the jury should not have found that it acted negligently because even if there was a banana peel, such hazards are to be expected in the produce section and the store had done all it could to make the area safe? Is that issue-that is, whether the store acted as a reasonable store should-a question of fact or a question of law?

2. In which of the following cases do you think the losing party has a valid basis for appeal? Why?

a. A prosecutor commented on a defendant's failure to take the stand in his own defense. His attorney argued that this violated his client's constitutional right to remain silent. The defendant was convicted.

b. The prosecutor introduced evidence to show that the defendant purposely set fire to his neighbor's garage. This included testimony by the fire chief and a forensic scientist who had examined the remains of the burned building. The defendant took the stand and claimed that the fire was an accident. The jury convicted the defendant of intentionally starting the fire.

c. John signed a will in front of two witnesses. The will made no provision for his son, Jimmy. When John died, Jimmy contested the will, arguing that his father was not of sound mind. At the trial, the two witnesses present at the signing testified that John had been legally competent when he signed the will. The court found that the will was valid.

d. June was walking her miniature poodle, Suzy, in her front yard. Suddenly a German Shepherd leaped over the fence and bit Suzy several times, killing her. June was distraught and sued the owner of the German Shepherd for $30,000 for her pain and suffering. The trial judge dismissed the case, stating that as Suzy was property, the most June could recover was the cost of a new dog.