kap review 1 Flashcards
Admitting the diary when it did not refresh the recollection
In this question, the plaintiff in a civil case is attempting to offer information contained within a diary admitted at trial. The plaintiff is attempting to offer the diary because the plaintiff was unable to remember details surrounding air pollution she claims has led to her suit against an industrial facility. The diary is an out-of-court statement, and therefore inadmissible unless a hearsay exception is applicable. Rule 803(5) admits a record that: (1) is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately; (2) was made or adopted by the witness when the matter was fresh in the witness’s memory; and (3) accurately reflects the witness’s knowledge. Here, the plaintiff was previously aware of these details, but has since forgotten. The plaintiff noted these details in her diary, which she testified to maintaining accurately. The basic elements have been satisfied. Additionally, however, Rule 803(5) lays out what and how the previously known, but currently forgotten, information is introduced. If admitted, the record may be read into evidence, but may be received as an exhibit only if offered by an adverse party. Therefore, the plaintiff should have the diary read into the record, but cannot offer the diary as an exhibit. Answer (D) correctly describes this process.
Testimony about plaintiff’s reputation in the community as a thief
In slander cases, where the defendant makes a statement that the plaintiff has an unsavory character, the plaintiff’s character is considered “in issue” (i.e., an essential element of the claim or defense under the substantive law) in two respects: First, the plaintiff’s actual character will determine whether the defendant was incorrect in his assessment, and thus liable for slander, because truth is a defense. Second, the plaintiff will allege that he has been damaged by the statement, which is another way of saying that his true character has been besmirched; but if the plaintiff actually has a bad reputation anyway, then damages are limited. Thus, in slander cases like the one in this question, character evidence is relevant both to whether the plaintiff has a certain character and to the extent of damages. Under Federal Rule of Evidence 405, when character is “in issue” it can be proved by evidence of reputation, opinion, or specific acts.
Dying declaration
While the declarant does not have to die for a statement to be admissible as a dying declaration under Federal Rule of Evidence 804(b)(2), this statement fails to satisfy that exception for at least two reasons. First, the declarant has to be unavailable, as the dying declaration is one of the “unavailability-dependent” exceptions of Rule 804. Here, the victim testified and so obviously is not unavailable. Second, a dying declaration is admissible only in homicide prosecutions and civil cases. This is a criminal case for aggravated assault.
The witness has testified that she knows about the defendant’s reputation. The prosecutor has the right to test the basis and adequacy of that knowledge, as well as the nature of the community itself. If the witness answers that she had not heard about the arrest, that admission could indicate that she is not very knowledgeable about the defendant’s reputation in the community, because such an arrest would likely have a negative effect on that reputation. If the witness says that she had heard about the arrest, a negative inference could be raised about the community itself and its view of what it is to be an honest person.
The witness has testified that she knows about the defendant’s reputation. The prosecutor has the right to test the basis and adequacy of that knowledge, as well as the nature of the community itself. If the witness answers that she had not heard about the arrest, that admission could indicate that she is not very knowledgeable about the defendant’s reputation in the community, because such an arrest would likely have a negative effect on that reputation. If the witness says that she had heard about the arrest, a negative inference could be raised about the community itself and its view of what it is to be an honest person.
Daubert test
The elements of the Daubert test are: (1) has the theory been tested? (2) general acceptance in the relevant community; (3) peer review regarding the scientific theory; (4) degree or rate of error; and (5) standards. Whether or not there has been a third-party publication of findings is not a factor under the Daubert test.
Confrontation clause based on Crawford
Under the Sixth Amendment’s Confrontation Clause, in a criminal case where the declarant is unavailable, testimonial hearsay statements will be inadmissible unless the defendant is or was given an opportunity to cross-examine the declarant. In determining whether the statement is testimonial in nature, the court will not consider whether the admissibility of the statement offends the interest of justice as a factor.
hot pursuit search for evidence
If police have probable cause, they may search without a warrant when they reasonably believe that waiting to obtain a warrant would result in the imminent flight of the suspect, imminent destruction of evidence, or imminent danger to police or others in the area. When police are in “hot pursuit” of a suspect with probable cause to arrest them, exigent circumstances allows them to enter any home the suspect retreats into without a warrant–even the home of a third party. This fact pattern falls under the “hot pursuit” exigent circumstance exception that would allow a warrantless search.
The defendant must show that the unreasonable search or seizure violated the defendant’s personal constitutional rights. The defendant may not vicariously assert someone else’s rights.
The defendant must show that the unreasonable search or seizure violated the defendant’s personal constitutional rights. The defendant may not vicariously assert someone else’s rights.
implied easement by necessity
The man then conveyed the rear half of the land to the investor, whose land is now landlocked. An easement by necessity is implied for the benefit of the landlocked parcel at the moment of severance of the common ownership. The fact that the neighbor has offered to sell the investor a right of access is irrelevant.
Restrictive covenant and marketability of title
A right held in the land by a third party, such as the right to enforce a restrictive covenant, renders the title unmarketable,
A deed to a nonexistent grantee
A deed to a nonexistent grantee, such as a corporation that has not yet been legally formed, is void. At the time the businesswoman attempted to convey the land to the corporation, the corporation had not yet been legally formed, so the deed was void.
Deed restraints on transfer
Restraints on transfer are void as a matter of law because they are against the public policy of letting landowners sell their property. Consequently, the attempted restraint on transfer was not a title defect that could stop the sale.
Adverse possession and subsequent transfers
The woman acquired title to the farm by adverse possession. The woman’s title was an original title and did not derive from the man’s title. The statute of frauds requires that the conveyance of the farm be in writing. Therefore, the woman’s oral statement was insufficient to release the title to the man, and the woman validly conveyed the farm to her son. Having established title to the farm by adverse possession, there is no requirement that the woman sue to establish title. Therefore, she could convey the farm to her son.
Voluntariness with police informant
Whether a statement is made “voluntarily” depends on the totality of the circumstances which considers the individual characteristics of the defendant (age, sex, race, mental conditions) and the nature of the police conduct. Where a confession is obtained by using a credible threat of force, the courts have held that the circumstances are sufficiently coercive to undermine a claim of voluntariness. Here, the informant was used to convey a credible threat of violence and so the confession was not voluntary.
May grand jury consider illegally seized evidence
The Supreme Court made clear in United States v. Calandra [414 U.S. 338 (1974)] that a grand jury may consider illegally seized evidence in arriving at a finding of probable cause to return an indictment against a defendant.
Right to a jury trial and to an attorney
The right to a jury trial attaches in any criminal proceeding where the defendant faces a potential sentence of longer than six months. Because the maximum imprisonment for the defendant here was seven months, the defendant would be entitled to a jury trial. The right to counsel applies to all defendants charged with an offense for which imprisonment is imposed, whether classified as petty, misdemeanor, or felony. However, if the offense is a misdemeanor, the constitutional right to counsel applies only if imprisonment is actually imposed. An accused charged with a misdemeanor who has not waived the right to counsel and is not represented by an attorney is not subject to imprisonment. Accordingly, the judge’s instruction was incorrect with respect to both the right to a jury trial and the right to counsel, because the defendant was subject to more than six months’ imprisonment and an actual jail term was imposed.
Breaking
To commit a “breaking,” it is not required that a defendant go through a locked door or physically damage the property; any enlargement of an opening will suffice. Thus, the pushing up of the window constitutes a breaking, and the client will not escape liability for burglary on the grounds that he reached in through an unlocked window.
Conspiracy, withdrawal, and foreseeability
The oldest friend’s actions constituted a withdrawal from the robbery, which prevents him from being liable for the subsequent murder. However, his actions would not be a defense to the crime of conspiracy. Conspiracy is an agreement between two or more persons to achieve to achieve a criminal objective. Most states also require an overt act in furtherance of the conspiracy. Accordingly, each conspirator is liable for the crimes of all the other conspirators if the acts were in the furtherance of the conspiracy and foreseeable. Thus, the oldest friend cannot withdraw from the conspiracy because all of the elements have been met. However, his withdrawal would cut off any liability for crimes committed subsequent to that, including the robbery and death of the victim here.
Right to counsel and identification
The right to counsel attaches at the initiation of adversarial proceedings. The Supreme Court has held that the right to counsel attaches when a defendant is arraigned [Moore v. Illinois, 434 U.S. 220 (1978)]. Once the right to counsel attaches, the defendant has a right to counsel at all critical stages of the criminal proceedings, including identifications [Kirby v. Illinois, 406 U.S. 682 (1972); United States v. Wade, 388 U.S. 218 (1967)]. When the suspect was arraigned, his right to counsel attached. However, his counsel was not present at the show-up identification in the husband’s hospital room. As a result, the husband’s identification is inadmissible because the identification procedure violated the suspect’s Sixth Amendment right to counsel.
Search of bystanders during warrant execution
When police execute a search warrant, they are entitled to search the person named in the warrant or the premises identified in the warrant, as well as any other person that is arrested. A person unnamed in the warrant may not be searched merely because of his presence at the search location; there must be an independent justification for the search of a person unnamed in the warrant, such as that person’s arrest or consent. Here, the customer was unnamed in the warrant and there was no independent basis to search him, because he was not arrested along with the barber. For example, the search was not incident to a lawful arrest of the customer. Since the search of the customer was beyond the scope of the warrant being executed at the barbershop, the court will suppress the evidence seized from the customer.
Failure to deny an allegation in complaint
For each allegation, the defendant should specifically admit or deny. If there is a failure to deny, it is deemed admitted.
Civ Pro Numbers Game 1
6
10
14
21
6 - need at least 6 jurors to start and finish a civil trial
10 - depositions per party as a matter of right
14 - days from the last responsibe
14 - days default duration of a TRO
21 - days to amend a complaint as a matter of right
21 - days to respond to a complaint
21 - days to fix a Rule 11 problem before sanctions
Civ Pro Numbers Game 2
25
28
30
60
90
25 - interrogatories as a matter of right for each party
28 - days after losing a lawsuit to move for a new trial
28 - days for renewed motion for judgment as a matter of law (Rule 50)
30 - days to appeal after losing at trial
30 - days to remove after removal becomes possible
60 - days to answer a complaint when defendant waives service of process
90 - days to answer a complaint when defendant waives service of process and is foreign
90 - days to serve the complaint after filing the lawsuit
90 - days to disclose experts who will be used at trial
Objections to the jury charge
:Federal Rule of Civil Procedure 51(c)(2) governs the timeliness of objections to the jury charge. Objections have to be made both: (1) before closing arguments; and (2) before the instructions are read to the jury. When, as here, the court informed the parties of the proposed instructions before the jury was charged and final jury arguments were given, the party had to object at that time. The plaintiff in this case did not object until after the charge had been given and thus the objection came too late.
Dismissal for failure to prosecute
If a plaintiff fails to prosecute his or her action or to comply with the Federal Rules or a court order, a defendant may move to dismiss [Fed. R. Civ. P. 41(b)]. A dismissal for failure to prosecute is a dismissal with prejudice, unless the dismissal order states otherwise. Congress has given to the federal courts subject-matter jurisdiction over appeals from all final decisions of the federal district trial courts [28 U.S.C. Sec. 1291]. A final judgment is generally defined as one that disposes of all issues as to all of the parties. Here, the dismissal with prejudice would act as a final order, giving the court of appeals jurisdiction over the case.
Juror’s implied bias
A lawyer may ask the court to excuse any juror for cause. There are three categories for such challenges: (1) general disqualification (such as a felony conviction or some other inherent disqualification); (2) implied bias (the attorney believes the juror may be biased); and (3) actual bias (the juror indicates during voir dire that he or she would decide the case based on predetermined beliefs or values). The first three jurors have been excused based on actual bias. The fourth juror has exhibited an implied bias. As such, the attorney may request that this juror be excused as well.
Motion for JMOL
Within 28 days after the entry of judgment, a party who has timely moved for judgment as a matter of law (JMOL) may serve a motion to set aside the verdict and any judgment entered on the verdict [Fed. R. Civ. P. 50(b)]. However, the court may not entertain a renewed motion for JMOL unless a motion for JMOL was made during trial.
Search of the entire house incident to lawful arrest
A search incident to a lawful arrest may include a cursory scan or “protective sweep” of adjoining rooms, but in order to search the entire domicile (as here), the officers must have a reasonable suspicion that an armed accomplice is on the premises [Maryland v. Buie, 494 U.S. 325 (1990)]. Here, there is nothing in the facts to suggest that the police could have had a reasonable suspicion that an armed accomplice might, in fact, have been present in the house. Therefore, the constitutional search was limited to a cursory scan of adjoining rooms. The search of the “entire” house violated the doctor’s Fourth Amendment rights. (Had the search been lawful, the evidence would have clearly qualified for the “plain-view” exception to the warrant requirement.)
Plain view doctrine
Two requirements must be met in order for the plain-view doctrine to justify a warrantless seizure of property, as follows: (1) the police must be lawfully positioned; and (2) it must be immediately apparent that the evidence is incriminating [Coolidge v. New Hampshire, 403 U.S. 443 (1971)]. Here, the spot of blood satisfies the elements, but the discovery of the knife does not.
Accomplice and arrest warrant
When police execute an arrest warrant at a suspect’s home, the arrest warrant provides implicit authority to enter the home and search for the suspect to effectuate the arrest if police reasonably believe the suspect is in the home and refuses to answer the door. If the suspect is the only person police believes is in the home the scope of such a search is limited to looking for the suspect, and it terminates when the suspect is located and arrested. However, when police have reasonable suspicion that others in the home may pose a threat to them, they are authorized to conduct a cursory “protective sweep” of the home to rule out this risk. This allows them to look in locations where such a person may be, and any contraband that comes into plain view while acting within that limited scope may be seized. In this question, the officers entered the home lawfully to execute the arrest warrant. However, the reference to an “accomplice” to a series of armed robberies indicates the officers reasonably believed that: (1) the accomplice would be in the home with the suspect; and (2) the accomplice could be armed and threaten the officers in an effort to prevent their efforts to arrest the suspect. Accordingly, they were authorized to conduct a cursory protective sweep. Because the officer who found the contraband was looking in a place where the accomplice could be hiding, the contraband was discovered within the scope of the protective sweep. Because what the officer saw created immediate probable cause it was contraband, the seizure of the cocaine was lawful pursuant to the plain view doctrine.
Robbery and the use of force
Robbery at common law was the commission of a larceny by the use of force or threat of force beyond the amount of force needed to merely take the property. The common elements of the offense are: (1) the taking of the property of another (2) from his or her person or in their presence (3) by violence, intimidation or threat (4) with the intent to deprive them of it permanently. A perpetrator is not required to use significant force, or extreme threats, in order to commit a robbery. All that is required is the amount of violence or fear necessary to cause the victim to give up his or her possessions. But it is also required that the force or threat be part of the theft transaction, which means if it is necessary to use force or threat to effectuate the unlawful taking and carrying away the force element of robbery is satisfied. Here the facts indicate defendant pushed the victim in order to effectuate the unlawful taking, and thus while he was doing so to “get away” he was also doing so to commit the larceny. Therefore he is guilty of robbery.
Enhanced sentence burden of proof
The Supreme Court established that due process requires the prosecution (state) to prove any fact triggering an enhanced sentence beyond a reasonable doubt, and if the defendant is entitled to a jury trial (and does not waive that right) a jury must make the finding that this enhancement was proven beyond a reasonable doubt. All other answers are inconsistent with this due process standard.
Merger of solicitation into conspiracy
Conspiracy is an agreement, express or implied, between two or more people to commit a crime or a lawful act by unlawful means (like fraudulently obtaining a mortgage). Conspiracy normally requires proof of an overt act that establishes planning to commit the crime had actually begun. Although the defendant did solicit his co-conspirator to commit the murder, that solicitation merges into the conspiracy and is not a viable offense once that merger occurs. All the elements of conspiracy are therefore established by these facts. Unlike solicitation and attempt, conspiracy does not merge with the completed crime, even if that crime is the direct object of the conspiracy. However, the solicitation of the murder is evidence that makes the defendant an accomplice to the murder: he intended that crime occur and his solicitation was the act of facilitation. This means the defendant is guilty of the murder as if he committed it. the defendant is also guilty of the murder through conspiracy liability: co-conspirators are guilty of all crimes that are foreseeable outgrowths of the agreement in furtherance of the agreement. Because the murder was both foreseeable and in furtherance the defendant is guilty of that crime as if he committed it.
Deposing a non-party witness
Under Fed. R. Civ. P. 30(b), a party who wants to depose a person by oral questions must give reasonable written notice to every other party. Each party is entitled to attend any deposition and ask questions on cross-examination.
Product liability defendants
In a products liability case, commercial suppliers at all levels of the distribution chain and those in the market of selling the product–including the manufacturer, wholesaler, and retailer–are considered proper defendants. However, occasional sellers and those supplying services are not.
The concerned citizen was acting under the direction of a government agent
The concerned citizen was acting under the direction of a government agent, and therefore, her search of her friend’s computer was governed by the Fourth Amendment. The concerned citizen obtained permission to use the computer to check her email. When the concerned citizen’s friend agreed, it was for that limited use. Consent as a defense to a charge of illegal search has three elements: (1) the consent must be unforced and the result of an informed decision; (2) the search must not exceed the scope of the consent; and (3) the consenting party must have authority to consent. In this case, the friend had no reason to know that a search was going to be conducted, so her consent was by trick. Furthermore, the consent to use the computer was for the concerned citizen to check email. The citizen’s search for secret files exceeded the scope of her permission to use the computer. As such, the search was illegal, and the evidence will be suppressed.
Unilateral theory of conspiracy
The Model Penal Code applies the unilateral theory of conspiracy, which holds that a defendant can be found guilty of conspiracy regardless of whether other persons were true to their words of intent. As such, this answer choice is correct.
Duty to charge reasonable fees
The Georgia Rules of Professional Conduct mandate that a lawyer’s fee be reasonable, and several factors are enumerated that help determine reasonableness. One factor is the customary fee in the local area. Under that factor, the lawyer’s fee here seems unreasonable because it is double what lawyers customarily charge for representation of creditors. However, another factor is the likelihood that, if the lawyer accepts this employment, she will be precluded from accepting other legal employment. These facts clearly show such a situation. In this case, the lawyer would have preferred to work for the debtor and, if she worked for the creditors, she would lose her ability to do so. Note that another factor that may affect the reasonableness of a fee is the lawyer’s skill. Here, the lawyer has a reputation for being “the best,” and that also helps to justify this higher-than-normal fee. Under the totality of the circumstances, the lawyer’s fee is reasonable, and she will be able to recover the entire fee.
Lawyer referral fees to other lawyers
The Georgia Rules of Professional Responsibility distinguish between a division of fees between two lawyers not in the same firm who work on a case together and referral fees (payments not based on the referring lawyer’s work on the matter). Referral fees are not permitted in Georgia unless each lawyer assumes joint responsibility for the representation and the client gives written consent. As such, the two lawyers’ conduct violates the Georgia Rules of Professional Conduct.
Disclosure to prevent harm
The Georgia Rules of Professional Conduct are somewhat different and, in this situation, more permissive than the Model Rules. They allow a lawyer to disclose information he reasonably believes necessary to prevent a substantial financial loss to a third party, even if the client has already taken the harmful action. The key is that the disclosure is permissible if the loss has not yet occurred. Here, although the client’s death makes it too late for the lawyer to persuade the client to right his own wrongs, the lawyer’s disclosure can prevent the losses by informing the victims what is about to happen to them before the estate’s funds are no longer available. Therefore, this is the correct answer under the Georgia Rules.
Conducting unrelated business with a client
Under the Georgia Rules of Professional Conduct, a lawyer may conduct business with a client only if the terms of the arrangement are fully disclosed to the client in writing, the client is given a reasonable amount of time to consult an outside lawyer, and the client gives his informed written consent. In this case, although the lawyer explained the terms to the real estate developer, the explanation was oral, not written. Therefore, even though there does not appear to be any abuse and all parties are satisfied with the transaction, the lawyer still violated the Georgia Rules of Professional Conduct.
Content neutrality when renting facilities
The city is infringing upon freedom of speech because it will only rent the facilities to groups who engage in non-religious speech and meet for non-religious purposes. The Supreme Court has struck down such a practice in Widmar v. Vincent [454 U.S. 263 (1981)]. In the Widmar case, the Court held that a state university ban on the use of its public meeting facilities for prayer and religious discussion by student groups violated the “fundamental principle that a state regulation of speech should be content-neutral.” Government regulations that discriminate against the content of speech must be necessary to advance a compelling government interest. While conceding that the government has a compelling interest in avoiding a violation of the Establishment Clause, the Court in Widmar held that an equal access policy would not have a purely religious purpose, a primarily religious effect or excessively entangle religion in violation of that clause. Thus, the city ordinance here would be struck down because it discriminates on the basis of the content of speech, and the discrimination does not serve any compelling government interest.
Easement by necessity beyond maintenance and repair
The developer has an implied easement by necessity, since there is no other access to the property. (In this case, there was some use of the road before the properties were divided, so “strict” necessity is not required.) The owner of an implied easement has a limited right to upgrade the easement and generally may not develop or upgrade it beyond the reasonable contemplation of the parties at the time the property was divided. This choice is correct, because the daughter sold the land to the developer knowing that it would be used for townhomes and that the homeowners would need access to the public road. It was thus reasonably within the contemplation of the daughter and the developer that the road would eventually need to be paved.
Assigning un-assignable contracts
As a general rule, all contracts are assignable and delegable except personal service contracts and long-term requirement contracts. Even though there may be an anti-assignment provision in a contract, it does not prevent the assignor from assigning his rights. When an assignor makes an assignment in violation of an anti-assignment clause, the assignment is valid. However, the obligor does have a cause of action against the assignor for breach of contract (but ordinarily, damages will be nominal). Because the contract here specified that delivery was “F.O.B. seller’s place of business,” the risk of loss passed from the seller to the buyer as soon as the seller placed the chairs in the hands of the carrier for shipment. As such, the buyer bore the risk of loss, and the friend will be able to claim the entire contract price from the buyer.
Defamation of a public official
Defamation of a public official requires the plaintiff prove that the defendant acted with actual malice: intentional knowledge of falsity or a reckless disregard of the truth. Negligence–which is what is present in this case–is insufficient as a First Amendment matter to impose liability [New York Times v. Sullivan, 376 U.S. 254 (1964)].
Miranda violation statements
Once Miranda warnings have been given, a defendant who has requested an attorney may not be further questioned until either counsel is furnished or the defendant voluntarily initiates a discussion. Here, given that the man asked to speak with an attorney before he answered the officers’ questions and that he did not voluntarily initiate the subsequent discussion, the officers in fact violated the man’s Miranda rights when they questioned him further about his accomplice. As such, the information the officers obtained would not be admissible to prove that the man had worked with that particular person to commit the burglaries. However, although statements taken in violation of Miranda rights may not be used substantively, they may be used to impeach a testifying defendant. Thus, once the man took the stand and testified that he did not know anything about who had committed the burglaries, he opened the door for the prosecutor to introduce his prior statement for purposes of impeachment.
Defamation
This same defamation issue has been tested on the MBE. It is important to remember that the defamatory meaning of a statement must be communicated. Thus, the utterance must be understood by the third person. In general, words spoken in a foreign language will not be actionable unless they are heard by someone who understands that language and what was said. Because the first woman did not understand the voicemail, which had been left in Spanish, this is the best answer choice.
Substantial alteration by a mechanic
Answer (B) is correct because the accident was the result of the mechanic’s alteration of the product, not the result of negligence by the manufacturer or a defect that was in the product when it was sold. This question mirrors the facts of Pichardo v. C.S. Brown Co. [827 N.Y.S.2d 131 (N.Y. App. Div. 2006)]. The manufacturer of a product can be liable under several theories, including negligence, strict tort liability, and breach of warranties. All of these theories are based on the premise that there was something wrong with the product when the manufacturer produced and sold it. The product may have been designed in a dangerous way, assembled improperly, or lacked adequate warnings. The manufacturer might be liable because it acted negligently, or it may be liable because the product was defective even though the manufacturer acted with reasonable care. But under any of these theories, the manufacturer is liable because there was something about the product that was flawed and dangerous. If there was nothing wrong with the product when it left the manufacturer’s hands, the manufacturer will not be liable merely because some third party later altered the product in a way that was improper and dangerous. Here, the snowblower was safe and worked properly until it was modified by the mechanic. The manufacturer attempted to warn people not to modify the product in that manner. It therefore would not be possible for the injured homeowner to show that the manufacturer was negligent, the product was dangerously defective when sold, or the manufacturer breached a warranty with respect to the product.
Attractive nuisance
For a condition on land to be considered an attractive nuisance, there must be evidence that the landowner has reason to know that children are likely to trespass, as well as evidence that the injured party did not appreciate the risk involved. No such evidence is mentioned in these facts; there is no suggestion that children often stray from the day-care center. The corporation should prevail, because the obviousness of the risk, buttressed by the warning signs, should have been appreciated by a “bright 12-year-old child.”
Privilege of necessity
Answer (C) is correct because under the privilege of necessity, a person in peril is entitled to use another person’s property to avoid a dangerous situation. Necessity means that there may be times when danger makes it justifiable for you to infringe on someone else’s property rights. For example, ordinarily you would be liable for trespassing if you entered another person’s property without permission. But if you ran across the property to escape an angry grizzly bear, you would not be liable for trespass because you acted out of necessity to save your life. If your infringement of the person’s property rights is done out of necessity, that person is not entitled to use force to stop you from using the property to save yourself. The situation in this question is somewhat similar to the famous old case of Ploof v. Putnam [71 A. 188 (Vt. 1908)], where a family was on a boat during a dangerous storm, and they tried to save themselves by mooring the boat to the defendant’s dock. The defendant’s servant drove them away, preventing them from using the dock, and they were injured when the storm destroyed their boat. The court held that the family acted out of necessity, and so the defendant was not entitled to prevent them from using his property and could be held liable for doing so. Likewise, the pilot acted out of necessity by making an emergency landing, so he would not be liable for trespass for landing the plane there, and the homeowner was not entitled to send his dogs to attack the pilot.
Negligent infliction of emotional distress
Answer (D) is correct because the widow could have a claim for negligent infliction of emotional distress. Many years ago, courts generally declined to let people recover on negligence claims where the alleged harm was emotional in nature. If someone had a physical injury, such as a broken leg, they could recover for that, including the emotional harm connected with the physical injury. However, damages for emotional harm alone, without an accompanying physical injury, could not be recovered. Courts eventually began to make special exceptions where they would hold someone liable for negligence causing emotional harm. One of those special exceptions was for situations involving the negligent mishandling of a corpse, so that people could recover if they were emotionally harmed by finding out that the dead body of a beloved family member had been negligently lost, damaged, or destroyed. Most courts eventually went further and created broader exceptions, allowing recovery where the plaintiff experienced some physical impact in the incident that produced the emotional distress, the plaintiff was in a place (a “zone of danger”) where there was a risk of being physically hit by something, or the plaintiff had physical manifestations or symptoms of the emotional distress. Many courts have now gone even further, allowing recovery for negligent infliction of emotional harm without special limitations or requirements. States thus have a variety of different approaches to negligent infliction of emotional distress claims. In most states, it would be possible to recover in the situation described by this question, either under a special exception for cases about negligent mishandling of corpses or under a broader rule that generally allows recovery for negligent infliction of emotional distress without special restrictions or limitations. It is reasonably foreseeable that the hospital’s mistake would cause the widow to suffer serious emotional distress.
Georgia per stirpes succession
Georgia follows a per stirpes intestate distribution scheme in which the decedent’s descendants take by right of representation. The primary division of the estate is at the first generation that has any living members. The right of representation allows the children or issue of an heir who predeceased the decedent to take their parent’s or ancestor’s share before and above anyone else, but the estate of a deceased heir with no descendants of his/her own does not take a portion of the decedent’s estate. In this case, the decedent has no spouse. The generation at which the decedent’s estate will be divided is the decedent’s children. The decedent has two living children and one deceased child who left his own heirs, so the estate will be divided into three equal shares. The living son and daughter each take one-third. The children of the deceased son take the deceased son’s one-third share by their right of representation, each getting an equal one-sixth of the decedent’s estate. Therefore, this answer is correct.
Georgia will two witness rule
Under Georgia law, a will must be written, signed by a competent testator, and signed by two or more competent witnesses. It is not necessary that the subscribing witnesses sign in the presence of each other; it is sufficient if each signs in the presence of the testator. In this case, the facts indicate that the testator signed the will and that both neighbors signed the will in front of the testator. The fact that the two witnesses did not sign in the presence of the other is immaterial. As such, the will was properly attested.
Georgia properly executed codicil
Georgia law requires that a will must be signed by at least two competent witnesses. In this case, the testator did not properly execute his will because only the uncle served as a witness. However, under Georgia law, a validly executed codicil validates an invalid will if the codicil refers to it with sufficient certainty to identify and incorporate it. In this case, the facts indicate that the testator properly executed the codicil and that the codicil specifically incorporated the will. Therefore, the codicil validated the testator’s will, and the uncle may be entitled to inherit under the will.
Georgia anti-lapse statute
At common law, a gift to a beneficiary in a will lapses (does not take effect) if the beneficiary dies before the testator does. However, under Georgia law, if a beneficiary is dead when the will is executed or otherwise dies before the testator, but has any descendants living at the death of the testator, the testamentary gift, if absolute and without remainder or limitation, shall not lapse but shall vest in the descendants of the beneficiary in the same proportions as if inherited directly from the deceased beneficiary under the intestacy laws of this state. Therefore, the GA anti-lapse statute will apply, and the gift to the testator’s niece will pass to the niece’s heirs.
Will destruction
A will may be revoked by physical destruction of the will by the testator or by a third party at the testator’s direction. In this case, the mother did not direct the neighbor to tear up the will and only threatened to disinherit her children. Therefore, the mother did not revoke her will and her assets should not be distributed as though she died intestate. Thus, this answer is correct.
Marriage after a will
When a testator has made a will prior to marriage but does not include in that will a provision in contemplation of marriage, the subsequent spouse will receive the share of the estate that the spouse would have received if the testator had died without a will (intestate). In this case, the man had a will that was executed prior to his marriage. The will did not include a provision in contemplation of the marriage. Therefore, his wife will receive the share she would have received if the man had died without a will. Thus, this answer is correct.
Seller to cure defect despite perfect tender rule
Section 2-601 of the Uniform Commercial Code creates the perfect tender rule, which provides that any goods at the time of delivery that do not conform to the contract may be wholly rejected, wholly accepted, or partially accepted. As such, the driver had the right to reject the car. However, Section 2-508 also allows a seller the right to cure the defect if the goods tendered are rejected at the time of delivery. Pursuant to this provision, the seller can notify the buyer that it intends to cure the defect and is permitted a reasonable period of time to do so. Here, because there was no stated deadline for the delivery of the car, the dealership is permitted a reasonable time to cure the problem with the car’s seats. As such, this answer best describes the parties’ rights as of December 14.
Rejecting nonconforming goods
According to UCC Section 2-602, notice of intent to reject nonconforming goods must be communicated within a reasonable time from their delivery. The store owner failed to inform the manufacturer that she was rejecting the shipment for well over three months, so the manufacturer is entitled to the full contract price.
Nonmutual issue preclusion
Issue preclusion prevents relitigation of issues that were fully and fairly litigated and were necessarily decided in a proceeding that reached a final judgment on the merits. Nonmutual issue preclusion is when a party seeks to prevent litigation of an issue that the other party has unsuccessfully litigated before a different party. If the two claims were brought in two different jurisdictions, the issue of what law to apply arises. If the first case was decided in a state court, the second court will apply the preclusion rules of the first court. This is true whether the second court is a state or federal court. Consequently, because the first court applied the rules of State A, the second court will not allow nonmutual issue preclusion.
Stipulated jury size
Generally, “a jury must begin with at least six and no more than 12 members” [Fed. R. Civ. P. 48(a)]. However, parties may stipulate to a verdict returned by less than six jurors [Fed. R. Civ. P. 48(b)]. Here, because the parties stipulated to a verdict from a five-person jury, the court should not grant the man’s motion.
Judge findings
In an action tried on the facts without a jury or with an advisory jury, the judge is required to find the facts specially and state his or her conclusions of law separately. The findings and conclusions may be stated on the record after the close of evidence or may appear in an opinion or a memorandum of decision filed by the court [Fed. R. Civ. P. 52(a)(1)]. Without such a statement, an appellate court would not be able to determine why the judge ruled in favor of the manufacturer, and so reversal on these grounds would be appropriate [United States v. Forness, 125 F.2d 928 (1942)].
Purposeful availment
For a federal court to assert personal jurisdiction under a minimum contacts analysis, the defendant must have established a minimum contact with the forum state, the claim against the defendant must be related to that contact, and the exercise of jurisdiction must not offend traditional notions of fair play and substantial justice. To establish a minimum contact, the defendant must purposefully avail itself to the privilege of conducting activities within the forum state [World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980)]. Here, only 2% of the subsidiary’s tires are distributed in State A by the parent corporation, not the subsidiary. Consequently, the subsidiary has not purposefully availed itself of the privilege of conducting activities within the forum state since it did not actually distribute its tires there.
Federal question
For federal-question jurisdiction to exist, the underlying claim for relief must “arise under” federal law. 28 U.S.C. Sec. 1331. Federal-question jurisdiction does not exist merely because federal law is cited solely for the purpose of calculating damages. Federal law is not the law that creates the ranchers’ tort claim, and therefore federal-question jurisdiction does not exist
No evidence at the summary judgment stage
There is no requirement that an opposing party file evidence in opposition to a summary-judgment motion. First Nat. Bank of Arizona v. Cities Serv. Co., 88 S.Ct. 1575 (1968). The party can simply argue that the moving party’s evidence is insufficient to warrant judgment as a matter of law. 10A Wright, Miller & Kane, Federal Practice & Procedure Sec. 2727.2. Therefore, the failure to file evidence is not itself a basis to grant summary judgment.
Bringing leaned treatises into evidence
Federal Rule of Evidence 803(18), the learned treatise hearsay exception, provides that if the court finds a publication to be a reliable authority, then “statements” from it may be read into evidence, but the publication may not be received as an exhibit. Thus, the jury is not allowed to bring learned treatises into the jury room. There is a concern that if juries were allowed unrestricted access to the whole publication, they might rely on parts of the publication that are not germane to the case. Moreover, the intent of the rule is that juries need to be guided through the pertinent parts of the publication by the testifying experts.
Default judgment by the clerk or court
A clerk may enter default judgment only when the amount sought is a sum certain and the defaulting party has failed to appear. Fed. R. Civ. P. 55(b)(1). Here, because the defaulting party–the builder–is the original plaintiff in the action and thus appeared when filing the complaint, the clerk is precluded from entering a default judgment.
Military reassignment for religious reasons
This correct answer choice states the standard set by the Supreme Court in Employment Division v. Smith [494 U.S. 872 (1990)]. Although the 20-year-old was seeking reassignment for religious reasons, the regulation requiring waiver of educational benefits was one of general applicability and applied regardless of religion. In light of the Smith case, the 20-year-old most likely will not be able to refuse to sign the waiver of educational benefits if he wants civilian reassignment–at least not based on violation of the Free Exercise Clause. A different outcome might occur if it turned out that the only grounds for civilian reassignment are religious, but the facts don’t suggest it. Furthermore, although the government cannot determine the truth or falsity of a person’s religion, they can determine that person’s sincerity with regard to his religious beliefs. If the military investigates the 20-year-old’s membership in the church for this purpose, it is not a violation of the Free Exercise Clause.
Assignment
An assignment arises when the holder of a right, an obligee, manifests the intent to make a present transfer of that right to another, the assignee. Upon an assignment, the assignor’s rights are extinguished and transferred to the assignee. An assignment is to be distinguished from a promise to do something in the future, such as the payment of money. Here, the writing in which the builder promised to pay the lender the $10,000 he received from the homeowner did not transfer to the lender the right to receive payment directly from the homeowner, and thus it did not create an assignment.
Interference with prospective advantage
The tort of interference with prospective advantage protects the probable “expectancy” interests of future contractual relations of a party, such as the prospect of obtaining employment or the opportunity to obtain customers. In the absence of prohibition by statute, illegitimate means, or other unlawful conduct, a defendant seeking to increase his own business may cut rates or prices, allow discounts, or enter into secret negotiations behind the plaintiff’s back, refuse to deal with the plaintiff, or threaten to discharge employees who do. But, where the defendant’s conduct is illegal or malevolent, he may be liable for interference with prospective advantage. Here, the businessman was involved in unlawful conduct because he intimidated the new store’s customers by threatening to hurt them if they attend the new store. Hence, he interfered with the new store’s opportunity to obtain customers and will be held liable.
injurious falsehood
An injurious falsehood is a false statement made to another by the defendant that causes economic injury to the plaintiff. In this case, the businessman did not make any false statement, but was in fact issuing a threat. As such, he was employing intimidation and will be liable for interference with prospective advantage rather than injurious falsehood.
violation of statute as negligence per se
Violation of a statute is negligence per se only if the person harmed is one of the class intended to be protected, if the violation is not excused, and if the risk threatened is the type the statute was intended to protect against. The equipment certification statute is clearly intended to guard against injuries caused by defective machinery. Here, the crane was in perfect working order. Even if it had been certified, the operator’s negligence would still have injured the man. Under these circumstances, it is unlikely that the failure to obtain a certificate would be regarded as negligence per se such that it would conclusively establish the company’s vicarious liability.
Liability over a newsstand owner
A person who distributes the original defamatory message as a commodity (e.g., a bookseller, newspaper vendor, retailer, etc.) is liable only if he knew or should have known that the material distributed contained the defamatory message. Here, the newsstand owner read the paper and knew that the article included the defamatory statement. He also knew that the quarterback did not use steroids. As such, he may be liable as a secondary publisher of a defamatory statement, because he knew that the statement was not true but disseminated it anyway.
iied
It is likely that the lawyer will be found to have committed intentional infliction of emotional distress. The tort of intentional infliction of emotional distress requires that the defendant commit an intentional act amounting to extreme and outrageous conduct that causes the plaintiff severe mental distress. To be liable for this tort, the defendant must intend to cause the plaintiff severe mental distress. It has been argued that recovery should likewise be allowed where the defendant acts “recklessly,” that is, in deliberate disregard of a high degree of probability that the emotional distress will follow. Given that the wife screamed at the lawyer to stop and he refused, the lawyer was aware of the wife’s presence. Even after that point, he continued to hit the economist with the bat. Additionally, the wife was so upset by the incident that she could not bring herself to continue gardening, a hobby that she formerly had loved. That would be considered severe mental distress. Therefore, the lawyer will be found to have intended to cause her emotional distress or to have deliberately disregarded the likelihood that his act would cause her such distress. Battery is an intentional act that causes the plaintiff a harmful or offensive contact. While the defendant is permitted to use reasonable force to prevent the plaintiff from committing a tort against the defendant’s property, the amount of force used by the defendant must be no greater than necessary to prevent the threatened harm. Here, the lawyer hit the economist repeatedly with a bat, long after the economist had ceased throwing rocks at the lawyer’s house. As such, the lawyer cannot assert defense of property as a defense against a claim of battery, and it is true that he is liable for this tort. As such, the lawyer will be held liable for both intentional infliction of emotional distress and battery.
Public nuisance
A private person can file a claim for public nuisance if he sustained a harm different from that of the community at large. If the homeowners can show that they suffered a harm different from that of the community at large, they can prevail against the company under a public nuisance theory.
Not complying with the motion to compel discovery
If a party does not comply with a motion to compel discovery, the requesting party can immediately seek: (1) a court order declaring that the facts sought in the deposition are established in favor of the requesting party; (2) a court order prohibiting the disobedient party from presenting certain claims or defenses; (3) a stay or dismissal of entire action; or (4) an order of contempt. A permissive counterclaim seeking liquidated damages is not a valid remedy for this situation.
