KNS - MBE Questions missed Deck 2 Flashcards
Under the FRE, when the jury’s answers accompanying a general verdict are consistent with each other but are inconsistent with the general verdict, what three things may the court do?
The court may (i) enter a judgment that is consistent with the ANSWERS, disregarding the general verdict; (ii) instruct the jury to deliberate further regarding its verdict and answers; or (iii) order a new trial.
The court may not enter a judgment in accordance with the verdict itself.
Woman takes care of her brother. Her grandma likes this so tells her if she keeps taking care of him for five years, she will give her her condo in Hawaii. Two years into this, Grandma sells condo and says she won’t be able to give her the condo as a gift like she promised. Woman keeps taking care of brother. Five years after what Grandma originally said, she sues.
the granddaughter brings suit against her grandmother for breach of contract, which of the following will not be relevant to the grandmother’s defense?
A) The contract involved a transfer of an interest in real property.
B) The contract involved services that could not be performed within a year.
C) The grandaughter was caring for her brother before the agreement was entered into.
D) The grandma sold the condo before the end of the five years.
D is Correct. That the grandmother sold the condominium before the end of five years is not relevant to a decision to deny the granddaughter a remedy. If there were an enforceable contract requiring the grandmother to turn the condominium over to her granddaughter, and the grandmother sold the condominium to a bona fide purchaser for value, that would cut off the granddaughter’s right to specific performance, but she would still be entitled to a remedy. Thus, the sale does not support a decision to deny the granddaughter a remedy.
Why is A helpful to the grandma?
A) The contract involved a transfer of an interest in real property.
(A) is a basis for the court’s decision. The Statute of Frauds makes certain contracts unenforceable unless they are evidenced by a writing signed by the party to be charged and evidencing the material terms of the contract. Among the contracts that are within the Statute are contracts for an interest in real property. Here the contract was oral and it involved a transfer of real property. Thus, it is unenforceable.
Why is B helpful to the Grandma?
(B) would support the court’s decision under a similar rationale as A. Contracts which by their terms cannot be performed within one year are within the Statute of Frauds and are unenforceable without a writing, and, again, the contract here was oral and required five years of performance.
Why is C helpful to the Grandma?
C) The grandaughter was caring for her brother before the agreement was entered into.
(C) would also support the court’s decision. Where an oral promise is not enforceable under contract law because of the Statute of Frauds and the promisor should foresee that it will induce the promisee to change position in reliance on the oral promise, promissory estoppel may be used to take the contract out of the Statute of Frauds entirely. If the court finds that the grandmother’s promise did not induce the granddaughter to care for her brother (because she was already doing so before the promise was made and after the promise was broken), then the promise is not enforceable under the doctrine of promissory estoppel.
In a medical malpractice action, a surgeon was called as an expert witness by the plaintiff and testified that the surgical procedure utilized by the defendant was so new and experimental as to constitute negligence under the accepted standard of practice in the relevant medical community. On cross-examination by the defendant’s counsel, the surgeon was asked whether Modern Surgical Procedures was a reliable authority in his area of specialty. The surgeon said that it was, and the defense counsel then asked if the surgeon had relied upon the treatise in reaching the conclusion that the defendant was negligent. The surgeon stated that he did not. Defense counsel now proposes to read a passage from the treatise stating that the surgical procedure at issue is widely accepted by responsible medical practitioners. The plaintiff’s counsel objects.
Should the court rule for the plaintiff or the defendant?
The court should rule for the defendant and allow the treatise to be read and considered by the jury as substantive evidence. Although the treatise constitutes hearsay because it is an out-of-court statement offered to prove the truth of the matter asserted (that the surgical procedure was accepted), it falls within one of the exceptions to the hearsay rule. Under Federal Rule 803(18), information in treatises can be read into evidence if the treatise is: (i) relied upon by the expert or is called to his attention during cross-examination; and (ii) established as reliable by the witness, another expert, or judicial notice. The treatise itself is not admitted into evidence, but rather the relevant section is read in.
Is exclusivity implied in a requirements contract - AKA I I will buy all the red cheese I require from manufacturer A for two years?
Exclusivity is implied in a requirements contract; otherwise the buyer’s promise would be illusory. If the retailer were free to purchase from other suppliers, the promise would be one to buy as much as the retailer chooses. Consideration for a requirements contract exists because the promisor is suffering a legal detriment by parting with the legal right to buy goods he may need from another source. On the other side, the manufacturer has suffered legal detriment by agreeing to sell to the retailer any amount it requires at the stated price. The manufacturer has parted with any discretion in the amount sold to the retailer and its price. Therefore, there is no need to impose an exclusivity requirement on the manufacturer to establish consideration.
What is a public welfare offense?
Violating safety laws meant to protect the public is considered a “public welfare offense,” which essentially eliminates the mens rea requirement altogether and imposes strict liability upon those who violate the law, whether wittingly or not.
In an in rem action, how must persons whose interests are known to be affected and whose addresses are known be notified?
In an in rem action, persons whose interests are known to be affected and whose addresses are known must be notified at least by ordinary mail.
A local entertainment section of a newspaper published a story on the town’s business district, accompanied by photos of various businesses in the district. A minister who happened to be walking on the sidewalk in front of an adult bookstore when a photo was taken for the story became very upset when he saw it in the newspaper, because the camera angle made it appear that he was exiting the bookstore.
If the minister sues the newspaper for invasion of privacy and establishes the above facts, is he likely to prevail?
A) Yes, because the photo made it appear as if he were exiting an adult bookstore.
B) Yes, because the newspaper made a public disclosure of a private fact.
C) No, because he was on a public sidewalk when the photo was taken.
D) No, because he has not alleged any economic or pecuniary damages.
The correct answer is A.
The minister likely will prevail because unauthorized use of his picture that falsely makes him appear to be exiting the adult bookstore would be highly offensive to a reasonable person under the circumstances and constitute a false light invasion of privacy. To establish a prima facie case for invasion of privacy based on publication by defendant of facts placing plaintiff in a false light, the following elements must be proved: (i) publication of facts about plaintiff by defendant placing plaintiff in a false light in the public eye; and (ii) the “false light” must be something that would be highly offensive to a reasonable person under the circumstances. Here, the photo created the false impression that the minister was exiting an adult bookstore. Publication of the photo conveying this false impression of the minister’s conduct would be highly offensive to a reasonable person under the circumstances.
(B) cannot be correct because it is couched in terms of disclosure of private facts about the plaintiff. To establish a prima facie case for invasion of privacy based on public disclosure of private facts about plaintiff, the following elements must be proved: (i) publication or public disclosure by defendant of private information about the plaintiff; and (ii) the matter made public is such that its disclosure would be highly offensive to a reasonable person of ordinary sensibilities. Here, no private facts were disclosed, and therefore an action based on public disclosure of private facts will not succeed.
(C) is incorrect. Because the minister was placed in a false light, it makes no difference that the picture was taken on a public sidewalk. An invasion of privacy based on false light can occur on public property as well as private property.
(D) is incorrect. The absence of economic harm to the minister has no bearing on a privacy action. In an action for invasion of right to privacy, the plaintiff need not plead and prove special damages, providing the elements of a prima facie case are present. In other words, emotional distress and mental anguish are sufficient damages.
Sign fell on customer, store manager is like shoot, we are probably going to get sued, conducts investigation, puts together digital document. PLaintiff sues the store, wants the document. Are they entitled to it?
A) Yes, because the work product doctrine only protects physical items.
B) Yes, because the document was not created at or by the direction of the store’s attorney.
C) No, because the customer likely will not be able to demonstrate substantial need for the document and an inability to obtain the substantially equivalent info by other means without undue hardship.
D) No, because the work product doctrine absolutely precludes discovery of the info.
A is wrong because the work product doctrine protects physical and digital items.
B is wrong because the work product doctrine applies to documents prepared by a party or its representative, which includes its agent. The manager was acting as an agent for the store here getting the info in case the store’s lawyers needed it.
D is wrong because a party can discover a document despite the work product doctrine if it can show a substantial need for the document and an inability to obtain the information in an alternative way without undue hardship.
Therefore, C is correct.
The manager’s report is protected work product because it was made in anticipation of litigation, so the customer will be able to obtain a copy of the digital document only if she can show a substantial need for the document and an inability to obtain the information in an alternative way without undue hardship. Here, such a showing will be difficult to make under the given facts. The store manager is available to be deposed (and in fact has been deposed), and all of the employees interviewed are still employed by the store. Thus, it appears that the customer will be able to obtain the facts contained in the document by alternative means, meaning that the customer likely will not be able to show substantial need or undue hardship.
A plaintiff sued a defendant for personal injuries sustained when the plaintiff slipped and fell on the floor in the defendant’s office. The plaintiff called a witness to testify that he was on duty in the hospital emergency room when the plaintiff was admitted and that he saw a doctor treat the plaintiff’s skull. As he was getting ready to testify, the witness refreshed his recollection by studying the plaintiff’s copy of the hospital records. These records had not been admitted into evidence.
Is the witness’s testimony concerning the treatment admissible?
A) Yes, as evidence of the extent of plaintiff’s injury.
B) Yes, as past recollection recorded.
C) No, because it is not the best evidence.
D) No, because it is based on hearsay not within any exception.
D is wrong because ANYTHING (even hearsay statements) can be used by a witness to refresh his recollection.
C is wrong because the best evidence rule applies when a party is trying to prove the contents of a writing. Here, the witness’s testimony is about what he saw, not about the contents of the record.
B is wrong because a past recollection recorded is a memorandum or other record that is actually read into evidence. Here, the witness is not reading from the records as he testifies, and the record is not being introduced. In addition, a proper foundation has not been laid for the introduction of the records as a past recollection recorded.
A is correct because it relates to his firsthand observations and is otherwise admissible. Before or while testifying, a witness may use any writing or thing for the purpose of refreshing his present recollection. He usually may not read from the writing while he actually testifies, since the writing is not authenticated, is not in evidence, and may be used solely to refresh his recollection. Here, the witness properly refreshed his recollection before testifying.
Takeaway - it is VERY BROAD what can be used to refresh a witness’s recollection.
What are nominal damages?
A trivial sum of money awarded to a plaintiff whose legal right has been technically violated but who has not established that they are entitled to compensatory damages because there was no accompanying loss or harm.
A landowner’s backyard, landscaped with expensive flowers and shrubs, was adjacent to a golf course. While a golfer was playing on the course, a thunderstorm suddenly came up. The golfer was returning to the clubhouse in his golf cart when lightning struck a tree. The tree began to fall in the golfer’s direction. To avoid being hit, the golfer steered his cart onto the landowner’s property. The cart caused damage to the landowner’s expensive plantings in her garden.
In an action by the landowner against the golfer to recover damages for the harm to her plantings, what is the likely result?
A) The landowner will prevail, because, although occassioned by necessity, the golfer’s entry onto the landowners property was for the golfer’s benefit.
B) the landowner will prevail, for nominal damages only, because the golfer was privileged to enter the landholder’s property.
Answer A is correct. An action undertaken to protect the actor’s person or property may be privileged under the private necessity doctrine, but the privilege is qualified—the actor must pay for any injury he causes. The golfer is privileged to enter onto the property of another in an emergency to avoid substantial harm, but he is liable to the landowner for any damage caused to the property.
Answer B is incorrect. Even though the golfer was privileged to enter onto the property and is therefore not liable for nominal damages in trespass, he is liable for any damages he actually causes to the property.
A seller entered into a written contract to sell his factory to a manufacturer. Before the closing date, the manufacturer found an alternate site that was better suited to her business. The manufacturer notified the seller that she would not be going through with the closing. The seller sued the manufacturer for specific performance.
Which fact, if true, would cause the court to rule in favor of the manufacturer?
A) The factory does not comply with the city building code.
B) The factory violates the setback of the zoning ordinance by one foot.
The correct answer is B. If the factory violates the setback allowance in the zoning ordinance, the seller cannot successfully sue for specific performance because title is unmarketable.
Generally, zoning restrictions do not affect the marketability of title, but an existing violation of a zoning ordinance does render title unmarketable.
(A) is incorrect because it is generally held that the violation of subdivision, housing, or building codes does not constitute an encumbrance on title. Zoning is treated differently.
