MBE !

Question 1

one can impliedly consent to a touching making it not battery

Answer 1

Battery

Question 2

An intentional exercise of dominion or control over a cattle which so seriously interferes with the right of another to control it that the actor may justify be required to pay the other the full value of the chattle

Answer 2

Conversion

Question 3

Plaintiff must prove that the professional did not act with the level of skill and learning commonly possessed by members of the profession in good standing

Answer 3

Malpractice

Question 4

if negligent actor is liable for an injury which impairs the physical condition of another’s body, the actor is also liable for harm sustained in subsequent accidents which would not have occurred id the 1st injury did not happen

Answer 4

Negligence

Question 5

where the defendant’s negligence places one person at physical risk, it is quite foreseeable that another person might come to the rescue and herself be injured. Negligence by defendant is proximate cause of injuries or rescuer - actors tortious conduct puts one at risk is subject to liability to a 3rd party injured while attempting to save another

Answer 5

Negligence

Question 6

Duty of Care
Duty Breached
Causation
     →Proximate
     →Cause in fact
■ Damages

Answer 6

Negligence

Question 7

For a claim of negligent misrepresentation:
the defendant’s mental state must be negligent, defendant made
defendants made statement in course of business with pecuniary interest in transaction
AND plaintiff member of limited group defendant intended to reach

If Negligent Misrepresentation - limited to pecuniary loss OR physical harm

Answer 7

Negligent Misrepresentation

Question 8

Injury must outweigh utility of defendant’s conduct when interference with another use or enjoyment of his property

Answer 8

Private Nuisance

Question 9

Manufacturers have no obligation to warn against obvious dangers

Answer 9

Product Liability

Question 10

Punitive Damages are not available in ordinary negligence cases

Answer 10

Punitive Damages

Question 11

NO direct evidence of defendant’s conduct
Type of event usually does not occur except through the negligence of someone
instrument that caused injury was in exclusive control
injury probably not due to plaintiff’s own action

Answer 11

Res Ipsa Loquitur

Res Ipsa Loquitor can be applied when the P proves that:
there was an accident AND
the thing that caused the accident was under exclusive control by the D and
Accident would not have happened if D had used reasonable care

Inequality of knowledge:
Airplanes - planes font fall out of the sky
Boats - no RIL - the sea is dangerous
EXCEPTION: Medical - applied to everyone in contact

Question 12

Manufacturers failure to warn of a danger can itself make product defective and trigger strict liability for injuries caused by a defect

Answer 12

Product Liability

Question 13

A qualified privilege exists for accurate reports of public hearings, meetings, or events of sufficient public interest

• defendant published private information about plaintiff
• matter made public is one that a reasonable person would object to having made public
• if disclosure came at public meeting and the news story was a fair and accurate publication of the facts, the qualified privilege for reports of a public meeting applies, shielding the newspaper

Answer 13

Invasion of Privacy

Question 14

people have privilege of private necessity to enter another’s land if that entry id or reasonably appears to be necessary to prevent serious harm to the person or his chattle

Answer 14

private necessity

Question 15

Proximate cause is a legal question of fact that addresses whether harm is reasonably foreseeable

Answer 15

Cause + Proximate Cause

Question 16

Intervening causes are acts by 3rd parties that cut off the chain of proximate causation if it was/is unforeseeable

Answer 16

Cause + Proximate Cause

Question 17

Alternative liability applies when there are multiple defendants and all defendants were equally negligent or impossible for plaintiff to tell who was more negligent

Answer 17

Cause + Proximate Cause

Question 18

Cause in fact is negligence that caused harm - but for the act the event would not have happened

Answer 18

Cause + Proximate Cause

Question 19

Two dismissal rule - when a party dismisses the same claim voluntarily twice, the second dismissal is ordinarily “with prejudice”, preventing the bringing of that claim a third time against the same or related parties

Answer 19

FRCP 41

Question 20

Dormate commerce clause prohibits regulations on interstate commerce that are discriminatory or an undue burden, UNLESS it is necessary to further an important noneconomic governmental interest or no reasonable alternatives

-if not discriminatory on its face then rational basis must be applied and must balance benefit and burden

EXCEPTION: market participant

Answer 20

Dormate Commerce Clause

Question 21

To determine whether congress can regulate an activity, you need only determine that:
activity is commercial AND
Activity SUBSTANTIALLY AFFECTS interstate commerce OR general class of activities that collectively substantially affect interstate commerce

Answer 21

Commerce Clause

Question 22

Congress can regulate 4 categories of activities involving commerce:
channel of interstate commerce
instrumentalities of interstate commerce
articles moving in interstate commerce
activities substantially affecting commerce

Answer 22

Commerce Clause

Question 23

order for medical examinations may be rendered only against parties or those under a party’s control

Answer 23

FRCP 35

Question 24

Negligence per se - if the defendant violates a criminal statute, that was designed to protect against the type of accident that occurred, then the violation automatically constitutes negligence, if they do not have an excuse

Answer 24

Negligence

Question 25

Strict Liability applies only against one who is engaged in the business of selling the type of product involved.

• An auctioneer acting on the behest of a creditor to sell an item is not engaged in the business of selling said item

Answer 25

Product Liability

Question 26

without unreasonableness there is not negligence and without negligence, one can not be liable

Answer 26

Negligence

Question 27

Any answer that says common carriers are strictly liable is NOT THE ANSWER

Answer 27

Common Carriers

Question 28

Negligence per se does not excuse the plaintiff from showing causation.

If compliance with the statute would not have prevented the harm from occuring, then the absence of compliance could not have been the cause in fact of the injury

Answer 28

Negligence

Question 29

Failure to warn: whether dangers are known or not companies are held to the same standard of duty to warn

Answer 29

Product Liability

Question 30

Misrepresentation:
- D misrepresents a material past or present fact
- D has knowledge of falsity or a reckless disregard for it
D’s intent to induce P’s reliance
P actual justifiable reliance
Damages

Answer 30

Misrepresentation

Question 31

Emotional Distress by a 3rd party:
- they are present during the physical harm
they are closely related to the injured person
Actor knows of the 3rd party’s presence and mist be able to reasonably anticipate 3rd party’s distress that will result from the actors harm

Answer 31

Emotional Distress

Question 32

Defense to Battery: Defense of Others - actors belief that danger exists and belief that the proposed conduct is a good way to deal with the danger be reasonable.

Answer 32

Battery

Question 33

landowner may not use deadly force to defend property must be reasonable

Answer 33

Trespass

Question 34

When a tortfeasor should have realized the likelihood of the crime at the time of his negligence, he may be liable for the criminal acts of a third party

Answer 34

Negligence

Question 35

Reasonableness is not an issue in Battery

Answer 35

Battery

Question 36

Under res ipsa loquitur, negligence can be inferred and may be submitted to a jury

Answer 36

Res Ipsa Loquitur

Question 37

no need for expert testimony - determine timelines - juror’s common knowledge on breach of standard is sufficient - no need for an expert

Answer 37

FRE 702

Question 38

Owner of a wild animal is strictly liable for the animal’s conduct creating damage - “animal is not domesticated”

owner of wild animal or an abnormally dangerous animal is strictly label for harm caused by that animal’s dangerous nature - even if fangs are removed

Answer 38

Strict Liability

Question 39

No duty to aid UNLESS, D’s negligence created the peril, a special relationship mandates affirmative acts (parent-child) OR defendant previously undertaken to act for the P’s benefit

Answer 39

Duty

Question 40

A product is defective if it fails to include a feasible safety device that would prevent injuries foreseeable incurred in ordinary use

Answer 40

Product Liability

Question 41

Firefighters rule - when firefighters or police officers are injured in course of job they normally have no claim against a person whose conduct created peril - limited to risk inherent in job - so

Answer 41

Negligence

Question 42

Landlord has a duty to act reasonably where he has reason to know - failure to take risk unknown risk is not negligent - example: dog with propensity to bite and land lord who does not own it does not know and no signs then landlord not liable

Answer 42

Duty to Warn

Question 43

Breach of a loan commitment - limits on a borrowers loan commitment - non-breaching party’s right to recover damages is limited by Hadley v. Baxendale. Damages are not recoverable for loss that the part in breach did not have reason to force as a probable result of the breach when contract was made

Answer 43

Breach

if bank fails to produce loan funds in time - breach - damages are appropriate for difference in cost of interest to secure a new loan - it is reasonably forseeable that a bank breached, the best available alternative lender might charge a higher interest rate and extra interest cost to the merchant would be recoverable

Question 44

Courts reject the tacit agreement test - if see answer with tacit agreements - not correct

Answer 44

Breach

Question 45

every contract has an implied duty of good faith and fair dealing in its performance and enforcement - where a duty of one part is subject to the occurrence of a condition and that party’s cooperation is necessary for the condition to occur - party’s cooperation is required by good faith

Answer 45

Breach

Question 46

an equivocal response does not constitute an acceptance

Answer 46

Offer + Acceptance

lender makes borrowers promise to make early payment, not acceptance in the form of performance

Question 47

unilateral offer is irrevocable once performance starts -

Answer 47

“this offer may be withdrawn at any time” has no effect

Question 48

if there is a valid, enforceable agreement before death, it does not terminate with death

Answer 48

Offer + Acceptance

Question 49

Donee and creditor rights vest when:
the beneficiary manifest assent to the promise
the beneficiary sues to enforce the promise OR
the beneficiary justifiably relies on the promise to his detriment

Answer 49

3rd Party Beneficiaries

if rights did not vest, can not contest a modification to an account - third party rights under

Question 50

If there is an underaged person contracting for a product or service, they do not have capacity to contract and the contract is unenforceable and invalid - however, if the minor turns 18/of age and ratifies the contract then the ratification becomes enforceable

Answer 50

Ratification

Question 51

Freehold Estates: estate in which you have exclusive right to enjoy possession of a property for an undefined time

fee simple absolute - Ownership can not be defeated by previous owner or heirs. greatest interest in a parcel of land that one can possibly own. Complete ownership interest. Absolute ownership. limited by basic government Powers.

Fee Simple Defeasible: created when grantor places a condition on a fee simple estate.

Life Estate: limited by life of a person

Answer 51

Estates in Land

Question 52

Future interest in estates in land:
Grantor
-possibility of reverter
-right of entry
-reversion

Transferee

• vested remainder
• contingent remainder
• executory interest

Answer 52

Interest in Land

Question 53

Concurrent Estate:
Joint Tenancy VS Tenancy in common

TIC share unity of possession. Same with person that share prop with a corporation

Joint Tenancy: Time Title Interest Possession -if any are broken then reverts to a TIC.

right of survivorship: JTs have. TIC does not.

Answer 53

Estates concurrent

Question 54

plenary power is usually the wrong answer

Answer 54

Presidential Powers

Question 55

president has the power to set up a temporary governmental agency for a specific purpose. creation of an advisory commission is within the presidents executive power. congress has the right to set aside money as the president determines

Answer 55

Presidential Powers

Question 56

equal protection clause of the 14th amendment only applies to states - if in question need state action

Answer 56

14th Amendment

Question 57

federal government can not force a state to enact a statute under the 10th amendment

Answer 57

State Action

Question 58

a case will be dismissed if the case becomes moot - event deprive plaintiff of an ongoing stake in a controversy

Answer 58

mootness

Question 59

commercial speech gets intermediate scrutiny

Answer 59

commercial speech

Question 60

can not unduly burden interstate commerce

Answer 60

doormat commerce clause

Question 61

due process - deprived of property

Answer 61

due process

perry v. Sindermann - professor at public university established property right in continued education due to promissory estoppel creates a legitimate claim of entitlement to reemployment

Question 62

the parol evidence rule prohibits consideration of prior extrinsic evidence when the parties have entered into a final written agreement - where there is an ambiguous meaning go a material term in a contract, a court may consider extrinsic evidence in determining the proper meaning - like usage trade or course of dealing - but when parties attached different meanings the party unaware of the different meaning will control.

Answer 62

Parol Evidence

Question 63

damages must be foreseeable - if not foreseeable not recoverable

Answer 63

Damages

Question 64

there are valid excuses from complying with the statute of frauds. courts are becoming more willing to apply the reliance doctrine to SOF problems since there has been performance on a contract - must be in a state the welcomes this remedy

Answer 64

Statute of Frauds

Question 65

express conditions in a contract will be strictly enforced EXCEPT
when there are conditions that only benefit one party (like a low interest rate). party always has the power to waive condition through inference or expressly

Answer 65

Conditions

Question 66

When defective installments may be rejected if the product is nonconforming and if the nonconformity substantially impairs the value of that installment and cannot be cured - if value is not substantially impaired and seller gives assurances of cure then must accept the installment

Answer 66

Installment contracts

Question 67

perfect tender - reject whole or commercial parts if nonconforming goods

Answer 67

UCC

Question 68

provision for arbitration does not materially alter a contract

Answer 68

UCC

Question 69

requirements contract - consideration is needed - promise to buy all output is consideration if furnished with discount

Answer 69

UCC

Question 70

firm offers - irrevocable for 3 months then not

Answer 70

UCC

Question 71

Modification as waiver

Answer 71

UCC

Question 72

shipment of nonconforming - buyer can reject or accept

Answer 72

UCC

Question 73

non carrier cases

Answer 73

UCC

Question 74

Federal Rule of Evidence 803(18), the learned treatise hearsay exception, allows statements from a treatise to be read into evidence where the treatise is “called to the attention of an expert witness . . . or relied on by the expert” and is found to be reliable by the court. The rule does not require that an expert rely on the treatise. In this case, the publication was called to the attention of the defendant’s expert.

Answer 74

Hearsay

Question 75

Under Federal Rule of Evidence 607, the credibility of a witness may be attacked by any party, including the party calling the witness.

Answer 75

Hearsay

Question 76

Prior statements that are inconsistent with a witness’s present testimony impeach the witness’s credibility because they tend to show that the witness’s trial testimony is not believable. The prior inconsistent statement was not made under oath, and so does not fit the exclusion from hearsay provided by Federal Rule of Evidence 801(d)(1)(A).

Answer 76

Hearsay

In a civil trial for fraud arising from a real estate transaction, the defendant claimed not to have been involved in the transaction. The plaintiff called a witness to testify concerning the defendant’s involvement in the fraudulent scheme. To the plaintiff’s surprise, however, the witness testified that the defendant was not involved and denied having made any statement to the contrary. The plaintiff has now called a second witness to testify that the first witness had stated, while the two were having a dinner conversation, that the defendant was involved in the fraudulent transaction.
Is the testimony of the second witness admissible?

Question 77

the declarant has to be unavailable, as the dying declaration is one of the “unavailability-dependent” exceptions of Rule 804.

Answer 77

Hearsay

Question 78

a mortgage lien does not have automatic priority over a judgment lien.

Answer 78

Titles

Question 79

race-notice jurisdiction, which protects a bona fide purchaser for value without notice who records first.

Answer 79

Titles

Question 80

No one has a duty to make a title search

Answer 80

Titles

Question 81

priority to who filed first in a race-notice jurisdiction.

Answer 81

Titles

Question 82

A gift may be made of real estate. A deed is required as are the elements for a gift. The homeowner had the requisite donative intent as shown by his words. Delivery occurred when the homeowner physically handed the deed to the nephew’s friend as the agent of the nephew. Acceptance is presumed if the gift is beneficial. At this point, the homeowner could not recall the gift.

Answer 82

Titles

Question 83

Estoppel Deed - Example:IfOconveys property she doesn’t own toAbywarranty deed, butOlater acquires title to that land, then title immediately passes toA.

Answer 83

Titles

Question 84

A joint tenancy with right of survivorship is not devisable or inheritable and cannot be severed by a will. In this case, the son and the daughter received title as joint tenants with right of survivorship. On the death of the son, the interest of the daughter increased, and she then owned the land alone and in fee simple. She had the right to devise that entire interest by will to her friend.

Answer 84

Ownership of real property

A landowner conveyed his land by quitclaim deed to his daughter and son “as joint tenants in fee simple.” The language of the deed was sufficient to create a common law joint tenancy with right of survivorship, which is unmodified by statute. The daughter then duly executed a will devising her interest in the land to a friend. Then the son duly executed a will devising his interest in the land to a cousin. The son died, and later the daughter died. Neither had ever married. The daughter’s friend and the cousin survived.
After both wills have been duly probated, who owns what interest in the land?

Question 85

determinable life estate, evidenced by the words “for life” and “until remarriage” in the landowner’s will.

Answer 85

A landowner died, validly devising his land to his wife “for life or until remarriage, then to” their daughter. Shortly after the landowner’s death, his daughter executed an instrument in the proper form of a deed, purporting to convey the land to her friend. A year later, the daughter died intestate, with her mother, the original landowner’s wife, as her sole heir. The following month, the wife remarried. The wife then executed an instrument in the proper form of a deed, purporting to convey the land to her new husband as a wedding gift.
Who now owns what interest in the land?

Answer: The daughter’s friend owns the fee simple

The landowner’s wife had a determinable life estate, evidenced by the words “for life” and “until remarriage” in the landowner’s will. The daughter had a vested remainder and an executory interest. Both of the daughter’s interests could be assigned to the friend. On the remarriage of the landowner’s wife, the wife’s determinable life estate ended and the land automatically went to the holder of the future interest, the daughter’s friend.

Question 86

The defendant properly could be required to utter the words spoken by the bank robber. The privilege against self-incrimination extends only to compelled “testimonial”communications; “[t]hus, even though the act may provide incriminating evidence, a criminal suspect may be compelled . . . to make a recording of his voice.” United States v. Hubbell, 530 U.S. 27 (2000).

Answer 86

Constitutional protection of accused persons

Question 87

tort of interference with contract provides a cause of action against those who improperly interfere with the performance of a contract between the plaintiff and a third person

Answer 87

Strict liability and products liability: common law strict liability, including claims arising from abnormally dangerous activities, and defenses to such claims; claims against manufacturers and other defendants arising out of the manufacture and distribution of products, and defenses to such claims

Question 88

While leave to amend is freely given when justice requires it, one of the situations in which leave to amend is denied is when the proposed amendment would be futile, such as when the plaintiff seeks to add a claim that would be time-barred. Rule 15(c) permits an amended pleading to relate back to an earlier filed pleading if: (1) the applicable statute of limitations allows relation back; (2) “the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out—or attempted to be set out—in the original pleading”; or (3) under certain circumstances, the amendment changes the party or the naming of the party against whom a claim is asserted. See FRCP 15(c)(1)(A)-(C). Here, the plaintiff moved to amend her complaint in order to add a second claim a year after filing the original complaint. The plaintiff’s second claim is based on the same set of facts as the original claim. However, the statute of limitations has passed on the new claim; indeed, the statute of limitations had already passed even at the time the original complaint was filed. Accordingly, even if the amended claim related back to the plaintiff’s original filing, it would still be untimely since the new claim was already barred by the statute of limitations when the plaintiff filed the original complaint.

Answer 88

Answer: No, because the amendment is time-barred even if it relates back to the filing of the original complaint.

Question 89

dismissal is considered adjudication on the merits. Accordingly, the second federal action is barred by the doctrine of res judicata. Note that filing the claim in a different court or with a federal-law basis rather than a state-law basis does not save the second action from dismissal under the doctrine of res judicata. Where a plaintiff alleges the same nucleus of operative facts, the claims are considered the same for purposes of res judicata, even if the courts hearing the claims or the underlying legal bases for the claims differ.

Answer 89

Answer: Yes, because dismissal with prejudice is a final adjudication on the merits.

Question 90

Correct. If a corporation is in a state with multiple districts and it does not have sufficient contacts with any one district to subject it to personal jurisdiction in that district, 28 U.S.C. § 1391(d) states that “the corporation shall be deemed to reside in the district within which it has the most significant contacts.” Here, because the majority of the corporation’s restaurants are in the Southern District of New York, the Western District of New York is not a proper venue for this case.

Answer 90

sufficient contacts

Question 91

Under the Fourth Amendment, the arrest warrant would have authorized forcible entry only if the officers had reason to believe that the woman was at home at the time of the entry. Here, the officers knew that the woman was not at home.

Answer 91

4th Amendment

Question 92

For a BURDEN to run: (1) Writing – original promise between A and B had to be in writing (2) Intent – original parties had to intend that covenant would run; (3) Touch and concern the land – the promise must affect the parties’ legal relations as landowners, not simply as members of the community at large AND (4) horizontal and vertical privity.

Answer 92

Burdens to run