MBE Practice Questions Flashcards
real evidence admissibility - chain of custody
)roponent must show that the object has been held in a substantially unbroken chain of possession. It is not necessary to negate all possibilities of substitution or tampering; rather, what is required is to show adherence to some system of identification and custody.
Obscenity Test
Obscenity is unprotected speech. The Court has defined obscenity as a depiction of sexual conduct that, taken as a whole, by the average person, using contemporary community standards: (i) appeals to the prurient interest in sex; (ii) portrays sex in a patently offensive way; and (iii) using a national, reasonable person standard, does not have serious literary, artistic, political, or scientific value.
Admissibility of Learned Treatises
Can be used to impeach an expert witness by cross-examining the expert on statements contained in any scientific publication that is established as reliable authority; can also be used substantively - exception to the hearsay rule for learned treatises if: (i) the expert is on the stand and it is called to his attention, and (ii) it is established as reliable authority.
How to Establish Reliability of a Publication (e.g. Learned Treatises)
Reliability of a publication may be established by: (i) the direct testimony or cross-examination admission of the expert, (ii) the testimony of another expert, or (iii) judicial notice.
Admissibility of Prior Felony Convictions
The record of the conviction is hearsay; i.e., it is a statement, other than one made by the declarant while testifying at the trial or hearing, offered to prove the truth of the matter asserted. Under the Federal Rules, however, such judgments fall within the hearsay exception for records of felony convictions. Under the Federal Rules, judgments of felony convictions are admissible in both criminal and civil actions to prove any fact essential to the judgment, whether the judgment arose after trial or upon a plea of guilty. [Fed. R. Evid. 803(22)]
UCC - Proper Tender of Delivery
In a proper tender of delivery under UCC section 2-503, the seller must put and hold conforming goods at the buyer’s disposition for a time sufficient for the buyer to take possession. The seller must give the buyer notice reasonably necessary to enable him to take possession of the goods. Proper tender of delivery entitles the seller to acceptance of the goods and to payment according to the contract. [UCC §2-507]. Proper tender of delivery discharges the duty.
Unjust Restitution Under UCC Proper Tender of Delivery
Proper Tender of Delivery Discharges Duty Under Contract - When a party’s duty of performance is discharged, the other party is entitled to restitution of any benefits that he has transferred to the discharged party in an attempt to perform on his side. If one party would be unjustly enriched, to the detriment of the other, if he were permitted to keep the entire contract price, restitution is permissible in the amount the party was unjustly enriched.
UCC - “F.O.B”
The term “F.O.B.” is a delivery term under the UCC, which governs the contract when it is for the sale of goods. That term means “free on board,” and it obligates the seller to get the goods to the location indicated after the term. [UCC §2-319(1)] - doesn’t matter if parties are merchants
UCC - Breach of “Good Faith”
Uniform Commercial Code (“UCC”) imposes a duty of good faith on all parties, and failure to deliver under a contract simply because a better price can be obtained might violate this duty, the UCC does not provide for punitive damages for breach of this duty. When a seller fails to deliver goods, one remedy available to the buyer is cover damages—the difference between the contract price and the price of substitute goods.
Speech - Content Based Restriction
To justify content-based regulation of otherwise protected speech, the government must show that the regulation is necessary to achieve a compelling state interest that cannot be satisfied by less restrictive means.
During a trial, a motion for judgment as a matter of law (“JMOL”) may be filed:
During a trial, a motion for judgment as a matter of law (“JMOL”) may be filed at any time before submission of the case to the jury. The moving party must specify in its motion the judgment sought and the law and facts on which the party is entitled to judgment. Note, however, that the nonmoving party must have been heard on the issue.
To receive a jury trial, a party generally must
-TLDR: 14 days after last pleading; serve on all parties Under Rule 38, to receive a jury trial a party must file a written demand and serve it on all the parties within 14 days after the service of the last pleading directed to the jury-triable issue. Otherwise, the right to a jury trial generally is deemed waived. Note, however, that the Supreme Court has held that, in the absence of compelling reasons to the contrary, a court should grant relief from the waiver if the issue is normally tried by a jury
Woman commenced an action in federal court, properly based on diversity, seeking rescission of a contract. The company answered, denying the principal allegations of the woman’s complaint and asserting a counterclaim against the woman for breach of contract. In addition, the company timely served a demand for a jury trial. The woman did not.
What are the roles of the judge and jury as finders of fact in the trial of the parties’ claims?
Jury will first determine issues relating to breach of contract claims; judge will determine remaining issues of remission if they are not already resolved by the jury. If legal and equitable claims are joined in one action involving common fact issues, the legal claim is tried first before the jury, and then the equitable claim is tried to the court. The jury’s finding on fact issues will bind the court in the equitable claim.
In a diversity case, federal trial courts are required to apply a _______ when considering a motion for a new trial based on the excessiveness of the verdict.
n a diversity case, federal trial courts are required to apply a state law standard when considering a motion for a new trial based on the excessiveness of the verdict. Federal trial courts may neither use a federal law standard, nor choose a state or federal law standard in the court’s discretion.
Accomplice Liability at Common Law
Specific Intent Crime - An accomplice is one who (i) with the intent to assist the principal and the intent that the principal commit the substantive offense (ii) actually aids, counsels, or encourages the principal before or during the commission of the crime. Absent a statute - mere knowledge is not enough
A homeowner decided to destroy his home by fire in order to collect the insurance. A neighbor’s house was located a short distance from the homeowner’s home. The homeowner knew that there was a strong wind blowing towards the neighbor’s home; while he did not want to burn the neighbor’s home, he nevertheless set fire to his own home. Fire dept put out the fire moments before it spread to the neighbor’s home, which suffered damage from smoke and soot. The jurisdiction’s arson statute covers burning one’s own dwelling as well as the dwelling of another, but is otherwise unchanged from the common law. If the homeowner is charged with attempted arson of the neighbor’s home, is he likely to be found guilty?
The homeowner will be found not guilty because he did not have the requisite mental state. To convict a person for an attempted crime, the prosecution must establish that the defendant had an actual specific intent to cause the harm prohibited by the statute and committed an act beyond mere preparation in furtherance of that intent. Those elements-specific intent and act-are required regardless of the mental state required by the target offense. A person who took a substantial step towards commission of the crime but was only reckless with respect to the target offense could not be found guilty of attempt. The homeowner did not intend to burn the neighbor’s home. Therefore, he cannot be guilty of attempted arson of the neighbor’s home.
Malice Aforethought - define
- intent to kill 2. intent to inflict serious bodily injury (and someone dies) 3. intent to commit a serious dangerous felony (BARRK) that results in death - everyone that participated guilty (unintentional) 4. depraved heart murder - unintentional killing that results from defendant’s reckless conduct
Involuntary Manslaughter - types and define
- voluntary manslaughter - intentional killing in the heat of passion where the defendant acts with adequate provocation 2. involuntary manslaughter - unintentional killing caused by criminally negligent conduct 3. misdemeanor manslaughter - misdemeanor assault/battery resulting in the death of another
To what torts does the doctrine of transferred intent apply?
The transferred intent doctrine allows an intent to commit a tort against one person to be transferred to the committed tort or to the injured person. It applies to (i) assault, (ii) battery, (iii) false imprisonment, (iv) trespass to land, and (v) trespass to chattels
Elements for the tort of Battery
The elements that must be proved to establish a prima facie case for battery are: (i) An act by the defendant that brings about harmful or offensive contact to the plaintiff’s person; (ii) Intent by the defendant to bring about the harmful or offensive contact; and (iii) Causation. Contact is harmful if it causes actual injury, pain, or disfigurement. Contact is offensive if it would be considered offensive to a reasonable person.
Elements for the tort of Assault
The prima facie case for assault requires (i) an act by defendant causing a reasonable apprehension in plaintiff of immediate harmful or offensive contact to plaintiff’s person, (ii) intent by defendant to bring about in plaintiff apprehension of that contact, and (iii) causation. For there to be apprehension, plaintiff must be aware of defendant’s act at the time that it is occurring.
Who may use force? -Landowner who has been tortiously dispossessed? - owner of chattel trying to recapture the chattel? - citizen trying to effect a misdemeanor arrest? -property owner trying to defend the property from tortious interference?
A landowner may not use force to regain real property after being tortiously dispossessed. Most states today do not allow resort to “self-help”; one who has been wrongfully excluded from possession of real property may bring an ejectment action or other summary procedure to recover possession. Hence, the owner who uses force to retake possession is liable for whatever injury she inflicts. (In former years, under the common law, a landowner tortiously dispossessed of real property could use reasonable force to regain possession, if she acted promptly upon discovery of the dispossession.) An owner of chattel may use force to recapture the chattel. An owner may use reasonable force to recapture a chattel when in “hot pursuit” of the tortfeasor. A demand for return of the chattel must be made before force is used, unless the demand would be futile or dangerous. However, force can be used only against the tortfeasor or a third party who knows that the chattel was tortiously obtained. If an innocent third party has obtained the chattel, the owner is no longer privileged to use force to effect a recapture of the chattel. A citizen may use force to effect a misdemeanor arrest. However, the citizen is allowed to use only the amount of force necessary to effect the arrest and never deadly force. A property owner may use force to defend the property from tortious interference. Although a property owner may use reasonable force to defend property, she may not use force that will cause death or serious bodily harm. Furthermore, one may not use indirect deadly force such as a trap, spring gun, or vicious dog when such force could not lawfully be directly used, e.g., against a mere trespasser.
Shopkeeper’s Privilege - Elements
(1) must have a reasonable belief as to the fact of theft, (2) must conduct the detention in a reasonable manner and detain the suspect for a reasonable period of time for the privilege to apply. By statute in some states and case law in others, shopkeepers have been given a privilege to detain someone suspected of shoplifting and thus avoid liability for false imprisonment. The following conditions must be satisfied: 1. There must be a reasonable belief as to the fact of theft; 2. The detention must be conducted in a reasonable manner and only nondeadly force can be used; and 3. The detention must be only for a reasonable period of time and only for the purpose of making an investigation. A shopkeeper is not required to notify the police in a reasonable amount of time to avoid liability for false imprisonment when detaining a suspect for shoplifting.
Privilege of Private Necessity
A person may interfere with the real or personal property of another when the interference is reasonably and apparently necessary to avoid threatened injury from a natural or other force and the threatened injury is substantially more serious than the invasion that is undertaken to avert it.
Using Force to Recapture Chattels
The defense of recapture of chattels is limited by the circumstances of the original dispossession. When another’s possession of the owner’s chattel began lawfully, the owner may use only peaceful means to recover the chattel. Force may be used to recapture a chattel only when in “hot pursuit” of one who has obtained possession wrongfully (e.g., by theft).
The defendant robbed a bank and fled in a getaway car driven by an accomplice, not realizing that one of the bundles of money he took had the serial numbers recorded and had a tiny tracking device attached to the wrapper. The bank’s security consultant obtained portable tracking equipment and was able to trace the bundle of money to the defendant’s house. The police were notified and they arrived at the defendant’s house a few hours after the robbery. They knocked on the door, announced their presence, and saw someone matching the description of the robber in the hallway. They entered and arrested the defendant, and then conducted a protective sweep of the house for the accomplice, who they believed had a gun. They did not find him, but while checking a closet, they discovered several of the bundles of money from the bank and a gun the defendant had used in the robbery. The police also discovered two clear plastic bags of what appeared to be marijuana sitting on top of a dresser. They seized the money, the gun, and the two bags. Later testing confirmed that the substance in the bags was marijuana. The defendant was charged with the bank robbery and with possession of the marijuana. At a preliminary hearing, he moves to suppress introduction of the money, gun, and marijuana. How should the court rule?
The court should suppress all of the evidence because it was the fruit of an unconstitutional arrest. As a general rule, the police must have an arrest warrant to effect an arrest of an individual in his own home. There is no general “emergency” exception to the warrant requirement. While police officers in hot pursuit of a fleeing felon or trying to prevent the destruction of evidence may sometimes make a warrantless search and seizure, the burden is on the government to show that one of those exceptions applies. Here, the police did not arrive at the defendant’s house in hot pursuit of the defendant, and there was no indication that the defendant might be destroying the money or other evidence; i.e., there were no circumstances precluding them from keeping the house under surveillance while they obtained a warrant. Hence, the arrest was unconstitutional. Because an arrest constitutes a seizure under the Fourth Amendment, the exclusionary rule applies, and evidence that is the fruit of the unconstitutional arrest may not be used against the defendant at trial. Here, all of the evidence was seized without a warrant, and none of the other exceptions to the warrant requirement are applicable. While the protective sweep that turned up the money and gun probably would have been within the bounds of a search incident to an arrest because the police had reason to believe an armed accomplice was present, the arrest in violation of the Fourth Amendment makes the search unlawful. Similarly, while the bags of marijuana were discovered in plain view, the police have to be legitimately on the premises for that exception to apply.
A fee simple owner of a restaurant provided in his will that the property should go on his death “in fee simple to my friend, but if during my friend’s lifetime my son has children and those children are alive when my friend dies, then to said living children.” When the owner died, the friend took over the restaurant. If the son has children and one or more of them are alive when the friend dies, who will take title to the restaurant at that time?
The son’s children, because their interest will vest, if at all, within a life in being plus 21 years. The interest given to the son’s children does not violate the Rule Against Perpetuities because the interest will vest, if at all, within 21 years after the life of the friend. Pursuant to the Rule Against Perpetuities, no interest in property is valid unless it must vest, if at all, not later than 21 years after one or more lives in being at the creation of the interest. In the case of a will, the perpetuities period begins to run on the date of the testator’s death, and measuring lives used to show the validity of an interest must be in existence at that time. Here, the interest given to any of the son’s children who are born during the friend’s lifetime and who survive the friend must vest, if at all, on the death of the friend (who is a life in being at the time of the owner’s death). Thus, this interest will vest, if it does vest, within 21 years after the friend’s life, and is therefore not in violation of the Rule Against Perpetuities. (A) is therefore incorrect; if one or more of the son’s children is alive at the time of the friend’s death, the friend’s heirs will get nothing because their fee simple will be divested. (B) incorrectly characterizes the interest of the son’s children as a possibility of reverter. A possibility of reverter is the future interest left in a grantor who conveys a fee simple determinable estate. Although under different circumstances the son’s children could acquire a possibility of reverter as heirs of the grantor (the owner), their interest in this case was conveyed directly to them in the owner’s will. (C) is incorrect because the interest of the son’s children is not vested. Their interest is a shifting executory interest rather than a remainder because it divests the fee simple estate of the friend and his heirs. The friend has a fee simple subject to an executory interest because the estate will remain with his heirs if none of the son’s children are alive when the friend dies. The friend’s death while the son’s children are alive divests the interest of the friend’s heirs; it is therefore a shifting executory interest rather than a remainder.
A pedestrian was injured in an auto accident caused by a driver. The pedestrian’s injuries included a broken nose and a broken toe. Not sure of the strength of her case, she sued the driver only for the injuries to her nose. She was awarded $15,000 in damages. Encouraged by this success, she now wishes to sue the driver for the injuries to her toe. May she sue the driver again?
The pedestrian may not sue the driver again because of merger. Merger occurs when the plaintiff wins; her cause of action is said to “merge” into the judgment such that she cannot relitigate the cause of action later. The court would hold that all of the personal injuries received by the pedestrian in one accident constitute a single cause of action, and that claim preclusion principles forbid relitigation.
A man and a woman were arrested and charged with a series of armed robberies. Each suspect was given Miranda warnings, and different interrogation teams questioned each suspect separately. Upon being questioned, the man told the police, “I’m not going to talk until I see a lawyer.” An officer responded, “You might want to reconsider, because your partner has already confessed, and she’s implicated you in the crimes.” The man then told the police that he wanted to talk to the woman privately. The police escorted the man to the woman’s cell, locked him in with her, and left. Unbeknownst to either of them, the police had bugged the woman’s cell and recorded both the man and the woman making self-incriminating statements during their meeting. The man made no further statements to the police on advice of counsel, whom he called immediately after his conversation with the woman. The man was put on trial first, and the prosecution sought to introduce into evidence tapes of the bugged conversation between the man and the woman. The defense made a motion to suppress the evidence. Should the court grant the motion to suppress?
The conversation should be suppressed because the police conduct violated the man’s Sixth Amendment right to counsel. The Sixth Amendment provides that in all criminal prosecutions a defendant has a right to the assistance of counsel at all critical stages after formal proceedings have begun. For Sixth Amendment purposes, a criminal prosecution begins when adversary judicial proceedings have commenced, such as the filing of formal charges in this case. Because custodial interrogation is a critical stage of prosecution, the Sixth Amendment is violated by post-charge interrogation unless the defendant has waived his right to counsel. Interrogation includes not only direct questioning, but also any other conduct by the police intended to elicit a response. The police conduct here (telling the man that the woman had implicated him and then bugging the conversation) constitutes prohibited interrogation. [See Maine v. Moulton (1985)] (A) is incorrect because the wiretap was not an illegal search under the Fourth Amendment. Wiretapping and other forms of electronic surveillance are subject to the Fourth Amendment prohibition of unreasonable searches and seizures. However, to have a Fourth Amendment right, a person must have a reasonable expectation of privacy with respect to the place searched or the item seized. In a different context, the Supreme Court has held that prisoners have no reasonable expectation of privacy in their cells or in any personal property that they have in their cells. [Hudson v. Palmer (1984)] Hence, neither defendant can assert a Fourth Amendment claim based on the wiretap, because they had no reasonable expectation of privacy in the jail cell. The fact that there was no expectation of privacy does not make choice (C) correct, however. Even though he probably cannot claim that the bugging was an unreasonable search under the Fourth Amendment, the man can claim that it was an interrogation in violation of his Sixth Amendment right to counsel, as discussed above. (D) is incorrect because it is irrelevant. The facts probably would not give rise to a Miranda violation in light of the Court’s ruling in Illinois v. Perkins (1990) that Miranda does not apply unless interrogation is by someone known to be a police officer (on the rationale that Miranda is merely a prophylactic rule designed to offset the coercive nature of a custodial interrogation by a police officer). In any case, Miranda rights and Sixth Amendment rights to counsel can only be waived knowingly, and so the man’s ignorance of the fact that the cell was bugged precludes a finding of waiver here.
Several members of a small terrorist group are on trial in federal court for conspiring to bomb a military installation. The prosecution would like to introduce the testimony of a military guard at one of the installation’s gates. The guard had been present when a bomb that was being planted by a member of the group had exploded prematurely. The guard will testify that she ran over to administer first aid to the member, who in great pain told her that his group was in the process of planting three other bombs in other areas of the military installation and was going to detonate them all at the same time to get publicity for their cause. The guard will also testify that the member disclosed the locations of the other bombs and the names of two other members of the group. The authorities were able to prevent the other bombings and arrest the other members of the group. The member died from his injuries. What is the best basis for allowing the guard to testify as to the member’s statements?
The member’s statements are admissible as a statement against interest. Under the Federal Rules, statements of a person, now unavailable as a witness, against that person’s pecuniary, proprietary, or penal interest when made are admissible as an exception to the hearsay rule. Here, the member’s statements implicating himself in the bombing conspiracy were against his penal interest when he made them; hence, they are probably admissible under that exception. (A) is wrong because for a co-conspirator’s statement to qualify as a vicarious statement of an opposing party, the statement must have been in furtherance of the conspiracy by a participant in it. Here, the member’s statements were not made in furtherance of the conspiracy but instead served to thwart its success. (C) is wrong because the member’s statements are not being used to show his then-existing state of mind but rather the scope of the conspiracy and the defendants’ participation in it. (D) is wrong because, even assuming that the member made the statements while believing his death was imminent (which the facts do not clearly establish), dying declarations are admissible under the Federal Rules only in a prosecution for homicide or in a civil action, and this case was neither of those.
A father executed a deed to his art gallery “to my daughter for her life, and on my daughter’s death to her children; provided, however, that if my daughter stops painting, to my brother.” The daughter has two children and is still painting. At the time of the grant, what is the best description of the interest of the daughter’s two children?
The daughter’s two children have a vested remainder subject to open and subject to complete divestment. A remainder is a future interest created in a transferee that is capable of taking in possession on the natural termination of the preceding estate. A remainder is vested if the beneficiaries are ascertainable and their taking in possession is not subject to a condition precedent. A vested remainder created in a class of persons that is certain to take but is subject to diminution by reason of others becoming entitled to take is a vested remainder subject to open. Vested remainders may be subject to total divestment if possession is subject to being defeated by the happening of a condition subsequent. Here, the daughter’s two children have a remainder because, on the expiration of the daughter’s life estate, they will be entitled to possession of the property. The remainder is not subject to a condition precedent and the beneficiaries are in existence and ascertained, so the remainder is vested, not contingent. The remainder is subject to open because the daughter may have more children. Finally, the remainder is subject to total divestment because the daughter’s children’s right to possession is subject to being defeated by the daughter’s ceasing to paint.
A vintner divided his vineyard into two parcels, drawing the boundaries so that the single well that had irrigated the entire vineyard fell on the border of the two properties. The vintner then conveyed the eastern parcel to his friend by a deed that contained the following covenant: “If the well located on the boundary of the eastern and western parcels continues to be used for irrigation purposes and becomes in need of repair or replacement, the grantee, his heirs, and assigns and the grantor, his heirs, and assigns each promise to pay one-half of the cost of such repair or replacement. This covenant shall run with the land.” The deed from the vintner to the friend was not recorded, and the vintner did not record a copy of the deed with the records for the western parcel. The friend later sold the eastern parcel to a farmer. The farmer’s deed did not contain the covenant about the well. After 15 years of use by the owners of both the eastern and western parcels, the well began to fail. The farmer took it upon himself to have the well repaired at a cost of $30,000. About two weeks later, the farmer discovered the deed from the vintner to the friend in some old files. By this time, the western parcel had passed to the vintner’s son by inheritance and again to the son’s daughter by inheritance from the now-deceased son. The daughter knew nothing of the covenant concerning the well. The farmer presented the daughter with the bill for the well repair with a copy of the vintner/friend deed and a note that said he expected to be reimbursed for $15,000. The daughter refuses to pay, and the farmer sues. The jurisdiction has a 10-year statute of limitations for acquiring property by adverse possession, and the following recording statute: “Any conveyance of an interest in land shall not be valid against any subsequent purchaser for value, without notice thereof, unless the conveyance is recorded.” For whom is the court most likely to rule?
The farmer will most likely prevail in his suit for one-half the cost of the well repairs because the covenant runs with the land. When a covenant runs with the land, subsequent owners of the land may enforce or be burdened by the covenant. If all of the requirements for the burden to run are met, the successor in interest to the burdened estate will be bound by the arrangement as effectively as if he had himself expressly agreed to be bound. To be bound: (i) the parties must have intended that the covenant run with the land; (ii) the original parties must have been in horizontal privity; (iii) the succeeding party must be in vertical privity with the original promisor; (iv) the covenant must touch and concern the land; and (v) generally, the burdened party must have actual or constructive notice of the covenant. Here, the intent is shown by the express language of the covenant, which says that it is intended to run with the land. Even without that language, the use of the words “heirs” and “assigns” would show the intent for the covenant to run. The original parties were in horizontal privity because at the time the vintner entered into the covenant, he and the friend shared an interest in the land independent of the covenant—as grantor and grantee. The daughter is in vertical privity with the vintner because she holds the entire interest in the western parcel held by the vintner. The covenant touches and concerns the land because promises to pay money to be used in a way connected with the land are held to touch and concern the property. Because the daughter was unaware of the covenant, the required notice seems to be missing. While it is generally true that the owner of the burdened land must have notice, it should be remembered that the requirement is a function of the recording statute. (At common law, the covenant was enforceable in an action for damages regardless of notice; this was changed by the recording statutes.) However, because the daughter is a donee (an heir) and not a bona fide purchaser, she is not protected by the recording statute and thus is subject to the covenant even without notice. For that reason, (A) is wrong. (B) is wrong because the farmer’s possession does not satisfy several of the requirements for adverse possession. Because the farmer had a legal right to use the well, his use was not adverse or hostile to the rights of the vintner’s son and the son’s daughter, but was rather permissive. The farmer’s possession also fails the exclusivity requirement because the facts state that the well was used to irrigate both parcels for most of the statutory period. (D) is wrong because the farmer’s status as a bona fide purchaser has no effect on his ability to enforce the covenant. A successor in interest to the original promisee may enforce the covenant (enjoy the benefit) if there was intent and vertical privity, and the covenant touches and concerns the land. Notice is not required for the benefit to run. Thus, because the above requirements are met here, the farmer may enforce the covenant regardless of his status as a bona fide purchaser. Had the farmer taken the property as a donee, the above analysis would be the same.
A plumber working for a company providing plumbing services to commercial and industrial establishments was required to be “on call” for emergency plumbing services 24 hours a day, and was required to drive his company van home each night so he would have all of his tools and equipment at hand for any calls. However, he was not permitted to use the company van for personal errands. On his way home one afternoon, he took a detour toward a supermarket a few blocks away to pick up some items for dinner. While entering the supermarket parking lot, he drove negligently and struck a pedestrian, seriously injuring him. The pedestrian filed suit against the plumber’s company in a jurisdiction that maintains traditional common law rules regarding contribution and indemnity, and the jury awarded him $100,000 in damages, which the company paid. If the company sues the plumber to recoup its loss in the lawsuit, which party will prevail?
The company can recover 100% of the judgment under common law indemnity rules. The principle of indemnity permits a shifting between the tortfeasors of the entire loss (i.e., the payment made to satisfy plaintiff’s judgment). This is in contrast to contribution, which apportions the loss among those who are at fault. Indemnity is available in vicarious liability situations, where one party is held liable for damages caused by another simply because of his relationship to that person. Hence, an employer such as the plumber’s company that has been held vicariously liable under the doctrine of respondeat superior can obtain indemnification from the employee (the plumber) whose conduct actually caused the damage. (B) is incorrect because the company need not show that the plumber breached a company rule before it can obtain indemnity. The fact that the plumber’s negligence caused the injury and that the company was liable for the judgment solely because of its relationship to the plumber permits indemnification here. (C) is incorrect because vicarious liability is one of the most common areas where indemnity is available. (D) is incorrect because the company’s requirement that the plumber be on call 24 hours a day merely establishes that the company will be vicariously liable for the plumber’s negligence; it does not bar the company from recovering from the plumber because the plumber’s negligence actually caused the damage.
What will a mistake (both parties) do to a contract?
When both parties entering into a contract are mistaken about existing facts relating to the agreement, the contract may be voidable by the adversely affected party if (i) the mistake concerns a basic assumption on which the contract is made; (ii) the mistake has a material effect on the agreed-upon exchange; and (iii) the party seeking avoidance did not assume the risk of the mistake.
What happens at a Rule 26(f) conference? When is it?
At a Rule 26(f) conference, the parties must confer to consider their claims and defenses, the possibility of settlement, initial disclosures, and a discovery plan. The parties then must submit a proposed discovery plan to the court, and the plan must address the timing and form of required disclosures, the subjects on which discovery may be needed, the timing of and limitations on discovery, and relevant orders that may be required of the court. At the start of the case, before discovery requests are sent. (CANNOT SERVE DISCOVERY UNTIL AFTER 26(f) (only requests for production)) Unless court order says otherwise, at least 21 days before scheduling order, parties “meet and confer.”
The governor of an arid western state owned a vacation home and permitted his son to have a party there. At the end of the night the son failed to properly extinguish a bonfire that he and his friends had built, and within a few hours, wind-blown cinders had spread the fire to the trees east of the lodge. At the same time several miles away, a worker at a lumber mill was making emergency repairs to a pipe running between two mill buildings. He did not notice some of the sparks from his welding torch land in a pile of dried lumber and catch fire, and he failed to check the area after he was finished. By the time the fire was noticed by another employee, it was out of control. The wind blew both fires toward a landowner’s hunting lodge. They merged a mile away and shortly thereafter totally consumed the lodge. For political reasons, the landowner did not bring a lawsuit against the governor or his son. He did, however, file a lawsuit against the lumber mill, alleging that its employee’s negligence caused the destruction of his lodge. Evidence at trial established that either fire alone would have destroyed the lodge as well. Can the landowner recover from the lumber mill?
The landowner can recover the full amount of his damages from the lumber mill because the negligence of its employee caused the destruction of the lodge. Before a defendant will be liable for a breach of duty to the plaintiff, it must be shown that the breach was the actual and proximate cause of the injury. The general test for determining whether an act or omission is the actual cause of the injury is the “but for” test, i.e., whether the injury would not have occurred but for the act or omission. Under certain circumstances, however, the “but for” test is inadequate to determine actual cause. Where several causes combine to bring about an injury—and any one alone would have been sufficient to cause the injury—the actual cause requirement is satisfied if defendant’s conduct was a substantial factor in causing the injury. Under this analysis, the fire started by the lumber mill employee was an actual cause of the destruction of the landowner’s lodge because it was a substantial factor in causing the harm. It was also a proximate cause of the harm because no intervening forces broke the causal connection between the act and the harm. Because its employee was acting within the scope of his employment when he caused the fire to start, the lumber mill is vicariously liable for the injury that resulted. (A) is incorrect because the “but for” test is not applicable to these facts. Under that test, neither fire would be the actual cause of the harm because, looking at either fire alone, the harm would have occurred even without it. However, under the substantial factor test, both fires are actual causes of the injury. (B) is incorrect even though it is true that the damage is indivisible. The landowner can still recover from the lumber mill even if he does not sue the other tortfeasor. (D) is incorrect because joint and several liability rules allow the landowner to recover his full damages from the lumber mill. Where two or more tortious acts combine to proximately cause an indivisible injury to plaintiff, each tortfeasor will be jointly and severally liable for that injury, even though each defendant acted entirely independently. The effect of joint and several liability is that the plaintiff may recover the entire amount of the damages from any tortfeasor, who then may have a right of contribution from the other tortfeasor. Hence, even though the negligence of another tortfeasor was also an actual cause of the destruction of the landowner’s lodge, the landowner is entitled to recover all of his damages from the lumber mill.
A landowner validly conveyed a small office building to the Green Party “as long as they use it for operating quarters until the next presidential election.” After the next presidential election, which was in three years, the building would go to a private organization that monitors and prepares comprehensive listings of gas prices throughout the country. A year after the conveyance, the landowner died, validly devising all of her property to her son. Although this jurisdiction is a common law jurisdiction with respect to all real property considerations, the state’s probate laws provide that future interests or estates in real property may be passed by will or descent in the same manner as present or possessory interests. Last week, the Green Party and the gas monitoring organization joined together to sell the office building in fee simple absolute to a developer. The son filed suit to prevent the sale of the property to the developer. In this action, who should prevail?
The son may enjoin the sale because he has an interest in the property. A fee simple determinable is an estate that automatically terminates on the happening of a stated event. The Green Party’s interest in the office building is a fee simple determinable because it lasts as long as the Party is using the building for operating quarters. However, the grant does not provide for the contingency of the Green Party ceasing to use the building as operating quarters before the next presidential election. This gap would be filled by a possibility of reverter retained by the landowner. Because the landowner passed that interest to her son in her will, there can be no contract to sell the property without his signature. Note: Although the gas monitoring organization appears to have an indefeasibly vested remainder (i.e., it is created in an ascertained company, is certain to become possessory, and is not subject to being defeated, divested, or diminished in size), its interest is not capable of taking on the natural termination of the preceding estate and so is characterized as a springing executory interest. (A) is wrong because the son also has an interest in the land. (B) is wrong because the interest in the office building will pass to the gas monitoring organization, if at all, within 21 years. (C) is wrong because the Green Party is not prohibited from transferring any interest; it could pass a defeasible fee.
A state statute defines all murders as second degree murders unless deliberation and premeditation can be shown, in which case the crime is elevated to first degree murder. Manslaughter is defined as at common law. The defendant, just having been served with divorce papers, decided to drown his sorrows at the local pub. After drinking heavily and becoming very intoxicated, the defendant became enraged when another patron spilled a drink on him. He took a nearby ashtray and smashed it over the patron’s head, killing him instantly. The crimes below are listed in descending order of seriousness. What is the most serious crime of which the defendant could be convicted? Press Enter or Space to submit the answer A Murder in the first degree. Correct B Murder in the second degree. Incorrect C Voluntary manslaughter. D Involuntary manslaughter.
The most serious crime that the defendant would be convicted of is murder in the second degree. The jurisdiction defines murder in the first degree as deliberate premeditated murder, whereas all other types of killings are defined as at common law. Deliberation and premeditation requires some time of cool reflection on the idea of killing. In the instant case, there are no facts indicating that the defendant coolly reflected on the idea of killing. The facts indicate an impulsive killing rather than any type of deliberate, premeditated killing. Furthermore, the facts indicate that the defendant was very intoxicated, which would serve as a basis for reducing the crime to second degree murder. Thus, (A) is incorrect. The state defines murder in the second degree just like common law murder. At common law, murder required malice; i.e., (i) the intent to kill, (ii) the intent to inflict great bodily injury, (iii) reckless indifference to an unjustifiably high risk to human life, or (iv) the intent to commit a felony. Here, the reckless indifference element arguably could be satisfied. By smashing a heavy ashtray over the other patron’s head, the defendant unjustifiably disregarded that the blow could be a killing blow. Neither would intoxication be a defense, as there would be no specific intent-to-kill requirement under this type of analysis. (D) is incorrect. Involuntary manslaughter is a killing committed with criminal negligence or during the perpetration of some unlawful act not encompassing a felony for felony murder. Certainly, striking another with a heavy object would constitute criminal negligence sufficient for conviction. However, involuntary manslaughter is a lesser crime than murder in the second degree, and the call of the question asks for the most serious crime of which the defendant could be convicted, making (B) a better choice than (D). (C) is also incorrect. Voluntary manslaughter is a killing committed under the duress of an adequate provocation, and it requires (i) a provocation sufficient to arouse the sudden and intense passion in the mind of an ordinary person such as to cause him to lose self-control; (ii) the defendant to be in fact provoked; (iii) an insufficient time to cool off; and (iv) the defendant did not in fact cool off. It is unlikely that having a drink spilled on him would cause an ordinary person to commit murder. As a result, such a provocation is not adequate to reduce the killing to voluntary manslaughter.
A plaintiff sued an auto manufacturer for negligence after a car accident involving the plaintiff’s car that was made by the auto manufacturer. Sixty days after service of the complaint and 40 days after service of the manufacturer’s answer that contained no counterclaim, the plaintiff filed a motion seeking to file an amended complaint adding a claim for strict products liability against the auto manufacturer stemming from the same incident. The statute of limitations for strict products liability claims expired one week before the motion was filed. How should the court rule on the plaintiff’s motion?
The court should grant the motion. Federal Rule of Civil Procedure 15 states that leave of court (to grant motions to amend) is to be “freely given when justice so requires.” The rule does not provide any clear date when amendments are no longer permissible, although later amendments obviously would be less fair and less likely to be considered in the interest of justice. Additionally, for statute of limitations purposes, proposed claims may be considered to “relate back” to the date of the original pleading in which the claim was made under Rule 15(c). That is critical here because, although the statute of limitations for the proposed products liability claim had expired at the time the motion was made, the amended complaint asserting a products liability claim relates back to the original filing because that claim stems from the same facts alleged in the original complaint, and the statute of limitations had not expired at the time of the original filing. (A) is incorrect because a plaintiff may amend the complaint once as a matter of course (i.e., without court intervention) not later than 21 days after service of the auto manufacturer’s answer. Here, 40 days have passed since the auto manufacturer filed its answer, so amending as a matter of course is not permitted. (C) is incorrect. Although the proposed claim would be futile if filed in an original complaint, here, because the claim can relate back to a complaint filed at a time when the proposed claim was still viable, the proposed claim is not considered futile. (D) is incorrect by suggesting that the motion is not timely. Although plaintiff can no longer amend as a matter of course, there is no absolute date pursuant to which a motion to amend is untimely.
Using his cellphone, a witness recorded a speeding driver hitting a pedestrian. The witness sold the recording to the driver. The driver then gave the recording to his attorney. After the pedestrian filed suit against the driver, the pedestrian sent a discovery request to the driver requesting that he produce “all items that show or describe the accident.” Does he have to provide the video?
The driver must provide the video. Parties are entitled to discovery that fits under Rule 26(b) (1), which includes “any nonprivileged matter that is relevant to any party’s claim or defense.” In other words, even if the matter is only relevant to the opposing party, it would still be covered. Additionally, Rule 34 requires a party to produce relevant physical material, including electronically stored information, such as the recording here. There is no exception to relevance for matter that is damaging to a party, so (B) is incorrect. (Being damaging to the defendant’s defense might be reason not to disclose it as an initial disclosure because the defendant would not use the recording to support his defense, but the recording would have to be disclosed on a proper request.) (C) is also incorrect. There is no exception from the scope of discovery for items that were purchased; discovery encompasses all items in a party’s possession or control. Furthermore, although the recording is in the attorney’s possession, this should be interpreted as under the party’s control. (D) is incorrect because, while it states the rule for when work product must be provided, there is no work product involved. Mere possession by an attorney of factual information does not constitute work product that is exempt from discovery. Rather, work product is material created by a party or a representative (such as an attorney) prepared in anticipation of litigation. This recording was not created by the party or any representative of the party, and therefore it is not work product.
A minor league ballplayer hit a fly ball over the wall and out of the park during a game and struck a woman riding along the adjacent street on a bicycle. The woman sued the ballplayer for negligence. The woman alleged that the ballplayer had often hit balls out of the park and was aware that he had previously struck a car driving down the street. Assuming the woman’s allegations are correct, is she likely to prevail?
The woman will not prevail because the ballplayer’s conduct did not breach any duty owed to the woman. The prima facie case for negligence requires the plaintiff to show: (i) a duty on the part of the defendant to conform to a specific standard of conduct for the protection of the plaintiff against an unreasonable risk of injury; (ii) breach of that duty by the defendant; (iii) that the breach was the actual and proximate cause of the plaintiff’s injury; and (iv) damage to the plaintiff’s person or property. Whenever a person engages in an activity, he is under a legal duty to act as an ordinary, prudent, reasonable person engaged in the same or similar activity. If a defendant’s conduct creates an unreasonable risk of injury to persons in the position of the plaintiff, the general duty of care extends from the defendant to the plaintiff. Here, there is some risk of injury to those outside the park based on previous occurrences. However, there are no precautions that the ballplayer could have undertaken that would not directly conflict with the requirements of his job and harm his career. On balance, the burden on the ballplayer to avoid any risk of injury far outweighs the likelihood of a ball hit by him clearing the wall and causing injury to someone. Hence, the ballplayer’s conduct did not create an unreasonable risk of injury to the woman and he did not breach a duty of care owed to her. Thus, she is not likely to prevail.
MPC Insanity Test
Pursuant to the Model Penal Code, a defendant is entitled to acquittal if he suffered from a mental disease or defect and as a result lacked substantial capacity to either: (i) appreciate the criminality of his conduct; or (ii) conform his conduct to the requirements of law. Note that the Model Penal Code test combines the M’Naghten and irresistible impulse tests.
Durham Insanity Test
if the jurisdiction followed the Durham insanity test = a defendant is entitled to acquittal if his crime was the product of mental disease or defect.
M’Naughten Insanity Rule
presents a valid defense under the M’Naghten rule, which provides for acquittal if a disease of the mind caused a defect of reason, such that the defendant lacked the ability at the time of his actions to either: (i) know the wrongfulness of his actions; or (ii) understand the nature and quality of his actions.
Irresistible Impulses Insanity Test
irresistible impulse test provides for acquittal if, because of mental illness, the defendant was unable to control his actions or to conform his conduct to the law.
MBE’s Definition of Assault
For purposes of the MBE, an assault is either (i) an attempt to commit a battery, or (ii) the intentional creation, other than by mere words, of a reasonable apprehension in the mind of the victim of imminent bodily harm.
a son executed and delivered to the creditor a warranty deed to a large tract of undeveloped land. The creditor promptly recorded the deed. Shortly thereafter, she built a house on the property and has lived there ever since. The son never actually owned the land. It belonged to his father, but the father had promised to leave the property to the son. Later, the father died and his will devised the property to the son. Pressed for money, the son then sold the land to an investor by warranty deed, which the investor promptly recorded. Although the investor paid full value for the property, he purchased it strictly for investment and never visited the site. He therefore did not realize that the creditor was living there, and knew nothing of the son’s earlier deed to the creditor. The jurisdiction in which the land is located has the following statute: “A conveyance of an estate in land (other than a lease for less than one year) shall not be valid against any subsequent purchaser for value without notice thereof unless the conveyance is recorded.” Which of the following is the most likely outcome of a quiet title action brought by the creditor against the investor? A The creditor prevails, because the son had no title to convey to the investor. B The creditor prevails, because the investor was not a purchaser for value without notice of the creditor’s interest. C The investor prevails, because under the doctrine of estoppel by deed, title inures to the benefit of the original grantee only as against the grantor. D The investor prevails, because under the recording acts, the deed from the son to the creditor was not in the chain of title and hence did not constitute notice to the investor.
The creditor will prevail in a suit to quiet title because the investor had notice of the creditor’s interest in the property and, thus, is not a bona fide purchaser for value. When a grantor purports to convey property that he does not own, his subsequent acquisition of title to that property vests in the grantee under the doctrine of estoppel by deed. Most courts, however, hold that this is personal estoppel, which means that title inures to the grantee’s benefit only as against the grantor, not a subsequent bona fide purchaser. If the grantor transfers his after-acquired title to an innocent purchaser for value, the bona fide purchaser gets good title. There is a split of authority as to whether the original grantee’s recordation of the deed imparts sufficient notice to prevent a subsequent purchaser from being a bona fide purchaser, but the majority view is that it does not because it is not in his chain of title. Thus, it is not the fact that the creditor recorded that prevents the investor from being a bona fide purchaser. The fact that the creditor built a home and was living on the property gave the investor constructive notice of her interest. A title search is not complete without an examination of possession. If the possession is unexplained by the record, the subsequent purchaser is charged with knowledge of whatever an inspection of the property would have disclosed and anything that would have been disclosed by inquiring of the possessor. Therefore, the investor is charged with knowledge of the creditor’s possession and with what the creditor would have told him about her possession; i.e., that the property was conveyed to her by the son prior to his conveyance to the investor. Consequently, the investor does not qualify as a bona fide purchaser, and (C) is an incorrect choice. (A) is incorrect because, although the son is estopped to deny that he acquired title for the benefit of the creditor, he could have conveyed valid title to a subsequent purchaser for value who had no notice of the creditor’s interest. Therefore, it is not exactly correct to say that the son had no title to convey. (D) is incorrect because the investor will not prevail. It is true that under the recording acts the creditor’s deed was not in the chain of title, but the investor still does not qualify as a bona fide purchaser. The investor is on inquiry notice arising from the creditor’s possession of the property.
A boy mowing his lawn noticed a strong vibration from the engine but continued to mow. The engine housing suddenly broke apart and pieces flew off the lawnmower. One piece struck the boy in the head, seriously injuring him. The boy’s mother was inside the house and heard yelling from the backyard. She went to the window and saw her son lying on the ground by the lawnmower and a friend of his kneeling over him. She became very upset and fainted. Subsequent investigation showed that a negligent repair by a local mechanic caused the engine housing to shatter. The mother brought a lawsuit against the mechanic, seeking recovery for her son’s injury and the emotional distress she suffered. Can the mother recover damages for her emotional distress? A No, because her son’s continuing to mow after noticing the vibration was a superseding cause of the harm. B No, because the mother was not within the zone of danger from the mechanic’s negligence. C Yes, because the mother was closely related to someone in the zone of danger from the mechanic’s negligence. D Yes, because her son was injured by the mechanic’s negligence.
The mother cannot recover damages for her emotional distress. A duty to avoid negligent infliction of emotional distress may be breached when the defendant creates a foreseeable risk of physical injury to the plaintiff. The mother might try to assert two theories in support of her emotional distress claim, but she is unlikely to prevail on either one. First, she could claim distress flowing from fear for her own safety, but she may prevail only if the defendant’s negligence placed her in a zone of danger. Here, because she was safely inside her home and quite distant from the mower when it exploded, she was not in a zone of danger. Alternatively, she could claim distress flowing from her anguish at seeing her son injured. However, for a bystander who is outside the zone of danger from the risk of physical injury but who suffers emotional distress from seeing the defendant negligently injure another, most states allow recovery only if: (i) the plaintiff and the person injured by the defendant are closely related; (ii) the plaintiff was present at the scene of the injury; and (iii) the plaintiff personally observed or perceived the event. Here, while she is related to her son, who was injured by the mechanic’s negligence, she was not present at the scene of the injury and did not personally observe or perceive the event. Hence, she cannot recover damages for negligent infliction of emotional distress. (A) is incorrect. Under proximate cause rules, a third party’s negligence that contributes to the plaintiff’s harm will not be considered a superseding force where it is within the foreseeable risk created by the defendant’s negligence. While the son may have been negligent in continuing to use the mower, this conduct would not cut off the defendant’s liability to the mother if she otherwise could recover for her distress. (C) is incorrect because the plaintiff’s close relationship with the injured person is only one of the requirements for a plaintiff outside the zone of danger to recover emotional distress damages. Because the mother was not present at the scene and did not observe the event, she cannot recover. (D) is incorrect. While the mother can recover on her son’s behalf for his injury, she cannot recover for her emotional distress, as discussed above.
A hockey player who was playing in the final game of the season before a hostile crowd in the opponent’s packed stadium had an opportunity to get his team into the playoffs, but he missed a shot into an open net as the horn sounded, ending the game. As the crowd cheered and jeered, the puck bounced back to him and he shot it in anger toward the stands. A fan who had been looking the other way turned back toward the rink just in time to be struck in the face by the puck. He suffered a broken nose and a severe gash under his eye. After the game, the league commissioner fined the player for violating league rules by intentionally directing the puck out of the playing area. If the fan sues the player for battery, will the fan likely prevail? A No, because by attending a hockey game, the fan assumed the risk of pucks being shot into the stands. B No, because the player did not have the intent to strike the fan with the puck. C Yes, because the player knew that it was substantially certain that a fan would be hit by the puck. Incorrect D Yes, because the player violated league rules by intentionally shooting the puck out of the playing area.
Answer Discussion - Incorrect The fan will prevail in his battery action because the player had the requisite intent for battery. A prima facie case for battery requires plaintiff to prove (i) an act by defendant that brings about a harmful or offensive contact to the plaintiff’s person, (ii) intent on defendant’s part to bring about harmful or offensive contact, and (iii) causation. The intent element is satisfied as long as the defendant knew with substantial certainty that the harmful or offensive contact would result. Here, the player’s conduct caused a harmful contact to the fan, because the player set into motion the force that caused injury to the fan. His intentionally shooting the puck into the crowded stands is enough to establish that he knew with substantial certainty that the puck would strike a spectator. (Note that even if he only intended to cause apprehension of contact, which is the intent for assault, this intent would suffice for liability for battery under the doctrine of transferred intent.) (A) is wrong because assumption of risk is not a defense to intentional torts. The fan may have assumed a risk of injury from a hockey puck’s being accidentally or even negligently shot into the stands, but he did not assume the risk of a player’s intentionally shooting the puck at a spectator. (B) is wrong because the player need not have intended to strike that fan to be liable. As long as he knew with substantial certainty that a fan would be struck, he is liable even if he did not single out the fan as the target. (D) is wrong. The fact that the player violated league rules when he shot the puck into the stands tends to establish only that a spectator does not impliedly consent to a puck’s intentionally being shot at him, thus negating the defense of consent in a battery action. It does nothing to establish that the player did have the intent to commit a battery.
A dog owner lived next door to a day care center. Because he had a large yard and there were no applicable zoning restrictions, he installed a kennel and began training attack dogs to sell to businesses. As soon as he opened the business and posted signs in front advertising the exceptional ferocity of the dogs, some parents who had children enrolled in the day care center became alarmed at the prospect of the dogs right next to the yard where the children played, especially because the children could see and hear the dogs being taught to attack people. Within a few months of the dogs’ arrival next door, the owner of the day care lost 10% of her enrollment. If the day care owner brings a nuisance action against the dog owner, what will be the most critical factual issue that the trier of fact must resolve to determine who should prevail? A Whether the day care owner suffered other damages in addition to her economic losses. B Whether the day care owner’s use of her property makes her business abnormally sensitive to the presence of the dogs. C Whether the dog owner conducted his business with reasonable care. D Whether the dog owner was apprised of the day care owner’s concerns and did nothing to alleviate them.
The determining factor for the day care owner in prevailing will be whether her use of the property is abnormally sensitive to the presence of the dogs. Nuisance is an invasion of private property rights by conduct that is either intentional, negligent, or subject to strict liability. Strict liability will be the basis for a nuisance action (sometimes called an “absolute” nuisance or a “nuisance per se”) when wild animals or abnormally dangerous domestic animals are involved, or when defendant is engaged in an abnormally dangerous activity. Thus, dogs known by their owner to be vicious may create a private nuisance when they interfere with the use and enjoyment of the land next door, and the owner may be subject to strict liability because of his knowledge of the dogs’ dangerous propensities. [See Restatement (Second) of Torts §822, comment j] For the presence of the dogs to be an actionable nuisance, however, they must result in a substantial interference with the day care owner’s use of her land. The interference will not be characterized as substantial if it is merely the result of plaintiff’s specialized use of her own property. [See Foster v. Preston Mill Co., 268 P.2d 645 (1954)-D not strictly liable for blasting operations that caused female mink on P’s ranch to kill their young in reaction to the vibrations] Hence, (B) states the most critical factual issue. (A) is incorrect because the day care owner does not need to establish other types of damages to recover once she has established that the dog owner’s activity is an actionable interference with the use and enjoyment of her land. (C) is incorrect because the exercise of reasonable care by the dog owner is irrelevant; the day care owner’s nuisance action arises from an activity for which the dog owner is strictly liable. (D) is incorrect because the dog owner’s knowledge of his interference with the day care owner’s use of her property would only establish that his conduct might also be an intentional nuisance, which would require the day care owner to show unreasonableness, i.e., that her injury outweighs the utility of his conduct. She does not need to make that showing for a nuisance action based on strict liability.
A landowner included in his will a provision giving “all of my property, both real and personal, wherever situated, to my widow for life, and after her death to any of our children who may survive her.” What is the gift to the children?
A contingent remainder. A remainder is a future interest created in a transferee that is capable of taking in present possession on the natural termination of the preceding estate created in the same disposition. Note that, as a rule of thumb, remainders always follow life estates. A remainder will be classified as contingent if its taking is subject to a condition precedent, or it is created in favor of unborn or unascertained persons. Here, the interest in the children follows a life estate and is a remainder because it is capable of taking in possession on the natural termination of the preceding estate. It is subject to the condition precedent of surviving the landowner’s widow and, additionally, is in favor of unascertained persons (the children who survive the landowner’s widow will not be ascertained until her death). Thus, the interest is a contingent remainder.
When should the court grant Motion for Summary Judgment
FRCP Rule 56: Summary judgment may (DISCRETIONARY) be granted if, from the pleadings, affidavits, and discovery materials, it appears that there is NO genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. The court may not decide disputed fact issues on a motion for summary judgment; if there is a genuinely disputed material fact (meaning a dispute backed by evidence on both sides of the issue), the case must go to trial. For example, should be granted if the plaintiff’s evidence for the PF case not been contradicted by any admissible evidence. – in the DISCRETION of court Party must show • No genuine dispute of material fact • Entitled to judgment as a matter of law o Any party can move for this no later than 30 days after close of discovery. o Can the motion be for “partial” judgment—e.g., as to liability, but allow the case to go to trial on damages • Court can look at evidence - The court views that evidence in the light most favorable to the nonmoving party. o The parties proffer the evidence, usually (1) affidavits or (2) declarations or (3) deposition testimony or (4) interrogatory answers – ALL SIGNED UNDER OATH; cannot be second-hand knowledge/hearsay; judge does not assess credibility on summary judgment
A man and a woman were in a two-car traffic accident. Immediately after the accident, the man was treated by a physician at a nearby hospital’s emergency room. The man later filed a negligence action against the woman in federal district court, seeking compensatory damages. The woman now seeks discovery regarding the emergency room physician’s observations, opinions, and treatment of the man. Is the woman entitled to discovery regarding that information?
The woman is entitled to discovery regarding the physician’s observations, opinions, and treatment of the man because the physician developed opinions about the man’s injuries for purposes other than litigation or trial.
After picking up a load of hazardous chemical waste, a truck driver for a waste management company set out on the road to his next stop. However, he had failed to secure the latch on the back panel of the truck. Consequently, the panel opened while the truck was on the road, and a metal canister full of chemical waste fell onto the road. A car struck the canister, causing the car to veer off the road and injure the driver. The driver filed suit against the company for his injuries. The jurisdiction in which the above events took place has adopted a rule of partial comparative negligence. At trial, the driver of the car admitted that he had momentarily taken his eyes off the road to look at his speedometer. When he had looked up again, the canister was there and he could not stop in time. The jury found that the company, through its truck driver, had acted willfully and wantonly and was 90% at fault, while the driver of the car was 10% at fault. The driver filed a motion for judgment notwithstanding the verdict, seeking recovery for 100% of his damages. If the judge grants the motion, what is the most likely reason? A A plaintiff’s comparative negligence is not taken into account in cases of willful and wanton conduct by the defendant. B A state ordinance mandating motorists to stay within the posted speed limit requires as a matter of law an occasional glance at the speedometer. C The company was more than 50% at fault. D The company was engaged in an abnormally dangerous activity.
If the driver was effectively required by statute to take an occasional quick look at his speedometer to make sure that he was complying with appropriate speed limits, then his momentary glance at the speedometer in the instant case would, as a matter of law, not constitute negligent conduct. Because this is a matter of law, the judge would be authorized to correct this aspect of the jury’s verdict. If the driver is thus found to be not negligent in this matter, his recovery will not be reduced. (A) is incorrect because in most states that have adopted comparative negligence, the plaintiff’s negligence will be considered even in cases where the defendant has acted willfully and wantonly. (C) is incorrect because the fact that the defendant is more than 50% at fault does not mean that the plaintiff is entitled to receive 100% of his damages from the defendant in a partial comparative negligence jurisdiction. It only means that the plaintiff’s recovery is not totally defeated. (D) is incorrect because, although the transportation of chemical waste would probably be considered an abnormally dangerous activity, liability for conducting an abnormally dangerous activity attaches only if the harm results from the kind of danger to be anticipated from such activity; i.e., the injury must flow from the normally dangerous propensity of the activity. The canister falling from the truck is not the “normally dangerous propensity” of transporting chemical waste.
Claim Preclusion - Res Judicata Elements
Claim preclusion (res judicata) requires that (i) a valid, final judgment on the merits was entered in the first case; (ii) the cases were brought by the same claimant against the same defendant; and (iii) the same cause of action is involved in the later lawsuit. Generally, a claimant is required to assert all causes of action arising out of the same transaction or occurrence that is the subject matter of the claim
When may a person use deadly force in self-defense?
A person may use deadly force in self-defense if he: (i) is without fault; (ii) is confronted with unlawful force; and (iii) reasonably believes that he is threatened with imminent death or great bodily harm. Generally, one who is at fault for starting a confrontation has no right to use force in his own defense during that confrontation. However, if the victim of the initial aggression suddenly escalates a relatively minor fight into one involving deadly force and does not give the aggressor a chance to withdraw or retreat, the aggressor may use deadly force in his own defense.
When may a non-party to an action intervene as a matter of right under Rule 24?
Under Rule 24, a nonparty may intervene in an action as a matter of right in two situations. First, a nonparty may intervene when it has an unconditional right to do so by a federal statute. Second, a nonparty may intervene if (i) it has an interest in the property or transaction the is the subject matter of the action; (ii) the disposition or resolution of the action may as a practical matter impair the nonparty’s ability to protect its interest; and (iii) the nonparty’s interest is not adequately protected by an existing party in the action.
When will an injunction be granted to enforce a restrictive covenant?
When the covenant runs with the land. A covenant will be enforceable as an equitable servitude-allowing a covenantee, covenantor, or successor to enforce the covenant in equity by way of injunction-when there is (i) a covenant in a writing satisfying the Statute of Frauds, that (ii) touches and concerns the land (i.e., the effect of the covenant makes the land more useful or valuable to the benefited party) and that (iii) indicates an intention that the servitude exists, and (iv) notice is given to future owners of the burdened land.
The United States was involved in a dispute with a small island nation over the ownership of an archipelago. On discovering that the archipelago was rich in oil, the President announced that he would appoint an ambassador to negotiate a treaty with the island nation to jointly exploit the oil reserve. A majority of Senators believed that the island clearly belonged to the United States and did not want to negotiate with the island nation. They passed a resolution requiring the President to include a Senator in his diplomatic mission to ensure that the Senate’s view was presented in any negotiation with the island nation. What is the strongest constitutional ground for the President’s refusal to do so? A As commander in chief, the President has the exclusive power to determine how to protect our national interest abroad. B The resolution is unreasonable because it includes a Senator and not any Representatives. C The President has the exclusive power to select diplomatic representatives of the United States. D The Senate, if it does not like the President’s actions, can refuse to appropriate the necessary monies for the President to implement his policies.
The President’s strongest argument is that the power to select ambassadors is vested by the Constitution in the President, and the Senate’s only power in this respect is to advise and give (or withhold) its consent. The Senate is not given the power to force ambassadors on the President. (A) is not a strong argument because the President’s power as commander in chief is not involved here. That power involves the President’s role as the supreme military leader, and military issues are not involved under the facts. (B) is not a strong argument because as far as foreign relations are concerned, the Senate does have more powers than the House. As stated above, ambassadors may be selected only with the advice and consent of the Senate, and the President’s treaty power is also similarly limited. Thus, but for the fact that the resolution is not within the Senate’s power to enforce, it would be appropriate to exclude the House from participating, because foreign affairs are involved. (D) may be a true statement, because Congress controls appropriations, but it is not a strong argument because it merely states that the Senate has another remedy (i.e., besides forcing an ambassador on the President), and the fact that the Senate has another method for achieving its goals has no bearing on whether its action here is permissible.
A defendant was convicted in federal court of possession of one kilogram of heroin with intent to distribute. She was sentenced to a prison term. Subsequently, the defendant was indicted by a federal grand jury for conspiracy to distribute the same kilogram of heroin. She moved to dismiss the indictment. Should her motion be granted? A No, because the Double Jeopardy Clause does not apply when the second prosecution is for violation of a separate statute. B No, because each prosecution requires proof of an element that the other does not. C Yes, because the Double Jeopardy Clause protects her against a second prosecution for the same criminal conduct. D Yes, because the Due Process Clause protects her against double punishment for the same criminal conduct.
The defendant’s motion should be denied because a prosecution for conspiracy is distinct from a prosecution for any substantive offense involving the same conduct as the conspiracy. The Fifth Amendment provides that no person shall be twice put in jeopardy for the same offense. The general rule is that two crimes do not constitute the same offense if each crime requires proof of an additional element that the other crime does not require, even though some of the same facts may be necessary to prove both crimes. [Blockburger v. United States (1932)] Furthermore, a prosecution for conspiracy is not barred merely because some of the alleged overt acts of that conspiracy have already been prosecuted. [United States v. Felix (1992)] Here, both the conspiracy charge and the possession charge require proof of an element that the other charge does not; hence, there is no double jeopardy problem with the indictment. (A) is incorrect because it is too broad a statement. The fact that separate statutes are involved does not establish that these are not the “same offense” for purposes of double jeopardy. (C) is incorrect because the “same conduct” test is not currently used by the Supreme Court to evaluate a double jeopardy claim. (D) is incorrect because the question involves the defendant’s motion to quash an indictment and not her ultimate punishment.
A driver and his passenger were involved in an automobile accident when the driver ran a red light and crashed into another car. Due to a manufacturing defect in the automobile’s airbag system, the passenger side airbag did not deploy. The passenger was killed on impact. The passenger’s estate brought suit against the driver and the airbag’s manufacturer. At trial it is established that the driver was negligent in running the red light. What effect would such proof have on the claim of the passenger’s estate against the airbag manufacturer? A It would reduce recovery by the estate if the action against the manufacturer is based on negligence. B It would bar recovery by the estate if the trier of fact finds that the driver was the sole legal cause of the passenger’s death. C It would bar recovery by the estate if it is shown that the driver is the sole legal heir of the passenger’s estate. D It would have no effect on recovery by the estate as long as the action against the manufacturer is based on strict liability.
The driver’s negligence would bar recovery if it was the sole legal cause of the passenger’s death. Regardless of the theory that the plaintiff is using in a products liability action, actual and proximate cause must be established. If the driver’s negligence is the sole legal or proximate cause of the passenger’s death, it would preclude the estate’s suit against the airbag manufacturer because the defect was not a legal cause of the passenger’s death. (A) is incorrect because the driver’s contributory negligence will not be imputed to the passenger; hence, it will not reduce the estate’s recovery under comparative negligence rules. (C) is incorrect. A potential beneficiary who was negligent will be subject to the jurisdiction’s fault rules. Hence, his negligence will reduce his recovery under pure comparative negligence rules but will not bar it, even if he is the sole heir. (D) is incorrect. In most pure comparative negligence jurisdictions, the same comparative fault rules will apply whether the action against the manufacturer is based on negligence or strict liability. As discussed above, whether the estate can recover, and the extent of its recovery, depends on causation issues and the driver’s status as a beneficiary of the estate.
