MBE Practice Questions Flashcards

Question

Using Force to Recapture Chattels

Answer 1

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).

Answer 2

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.

Answer 3

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.

Answer 4

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.

Answer 5

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.

Answer 6

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.

Answer 7

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.

Answer 8

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.

Answer 9

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.

Answer 10

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.

Answer 11

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.”

Answer 12

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.

Answer 13

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.

Answer 14

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.

Answer 15

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.

Answer 16

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.

Answer 17

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.

Answer 18

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.

Answer 19

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.

Answer 20

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.

Answer 21

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.

Answer 22

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.

Answer 23

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.

Answer 24

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.

Answer 25

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.

Answer 26

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.

Answer 27

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.

Answer 28

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

Answer 29

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.

Answer 30

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.

Answer 31

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

Answer 32

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.

Answer 33

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.

Answer 34

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.

Answer 35

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.

Answer 36

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.

Answer 37

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.

Answer 38

Conversion is the intentional interference with the plaintiff's right of possession in the chattel that is serious enough to warrant that the defendant pay the full value of the chattel. Conversion will be found if the defendant was using the chattel without permission and it was accidentally damaged, as in this case. The remedy for conversion is the fair market value of the chattel at the time and place of conversion.

Answer 39

Under UCC section 2-202, a party cannot offer consistent additional terms if the writing was intended as a complete statement of the terms of the agreement. (In contrast, evidence of custom in the trade can be offered regardless of the completeness of the written agreement.) One of the general rules of contract construction, including contracts for goods under the UCC, is that courts will look to see what custom and usage are in the particular business and in the particular locale where the contract is either made or to be performed.

Answer 40

The aunt's offer to her niece was for a unilateral contract. In a unilateral contract, acceptance of an offer is possible only by performing a stipulated act, whereas in a bilateral contract, acceptance of an offer is accomplished by promising to do the stipulated act. The aunt's offer could be accepted by the niece only by completion of performance (i.e., obtaining an "A" in the class), and when the niece received her three "A's," a unilateral contract was formed. Thus, (B) is correct and (A) and (C) are incorrect. (D) is incorrect because acceptance of an offer by performance of the stipulated act creates a unilateral contract, and such performance does not convert the contract into a bilateral contract, which is created by a promise to perform rather than by performance itself.

Answer 41

Because the ride operator was negligent in improperly securing the child, the amusement park is vicariously liable under the doctrine of respondeat superior. This doctrine imposes liability on an employer for the tortious conduct of its employee occurring within the scope of the employment relationship. Here, securing the children in the ride was one of the ride operator's tasks. Since this task was performed negligently and this negligence was one of the causes of the child's injuries, the amusement park will be liable. (B) is incorrect because the failure to make a reasonable inspection of the ride is not the negligent conduct suggested by the facts; rather, it was the failure to belt the child in securely that was negligent. Nothing in the facts indicates that a reasonable inspection would have disclosed the defect. (C) is incorrect because the amusement park will be liable even if the child cannot identify which specific employee was negligent. Through the doctrine of res ipsa loquitur, the child can establish breach of duty just by the fact that she was ejected from the ride after she had been strapped in; in other words, an inference of negligence is established because the accident causing her injury is the type that would not normally occur unless someone was negligent. The other two elements required for res ipsa loquitur are that the plaintiff was free of fault, which is easy to show in this case, and that the negligence was attributable to the defendant; i.e., that this type of accident ordinarily happens because of the negligence of someone in the defendant's position. If the plaintiff were suing a ride operator individually, this requirement would prevent her from using res ipsa loquitur in most jurisdictions because she could not establish that that particular operator was negligent. However, the amusement park will be liable under the doctrine of respondeat superior regardless of which of its employees was negligent, because the amusement park, through its employees, did have exclusive control over the ride; therefore, the negligence is attributable to the amusement park. (D) is incorrect because the amusement park will lose even though the injury to the child was caused by a defect present at the time the ride was purchased. The negligence of one of the park's employees was also a cause of the child's injuries.

Answer 42

The minister likely will prevail because unauthorized use of his picture that falsely makes him appear to be exiting the adult bookstore would be highly offensive to a reasonable person under the circumstances and constitute a false light invasion of privacy. To establish a prima facie case for invasion of privacy based on publication by defendant of facts placing plaintiff in a false light, the following elements must be proved: (i) publication of facts about plaintiff by defendant placing plaintiff in a false light in the public eye; and (ii) the "false light" must be something that would be highly offensive to a reasonable person under the circumstances. Here, the photo created the false impression that the minister was exiting an adult bookstore. Publication of the photo conveying this false impression of the minister's conduct would be highly offensive to a reasonable person under the circumstances. (B) cannot be correct because it is couched in terms of disclosure of private facts about the plaintiff. To establish a prima facie case for invasion of privacy based on public disclosure of private facts about plaintiff, the following elements must be proved: (i) publication or public disclosure by defendant of private information about the plaintiff; and (ii) the matter made public is such that its disclosure would be highly offensive to a reasonable person of ordinary sensibilities. Here, no private facts were disclosed, and therefore an action based on public disclosure of private facts will not succeed. (C) is incorrect. Because the minister was placed in a false light, it makes no difference that the picture was taken on a public sidewalk. An invasion of privacy based on false light can occur on public property as well as private property. (D) is incorrect. The absence of economic harm to the minister has no bearing on a privacy action. In an action for invasion of right to privacy, the plaintiff need not plead and prove special damages, providing the elements of a prima facie case are present. In other words, emotional distress and mental anguish are sufficient damages.

Answer 43

The victim will not likely prevail against the bank because a majority of courts hold that the judgment lienor is not protected by the recording statute. If the statute here, which is a notice statute, were applicable to protect the victim, he would have priority over the bank because his judgment lien was recorded before the buyer's deed was recorded. Under this view, the bank's mortgage would have been considered "wild" and would be deemed unrecorded because the preceding conveyance, the buyer's deed, was actually unrecorded. A searcher in the public records would therefore have been unable to find the mortgage. Hence, if the statute were applicable to protect the victim, he would have priority over the bank. However, most courts reason that either (i) a judgment creditor is not a bona fide purchaser because he did not pay contemporaneous value for the judgment, or (ii) the judgment attaches only to property "owned" by the debtor, and not to property previously conveyed away, even if that conveyance was not recorded. Under the statute in the present question, a judgment does not attach until it is recorded. Here, the victim's judgment did not attach to the land until after the bank obtained a mortgage on it, and the recording statute does not change that result. The failure of the buyer to record, and the resultant treatment of the bank as unrecorded, is irrelevant. Thus, the bank's mortgage is superior to the victim's lien. (A) is wrong because it does not matter whether the bank's mortgage was recorded, as against a subsequent judgment lien creditor. The judgment lien creditor is not protected by the recording statute, so the bank prevails even though its mortgage would be deemed unrecorded, as discussed above. (C) is wrong because, as discussed above, a majority of courts hold that the judgment lienor is not protected by the recording statute. (D) is wrong because the land was not after-acquired property, because the judgment lien was not filed until the tortfeasor had obtained-and conveyed away-an interest in the property. However, if the victim had in fact recorded his lien before the tortfeasor inherited the land, the after-acquired property provision of the statute would have applied, the victim would have had a recorded lien on the land as soon as the tortfeasor acquired it, and the victim would have gained priority over the bank.

Answer 44

The defendant's guilty plea is a statement by an opposing party and thus is admissible. Under the Federal Rules, a statement by an opposing party (commonly called an admission) is not hearsay. [Fed. R. Evid. 801(d)(2)] A plea of guilty to a traffic infraction is a formal judicial statement. The statement is conclusive in a prosecution for that infraction, but if the plea is used in another proceeding, it is merely an evidentiary statement (i.e., it is not conclusive and can be explained). Here, the defendant has acknowledged by her guilty plea that she was speeding at the time of the accident. This fact is relevant to the plaintiff's suit for personal injuries because it increases the likelihood that the defendant was at fault in the accident that caused those injuries. Therefore, the defendant's guilty plea is admissible in the current civil action as an evidentiary statement. (B) is wrong because there is no indication that the defendant is unavailable. Statements of a person, now unavailable as a witness, against that person's pecuniary, proprietary, or penal interest when made are admissible under the statement against interest exception to the hearsay rule. [Fed. R. Evid. 804(b)(3)] A declarant is unavailable if: (i) she is exempt from testifying because the court rules that a privilege applies, (ii) she refuses to testify despite a court order to do so, (iii) she testifies to not remembering the subject matter, (iv) she is dead or ill and unable to testify, or (v) she is absent and the statement's proponent has been unable to procure her attendance or testimony by process or other reasonable means. [Fed. R. Evid. 804(a)(1) - (5)] Since the defendant apparently is available as a witness in the suit, the statement against interest exception is inapplicable. Although it may be true that public policy favors plea bargaining, (C) is wrong because there is no attempt here to offer a statement made during the plea bargaining process. Under the Federal Rules, withdrawn guilty pleas, pleas of nolo contendere, offers to plead guilty, and evidence of statements made in negotiating such pleas are not admissible in any proceeding. [Fed. R. Evid. 410] However, there is no prohibition against admitting the guilty plea itself. This question asks whether the guilty plea is admissible, not whether statements made in negotiation thereof are admissible. Thus, the policy favoring plea bargains is irrelevant. (D) is wrong because the question asks about the admissibility of the plea rather than a copy of the conviction. Convictions may be introduced to prove any fact essential to the case only if they are felony convictions. [Fed. R. Evid. 803(22)] Because the conviction is not being offered, the fact that a felony is not involved is of no consequence. The defendant's plea is admissible as an opposing party's statement even though a felony was not involved.

Answer 45

The fact that the federal board was similar to the state board but was not given the power to restrict fee increases and impose sanctions in an otherwise comprehensive bill suggests that such provisions in the state law violate the Supremacy Clause. A state law may fail under the Supremacy Clause even if it does not directly conflict with a federal statute or regulation if it interferes with the achievement of a federal objective or the federal regulations occupy the entire field. Where the federal laws are comprehensive or a federal agency is created to oversee the field, preemption will often be found. The fact that the health-care legislation was comprehensive but the federal board was not given regulatory or enforcement power suggests that Congress did not want specific restrictions in these areas and may have wanted free-market principles to determine fee increases at the outset. The state board's power to impose these restrictions may violate the Supremacy Clause under these circumstances. (A) is incorrect because the fact that the federal legislation was passed later does not automatically mean that the state legislation has been superseded. In areas of concurrent legislative power, a state regulation will be upheld if it does not conflict with and is not preempted by federal legislation. (C) is incorrect because the Contract Clause prevents only substantial impairments of existing contracts by state legislation, and only if the legislation does not serve an important and legitimate public interest or is not a reasonable and narrowly tailored means of promoting that interest. Here, the law has a prospective effect only, and even if existing contracts between health-care providers and insurers are affected by the legislation, the other requirements for the Contract Clause to apply are not likely to be satisfied. (D) is incorrect because states may regulate local aspects of interstate commerce in the absence of federal regulation as long as the regulation is nondiscriminatory and does not unduly burden interstate commerce, which is a case-by-case balancing test. Here, the legislation appears to be nondiscriminatory and there are insufficient facts to establish that it would constitute an undue burden; hence, (B) presents a stronger argument than (D).

Answer 46

The woman's best argument that her daughter’s refusal to take her to a physician, if deemed to be negligent, is not imputed to her. A plaintiff has a duty to take reasonable steps to mitigate damages. Thus, in personal injury cases, there is a duty to seek appropriate treatment to effect healing and to prevent aggravation. Failure to do so will preclude recovery for any particular item of injury that occurs or is aggravated due to the failure to mitigate. Thus, the woman’s not consulting a doctor could limit her recovery to the damages for the original injury only. However, she is incapacitated and in the care and control of a legal guardian (her daughter), who decided not to bring her to a doctor. In actions against a third party, a legal guardian’s negligence is not imputed to the person under her care. Thus, using the argument in choice (B) that any negligence on the part of the woman’s daughter will not be imputed to her, she should receive a full recovery for all of her injuries if she prevails in an action against the jogger. (A) is incorrect even though it is a true statement. The doctrine of mitigation of damages requires a plaintiff to take reasonable steps to mitigate damages, which in personal injury cases means seeking appropriate treatment to effect a cure or healing and to prevent aggravation. Hence, it does not bar recovery for the plaintiff’s original injuries. However, choice (B) gives her a chance to recover for all of her injuries, and choice (A) does not. (C) is incorrect because a plaintiff’s contributory negligence as to the accident itself is relevant only as to the amount of damages recoverable for the original injury; it does not affect the rule that a plaintiff must take all reasonable measures to mitigate damages after the original injury is inflicted. (D) is incorrect because it misstates the concept of “taking your victim as you find her.” This concept refers to the physical or mental condition of the victim at the time of the injury (e.g., the “eggshell skull plaintiff”); it does not cover the victim’s relationship to others and their attitudes or actions. Thus, the attitude of a victim’s legal guardian toward medical treatment is not included in “taking your victim as you find her.”

Answer 47

The court should not grant the promoter's motion because the jury could find that the promoter used improper means, while working for the company, to divert the sales rep for his own purposes. To establish a prima facie case for interference with business relations, the following elements must be proved: (i) existence of a valid contractual relationship between plaintiff and a third party or a valid business expectancy of plaintiff; (ii) defendant's knowledge of the relationship or expectancy; (iii) intentional interference by defendant that induces a breach or termination of the relationship or expectancy; and (iv) damage to plaintiff. Thus, a plaintiff has a cause of action for interference with probable future business relationships for which the plaintiff has a reasonable expectation of financial benefit. On the other hand, an interferer's conduct may be privileged where it is a proper attempt to obtain business for the interferer, particularly if the interference is only with a prospective business relationship rather than with an existing contract. What is proper depends on various factors, including the means of persuasion used. Here, the promoter's conduct would not be privileged if the jury were to find that he improperly used his position with the company to develop a relationship with the sales rep. (A) is incorrect because even though the company did not have an existing contractual relationship with the sales rep, it could very well show that it had a reasonable expectation of signing a contract with the sales rep that the promoter knew of and intentionally interfered with. (Note that courts do not permit recovery for negligent interference with business relations.) Whether the company could prove its expectancy to a sufficient degree to establish actual damages would be a question for the trier of fact; hence, summary judgment would not be appropriate on this basis. (B) is incorrect because the promoter can be liable for interference with business relations regardless of whether he was an independent contractor or an employee of the company, as long as he used improper means for steering the sales rep away from the company. (D) is incorrect because a defendant's breach of his own contract with the plaintiff is not a basis for the tort of interference with business relations. If the promoter breached his contract with the company, the company's cause of action would be in contract and its remedy would be governed by contract rules. Here, the tort action that the company is suing on does not require establishing a breach of the promoter's contract with the company.

Answer 48

The defendant should be convicted of common law murder, but acquitted of the robbery. At common law, murder is the unlawful killing of a human being with malice aforethought. “Malice aforethought” exists if the defendant has any of the following states of mind: (i) the intent to kill (express malice); (ii) the intent to inflict great bodily injury; (iii) a reckless indifference to an unjustifiably high risk to human life (“abandoned and malignant heart”); or (iv) the intent to commit a felony. In the instant case, malice could be found either by the intent to kill (because the clerk was intentionally killed to prevent identification) or by the intent to commit a felony (the killing was committed during the course of a robbery). Robbery is an aggravated form of larceny and consists of the following elements: (i) a taking; (ii) of the personal property of another; (iii) from the other’s person or presence; (iv) by force or intimidation; (v) with the intent to permanently deprive him of it. Clearly, the elements for robbery are met here. Thus, at first glance, the defendant has committed both murder and robbery. However, the fact pattern also raises the defense of duress. A person is not guilty of an offense, other than intentional homicide, if he performs an otherwise criminal act under the reasonable belief that another will imminently inflict death or great bodily harm on him or an immediate family member if he does not commit the criminal act. In the instant case, the defendant committed the robbery under duress and thus should be acquitted of that charge, making (A) incorrect. However, duress would not be effective against a murder charge based on an intent-to-kill theory, and here the defendant intentionally killed the store clerk under instructions from the gang member to prevent identification. Thus, because the defendant could be convicted of an intent-to-kill murder, but acquitted of the robbery charge based on duress, (B) is the correct answer. (C) and (D) are incorrect. An argument could be raised that the killing should be reduced to voluntary manslaughter from murder, given that the defendant was acting under the provocation of a threat of deadly force. At common law, provocation would reduce a killing to voluntary manslaughter if (i) the provocation must have been one that would 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 must have in fact been provoked; (iii) there must not have been sufficient time to cool off; and (iv) the defendant did not in fact cool off. Provocation includes being subjected to a serious battery or a threat of deadly force. That said, the reduction to voluntary manslaughter occurs only as to the person who provoked the defendant (or the killing of a third person under the transferred intent doctrine). Thus, had the defendant killed the gang member, he might have been able to claim “adequate provocation” to have the killing reduced to voluntary manslaughter (assuming that a straight self-defense issue could not have been raised). However, as discussed above in terms of a duress defense, it would not justify the killing of a Third Party

Answer 49

The daughter’s best argument to enforce the contract in her favor is that she married in reliance on the contract (detrimental reliance), although she will probably be unsuccessful. Here, the daughter was a gratuitous assignee (because she gave no consideration) and her rights under the contract were revoked. Thus, her strongest argument will be one that nullifies the revocation. Under the doctrine of detrimental reliance, a promise will be enforced to the extent necessary to prevent injustice if it was made with a reasonable expectation that it would induce reliance, and such reliance was in fact induced. The problem with this argument here is that it is not clear that the daughter relied on the promise to give her $5,000, because she already had planned to get married. However, none of the other choices is a possible argument, so (D) is her best choice. (A) would not help her because the Statute of Frauds is a defense to enforcement of certain contracts when there is no writing, including contracts where the consideration is marriage. Here the daughter is seeking to enforce the contract, not prevent its enforcement. (B) is incorrect because the parol evidence rule only prevents the introduction of prior or contemporaneous oral statements to contradict the terms of an integrated written contract. Here, the statement that gave the daughter her rights and the one that took them away were both subsequent oral statements. (C) does not help her because she was not an intended third-party beneficiary. If a contract between two parties contemplates performance to a third party, that third party may have rights to enforce the contract. To do so, the third party must be an intended beneficiary at the time the contract was made (e.g., designated in the contract). An assignment, on the other hand, is a contract that does not contemplate performance to a third party when the contract is made. Rather, later one of the parties transfers his rights to another. Here, the contractor and the homeowner signed their contract and later the contractor assigned his rights to his daughter. Thus, the daughter was not an intended third-party beneficiary who could enforce the agreement, but merely an assignee who gave no consideration for the assignment. As such, the contractor was free to revoke the assignment, and his daughter cannot recover the $5,000.

Answer 50

Confrontation Clause Issue The testimony should not be admitted. Under the Confrontation Clause, an accused has the right to be confronted by the witnesses against him. A hearsay statement will not be admitted-even if it falls within a hearsay exception-when: (i) the statement is offered against the accused in a criminal case; (ii) the declarant is unavailable; (iii) the statement was testimonial in nature; and (iv) the accused had no opportunity to cross-examine the declarant's "testimonial" statement prior to trial. The Supreme Court has established that if the primary purpose of police interrogation is to enable the police to help in an ongoing emergency, statements made in the course of the interrogation are nontestimonial. When the primary purpose of the interrogation is to establish or prove past events potentially relevant to a later criminal prosecution, statements are testimonial. Here, the homeowner's statement was hearsay because it was made out of court and is being offered for its truth-that the robber punched her in the head. It appears that the emergency had already resolved by the time the statement was made. Although only a few minutes had passed since the physical altercation and the homeowner was still upset, the robber no longer posed any danger because he was locked in the police car and the homeowner was aware of this ("Thank you for catching him!"). Therefore, the homeowner's statements to the officer were testimonial. Because the homeowner is unavailable to testify at trial and the robber has had no opportunity to cross-examine the statements, admitting them at trial through the testimony of the officer would violate the Confrontation Clause. (A) is incorrect. Under the excited utterance exception, a declaration made by a declarant during or soon after a startling event is admissible if it relates to the startling occurrence and was made under the stress of excitement produced by the startling event. Here, finding a robber in one's home is a startling event, and the homeowner was still under the stress of the excitement when she made the statement-she was crying and shaking. The statement likely qualifies as an excited utterance. However, even a hearsay statement that falls within an exception may be barred by the Confrontation Clause, as is the case here. (B) is incorrect. As stated above, when the primary purpose of the interrogation is to establish or prove past events potentially relevant to a later criminal prosecution, statements are testimonial. Because the homeowner's statement was made for this purpose and not to address an ongoing emergency, it was testimonial in nature and its admission would violate by the Confrontation Clause. (D) is incorrect. As stated above, the homeowner's statement falls within the exception for excited utterances, so it will not be excluded because of the hearsay rule. The testimony will be excluded because of the robber's constitutional right to be confronted by the witnesses against him

Answer 51

The word "Craftsman" is not hearsay, and the wrench is relevant circumstantial evidence on the issue of whether the defendant dropped the wrench that struck the plaintiff. Evidence is relevant if it tends to make the existence of any fact of consequence to the action more probable than it would be without the evidence. [Fed. R. Evid. 401] If the defendant uses "Craftsman" wrenches on the job, and the wrench that struck the plaintiff bears the brand name "Craftsman," it is more probable than would otherwise be the case that the wrench that struck the plaintiff was dropped by the defendant. Thus, the wrench is relevant to prove that the defendant dropped the wrench. The wrench is circumstantial, rather than direct, evidence because a fact about it is being proved as a basis for an inference that another fact is true; i.e., the fact that the wrench bears the name "Craftsman" is proved to form a basis for inferring that the defendant dropped the wrench. Direct evidence is offered to prove a fact about the object as an end in itself. Here, the wrench bearing the name "Craftsman" is not being offered as a means of proving, e.g., that the wrench is in fact a "Craftsman" brand. Consequently, the wrench constitutes circumstantial evidence. In addition, when offered for the stated purpose, the wrench is not hearsay. Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. [Fed. R. Evid. 801(c)] The wrench is not being offered to prove the truth of the matter asserted (i.e., that the wrench is actually a "Craftsman"). It is of no significance whether the wrench being offered is a genuine "Craftsman." What is important is that it bears the same name as those wrenches used by the defendant on the job. Thus, introduction of the wrench into evidence will not violate the rule against hearsay. (A) is incorrect because it states that the word "Craftsman" on the wrench creates a hearsay problem. As noted, the wrench is not being offered to prove its genuineness as a "Craftsman," but rather to form the basis for an inference that it was dropped by the defendant. Thus, there is no hearsay problem. (B) reaches the incorrect conclusion that the wrench is not relevant. As has been explained above, the fact that the wrench that struck the plaintiff bears the name "Craftsman" tends to make more probable the material fact that the defendant is the person who dropped the wrench. Therefore, the wrench is relevant. Also, (B) states an incorrect test for relevance. To be relevant, the wrench need not show that it is more likely than not that the defendant dropped it; rather, the wrench must have some tendency to make it more probable than it would be without this evidence that the defendant dropped it. (C) is incorrect because the wrench is circumstantial, rather than direct, evidence that the defendant dropped the wrench that struck the plaintiff.

Answer 52

The strongest argument is that the commission lacks authority to enforce its standards. The Appointments Clause of the Constitution permits Congress to vest appointments of inferior officers only in the President, the courts, or the heads of departments. Enforcement is an executive act; therefore, Congress cannot appoint members of a commission that exercises enforcement powers. In these facts, the safety commission consists of some members appointed by Congress. This commission therefore violates the Appointments Clause of the Constitution because it has enforcement powers, since it can prosecute violations. Legislative power can be delegated even under vague guidelines without creating an unconstitutional delegation. Thus, (B) is incorrect. (A) is incorrect because the commerce power extends to many activities occurring solely within a particular state, if, taken as a whole, the activities in question have a substantial economic effect on interstate commerce. There is no constitutional provision requiring that a party or group to be regulated be represented on the commission that regulates it. (C) is therefore incorrect.

Answer 53

Answer Discussion - Correct The woman will recover $60,000. Under pure comparative negligence, which you should assume is the rule unless the question specifies otherwise, the plaintiff may recover no matter how great her negligence. In this case, the woman has suffered damages of $100,000. Because she was 40% negligent, she may recover only $60,000 ($100,000 less $40,000). Therefore, (B) is correct, and (A) is wrong. Absent a statute, damages are not reduced or mitigated because of benefits received from collateral sources (e.g., health insurance). Thus, the woman's receipt of $10,000 under her insurance plan does not diminish her recovery. (C) is therefore wrong. The driver of the car and the truck driver are jointly and severally liable for the woman's injuries because their negligent acts combined to proximately cause an indivisible injury to the woman. Because the driver of the car and the truck driver are jointly and severally liable, the woman may recover the entire $60,000 from the driver of the car. Thus, (D) is wrong.

Answer 54

If the plaintiff does not prevail, it will be because it was not reasonably foreseeable that the defendant's remark would be overheard, and therefore the fault requirement for the publication element would not be satisfied. To establish a prima facie case for defamation, the following elements must be proved: (i) defamatory language on the part of the defendant; (ii) the defamatory language must be "of or concerning" the plaintiff (i.e., it must identify the plaintiff to a reasonable reader, listener, or viewer); (iii) publication of the defamatory language by the defendant to a third person; and (iv) damage to the reputation of the plaintiff. The second owner's statement constitutes defamatory language because it adversely affects the first owner's reputation by attacking his competency. The publication requirement is satisfied when there is a communication to a third person who understands it. However, the communication to the third person must be made either intentionally or negligently; if it was not reasonably foreseeable that the defamatory statement would be overheard by the sales representative, the fault requirement for the publication element is not satisfied. (B) is incorrect. The plaintiff could prevail even if the defendant did not know that her remark would be overheard as long as it was reasonably foreseeable that it could be overheard. (C) is incorrect because there in fact was a publication, i.e., there was a communication, albeit not intentionally made, to the sales representative, who would reasonably have understood it to be defamatory. (D) is incorrect because there is no requirement that the third party be a party to the conversation-the third party need only be a reader, listener, or viewer.

Answer 55

The janitor is guilty of larceny, which consists of the taking and carrying away of the tangible personal property of another by trespass, with intent to permanently deprive the person of his interest in the property. The janitor's actions meet this definition. (A) is wrong because the janitor was not the employee responsible for the candy money. Embezzlement requires the fraudulent conversion of property of another by a person in lawful possession of that property. Here the janitor was never in lawful possession of the money so it was not an act of embezzlement. (C) is also wrong. Motive is not what distinguishes larceny from robbery. Robbery is defined as a taking of personal property of another from the other's person or presence, by force or intimidation, with the intent to permanently deprive her of it. Robbery is essentially an aggravated form of larceny in which the taking is accomplished by force or threat of force. Here there was no force involved. (D) is wrong because, even though the employees were on their honor to contribute money for the candy, the money was not just abandoned by them. The money was exchanged for candy, originally purchased by the company, and thus belonged to the company at the time the janitor took it.

Answer 56

The manufacturer will recover only his incidental damages, i.e., the costs of preparing to ship the chairs. An offer calling for shipment of goods, such as the offer here, may be accepted by prompt shipment with notice or by a promise to ship. Acceptance forms a contract. Here, the manufacturer accepted the wholesaler's offer by promising to ship, and a contract was formed. The wholesaler breached the contract by canceling his order. When a buyer breaches by repudiating his offer, as the wholesaler did here, the seller has a right to recover his incidental damages plus either the difference between the contract price and the market price or the difference between the contract price and the resale price of the goods, reduced in either case by any expenses saved as a result of the breach. Here, the manufacturer made what he would have if the sale with the wholesaler had gone through-there was no difference between the contract price and the resale price. Thus, the manufacturer would be limited to his incidental damages. Lost profits would not be available because the chairs were the last ones that the manufacturer had and would have because the line was being discontinued. Therefore, the manufacturer would not have been able to sell another set of 500 chairs to another potential buyer. (A) is incorrect because there is no rule under the UCC, which governs the contract here, that makes contracts between merchants cancelable within a reasonable time. (B) is incorrect because, as indicated above, the UCC allows the seller to recover incidental damages. (C) is incorrect because the UCC seeks only to put the nonbreaching party in as good a position as it would have been in had the other party performed. Here, awarding the manufacturer the full contract price would put him in a better position than performance would have, because it would give him a double recovery for selling the same goods. (The result would be different, however, if the manufacturer had had more chairs to sell, because in that case, the breach would have cost the manufacturer additional sales-i.e., he could have sold to the wholesale seller and to the second buyer.)

Answer 57

The defendant can claim a reasonable expectation of privacy for Fourth Amendment purposes if she was an overnight guest of the owner of the place searched. To raise a Fourth Amendment claim of an unreasonable search or seizure, a person must have a reasonable expectation of privacy with respect to the place searched or the item seized. It is not enough merely that someone has an expectation of privacy in the place searched. The Supreme Court has imposed a standing requirement so that a person can complain about an evidentiary search or seizure only if it violates her own reasonable expectations of privacy. The Court has held that a person has a reasonable expectation of privacy any time (i) she owned or had a right to possession of the place searched, (ii) the place searched was in fact her own home, whether or not she owned or had a right to possession of it, or (iii) she was an overnight guest of the owner of the place searched. Thus, the defendant would have standing to challenge the search of the tenant's apartment if she was an overnight guest of the tenant. (A) is incorrect because standing to raise a Fourth Amendment claim does not exist merely because a person will be harmed by introduction of evidence seized during an illegal search of a third person's property. The person must establish that her own reasonable expectation of privacy has been violated. (C) is wrong because the fact that the defendant was not the owner or occupier of the apartment does not preclude her from challenging the search. As discussed above, an overnight guest may also have a reasonable expectation of privacy in the premises for purposes of the Fourth Amendment. (D) is incorrect. Although the defendant may have standing to object to the seizure of items if she claims ownership of them, that is not the only basis for raising a Fourth Amendment claim; she will have standing to object to the search of the apartment under the circumstances in (B) regardless of whether she claims ownership of the methamphetamine.

Answer 58

The landscaper cannot assert and maintain a counterclaim against the homeowner for breach of contract because the federal court does not have subject matter jurisdiction over the contract claim. The court has diversity of citizenship jurisdiction over the negligence claim because there is complete diversity and the amount in controversy exceeds $75,000. A compulsory counterclaim (a claim that arises out of the same transaction or occurrence as the plaintiff's claim) does not need to meet the jurisdictional amount requirement for diversity jurisdiction. However, a permissive counterclaim (a claim that arises out of an unrelated transaction) must meet the jurisdictional amount requirement. Here, the landscaper's contract claim would be a permissive counterclaim because it is unrelated to the negligence claim arising from the accident. Therefore, the claim's amount in controversy would have to exceed $75,000. The claim is only for $30,000; therefore, the court does not have subject matter jurisdiction over the contract claim. (A) is incorrect because a defendant may assert claims against a plaintiff that are unrelated to the plaintiff's claims, provided there is subject matter jurisdiction. (C) is incorrect because the court does not have diversity jurisdiction over the contract claim. (D) is incorrect because the contract claim is not a compulsory counterclaim.

Answer 59

The chocolatier can enforce the option to purchase because it is a covenant that runs with the land. When a tenant makes a complete transfer of the entire remaining term of his leasehold interest, it constitutes an assignment. The assignee and the landlord are then in privity of estate, and each is liable to the other on all covenants in the lease that run with the land. The covenant runs with the land if the original parties so intend and the covenant "touches and concerns" the leased land, i.e., burdens the landlord and benefits the tenant with respect to their interests in the property. Here, the transfer of the lease to the chocolatier was an assignment, making all covenants in the lease that run with the land enforceable by the assignee. The right of first refusal burdens the landlord's power of alienation over the bakery, and there is nothing to indicate that the parties intended the option to be personal to the baker. Hence, the chocolatier can enforce the option and purchase the property. (A) is incorrect because most courts do not bar an option from being separated from the leasehold interest if that is the parties' intent. The tenant may transfer the leasehold interest while retaining the option to purchase, or vice versa. Whether the option in this case stayed with the leasehold interest depends on whether it was a covenant that runs with the land. (C) is incorrect because options and rights of first refusal are not subject to the Rule Against Perpetuities when connected to leaseholds. If a tenant assigns the leasehold, the option generally is considered a running covenant, exercisable by the assignee absent a contrary intent. If the option had been separated from the leasehold estate, so that it was no longer exercisable by the tenant, the Rule would have become applicable to the option (and it would have invalidated the option here because it could have been exercised more than 21 years after a life in being). Here, however, the option was not severed from the leasehold; the entire interest was transferred to the chocolatier as the new tenant. Hence, the Rule Against Perpetuities is not applicable. (D) is incorrect because, as discussed above, the option is a covenant that runs with the land regardless of whether it was specified in the assignment to the chocolatier. The chocolatier, as the assignee of the leasehold, can enforce the option on privity of estate grounds.

Answer 60

The neighbor will prevail because the restrictive covenant runs with the neighbor's land, which is benefited, and with the movie star's land, which is burdened. A covenant at law will run with the land and be enforceable against subsequent grantees if: (i) the contracting parties intended it to run; (ii) there is privity of estate between the original promisor and promisee (horizontal privity), as well as between the promisor and his successor (vertical privity); (iii) the covenant touches and concerns the property; and (iv) the burdened party has notice of the covenant. Here, the use of the words "heirs, successors, and assigns" in the covenant shows the intent for the covenant to run. The original parties were in horizontal privity because at the time the buyer entered into the covenant, he and the landowner shared an interest in the land independent of the covenant-as grantor and grantee. Because the neighbor and the movie star hold the entire interest in the parcels held by the landowner and the buyer, respectively, there is vertical privity. The covenant touches and concerns the land because it diminishes the movie star's rights in connection with her enjoyment of the western parcel. Finally, the movie star has notice of the covenant because it was recorded in her chain of title (in the landowner-buyer deed). Thus, the covenant runs with the land. (B) is incorrect because privity is required to enforce a covenant at law. Moreover, privity does exist under these facts, as explained above. (C) is incorrect. The fact that the structure height restriction was not contained in the movie star's deed does not shield her from enforcement of the covenant because it was contained in a previous deed relating to the property (record notice). (D) is incorrect because the movie star had at least record notice of the restriction.

Answer 61

The document should be admitted. Related to the exception to the hearsay rule for public records and other official writings, Federal Rule of Evidence 803(10) provides that evidence in the form of a certification or testimony from the custodian of public records that she has diligently searched and failed to find a record is admissible to prove that a matter was not recorded, or, inferentially, that a matter did not occur. Here, the defendant's status as a licensed physical therapist would normally be revealed in the records of the department. The document here at issue is admissible, under the foregoing hearsay exception, as a means of proving that the defendant is in fact not licensed. (B) is incorrect because this hearsay exception does not require unavailability of the declarant. (C) is incorrect because, as explained above, the statement of absence from public record forms an exception to the hearsay rule. (D) is incorrect because a public document that has been signed and certified is self-authenticating under Rule 902; hence, no testimonial sponsorship for the document is required.

Answer 62

This is character evidence because it describes the pedestrian's general tendency to act cautiously. Evidence of a person's character is generally irrelevant and inadmissible in a civil case except in rare circumstances where character is directly in issue (e.g., defamation or negligent hiring cases). Here, because the pedestrian's character is not directly in issue in this civil personal injury lawsuit, the friend's testimony is inadmissible. (A) is incorrect. Under Federal Rule 406, evidence of a person's habit may be admitted to prove that on a particular occasion the person acted in accordance with the habit. Habit describes one's regular response to a specific set of circumstances, while character describes one's disposition in respect to general traits. Since habits are more specific and particularized, evidence of habit is relevant and can be introduced in circumstances when it is not permissible to introduce evidence of character. Here, however, the friend's testimony is character evidence, not habit evidence. The fact that the pedestrian is cautious and obeys traffic laws is not nearly specific enough to qualify as habit evidence-despite the use of the term "invariably." (B) is incorrect. The answer choice recites the general rule of relevance-that is, evidence is relevant if it makes the existence of any fact of consequence to the determination of the action more likely or less likely than it would be without the evidence. However, despite meeting the low threshold for relevance, character evidence is generally inadmissible in civil cases to prove that a person acted in conformity with the trait during the events of the case. (D) is incorrect. Although the credibility of a witness may be impeached by showing that the witness is biased, that does not mean the testimony itself is inadmissible. Indeed, most witnesses testifying as to the habit or character of a person will have some sort of personal bias in favor of or against that person.QUESTION ID: ED06

Answer 63

The man can be fined. Congress has the power to regulate alarm installation companies under the Commerce Clause because the clause permits Congress to regulate any local or interstate activity that, either in itself or in combination with other activities, has an effect on interstate commerce. Burglar alarm companies use instrumentalities of interstate commerce such as phone lines and have a cumulative effect on interstate commerce even though some may only do business locally. Hence, their activities can be regulated by Congress. The delegation to the NABA is valid because Congress has broad discretion to delegate its legislative power; the Supreme Court will uphold almost any delegation of congressional power. Therefore, the man can be fined. (A) is incorrect because it improperly mixes two concepts. Congress does not have the power to legislate for the general welfare-there is no federal police power-but rather Congress has the power to spend for the general welfare. (C) is incorrect because, even assuming that the regulation here interferes with the man's right to make a living, it would not violate the interstate Privileges and Immunities Clause of Article IV because the clause restricts states, not the federal government. (D) is incorrect. Congress can provide that violation of an agency's regulations is a criminal offense that can be enforced through the imposition of fines. Furthermore, an agency has the power to impose civil fines and penalties for a violation of its regulations.

Answer 64

The sister is not criminally liable for the store clerk's death. A defendant may, by virtue of her participation in a conspiracy, be liable for the crimes of all other conspirators if the crimes were committed in furtherance of the objectives of the conspiracy and were a natural and probable consequence of the conspiracy (i.e., were foreseeable). Furthermore, liability for felony murder would attach if the killing were committed during the course of a felony. Thus, the sister would be criminally liable for the killing of the clerk if she were a co-conspirator or if she were a principal to the underlying felony (the robbery). However, under the facts, the sister is neither because she lacked the requisite intent. Given the threat to her life, the sister did not freely enter into a conspiracy to commit robbery. (A) is incorrect because, while duress is not a defense to murder, it is a defense to the underlying felony, and thus is a defense to the felony murder charge. Here, the sister was acting under duress during the robbery, and thus she has a defense to the robbery charge. (B) is incorrect because, as stated above, under these facts duress is a good defense to the robbery charge and thus would be a good defense to the felony murder charge. (D) is also incorrect. Although a valid withdrawal would be a good defense to subsequent crimes of any co-conspirator, it is doubtful whether the sister in fact entered into a conspiracy in the first place. Because she never had the intent required for participation in the conspiracy, the jury would not be required to consider her defense of withdrawal.

Answer 65

The fact least helpful to the city's defense of the plaintiff's lawsuit is the identity of the workers who blocked the exit ramp. Under vicarious liability rules, a principal will be liable for the tortious acts of an independent contractor if the duty is nondelegable on public policy grounds; included is the duty of a possessor of land to keep its premises safe for its invitees. If the workers were negligent in leaving the ramp blocked without providing another means of exiting, the fact that they were not city employees would not absolve the city of liability; hence, their identity would be of no help to the city's defense. (A) is incorrect because if the plaintiff was aware of an alternate route, he may have been contributorily negligent in exiting down the entrance ramp. A plaintiff's contributory negligence may be established by violation of an applicable statute. However, as with a statutory duty imposed on a defendant, the plaintiff's violation of the statute may be excused if compliance was beyond the plaintiff's control. If no other means of exiting the garage were known to the plaintiff, he may be excused for violating the traffic statute; however, if he knew of an alternative exit, the city will probably be able to establish contributory negligence on his part by his violation of the statute, reducing his potential recovery. (C) is incorrect because whether the city collects fees and makes a profit in operation of the garage will be considered by the court in determining whether the jurisdiction's governmental immunity applies. Where municipal immunity still exists, courts have limited its scope by differentiating between "governmental" and "proprietary" functions of the municipality. If the municipality is performing a function that might as well have been provided by a private corporation, the function may be construed as a proprietary one and no immunity will attach. The inference that a function is proprietary will be strengthened where the city collects revenues by virtue of providing the service. Hence, the fact that the city is not collecting revenues or making a profit in operating the garage will make it less likely that the function will be deemed to be proprietary and more likely that it will be deemed to be governmental and thus immune; in other words, it will be more helpful rather than less helpful in the city's defense. (D) is incorrect because the pickup truck driver's conduct under these circumstances would be deemed a superseding force that breaks the causal connection between any negligence on the part of the city and the plaintiff's injury. Assuming that the city workers were negligent, the fact that an independent intervening force caused the injury generally would not cut off the city's liability, because its negligence created a foreseeable risk of that harm occurring. However, where this foreseeable harm is caused by an unforeseeable crime or intentional tort of a third party, most courts would not hold the city liable, treating the crime or tort as a superseding force. Here, while blocking the exit ramp created a foreseeable risk that someone might collide with the plaintiff, it was not foreseeable that his enemy would take that opportunity to commit an intentional tort against him. Because the pickup truck driver's conduct was unforeseeable under the circumstances in choice (D), the city would be relieved of liability for any negligence in blocking the ramp.

Answer 66

Highlight Answer Discussion - Correct The painter will be unable to recover the $500 because he did not satisfy the condition precedent to payment under the contract. A party does not have a duty to perform if a condition precedent to that performance has not been met. Here, the parties made the owner's satisfaction with the painter's paint job a condition precedent to the owner's duty to pay the $5,000. Because the owner was not satisfied with the paint job, her duty to pay the painter never arose. The fact that the owner offered to give the painter $4,500 if he repainted the porches has no effect on this analysis, because the offer constituted a new contract, the owner having been excused from the old one. (A) is wrong because it does not matter whether the painter indorsed under protest. The indorsement will not change the result here because the new contract did not seek to discharge any contractual duty-the owner was already excused from her duties because the condition precedent was never met. (B) is wrong because the old contract, which provided for payment of $5,000, is considered to be at an end. Under the terms of the new contract, the painter is entitled to only $4,500, provided he repaints the porches. (C) is wrong because the condition precedent to the payment of $5,000, the owner's satisfaction, was not met. The courts have held such conditions to be valid-not illusory promises-because of the promisor's duty to exercise good faith in assessing satisfaction. Here, the facts state that the owner believed in good faith that the painter had done a bad job; thus, the painter is not entitled to payment under the original contract. Note that since he has not performed under the new contract, he is in breach and not entitled to the $4,500 already paid.

Answer 67

Answer Discussion - Incorrect The defendant's confession should be admitted because he waived his Fifth Amendment privilege against compelled self-incrimination after receiving Miranda warnings. Miranda v. Arizona requires that a person in custody be informed of his right to remain silent and his right to the presence of an attorney during questioning. A suspect may subsequently waive his rights by making a confession, as long as the waiver was knowing and voluntary. In this case, the defendant received proper Miranda warnings, and there is no indication that he did not understand what his rights were. Although his answers during questioning were initially unresponsive, he never asked for an attorney or indicated that he wished to remain silent, and he voluntarily confessed after a relatively short period of interrogation. Hence, he validly waived his Miranda rights. (A) is incorrect because the police have no duty to inform the defendant that an attorney is attempting to see him. The defendant's ignorance of his attorney's efforts has no bearing on whether he made a knowing waiver of his Miranda rights. (B) is incorrect because the defendant's right to counsel was not violated. Although the defendant does have a separate Sixth Amendment right to counsel under Escobedo v. Illinois because he has already been arrested and charged with the crime, this right would only be violated if the defendant, after being informed of his right to counsel, had requested an attorney or had been prevented from seeing his attorney. Here, he made no request to see an attorney-even when he called his mother-and his attorney was allowed to see him immediately upon her arrival. Thus, he has waived his Sixth Amendment right to counsel. (C) is incorrect even though it is true that the defendant made a voluntary statement. Due process requires that for confessions to be admissible, they must be "voluntary," based on the totality of the circumstances, and here all of the circumstances indicate that the defendant's confession was voluntary. However, even a voluntary confession will be inadmissible if it was obtained in violation of Miranda rights. (D) is therefore a better choice than (C).

Answer 68

The witness's testimony is inadmissible. Under Federal Rule 804(b)(1), the testimony of a witness who is unavailable, given at another hearing, is admissible in a subsequent trial if there is sufficient similarity of parties and issues so that the opportunity to develop testimony or cross-examination at the prior hearing was meaningful. The former testimony is admissible upon any trial of the same subject matter. The party against whom the testimony is offered or, in civil cases, the party's predecessor in interest must have been a party in the former action. "Predecessor in interest" includes one in a privity relationship with the party, such as grantor-grantee, testator-executor, life tenant-remainderman, and joint tenants. These requirements are intended to ensure that the party against whom the testimony is offered (or a predecessor in interest in a civil case) had an adequate opportunity and motive to cross-examine the witness. In the civil suit here at issue, the survivors of the victim were not parties to the criminal case, nor were they in privity with any such party. (The parties to that case were the defendant and the government.) These survivors, who are the plaintiffs in the instant litigation, are the parties against whom the testimony of the witness is being offered. Because they were not parties to the action in which the witness testified, they had no opportunity to cross-examine him. Even if the government had a similar motive to cross-examine the witness as do the plaintiffs in the current action, that is not sufficient to make the government a predecessor in interest to the plaintiffs. Consequently, the testimony of the witness does not come within the former testimony exception to the hearsay rule, and the testimony is inadmissible hearsay. (A) and (B) incorrectly conclude that the testimony is admissible. Although it is true that the witness testified at an earlier hearing related to the same subject matter, and that the defendant is a party to both proceedings, what is missing is the requisite identity of parties against whom the testimony is being offered. (D) is incorrect because a witness incarcerated in another state is "unavailable" for purposes of civil proceedings. Under the Federal Rules, a witness is unavailable if he is absent from the hearing and the proponent of the statement is unable to procure the declarant's attendance by process or other reasonable means. The Supreme Court has held that the Confrontation Clause requires a greater showing of "unavailability" in criminal cases than in civil cases. Because all states permit extradition of witnesses against the accused in criminal cases, a mere showing that a witness is incarcerated in a prison outside the state is insufficient to establish "unavailability." In contrast, the reach of process in civil cases is more limited and the Confrontation Clause does not apply. A mere showing that the witness is incarcerated in a prison out of state will suffice to show unavailability in a civil case.

Answer 69

Testimony as to the statement made by the victim is inadmissible as a statement under belief of impending death, because the victim did not actually have firsthand knowledge that the defendant was responsible for the collision. The statement is hearsay because it is a statement made by the declarant (the victim), other than while testifying, offered to prove the truth of the matter asserted therein. Here, the plaintiff wants to present this testimony to prove the truth of the statement that the defendant was responsible for the brake failure, and will argue that the statement falls under the hearsay exception for dying declarations. In a civil case or a homicide prosecution, a statement made by a now unavailable declarant while believing his death to be imminent, that concerns the cause or circumstances of what he believed to be his impending death, is admissible. [Fed. R. Evid. 804(b)(2)] For this exception to apply, the declarant need not actually die. Rather, the declarant must be "unavailable" when the statement is offered. A declarant is unavailable if he: (i) is exempted from testifying on the ground of privilege, (ii) refuses to testify despite a court order, (iii) testifies to lack of memory of the subject matter of the statement, (iv) cannot be present or testify because of death or physical or mental illness, or (v) is beyond the reach of the court's subpoena and the statement's proponent has been unable to procure his attendance or testimony by process or other reasonable means. Regarding the statement at issue here, the victim certainly thought he was about to die from his injuries. In addition, he is unavailable, as his physical condition prevents him from testifying. However, the victim's statement represents a mere suspicion that the defendant tampered with the brakes. As well-founded as such a suspicion may be (given the history between the victim and the defendant), a statement based on mere suspicion rather than actual knowledge does not constitute a statement concerning the cause or circumstances of an "impending death" for purposes of the dying declarations exception. Thus, (A) is the correct answer and (C) is incorrect. (B) is incorrect because the declarant's death is no longer required; unavailability is sufficient. Thus, if the victim's statement otherwise qualified under the dying declarations exception, the fact that he is not dead would not render the motorist's testimony inadmissible. (D) is incorrect for the reasons stated above and also because it incorrectly implies that the dying declarations hearsay exception applies only in civil cases. As noted above, the exception also applies to homicide cases. (Note that the traditional view, still followed by some states, would only allow the declaration in a homicide prosecution.)

Answer 70

The witness list should be admitted as a record of a regularly conducted activity (business record). A writing or record made as a memorandum or record of any act, transaction, occurrence, or event is admissible as proof of such act, transaction, occurrence, or event if it was made in the course of a regularly conducted business activity and if it was customary to make the type of entry involved (i.e., the entrant must have had a duty to make the entry). The business record must consist of matters within the personal knowledge of the entrant or within the personal knowledge of someone with a business duty to transmit such matters to the entrant. The entry must have been made at or near the time of the transaction. The list of proposed witnesses and the notation constitute a statement that the law firm was alerted to the existence of the doctor as a potential expert witness. The plaintiff wants to introduce these documents to prove the truth of this statement (i.e., that he alerted the firm to the existence of the doctor). Thus, the documents present a hearsay problem. Making a list of proposed witnesses would be part of the regular course of business for a law firm, and it would be part of the duties of the paralegal responsible for updating case files to enter the handwritten notation regarding the doctor at the direction of one of the firm's attorneys. The matters contained in the list and notation would be within the personal knowledge of the attorney, who was under a business duty to report the information accurately to the paralegal, who was under a business duty to properly record the information. Thus, all the requirements for a business record are present, and the list and notation, made as records of the firm's having been alerted to the doctor as a potential expert witness, are admissible as proof of that fact. (A) is incorrect because past recollection recorded comes into play when a witness's memory cannot be refreshed by looking at something. At that point, there may be an attempt to introduce a memorandum or other record made by the witness or under his direction at or near the time of the event. The record is characterized as past recollection recorded. Here, there is no indication that a witness who has an insufficient memory is testifying, and the list of proposed witnesses and notation are not being offered as a record of anyone's past recollection. Rather, the evidence is offered as a record of the firm's being informed of the doctor as a potential expert witness. Therefore, the evidence will not be admitted as past recollection recorded. (C) is incorrect because, as explained above, the proffered evidence does come within a recognized hearsay exception. (D) is incorrect because the facts do not present any problem of "levels" of hearsay. The list and notation are considered to be an out-of-court statement that the firm was alerted to the doctor as a potential expert witness, and are being offered as proof of that fact. If the notation had simply repeated an assertion made by one outside of the business (e.g., "the doctor says that he will be available to testify on the date of the trial") and been offered to prove the truth of the assertion (that the doctor was available as a witness), a hearsay within hearsay problem would exist. Because the statement within the notation would be hearsay not within any exception, the notation itself, despite the fact that it is a business record, would not be admissible to prove the doctor's availability.

Answer 71

The evidence is admissible because the mayor's character is directly in issue. The general rule is that evidence of character to prove the conduct of a person in the litigated event is not admissible in a civil case. However, when a person's character itself is one of the issues in the case, character evidence is not only admissible, but in fact is the best method of proving the issue. Where the plaintiff brings a defamation action for injury to reputation and the defendant pleads as an affirmative defense that his statements were true, the plaintiff's character is directly at issue in the case. Under the Federal Rules, any of the types of evidence (reputation, opinion, or specific acts) may be used to prove character when character is directly in issue. [Fed. R. Evid. 405(b)] Here, the mayor's character is at issue and the resident is offering character evidence to show that his assertion that the mayor is corrupt is a true statement. Thus, (C) is correct and (A) is incorrect. (B) is incorrect because, as stated above, any of the types of evidence can be used to prove character when it is directly in issue. (D) is incorrect because an actual conviction is required for impeachment purposes, but not for the purpose of establishing character-evidence of an arrest or indictment would have been equally admissible.

Answer 72

The officer may not testify about the embezzlement because it constitutes impeachment by extrinsic evidence of a specific instance of misconduct. A specific act of misconduct offered to attack the witness's character for truthfulness can be elicited only on cross-examination. If the witness denies the act, the cross-examiner cannot refute the answer by calling other witnesses or producing other evidence. Because the alleged embezzlement is admissible, if at all, only as impeachment evidence, when the defendant denied it the prosecutor could not call the officer to testify. (A) is wrong because extrinsic evidence, such as the officer's testimony, of an instance of misconduct is not admissible. (B) is wrong because when a person is charged with one crime, extrinsic evidence of other crimes or misconduct is inadmissible to establish criminal disposition. Because nothing in the facts indicates that such evidence is being offered to prove something other than disposition (e.g., motive, identity, common plan or scheme), the officer's testimony is not admissible as substantive evidence. As discussed above, for impeachment, the prosecutor is limited to inquiry on cross-examination regarding the embezzlement. (C) is wrong because it implies that a witness may not be impeached with a prior act of misconduct unless it resulted in a conviction, and this is not the case. A witness may be impeached on cross-examination with a prior act of misconduct that is probative of truthfulness even if the misconduct did not result in a conviction. Here the problem is that the prosecutor is attempting to prove the bad act with extrinsic evidence, which is not allowed.

Answer 73

The court should admit the neighbor's testimony because it is relevant circumstantial evidence. The Federal Rules of Evidence define relevant evidence as evidence having any tendency to prove or disprove a fact that is of consequence to the action. [Fed. R. Evid. 401] Generally, all relevant evidence is admissible unless it is barred by a specific exclusionary rule or by the general balancing test of Rule 403, which permits exclusion of relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, etc. The neighbor's testimony is relevant because the dog's behavior when the defendant came by tends to prove circumstantially (i.e., indirectly) the prosecution's contention that the defendant beat the victim to death (in the dog's presence). The neighbor is competent to testify as to the dog's behavior toward the defendant both before and after the murder, and no other competency rule warrants excluding the testimony; hence, it should be admitted. (A) is incorrect because the availability of other evidence that might demonstrate the dog's reaction more clearly does not preclude the neighbor's testimony on that issue. As long as she is competent to testify regarding the dog's behavior, the dog's availability is irrelevant. (C) is incorrect because it is up to the trier of fact to evaluate the inference for which the circumstantial evidence is being offered. The defense may attack the neighbor's testimony on cross-examination by suggesting other reasons for the dog's reaction, but it cannot exclude the neighbor's testimony on this basis. (D) is incorrect because the balancing test of Rule 403 provides only that a court may exclude relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice. While all evidence is prejudicial to the opposing party, "unfair" prejudice refers to suggesting a decision on an emotional or otherwise improper basis. There is nothing in the neighbor's testimony to justify excluding it on unfair prejudice grounds.

Answer 74

he evidence is admissible because it tends to show that the hotel was not acting prudently when it hired the valet, an employee who damaged a guest's car; thus (C) is correct and (A) is incorrect. (B) is not a good answer because only subsequent remedial measures (i.e., those taken after the injury to the plaintiff occurred) may not be proven as evidence of negligence; here the change in hiring procedures took place before the car was damaged, and so would be allowed. (D) is not accurate-the evidence does not show that the valet was incompetent, but rather that the hotel did not investigate his competence when he was hired, an issue related to the actor's negligent hiring claim.

Answer 75

The wife can be compelled to testify because her husband is dead and cannot invoke the privilege. There are two separate privileges related to marriage. There is spousal immunity, under which: (i) a married person whose spouse is the defendant in a criminal case may not be called as a witness by the prosecution, and (ii) a married person may not be compelled to testify against her spouse in any criminal proceeding. In federal court, this privilege belongs to the witness-spouse so that she may not be compelled to testify, but neither may she be foreclosed from testifying. This privilege terminates upon divorce. There is also a privilege for confidential marital communications, under which either spouse, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication made between the spouses while they were married. Both spouses jointly hold this privilege. Divorce does not terminate this privilege retroactively. Because the communication must be made in reliance upon the intimacy of the marital relationship, if the communication is made in the known presence of a stranger, it is not privileged. Similarly, if one spouse voluntarily reveals the contents of the communication to a stranger, that spouse waives the protection of the privilege as to herself (i.e., she cannot use the privilege to refuse to disclose, or to prevent another from disclosing, the communication), but the other spouse (i.e., the one who did not reveal the communication) retains this privilege. Here, the spousal immunity between the husband and the wife terminated upon their divorce. Thus, the only consideration is the applicability of the privilege for confidential marital communications. The husband's statement to the wife came during their marriage and was made in reliance upon the intimacy of their relationship (marital communications are presumed to be confidential). Thus, the statement was covered by the privilege for confidential marital communications. Their subsequent divorce did not terminate this privilege. However, when the wife revealed to her friend what her husband had told her concerning the theft of the painting, the wife lost her privilege to refuse to disclose the matter. If the husband were alive, he would retain the privilege despite the wife's disclosure and could prevent her from testifying to his statement concerning the theft of the painting. Because the husband is dead, he cannot invoke his privilege. Because the wife has waived her privilege and the husband is unable to foreclose her testimony, she can be compelled to testify. (B) is incorrect because the privilege for confidential marital communications applies to the disclosure of matters communicated during and in reliance on the intimacy of the marital relationship regardless of whether one of the spouses is a defendant in a criminal case. (C) is incorrect because it does not take into account the fact that the wife waived her privilege when she communicated her husband's admission to her friend, as explained above. (D) incorrectly concludes that the wife cannot be compelled to testify. Due to her knowing and voluntary revelation of the husband's statement to her friend, the wife has waived her privilege and may be compelled to testify. Note that, if the privilege were still applicable (i.e., if the wife had not waived it), she could not be compelled to testify as to the contents of the privileged communication simply on the ground that such testimony would be `essential to prevent a fraud on the court.

Answer 76

The prosecution's objection should be overruled. If a witness's memory is incomplete, the examiner may seek to refresh her memory by allowing her to refer to a writing or anything else-provided she then testifies from present recollection and does not rely on the writing. (A) is incorrect because the past recollection recorded doctrine applies when a party is seeking to read into evidence the contents of a writing that was made or adopted by the witness. Here, the defendant is not seeking to introduce the writing into evidence; he merely wants the witness to look at it. Furthermore, the requisite foundation to introduce a past recollection recorded has not been laid. Thus, (A) is incorrect. (C) and (D) are incorrect because the letter is not being offered into evidence. Hence, the letter is not hearsay and does not need to be authenticated.

Answer 77

The photograph is not admissible because a proper foundation has not been laid. To be admissible, a photograph must be identified by a witness as a portrayal of certain facts relevant to the issue, and verified by the witness as a correct representation of those facts. It is sufficient if the identifying witness is familiar with the scene or object that is depicted. Here, the photograph taken by the officer must be verified by a witness who is familiar with the accident scene as an accurate representation of that scene. Absent such verification and identification (i.e., a proper foundation), the photograph is not admissible. (A) is incorrect because a photograph's admissibility does not require that the photographer be a police officer or that the photograph be taken for an official report. The identity of the photographer and the purpose for which the photograph was taken are irrelevant to the issue of admissibility of the photograph. (B) is incorrect because the photographer need not be available to testify at trial. To authenticate a photograph, any person familiar with the scene may authenticate the photograph. (D) is incorrect because the best evidence rule (also known as the original document rule) is inapplicable to these facts. The best evidence rule states that in proving the terms of a writing (including a photograph), where the terms are material, the original writing must be produced. Secondary evidence of the writing, such as oral testimony regarding the writing's contents, is permitted only after it has been shown that the original is unavailable for some reason other than the serious misconduct of the proponent. [Fed. R. Evid. 1002] Here, the admissibility of the original photograph is in issue. A copy of the photograph is not being offered. Thus, no problem arises under the best evidence rule.

Answer 78

The grandson prevails because the ranch passed through the residuary clause. Under the Rule Against Perpetuities, the attempt to give the grandson an executory interest is void, so (D) is incorrect. However, the courts would simply read the conveyance without the language of the executory gift, leaving a possibility of reverter in the grantor, the landowner. Thus, (A) is incorrect. Because the grandson succeeded to the landowner's interest as grantor via the residuary clause of the will, he will prevail. (B) is incorrect because there is no restraint on alienation contained in the will.

Answer 79

Answer : A = The accountant is entitled to a hearing because he has a liberty interest in the exercise of his First Amendment rights. If the accountant is fired, he has a right to a hearing to determine whether his First Amendment rights were violated by his dismissal. Under the Due Process Clause of the Fifth Amendment, a person has a liberty interest in the exercise of specific rights provided by the Constitution, including freedom of speech. A government employee may not be fired for expressing his views regarding public issues, but can be fired for speech that disrupts the employer's policies or undermines the employer's authority. Under the Court's expansive interpretation of what a public issue is in this context [see Rankin v. McPherson (1987)], the accountant's statement would probably qualify. At the very least, he can make enough of a showing that his termination violates his free speech rights to be entitled to a hearing on the issue under procedural due process principles. [See Givhan v. Western Line Consolidated School District (1979)] (B) is wrong because the accountant does not appear to have a property interest in his job. A public employee who is subject to removal only for "cause" has a property interest in his job and must be given notice of the charges against him that are to be the basis for his job termination, and a pretermination opportunity to respond to those charges. Here, however, the accountant did not have a property interest in his job. He could have been dismissed for no reason at all. He was not covered by the labor contract between the agency and its clerical workers, and there appears to be no other basis for him to claim an entitlement to continued employment. (C) is wrong because the accountant is entitled to a hearing as long as he can raise a prima facie claim that his speech, which was regarding an issue important to the perception of his agency, was on a public issue and therefore protected by the First Amendment. (D) is wrong for two reasons: As discussed above, the accountant does not have a property interest in his job. Also, due process does not necessarily entitle him to a pretermination evidentiary hearing; a post-termination evidentiary hearing is probably sufficient. [See Cleveland Board of Education v. Loudermill (1985)]

Answer 80

The print cartridge company will prevail because the business owner could no longer accept the offer. A revocation generally is effective when received by the offeree. A written communication is considered to have been "received" when (i) it comes to a person's attention, or (ii) it is delivered at a place of business through which the contract was made. The communication need not be read by the recipient to be effective. Hence, the business owner received the revocation when the revocation letter arrived. Her receipt of the revocation letter before she dispatched her acceptance letter effectively revoked the offer (even though the business owner was unaware of its contents when she mailed the acceptance). (A) is wrong because an offer to make a requirements contract (i.e., the buyer promises to buy from a certain seller all the goods it requires and the seller agrees to sell that amount to the buyer) is sufficiently definite because the quantity is capable of being made certain by reference to objective, extrinsic facts (i.e., the buyer's actual requirements). (C) is wrong because, as stated above, the revocation was effective when it was received (i.e., when it came into the offeree's possession), not when the offeree becomes aware of the revocation. (D) is wrong because the business owner's response to the offer was not reasonably foreseeable. As an exception to the general rule that a revocation is effective on receipt, an offer cannot be revoked and will be treated as an option contract for a reasonable length of time where the offeror could reasonably expect that the offeree would rely to her detriment on the offer. However, this exception usually is applied in only two circumstances: an offer for a unilateral contract and a subcontractor's bid to a general contractor. If the offeror is seeking a bilateral contract in a circumstance other than that of a subcontractor, it would be extremely rare for the offer to be irrevocable due to detrimental reliance. Generally, an offeree must accept the offer before relying on it. Here, it is not even clear that the business owner suffered a detriment (unless she could have skipped paying the rent that month). She was already obligated to pay rent. In any case, nothing suggests that the cartridge company reasonably should have foreseen that the business owner would rely on the offer the way she did (without having accepted it yet).

Answer 81

The agreement is not enforceable because the greengrocer's promise is illusory. For a contract to be enforceable, consideration must exist on both sides, i.e., each party's promise must create a binding obligation. If one party has become bound but the other has not, the agreement lacks mutuality because one of the promises is illusory. Here, the wholesale dealer has promised to supply the greengrocer with fuzzy peaches at a fixed price. The greengrocer, however, has not promised to order any peaches from the wholesale dealer. Even if the greengrocer decides to sell fuzzy peaches, it has not bound itself to order them from this particular wholesale dealer. The illusory nature of the greengrocer's promise makes the agreement unenforceable on consideration grounds. (A) is incorrect because in a valid requirements contract, both parties' promises create binding obligations: The promisor binds itself to buy from the supplier all that it requires, and the supplier binds itself to sell to the promisor that same amount. Consideration exists because the promisor is suffering a legal detriment; it has parted with the legal right to buy the goods it may need from another source. Under the UCC, which governs in this case because a contract for the sale of goods is involved, a good faith term is implied: The buyer's requirements means such actual requirements as may occur in good faith. Thus, if the provision had stated instead that the greengrocer will buy "as many 50-pound lots of fuzzy peaches as the greengrocer shall require," it would be a valid requirements contract under the UCC because it requires the greengrocer to buy fuzzy peaches only from the wholesale dealer and to act in good faith in setting its requirements. (B) is incorrect even though the UCC will imply reasonable terms under certain circumstances. Such terms as price and time for performance need not be spelled out in the contract; the terms will be supplied by a "reasonableness" standard if that is otherwise consistent with the parties' intent. However, supplying reasonable terms will not change the express terms of the contract. The provision that the greengrocer will buy as many peaches as it chooses to order is not sufficiently obligatory to be saved by the court supplying reasonable terms. (C) is incorrect because if the agreement were otherwise a valid requirements contract, the absence of a total quantity term would not matter. As a general rule in sale of goods contracts, the quantity being offered must be certain or capable of being made certain. The UCC provides that an agreement to buy all of one's requirements is sufficiently certain because requirements usually can be objectively determined. Furthermore, the quantity ultimately required in good faith must not be unreasonably disproportionate to any stated estimate or any normal requirements (in the absence of a stated estimate). Hence, if the greengrocer had contracted to buy all of its requirements from the wholesale dealer, the absence of a term specifying total quantity would not have made the agreement unenforceable.

Answer 82

The surgeon is entitled to specific performance because the owner signed the land sale contract. A contract was formed here when the parties orally agreed to the sale of the property. However, the contract was unenforceable at that time because, under the Statute of Frauds, a contract for the sale of land is unenforceable unless a memorandum containing the contract's essential terms is signed by the party to be charged. Here, the party to be charged is the owner, and she signed the land sale contract, a writing sufficient to satisfy the Statute of Frauds (a memorandum for the sale of land is sufficient if it contains the price, a description of the property-which need not be a "legal" description-and a designation of the parties). Thus, the contract was enforceable. Specific performance is allowed when the legal remedy (damages) would be inadequate, such as with contracts to purchase land, which is unique. Therefore, the surgeon is entitled to specific performance (assuming the property has not already been sold to a bona fide purchaser); under the facts the neighbor had made an offer but nothing indicates that the owner accepted the offer yet. (B) is incorrect because the contract was effective when the parties orally agreed to it. The contract became enforceable when the owner signed it, not when she placed it in the mail. (C) is incorrect because this is not a mailbox rule issue. The contract was already formed before the attorney attempted to revoke the offer. Thus, his attempt at revocation was ineffective. It did not matter when the surgeon mailed the contract. (D) is incorrect because, to satisfy the Statute of Frauds, a description need not be a complete legal description, but need merely be sufficient to reasonably identify the subject of the contract. It is sufficient that the property was identified by its address

Answer 83

Answer Discussion - Correct The contract between the sail maker and the boat builder is enforceable despite the Statute of Frauds because the sail maker fully performed. The contract here was for the sale of goods (sails) for the price of $500 or more; thus, the contract is within the Statute of Frauds. A contract within the Statute of Frauds is generally unenforceable absent written evidence of a contract signed by the party to be charged. However, there is an exception to the general rule for goods received and accepted. Here, although the contract was oral, the boat builder accepted the sails, and so he is bound despite the Statute. Note that the boat builder might also be bound under another exception to the Statute-for specially manufactured goods if the sails were made specially for the yacht and were not suitable for sale to others. (A) is incorrect because the UCC does not exempt merchants from the Statute of Frauds. Although it provides a special confirmatory memo rule by which a merchant may be bound even if his signature does not appear on the writing evidencing the contract, here there is no writing at all. (C) is incorrect because it is irrelevant. The fact that the boat builder agreed not to subcontract is relevant to whether he breached his contract with the sailing enthusiast, but it does not affect his contract with the sail maker. (D) is incorrect because, as stated above, the contract here falls within an exception to the Statute of Frauds because the boat builder accepted the sails.

Answer 84

The creditor will be able to recover the contract price less damages for the company's minor breach. Generally, an assignee has whatever rights his assignor would have against the obligor. Similarly, the assignee is subject to any contract-related defenses that the obligor has against the assignor. Thus, the creditor will have whatever rights the company would have against the condominium owner. Here, the company completed all of the tasks that needed to be done except for one (i.e., cleaning the oven). If the work remaining on the contract is minor, the company will be seen as substantially performing its contract, and substantial performance will discharge its duty to perform and obligate payment by the condo owner. Because the facts state that the cost of finishing the job was relatively small (10% of the cost of the contract), it will probably be seen as a minor breach. Thus, the condominium owner cannot avoid payment of the contract price. However, despite the substantial performance, the other party to the contract may recover damages for the less than complete performance. Thus, the condominium owner will be able to offset his damages from the breach. The creditor then will be able to recover $1,350 (the contract price less the damages). (A) is incorrect because, as stated above, the obligor may offset damages directly against the assignee; he does not have to pay the full contract price and then seek damages from the assignor. (B) is incorrect because this suggests a restitutionary remedy, but, as stated above, the creditor, as assignee of the company, would be able to recover the contract price less damages because the company substantially performed. (D) is incorrect because the constructive condition precedent to the condominium owner's duty to pay (the company's performance) has been satisfied here by substantial performance.

Answer 85

Answer Discussion - Incorrect The contractor should be able to recover $250,000 in restitutionary damages. Where a builder in a construction contract breaches during the construction, the nonbreaching party is entitled to the cost of completion plus compensation for any damages caused by the delay in completing the building. Most courts, however, will allow the builder to offset or recover for work performed to date to avoid the unjust enrichment of the owner. This restitutionary recovery is usually based on the benefit received by the unjustly enriched party. If substitute performance is readily obtainable, damages are measured by the unpaid contract price minus the cost of completion (up to the value of the benefit received by the defendant). Here, the contractor's duty to complete the project was not discharged by impossibility; he could have hired another contractor to take his place or yielded to his employees' demands. Hence, the contractor's failure to complete the remodeling constituted a breach of contract and resulted in the college having to expend $150,000 to have the building completed on time. However, the contractor did not receive any payments for the work that he did before breaching; the college would be unjustly enriched if it does not have to pay for any of this work. The benefit of the completed remodeling is measured by the contract price, $400,000, because a restitutionary recovery here would be based on the failed contract between the parties and substitute performance is readily obtainable. This amount is reduced by the $150,000 cost of completion that the college can recover from the contractor, leaving a net recovery of $250,000 for him. (A) is incorrect. Most modern courts would permit the contractor to recover in restitution to prevent the college's unjust enrichment from the work that he did. (B) is incorrect because recovery measured by the claimant's detriment (i.e., his reliance interest) is an appropriate alternative only where the standard "benefit" measure would achieve an unfair result; it is not applied where the party seeking restitutionary recovery was the breaching party. (D) is incorrect because courts will always limit relief to the contract price where the claimant is the breaching party. Measuring the benefit to the college in terms of the value of the improvements rather than the contract price will deny to the college the benefit of the bargain that it became entitled to when the contractor breached.

Answer 86

nswer Discussion - Incorrect The store owner (the promisor) remains liable based on his contract with the distributor (the promisee), and the chain operation is liable based on its assumption of the contract with the distributor. The food research corporation is expressly designated in the contract between the store owner and the distributor as a party to whom payment for any April purchases is to be directly made. Thus, the portion of the contract providing for payment is primarily for its benefit. Consequently, the food research corporation is an intended third-party beneficiary of the store owner's promise to make the April payment. As the third-party beneficiary, it has a right of action against the promisor (the store owner) for enforcement of the promise to pay. When the store owner assigned to the chain operation his contract with the distributor, the chain operation was deemed to have assumed the store owner's duties under that contract as well as being assigned the rights thereunder. Thus, the chain operation can be held to the duty to pay for the health food products that were ordered in April. Although the chain operation is deemed to have assumed the duties of the store owner under the contract, the store owner (the delegator) remains liable on the contract. Consequently, the food research corporation has a right of action for the April payment against both the store owner and the chain operation (although it will be limited to only one recovery, see below). (A) and (C) are incorrect because they conclude that, as between the store owner and the chain operation, only one of them has the duty to tender the required payment. As explained above, both the store owner and the chain operation are under this duty. (D) is incorrect because, as discussed above, both the store owner and the chain operation are liable. Of course, there will be only one recovery, so as not to cause a windfall as a result of the breach. Generally, the purpose of contract damages is to put the nonbreaching party in the position it would have been in had the contract been performed.

Answer 87

The community college will prevail in its suit against the replacement company because there was a delegation of duties plus an assumption of duty on the part of the replacement company, supported by consideration, creating a third-party beneficiary situation in which the obligee can compel performance or bring suit for nonperformance. Because the replacement company has promised that it will perform the duty delegated and that promise is supported by consideration, an assumption of duty has occurred and a third-party beneficiary situation is created in which the community college can compel performance or bring suit for nonperformance. Thus, (D) is correct and (A) is incorrect. (B) is incorrect because a court would probably not even inquire into adequacy of consideration when the value of the consideration was satisfactory to the parties involved. (C) is incorrect because the facts do not clearly indicate a novation. A novation occurs where a new contract substitutes a new party to receive benefits and assume duties that had originally belonged to one of the original parties under the terms of the old contract. A novation discharges the old contract. A novation will be found when there is (i) a previous valid contract; (ii) an agreement among the parties, including the new party to the new contract; (iii) the immediate extinguishment of contractual duties as between the original contracting parties; and (iv) a valid and enforceable new contract. Here, the facts do not state or otherwise indicate that a new contract was created and the duties under the old contract were discharged. Thus, this is not a novation situation.

Answer 88

Both the homeowner and the buyer are liable for the deficiency. If a sale of foreclosed property does not bring enough to satisfy the mortgage debt, the mortgagee/lender can bring a personal action against the mortgagor/debtor for the deficiency (as long as the jurisdiction does not bar deficiency judgments). When the mortgagor sells the mortgaged property and gives a deed, the grantee takes subject to the mortgage, which remains on the land. If the grantee does not sign an agreement to assume the mortgage, he does not become personally liable on the loan, and the original mortgagor remains personally liable. If the grantee does sign an assumption agreement, however, the lender is considered a third-party beneficiary of the agreement, and hence may recover from the assuming grantee, who is primarily liable, or the original mortgagor, who is secondarily liable. Here, the buyer signed the recital providing for the assumption, so she will be personally liable on the loan. Therefore, (A) is correct, and (B) is incorrect. (C) is incorrect because the homeowner, the original mortgagor, did not extinguish his own personal liability on the loan by obtaining the assumption agreement from the buyer. He remains secondarily liable as a surety. Thus, the bank may sue the homeowner on the original mortgage agreement. (Note that while the bank may obtain a judgment against both of them, its maximum recovery will be the $14,000 deficiency.) (D) is incorrect because the facts indicate that the jurisdiction does not bar deficiency judgments

Answer 89

The roommate committed larceny by trick because the banker's consent to the roommate's taking the money was induced by the misrepresentation that the roommate would take the money to the student/beneficiary. Larceny consists of a taking and carrying away of tangible personal property of another by trespass, with intent to permanently (or for an unreasonable time) deprive the person of his interest in the property. If the person in possession of property has not consented to the taking of it by the defendant, the taking is trespassory. However, if the victim consents to the defendant's taking possession of the property, but such consent has been induced by a misrepresentation, the consent is not valid. Under such circumstances, the larceny is called larceny by trick. Here, the roommate obtained the money from the banker on the promise that he would take it to the student/beneficiary. This misrepresentation induced the banker to give possession of the money to the roommate. The roommate then proceeded to take the money and carry it away, intending all the while to permanently deprive one who had a possessory interest superior to the roommate's of his interest in the money. Thus, all the elements of larceny are present. Because the original wrongful taking resulted from consent induced by misrepresentation, the specific larceny committed by the roommate is more precisely characterized as larceny by trick. Consequently, although the roommate has in fact committed larceny, (C) is a better answer than (D). Regarding (A), false pretenses consists of obtaining title to the property of another by an intentional (or knowing) false statement of past or existing fact, with intent to defraud the other. If a victim intends to convey only possession of the property to the defendant, the offense is larceny by trick. However, if the victim intends to convey title, the offense is false pretenses. Here, the banker intended to convey possession of the money to the roommate so that he could give the money to the student/beneficiary. The banker did not intend to convey title to the roommate. Because the roommate did not obtain title by means of his misrepresentation but simply obtained possession, the offense of false pretenses was not committed. (B) is incorrect because embezzlement is the fraudulent conversion of property of another by a person in lawful possession of that property. In embezzlement, the misappropriation of the property occurs while the defendant has lawful possession of it. In larceny, the misappropriation occurs generally at the time the defendant obtains wrongful possession of the property. The roommate did not have lawful possession of the money because his possession of the money resulted from his misrepresentation to the banker. Thus, the roommate's taking of the money was wrongful from the outset. Because the roommate had wrongful, rather than lawful, possession of the money, there was no embezzlement

Answer 90

The man's motion should be denied because neither his Fifth nor Sixth Amendment rights were violated by the informant's conduct. The Sixth Amendment right to counsel applies to all critical stages of a criminal prosecution after formal proceedings have begun, but does not apply in precharge custodial interrogations. Because this right is "offense specific," the fact that the right to counsel has attached for one charge does not bar questioning without counsel for an unrelated charge. Because the man has not been charged with the convenience store robbery, his Sixth Amendment right to counsel has not been violated. The Fifth Amendment privilege against self-incrimination requires Miranda warnings and a valid waiver before any statement made by the accused during custodial interrogation can be admitted. However, this requirement does not apply where interrogation is by an informant who the defendant does not know is working for the police, because the coercive atmosphere of police-dominated interrogation is not present. [Illinois v. Perkins (1990)] Because the man was not aware of the informant's status, the informant's conduct did not constitute a police interrogation. (A) is wrong despite the fact that the informant's conduct may have been deliberately designed to elicit incriminating remarks. As discussed above, the man's right to counsel did not attach for purposes of the convenience store robbery. (B) is incorrect because, as discussed above, the Miranda warnings need not be given before questioning by a cellmate working covertly for the police. (D) is incorrect because interrogation refers not only to express questioning, but also to any words or actions on the part of the police that the police should know are reasonably likely to elicit an incriminating response from the suspect. Here, the informant, working for the police, made statements about the convenience store robbery that were intended to, and reasonably likely to, prompt a response from his cellmate. Hence, it is not the absence of "interrogation" that avoids the Miranda problem, but the fact that the man did not know that his cellmate was working for the police.

Answer 91

The defense motion should be denied because the driver was not in custody when she made the statement. Persons temporarily detained for routine traffic stops are not in custody for Miranda purposes. Therefore, the driver was not entitled to Miranda warnings, and her statement about the marijuana was not tainted. Her statement thus properly provided the probable cause for the search of her purse. (A) is therefore wrong. (B) is wrong because this case falls within the automobile exception to the warrant requirement. Under that exception, if the police have probable cause to believe that a vehicle contains contraband or fruits, instrumentalities, or evidence of a crime, they may search the vehicle, including the driver's belongings, without a warrant. Here, the driver's response established probable cause to search her purse. (D) states the test for a stop, not a search. An automobile search requires probable cause.

Answer 92

The defendant's confession should be admitted because he waived his Fifth Amendment privilege against compelled self-incrimination after receiving Miranda warnings. Miranda v. Arizona requires that a person in custody be informed of his right to remain silent and his right to the presence of an attorney during questioning. A suspect may subsequently waive his rights by making a confession, as long as the waiver was knowing and voluntary. In this case, the defendant received proper Miranda warnings, and there is no indication that he did not understand what his rights were. Although his answers during questioning were initially unresponsive, he never asked for an attorney or indicated that he wished to remain silent, and he voluntarily confessed after a relatively short period of interrogation. Hence, he validly waived his Miranda rights. (A) is incorrect because the police have no duty to inform the defendant that an attorney is attempting to see him. The defendant's ignorance of his attorney's efforts has no bearing on whether he made a knowing waiver of his Miranda rights. (B) is incorrect because the defendant's right to counsel was not violated. Although the defendant does have a separate Sixth Amendment right to counsel under Escobedo v. Illinois because he has already been arrested and charged with the crime, this right would only be violated if the defendant, after being informed of his right to counsel, had requested an attorney or had been prevented from seeing his attorney. Here, he made no request to see an attorney-even when he called his mother-and his attorney was allowed to see him immediately upon her arrival. Thus, he has waived his Sixth Amendment right to counsel. (C) is incorrect even though it is true that the defendant made a voluntary statement. Due process requires that for confessions to be admissible, they must be "voluntary," based on the totality of the circumstances, and here all of the circumstances indicate that the defendant's confession was voluntary. However, even a voluntary confession will be inadmissible if it was obtained in violation of Miranda rights. (D) is therefore a better choice than (C).

Answer 93

Answer Discussion - Correct If the woman prevails in her challenge to the admission of the man's confession, it will be because the man could not be cross-examined regarding his confession. Under the Sixth Amendment, a defendant in a criminal prosecution has the right to confront adverse witnesses at trial. If two persons are tried together and one has given a confession that implicates the other, the right of confrontation generally prohibits the use of that statement because the other defendant cannot compel the confessing co-defendant to take the stand for cross-examination. A co-defendant's confession is inadmissible even when it interlocks with the defendant's own confession, which is admitted. If the man refused to take the stand and subject himself to cross-examination, his confession was not properly admitted because it violated the woman's Confrontation Clause rights. (A) is incorrect because the fact that the man's confession incriminates the woman more than her own confession is not relevant. Just the interlocking nature of the man's confession with the woman's confession makes it more damaging by making it harder for the woman to claim that her confession was false. (B) is incorrect because the Supreme Court has held that instructing the jury to consider the confession only as going to the guilt of the confessing defendant is inadequate to avoid Confrontation Clause problems, because the risk that the jury will not follow the limiting instructions is too great in this context. (D) is incorrect. Confessions of a co-defendant may be admitted if (i) all portions referring to the other defendant can be eliminated (so that there is no indication of that defendant's involvement), (ii) the confessing defendant takes the stand and subjects himself to cross-examination regarding the truth or falsity of the statement, or (iii) the confession of the nontestifying co-defendant is being used to rebut the defendant's claim that his confession was obtained coercively, and the jury is instructed as to that purpose. Even if the co-defendant denies ever having made the confession, as stated in choice (D), the opportunity at trial to cross-examine the co-defendant satisfies the Confrontation Clause

Answer 94

The court should sustain the objection because the police did not honor the woman's request for an attorney. At any time prior to or during a custodial interrogation, the accused may invoke a Miranda (Fifth Amendment) right to counsel. If the accused invokes this right, all questioning must cease until the accused is provided with an attorney or initiates further questioning himself. Thus, the police questioning of the woman about the robbery was improper, and she can have her statements excluded. (A) is incorrect. After receiving Miranda warnings, if an accused invokes the right to remain silent, the police cannot badger the accused. However, courts have ruled that if the police scrupulously honor the request, they can rewarn the accused and later resume questioning, at least about a different crime. Here, however, the accused did not simply invoke the right to remain silent, but rather requested an attorney. After such a request, as indicated above, all questioning must cease. (B) is incorrect because the accused does not need to reassert the right to an attorney; all questioning must stop until the accused is provided an attorney or resumes the questioning herself. (D) is incorrect. It is stating the rule for impeachment-a confession obtained in violation of a defendant's Miranda rights but otherwise voluntary may be used against the defendant for purposes of impeachment, but there is no such rule for use of the confession for other purposes.

Answer 95

Although jeopardy attached in the wife's first trial, her retrial is not barred because she initiated the grant of the mistrial in her first trial. As a general rule, the right to be free of double jeopardy for the same offense bars a retrial for the same offense once jeopardy has attached in the first trial. However, one of the exceptions permitting retrial even if jeopardy has attached is when a mistrial is granted in the first trial at the request of the defendant on any ground not constituting an acquittal on the merits. Here, the wife requested the mistrial because a conflict arose between the defenses of her and her co-defendant in the joint trial, and the judge granted the mistrial solely to allow the wife to obtain another attorney. Thus, no acquittal on the merits occurred and the double jeopardy rule does not apply. (A) is incorrect for several reasons. Merely because jeopardy attaches does not mean that the double jeopardy rule will apply; retrial will be permitted under certain exceptions, one of which is applicable here. Furthermore, (A) is not a correct statement of law. Jeopardy attaches in a jury trial when the jury is impaneled and sworn in, even if it has not yet heard any evidence. (B) is incorrect because the judge's finding at the preliminary hearing stage appears to be an honest error rather than bad faith conduct. In the absence of bad faith conduct by the judge or prosecutor designed to force the defendant to seek a mistrial, the defendant's securing of a mistrial does not preclude a retrial. (D) is incorrect because the right to be free of double jeopardy creates a bar as soon as the defendant is retried for the same offense, rather than on her conviction.

Answer 96

Answer Discussion - Correct Testimony obtained by a promise of immunity is by definition coerced and therefore involuntary. Thus, immunized testimony may not be used for impeachment of the defendant's testimony at trial. The friend's testimony will not be permitted to be used against the ex-convict because it resulted from the ex-convict's immunized testimony, and use and derivative use immunity prevents, as the term states, use of the immunized testimony and use of any evidence derived from the immunized testimony. (A) is wrong because it is an inaccurate statement of the law. Prosecutors can bargain away the rights of co-defendants. (C) is wrong because police suspicion is not the equivalent of actual testimony. (D) is wrong. Even though a witness wants to testify, various privileges such as lawyer-client, doctor-patient, etc., may bar the testimony. Here, the grant of immunity to the ex-convict is a bar to the friend's derived testimony because use immunity bars use of one's testimony or anything derived from it.QUESTION ID: MR014

Answer 97

The court should deny the motion. Under the Erie doctrine, when a state law-based claim is brought in federal court based on diversity of citizenship, the federal court generally applies the substantive law of the state in which it is sitting. However, where a specific federal statute or the Federal Rules of Civil Procedure are on point, the federal court must apply federal procedural law as long as the federal rule is valid. Under the Rules Enabling Act, a Federal Rule is valid if it deals with "practice or procedure" and does not "abridge, enlarge, or modify" a substantive right. Here, there is a specific federal procedural rule that is on point [Fed. R. Civ. P. 48], which requires jury verdicts to be unanimous, unless the parties agree otherwise. Since there is no evidence of agreement, the federal procedural rule will apply, and the motion should be denied. (A) is wrong because it states the wrong conclusion, and it incorrectly cites the "outcome determination" test. This is the test that may be applied when there is no federal procedure law on point, and it is unclear whether the state matter is substantive or procedural. As stated above, there is a federal procedural rule on point. Therefore, this test does not apply. Similarly, (D) is wrong because it is referring to the balance of interests test, which is another test that may be applied when there is no federal procedural law on point, and it is unclear whether the state matter is substantive or procedural. This test is not applicable here, however, because there is a federal procedural rule on point. (B) is wrong because, although it is a true statement of law that a federal court with diversity jurisdiction is required to apply the substantive law of the state in which it is sitting, the requirements for a jury verdict is a procedural rule, not a substantive rule. Therefore, as set forth above, the federal procedural rule governs.

Answer 98

This order by the court is valid. The Federal Rules give the court the power to call one or more pretrial conferences for a variety of reasons as necessary to expedite trial and foster settlement. Moreover, this conference is to be attended by at least one of the lawyers for each side who will actually be conducting the trial, and by any unrepresented parties. A party or counsel may be sanctioned for failure to attend a conference or obey an order entered pursuant to the conference. Additionally, the court must require the disobedient party or counsel to pay expenses incurred (including attorneys' fees) by other parties unless the court finds that circumstances make such an award unjust. Here, the judge does have the power to not only order a pretrial conference to expedite the trial and encourage settlement, but also to sanction the restaurant franchise to pay the restaurant owner's travel expenses and attorneys' fees for failing to appear. (A) is wrong because it is a misstatement of the law. The judge does have the power under the rules to order the party who fails to appear to pay the opposing side's attorneys' fees. (B) is wrong because it also misstates the law. The Federal Rules permit courts to call pretrial conferences to expedite trial and foster settlement. (D) is wrong because, although it is a correct statement of the law (that pretrial orders bind all parties to the case for the remainder of the case), it does not directly answer the call of the question. The question asks if the order is valid. It does not ask if it is binding on the parties.

Answer 99

Answer Discussion - Incorrect The court should deny the motion. Under the Erie doctrine, when a state law-based claim is brought in federal court based on diversity of citizenship, the federal court generally applies the substantive law of the state in which it is sitting. However, where a specific federal statute or the Federal Rules of Civil Procedure are on point, the federal court must apply federal procedural law as long as the federal rule is valid. Under the Rules Enabling Act, a Federal Rule is valid if it deals with "practice or procedure" and does not "abridge, enlarge, or modify" a substantive right. Here, there is a specific federal procedural rule that is on point [Fed. R. Civ. P. 48], which requires jury verdicts to be unanimous, unless the parties agree otherwise. Since there is no evidence of agreement, the federal procedural rule will apply, and the motion should be denied. (A) is wrong because it states the wrong conclusion, and it incorrectly cites the "outcome determination" test. This is the test that may be applied when there is no federal procedure law on point, and it is unclear whether the state matter is substantive or procedural. As stated above, there is a federal procedural rule on point. Therefore, this test does not apply. Similarly, (D) is wrong because it is referring to the balance of interests test, which is another test that may be applied when there is no federal procedural law on point, and it is unclear whether the state matter is substantive or procedural. This test is not applicable here, however, because there is a federal procedural rule on point. (B) is wrong because, although it is a true statement of law that a federal court with diversity jurisdiction is required to apply the substantive law of the state in which it is sitting, the requirements for a jury verdict is a procedural rule, not a substantive rule. Therefore, as set forth above, the federal procedural rule governs.

Answer 100

nswer Discussion - Incorrect The court will preclude the car driver from relitigating the question of whether she was negligent. Under issue preclusion (collateral estoppel), a judgment binds the plaintiff or defendant (or their privies) in subsequent actions on different causes of action between them (or their privies) as to issues actually litigated and essential to the judgment in the first action. Issue preclusion focuses on something relatively narrow-an issue that was litigated and determined in the first case, and that is relevant in a second case. With issue preclusion, the issue is deemed established in the second case without need to proffer evidence on it. Here, the car driver was a party to the first lawsuit and, after both parties "vigorously litigated" the issues of negligence, the jury determined that the car driver was negligent in the first case. Since the car driver filed a negligence claim against the truck driver claiming that he ran the red light in the first case, and the truck driver defended on the grounds that the car driver was contributorily negligent for speeding, the issue of who was negligent was essential to the judgment in the first action. Therefore, the court will preclude the car driver from relitigating whether she was negligent in the claim asserted against her by the passenger. For these same reasons, (A) is wrong. (B) is wrong because the car driver's due process rights are not violated. Due process requires that issue preclusion may be asserted only against someone who was a party (or in privity with a party) to the previous case (the case in which the issue was actually litigated and determined). Here, due process is satisfied because the car driver was a party in the previous claim and vigorously litigated the claim. Note that the car driver may be able to assert the traditional "mutuality" rule to prevent the passenger from asserting issue preclusion, but this is not what was asserted in choice (B); due process was. Under the traditional "mutuality" rule, only someone who was a party (or in privity with a party) in the previous case can use issue preclusion. However, this requirement is not imposed by due process and has been subject to modification in certain circumstances to allow nonparties to take advantage of a prior judgment. In fact, although courts have been very reluctant to permit a nonparty to use issue preclusion to aid him offensively (as a plaintiff) to obtain relief, the Supreme Court has upheld its use offensively by a nonparty where it was fair and equitable to do so. [Parklane Hosiery Co. v. Shore, 439 U.S. 322 (1979)] (D) is wrong because it incorrectly states that the claim will be precluded by claim preclusion (res judicata). Claim preclusion focuses on something relatively large-the scope of a "cause of action." If it applies, the result is usually to bar the same party in the first case from asserting a second case against the other party in the first case. Issue preclusion, in contrast, focuses on something relatively narrow- an issue that was litigated and determined in the first case and that is relevant in a second case.

Answer 101

Answer Discussion - Correct The court should reverse the trial judge's decision. On motion and just terms, the court may relieve a party from a final judgment or order on the following grounds: (i) mistake, inadvertence, surprise, or excusable neglect; (ii) newly discovered evidence that by due diligence could not have been discovered in time to move for a new trial; (iii) fraud, misrepresentation, or other misconduct of an adverse party; (iv) the judgment is void; (v) the judgment has been satisfied, released, or discharged; a prior judgment on which it is based has been reversed or otherwise vacated; or it is no longer equitable that the judgment should have prospective application; or (vi) any other reason justifying relief from the operation of the judgment. For grounds (i), (ii), and (iii), the motion must be made within a reasonable time not to exceed one year from the judgment; for the other grounds, the motion must be made within a reasonable time. (But remember that a lack of subject matter jurisdiction may be raised at any time.) Such a motion is left to the trial judge's discretion, and, on appeal, her decision will be reviewed on an "abuse of discretion" standard. Here, the motion would be based on newly discovered evidence. When deciding whether to grant or deny such a motion, the trial judge must determine whether the evidence could have been discovered with any amount of due diligence. Here, the name and address of the witness could have been easily discovered had the pedestrian's attorney simply requested a copy of the police report from the police department. This is such an obvious case of lack of due diligence on the part of a represented party that it would be an abuse of discretion to grant relief based on newly discovered evidence. (C) is incorrect because the time period for bringing a motion for relief from judgment based on newly discovered evidence is within a reasonable time, not to exceed one year from the judgment, not six months. (A) is incorrect because, although the decision is left to the trial judge's discretion, the exercise of discretion would be reviewed on appeal on an abuse of discretion standard, and here, the newly discovered evidence could have easily been discovered in time for trial with minimal preparation. Thus, the judge very likely abused discretion by granting the motion. (B) is incorrect. Although a party is required to disclose information within his possession upon a proper request (and after a proper search of his records), and to truthfully answer questions at a deposition, those requirements do not relieve the opposing party from conducting an investigation of her own case. In other words, the fact that the driver's attorney may have been grossly negligent in preparing his case does not relieve the failure of the pedestrian's attorney to discover the identity of the witness

Answer 102

Answer Discussion - Incorrect Absent a court order, no execution on judgments is allowed for 30 days after entry except for injunctions or receiverships, which are not held up unless otherwise ordered by a court. (A) is incorrect because the fact that a post-trial motion has been filed is irrelevant to the automatic stay provision. Even if no motion were filed, the automatic stay provision would apply absent a court order. (C) and (D) are incorrect; the automatic stay provision would prevent a judgment from being enforced.

Answer 103

Answer Discussion - Correct A defendant must file a motion to dismiss based on lack of personal jurisdiction at the time he files a motion or at the time he files his answer, whichever occurs first. If he does not, the defendant waives the defense. Here, the defendant first filed a pretrial motion for a more definite statement, which the court denied. Since he did not assert the lack of personal jurisdiction in this first motion, he waived the defense in the subsequent motion. (A) is wrong because it misstates the rule. This affirmative defense must be asserted in either a motion or an answer, whichever is first, not later, or it is waived. (B) is wrong because it also misstates the rule for personal jurisdiction. This would be the correct answer if the motion to dismiss were based on lack of subject matter jurisdiction, but this motion is based on lack of personal jurisdiction. (D) is wrong because it also misstates the law, as set forth above

Answer 104

Answer Discussion - Incorrect The driver can obtain the truck's service records from the repair shop by serving a subpoena requiring the shop to produce the documents. A party may serve on a nonparty a subpoena that compels the nonparty to produce physical material, including documents and electronically stored information, relevant to the pending action. (A) is incorrect because a request for production is used to request documents from parties. Nonparties require subpoenas. (C) is incorrect because a party can force a nonparty to permit the inspection of records. (D) is incorrect because the mechanics are not experts who have been retained in anticipation of litigation or trial.

Answer 105

Answer Discussion - Incorrect If the passenger's attorney has attempted in good faith to resolve the dispute, the court must order the bus company to produce the report and to pay the passenger's reasonable costs in making the motion, including attorney's fees. Costs will be awarded unless: (i) the movant filed the motion before attempting in good faith to obtain disclosure or discovery without court action; (ii) the opposing party's nondisclosure, response, or objection was substantially justified; or (iii) other circumstances exist that make an award of expenses unjustified. [Fed R. Civ. P. 37(a)] None of these exceptions apply. (A) is incorrect because default judgments are possible sanctions for a party who fails to comply with an order to provide discovery. (C) is incorrect because an attempt to resolve the discovery dispute without court intervention is required before an award of reasonable costs may be made. (D) is incorrect because reasonable costs must be awarded absent the exceptions noted above, which do not appear applicable here. [Fed. R. Civ. P. 37(a)(5)(A)]

Answer 106

Highlight Answer Discussion - Correct The burden of persuasion and the burden of going forward with the evidence are on the plaintiff because the defendant's testimony raises a rebuttable presumption that the check had been delivered in the mail. The burden of persuasion is the burden of a party to persuade the jury to decide an issue in its favor. If, after all the proof is in, the issue is equally balanced in the mind of the jury, then the party with the burden of persuasion must lose. The burden of persuasion does not shift from party to party during the course of a trial. Because the plaintiff sued the defendant for the debt, the plaintiff has the burden of persuasion when the time for the jury to make a decision arrives. The burden of going forward with the evidence is the burden of producing sufficient evidence to create a fact question of the issue involved. If a plaintiff makes out a prima facie case, he has met his burden of going forward with the evidence and the burden shifts to the defendant. Here, when the plaintiff made out a prima facie case of the defendant's debt, the burden of going forward with the evidence shifted to the defendant. The defendant met this burden through the use of a presumption. Federal Rule 301 provides that a presumption imposes on the party against whom it was directed the burden of going forward with the evidence to rebut the presumption. The defendant's evidence regarding the proper posting of the check raises a rebuttable presumption that the check was delivered to the plaintiff because a letter shown to have been properly addressed, stamped, and mailed is presumed to have been delivered in the due course of mail. Therefore, the burden of going forward with the evidence has shifted back again to the plaintiff, who must now produce evidence to rebut the presumption (i.e., evidence that he did not receive the check). (B) is incorrect because, as discussed above, the defendant's testimony raised a rebuttable presumption that the check was delivered in the mail, which shifted the burden of going forward with the evidence to the plaintiff. The fact that the plaintiff met his burden of going forward with the evidence of the debt once, when he made out his prima facie case, does not mean the burden cannot shift back to him. (C) is incorrect because the plaintiff has not satisfied his burden of persuasion. As discussed above, the burden of persuasion does not shift from party to party and is only a crucial factor when all the evidence is in. This burden is satisfied when the jury finds a party has been more persuasive in arguing his side of the issue than the other party. Because the defendant's testimony raises a rebuttable presumption that the check was delivered to the plaintiff, the plaintiff's burden of persuasion cannot be met until he offers evidence to prove that the check was not received (a necessary element of his case). (D) is incorrect because, as discussed above, the defendant's testimony raised a rebuttable presumption of delivery of the check in the mail to the plaintiff, which shifted the burden of going forward with evidence of nondelivery back to the plaintiff. The plaintiff's burden of persuasion cannot be satisfied until he comes forward with this evidence because a necessary element of his case is that the defendant never paid him.

Answer 107

The defendant can be found guilty of robbery and felony murder, but the death penalty cannot be imposed. The defendant can be found guilty of robbery as an accomplice. The Supreme Court has held that, under the Eighth Amendment, the death penalty may not be imposed for felony murder where the defendant, as an accomplice, did not take or attempt or intend to take life, or intend that lethal force be employed. [Enmund v. Florida (1982)] Here, because the defendant's involvement in the crime was only to provide transportation, it cannot be said that he participated in such a major way that he acted with reckless indifference to human life; hence, the death penalty cannot constitutionally be imposed against him. (B) is therefore incorrect. (C) is incorrect because the defendant's conviction of both robbery and felony murder does not raise double jeopardy problems under these facts. Under the rule that lesser included offenses "merge" into greater offenses, a person may not be convicted of both the greater offense and a lesser included offense. While the Supreme Court has held that a subsequent prosecution for robbery is not permitted against a defendant who has been tried for felony murder where the robbery is the underlying felony, this situation is different. Imposition of cumulative punishments for two statutorily defined offenses arising from the same transaction and constituting the same crime does not violate double jeopardy when the punishments are imposed at a single trial, as long as the two offenses were specifically intended by the legislature to carry separate punishments. [Missouri v. Hunter (1983)] Here, the legislature did specifically provide for cumulative penalties for first degree felony murder and for the underlying felony. Thus, the defendant can be convicted of both robbery and felony murder. (D) is incorrect because the jury could properly find the defendant guilty of felony murder. When the felony murder rule is combined with accomplice liability rules, the scope of liability becomes very broad. The felony murder rule provides that a killing-even an accidental one-committed during the course of a felony is murder. All parties to the felony are liable for the murder as long as (i) it was committed during the commission of the felony or in fleeing from the scene, and (ii) it was a foreseeable result of commission of the felony. Courts have been willing to find most deaths committed during a felony to be foreseeable. Here, the jury could reasonably find the shooting death of a store clerk by the acquaintance during a struggle for a gun to be a foreseeable result of the commission of a robbery and impose felony murder liability on the defendant as an accomplice because he knew that the acquaintance was going to commit a robbery.

Answer 108

Answer Discussion - Incorrect The trucking company will be able to recover the $45,000 from the buyer because the buyer had notice of the assignment. Most contract rights may be assigned, and the right assigned here (to receive money) falls within the general rule. Once the assignment is effective, the assignee (the trucking company) becomes the real party in interest, and he alone is entitled to performance under the contract. (The assignor has been replaced by the assignee.) Once the obligor (the buyer) has knowledge of the assignment, he is bound to render performance to the assignee. Here, the assignment was effective as soon as the assignor (the manufacturer) manifested his intent that the right should be assigned (i.e., in his written assignment to the trucking company). The buyer was given notice of the assignment and, thus, was bound to pay the trucking company. The buyer breached his duty by paying the manufacturer instead of the trucking company. Thus, the trucking company may recover from the buyer for his failure to perform. (B) is wrong because the assignee, as the real party in interest, may enforce its rights against the obligor directly. (C) is wrong because, as stated above, once the buyer had notice of the assignment, he owed the duty to pay to the trucking company (the assignee), and payment to any third party, even the manufacturer (the assignor), does not discharge this duty. (D) is wrong because it is irrelevant whether the assignee could perform under the contract; the relevant question is whether the assignor could and did properly perform.

Answer 109

Highlight Answer Discussion - Incorrect The granddaughter and the city zoo each own one-half of the land, subject to the second wife's life estate. At the time of the conveyance by the landowner, the son had a life estate, the son's widow had a contingent interest (because the son's "widow" cannot be ascertained until the son's death), and the son's children had a contingent remainder (because they have not yet been born). When the grandson and the granddaughter were born, however, their interests became vested subject to open (i.e., if the son had more children). Thus, when the grandson died, he had a vested remainder subject to open that he was free to devise by will; the city zoo took his vested remainder subject to open. At the son's death, the class of his "children" closed (because the son could not have any more children), and the granddaughter's and the zoo's vested remainders subject to open became indefeasibly vested. Also at the son's death, his widow was ascertained and her interest vested in possession. Because the second wife was the son's widow, she is entitled to the valid life estate. Thus, the granddaughter and the city zoo hold one-half interests, subject to the second wife's life estate. (B) is wrong because the son had no interest in the land when he died. He merely had a life estate, which ended at his death. He did not inherit any interest in the property from anyone else. The only person he inherited from in these facts was his first wife, and she had no interest in the land. Furthermore, this choice overlooks the city zoo's interest, which was inherited from the grandson. (C) is wrong because the son's children's interest does not violate the Rule Against Perpetuities. To be valid under the Rule, an interest must vest if at all within a life in being at its creation plus 21 years. The son is a life in being. At the son's death, his children's interest is certain to vest or fail: If the son had any children, at his death, the children's interest would become indefeasibly vested (i.e., the class would close and the children's interest would no longer be subject to open). Note that the children need not come into possession within the perpetuities period; the only requirement is that their interests vest within the period. Likewise, if the son had no children, the gift to them was certain to fail at his death. Thus, the children's interest does not violate the Rule. Because the son had children and their interest was valid, there was no interest to revert to the landowner and to be devised to the friend. Note that the unborn widow aspect of this question is a red herring. The fact would be relevant only if the children's gift were conditioned on their surviving the widow, in which case the takers would remain unascertained and their interest would remain contingent until that time. But because the children's interest vested at the son's death, it is irrelevant that the son's "widow" was not a life in being at the creation of the interest. (D) is wrong because the gift to the son's children was not conditioned on their survival of the son. The law does not imply such a condition. The grandson's interest was vested subject to open and could be disposed of by his will.

Answer 110

Highlight Answer Discussion - Incorrect The builder will be discharged from his duties under the contract. Modern courts recognize that impracticability due to excessive and unreasonable difficulty or expense is a defense to breach of contract for nonperformance. Since the cost to the builder to perform under the original contract would exceed more than double what he would be paid, he likely would be excused from performance by commercial impracticability. (D) is therefore incorrect. Unlike destruction of the building itself before completion, which will not discharge a contractor's duty, the erosion of the lot, which destroys the means of performing the contract, will generally not be one of the risks that a builder will be deemed to have assumed. (A) is wrong because the builder's bankruptcy is irrelevant for this purpose. (B) is wrong because there is no mutual mistake here.

Answer 111

Answer Discussion - Correct Modern courts would hold that a promise to forbear suit on a claim that the promisor honestly and reasonably believes to be valid is good consideration to support an agreement, even if the claim ultimately turns out not to be valid. Hence, (A) and (B) are wrong. (C) is wrong because mutual mistake is not a defense when the adversely affected party bore the risk that the parties' assumption was mistaken. To be a defense, it must be a true mistake, not merely an uncertainty. Here, the owner always had the right to investigate the truth of the facts before he agreed to pay for the dock.

Answer 112

The best defense of the girl's parents is that they were unaware of any potentially violent behavior by the girl. At common law, parents are not vicariously liable for the torts of their child. (Statutes in most states allow for limited liability for intentional torts, but there is no indication of such a statute here.) Parents can be liable, however, for their own negligence, i.e., in not exercising due care under the circumstances. Thus, if the parents know their child may be violent, they could be negligent if they do not take precautions to prevent that behavior or injury from that behavior. However, if the parents have no reason to know their child could be violent, they have no duty to protect against such behavior. Here, if the girl had never done anything like this before, and her parents had no idea that she would be violent, they were not negligent in allowing her to attend nursery school. (A) is wrong because, although the boy's teasing may have provoked the girl, he did not initiate the violence. He did nothing to allow the girl a right of self-defense, and so his actions would not provide the girl's parents with a good defense. (B) is wrong because there is no general tort immunity for children. As long as the child is old enough to intend the act, she can be held liable. Here it seems that the girl intended to cause a battery. She either intended or knew with substantial certainty that swinging her fist would strike the boy in the face, i.e., would cause a harmful or offensive contact. Thus, this choice does not present the best defense for the defendants. (C) is wrong because parents can be liable for damages due to their child's conduct. As explained above, although the parents are not vicariously liable at common law, they can be liable based on their own negligence (e.g., for negligent supervision).

Answer 113

Because the defendant was charged with first degree murder, the theory of the case is most likely felony murder, and (C) is the only choice that sets out a theory to avoid a felony murder conviction. If the defendant was so intoxicated that he could not form the intent to steal, then he is not guilty of robbery, and there would be no "felony" from which the felony murder rule is to arise. (A) and (B) are incorrect because even though the defendant could argue that no premeditation or deliberation was present, he would still be guilty of first degree murder under the felony murder rule because the felony was robbery. (D) is wrong because insulting someone is not adequate provocation that would mitigate a homicide to voluntary manslaughter; neither would this "threat" suffice, in all likelihood. At most, the circumstances might produce the sort of unreasonable anger that would negate premeditation and deliberation. However, because the defendant clearly caused the homicide while committing the felony of robbery, his crime remains first degree murder.

Answer 114

Highlight Answer Discussion - Incorrect The man's motion should be denied because neither his Fifth nor Sixth Amendment rights were violated by the informant's conduct. The Sixth Amendment right to counsel applies to all critical stages of a criminal prosecution after formal proceedings have begun, but does not apply in precharge custodial interrogations. Because this right is "offense specific," the fact that the right to counsel has attached for one charge does not bar questioning without counsel for an unrelated charge. Because the man has not been charged with the convenience store robbery, his Sixth Amendment right to counsel has not been violated. The Fifth Amendment privilege against self-incrimination requires Miranda warnings and a valid waiver before any statement made by the accused during custodial interrogation can be admitted. However, this requirement does not apply where interrogation is by an informant who the defendant does not know is working for the police, because the coercive atmosphere of police-dominated interrogation is not present. [Illinois v. Perkins (1990)] Because the man was not aware of the informant's status, the informant's conduct did not constitute a police interrogation. (A) is wrong despite the fact that the informant's conduct may have been deliberately designed to elicit incriminating remarks. As discussed above, the man's right to counsel did not attach for purposes of the convenience store robbery. (B) is incorrect because, as discussed above, the Miranda warnings need not be given before questioning by a cellmate working covertly for the police. (D) is incorrect because interrogation refers not only to express questioning, but also to any words or actions on the part of the police that the police should know are reasonably likely to elicit an incriminating response from the suspect. Here, the informant, working for the police, made statements about the convenience store robbery that were intended to, and reasonably likely to, prompt a response from his cellmate. Hence, it is not the absence of "interrogation" that avoids the Miranda problem, but the fact that the man did not know that his cellmate was working for the police.

Answer 115

Answer Discussion - D The court should grant a directed verdict for the trainer because the airplane owner has not shown that the trainer breached any duty that he owed to him. A prima facie case of negligence requires plaintiff to show the following elements: (i) the existence of a duty on the part of the defendant to conform to a specific standard of conduct for the protection of the plaintiff against unreasonable risk of injury, (ii) breach of that duty by the defendant, (iii) that the breach of duty was the actual and proximate cause of plaintiff's injury, and (iv) damage to plaintiff's person or property. Here, it is doubtful that the trainer's releasing his pigeons created any duty to other users of the park. To the extent that it did, the fact that he had taken great care to train them to return directly to their roosts indicates that he did not breach his duty to the airplane owner. Because the airplane owner has offered no other evidence of negligence, nor any reason to impose strict liability on the trainer (as discussed below), the trainer's motion for a directed verdict should be granted. (A) is incorrect because that choice suggests the imposition of a strict liability standard on the trainer. The owner of a domestic or inherently nondangerous animal is not strictly liable for the injuries it causes. The conduct of the trainer's homing pigeon would not make the trainer liable in the absence of some negligence on his part. And, as discussed above, there is no evidence of negligence here. While this choice establishes the causation element, the breach of duty element is not established. (B) is incorrect because the doctrine of res ipsa loquitur applies only to situations where the fact that a particular injury occurred itself establishes that defendant breached a duty. If the doctrine is applicable, no directed verdict may be given for defendant because plaintiff has established a prima facie case. However, the accident must be the type that would not normally occur unless someone was negligent. The collision between the trainer's homing pigeon and the model airplane is not that type of accident; by itself, it provides no suggestion that anyone was negligent. (C) is incorrect because the truck is not a superseding force that breaks "the causal connection" between the action of the trainer's pigeon and the airplane's destruction. In indirect cause cases, where a force came into motion after defendant's act and combined with it to cause injury to plaintiff, defendant will still be potentially liable for foreseeable intervening forces that are within the increased risk caused by his acts. Even if the intervening force is independent (i.e., not a natural response or reaction to the situation), it will be foreseeable where defendant's negligence increased the risk that the independent force would cause harm. Hence, if the trainer were negligent in releasing his pigeon, the fact that the destruction of the airplane was directly caused by the truck would not relieve the trainer from liability, because the initial collision with the pigeon caused the airplane to go out of control and created a substantial risk that it would be damaged by an intervening force. QUESTION ID: MT137

Answer 116

Answer Discussion - Correct The court should not admit this evidence because the prosecution cannot initiate evidence of the defendant's bad character. The prosecution may offer such evidence only after the accused has put his character in issue by either taking the stand (thus placing his credibility in issue) or offering evidence of his good character. Thus, (C) is incorrect. (B) is incorrect because, under the Federal Rules, character may be proven by opinion evidence. (D) is incorrect because this does not constitute a regular response to a specific set of circumstances; it is merely reputation and opinion evidence.

Answer 117

Answer Discussion - Incorrect The Supreme Court may grant certiorari to review a case from the highest court in a state that can render an opinion on the matter if a state statute's validity is called into question under the federal Constitution. [28 U.S.C. §1257] The Court may decide the federal issues, but cannot rule on the state law issues. (A) is incorrect for several reasons: (i) the attorney general evaluated only the proposal's validity under the state constitution; and (ii) even if her opinion had addressed the proposal's federal constitutional validity, the Supreme Court is not bound by advisory opinions of state attorneys general. (B) is incorrect even though the state supreme court may have had an independent state ground for finding the law constitutional under its state constitution. The Supreme Court will refuse to hear the case only if the state ground is adequate by itself to support the decision as well as independent, so that the Court's review of the federal ground for the decision would have no effect on the outcome of the case (such as if the state court had found the law invalid under both the state and federal Constitutions). Here, the Supreme Court's review of the state court opinion on the law's federal constitutional status may have an outcome on the case regardless of the state court's decision on the state constitutional issue; the Court therefore will hear the federal issues involved. (C) is incorrect because 28 U.S.C. section 1257 provides that appellate review of a matter from a state's highest court is to the Supreme Court by petition for a writ of certiorari, rather than to a federal district court.

Answer 118

Highlight Answer Discussion - Incorrect The court will likely grant the motion. There is no time limit to file a motion for relief from judgment to correct clerical mistakes, and the court order correcting the error dates back to the time judgment was entered. [Fed. R. Civ. P. 60(a)] A clerical error is one arising from oversight or omission and may occur in judgments, orders, or other parts of the record. Since there is no time limit, the only issue is whether the error constitutes a "clerical mistake." Here, the clerk clearly made a clerical error in recording the incorrect interest rate at 9% instead of the 8% interest rate actually ordered by the court. Therefore, the motion will likely be granted. (A) is wrong because it is an incorrect statement of law. There are several different grounds for obtaining relief from judgment, with different time limits. Other grounds besides correcting clerical mistakes include: (i) mistake, inadvertence, surprise, or excusable neglect; (ii) newly discovered evidence that by due diligence could not have been discovered in time to move for a new trial; (iii) fraud, misrepresentation, or other misconduct of an adverse party; (iv) the judgment is void; (v) the judgment has been satisfied, released, or discharged; a prior judgment on which it is based has been reversed or otherwise vacated; or it is no longer equitable that the judgment should have prospective application; or (vi) any other reason justifying relief from the operation of the judgment. For grounds (i), (ii), and (iii), the motion must be made within a reasonable time not to exceed one year; for the other grounds, the motion must be made within a reasonable time. [Fed. R. Civ. P. 60(b)] (B) and (C) are wrong because they incorrectly state the time frame for a motion to correct clerical mistakes, which can be filed at any time. Choice (B) states the time frame to file a motion to reconsider a final order under Rule 59(e). Choice (C), as stated above, states the time frame for a motion for relief from judgment on the grounds that the judgment is void, which are not the grounds asserted in the question. QUESTION ID: MJ262

Answer 119

Highlight Answer Discussion - Incorrect The court will likely grant the motion. There is no time limit to file a motion for relief from judgment to correct clerical mistakes, and the court order correcting the error dates back to the time judgment was entered. [Fed. R. Civ. P. 60(a)] A clerical error is one arising from oversight or omission and may occur in judgments, orders, or other parts of the record. Since there is no time limit, the only issue is whether the error constitutes a "clerical mistake." Here, the clerk clearly made a clerical error in recording the incorrect interest rate at 9% instead of the 8% interest rate actually ordered by the court. Therefore, the motion will likely be granted. (A) is wrong because it is an incorrect statement of law. There are several different grounds for obtaining relief from judgment, with different time limits. Other grounds besides correcting clerical mistakes include: (i) mistake, inadvertence, surprise, or excusable neglect; (ii) newly discovered evidence that by due diligence could not have been discovered in time to move for a new trial; (iii) fraud, misrepresentation, or other misconduct of an adverse party; (iv) the judgment is void; (v) the judgment has been satisfied, released, or discharged; a prior judgment on which it is based has been reversed or otherwise vacated; or it is no longer equitable that the judgment should have prospective application; or (vi) any other reason justifying relief from the operation of the judgment. For grounds (i), (ii), and (iii), the motion must be made within a reasonable time not to exceed one year; for the other grounds, the motion must be made within a reasonable time. [Fed. R. Civ. P. 60(b)] (B) and (C) are wrong because they incorrectly state the time frame for a motion to correct clerical mistakes, which can be filed at any time. Choice (B) states the time frame to file a motion to reconsider a final order under Rule 59(e). Choice (C), as stated above, states the time frame for a motion for relief from judgment on the grounds that the judgment is void, which are not the grounds asserted in the question. QUESTION ID: MJ262

Answer 120

If the purchaser prevails, it will be because the easement is a legal interest in the neighbor's chain of title. This is a recording act problem. Even though the neighbor had no actual or inquiry notice, the recorded easement by his grantor, the landowner, would give him constructive notice of the purchaser's interest in the western parcel, regardless of the absence of a tract index. (A) is a misstatement of the law. The absence of a tract index does not require a purchaser to inquire about the riparian rights of abutting landowners. (B) is incorrect because covenants for title are those contained in a general warranty deed. Although the future covenants for quiet enjoyment, warranty, and further assurances run to successive grantees, the present covenants of seisin, right to convey, and against encumbrances are breached, if at all, at the time of conveyance. (C) is incorrect because a bona fide purchaser of the servient parcel with no notice of the easement takes free of the easement.

Answer 121

Highlight Answer Discussion - Incorrect (D) is correct. The nurse will not prevail because the doctor had reasonable grounds for his statement. As a former employer responding to queries of a prospective employer about a job applicant, the doctor has a qualified privilege. Such a privilege is not absolute; it exists only if exercised in a reasonable manner and for a proper purpose. The privilege may be lost if the speaker made a statement not within the scope of the privilege or if the speaker acted with actual malice (i.e., knowledge that the statement was untrue or with reckless disregard as to its truth or falsity). Because the doctor had reasonable grounds for his belief, he was not acting with actual malice. (A) is incorrect because of the reasons stated in the analysis above. A statement of opinion may be actionable if it appears to be based on specific facts which, if expressly stated, would be defamatory. However, because of the qualified privilege, the doctor will not be liable for his mistake as long as his belief was reasonable. (B) is incorrect because the fact that the statement was in a category that is slander per se (i.e., adversely reflecting on the nurse's abilities to practice her profession) goes to whether the nurse must plead special damages. It does not, however, undermine the qualified privilege. (C) is incorrect because permission to make inquiry is not tantamount to consent to be defamed.

Answer 122

Highlight Answer Discussion - Incorrect If the attorney is fired, she has a right to a hearing to determine whether her First Amendment rights were violated by her dismissal. Under the Due Process Clause of the Fifth Amendment, a person has a liberty interest in the exercise of specific rights provided by the Constitution, including freedom of speech. If a government employer seeks to fire an employee for speech-related conduct when the speech involved a matter of public concern but is not made pursuant to her official duties, the courts must carefully balance the employee's rights as a citizen to comment on a matter of public concern against the government's interest as an employer in the efficient performance of public service. Under the Court's expansive interpretation of what is a public issue in this context [see Rankin v. McPherson (1987)], the attorney's statement would probably qualify. At the very least, she can make a sufficient showing that her termination violates her free speech rights to be entitled to a hearing on the issue under procedural due process principles. [See Givhan v. Western Line Consolidated School District (1979)] (B) is wrong because the attorney does not appear to have a property interest in her job. A public employee who is subject to removal only for "cause" has a property interest in her job and generally must be given notice of the charges against her that are to be the basis for her job termination, and a pre-termination opportunity to respond to those charges. Here, however, the attorney did not have a property interest in her job; she could have been dismissed for no reason at all. She was not covered by the labor contract between the agency and its clerical workers, and there appears to be no other basis for her to claim an entitlement to continued employment. (C) is wrong because the attorney is entitled to a hearing as long as she can raise a prima facie claim that her speech, which was regarding an important health issue and the perception of her agency, was on a public issue and therefore protected by the First Amendment. (D) is wrong for two reasons. As discussed above, the attorney does not have a property interest in her job. Also, due process does not necessarily entitle her to a pre-termination evidentiary hearing; a post-termination evidentiary hearing is probably sufficient. [See Cleveland Board of Education v. Loudermill (1985)]

Answer 123

The doctor has acquired neither title by adverse possession nor a prescriptive easement in the land under which the plumbing was laid. To establish title by adverse possession, the possession must be (i) actual and exclusive, (ii) open and notorious, (iii) adverse (hostile), and (iv) continuous throughout the statutory period. Exclusive possession generally means not sharing possession with the true owner or the general public. Possession is open and notorious when it is such as the usual owner would make of the land and is sufficient to put the true owner on notice of the fact of possession. Possession is hostile when it is without the owner's consent. Continuous possession is possession that the average owner would make of the property under the circumstances. Acquiring a prescriptive easement is analogous to acquiring property by adverse possession; however, the use need not be exclusive. Here, although the doctor's use and possession of the lawyer's land was actual, exclusive, open, notorious, and continuous throughout the seven-year statutory period, the doctor used the land with the lawyer's consent, and there are no facts to indicate that the doctor in any way manifested an intention to claim the land as her own. Therefore, the "hostile" requirement is not met and (A), (B), and (C) are wrong.

Answer 124

Highlight Answer Discussion - Incorrect The judge may call and examine the witness, but the parties are entitled to cross-examine the witness. A court is entitled to examine any witness called by any party, and may also call a witness on its own or at a party's request. Therefore, (D) is wrong. (A) is wrong because the court may call a witness on its own, even if the witness has not been called by any of the parties. (B) is wrong because the court may call any witness, even an expert. Although the court has wide discretion to call and examine witnesses, each party is entitled to cross-examine the court's witness. A party may also object to the court's examining or calling a witness either at that time or at the next opportunity when the jury is not present (to spare counsel the potential embarrassment of objecting to the judge's questions in front of the jury).

Answer 125

Highlight Answer Discussion - Incorrect The question by the plaintiff's attorney should be allowed because he was acting in good faith. A witness may be impeached by means of being interrogated upon cross-examination, in the discretion of the court, with respect to any act of misconduct that is probative of truthfulness (i.e., an act of deceit or lying). The cross-examiner must act in good faith with some reasonable basis for believing that the witness may have committed the bad act inquired about, but it is not required that the witness have been convicted of a crime. Here, the plaintiff's attorney is attempting to cast an adverse reflection on the truthfulness of the neighbor. The commission of the crime of false pretenses involves the making of a false representation and is therefore an act of misconduct that is probative of the actor's truthfulness. Thus, because the plaintiff's attorney inquired as to this matter in good faith, his question is a permissible method of impeachment, and the objection of the defendant's attorney should be overruled. (A) is incorrect because it implies that the objection could be sustained if the neighbor was not convicted of the crime. As noted above, such an inquiry can be conducted regardless of whether the witness was convicted. Therefore, the objection to the plaintiff's attorney's good faith inquiry would be overruled even if the neighbor was not convicted of false pretenses. (C) is incorrect. Although impeaching witnesses who testify to a witness's reputation for truth and veracity are often impeached by asking the "Have you heard" and "Do you know" questions, that is not the only method of impeachment available. Any witness who takes the stand puts her character for honesty and veracity in issue and may be impeached by evidence that might show her to be unworthy of belief. Instances of misconduct may properly be inquired into only if they are probative of truthfulness. By taking the stand, the neighbor has put her character for honesty in issue. The crime of false pretenses is probative of truthfulness and is a proper subject for impeachment. (D) is incorrect because a specific act of misconduct offered to attack the witness's character for truthfulness can be elicited only on cross-examination of the witness. Extrinsic evidence is not permitted. Thus, (D) states the opposite of the correct rule.

Answer 126

Highlight Answer Discussion - Correct The legislation is unconstitutional because it violates the federal postal monopoly. **Article I, Section 8, Clause 7 of the Constitution grants Congress the power to establish post offices and post roads.** This power grants Congress a monopoly over the delivery of mail. No other system for delivering mail-public or private-can be established absent Congress's consent. Congress has delegated to the Postal Service the power to decide whether others may compete with it, and the Postal Service has carved out an exception to its monopoly for extremely urgent letters. However, this exception would not apply to the state messenger service here since the state service extends to every letter or package of an employee deliverable within the state. (A) is irrelevant because the postal monopoly applies even to wholly intrastate competing systems. The rationale is that the Postal Service must be protected from companies that would deliver only on profitable routes at a low cost, leaving the Postal Service only expensive, money-losing routes. (B) also is irrelevant. While it is true that there is a market participant exception to the Commerce Clause, the Commerce Clause is not the controlling law here; the controlling law is the federal postal power. (C) is incorrect because the Equal Protection Clause would not prohibit the special treatment here. Because no suspect class or fundamental right is involved, the program would be judged under the rational basis standard. Under this standard, a law is upheld if it is rationally related to any legitimate government interest. Here, the law would be upheld because there is a conceivable rational basis for the program (e.g., to make government employment more attractive), and the law is rationally related to that interest.

Answer 127

Highlight Answer Discussion - Incorrect (D) is correct. The nurse will not prevail because the doctor had reasonable grounds for his statement. As a former employer responding to queries of a prospective employer about a job applicant, the doctor has a **qualified privilege**. Such a privilege is not absolute; it **exists only if exercised in a reasonable manner and for a proper purpose**. The privilege may be lost if the speaker made a statement not within the scope of the privilege or if the speaker acted with **actual malic**e (i.e., knowledge that the statement was untrue or with reckless disregard as to its truth or falsity). Because the doctor had reasonable grounds for his belief, he was not acting with actual malice. (A) is incorrect because of the reasons stated in the analysis above. A statement of opinion may be actionable if it appears to be based on specific facts which, if expressly stated, would be defamatory. However, because of the qualified privilege, the doctor will not be liable for his mistake as long as his belief was reasonable. (B) is incorrect because the fact that the statement was in a category that is slander per se (i.e., adversely reflecting on the nurse's abilities to practice her profession) goes to whether the nurse must plead special damages. It does not, however, undermine the qualified privilege. (C) is incorrect because permission to make inquiry is not tantamount to consent to be defamed.

Answer 128

Res ipsa loquitur will be most helpful against the designer. Res ipsa loquitur means the thing speaks for itself. It is appropriate in situations where an injury does not usually occur unless someone was negligent and the plaintiff does not know which of the defendants caused the injury. While res ipsa loquitur is sometimes not available where more than one person may have been in control of the instrumentality causing the injury, it is available in a case where a particular defendant had the power of control over the site of the injury. Even if the homeowner does not know why the deck collapsed, the deck's designer would be responsible because he designed the deck and was supervising the construction. Hence, res ipsa loquitur likely could be used. (A) is not correct because the doctrine of respondeat superior imposes vicarious liability on an employer for the tortious conduct of its employee. That doctrine would be helpful against the building company for any negligence by its employees but not against the designer, because the workers were not the designer's employees. (C) and (D) are incorrect because the doctrines of contribution and indemnity pertain to how the responsibility of the loss is apportioned or shifted among the defendants after the plaintiff has recovered his judgment. They are not relevant to the homeowner's right to recover.

Answer 129

The passenger will recover against the owner for her injuries because the owner, a common carrier, owed her a nondelegable duty to provide a safe vehicle in which to ride. **The general rule is that a principal will not be liable for tortious acts of his agent if the agent is an independent contractor.** ## Footnote However, a major exception to this rule applies when the duty, because of public policy considerations, is nondelegable. **In these cases, the principal is vicariously liable for the agent's negligence despite the principal's own exercise of due care.** A common example of these types of duties is the duty of a business to keep its premises and instrumentalities safe for its customers. T**his includes the duty of a common carrier, such as a taxi company, to keep its vehicles in safe working order**. Thus, the owner's duty to the passenger, a passenger in his cab, was nondelegable. The negligent conduct of the mechanic is deemed to be that of the owner. The negligent conduct was the actual and proximate cause of the passenger's injuries. Thus, the owner is vicariously liable to the passenger for those injuries. (A) and (C) are wrong because the passenger will prevail regardless of how careful the owner was in selecting the service center to maintain his cabs. As a common carrier, the owner owes his passenger, the passenger, a very high degree of care; i.e., he will be liable for slight negligence. However, because his duty to provide a safe taxicab is not delegable, the fact that he was careful in selecting the mechanic is irrelevant. Even though the owner had no reason to know that a service center mechanic would be negligent, he is vicariously liable for that negligence because it caused injury to the passenger. (D) is wrong because, as stated above, the situation here falls within an exception to the general rule of no liability for the torts of an independent contractor.