MBE Practice Questions Flashcards
The neighbor’s best defense against the son’s attempt to eject her is that her life estate was not subject to termination during her lifetime
The usual life estate is measured by the life of the grantee. Although a life estate may be made defeasible (e.g., determinable, subject to a condition subsequent, or subject to an executory interest), the conveyance here created an indefeasible life estate (i.e., one that will end only when the life tenant dies) in the neighbor.
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
The husband will recover for his injuries because his wife was among those injured by the collapse of the artwork.
The duty to avoid negligent infliction of emotional distress may be breached when the defendant creates a foreseeable risk of physical injury to the plaintiff. In most jurisdictions, a bystander who sees the defendant negligently injuring another can recover for his own distress if (i) the plaintiff and the person injured by the defendant’s negligence are closely related, (ii) the plaintiff was present at the scene of the injury, and (iii) the plaintiff personally observed or perceived the event. Observation is typically by sight, but may also be by hearing or other senses under certain circumstances. Here, the husband heard the screams and the sound of breaking glass when the artwork collapsed as he entered the lobby. Even though he evidently did not see the artwork collapse on the diners, he heard it crash where his wife was sitting and saw the immediate aftermath. Because his wife was one of the persons injured by the collapse of the artwork, he can recover damages for the injuries caused by his distress.
The action is not removable.
a defendant may remove an action that could have originally been brought in the federal courts. (In other words, subject matter jurisdiction based on either a federal question being presented or on diversity of citizenship would have been present had the case been filed in federal court.) However, a case may not be removed on the basis of diversity jurisdiction if a defendant is a citizen of the state in which the action was filed. Here, the action was filed in State A against a State A defendant; thus, the case may not be removed, even though it is a State C defendant who is seeking removal.
The boat owner can recover $45,000 through comparative contribution for the passenger’s claim and $4,500 on his own claim against the driver of the boat
Most comparative negligence states have adopted a comparative contribution system based on the relative fault of the various tortfeasors. Nonpaying tortfeasors who are jointly and severally liable are required to contribute only in proportion to their relative fault. Here, because the jurisdiction retained joint and several liability, the boat owner had to pay the passenger all of her damages. Under comparative contribution rules, the boat owner can obtain contribution from the driver for 45% of that amount, because the driver was 45% at fault. In addition, the boat owner has a direct claim against the driver for his own damages of $10,000, reduced by 55%, the amount of his fault. Thus, the total amount that the boat owner can recover from the driver is $49,500,
The senior’s mother sued school officials, claiming that the physical search violated her daughter’s Fourth Amendment rights against unreasonable searches and seizures. In response, the school officials filed a motion for summary judgment against the mother’s claim.
The motion should be denied. A school search will be upheld only if it offers a moderate chance of finding evidence of wrongdoing, the measures adopted to carry out the search are reasonably related to the objectives of the search, and the search is “not excessively intrusive in light of the age and sex of the student and the nature of the infraction.”
The Court concluded that a search of the student’s outer clothing and backpack did not violate the Fourth Amendment. However, a subsequent strip search of the student was unconstitutional. Here, the trier of fact could find that a search of the senior’s gym shorts that she was wearing under her school uniform was excessively intrusive and not reasonably related to the objectives of the search; hence, the school officials should not be entitled to summary judgment.
The attorney will lose because the guard did not know that he was still in the building.
For false imprisonment, the plaintiff must show (i) an act or omission on the part of the defendant that confines or restrains the plaintiff to a bounded area, (ii) intent on the part of the defendant to confine or restrain the plaintiff, and (iii) causation. Here, because the guard apparently did not know that the attorney was still in the building, she had no intent to confine him when she locked the doors.
The buyer would rely on the covenants of warranty and further assurances to compel the seller to assist him in a suit against his encroaching neighbor.
Under the covenant of warranty, the grantor agrees to defend, on behalf of the grantee, any lawful or reasonable claims of title by a third party, and to compensate the grantee for any loss sustained by the claim of superior title. The covenant for further assurances is a covenant to perform whatever acts are reasonably necessary to perfect the title conveyed if it turns out to be imperfect. These covenants are “continuous” (run with the land) and require the grantor to assist the grantee in establishing title.
What is the tenant’s best defense to a charge of burglary?
Absence of intent to commit a felony is the best defense. If the tenant intended merely to retrieve his property, he would have had no intent to commit a felony when he entered the apartment and thus could not be convicted of burglary. Common law burglary consists of: (i) a breaking; (ii) and entry; (iii) of the dwelling; (iv) of another; (v) at nighttime; (vi) with the intent of committing a felony therein. The tenant entered the apartment intending to retrieve his own property. Thus, the facts indicate that the only felony the tenant could have intended to commit at the time of entry would be larceny.
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.
The city will prevail because its rule is a reasonable time, place, and manner restriction
Speech protected by the First Amendment includes not only verbal communication, but also conduct that is undertaken to communicate an idea. The laser light show, like other art, probably is protected speech. While the content of speech generally cannot be limited, the conduct associated with speech in public forums can be regulated by reasonable time, place, and manner restrictions. To avoid strict scrutiny and be upheld, such a regulation must be content neutral, narrowly tailored to serve an important government interest, and leave open alternative channels of communication. The city’s rule meets these requirements: The types of images displayed are not controlled, just the means of showing them; the rule is narrowly tailored because it does not regulate substantially more speech than is necessary to further an important government interest (here, preventing eye damage); and alternative channels of communication are available because the artist can use the city’s equipment, albeit with less spectacular results.
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.
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
The agreement among all of the parties to substitute the out-of-town builder for the local builder operates as a novation which immediately discharged the local builder from any duties he had under the original contract.
A novation arises when the parties enter into an agreement to substitute a third party for one of the parties in a contract, releasing the party who was substituted. All parties must agree to the substitution. Here, the facts say that all of the parties agreed that the out-of-town builder would substitute for the local builder. Thus, there was a novation and the local builder was released immediately and is not liable for the out-of-town builder’s blunder.
The case is properly removable.
a defendant may remove an action that could have originally been brought in the federal courts. Federal question jurisdiction is available when the plaintiff, in his well-pleaded complaint, alleges a claim that arises under federal law. In the instant case, the citizen’s civil rights claims under section 1983 present a federal question. Because a federal question has been presented, the case is removable. Once one claim satisfies the requirements for original federal subject matter jurisdiction, the court has discretion to exercise supplemental jurisdiction over related claims that derive from the same common nucleus of fact and are such that a plaintiff would ordinarily be expected to try them in a single judicial proceeding. Here, the citizen’s state tort law claim is derived from the exact same fact pattern. Thus, the court has supplemental jurisdiction over that claim.
