Missed MBE 7/23 Flashcards
The plaintiff instituted suit against a development firm and its employee for injuries suffered by the plaintiff when a basement stair collapsed as he was being shown one of the firm’s buildings that it was leasing. At trial, the employee for the firm claims that he told the plaintiff about the defective stair. The plaintiff then offers evidence that after his fall, the CEO of the development firm called him at home and offered to pay all of the plaintiff’s medical expenses, saying, “I guess I owe you that much after our employee didn’t warn you about the broken stair.”
The statement regarding the lack of warning is:
The offer to pay medical expenses in itself is not admissible as an admission. Here, however, there is a statement that follows such an offer. This statement is admissible as an admission by the CEO of the development firm that the employee had not warned the plaintiff about the dangerous condition of the stairs. Because this is an admission, it is not hearsay under the Federal Rules.
Upon graduation from high school, a young man wanted to enroll in a nine-month program at a community college to study to be an electrician, but he could not afford tuition and the costs of being unemployed for that time period. His uncle told him that if he enrolled and participated in the program, he would pay his tuition and living expenses for the time involved, and that he would also pay him a $1,000 bonus for each “A” he earned as a final grade in a class. The young man told his uncle that he would enroll in the program. The next day, the young man’s grandfather called and told him that he had learned of the uncle’s offer and that if the uncle failed to pay the young man as promised, he (the grandfather) would. The young man attended the program and earned “A’s” as final grades in three classes. Shortly thereafter, the uncle died, and the executor of the uncle’s estate refused to pay the young man the bonus for each of the three “A’s.” When the young man told his grandfather that the uncle’s estate refused to pay, his grandfather sympathized but said he no longer thought it was a good idea to pay for grades. He too refused to pay.
If the young man brings suit against his grandfather for breach of contract, which of the following represents his grandfather’s best defense?
The young man will not succeed in trying to enforce his grandfather’s promise because the promise was not in writing, as is required under the Statute of Frauds. Generally, contracts do not have to be in writing to be enforceable; however, under the Statute of Frauds, certain contracts will not be enforceable unless they are evidenced by a writing signed by the party to be charged. One such contract is to pay the debt of another, such as the grandfather’s promise here to pay the uncle’s debt if he does not pay.
An investor owned a 100-acre parcel that contained several natural asphalt lakes. A construction company was erecting highways for the state in the vicinity of the investor’s land and needed a supply of asphalt. The investor executed a document that, in return for a payment of $1 per barrel, gave the company the right to enter on the land and take asphalt in whatever quantities the company desired. The investor reserved the right to remove asphalt herself and to grant this right to others. Last year, the state commenced an action in eminent domain to take the investor’s land for a public park.
Is the construction company entitled to compensation?
The construction company is entitled to compensation because it has a property right to enter and remove minerals. Like an easement, a profit is a nonpossessory interest in land. The holder of the profit is entitled to enter on the servient tenement and take the soil or the substance of the soil (e.g., minerals, timber, oil, or game). When an owner grants the sole right to take a resource from her land, the grantee takes an exclusive profit and is solely entitled to the resources, even to the exclusion of the owner of the servient estate. By contrast, when a profit is nonexclusive, the owner of the servient estate may grant similar rights to others or take the resources herself. Although here the profit is nonexclusive, it is nevertheless an interest in property for which the company is entitled to compensation in any condemnation proceeding.
A man on parole after being convicted of possession of cocaine was suspected of selling cocaine out of his home. His parole officer came to his house and rang the bell. As soon as the man opened the door to see who was there, the officer entered the home, despite the man’s protests. After searching the home, the parole officer discovered several bags of marijuana in a drawer. The man was arrested and charged with possession of marijuana with intent to sell. A statute in the jurisdiction in which the search took place provides that, as a condition of parole, a parolee is on notice that his parole officer may conduct a search of the parolee’s person or home, without probable cause, at any time of the day or night. The man moved to have evidence of the marijuana suppressed by the court, claiming that the state statute that authorized the search was unconstitutional under the Fourth Amendment prohibition of unreasonable searches and seizures.
Will he prevail?
The man will not prevail in his motion to suppress. To be reasonable under the Fourth Amendment, most searches must be pursuant to a warrant. However, several types of inspections and searches do not require a warrant or even probable cause. The Supreme Court has held that the Fourth Amendment is not violated by a statute authorizing warrantless searches of a parolee’s home—even absent probable cause—if a statute provides for such searches. The Court reasoned that in such circumstances, the parolee has a diminished expectation of privacy and the government has a heightened need for searching parolees; thus the search is reasonable in a constitutional sense.
A trainer of homing pigeons brought several of them to a park that he often used for training. He had trained this group of pigeons carefully and was confident that they would readily find their way home. When they were released, one of the pigeons inexplicably turned in the opposite direction from home. Several blocks away at the other end of the park, it collided with a radio-controlled model airplane that its owner had just purchased and was trying out for the first time. The collision sent the airplane out of control; it dipped low across a highway and was struck and run over by a truck.
The airplane owner sued the pigeon trainer for the destruction of his airplane. The parties stipulated to the above facts and the airplane owner presented evidence of his damages. The trainer then moved for a directed verdict.
Should it be granted?
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.
Congress enacted a statute appropriating money to the states on condition that the states use the money to support “public performances of classical ballet open to the public.” The statute provided that the money was not to be used to support any other type of dance, and that tickets to any performance paid for with these funds were to be distributed to the public on a first come, first served basis.
A state that accepted a grant of $500,000 under the federal statute gave half of the grant to a state-sponsored ballet company. The company had been started 20 years earlier as part of a state effort to bring culture to poor, inner-city areas. By state law enacted when the company was formed, no less than 35% of the tickets to each performance of the ballet company must be distributed to the inner-city school systems to be given to minority school children.
Is the state’s method of distributing tickets to the state ballet company’s performances constitutional?
The state ticket distribution system is unconstitutional because of the Supremacy Clause. A valid act of Congress supersedes any state or local action that conflicts with it. The act here is valid because Congress has the power to spend for the general welfare, and in so doing may place conditions on grants as it sees fit. The state law directly conflicts with the federal law because the federal law requires that tickets be distributed on a first come, first served basis, and the state law requires that 35% of the tickets be given to minority school children. Because the state law conflicts with the federal law, it is invalid.
A publisher entered into a contract with a paper manufacturer who used very fine materials, whereby the publisher was given the right to purchase all paper refined by the paper manufacturer for the next five years at a price set at 95% of the domestic market price at the time of delivery. The publisher agreed to purchase no less than 1,000 pounds of paper a week. At the time this contract was signed, the publisher gave written notice to the paper manufacturer that it intended to buy all paper produced by the paper manufacturer until further notice. The paper manufacturer then sold its business to a lumber-processing company.
What is the effect of this sale on the paper manufacturer’s obligation to the publisher?
The paper manufacturer is liable for damages if the lumber processing plant fails to deliver paper to the publisher. Because delivery of paper is not personal in nature, that duty can be delegated. The quantity will be measured by the paper manufacturer’s original output. However, when a duty is delegated to a delegate, the delegator remains liable should the delegate fail to perform.
After a power outage, the stoplights at a busy intersection were blinking red for traffic going in every direction. By statute, motorists must come to a full stop at a blinking red traffic signal before proceeding through the intersection. Cars driven by the plaintiff and by the defendant arrived at the intersection at the same time. Due to inattention, neither one stopped for the signal and the cars collided in the intersection.
The plaintiff sued the defendant for his injuries. The trier of fact determined that the plaintiff was more at fault than the defendant.
Will the plaintiff likely recover damages?
The plaintiff can prevail in a lawsuit against the defendant even though his fault was greater than hers. The plaintiff will be able to establish a prima facie case of negligence against the defendant, because her inattentive driving breached her duty of care to other drivers and was a direct cause of the plaintiff’s damages. The defendant’s defense that the plaintiff’s contributory negligence also caused the accident does not bar the plaintiff’s recovery; comparative negligence jurisdictions allow recovery despite contributory negligence by the plaintiff, and pure comparative negligence rules allow recovery no matter how great the plaintiff’s negligence is. Even if the defendant also was injured (although not indicated by the facts), the plaintiff could still recover damages. While the defendant could counterclaim against the plaintiff for the percentage of her damages that the plaintiff was responsible for, the plaintiff could still have a net recovery—regardless of his greater fault—if his damages are significantly greater than the defendant’s (e.g., if the plaintiff is 60% at fault and has suffered $100,000 in damages, while the defendant is 40% at fault and has suffered $10,000 in damages, the plaintiff would recover $34,000 in damages).
A plaintiff who was a citizen of State A was traveling to adjoining State B to visit his relatives. While still in State A, the plaintiff’s auto was struck in the rear by a vehicle driven by the defendant, a citizen of State B. The plaintiff suffered personal injuries and damage to his vehicle amounting to approximately $90,000. The plaintiff filed suit in the federal district court for State A and obtained proper service of process on the defendant. Under the laws of State A, the driver of a vehicle that strikes another vehicle in the rear is presumed to have acted negligently, regardless of the surrounding circumstances. Neither the law of State B nor the federal statutes or case law has adopted such a rule.
Should the court apply the presumption in question?
The court should apply the presumption. Under the Erie doctrine, in a case based on diversity of citizenship, the federal court must apply the substantive law of the state in which the court sits. However, the court will apply federal law to procedural issues. Federal Rule of Evidence 302, which follows the Erie doctrine, provides that application of state law is appropriate only when the presumption operates on a substantive element of a claim or defense. The presumption at issue here, by presuming negligence on the part of a driver who strikes another vehicle in the rear, impacts on the prima facie case elements of duty and breach of duty. Matters involving elements of a prima facie case are substantive in nature; thus, state law applies to such matters. Consequently, the presumption of negligence recognized by State A should be applied by the court on this issue
A state statute provides: “Any merchant desiring to sell within this state any product or goods manufactured outside of the United States must (i) obtain a special license from the state for $50 and (ii) clearly mark the goods as to specify their country of origin.” The statute makes it a misdemeanor for any merchant to willfully sell goods without complying with these statutory requirements.
Which of the following statements is correct regarding the constitutionality of the statute?
The statute is an unconstitutional violation of the Commerce Clause. Regulation of foreign commerce is exclusively a federal power because of the need for the federal government to speak with one voice when regulating commercial relations with foreign governments. The existence of legitimate state interests underlying state legislation will not justify state regulation of foreign commerce. The state statute, in imposing requirements for a license costing $50 and for a clear marking of goods as being from a foreign country, clearly is an attempt by the state to restrict or even eliminate the flow of such goods in foreign commerce. Thus, the statute is unconstitutional.
A federal law requiring that all automobiles driven on United States military bases be equipped with air bags would most probably be justified by which of the following?
Under Article IV, Section 3, Congress has the power “to make all needful rules and regulations respecting the territory or other property belonging to the United States.” This power would encompass a regulation such as the air bag statute.
A landowner validly conveyed a parcel of land to a veterinarian “for so long as the property is used as a veterinary practice, but if the property is used for any other purpose, it is to go to the American Cancer Society.” Two years later, the landowner died, validly devising all of his property to his friend. The landowner’s only heir is his daughter. Although this jurisdiction is a common law jurisdiction with respect to all real property considerations, the state’s probate laws provide that future interests or estates in real property may be passed by will or descent in the same manner as present or possessory interests.
Last month, the veterinarian approached the daughter and asked her to join with him to sell the parcel of land, which he had been using as an animal shelter, in fee simple absolute to a developer. The veterinarian and the daughter entered into a contract of sale with the developer. However, after consultation with an attorney, the veterinarian decided against the sale. The developer sued the daughter and the veterinarian for specific performance.
Will the requested relief likely be granted?
The requested relief will be denied because the friend did not join in the contract of sale. The conveyance purported to create a fee simple determinable in the veterinarian subject to an executory interest in the American Cancer Society. A fee simple determinable subject to an executory interest is an estate that, on the happening of a stated event, is automatically divested in favor of a third person, who holds the executory interest. However, the executory interest in the American Cancer Society is void under the Rule Against Perpetuities because it might vest beyond lives in being plus 21 years. The charity-to-charity exception to the Rule does not apply because the veterinarian is not a charitable organization. Because any interest that violates the Rule is void and stricken from the instrument, what is left is a fee simple determinable in the veterinarian and a possibility of reverter in the landowner. On the landowner’s death, the possibility of reverter passed to the friend.
A plaintiff sued a defendant for serious personal injuries he incurred when the defendant allegedly drove through a red light and collided with the plaintiff’s car. Calling the defendant as an adverse witness, the plaintiff asked her if she had been drinking before the accident. The defendant refused to answer, asserting her privilege against self-incrimination. The plaintiff then offers in evidence a certified copy of a court record indicating that, eight years previously, the defendant had been convicted of reckless driving while intoxicated that caused serious personal injury, a felony.
How should the trial court rule on the admissibility of the court record?
The record of the conviction should be excluded because the defendant has given no testimony to be impeached. Impeachment involves the casting of an adverse reflection on the truthfulness of a witness. Although the defendant has been called as a witness, she has not given any testimony at this point. Consequently, the plaintiff is unable to introduce evidence that would otherwise constitute proper impeachment evidence.
The owner of an art gallery entered into a written contract with an avid art collector whereby the art collector agreed to buy and the gallery owner agreed to sell for $7,500 any painting in the gallery by artist Alpha. The contract was to be executed on July 6 according to its written terms. The art collector went to the gallery on July 6 with a certified check in the amount of $7,500. The art collector pointed out a painting by a different artist hanging on the wall, and told the gallery owner that that was the painting he wanted, and that he would also take its old-fashioned $250 gilt frame to go with it. The gallery owner responded that the painting was by the artist Beta, but that the art collector could have it with the frame if he was willing to pay $250 extra for it. This enraged the art collector, and he filed suit against the gallery owner, asserting in his pleading that he remains able and willing to tender $7,500 to the gallery owner. He also asserts that prior to signing the contract, the parties agreed orally that the art collector could have a painting by Beta for the same price in lieu of one by Alpha, and that the gallery owner would throw in the frame for whatever painting he chose. The gallery owner denied that any such conversation took place. There are no other witnesses.
About which agreements should the court allow the art collector to testify?
The court should allow the art collector to testify regarding just the oral agreement for the frame. Contractual terms that are set forth in a writing intended as a final expression of the parties’ agreement cannot be contradicted by evidence of any prior agreement or contemporaneous oral agreement. Although this parol evidence rule prohibits contradicting the writing, the terms of the writing may be explained or supplemented by consistent additional terms, unless the court finds from all the circumstances that the writing was intended as a complete and exclusive statement of the parties’ agreement. To determine whether the parties intended the writing to be the complete and exclusive statement of their agreement, it must be determined whether parties situated as were the parties to this contract would naturally and normally include the extrinsic matter in the writing. Here, the writing at issue states clearly that the painting subject to sale is any painting by Alpha. The art collector’s assertion of a prior agreement allowing him to buy a painting by Beta clearly contradicts the terms of the writing. Consequently, the parol evidence rule will render inadmissible testimony as to such an alleged agreement.
A drug dealer was convicted in federal court of possession of 10 kilos of cocaine with intent to distribute. She was sentenced to a prison term. Subsequently, a federal grand jury indicted the dealer under a separate statute for conspiracy to distribute the same 10 kilos of cocaine. She moved to dismiss the indictment.
How should the court rule on her motion?
The drug dealer’s motion should be denied. The defense of double jeopardy does not apply if the second crime requires an element which is not an element of the first crime and vice versa. In this case, the crime of conspiracy has an element which is not in the possession crime, namely the agreement to commit the crime with another person, and it is lacking an element, namely the actual commission of the crime.
