Mixed Questions - Set 10 Flashcards
A defendant is on trial for murder. The only evidence linking the defendant to the crime is some blood found at the scene. The lead detective testifies that an officer took a vial containing a blood sample that had been retrieved by a crime scene technician and drove off with it. The officer is now dead. Next, the prosecution presents as a witness a crime lab chemist. The chemist will testify that he took a vial of blood that contained a label identifying it as having been retrieved from the subject crime scene, and that he performed tests that established a match between that blood and a blood sample taken from the defendant.
Is the testimony of the chemist admissible?
A Yes, because there has been proper authentication.
B Yes, because the chemist qualifies as an expert witness.
C No, because there is insufficient evidence of chain of custody.
D No, because he did not take the original blood sample at the scene of the crime.
C
The testimony is inadmissible because it has not been shown what happened to the blood between the time the officer took it and the time the chemist examined it. Real evidence presents an object in issue directly to the trier of fact. One of the general requirements for admissibility of real evidence is that it be authenticated; i.e., that it be identified as being what its proponent claims it is. If the evidence is of a type that is likely to be confused or can be easily tampered with, the proponent of the object must present evidence of chain of custody. The proponent must show that the object has been held in a substantially unbroken chain of possession. It is not necessary to negate all possibilities of substitution or tampering; rather, what is required is to show adherence to some system of identification and custody. Here, the proponent of the blood sample (the prosecution) has not shown what the officer did with it after leaving the crime scene. There is no showing that the vial was placed directly in a properly secured area so as to diminish the possibility of tampering. In short, it has not been demonstrated that there was adherence to some defined system of identification and custody. In the absence of a substantially unbroken chain of custody, the evidence is inadmissible for lack of proper authentication, and (A) is incorrect. (B) is incorrect. Although it may be true that the chemist qualifies as an expert witness (i.e., he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates), the fact remains that his testimony is inadmissible, as explained above. (D) is incorrect because the chemist would be permitted to testify to the results of the blood comparisons if there were proper authentication of the blood taken from the crime scene. There is no need for the chemist to have taken the original blood sample himself.
A tourist and his friend visited an amusement park located in State A. One of the rides malfunctioned, injuring the tourist. The friend, who witnessed the accident, sued the amusement park for negligent infliction of emotional distress in the federal court for State A, properly invoking diversity of citizenship jurisdiction. The friend’s complaint alleges that he and the tourist were lifelong friends and that the friend suffered severe emotional distress from witnessing the tourist’s injuries.
The highest court of State A has held that bystanders may not recover for emotional distress from witnessing another’s injuries unless the bystander and the injured person are related by blood or marriage.
Which of the following motions would best achieve the amusement park’s goal of expeditiously disposing of the action?
response - correct
A A pre-answer motion to dismiss for failure to state a claim on which relief may be granted.
B A motion for summary judgment.
C A motion for judgment on the pleadings.
D A motion to dismiss for failure to join the tourist as a necessary party.
A
(A) The amusement park’s most expeditious course of action would be to file a pre-answer motion to dismiss under Rule 12(b) for failure to state a claim on which relief may be granted. A pre-answer motion to dismiss a complaint for failure to state a claim addresses the adequacy of the pleadings. The allegations of the complaint are deemed true for purposes of the motion. Here, the complaint alleges that the bystander was a lifelong friend of the victim, which is insufficient as a matter of law because State A requires bystanders to be related by blood or marriage to the victim. (B) is incorrect because a party moving for summary judgment submits evidence (typically affidavits and discovery materials) to establish that there are no issues of material fact. Here, the amusement park need not gather or submit evidence because the pleading’s allegations are in themselves insufficient to support the bystander’s claim. (C) is incorrect because a motion for judgment on the pleadings under Rule 12(c) can be made only after the pleadings are closed (i.e., after the defendant files its answer). Thus, the amusement park could more efficiently dispose of the case by making a pre-answer motion to dismiss, rather than filing an answer and then making a motion for judgment on the pleadings. (D) is incorrect because the tourist is not a necessary party to the action. A party is necessary if complete relief cannot be accorded among the parties in the lawsuit. Here, the bystander’s claim against the amusement park for emotional distress can be resolved without making the tourist a party.
A cyclist was riding on a sidewalk when someone in a parked car suddenly opened the door of the car into her path. She swerved to avoid the car door and rode onto a landowner’s property, damaging some plastic lawn ornaments of waterfowl placed in his front yard.
In a suit by the landowner against the cyclist for the damage to his lawn ornaments, what is the likely result?
A The cyclist is liable because she had no privilege to enter onto the landowner’s property.
B Whether the cyclist is liable depends on whether she was exercising due care.
C The cyclist is liable for the damage to the lawn ornaments even though her entry was privileged.
D The cyclist is not liable for the damage to the lawn ornaments because her entry was privileged.
C
The cyclist is liable for damage to the lawn ornaments even though she had a privilege to enter the landowner’s yard. Pursuant to the privilege of necessity, a person may interfere with property of another where it is reasonably and apparently necessary to avoid threatened injury from a natural or other force and where the threatened injury is substantially more serious than the invasion that seeks to avert it. In cases of private necessity (where the act is solely to benefit a limited number of people rather than the public as a whole) the defense is qualified, so that the actor must pay for any injury she causes. The cyclist was faced with serious injury from being struck by the car door opening. Apparently the only way to avoid this injury was to swerve onto the landowner’s yard. The threatened injury to the cyclist was substantially more serious than the cyclist’s entry onto the landowner’s yard. Thus, the cyclist was privileged to enter the yard. However, because this is a private necessity situation, she will be required to pay for the damage she caused to the lawn ornaments. (A) correctly states that the cyclist is liable for the damage, but incorrectly states that she was not privileged to enter upon the landowner’s land. On the other hand, (D) is incorrect because it concludes that the cyclist’s privilege absolves her of liability for the damage she caused, which is not true in private necessity cases. (B) is incorrect because the cyclist’s exercise of due care is irrelevant. The landowner will be proceeding against the cyclist on a theory of intentional tort (either trespass or conversion). Due care is a concept that is applicable to a negligence action, but is not relevant to an action sounding in intentional tort. Therefore, the cyclist’s liability is unaffected by whether she was exercising due care.
A plaintiff filed a negligence action against a defendant in federal district court, seeking compensatory damages arising from an automobile accident. The defendant is covered by an insurance policy pursuant to which his insurer will pay any judgment that the plaintiff obtains against the defendant.
Is the plaintiff entitled to obtain information about the defendant’s insurance coverage prior to trial?
A Yes, as long as the plaintiff serves a proper request on the defendant to produce the insurance policy for inspection or copying.
B Yes, even if the plaintiff does not request it.
C No, because the terms of one’s insurance coverage are confidential and outside the scope of discovery.
D No, because the insurance policy and its terms are not relevant to the claim or defense of any party since the policy does not help prove or disprove the defendant’s negligence or the plaintiff’s damages.
B
The plaintiff is entitled to obtain information about the defendant’s insurance coverage prior to trial. Without waiting for a discovery request, a party must provide to the other parties copies of insurance agreements under which an insurer might be liable for all or part of any judgment that might be entered. (A) is incorrect because the defendant must disclose the insurance policy without waiting for a discovery request from the plaintiff. (C) is incorrect because insurance agreements must be initially disclosed; they are not considered outside the scope of discovery. (D) is incorrect because whether the policy is relevant to the claims and defenses of the parties is not the applicable rule to consider here. Insurance policies must be disclosed if the insurer may be liable for the judgment.
A landlord owned a prestigious downtown office building. A law firm leased the entire building from the landlord for a term of 20 years. The lease included a provision that taxes on the building would be paid by “the lessee, his successors, and assigns.” The law firm occupied the building and paid the rent and taxes for eight years. At the end of the eight-year period, the law firm assigned the balance of the lease to an accounting firm and vacated the premises. The assignment was written, but there was no provision concerning the accounting firm’s assumption of the duties under the lease.
The accounting firm occupied the building and paid the rent and taxes for five years. At the end of the five-year period, the accounting firm subleased the building for five years to an investment company and vacated the premises. The sublease was written, but there was no provision concerning the investment company’s assumption of the duties under the lease. The investment company now occupies the building and has paid the rent but not the taxes. The landlord has sued all three (i.e., the law firm, the accounting firm, and the investment company) for failure to pay the taxes.
The landlord should prevail against whom?
A The law firm only.
B The law firm and the accounting firm, but not the investment company.
C The accounting firm and the investment company, but not the law firm.
D The law firm, the accounting firm, and the investment company.
B
The law firm and the accounting firm are liable. After an assignment, the original tenant is no longer in privity of estate with the landlord. However, a tenant may still be held liable on its original contractual obligations to the landlord on privity of contract grounds. Here, the law firm is liable because it made the original deal with the landlord, which included the obligation to pay taxes on the building. The law firm remains in privity of contract with the landlord throughout the term of the lease unless it is otherwise discharged. In an assignment, the assignee stands in the shoes of the original tenant in a direct relationship with the landlord. Each is liable to the other on all covenants in the lease that run with the land, which would include the obligation of the lessee to pay taxes on the property. Here, the accounting firm is liable because as an assignee it is in privity of estate with the landlord. The accounting firm remains in privity of estate until it assigns to someone else. The sublease to the investment company is not an assignment. A sublessee is not personally liable to the landlord for rent or for the performance of any other covenants made by the original lessee in the main lease (unless the covenants are expressly assumed) because the sublessee does not hold the tenant’s full estate in the land (so no privity of estate). Here, the investment company is not liable because, as a nonassuming sublessee, it is not in privity of contract or estate with the landlord. Therefore, (B) is the correct choice, and (A), (C), and (D) are wrong.
A state’s civil procedure rules allow for “nail and mail” service (posting the summons at the defendant’s dwelling and thereafter mailing him a copy by certified mail) when “regular” service (service by physical delivery or by leaving a copy of the complaint with someone of suitable age and discretion at the defendant’s usual place of abode) cannot be accomplished with due diligence. A plaintiff brought suit against a defendant in the federal district court for that state. After the plaintiff’s special process server made many attempts at serving the defendant, the plaintiff’s attorney directed the process server to nail the complaint and summons to the defendant’s front door, and the attorney mailed (by certified mail) a copy to the defendant in accordance with the state rule.
Has the defendant been properly served?
response - correct
A Yes, if “nail and mail” service is reasonably calculated to give the defendant notice of the action.
B Yes, because under the Erie doctrine the federal court must apply the state’s service of process rules.
C No, if the defendant only rented the dwelling at which service was posted.
D No, because “nail and mail” service is not authorized by the Federal Rules of Civil Procedure.
A
Federal Rule 4 provides that summons and complaint may be served on an individual other than an infant or incompetent pursuant to the law of the state in which the district court is located. Notwithstanding, the state provision must be constitutional; i.e., it must be reasonably calculated to give the defendant notice of the action. Thus, (A) is correct and (D) is incorrect. (B) is incorrect because the Erie doctrine provides that federal courts apply state substantive law but federal procedural law. The Federal Rules expressly authorize the use of state service of process methods. Thus, the Erie doctrine is inapplicable. (C) is incorrect. The key to substituted service is whether the dwelling was the defendant’s usual place of abode, not whether it was owned or rented.
A union filed suit against a corporation, known for its antiunion management, asserting that its members were being discharged in retaliation for membership in the union rather than for any failure to perform their jobs properly. Under the pretrial discovery orders, a union employee was allowed to examine all of the records held in the corporation’s files concerning discharge of employees for a seven-year period prior to the instigation of suit by the union. The employee sorted through this large volume of material and discovered that persons who were union activists usually had “lack of corporate spirit” listed as their reason for discharge, while other fired workers tended to have more specific grounds for discharge listed, e.g., persistent lateness. The employee developed a chart showing grounds for dismissal of union members versus nonmembers based on the data in the files. At the trial, the union placed the employee on the stand. She testified in some detail regarding how she had conducted her research. The employee brought out the chart and the union’s lawyer asked that the chart be admitted into evidence. The corporation’s attorney objected.
How should the court rule on the admissibility of the chart?
response - correct
A Admissible, because copies of the original documents upon which the chart was based were available to the corporation prior to trial.
B Admissible, because the chart is helpful to the trier of fact.
C Inadmissible, because it is hearsay not within any exception.
D Inadmissible, in the absence of the underlying records having been first introduced into evidence.
A
The chart is admissible because the original documents are in the corporation’s files. The original document or best evidence rule generally requires the original writing to be produced when the terms of the writing are sought to be proved and are material to the case. [Fed. R. Evid. 1002] However, under Federal Rule 1006, the contents of voluminous writings that are otherwise admissible may be presented in the form of a chart as long as the original documents are available to the other party for examination and copying. Here, the underlying documents belonged to the adverse party, and thus the corporation had unlimited access to them. (B) is incorrect because the chart could be helpful to the trier of fact and still be inadmissible, such as if the underlying material were not available to the corporation or the chart were based on inadmissible hearsay. Furthermore, (B) is not as good a choice as (A) because (B) states a generality (it basically states the relevance requirement) whereas (A) applies the law to the specific facts of this case. (C) is incorrect because the chart is admissible provided the underlying documents are admissible. Even if the documents in this case would be hearsay, they would be admissible under the business records exception to the hearsay rule because they are records of events made in the regular course of business. [Fed. R. Evid. 803(6)] (D) is incorrect because Rule 1006 is an exception to the best evidence rule designed to avoid the introduction of voluminous writings into evidence; therefore, it does not require their introduction as a prerequisite to introduction of a chart.
The state has the following homicide statutes:
Murder is the unlawful killing of a human being with malice aforethought. Such malice may be express or implied. It is express when there is manifested a deliberate intention to unlawfully take away the life of a fellow creature. It is implied when no considerable provocation appears or when the circumstances attending the killing show an abandoned and malignant heart. All murder that is perpetrated by willful, deliberate, or premeditated killing or committed in the perpetration of or attempt to perpetrate arson, rape, robbery, or burglary is murder of the first degree. All other kinds of murders are of the second degree.
The defendant and her associate entered a jewelry store to shoplift a diamond bracelet. Just as the defendant put the bracelet into her pocket, a sales clerk saw her and grabbed her by the wrist. The associate grabbed a knife from one of the silver displays and lunged at the sales clerk, but then a store guard shot and killed her. The defendant is charged with the first degree murder of her associate.
Which of the following is the defendant’s strongest argument?
A The defendant cannot be convicted of murder because when they went into the store they were not carrying any weapons; therefore, there was no felony on which the felony murder rule may arise.
B The defendant cannot be convicted of murder because the associate’s death was not murder but justifiable homicide.
C The defendant cannot be convicted of murder because she and her associate had an agreement never to use violence when they stole anything.
D The associate did not intend to hurt the sales clerk, but just wanted to scare him so that the defendant could run.
B
The defendant’s strongest argument is that her associate’s death was justifiable homicide. Most courts today would not allow the defendant to be convicted on a felony murder theory when a co-felon is killed by a third party during the crime. Some courts base this result on the fact that the person who did the killing was justified in doing so. (A) is wrong. Aside from the fact that the attempt to steal from the jewelry store is probably statutory burglary, the fact that the associate attempted to aid the defendant in stealing the bracelet by attacking the clerk with a knife is probably robbery. When or how the associate came by the dangerous weapon is immaterial. (C) is wrong because the circumstances of one co-felon breaking an agreement not to commit violence would not prevent the application of the felony murder rule if it were otherwise applicable. (D) is wrong because if the felony murder rule is otherwise applicable, the fact that the person who killed the co-felon may have mistaken the co-felon’s intentions does not prevent the operation of this rule.
A new federal law prohibited the use of various pesticides in areas with a certain population density near navigable waters. A city located in the southeastern United States was plagued by a sharp increase in disease-carrying mosquitoes. The city’s board of health recommended that all residential areas be sprayed with a pesticide proven to be highly effective against mosquitoes. Despite the fact that the federal law would prohibit use of that pesticide in these areas, the city council passed an ordinance adopting the board of health plan, relying on the opinions of several independent experts that the health benefits of reducing the mosquito population outweighed the risks of spraying. An environmentally minded citizen of the city brought an action in federal court challenging the ordinance.
Assuming that the citizen has standing, is the court likely to find the ordinance valid?
A Yes, because pursuant to the police power, cities have a compelling interest in laws designed to protect the health, safety, and welfare of their citizens.
B Yes, because controlling health hazards is an integral governmental function.
C No, because it is superseded by the power of Congress to adopt laws to protect the health, safety, and welfare of citizens.
D No, because it conflicts with a federal law that Congress had the power to make under the Commerce Clause.
D
Congress’s power to regulate commerce has been construed broadly, so that it may regulate any activity, local or interstate, that either in itself or in combination with other activities has a substantial economic effect on interstate commerce. If Congress has determined that the use of chemical pesticides and their runoff into waterways (which are channels of interstate commerce) will have an overall detrimental impact on the environment, this determination will be sufficient in this case to satisfy the standards established by the Supreme Court. Therefore, the law probably is a valid exercise of the commerce power. Any state or local action that conflicts with a valid act of Congress is invalid under the Supremacy Clause. (A) is incorrect because while the police power (the power to adopt regulations for the health, safety, and welfare of citizens) belongs to the states, a police power regulation that conflicts with a federal law is invalid under the Supremacy Clause. (B) is incorrect because state and local government activities may be regulated by a general law that applies to both the public and private sectors, even if the regulation affects integral governmental functions, as long as there is a constitutional basis for the law. (C) is incorrect because Congress does not have a general “police power” to adopt laws on health and safety. The laws that Congress has passed banning activities that it has deemed harmful to public health have been based on its power to regulate interstate commerce.
A woman purchased a tract of land from a man by warranty deed. Unbeknownst to the woman, the man was not the actual owner of the tract. The woman built a home on the tract and moved into it. Two years later, the actual owner learned of the man’s transaction with the woman and prevented the woman from entering the tract from that point forward. This led to a costly court battle. When the woman notified the man and told him that she thought it was his duty to straighten this out, he ignored her. The statute of limitations for actions on deed covenants is fours years.
The woman would succeed in a suit for damages against the man for breach of which of the following covenants of title?
A The covenant of quiet enjoyment only.
B The covenants of seisin, right to convey, quiet enjoyment, warranty, further assurances, and the covenant against encumbrances.
C The covenants of seisin, right to convey, quiet enjoyment, warranty, and further assurances.
D The covenants of seisin and right to convey only.
C
The woman would succeed in a suit for damages against the man for breach of the covenants of seisin, right to convey, quiet enjoyment, warranty, and further assurances, but not on the covenant against encumbrances. A general warranty deed gives the grantee six covenants of title: the right to seisin, the right to convey, a covenant against encumbrances, the covenant of quiet enjoyment, the covenant of further assurances, and a general warranty. Under the covenants of quiet enjoyment, warranty, and further assurances, the man promised that (i) the woman would not be disturbed in her possession of the tract; (ii) he would defend the woman’s title against lawful claims; and (iii) he would perform whatever acts are necessary to perfect the woman’s title. Because the man neither owned the tract of land nor was acting as the actual owner’s agent, he breached the covenants of seisin and right to convey at the time of the conveyance to the woman. When the actual owner prevented the woman from re-entering the property, this interfered with the woman’s quiet enjoyment, and the man’s refusal to “straighten this out” was a breach of the covenant of further assurances. Thus, (C) is the correct answer. Hence, (A) is incorrect because quiet enjoyment was not the only covenant breached. There is nothing in the facts to suggest the property is encumbered; thus, the man did not breach the covenant against encumbrances, and (B) is therefore incorrect. (D) is incorrect because seisin and right to convey were not the only covenants that the man breached.
A cattle-producing state adopted a statute requiring any food service business operating in the state to serve beef raised in the United States. A licensed hot dog vendor who worked at a football field within the state and who had been buying hot dogs made with foreign beef for the past several years estimated that switching to an all-beef hot dog made from United States beef would reduce his profits by 10%. An attorney hired by the vendor to challenge the statute discovered during research into the case that most of the footballs used at the football field at which the vendor worked were made of foreign leather.
Which of the following grounds is the vendor’s best argument against the constitutionality of the state statute?
response - correct
A The statute burdens foreign commerce.
B The statute violates equal protection guarantees because it is not rational to prohibit the sale of foreign beef but not foreign leather.
C The statute substantially interferes with the vendor’s right to earn a living under the Privileges or Immunities Clause of the Fourteenth Amendment.
D The statute constitutes a taking without due process of law.
A
The best argument against the constitutionality of the state statute is that it burdens foreign commerce. For all practical purposes, the power to regulate foreign commerce lies exclusively with Congress. Therefore, a state that adopts legislation requiring private vendors to favor United States products over foreign products, as the state did here, may be acting outside the scope of its powers. (B) is incorrect because the statute is a rational method of protecting local beef interests. The rational basis standard applies when an economic law, such as the one here, is challenged on equal protection grounds. Under the standard, the Supreme Court will usually defer to a legislature’s decision that the law is rational notwithstanding the fact that the statute is underinclusive. In other words, the law need not address all of the problems that prompted its passage; it will be upheld even if it is only a “first step” toward a legitimate goal. Here, prohibiting the use of foreign beef appears to be a rational method of protecting state beef raisers. Thus, it is irrelevant that the statute is underinclusive in that it allows the use of both United States beef and foreign leather. (C) is incorrect because the right to earn a living is not a privilege under the Fourteenth Amendment, which protects against infringement of rights of national citizenship, such as the right to petition Congress for redress. (Neither would the statute violate the Privileges and Immunities Clause of Article IV, because that clause only prohibits discrimination against citizens of other states and the statute here treats citizens of all states the same.) (D) is incorrect because the vendor had all of the process that was due him. Because the government action here was a general act and not an individualized adjudication, the vendor had no right to an individual hearing; the normal procedure for adopting a statute is all the process that is due.
A citizen of State A filed a negligence action against a State B defendant in a State A state court after a traffic accident in State A, seeking $200,000 in damages. The plaintiff immediately served the defendant with process. Fifty-nine days later, the defendant removed the case to federal district court. The plaintiff then timely filed a motion in the federal court to remand the case back to state court.
How should the court rule on the plaintiff’s motion to remand?
A Grant the motion, because removal is not available if one of the parties is a citizen of the forum state.
B Grant the motion, because the defendant’s notice of removal was not timely.
C Grant the motion, because the court lacks federal subject matter jurisdiction.
D Deny the motion, because the court has diversity of citizenship jurisdiction over the action.
B
The court should grant the motion to remand the case because the notice of removal was not timely. Under 28 U.S.C. section 1441(a), a defendant can remove an action that could have originally been brought by the plaintiff in the federal courts. Thus, a case that could have invoked subject matter jurisdiction based on either federal question or diversity of citizenship may be removed from state court to federal. However, removal must be sought within 30 days after receipt by or service on that defendant of the initial pleading or summons, or, if the case is not initially removable, within 30 days of the case becoming removable. Additionally, removal based on diversity jurisdiction cannot be had if more than one year has passed since the suit was filed unless bad faith on the part of the plaintiff can be shown. Here, the case was immediately removable, and the defendant should have filed a notice of removal 30 days from receipt of service of process, but he did not do so. Accordingly, on a timely motion to remand, therefore, the court should remand the case to state court. (A) is not correct. The in-state restriction applies only to defendants. The defendant must have been a citizen of State A for the restriction to apply. (C) is not correct because the requirements of diversity—complete diversity of citizenship and an amount in controversy that exceeds $75,000—have been satisfied. The plaintiff is from State A, the defendant is from State B, and the amount in controversy is $200,000. (D) is not correct because, although the requirements of diversity jurisdiction are present, the notice of removal was not timely filed, as explained above.
A critically acclaimed movie that had received a number of awards opened in a small town. The film had portrayals of nudity and scenes involving sexuality, but its advertising was very tasteful and concentrated on its critical acclaim and its receipt of seven Academy Award nominations. Nevertheless, when the movie opened in the small town, there was a public outcry against it, including picketing. The town, which had been founded in the late nineteenth century by a fundamentalist religious group, remained very conservative and highly religious, and was the only community in the state where a consensus of the community would find the movie to be obscene. The town prosecutor went to the local court seeking an injunction to halt the showing of the movie. The theater owner refused to voluntarily stop showing the film and appeared in court to defend against the proposed injunction.
What is the owner’s best defense?
A The proper “community standards” should be those of the entire state rather than of the town.
B The film has some redeeming social value.
C The Establishment Clause of the First Amendment prevents the state from enforcing a particular set of religious beliefs.
D The film has proven artistic merit.
D
The theater owner’s best defense is that the film has proven artistic merit. The First Amendment generally protects the right of freedom of speech, and this freedom includes the right to show movies. Thus, to enjoin the showing of the movie here, the city will have to prove that the speech involved is unprotected speech. Obscenity is the category of unprotected speech most relevant here. The Court has defined obscenity as a depiction of sexual conduct that, taken as a whole, by the average person, using contemporary community standards: (i) appeals to the prurient interest in sex; (ii) portrays sex in a patently offensive way; and (iii) using a rational, reasonable person standard, does not have serious literary, artistic, political, or scientific value. If the theater owner shows that the film has proven artistic merit, it cannot be held to be obscene because the third element of the above definition will have failed. Thus, (D) is his best argument. (A) is not as good an argument as (D) because the Supreme Court has held that while a statewide community standard may be used, it is not mandatory-a local community standard is sufficient to evaluate whether the film is “patently offensive.” Thus, the town’s community standards would be sufficient. (B) is not as good an argument as (D) because it is not sufficient that there is some redeeming social value; it must have serious redeeming value, as indicated above. For example, it would not be sufficient that an otherwise obscene movie included short tips on the importance of brushing teeth. (C) is not a good argument. The Establishment Clause forbids the government from adopting a law or program that establishes religion. It is inapplicable here because the town is not trying to enforce a particular set of religious views; rather, it is trying to prohibit obscenity. The Supreme Court has held that the government has a legitimate interest in prohibiting obscenity, and the fact that this happens to coincide with the beliefs of a particular religious group does not render such bans void.
A property owner sued a developer in federal court alleging breach of an oral contract. According to the property owner, only one other person of questionable credibility heard the conversation in which the contract was allegedly made. That person was listed in the pretrial conference order. The next day, five days before the scheduled trial, the property owner’s attorney discovered that a disinterested person also heard the conversation, and he wanted to call this witness at trial as well. He immediately notified the developer of the witness and his change in plans.
May the property owner call the additional witness?
response - correct
A Yes, if the court modifies the pretrial order.
B Yes, because the trial has not yet begun.
C No, because the final pretrial order controls the subsequent course of the trial.
D No, if the jury has already been selected.
A
The property owner may call the additional witness only if the court modifies the pretrial order, since a pretrial order controls the subsequent course of an action unless modified. The order will be modified “only to prevent manifest injustice.” [Fed. R. Civ. P. 16(e)] (B) is incorrect. Although a court will consider the timing of the request in determining whether to modify the pretrial order, there is nothing to prevent a judge from modifying the order, even if the trial has begun. (C) is incorrect because, although the pretrial order does control the subsequent course of the trial, it can be modified, as discussed above. Here, because the additional witness is disinterested, having her testify could greatly affect the outcome of the case. (D) is incorrect. The fact that the jury was selected would not prevent the court from modifying the pretrial order.
A driver in the local racing circuit brought his customized yellow stock car to a body shop to have it repainted before the new racing season began. When the driver returned to pick up the car, he was horrified to discover that it was repainted pink instead of yellow. The owner of the body shop apologized and offered to repaint the car, but the driver refused because the first race was in two days. The driver lost a couple of endorsements because the endorsers’ ads did not work with the new color. He was also subjected to ridicule at the track, but he felt better after he drove the car to victory in the first race.
If the driver sues the body shop for their treatment of his car, will he prevail?
A No, because he won the race with the car.
B No, unless he can prove that the body shop breached a duty of care owed to him.
C Yes, because the value of his car was reduced.
D Yes, because he suffered severe distress as a result of the conduct of the body shop.
C
The driver can recover for trespass to chattels because he can show that the value of his car has been reduced as a result of the conduct of the body shop. Trespass to chattels requires (i) an act of defendant that interferes with plaintiff’s right of possession in the chattel, (ii) intent to perform the act bringing about the interference with plaintiff’s right of possession, (iii) causation, and (iv) damages. The act of interference may be either dispossession of or damage to the chattel. Here, the body shop employees interfered with the driver’s possession of his car by painting it contrary to his instructions, and they intended to do the act (painting) that caused the interference. The driver suffered damage because that conduct reduced the value of his car for advertising purposes. Hence, the driver will be able to satisfy the prima facie case for trespass to chattels. (A) is wrong because the fact that the driver won the race with the car does not establish absence of actual damages. Any loss in value of the chattels will suffice. (B) is wrong because it is not necessary for the driver to show negligence on the part of the body shop to recover. The driver can recover damages for trespass to chattels without proof of breach of duty. (D) is wrong because emotional distress alone is not sufficient to satisfy the actual damages requirement for the tort of trespass to chattels, and the facts do not establish the requisite extreme and outrageous conduct for an intentional infliction of distress action.
