Mixed Questions - Set 8 Flashcards
A local news station broadcast a live interview with a bystander about his views concerning the state of local education. The bystander responded by saying that the principal of his daughter’s high school had been embezzling school funds for years. The principal saw the telecast and also recorded it. He sued the owner of the station for defamation. At trial, the principal sought to testify to the defamatory statement made in the interview.
Will the principal’s testimony likely be held to be admissible?
A No, because the testimony would be hearsay not within any exception.
B No, because a recording of the interview exists.
C Yes, because the statement is being offered to show its effect on the principal.
D Yes, because the principal personally saw the interview on television.
D
Because the principal had firsthand knowledge that the statement was made, his testimony will be admissible unless there is a specific rule excluding the evidence. Witnesses are generally presumed competent to testify until the contrary is demonstrated. While a witness may not testify to a matter unless evidence is introduced to support a finding that the witness has personal knowledge of the matter, this evidence may consist of the witness’s own testimony. (A) is incorrect. 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. In a defamation action, evidence of the statement alleged to be defamatory is not hearsay because the evidence is by definition not offered to prove the truth of the matter asserted. It is offered only to show that the actionable statement was made. (B) is incorrect. Because the principal had firsthand knowledge of the event he can testify about the event, even though there might exist a recording that would be better proof of the event. The “best evidence rule” does not apply because the recording is not an essential repository of the facts recorded. (C) is incorrect. Although the statement is not hearsay, it is not being offered to show its effect on the hearer (e.g., knowledge, motive), but rather to show that the statement was made, as explained above.
A witness is called in a contract action between a plaintiff and a defendant. The witness takes his oath and testifies. During cross-examination, the defendant’s attorney asked the witness this question: “Isn’t it true that even though you took an oath to tell the truth so help you God, you are an atheist and don’t even believe in God?”
Upon the proper objection, will the judge require that the witness answer this question?
A Yes, because the question is relevant to the witness’s character for truthfulness.
B Yes, because instead of taking the oath, the witness could have requested to testify by affirmation without any reference to God.
C No, because evidence of the beliefs or opinions of a witness on matters of religion is not admissible to impair credibility.
D No, because an attack on the competency of a witness must be made at the time the witness is sworn.
C
The judge should not require that the witness answer the question because evidence of the religious beliefs of a witness is not admissible to challenge credibility. Lack of religious belief is no longer a basis for excluding a witness. Not only are a person’s religious convictions irrelevant in determining the competence of a witness, Federal Rule 610 provides that a witness’s religious beliefs or opinions are not admissible to show that the witness’s credibility is thereby impaired or enhanced. Thus, (C) is correct and (A) is incorrect. (B) is incorrect. While it is true that the witness could have requested a different type of oath, Rule 610 prohibits this type of question because it would have shown his lack of religious beliefs. (D) is incorrect because, as discussed above, lack of religious belief is no longer a basis for disqualification; thus, this would not constitute an attack on the witness’s competency.
A state statute defines all murders as second degree murders unless deliberation and premeditation can be shown, in which case the crime is elevated to first degree murder. Manslaughter is defined as at common law.
The defendant, just having been served with divorce papers, decided to drown his sorrows at the local pub. After drinking heavily and becoming very intoxicated, the defendant became enraged when another patron spilled a drink on him. He took a nearby ashtray and smashed it over the patron’s head, killing him instantly.
The crimes below are listed in descending order of seriousness.
What is the most serious crime of which the defendant could be convicted?
A Murder in the first degree.
B Murder in the second degree.
C Voluntary manslaughter.
D Involuntary manslaughter.
B
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.
The defendant is charged with the battery of a bouncer at a local tavern. At the trial, the prosecutor introduces evidence that while the bouncer was attempting to question the defendant about her intoxicated demeanor, the defendant committed a battery on the bouncer. The defendant attempts to defend against the charge on the basis of self-defense, insisting that the bouncer used excessive force in stopping her from entering the tavern. The defendant attempts to introduce into evidence an authenticated copy of the tavern records that show that three patrons had written complaints against the bouncer within the past six months for the use of excessive force. The prosecutor objects on the grounds that the records are inadmissible character evidence.
Should the court sustain the objection?
A Yes, because the character of a victim can be established only by reputation or opinion evidence.
B Yes, because there is no evidence that the incidents involving the three patrons were based on the same facts as the defendant’s claim.
C No, because the records were authenticated.
D No, because the character trait of a victim may be established by opinion evidence, reputation evidence, or specific acts of misconduct.
A
The court should sustain the objection because the records are evidence of specific bad acts. The Federal Rules permit a defendant to introduce evidence of a bad character trait of the alleged victim if it is relevant to the charge or the defense, but limit it to reputation and opinion evidence. Evidence of specific acts of the person in question that demonstrates that person’s character is permitted only in a few instances, such as if the acts are relevant to some issue other than disposition to commit the crime charged. Here, no issue is raised by this evidence other than the bouncer’s propensity to use excessive force. (A) is therefore correct and (D) is wrong. (B) is wrong because the facts do not have to be identical if evidence of bad acts were otherwise admissible. (C) is wrong; documentary evidence, even if fully authenticated and relevant, may be excluded if it violates a rule of competency, such as the rule for character evidence. Here, the objection should be sustained because the document is improper evidence of a specific bad act.
A state bans the use of disposable diapers to reduce the volume of nonbiodegradable material in its landfills. The ban was a boon for diaper services within the state, but many parents of young children were displeased with the use of conventional diapers. With support from retail establishments that lost business from the disposable diaper ban, a grass roots coalition formed to fight the ban funded a study showing that the trucks and cleaning supplies used by diaper services within the state harmed the environment more than disposable diapers. The coalition and retailers then filed suit seeking to have the ban on disposable diapers declared unconstitutional.
If the court strikes down the statute, on which of the following constitutional provisions would its decision most likely be based?
A The Equal Protection Clause of the Fourteenth Amendment.
B The Due Process Clause.
C The Impairment of Contracts Clause.
D The Privileges or Immunities Clause of the Fourteenth Amendment.
B
Of the choices presented, the only likely basis to strike down the statute is under the Due Process Clause as a violation of substantive due process. Substantive due process tests the reasonableness of a statute; it prohibits arbitrary governmental action. Under substantive due process, when government action limits a fundamental right, the government must prove that the action is necessary to promote a compelling interest. If a fundamental right is not involved, the challenging party must prove that the act is not rationally related to any legitimate government interest. The retail sale of diapers is not a fundamental right, and so a challenger must prove that there is no rational basis for the statute. Almost any law can be justified under the rational basis standard. The law need not be the best law for accomplishing the government’s goal. Thus, even if it is true that the disposable diaper ban causes more pollution than it prevents, because the ban is rationally related to reducing the volume of trash in landfills, the challenge is unlikely to succeed. Nevertheless, none of the other choices states a viable ground for invalidating the statute, and so (B) is the best choice. (A) is wrong because equal protection applies where a statute or governmental action treats similar people in a dissimilar manner (i.e., classifies people), and here there is no classification—under the statute no one can sell disposable diapers for use within the state. Thus, an equal protection argument is not applicable. (C) is wrong because the Impairment of Contracts Clause prohibits only the substantial impairment of existing contracts (and there are exceptions even where there is substantial impairment), and nothing in the facts indicates that forbidding the retail sale of disposable diapers would substantially impair any existing contract. (D) is wrong because the privileges and immunities covered by the Fourteenth Amendment are those attributes peculiar to United States citizenship (e.g., the right to petition Congress for redress or the right to vote for federal officers). The statute here does not affect such rights.
A town in a rural state facing financial difficulties passed a variety of “sin taxes,” including one aimed at electronic game arcades frequented by local juveniles. The tax is a one cent per game tax imposed on the manufacturers of the games based on the estimated number of plays over a machine’s lifetime. There are no electronic game manufacturers in the state.
Which of the following constitutional provisions would support the best argument against enforcement of the tax?
A The Equal Protection Clause.
B Substantive due process.
C The Privileges and Immunities Clause of Article IV.
D The Commerce Clause.
D
The best argument against enforcement of the tax is that it violates the Commerce Clause. If Congress has not adopted laws regarding a subject, local governments are free to tax or regulate local aspects of the subject area as long as the tax or regulation does not discriminate against interstate commerce or unduly burden it. Here, the tax does not discriminate against interstate commerce, since it does not single out interstate commerce for taxation in order to benefit the local economy. However, it could be argued that the tax unduly burdens interstate commerce. A local tax will be held to unduly burden interstate commerce if the locality’s need for the revenue does not outweigh the burden on interstate commerce. The Supreme Court will consider whether there is a substantial nexus between the activity or property taxed and the taxing state, whether the tax is fairly apportioned, and whether there is a fair relationship between the tax and the benefit the taxed party receives from the state. Here, there is little nexus between the manufacturer and the town. The facts indicate that out-of-state manufacturers’ machines are used in the town, but do not indicate whether the manufacturers conduct any selling activity in the town. Similarly, nothing indicates that there is a relationship between the tax and any benefit that the manufacturers derive from the town. Thus, the tax would probably be unconstitutional under the Commerce Clause. (A) is not as good an argument as (D) because the Equal Protection Clause prohibits the states from treating similarly situated persons differently without sufficient justification. Where a classification does not involve a suspect or quasi-suspect class or a fundamental right, the classification will be upheld as long as it is rationally related to a legitimate government interest. While the tax here singles out arcade game manufacturers for special tax treatment, no suspect or quasi-suspect class is involved, nor is a fundamental right affected. Thus, the tax will be valid under the Equal Protection Clause because it is rationally related to the legitimate government interest of raising revenue. (B) is not a good argument because substantive due process requires that laws not be arbitrary. When laws do not involve a fundamental right, they will be held valid under the Due Process Clause as long as they are rationally related to a legitimate government interest. As established above, no fundamental right is involved and the tax is rationally related to a legitimate government interest. Thus, under the Due Process Clause the tax may be enforced. (C) is not a good argument because the Privileges and Immunities Clause of Article IV prohibits states from discriminating against out-of-state residents when a fundamental right is involved, and the tax here does not differentiate between residents and nonresidents.
A seller conveyed her residential city property to a buyer by a general warranty deed. On taking possession of the property, the buyer discovered that the garage of his neighbor encroached six inches onto his property.
If the buyer wishes to compel the seller to assist him in a suit against the neighbor, which of the following covenants may he rely on to do so?
A Seisin and encumbrances.
B Warranty and further assurances.
C Seisin and warranty.
D Encumbrances and further assurances.
B
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. The covenants of seisin and encumbrances do not require such assistance. A covenant of seisin is a covenant that the grantor has the estate or interest that she purports to convey. Both title and possession at the time of the grant are necessary to satisfy this covenant. The covenant against encumbrances is a covenant assuring that there are neither visible encumbrances (easements, profits, etc.) nor invisible encumbrances (mortgages, etc.) against the title or interest conveyed. While the seller may have violated these two covenants because of the garage encroachment, they do not provide the basis to compel her to assist the buyer in a title suit. Instead, the buyer merely has a cause of action against the seller for their breach. Therefore, (A), (C), and (D) are wrong.
Three drivers were in an automobile accident in a city in State A. The drivers were citizens of State A, State B, and State C. The State B driver filed a tort action against the other two in a State A state court, seeking $300,000 for her severe injuries. The State C driver wants to remove the action to a federal district court.
Is the action removable?
A No, because one of the defendants is a citizen of State A.
B No, because an action may be removed from state court only if it “arises under” federal law.
C Yes, because there is complete diversity of citizenship and the amount in controversy exceeds $75,000.
D Yes, because one of the defendants is a citizen of a state other than State A.
A
The action is not removable. Under 28 U.S.C. section 1441, 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. This fact also makes (D) incorrect. (B) is incorrect because a case may be removed based on diversity, with the restriction that removal is not available if one of the defendants is a citizen of the forum state. (C) is incorrect. Even though the case satisfies the requirements of diversity jurisdiction, the “in-state defendant” restriction prevents removal.
As part of legislation enacted for the stated purpose of improving science skills of schoolchildren, Congress appropriated funds to permit public school teachers who had been certified by state school districts as science lab instructors to provide supplemental science instruction to any students in either public or private schools who did not have access to science lab resources. To help ensure content neutrality, the statute required the instructors coming to the private schools to use portable science labs supplied by the public school districts, which contained the equipment and experiments that the instructors used for the same purpose in the public schools. A citizens’ group filed suit in federal district court to challenge the constitutionality of funding the science teachers for private schools, alleging that most of the private schools covered by the statute were religiously affiliated schools. No members of the group have any children in either public schools or private schools affected by the statute.
How is the court likely to rule?
A Dismiss the case on the pleadings, because the citizens’ group does not have a sufficient stake in the controversy to have standing to challenge Congress’s expenditure, which was authorized under its power to spend for the general welfare.
B Decide the case on the merits in favor of the government, because the legislation defines the context in which instruction can be provided in private schools so as to avoid excessive government entanglement with religion.
C Decide the case on the merits in favor of the citizens’ group, because the appropriation’s primary effect advances religion in violation of the Establishment Clause of the First Amendment.
D Decide the case on the merits in favor of the citizens’ group, because the court will presume that any instruction provided on the premises of a religiously affiliated school will be influenced by religion.
B
The court will probably decide in favor of the government on the merits. Programs of aid to religiously affiliated grade schools and high schools are subject to the same three-part test as are other laws under the Establishment Clause: The program must (i) have a secular purpose, (ii) have a primary effect that neither advances nor inhibits religion, and (iii) not produce excessive government entanglement with religion. With respect to the first prong of the test, most of the time such programs (including this one) will have a secular purpose-to aid education. With respect to the second prong, the program may be deemed to have a primary effect that advances religion if it results in governmental indoctrination of religion or defines its recipients by reference to religion. Here, the statute establishes a religiously neutral program that funds a supplemental service for the schools, and offers the instruction to all disadvantaged students regardless of whether they choose to attend public or private schools. [See Agostini v. Felton (1997)-government program providing remedial education services to all disadvantaged children at their schools, including children at parochial schools, held not to violate the Establishment Clause] Thus, (C) is incorrect. (D) is incorrect because the courts will not presume that the instruction provided by this program will be influenced by religion. Furthermore, with respect to the “excessive entanglement” prong of the test, there is no indication that the program requires detailed monitoring of the government employees to prevent them from incorporating religion in their instruction-the equipment and experiments that they use in the private schools are the same as they use in the public schools. (A) is incorrect because the citizens’ group has standing to challenge the expenditure on behalf of its members, who have a right to sue based on their status as federal taxpayers. The one recognized exception to the rule that people do not have standing as taxpayers to challenge the way tax dollars are spent by the federal government is if the expenditure was enacted under Congress’s taxing and spending power and allegedly exceeds the specific limitation on that power found in the Establishment Clause. That exception applies here because the citizens’ group is alleging that the federal appropriation is an unconstitutional attempt to provide government funds to religiously affiliated schools.
A pedestrian was injured in an auto accident caused by a driver. The pedestrian’s injuries included a broken nose and a broken toe. Not sure of the strength of her case, she sued the driver only for the injuries to her nose. She was awarded $15,000 in damages. Encouraged by this success, she now wishes to sue the driver for the injuries to her toe.
May she sue the driver again?
A No, because all related claims “merged” with the final decision in the first case.
B No, because she will be collaterally estopped from pursuing the claim.
C Yes, and she may use the prior decision against the driver.
D Yes, but she will have to relitigate the driver’s liability.
A
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. (B) is incorrect. Issue preclusion, also called “collateral estoppel,” applies to issues, not entire cases. (C) and (D) are incorrect for the reasons stated above.
A landowner was the owner in fee simple of a tract of land. The landowner conveyed the tract to her neighbor, “for life and then to the first child of my neighbor’s only sister who shall reach the age of 21.” The sister was unmarried and childless at the time of the conveyance. Five years later, the sister married, and she gave birth to a son the following year. When the son reached the age of 21, he brought an action in ejectment against the neighbor, who is still alive and living on the tract of land.
Which of these is the neighbor’s best defense against the son’s attempt to eject her?
A The neighbor’s life estate was not subject to termination during her lifetime.
B The son has no claim to the tract, because he was not living at the time of the landowner’s original conveyance.
C A conveyance of the tract to the son violates the Rule Against Perpetuities.
D The son’s interest, if any, would be that of a contingent remainder, and the contingency is the neighbor’s death.
A
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. (B) is incorrect because the son did not have to be alive at the time of the original conveyance in order to now claim an interest in the tract. (C) is incorrect because the son’s interest would vest within 21 years of a life in being (his mother, the sister). (D) is incorrect because the son’s interest would be a vested rather than contingent remainder. A remainder is contingent if it is created in favor of unborn or unascertained persons. Because the sister was childless at the time of the conveyance, the remainder to the sister’s “first child . . . who shall reach the age of 21” was a contingent remainder. It remained contingent at the son’s birth because he had to reach age 21 to take. However, the son has reached age 21, and thus his remainder is vested. It is indefeasibly vested because it is not subject to being defeated, divested, or diminished in size.
A homeowner and a local builder entered into a written contract that called for the builder to build a second story onto the top of the homeowner’s one-story residence. When scheduling conflicts arose, the builder asked the homeowner if they could substitute his buddy, an out-of-town builder who had comparable experience and skills, to perform the local builder’s part of the contract. All of the parties agreed to the substitution. Unfortunately, the out-of-town builder made a major blunder that will be quite expensive to correct.
Is the local builder liable to the homeowner for the cost of correcting the defect?
A Yes, because the substitution in and of itself does not relieve the local builder of liability on the underlying contract.
B Yes, because the local builder did not give any consideration on which to base a release.
C No, because the local builder transferred his duties to the out-of-town builder.
D No, because the local builder was discharged through a novation.
D
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. (A) states incorrectly that the substitution does not relieve the local builder of liability. If the parties had not all agreed to substitute the out-of-town builder for the local builder, or the facts said that there was merely an assignment of rights and delegation of duties, (A) would reflect the correct result. However, where the parties agree to substitute a new party for an old party, there is a novation that does release the old party. (B) is incorrect because there was consideration to support the release—the local builder implicitly agreed to give up his rights under the original contract, the homeowner implicitly agreed to give up his right to look to the local builder for performance, and the out-of-town builder agreed to perform. (C) is not as good an answer as (D). The mere fact that a contractual duty was transferred does not release the transferor from a duty under the contract. It is only the agreement among the parties to substitute the new party for the old that released the local builder here.
A State A citizen was arrested by a police officer in State A. The State A citizen filed a civil action against the police officer in a State A state court. The complaint alleges that the police officer wrongly beat the citizen in the course of the arrest and seeks money damages under both state tort law and under 42 U.S.C. section 1983 for violation of the citizen’s civil rights. The police officer, who is also a citizen of State A, promptly filed a notice of removal to federal court.
Is the case properly removable?
A No, because the citizen and police officer are citizens of the same state.
B No, because the police officer is a citizen of State A, the state in whose court the case is pending.
C Yes, as long as the amount in controversy exceeds $75,000.
D Yes, because one of the claims arises under federal law and the federal court has supplemental jurisdiction over the other claim.
D
The case is properly removable. Under 28 U.S.C. section 1441, 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. As a result, (D) is correct. When removal is based on federal question jurisdiction, unlike diversity jurisdiction, there is no amount in controversy requirement, nor is there any requirement that the parties be from different states. Thus, (A) and (C) are incorrect. (B) is incorrect because the “in-state defendant” restriction on removal applies only when removal is based solely on diversity of citizenship jurisdiction.
A boy mowing his lawn noticed a strong vibration from the engine but continued to mow. The engine housing suddenly broke apart and pieces flew off the lawnmower. One piece struck the boy in the head, seriously injuring him. The boy’s mother was inside the house and heard yelling from the backyard. She went to the window and saw her son lying on the ground by the lawnmower and a friend of his kneeling over him. She became very upset and fainted. Subsequent investigation showed that a negligent repair by a local mechanic caused the engine housing to shatter. The mother brought a lawsuit against the mechanic, seeking recovery for her son’s injury and the emotional distress she suffered.
Can the mother recover damages for her emotional distress?
A No, because her son’s continuing to mow after noticing the vibration was a superseding cause of the harm.
B No, because the mother was not within the zone of danger from the mechanic’s negligence.
C Yes, because the mother was closely related to someone in the zone of danger from the mechanic’s negligence.
D Yes, because her son was injured by the mechanic’s negligence.
B
The mother cannot recover damages for her emotional distress. A duty to avoid negligent infliction of emotional distress may be breached when the defendant creates a foreseeable risk of physical injury to the plaintiff. The mother might try to assert two theories in support of her emotional distress claim, but she is unlikely to prevail on either one. First, she could claim distress flowing from fear for her own safety, but she may prevail only if the defendant’s negligence placed her in a zone of danger. Here, because she was safely inside her home and quite distant from the mower when it exploded, she was not in a zone of danger. Alternatively, she could claim distress flowing from her anguish at seeing her son injured. However, for a bystander who is outside the zone of danger from the risk of physical injury but who suffers emotional distress from seeing the defendant negligently injure another, most states allow recovery only if: (i) the plaintiff and the person injured by the defendant are closely related; (ii) the plaintiff was present at the scene of the injury; and (iii) the plaintiff personally observed or perceived the event. Here, while she is related to her son, who was injured by the mechanic’s negligence, she was not present at the scene of the injury and did not personally observe or perceive the event. Hence, she cannot recover damages for negligent infliction of emotional distress. (A) is incorrect. Under proximate cause rules, a third party’s negligence that contributes to the plaintiff’s harm will not be considered a superseding force where it is within the foreseeable risk created by the defendant’s negligence. While the son may have been negligent in continuing to use the mower, this conduct would not cut off the defendant’s liability to the mother if she otherwise could recover for her distress. (C) is incorrect because the plaintiff’s close relationship with the injured person is only one of the requirements for a plaintiff outside the zone of danger to recover emotional distress damages. Because the mother was not present at the scene and did not observe the event, she cannot recover. (D) is incorrect. While the mother can recover on her son’s behalf for his injury, she cannot recover for her emotional distress, as discussed above.
A fee simple owner of a restaurant provided in his will that the property should go on his death “in fee simple to my friend, but if during my friend’s lifetime my son has children and those children are alive when my friend dies, then to said living children.” When the owner died, the friend took over the restaurant.
If the son has children and one or more of them are alive when the friend dies, who will take title to the restaurant at that time?
A The friend’s heirs, because the attempted gift to the son’s children is invalid under the Rule Against Perpetuities.
B The son’s children, because their interest is not contingent, being a possibility of reverter.
C The son’s children, because their interest is vested, subject to defeasance.
D The son’s children, because their interest will vest, if at all, within a life in being plus 21 years.
D
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.
