Mixed Questions - Set 9 Flashcards
The defendant was on trial for murdering his mother, who was found dead in her bathtub. At trial, the prosecutor called the nurse of the defendant’s aunt to testify to what the aunt told the nurse just before the aunt died of cancer. The nurse is prepared to testify that, shortly before she died, the aunt stated, “I know I don’t have much longer to live, so I must tell someone what my nephew said to me yesterday. He told me that he was very angry with his mother and that he wanted to kill her and make it look like an accident!”
Should this testimony be admitted?
A Yes, because it is a statement by an opposing party.
B Yes, because it falls within the hearsay exception for dying declarations.
C Yes, because it is a statement by an opposing party and falls within the hearsay exception for dying declarations.
D No, because it is inadmissible hearsay.
D
The testimony is inadmissible. Hearsay is an out-of-court statement offered in evidence to prove the truth of the matter asserted. An out-of-court statement that incorporates other hearsay is “hearsay within hearsay.” Hearsay within hearsay is admissible only if both the outer hearsay statement and the inner hearsay statement fall within an exception to the hearsay rule. Here, the aunt’s statement incorporating the defendant’s statement constitutes hearsay within hearsay. Therefore, both statements must fall within an exception to the hearsay rule to be admissible. The defendant’s statement to his aunt ordinarily would be hearsay because it is being offered to prove the truth of the matter asserted—that he intended to kill his mother. However, statements by a party-opponent (commonly called admissions) are admissible nonhearsay under the Federal Rules. Thus, the defendant’s statement is admissible as a statement by a party-opponent. However, the aunt’s statement made to the nurse regarding the defendant’s statement must also fall within an exception to the hearsay rule. Because no exception applies to that statement, the entire testimony is inadmissible. (A) is incorrect because, while it correctly states that the defendant’s statement is a statement by an opposing party, it incorrectly deems the statement admissible because it fails to address the hearsay within hearsay issue discussed above. (B) is incorrect. A declaration made by the now-unavailable declarant, while believing that her death was imminent, is admissible if it concerns the cause or circumstances of what she believes to be her impending death. Here, the statement was made while the aunt believed that her death was imminent; however, the statement did not concern the cause or circumstances of her death and therefore does not qualify as a dying declaration. (C) is incorrect for the same reason. While the defendant’s statement is an opposing party’s statement, the aunt’s statement is not a dying declaration, as discussed above.
In a criminal battery case brought against the defendant, the prosecutor asked the court to take judicial notice of the fact that a car driven from Chicago to Detroit has to cross state lines. The defense attorney raised no objection, and the judge declared that she was taking judicial notice of the fact as requested by the prosecution.
What is the effect of such judicial notice?
A To raise an irrebuttable presumption.
B To satisfy the prosecutor’s burden of persuasion on that issue.
C To shift the burden of persuasion on that issue to the defendant.
D That the judge should instruct the jury that it may, but is not required to, accept the noticed fact as conclusively proven.
D
The effect of the judge’s noticing that a car driven from Chicago to Detroit must cross state lines is that the judge will now instruct the jury that it may, but is not required to, accept that fact as conclusively proven. Under the Federal Rules, in a civil case, the court must instruct the jury to accept the judicially noticed fact as conclusive. [Fed. R. Evid. 201(f)] Because this question deals with a prosecution for criminal battery, the applicable rule is that the jury be instructed that the fact that has been judicially noticed may be accepted by it as conclusive, but that the jury is not required to do so. (A) would be correct if this were a civil case. In such an instance, the jury would be instructed to accept as conclusive the judicially noticed fact. This would have the effect of raising an irrebuttable presumption. (B) is incorrect because, in a criminal case, the prosecution has the burden of proving every element of the crime beyond a reasonable doubt. Only the jury can decide, after all of the evidence is in, whether the burden of persuasion is satisfied. (C) is incorrect because the burden of persuasion does not shift from party to party during the course of the trial. The burden of persuasion is never on a criminal defendant.
A developer subdivided a 25-acre tract of land into 100 quarter-acre lots. On each lot she built a two-unit townhouse. The deeds to each of the purchasers contained a covenant that “the grantee, his heirs and assigns” would use the property only for single-family use. All deeds were promptly and properly recorded. Subsequently, the zoning laws were amended to allow multifamily use within the subdivision. Six months later, a social worker offered to purchase an original owner’s unit that was for sale. The social worker informed the owner that she planned to operate a halfway house out of the unit, an activity in conformity with the applicable zoning regulations. Therefore, the owner did not include the single-family restriction in the deed to the social worker.
If a neighbor, who purchased his lot from the developer, seeks to enjoin the operation of the halfway house, will he succeed?
A No, because the deed from the owner to the social worker did not refer to the covenant.
B No, because the social worker relied on the zoning regulations when purchasing the unit.
C Yes, because the social worker had notice of the restrictive covenant.
D Yes, but only if the neighbor can establish a common scheme for development.
C
The neighbor will succeed in enjoining the operation of the halfway house because the social worker had notice of the restrictive covenant. A covenant runs with the land to a subsequent purchaser with notice of the covenant if it touches and concerns the land and is intended to run. Notice may be actual or constructive. Here, the social worker was on record notice of the covenant because the original owner’s deed was recorded. Restricting land to single-family use touches and concerns the land, and it is evident that the developer and the original owners, including the neighbor, intended it to run with the land by use of the language “grantee, his heirs and assigns.” The social worker thus will be bound even though her deed did not refer to the covenant. Thus, (A) is incorrect. (B) is incorrect because compliance with zoning regulations does not excuse noncompliance with an enforceable covenant; both must be complied with. (D) is incorrect because the neighbor can prevail without needing to show a servitude implied from a common scheme, which comes into play when a developer subdivides land into several parcels and some of the deeds contain negative covenants and some do not. Here, the covenant relating to single-family use was in all of the original deeds and, as discussed above, it runs with the land. A covenant that runs with the land may be enforced as an equitable servitude if the assignees of the burdened land have notice of the covenant; the usual remedy is an injunction. Here, the social worker had record notice of the covenant and it runs with the land, so the neighbor can enforce the covenant as an equitable servitude without resort to implying a reciprocal negative servitude.
A driver drove into an intersection and struck a pedestrian. The driver immediately left his car and ran to the pedestrian. Before the ambulance arrived, the driver said to the pedestrian, “It was all my fault; I’m sorry I ran a red light.” The driver then said, “I’ll pay for all your medical expenses.” The pedestrian sued the driver for his injuries and, at the resulting trial, the pedestrian wished to testify to the two statements made by the driver. The defense objected.
How should the court rule?
A Both of the driver’s statements are admissible.
B The driver’s statement acknowledging that he ran a red light is admissible, but his promise to pay the pedestrian’s medical expenses is inadmissible.
C The driver’s statement acknowledging that he ran a red light is inadmissible, but his promise to pay the pedestrian’s medical expenses is admissible.
D Neither of the driver’s statements is admissible.
B
The court should rule that the driver’s statement acknowledging that he ran a red light is admissible, but his promise to pay the pedestrian’s medical expenses is inadmissible. The driver’s statement acknowledging that he ran a red light is admissible as a statement by an opposing party (i.e., a statement made by a party and offered against that party), while his promise to the pedestrian is inadmissible as an offer to pay medical expenses. The Federal Rules of Evidence treat statements by an opposing party as nonhearsay. In his first statement, the driver acknowledges that he ran the red light, and that the accident resulting in the pedestrian’s injuries was his fault. This statement qualifies as a statement by a party-opponent. Evidence that a party paid (or offered to pay) an injured party’s medical bills is not admissible to prove liability for the injuries. Such payment (or offer to pay) might be prompted solely by humanitarian motives. The driver’s second statement is clearly an offer to pay the medical bills of the pedestrian, an injured party. Thus, the statement is not admissible to prove liability for the pedestrian’s injuries (and proving liability appears to be the only reason the pedestrian has for attempting to introduce the statement into evidence). Note that had this been a single statement, the outcome would have been the same, because an admission of fact accompanying offers to pay medical expenses is admissible. (A) is wrong because, as explained above, the driver’s second statement is inadmissible. (C) is wrong as to both statements because the statement about running the red light is admissible and the offer to pay is inadmissible. (D) is wrong because the statement about running the red light is admissible evidence.
A blacksmith ran a small forge in a tourist attraction depicting village life in the 1800s, and produced small metal trinkets for sale as souvenirs. A tourist came into the forge and started ridiculing the blacksmith, telling him that he was foolish for practicing such an out-of-date trade when modern equipment could produce the same trinkets faster and far more cheaply. Although he maintained a calm demeanor, the blacksmith was enraged by the time the customer finished and headed back out the door. He picked up an anvil and hurled it in the general direction of the customer. The anvil fell harmlessly to the ground after traveling maybe a foot.
If the blacksmith is charged with assault, which of the following statements would be most helpful for his defense?
A The blacksmith did not succeed in hitting the customer with the anvil, and he knew that it was impossible to do so.
B The blacksmith knew that it was impossible to hit the customer with the anvil.
C The customer did not see the blacksmith throw the anvil, and the blacksmith knew that it was impossible to hit the customer with the anvil.
D The customer did not see the blacksmith throw the anvil.
C
That the customer did not see the blacksmith throw the anvil, and that the blacksmith knew it was impossible to hit the customer with the anvil, would be most helpful to the blacksmith’s defense. For purposes of the MBE, an assault is either (i) an attempt to commit a battery, or (ii) the intentional creation, other than by mere words, of a reasonable apprehension in the mind of the victim of imminent bodily harm. The fact that the blacksmith knew that it was impossible to hit the customer with the anvil negates the specific intent to commit a battery that is required for the first type of assault. (If the blacksmith knew that, when he threw the anvil, it was impossible to hit the customer, the blacksmith’s conduct was not motivated by the intent to commit a battery against the customer.) The fact that the customer did not see the blacksmith throw the anvil negates the second type of assault because no apprehension of harm would have been created in the customer if he did not see the blacksmith throw the weight. Because the type of assault is not specified here, (C) is a better choice than (B) or (D) because both types of assaults are negated. Choice (A) is not correct because the fact that the blacksmith failed in his attempt to hit the customer with the anvil establishes only that there was a failure to commit a battery. It does nothing to negate the blacksmith’s potential liability for assault/attempted battery.
A manufacturer of widgets was incorporated in and has its principal place of business in State A. The manufacturer also operates its own stores in State A, State B, and State C, through which it sells its widgets to consumers. A consumer who resides in State D visited a State D store to purchase a widget. The State D store did not have the widget he needed, and employees at the store directed him to the State B store operated by the manufacturer. The consumer visited the manufacturer’s State B store and purchased the widget. The consumer returned to his home in State D, where he was injured while using the widget. The consumer intends to file a products liability action against the manufacturer in federal district court.
In what district or districts is venue proper?
A The District of State A, the District of State B, and the District of State C.
B The District of State A only.
C The District of State A and the District of State D only.
D The District of State A, the District of State D, and the District of State B.
D
Venue is proper in the District of State A, the District of State D, and the District of State B. Federal venue in civil actions is proper in (i) the district where any defendant resides, if all defendants are residents of the state in which the district is located; and (ii) the district in which a substantial part of the events or omissions giving rise to the claim occurred. The District of State D is proper because a substantial part of the events giving rise to the claim—use of the widget and the injury—took place there. Substantial events also occurred in the District of State B (the sale). Additionally, venue is proper in other districts because the manufacturer is deemed to reside there. Corporations are deemed to reside in any district in which it is subject to personal jurisdiction with respect to the action in question. The manufacturer is subject to personal jurisdiction and thus deemed to reside in the District of State A (because its incorporation and principal place of business are there, thus subjecting it to general jurisdiction there), the District of State B (because it sold the widget from its store there, thus subjecting it to specific jurisdiction there with respect to the current action), and the District of State D (because the injury took place in State D, thus subjecting it to specific jurisdiction there with respect to the current action). Thus, (B) and (C) are incorrect. (A) is incorrect because, although the manufacturer transacted business in the District of State C (because it operates stores there), such activity would not subject the manufacturer to personal jurisdiction with respect to the action here, because State C has no connection with the consumer’s injury. As a result, the manufacturer does not reside, for the current action, in that district for venue purposes.
A resident of City A (located in the Northern District of State A) brought a diversity action against a resident of City B (located in the Eastern District of State B). The cause of action arose in City B. The defendant commutes daily from his home in City B to his office in City A and would find it much more convenient to litigate the action there than in City C, where the appropriate court for the Eastern District of State B is located. The plaintiff would also find it more convenient to litigate in City A, but will go to City C if necessary.
May the action be litigated in City A?
A No, because venue is not proper there.
B No, if process is served in State A.
C Yes, because a plaintiff is entitled to choose venue.
D Yes, if the defendant waives proper venue.
D
The action may be litigated in City A because improper venue may be waived. The defendant may inform the plaintiff that he will waive any objection to venue in City A. Given that the plaintiff has indicated a willingness to bring the action in City C if necessary, the defendant would not seem to gain any advantage by insisting on proper venue at great inconvenience to him, unless other factors make City C a preferable venue. (A) is incorrect because although City A is not a proper venue under 28 U.S.C. section 1391, improper venue may be waived. (B) is incorrect because the place where process is served has no effect on venue. (C) is incorrect because a defendant may object to improper venue.
A recent law school graduate was offered a job as an aide by a state legislator. The legislator told the graduate that before she could begin working, she had to take the following loyalty oath: “I swear to uphold our state and federal Constitutions; to show respect for the state and federal flags; and to oppose the overthrow of the government by violent, illegal, or unconstitutional means.” The graduate told the legislator that the oath is unconstitutional and refused to take the oath.
Is the graduate correct?
A Yes, as to the promise to uphold the state and federal Constitutions.
B Yes, as to the promise to respect the flag.
C Yes, as to the promise to oppose the overthrow of the government.
D No, as to all three provisions.
B
The graduate is correct as to the promise to respect the flag, but incorrect as to the other two promises. The Supreme Court has upheld oaths requiring government employees to oppose the violent overthrow of the government and to support the Constitution; hence, (A) and (C) are incorrect. However, it has held that government employees cannot be required to show respect for the flag, as a person might refuse to salute the flag on religious grounds. Thus, (B) is correct and (D) is incorrect.
A homeowner entered into a written agreement with a contractor whereby the contractor agreed to completely remodel the homeowner’s bathroom “to her specifications” at a cost of $10,000. The homeowner’s specifications were highly detailed and required custom-made fixtures that would not be usable in other bathroom remodeling jobs. The contractor ordered the custom-made fixtures and paid $4,000 for them when they were delivered to his place of business. Figuring up the cost of the fixtures and labor, the contractor estimated that he would make a total profit of $2,000 on the job after payment for materials and workers. Before the contractor began work on the project, but after he had paid for the fixtures, the homeowner told the contractor that she had had a change of heart and would probably be selling the house the following year, and so would not need a custom bathroom. The contractor made no attempt to sell the fixtures to another contractor and filed suit against the homeowner for damages.
What is the contractor likely to recover?
A Nothing, because he failed to mitigate damages.
B His expectation damages of $2,000.
C $4,000, the cost of materials as restitution.
D $2,000 as expectation damages, plus $4,000 in reliance damages.
D
The contractor can recover $2,000 as lost profits plus the $4,000 in costs he incurred before the homeowner breached the contract. The purpose of a damages remedy based on an affirmance of the contract is to give compensation for the breach; i.e., to put the nonbreaching party where he would have been had the promise been performed. In most cases, the plaintiff’s standard measure of damages will be based solely on an “expectation” measure, i.e., sufficient damages for him to buy a substitute performance. A reliance measure of damages, on the other hand, awards the plaintiff the cost of his performance, i.e., his expenditures in performing his duties under the contract. In certain situations, an award of compensatory damages will contain both an expectation and a reliance component. In a construction contract, if the owner breaches the contract after the builder has already begun his performance, the builder will be entitled to any profit he would have derived from the contract plus any costs he has incurred to date. This formula contains an expectation component (the profit the builder would have made) and a reliance component (the cost incurred prior to the breach). This formula is applicable to the facts in this case. The contractor has begun performance by ordering and purchasing the custom-made fixtures at a cost of $4,000. Because they are usable only for the homeowner’s purposes, their cost, which is treated just like any other expenditure of labor and material in a partially completed construction contract, can be recovered as reliance damages. The other element of his recovery is the $2,000 profit that he would have derived from the contract—his expectation damages. His total recovery will therefore be $6,000. (A) is incorrect because the contractor can do nothing further to mitigate his damages. The nonbreaching party is always under a duty to mitigate damages after learning of the other party’s breach. In construction contracts, the builder’s duty to mitigate generally dictates only that he not continue work after the breach and not incur further expenditures. While the builder would also have a duty to apply any usable materials that he purchased to other jobs or to attempt to resell them to another contractor, the facts specify that the custom-made fixtures here were not usable in other remodeling jobs. Hence, the contractor’s failure to attempt to sell the fixtures did not amount to a failure to mitigate damages. (B) is incorrect because an award of $2,000 does not put the contractor in the position he would have been in had the contract been performed—the $4,000 that he spent on the fixtures would have been covered by part of the $10,000 that he was to receive as the contract price. Had the homeowner not breached, the contractor would have received the contract price of $10,000, and he would have spent an additional $4,000 in labor and materials to complete the job. The difference, $6,000, consists of the $4,000 that he already spent on materials and the $2,000 profit that he expected to make. (C) is incorrect. Instead of seeking a damages remedy based on an affirmance of the contract, the nonbreaching party may rescind and sue for restitution for any “benefit” that he has transferred to the breacher in an attempt to perform the contract. The restitution recovery is generally based on the fair market value of the benefit transferred. Here, the contractor can provide the homeowner with the fixtures and seek restitution, but there is nothing to indicate that their fair market value is $4,000. Even if that is the case, however, the contractor has a provable compensatory damages remedy on the contract of $6,000; he will elect that remedy rather than the lesser restitution remedy.
A town adopted an ordinance providing that a person must have been a resident of the town for at least one year to be eligible to vote in school board elections. A resident who moved to the town seven months ago attempted to register to vote in the school board elections scheduled for the next month. However, the town clerk refused to register the resident because he will not have resided in the town for a full year prior to the election. The resident filed a class action suit on behalf of all of the new residents of the town, challenging the validity of the one-year residency requirement. Which of the following statements is correct?
A If the resident’s suit is not heard before the election, it will be dismissed as moot, because the resident will have met the residency requirement by the time of the next annual election.
B The resident will prevail even if the matter is not decided until after next month’s election.
C As long as there is some legitimate purpose for the one-year residency requirement, such as the need to prepare voting lists, the residency requirement will be upheld.
D The resident will lose because one-year residency requirements have been held to be permissible restrictions on the right to vote in local elections.
B
The resident will prevail even if the matter is not decided until after the election, because the suit is not moot and the residency requirement is unconstitutional. The resident’s suit is not moot even if the matter will not be decided until after the election because other members of the class might have a live controversy. Under the case and controversy requirement of the Constitution, there must be a real, live controversy at all stages of the suit. If through the passage of time, the controversy between the parties is resolved, the case is said to be moot. However, there are exceptions to the mootness doctrine. In a class action, it is not necessary that the suit by the named plaintiff be viable at all stages, as long as the claim is viable by some member of the class. Thus, the suit here would not be moot. Moreover, the residency requirement here violates the resident’s fundamental rights to vote and to interstate travel. A restriction on the right to vote is subject to strict scrutiny and is valid only if it is necessary to achieve a compelling state interest (otherwise the restriction violates the Equal Protection Clause by treating new residents differently from old residents). Relatively short residency requirements (e.g., 30 days) have been upheld as being necessary to promote the compelling interest of assuring that only bona fide residents vote. However, the Supreme Court has struck down longer durational requirements for lack of a compelling justification. Thus, the one-year requirement here probably unconstitutionally impinges on the right to vote. The residency requirement also impinges on the fundamental right to travel in the same manner (i.e., it discourages people from migrating by denying them the right to vote without a compelling reason). Thus, the requirement is invalid. (A) is incorrect because, as indicated above, the case will not be moot since other members of the class might have a live controversy. (C) is incorrect because it applies the wrong standard. Because fundamental rights are affected by the residency requirement here, the government must show a compelling justification; a mere rational or legitimate basis is not enough. (D) is incorrect because, as stated above, the Supreme Court has found that there was no compelling interest for a one-year residency requirement in order to vote.
Congress passed legislation banning the hunting of snipe birds within the United States. The range of the snipe is quite limited; they are found primarily in only one state, although they migrate annually to several nearby states. Hunters from throughout the United States have traditionally traveled to the snipe’s home state during snipe hunting season, bringing considerable revenue into the state. A state statute allows hunting of snipe during a two-week period in November and charges a $50 license fee for state residents and a $250 fee for hunters from other states. The bag limit is one snipe bird per licensed hunter.
Is the state statute allowing snipe hunting valid?
A Yes, because states have the right to control their own natural resources and wildlife.
B Yes, because the power exercised is reserved to the states by the Tenth Amendment.
C No, because of the Supremacy Clause.
D No, because of the Commerce Clause.
C
The state statute is invalid because of the Supremacy Clause. Under the Clause, if the federal government adopts legislation that it has the power to adopt, the federal legislation is supreme, and a conflicting state law is rendered invalid. The federal law here, banning the hunting of snipe, is within the federal government’s power under the Commerce Clause, which gives the government power to regulate anything that might affect interstate commerce. Because the birds themselves are found in a few states, they probably cross state lines. Also, hunters come from out of state and generate revenue in the state, so interstate commerce is involved. The state law directly conflicts with the federal law because it allows hunting of snipe. Therefore, the state law will be held invalid under the Supremacy Clause. (A) is incorrect because, while states do have a limited right to control their natural resources, the right is concurrent with the federal government’s power, and cannot be exercised to conflict with federal regulation in the area. Note further that a state’s power to control its natural resources is also limited even if Congress does not act: A state may not adopt a law discriminating against interstate commerce or excessively burdening interstate commerce, even absent federal legislation. Regarding (B), the Tenth Amendment reserves all powers not granted to the federal government to the states. (B) is incorrect because the Court will not likely strike down on Tenth Amendment grounds a federal regulation that subjects state governments to the same regulations as apply to the private sector. In such cases, the states’ interests are best protected by the states’ representation in Congress. (D) is incorrect because the Commerce Clause does not render the state’s action invalid; it merely gives Congress the power to act. It is the Supremacy Clause that makes the interfering state law invalid.
A landowner and her neighbor owned adjoining tracts of land. No public road abutted the neighbor’s land, so the landowner granted the neighbor an express easement over the north 25 feet of the landowner’s land. However, the following month the county extended the public road to the neighbor’s land, and he ceased using the easement for ingress and egress.
Twenty years later, the neighbor conveyed the easement to his friend, who owned the land adjoining the other side of the landowner. The following year, the neighbor conveyed his land to the landowner. None of the parties has used the easement since the public road was extended. The jurisdiction has a 15-year statute of limitations for acquiring property interests by adverse possession.
At what point was the easement extinguished?
A When the neighbor attempted to convey the easement to the friend without conveying the dominant tenement itself.
B Fifteen years after the neighbor ceased using the easement.
C When the neighbor conveyed his land to the landowner.
D The easement was not extinguished.
C
The easement was extinguished when the neighbor conveyed his land to the landowner. An easement is extinguished when the easement is conveyed to the owner of the servient tenement. For an easement to exist, the ownership of the easement and the servient tenement must be in different persons. (By definition, an easement is the right to use the land of another for a special purpose.) If ownership of the two property interests comes together in one person, the easement is extinguished. Thus, (D) is wrong. (A) is wrong because, although an attempt to convey an easement appurtenant apart from the dominant tenement is ineffective, it does not extinguish the easement. The easement continues despite the attempted conveyance and will pass with the ownership of the dominant tenement. (B) is wrong because mere nonuse does not extinguish an easement. An easement may be extinguished by abandonment, but to constitute abandonment sufficient to extinguish an easement, the easement holder must demonstrate by physical action an intent to permanently abandon the easement. Nonuse of the easement is not enough to show the intent never to make use of the easement again.
A pedestrian was injured in a car accident involving two cars. The pedestrian filed a negligence action in federal district court against the first driver, seeking $100,000 in damages. The pedestrian is a citizen of State A and the first driver is a citizen of State B. The first driver then filed a third-party claim against the second driver, claiming that the second driver is responsible for half of the harm caused to the pedestrian and seeking to recover half of any liability the first driver is found to have to the pedestrian. The second driver is a citizen of State A.
Does the federal court have subject matter jurisdiction over the third-party claim asserted by the first driver against the second driver?
A Yes, because the court has supplemental jurisdiction over the third-party claim.
B Yes, because the court has diversity of citizenship jurisdiction over the third-party claim.
C No, because the amount in controversy in the third-party claim is too small.
D No, because complete diversity of citizenship is lacking.
A
The court has supplemental jurisdiction over the third-party claim. Diversity of citizenship jurisdiction is available when (i) there is complete diversity of citizenship, meaning that each plaintiff must be a citizen of a different state from every defendant; and (ii) the amount in controversy exceeds $75,000. In the instant case, the case is properly in federal court because diversity jurisdiction exists for the underlying claim (i.e., the claim by the pedestrian against the first driver), given that the pedestrian is from State A, the first driver is from State B, and the amount in controversy is $100,000. The third-party indemnity claim, however, cannot invoke diversity jurisdiction, even though the first driver is from State B and the second driver is from State A, because the amount claimed is $50,000. This makes (B) an incorrect answer choice. When the federal court has subject matter jurisdiction over one claim, it 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. (Essentially, this means that the supplemental claim must arise from the same common nucleus of operative fact as the claim invoking federal subject matter jurisdiction.) In the instant case, the claims of pedestrian (the underlying claim) vs. first driver and of first driver vs. second driver (the indemnity claim) are derived from the same accident, and thus both are derived from the same common nucleus of operative fact. There are restrictions on the use of supplemental jurisdiction when the use of supplemental jurisdiction would be contrary to diversity jurisdiction. In terms of third-party practice, claims by a plaintiff against an impleaded party may not use supplemental jurisdiction to circumvent the diversity statute. However, claims by a defendant are not listed among the restrictions; thus, supplemental jurisdiction is available to a defendant (third-party plaintiff) against a third-party defendant. Therefore, the first driver may use supplemental jurisdiction to have his claim against the second driver heard in federal court. (This would be true even if they were from the same state, so long as the claim was a true indemnity claim.) As a result, (A) is correct, and (C) and (D) incorrect.
A hockey player who was playing in the final game of the season before a hostile crowd in the opponent’s packed stadium had an opportunity to get his team into the playoffs, but he missed a shot into an open net as the horn sounded, ending the game. As the crowd cheered and jeered, the puck bounced back to him and he shot it in anger toward the stands. A fan who had been looking the other way turned back toward the rink just in time to be struck in the face by the puck. He suffered a broken nose and a severe gash under his eye. After the game, the league commissioner fined the player for violating league rules by intentionally directing the puck out of the playing area.
If the fan sues the player for battery, will the fan likely prevail?
A No, because by attending a hockey game, the fan assumed the risk of pucks being shot into the stands.
B No, because the player did not have the intent to strike the fan with the puck.
C Yes, because the player knew that it was substantially certain that a fan would be hit by the puck.
D Yes, because the player violated league rules by intentionally shooting the puck out of the playing area.
C
The fan will prevail in his battery action because the player had the requisite intent for battery. A prima facie case for battery requires plaintiff to prove (i) an act by defendant that brings about a harmful or offensive contact to the plaintiff’s person, (ii) intent on defendant’s part to bring about harmful or offensive contact, and (iii) causation. The intent element is satisfied as long as the defendant knew with substantial certainty that the harmful or offensive contact would result. Here, the player’s conduct caused a harmful contact to the fan, because the player set into motion the force that caused injury to the fan. His intentionally shooting the puck into the crowded stands is enough to establish that he knew with substantial certainty that the puck would strike a spectator. (Note that even if he only intended to cause apprehension of contact, which is the intent for assault, this intent would suffice for liability for battery under the doctrine of transferred intent.) (A) is wrong because assumption of risk is not a defense to intentional torts. The fan may have assumed a risk of injury from a hockey puck’s being accidentally or even negligently shot into the stands, but he did not assume the risk of a player’s intentionally shooting the puck at a spectator. (B) is wrong because the player need not have intended to strike that fan to be liable. As long as he knew with substantial certainty that a fan would be struck, he is liable even if he did not single out the fan as the target. (D) is wrong. The fact that the player violated league rules when he shot the puck into the stands tends to establish only that a spectator does not impliedly consent to a puck’s intentionally being shot at him, thus negating the defense of consent in a battery action. It does nothing to establish that the player did have the intent to commit a battery.
A landowner possessed a 40-acre tract of land. He had inherited 30 acres and had possessed the other 10 acres for longer than the statutory period necessary to acquire title by adverse possession from a rancher. The landowner entered into a land sale contract promising to convey the 40 acres to a developer. The contract provided that the landowner would convey marketable title. The developer paid the landowner the purchase price and accepted a deed from him. The developer promptly recorded the deed. The rancher, having learned of the sale, brought a successful action against the developer to quiet title. The developer realized for the first time that there were no covenants for title in his deed. The developer brings an action against the landowner.
What is the most likely outcome of the suit?
A The developer will win, because the landowner breached the terms of the contract.
B The developer will win, because the landowner misrepresented the size of the tract.
C The landowner will win, because the terms of the deed control his liability.
D The landowner will win, because the developer was negligent in not checking the covenants of title at the time of closing.
C
The landowner will win because the terms of the deed, not of the contract, control his liability. There is an implied covenant in every land sale contract that at closing the seller will provide the buyer with a title that is “marketable.” Marketable title is title reasonably free from doubt, i.e., title that a reasonably prudent buyer would be willing to accept. It need not be a “perfect” title, but the title must be free from questions that might present an unreasonable risk of litigation. Generally, this means an unencumbered fee simple with good record title. Generally, a title acquired by adverse possession is not considered marketable because the purchaser might be later forced to defend in court the facts that gave rise to the adverse possession against the record owner. Here, the marketability requirement did not have to be implied, it was an express term of the contract. Under the doctrine of merger, the contract merges into the deed, and the terms of the contract are meaningless. Even though the contract specified a “good and marketable title,” it is the deed that controls, and the deed contained no covenants of title. A deed does not incorporate the title terms of a contract. Thus, (A) is wrong. (B) is wrong; it is not supported by the facts. (D) is wrong because the developer’s negligence is irrelevant.
