Mixed MBE Set 11 Q's

A mother was in a nursing home and asked her attorney to draft a deed that would give her farm to her son. The attorney drew up the deed, had the mother properly execute it, and thereafter properly recorded the deed. The attorney then told the son what she had done. The son immediately went to the nursing home and told the mother that he did not want the farm so she should take back the deed. A week later, the mother returned home to the farm. Shortly thereafter, the son died without a will, leaving his wife as his only heir. The mother has brought an action against the wife to quiet her title to the farm. If the mother is successful in this action, what is the likely reason? A. The son's statement to the mother was a constructive reconveyance of the farm. B. The attorney's recording of the deed had no effect because the son was unaware of what was happening. C. The wife is subject to a constructive trust to carry out the son's intent. D. The son never effectively accepted delivery of the deed.

If the mother prevails, it will be because the son never effectively accepted delivery. A deed is not effective to transfer an interest in realty unless it has been delivered, and there must be acceptance by the grantee to complete the conveyance. (D) is the best answer because even though most states presume acceptance, the presumption is rebutted when the grantee expressly refuses to accept the conveyance. (A) is wrong because there is no such thing as a "constructive reconveyance" of land. (B) may look good at first, but it is a minority rule. In most states, acceptance is presumed if the conveyance is beneficial to the grantee, regardless of whether the grantee has knowledge of the conveyance. (C) is wrong because neither the son nor the wife is guilty of any wrongdoing and there is no ground to impose a constructive trust.

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came into the forge and started ridiculing the blacksmith, telling him that he was foolish for practicing such an out-of-date trade when modern equipment could produce the same trinkets faster and far more cheaply.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.

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 man who belonged to an ancient religion whose rituals require the use of bald eagle feathers traveled to an area where bald eagles were known to roost. After searching the area, he found a fallen eagle feather and returned home. A few weeks later, the man showed the feather to an acquaintance, who happened to be a state park ranger, and explained how the feather was obtained. The ranger informed the man that a state anti-poaching law makes any possession of a bald eagle feather without a special permit a crime. The ranger then cited the man for possession of the feather and confiscated it. At the man's trial for violating the state bald eagle feather possession statute, which of the following constitutional arguments is most appropriate for the prosecution to make? A. The statute is a neutral law that only incidentally burdens the man's rights under the First Amendment. B. The Free Exercise Clause applies only to belief and not to conduct. C. The government has a substantial and important interest in protecting bald eagles and there is no other feasible way to achieve the legislative purpose. D. Making an exception for the man on religious grounds would violate the Establishment Clause of the First Amendment.

The best argument for the prosecution is that the Free Exercise Clause does not afford a right to a religious exemption from a neutral law that happens to impose a substantial burden on a religious practice, if the law is otherwise constitutionally applied to persons who engage (or fail to engage) in the particular conduct for nonreligious reasons. Here, the state law interferes with the man's religious beliefs. However, the statute prohibits any possession of a bald eagle feather without a permit. Thus, the state should argue that the law was enacted to protect eagles and not merely to interfere with the religious beliefs of people such as the man here. (B) is incorrect because it is too broad. Conduct is protected (although the protection is limited). For example, the government cannot punish conduct merely because it is religious (although if the law affects both religious and nonreligious conduct, it is generally valid). [See, e.g., Employment Division v. Smith (1990)] (C) is incorrect because it states the former rule in these cases. In the past, the Court used a balancing test to determine whether a religious exemption had to be granted from a law with a secular purpose that happened to burden religious practices or beliefs. The Court would consider the severity of the burden, the strength of the state's interest, and the existence of alternative means. Now, however, the Court no longer uses a balancing test in actions involving state laws; the state need not establish a strong interest or a lack of alternative means if the challenged statute is neutral. (D) could be successfully argued, but its chances for success are not as certain as for the argument in (A). The Establishment Clause prohibits laws respecting the establishment of religion. If a law includes a preference for one religious sect over another, the law will be held invalid unless it is narrowly tailored to promote a compelling interest. If there is no sect preference, the law is valid if: (i) it has a secular purpose; (ii) its primary effect neither advances nor inhibits religion; and (iii) it does not produce excessive government entanglement. Here, no sect preference appears, because nothing indicates that an exception would apply only to members of the man's religion. It could be argued, however, that the only purpose for an exemption here is to favor religious believers over nonbelievers. If that is the purpose, the exemption would not have a secular purpose and would fail the secular purpose test above. On the other hand, the state could argue that free exercise of religion is also protected, and an exemption protects sincerely held religious beliefs. [See, e.g., Wisconsin v. Yoder (1979)] Thus, the outcome of the argument in (D) is uncertain, and (A) is the state's most appropriate argument.

A landowner included in his will a provision giving "all of my property, both real and personal, wherever situated, to my widow for life, and after her death to any of our children who may survive her." What is the gift to the children? A. A contingent remainder. B. A vested remainder. C. A shifting executory interest. D. Void, as violating the Rule Against Perpetuities.

The children have a contingent remainder. A remainder is a future interest created in a transferee that is capable of taking in present possession on the natural termination of the preceding estate created in the same disposition. Note that, as a rule of thumb, remainders always follow life estates. A remainder will be classified as contingent if its taking is subject to a condition precedent, or it is created in favor of unborn or unascertained persons. Here, the interest in the children follows a life estate and is a remainder because it is capable of taking in possession on the natural termination of the preceding estate. It is subject to the condition precedent of surviving the landowner's widow and, additionally, is in favor of unascertained persons (the children who survive the landowner's widow will not be ascertained until her death). Thus, the interest is a contingent remainder. (B) is incorrect because a vested remainder can be created in and held only by ascertained persons in being, and cannot be subject to a condition precedent. As discussed above, the will provision clearly does not satisfy these requirements because the takers are not ascertained and their interest is subject to a condition of survival. (C) is incorrect because a shifting executory interest is one that divests the interest of another transferee; i.e., it cuts short a prior estate created by the same conveyance. The gift to the children does not divest the interest of the widow; she retains a life estate in the property. The children's interest takes in possession only on the natural termination of the widow's estate (i.e., at her death). (D) is incorrect because the interest does not violate the Rule Against Perpetuities. The children's interest will vest, if at all, not later than 21 years after the lives in being. The landowner's widow and the children themselves are lives in being. There is no unborn widow problem because the instrument takes effect on the landowner's death and the gift is to his own widow. She must be in being at his death. Likewise, his children would be in being at his death. Thus, the vesting will be within the period of the Rule.

A husband and a wife were arrested by federal agents and charged with distributing obscene materials through the United States mails. When called before a grand jury, the wife refused to say anything, invoking her Fifth Amendment right to be protected from compelled self-incrimination. The husband was terrified of the grand jury and readily admitted under questioning that he sent obscene matter through the mail. He also incriminated his wife in the illegal activity. The thought of a trial and a prison term drove the husband over the edge, and he committed suicide two days before his trial was to begin. A month later, the wife was put on trial in federal district court. The federal prosecutor seeks to introduce a transcript of the husband's grand jury testimony into evidence against the wife. The defense attorney objects. How should the court rule on the admissibility of the grand jury transcript? A. Admissible, as a vicarious statement of an opposing party. B. Admissible, as former testimony. C. Inadmissible, because the wife can invoke the testimonial privilege, even though her husband is now deceased. D. Inadmissible, because the husband's testimony was not subject to cross-examination.

The grand jury transcript is not admissible because the husband's testimony was not subject to cross-examination. The husband's testimony was hearsay because it was an out-of-court statement offered to prove the truth of the matter asserted. [Fed. R. Evid. 801(c)] If a statement is hearsay, and no exception to the rule is applicable, the evidence is inadmissible. [Fed. R. Evid. 802] Under the former testimony exception to the hearsay rule, the testimony of a now unavailable witness given at another hearing is admissible in a subsequent trial as long as there is a sufficient similarity of parties and issues so that the opportunity to develop testimony or cross-examine at the prior hearing was meaningful. [Fed. R. Evid. 804(b)(1)] The party against whom the former testimony is offered must have had the opportunity to develop the testimony at the prior proceeding by direct, cross-, or redirect examination of the declarant. Thus, the grand jury testimony of an unavailable declarant is not admissible as former testimony against the accused at trial. This is because grand jury proceedings do not provide the opportunity for cross-examination. Therefore, because the husband's testimony was in front of the grand jury and was not subject to cross-examination, it is inadmissible as hearsay. (A) is incorrect because the husband's testimony cannot be considered a vicarious statement of an opposing party. A statement by an opposing party (i.e., a statement made by or attributable to a party and offered against that party) is not hearsay under the Federal Rules. [Fed. R. Evid. 801(d)(2)] A declarant's statement may be attributable to a party because of the relationship between them. For example, statements of one conspirator, made to a third party in furtherance of a conspiracy to commit a crime, may be admissible against co-conspirators. Here, however, the husband's grand jury testimony was not made in furtherance of a conspiracy. Because he was not a party here, and his testimony does not otherwise qualify as a vicarious statement of the wife, it cannot be considered an opposing party's statement. (B) is incorrect because the husband's grand jury testimony was not subject to cross-examination. Federal Rule 804(b)(1) allows the former testimony of an unavailable witness to be admitted under circumstances where the opportunity to develop testimony or cross-examine at the prior hearing was meaningful. The husband was an unavailable declarant because he was unable to testify because of death. [Fed. R. Evid. 804(a)(4)] However, as discussed above, his grand jury testimony is not admissible as former testimony because grand jury proceedings do not provide the opportunity for cross-examination. (C) is incorrect because the testimonial privilege does not belong to the wife in federal court and because it may only be asserted while the marriage relationship exists. In federal courts, this privilege belongs to the witness-spouse. This means that one spouse may testify against the other in criminal cases, with or without the consent of the party-spouse. Thus, while the husband could not have been compelled to testify against his wife, he could not be foreclosed by her from testifying (except as to confidential communications).

A salvage company offered for sale Confederate dollars that had been recovered when the company recently raised a shipwreck off the coast of South Carolina. A purchasing agent for a private west coast museum purchased the bills, but he had represented that he was buying them for himself in hopes of obtaining a lower price. After purchasing the bills, the agent carefully packaged them and had them shipped to his museum. While the bills were in transit, the museum burned to the ground and its owner decided that she would not rebuild because most of her collections had been destroyed. When the bills arrived after the fire, the owner opened the package only to discover that the bills were too brittle for shipping by this method—three bills had disintegrated in transit. Undaunted, the owner took the remaining nine bills and had them mounted behind a glass frame so she could display them in her study. While the bills were being framed, the owner read on the Internet that a large cache of similar bills had just been discovered, and the market price for such bills had just been cut in half. Frustrated but still undaunted, the owner hung the framed bills in her study. Unfortunately, the salt water had reacted with the pigments in the bills in such a way that shortly after they had been exposed to indirect sunlight, all of the color in the bills faded almost completely away. No other Confederate bills raised from the ocean before had similar reactions; these bills appear to have been printed using substandard dyes. Which of the following facts would give the museum owner the best basis for rescinding the contract with the salvage company? A. The bills were too brittle for transport. B. The discovery of a large cache of similar bills a few days after the sale. C. The bills' unusual reaction to indirect sunlight. D. The destruction of the museum before the bills arrived.

The circumstances of (C) offer the best grounds for rescinding the contract based on mutual mistake. When both parties entering into a contract are mistaken about existing facts relating to the agreement, the contract may be voidable by the adversely affected party if (i) the mistake concerns a basic assumption on which the contract is made; (ii) the mistake has a material effect on the agreed-upon exchange; and (iii) the party seeking avoidance did not assume the risk of the mistake. Here, both parties probably believed that the bills would be suitable for display, like other bills that had been raised from the ocean. They had no reason to suspect that the bills would discolor when exposed to indirect sunlight. This occurrence probably rendered the bills nearly worthless, creating a material imbalance in the exchange. Finally, there is nothing to indicate that the museum owner/purchasing agent assumed the risk of what occurred. (A) is incorrect. Since the museum's agent was responsible for transporting the bills, the museum clearly assumed the risk that the bills were too brittle for the type of transport. (B) is incorrect because this is a fact occurring after the contract was made. When both parties entering into a contract are mistaken about existing facts (not future happenings) relating to the agreement, the contract may be voidable by the adversely affected party. Here, the subsequent change in price cannot be considered a mistake that was made at the time the parties entered into their contract. (D) is incorrect because the circumstances do not satisfy the requirements for discharge by frustration. Frustration will exist where the purpose of the contract has become valueless by virtue of some supervening event not the fault of the party seeking discharge. To establish frustration, the following must be shown: (i) there is some supervening act or event leading to the frustration; (ii) at the time of entering into the contract, the parties did not reasonably foresee the act or event occurring; (iii) the purpose of the contract has been completely or almost completely destroyed by this act or event; and (iv) the purpose of the contract was realized by both parties at the time of making the contract. Here, the salvage company thought that the purchasing agent was purchasing the bills for himself; thus, it did not realize at the time the contract was made that the purpose of the contract was to procure the bills for the museum that was subsequently destroyed. Therefore, frustration will not be available as a ground for rescission here.

A plumber working for a company providing plumbing services to commercial and industrial establishments was required to be "on call" for emergency plumbing services 24 hours a day, and was required to drive his company van home each night so he would have all of his tools and equipment at hand for any calls. However, he was not permitted to use the company van for personal errands. On his way home one afternoon, he took a detour toward a supermarket a few blocks away to pick up some items for dinner. While entering the supermarket parking lot, he drove negligently and struck a pedestrian, seriously injuring him. The pedestrian filed suit against the plumber's company in a jurisdiction that maintains traditional common law rules regarding contribution and indemnity, and the jury awarded him $100,000 in damages, which the company paid. If the company sues the plumber to recoup its loss in the lawsuit, which party will prevail? A. The company can recover 100% of the judgment as an indemnity, because the plumber was negligent, not the company. B. The company will prevail, because the company had a rule against using company vehicles for personal errands. C. The company will not prevail, because the company has already been found liable under principles of vicarious liability in the lawsuit by the pedestrian. D. The company will not prevail, because the company required the plumber to be "on call" 24 hours a day.

The company can recover 100% of the judgment under common law indemnity rules. The principle of indemnity permits a shifting between the tortfeasors of the entire loss (i.e., the payment made to satisfy plaintiff's judgment). This is in contrast to contribution, which apportions the loss among those who are at fault. Indemnity is available in vicarious liability situations, where one party is held liable for damages caused by another simply because of his relationship to that person. Hence, an employer such as the plumber's company that has been held vicariously liable under the doctrine of respondeat superior can obtain indemnification from the employee (the plumber) whose conduct actually caused the damage. (B) is incorrect because the company need not show that the plumber breached a company rule before it can obtain indemnity. The fact that the plumber's negligence caused the injury and that the company was liable for the judgment solely because of its relationship to the plumber permits indemnification here. (C) is incorrect because vicarious liability is one of the most common areas where indemnity is available. (D) is incorrect because the company's requirement that the plumber be on call 24 hours a day merely establishes that the company will be vicariously liable for the plumber's negligence; it does not bar the company from recovering from the plumber because the plumber's negligence actually caused the damage.

A horse breeder offered to sell a colt to his neighbor and they agreed on a purchase price. The horse breeder subsequently received a letter from the neighbor thanking him for the sale and summarizing their agreement. The letter contained the neighbor's alleged signature. When the horse breeder attempted to set up transfer of the colt, the neighbor denied that she agreed to purchase it. In a breach of contract action against the neighbor, the horse breeder offers into evidence the letter. The horse breeder testifies that he is familiar with the neighbor's handwriting and recognizes the signature on the letter as being hers. Assuming appropriate objection by the neighbor, who claims that she did not sign the letter, how should the trial court rule on the admissibility of the letter? A. Exclude the letter for lack of foundation because lay opinion testimony regarding handwriting identification is not admissible. B. Exclude the letter unless its authenticity is established by a preponderance of the evidence. C. Admit the letter as authentic and instruct the jury accordingly. D. Admit the letter but instruct the jury that it is up to them to decide whether the letter is authentic.

The court should admit the letter and instruct the jury that it is up to them to decide whether the letter is authentic. Before a writing may be received in evidence, it must be authenticated by proof showing that the writing is what the proponent claims it is. All that is necessary is proof sufficient to support a jury finding of genuineness. The authenticity of a document is a preliminary fact to be decided by the jury. Here, the horse breeder's testimony that he is familiar with the neighbor's handwriting and that he recognizes the signature on the letter to be that of the neighbor is sufficient to support a jury finding of genuineness. Thus, the letter should be admitted and authenticity should be left to the jury to decide. (A) is wrong because a lay witness who has personal knowledge of the handwriting of the supposed writer may state his opinion as to whether the document is in that person's handwriting. (B) is wrong because authentication of documentary evidence requires only enough evidence to support a jury finding that the matter is what its proponent claims it is. It is not required that the proponent establish its genuineness by a preponderance of the evidence. (C) is wrong because, as noted above, where there is a dispute as to the authenticity of a document, the issue of authenticity is a fact determination for the jury, not the judge, to decide.

A father executed a deed to his art gallery "to my daughter for her life, and on my daughter's death to her children; provided, however, that if my daughter stops painting, to my brother." The daughter has two children and is still painting. At the time of the grant, what is the best description of the interest of the daughter's two children? A. A contingent remainder. B. A vested remainder subject to open and to total divestment. C. A vested remainder subject to open. D. An executory interest.

The daughter's two children have a vested remainder subject to open and subject to complete divestment. A remainder is a future interest created in a transferee that is capable of taking in possession on the natural termination of the preceding estate. A remainder is vested if the beneficiaries are ascertainable and their taking in possession is not subject to a condition precedent. A vested remainder created in a class of persons that is certain to take but is subject to diminution by reason of others becoming entitled to take is a vested remainder subject to open. Vested remainders may be subject to total divestment if possession is subject to being defeated by the happening of a condition subsequent. Here, the daughter's two children have a remainder because, on the expiration of the daughter's life estate, they will be entitled to possession of the property. The remainder is not subject to a condition precedent and the beneficiaries are in existence and ascertained, so the remainder is vested, not contingent. The remainder is subject to open because the daughter may have more children. Finally, the remainder is subject to total divestment because the daughter's children's right to possession is subject to being defeated by the daughter's ceasing to paint. (A) is wrong because the remainder is vested, not contingent; i.e., it is not subject to a condition precedent, and the beneficiaries are ascertainable. (C) is not the best answer because it is incomplete. The vested remainder here is also subject to total divestment. (D) is wrong because the children's interest does not divest the daughter's estate, which would indicate an executory interest. Rather, their interest is capable of taking in possession on the natural termination of the daughter's estate, and thus is a remainder.

A plaintiff sued an auto manufacturer for negligence after a car accident involving the plaintiff's car that was made by the auto manufacturer. Sixty days after service of the complaint and 40 days after service of the manufacturer's answer that contained no counterclaim, the plaintiff filed a motion seeking to file an amended complaint adding a claim for strict products liability against the auto manufacturer stemming from the same incident. The statute of limitations for strict products liability claims expired one week before the motion was filed. How should the court rule on the plaintiff's motion? A. Grant the motion, because every party is entitled to amend once as a matter of course. B. Grant the motion, because the amended complaint relates back. C. Deny the motion, because, while the motion is timely, the proposed claim is futile because the statute of limitations has run. D. Deny the motion, because it is not timely.

The court should grant the motion. Federal Rule of Civil Procedure 15 states that leave of court (to grant motions to amend) is to be "freely given when justice so requires." The rule does not provide any clear date when amendments are no longer permissible, although later amendments obviously would be less fair and less likely to be considered in the interest of justice. Additionally, for statute of limitations purposes, proposed claims may be considered to "relate back" to the date of the original pleading in which the claim was made under Rule 15(c). That is critical here because, although the statute of limitations for the proposed products liability claim had expired at the time the motion was made, the amended complaint asserting a products liability claim relates back to the original filing because that claim stems from the same facts alleged in the original complaint, and the statute of limitations had not expired at the time of the original filing. (A) is incorrect because a plaintiff may amend the complaint once as a matter of course (i.e., without court intervention) not later than 21 days after service of the auto manufacturer's answer. Here, 40 days have passed since the auto manufacturer filed its answer, so amending as a matter of course is not permitted. (C) is incorrect. Although the proposed claim would be futile if filed in an original complaint, here, because the claim can relate back to a complaint filed at a time when the proposed claim was still viable, the proposed claim is not considered futile. (D) is incorrect by suggesting that the motion is not timely. Although plaintiff can no longer amend as a matter of course, there is no absolute date pursuant to which a motion to amend is untimely.

A plaintiff filed a civil action based on negligence against a defendant in federal district court, alleging that the defendant negligently ran a red light at an intersection and collided with the plaintiff's vehicle, causing the plaintiff's injuries. A week after the close of discovery, the plaintiff filed a motion for summary judgment on the issue of whether the defendant was negligent. With the motion, the plaintiff filed (i) his own sworn affidavit, which stated that the traffic signal was green as he entered the intersection; (ii) an affidavit of a witness who was driving the car behind him, which stated that the witness saw the entire incident and that the plaintiff's traffic signal was green as he approached and entered the intersection; and (iii) an affidavit of another witness, which stated that she saw the entire incident and that the defendant's signal had been red for several seconds before the defendant entered the intersection and was still red when the defendant entered the intersection. In response to the motion, the defendant filed his own affidavit which stated that he does not recall seeing the traffic signal before entering the intersection, but believes that it was not red. He also filed the affidavit of a pedestrian on the scene. The pedestrian stated that she did not see the traffic signal prior to the accident, but that another passerby told her that the traffic signal was yellow for both drivers. How should the court rule on the plaintiff's motion? A. Grant the motion, because the plaintiff has supported his motion with substantial evidence and the defendant has failed to produce admissible evidence that contradicts the plaintiff's evidence. B. Grant the motion, because the defendant's conduct is still negligent even if the defendant's traffic signal was yellow. C. Deny the motion, because the defendant has presented evidence that contradicts the evidence presented by the plaintiff. D. Deny the motion, because a party may not obtain summary judgment on an issue on which that party has the burden of proof.

The court should grant the motion. Summary judgment may be granted if, from the pleadings, affidavits, and discovery materials, it appears that there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. The court may not decide disputed fact issues on a motion for summary judgment; if there is a genuinely disputed material fact (meaning a dispute backed by evidence on both sides of the issue), the case must go to trial. Here, the plaintiff's evidence that the light was green when he entered the intersection has not been contradicted by admissible evidence. The defendant's affidavit essentially does not dispute the color of the light, as the defendant cannot remember what color it was. The pedestrian's testimony constitutes inadmissible hearsay. Thus, there is no material fact in dispute, and the motion should be granted. (Alternatively, the court could delay in ruling on the motion to give the defendant an opportunity to find the unavailable witness who spoke with the pedestrian. However, that is not an answer choice, and it is unclear from the facts whether that witness could even be found.) (B) is not correct, as it would become a matter for the jury to decide if running a yellow light is negligent. (C) is incorrect because the defendant has not produced admissible evidence that contradicts the plaintiff's position. (D) is an incorrect statement of the law. Summary judgment may be granted on an issue as to which the party has the burden of proof.

A patient properly sued her doctor in federal court for medical malpractice. At trial, the doctor's attorney called four well-known experts in the field who uniformly agreed that the doctor acted within the normal standard of care in treating the patient. The patient's attorney called only one young and inexperienced expert who opined that the doctor did not act within the normal standard of care; however, he contradicted himself on the stand and could not answer certain simple questions. During the trial, no motions were made by the doctor's attorney. Surprisingly, the jury returned a verdict in favor of the patient, and the doctor's attorney filed a renewed motion for judgment as a matter of law 22 days after the judgment was entered. Will the court grant the motion? A. Yes, because the judgment was based on a verdict that a reasonable jury would not have had a legally sufficient basis to reach. B. Yes, because there was no genuine dispute of material fact and the moving party was entitled to judgment as a matter of law. C. No, because the doctor did not move for a judgment as a matter of law during the trial. D. No, because a renewed motion for judgment as a matter of law must be filed within 21 days after the judgment is entered.

The court should not grant the motion. A judgment notwithstanding the verdict ("JNOV") is now called a renewed motion for a judgment as a matter of law. To be valid, the party making the renewed motion must have moved for judgment as a matter of law at some time during the trial. Here, the doctor never moved for a judgment as a matter of law during the trial. Therefore, his motion for a renewed judgment as a matter of law will be denied. (A) is wrong. Although it states the correct standard of review for a renewed motion for judgment as a matter of law (the judgment was based upon a verdict that a reasonable jury would not have had a legally sufficient basis to reach a verdict), the problem in this question is that the doctor failed to move for a judgment as a matter of law at trial. Therefore, this motion cannot even be considered. (B) is wrong because this is the standard used to review a motion for summary judgment. (D) is wrong because it is a misstatement of law. A renewed motion for judgment as a matter of law must be filed no later than 28 days after the judgment is entered, not 21 days.

A contractor filed a breach of contract action against a supplier in federal district court, seeking compensatory damages. The contractor does not seek, and under applicable law cannot recover, punitive damages. The supplier admits the existence of the contract but denies breach. The contractor served on the supplier an interrogatory asking the supplier to state his net worth. Assuming the supplier objects to the interrogatory and the contractor files a motion to compel an answer, will the court require the supplier to answer? A. Yes, because the requested information is relevant. B. No, unless the contractor seeks the information to determine whether the supplier has sufficient assets to make the action worthwhile. C. No, because the request seeks privileged information. D. No, because the requested information is not relevant to the claim or defense of any party.

The court will not require the supplier to answer. In general, discovery may be had of any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case. Here, the supplier's net worth is not relevant to any party's claim or defense because the contractor does not seek punitive damages. Thus, (A) and (B) are incorrect. (C) is incorrect because the supplier's net worth does not fall within any privilege or work product protection. Privileged information means information that is protected under various evidentiary privileges (e.g., attorney-client privilege, physician-patient privilege). Material prepared in anticipation of litigation and the work product of an attorney are also afforded protection under the Federal Rules. These protections are not applicable to the information sought.

To satisfy a debt owed to a creditor, a son executed and delivered to the creditor a warranty deed to a large tract of undeveloped land. The creditor promptly recorded the deed. Shortly thereafter, she built a house on the property and has lived there ever since. The son never actually owned the land. It belonged to his father, but the father had promised to leave the property to the son. Later, the father died and his will devised the property to the son. Pressed for money, the son then sold the land to an investor by warranty deed, which the investor promptly recorded. Although the investor paid full value for the property, he purchased it strictly for investment and never visited the site. He therefore did not realize that the creditor was living there, and knew nothing of the son's earlier deed to the creditor. The jurisdiction in which the land is located has the following statute: "A conveyance of an estate in land (other than a lease for less than one year) shall not be valid against any subsequent purchaser for value without notice thereof unless the conveyance is recorded." Which of the following is the most likely outcome of a quiet title action brought by the creditor against the investor? A. The creditor prevails, because the son had no title to convey to the investor. B. The creditor prevails, because the investor was not a purchaser for value without notice of the creditor's interest. C. The investor prevails, because under the doctrine of estoppel by deed, title inures to the benefit of the original grantee only as against the grantor. D. The investor prevails, because under the recording acts, the deed from the son to the creditor was not in the chain of title and hence did not constitute notice to the investor.

The creditor will prevail in a suit to quiet title because the investor had notice of the creditor's interest in the property and, thus, is not a bona fide purchaser for value. When a grantor purports to convey property that he does not own, his subsequent acquisition of title to that property vests in the grantee under the doctrine of estoppel by deed. Most courts, however, hold that this is personal estoppel, which means that title inures to the grantee's benefit only as against the grantor, not a subsequent bona fide purchaser. If the grantor transfers his after-acquired title to an innocent purchaser for value, the bona fide purchaser gets good title. There is a split of authority as to whether the original grantee's recordation of the deed imparts sufficient notice to prevent a subsequent purchaser from being a bona fide purchaser, but the majority view is that it does not because it is not in his chain of title. Thus, it is not the fact that the creditor recorded that prevents the investor from being a bona fide purchaser. The fact that the creditor built a home and was living on the property gave the investor constructive notice of her interest. A title search is not complete without an examination of possession. If the possession is unexplained by the record, the subsequent purchaser is charged with knowledge of whatever an inspection of the property would have disclosed and anything that would have been disclosed by inquiring of the possessor. Therefore, the investor is charged with knowledge of the creditor's possession and with what the creditor would have told him about her possession; i.e., that the property was conveyed to her by the son prior to his conveyance to the investor. Consequently, the investor does not qualify as a bona fide purchaser, and (C) is an incorrect choice. (A) is incorrect because, although the son is estopped to deny that he acquired title for the benefit of the creditor, he could have conveyed valid title to a subsequent purchaser for value who had no notice of the creditor's interest. Therefore, it is not exactly correct to say that the son had no title to convey. (D) is incorrect because the investor will not prevail. It is true that under the recording acts the creditor's deed was not in the chain of title, but the investor still does not qualify as a bona fide purchaser. The investor is on inquiry notice arising from the creditor's possession of the property.

The defendant was fired from his sales job while calling on customers in another city. He failed to return the company car that he was using for his sales visits; instead, he sold the car to a "chop shop" for cash. As to the car, what crime has the defendant committed? A. Larceny. B. Larceny by trick. C. Embezzlement. D. Theft by false pretenses.

The defendant has committed embezzlement because a court will probably find that he had "possession" of the car at the time he appropriated it. Embezzlement is the fraudulent conversion of the property of another by a person in lawful possession of it. In the instant case, the car belonged to the company for which the defendant worked, but the company probably gave the defendant lawful possession of it so that he could make sales calls. When he sold the car rather than return it, he wrongfully converted the car. This is embezzlement. (A) is incorrect. Larceny is the taking and carrying away of the property of another by trespass with the intent to permanently deprive the person of the property. The intent to permanently deprive must be concurrent with the taking and carrying away. In the instant case, the defendant did not have the intent to permanently deprive the company of the car when he was given the car. Thus, the intent element is missing. (B) is also incorrect. Larceny by trick is a specialized form of larceny. For larceny by trick, the defendant must acquire possession of the property by some misrepresentation concerning a present or past fact. The defendant did not come into possession of the car by misrepresentation, making (B) incorrect. For similar reasons, (D) is also incorrect. The crime of false pretenses is the obtaining of title to the property of another by an intentional (or knowing) false statement of past or existing fact with the intent to defraud. As with larceny by trick, the defendant here came into possession of the vehicle without use of a misrepresentation. Furthermore, he also never obtained title to the car. Thus, (D) is an incorrect answer.

A dog owner lived next door to a day care center. Because he had a large yard and there were no applicable zoning restrictions, he installed a kennel and began training attack dogs to sell to businesses. As soon as he opened the business and posted signs in front advertising the exceptional ferocity of the dogs, some parents who had children enrolled in the day care center became alarmed at the prospect of the dogs right next to the yard where the children played, especially because the children could see and hear the dogs being taught to attack people. Within a few months of the dogs' arrival next door, the owner of the day care lost 10% of her enrollment. If the day care owner brings a nuisance action against the dog owner, what will be the most critical factual issue that the trier of fact must resolve to determine who should prevail? A. Whether the day care owner suffered other damages in addition to her economic losses. B. Whether the day care owner's use of her property makes her business abnormally sensitive to the presence of the dogs. C. Whether the dog owner conducted his business with reasonable care. D. Whether the dog owner was apprised of the day care owner's concerns and did nothing to alleviate them.

The determining factor for the day care owner in prevailing will be whether her use of the property is abnormally sensitive to the presence of the dogs. Nuisance is an invasion of private property rights by conduct that is either intentional, negligent, or subject to strict liability. Strict liability will be the basis for a nuisance action (sometimes called an "absolute" nuisance or a "nuisance per se") when wild animals or abnormally dangerous domestic animals are involved, or when defendant is engaged in an abnormally dangerous activity. Thus, dogs known by their owner to be vicious may create a private nuisance when they interfere with the use and enjoyment of the land next door, and the owner may be subject to strict liability because of his knowledge of the dogs' dangerous propensities. [See Restatement (Second) of Torts §822, comment j] For the presence of the dogs to be an actionable nuisance, however, they must result in a substantial interference with the day care owner's use of her land. The interference will not be characterized as substantial if it is merely the result of plaintiff's specialized use of her own property. [See Foster v. Preston Mill Co., 268 P.2d 645 (1954)-D not strictly liable for blasting operations that caused female mink on P's ranch to kill their young in reaction to the vibrations] Hence, (B) states the most critical factual issue. (A) is incorrect because the day care owner does not need to establish other types of damages to recover once she has established that the dog owner's activity is an actionable interference with the use and enjoyment of her land. (C) is incorrect because the exercise of reasonable care by the dog owner is irrelevant; the day care owner's nuisance action arises from an activity for which the dog owner is strictly liable. (D) is incorrect because the dog owner's knowledge of his interference with the day care owner's use of her property would only establish that his conduct might also be an intentional nuisance, which would require the day care owner to show unreasonableness, i.e., that her injury outweighs the utility of his conduct. She does not need to make that showing for a nuisance action based on strict liability.

Using his cellphone, a witness recorded a speeding driver hitting a pedestrian. The witness sold the recording to the driver. The driver then gave the recording to his attorney. After the pedestrian filed suit against the driver, the pedestrian sent a discovery request to the driver requesting that he produce "all items that show or describe the accident." Which of the following best describes whether the driver must provide the video, or a copy of it? A. The driver must provide the video because it is relevant to the pedestrian's claim. B. The driver need not provide the video because, although relevant to the pedestrian's claim, it would be damaging to the driver's defense. C. The driver need not provide the video because he paid money for it, entitling him to possess it. D. The driver need not provide the video unless the pedestrian can show substantial need and the inability to obtain the equivalent without undue hardship, because the video constitutes work product.

The driver must provide the video. Parties are entitled to discovery that fits under Rule 26(b) (1), which includes "any nonprivileged matter that is relevant to any party's claim or defense." In other words, even if the matter is only relevant to the opposing party, it would still be covered. Additionally, Rule 34 requires a party to produce relevant physical material, including electronically stored information, such as the recording here. There is no exception to relevance for matter that is damaging to a party, so (B) is incorrect. (Being damaging to the defendant's defense might be reason not to disclose it as an initial disclosure because the defendant would not use the recording to support his defense, but the recording would have to be disclosed on a proper request.) (C) is also incorrect. There is no exception from the scope of discovery for items that were purchased; discovery encompasses all items in a party's possession or control. Furthermore, although the recording is in the attorney's possession, this should be interpreted as under the party's control. (D) is incorrect because, while it states the rule for when work product must be provided, there is no work product involved. Mere possession by an attorney of factual information does not constitute work product that is exempt from discovery. Rather, work product is material created by a party or a representative (such as an attorney) prepared in anticipation of litigation. This recording was not created by the party or any representative of the party, and therefore it is not work product.

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.

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 vintner divided his vineyard into two parcels, drawing the boundaries so that the single well that had irrigated the entire vineyard fell on the border of the two properties. The vintner then conveyed the eastern parcel to his friend by a deed that contained the following covenant: "If the well located on the boundary of the eastern and western parcels continues to be used for irrigation purposes and becomes in need of repair or replacement, the grantee, his heirs, and assigns and the grantor, his heirs, and assigns each promise to pay one-half of the cost of such repair or replacement. This covenant shall run with the land." The deed from the vintner to the friend was not recorded, and the vintner did not record a copy of the deed with the records for the western parcel. The friend later sold the eastern parcel to a farmer. The farmer's deed did not contain the covenant about the well. After 15 years of use by the owners of both the eastern and western parcels, the well began to fail. The farmer took it upon himself to have the well repaired at a cost of $30,000. About two weeks later, the farmer discovered the deed from the vintner to the friend in some old files. By this time, the western parcel had passed to the vintner's son by inheritance and again to the son's daughter by inheritance from the now-deceased son. The daughter knew nothing of the covenant concerning the well. The farmer presented the daughter with the bill for the well repair with a copy of the vintner/friend deed and a note that said he expected to be reimbursed for $15,000. The daughter refuses to pay, and the farmer sues. The jurisdiction has a 10-year statute of limitations for acquiring property by adverse possession, and the following recording statute: "Any conveyance of an interest in land shall not be valid against any subsequent purchaser for value, without notice thereof, unless the conveyance is recorded." For whom is the court most likely to rule? A. The daughter, because the deed from the vintner to the friend was never recorded. B. The daughter, because the farmer has acquired the well by adverse possession. C. The farmer, because the covenant runs with the land. D. The farmer, because he is a bona fide purchaser.

The farmer will most likely prevail in his suit for one-half the cost of the well repairs because the covenant runs with the land. When a covenant runs with the land, subsequent owners of the land may enforce or be burdened by the covenant. If all of the requirements for the burden to run are met, the successor in interest to the burdened estate will be bound by the arrangement as effectively as if he had himself expressly agreed to be bound. To be bound: (i) the parties must have intended that the covenant run with the land; (ii) the original parties must have been in horizontal privity; (iii) the succeeding party must be in vertical privity with the original promisor; (iv) the covenant must touch and concern the land; and (v) generally, the burdened party must have actual or constructive notice of the covenant. Here, the intent is shown by the express language of the covenant, which says that it is intended to run with the land. Even without that language, the use of the words "heirs" and "assigns" would show the intent for the covenant to run. The original parties were in horizontal privity because at the time the vintner entered into the covenant, he and the friend shared an interest in the land independent of the covenant—as grantor and grantee. The daughter is in vertical privity with the vintner because she holds the entire interest in the western parcel held by the vintner. The covenant touches and concerns the land because promises to pay money to be used in a way connected with the land are held to touch and concern the property. Because the daughter was unaware of the covenant, the required notice seems to be missing. While it is generally true that the owner of the burdened land must have notice, it should be remembered that the requirement is a function of the recording statute. (At common law, the covenant was enforceable in an action for damages regardless of notice; this was changed by the recording statutes.) However, because the daughter is a donee (an heir) and not a bona fide purchaser, she is not protected by the recording statute and thus is subject to the covenant even without notice. For that reason, (A) is wrong. (B) is wrong because the farmer's possession does not satisfy several of the requirements for adverse possession. Because the farmer had a legal right to use the well, his use was not adverse or hostile to the rights of the vintner's son and the son's daughter, but was rather permissive. The farmer's possession also fails the exclusivity requirement because the facts state that the well was used to irrigate both parcels for most of the statutory period. (D) is wrong because the farmer's status as a bona fide purchaser has no effect on his ability to enforce the covenant. A successor in interest to the original promisee may enforce the covenant (enjoy the benefit) if there was intent and vertical privity, and the covenant touches and concerns the land. Notice is not required for the benefit to run. Thus, because the above requirements are met here, the farmer may enforce the covenant regardless of his status as a bona fide purchaser. Had the farmer taken the property as a donee, the above analysis would be the same.

The governor of an arid western state owned a vacation home and permitted his son to have a party there. At the end of the night the son failed to properly extinguish a bonfire that he and his friends had built, and within a few hours, wind-blown cinders had spread the fire to the trees east of the lodge. At the same time several miles away, a worker at a lumber mill was making emergency repairs to a pipe running between two mill buildings. He did not notice some of the sparks from his welding torch land in a pile of dried lumber and catch fire, and he failed to check the area after he was finished. By the time the fire was noticed by another employee, it was out of control. The wind blew both fires toward a landowner's hunting lodge. They merged a mile away and shortly thereafter totally consumed the lodge. For political reasons, the landowner did not bring a lawsuit against the governor or his son. He did, however, file a lawsuit against the lumber mill, alleging that its employee's negligence caused the destruction of his lodge. Evidence at trial established that either fire alone would have destroyed the lodge as well. Can the landowner recover from the lumber mill? A. No, because the landowner's lodge would have been destroyed regardless of the conduct of the lumber mill's employee. B. No, because the damage is indivisible and cannot be apportioned unless the landowner adds the other tortfeasor to the lawsuit. C. Yes, because the negligence of the lumber mill's employee was a cause of the landowner's injury. D. Yes, but the landowner can recover only 50% of his damages from the lumber mill.

The landowner can recover the full amount of his damages from the lumber mill because the negligence of its employee caused the destruction of the lodge. Before a defendant will be liable for a breach of duty to the plaintiff, it must be shown that the breach was the actual and proximate cause of the injury. The general test for determining whether an act or omission is the actual cause of the injury is the "but for" test, i.e., whether the injury would not have occurred but for the act or omission. Under certain circumstances, however, the "but for" test is inadequate to determine actual cause. Where several causes combine to bring about an injury—and any one alone would have been sufficient to cause the injury—the actual cause requirement is satisfied if defendant's conduct was a substantial factor in causing the injury. Under this analysis, the fire started by the lumber mill employee was an actual cause of the destruction of the landowner's lodge because it was a substantial factor in causing the harm. It was also a proximate cause of the harm because no intervening forces broke the causal connection between the act and the harm. Because its employee was acting within the scope of his employment when he caused the fire to start, the lumber mill is vicariously liable for the injury that resulted. (A) is incorrect because the "but for" test is not applicable to these facts. Under that test, neither fire would be the actual cause of the harm because, looking at either fire alone, the harm would have occurred even without it. However, under the substantial factor test, both fires are actual causes of the injury. (B) is incorrect even though it is true that the damage is indivisible. The landowner can still recover from the lumber mill even if he does not sue the other tortfeasor. (D) is incorrect because joint and several liability rules allow the landowner to recover his full damages from the lumber mill. Where two or more tortious acts combine to proximately cause an indivisible injury to plaintiff, each tortfeasor will be jointly and severally liable for that injury, even though each defendant acted entirely independently. The effect of joint and several liability is that the plaintiff may recover the entire amount of the damages from any tortfeasor, who then may have a right of contribution from the other tortfeasor. Hence, even though the negligence of another tortfeasor was also an actual cause of the destruction of the landowner's lodge, the landowner is entitled to recover all of his damages from the lumber mill.

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.

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.

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.

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 businesswoman entered into a written contract with a general contractor to build a studio and broadcast transmitter for $3 million by July 1. Among his tasks, the contractor was to install underground cables and fiberoptic lines necessary to broadcast. When digging the deep trench necessary to lay the conduit containing the fiberoptic lines, the contractor encountered a stretch of extremely soggy soil. This was an indication that an offshoot of the nearby city's aquifer underlay the property. This was not indicated on any of the geological survey maps available in the office of the county recorder of deeds. The contractor told the businesswoman that it would cost an additional $50,000 to lay the conduit through that stretch of soil. The businesswoman had already launched an advertising campaign indicating that the station would begin broadcasting on July 4, which was rapidly approaching. Therefore, when the contractor threatened to quit the job without the additional $50,000, the businesswoman reluctantly agreed orally to the contractor's demand as long as he promised that all of the work would be completed by the middle of June. The contractor agreed, proceeded to lay the conduit, and completed building the studio and transmitter by June 15. The businesswoman paid the contractor $3 million, but when the contractor demanded $50,000 more, she refused to pay it. The contractor sues the businesswoman for the $50,000. Who will prevail? A. The businesswoman, because the oral modification was not effective to alter the prior written agreement. B. The businesswoman, because no valid consideration was provided for the agreement to pay the additional $50,000. C. The contractor, because the modification was supported by consideration. D. The contractor, because he detrimentally relied on the businesswoman's promise to pay the additional $50,000.

The original contract was modified by the parties, and this modification discharged the payment term of the original contract ($3 million) and replaced it with a new payment term ($3,050,000). If a contract is subsequently modified by the parties, this will serve to discharge those terms of the original contract that are the subject of the modification. Generally, a modifying agreement must be mutually assented to and supported by consideration. In most cases, consideration is found to be present in that each party has limited her right to enforce the original contract as is. Generally, if a modification will benefit only one of the parties, it may be unenforceable without some consideration being given to the other party. If, however, a promisee has given something in addition to what he already owes in return for the promise he now seeks to enforce, or has in some way agreed to vary his preexisting duty, there is consideration. Here, the businesswoman agreed to pay the contractor an additional $50,000 and the contractor agreed to complete the work early—by mid-June instead of July 1. Thus, there was sufficient consideration to support the modification. Note that this modification may have been enforceable without consideration. Under the modern view, a modification is enforceable without consideration if the modification is fair and equitable in view of the unanticipated circumstances. Here, the aquifer did not appear on city surveys, so the soggy soil was not anticipated. The $50,000 represented the electrician's additional cost, so the modification seems fair. (A) is incorrect because neither the Statute of Frauds nor the parol evidence rule affects the validity of the oral modification. The Statute of Frauds does not require a writing for the modification of a construction contract, and parol evidence can be offered to show subsequent modifications of a written contract. (B) is incorrect because, as explained above, the contractor's agreement to vary his contractual duty by promising to perform all of the work by a date earlier than that originally agreed to constitutes consideration sufficient to support the businesswoman's promise to pay the additional $50,000. (D) is incorrect because the electrician was already obligated to perform; i.e., he was already obligated to do the job he did in reliance on the businesswoman's promise. Therefore, fulfilling his duty cannot be detrimental reliance.

A landowner validly conveyed a small office building to the Green Party "as long as they use it for operating quarters until the next presidential election." After the next presidential election, which was in three years, the building would go to a private organization that monitors and prepares comprehensive listings of gas prices throughout the country. A year after the conveyance, the landowner died, validly devising all of her property to her son. Although this jurisdiction is a common law jurisdiction with respect to all real property considerations, the state's probate laws provide that future interests or estates in real property may be passed by will or descent in the same manner as present or possessory interests. Last week, the Green Party and the gas monitoring organization joined together to sell the office building in fee simple absolute to a developer. The son filed suit to prevent the sale of the property to the developer. In this action, who should prevail? A. The Green Party and the gas monitoring organization, because together they own a fee simple absolute in the building. B. The Green Party and the gas monitoring organization, because the attempted restrictions on the use of the property violate the Rule Against Perpetuities. C. The Green Party and the gas monitoring organization, because the deed restriction was an unlawful restraint on alienation. D. The son, because he did not sign the contract of sale.

The son may enjoin the sale because he has an interest in the property. A fee simple determinable is an estate that automatically terminates on the happening of a stated event. The Green Party's interest in the office building is a fee simple determinable because it lasts as long as the Party is using the building for operating quarters. However, the grant does not provide for the contingency of the Green Party ceasing to use the building as operating quarters before the next presidential election. This gap would be filled by a possibility of reverter retained by the landowner. Because the landowner passed that interest to her son in her will, there can be no contract to sell the property without his signature. Note: Although the gas monitoring organization appears to have an indefeasibly vested remainder (i.e., it is created in an ascertained company, is certain to become possessory, and is not subject to being defeated, divested, or diminished in size), its interest is not capable of taking on the natural termination of the preceding estate and so is characterized as a springing executory interest. (A) is wrong because the son also has an interest in the land. (B) is wrong because the interest in the office building will pass to the gas monitoring organization, if at all, within 21 years. (C) is wrong because the Green Party is not prohibited from transferring any interest; it could pass a defeasible fee.

A father and his son were arguing on the front lawn of the son's house. The father, who was a bigger and slower man, attempted to end the argument by pushing his son as hard as he could. The son, fearful that his father would continue to escalate the fight as he has done in the past, tackled the father and pinned him to the ground, although the son could have easily escaped into his house. If the son is tried for battery, should he be found guilty? A. Yes, because the son "offensively touched" his father by tackling and pinning him. B. Yes, because the son could have retreated. C. No, because the son was justified in tackling and pinning his father. D. No, because the son did not intend to hurt his father.

The son should be found not guilty. Battery is an unlawful application of force to the person of another resulting in either bodily injury or an offensive touching. Battery is not a specific intent crime; criminal negligence meets the state of mind requirement for battery. Given that the son tackled and pinned the father, an offensive touching occurred. Furthermore, the state of mind requirement has been satisfied because the "criminal negligence" state of mind is satisfied by an intentional act—i.e., acting with a higher state of mind satisfies a lower state of mind requirement. However, the son can raise the defense of self-defense: A person is entitled to use such force as he reasonably believes is necessary to protect himself against the use of unlawful force on himself. Here, the son was fearful that the father would escalate the fight because the father had done so in the past. Thus, it appears that the son was justified in using nondeadly force to prevent a further battery upon his person. As a result, (C) is the correct answer. (A) is incorrect because it does not account for self-defense. (B) is incorrect because one has no duty to retreat before using nondeadly force. (D) is incorrect because it implies that the intent to cause harm is an element of the crime of battery. As stated above, battery is a general intent crime requiring, at a minimum, criminal negligence. Furthermore, actual physical harm is not required—an "offensive touching" suffices.

Congress enacted a statute that purported to ban all discrimination against African-Americans in any commercial transaction taking place within the United States. Would the statute most likely be held constitutional? A. Yes, under Thirteenth Amendment provisions barring badges or incidents of slavery. B. Yes, because the federal government has an important interest in furthering the equal protection provisions of the Fourteenth Amendment. C. No, because Congress's powers under the Commerce Clause do not extend so far as the statute would require. D. No, because commercial transactions are not among the privileges or immunities of national citizenship.

The statute is constitutional as a legitimate exercise of congressional enforcement powers under the Enabling Clause of the Thirteenth Amendment. The Thirteenth Amendment prohibits slavery. The Enabling Clause of the amendment has been held to confer on Congress the authority to proscribe almost any private racially discriminatory action that can be characterized as a badge or incident of slavery. Because the statute at issue bans all discrimination against African-Americans in commercial transactions, it necessarily reaches private conduct. Such congressional action is constitutionally permissible pursuant to the Thirteenth Amendment. (B) is incorrect. Application of the Fourteenth Amendment has been limited to cases involving state action. [See United States v. Morrison (2000)] The statute here reaches private action, and so the Thirteenth Amendment is the correct source for the law, since that amendment addresses private action. (C) is incorrect because, even if Congress's power over interstate commerce would not reach every commercial transaction, the statute would be enforceable under the Thirteenth Amendment, as discussed above. (D) is incorrect because it is irrelevant. While it is true that the commercial transactions here are not among the privileges or immunities of citizenship (which include rights such as the right to petition Congress for redress and the right to interstate travel), the law can be based on the Commerce Clause or the Thirteenth Amendment, and thus is constitutional.

A statute in the jurisdiction, which was enacted with the express purpose of preventing public employees from taking advantage of the status of undocumented immigrants, made it a felony to accept money or other benefits in exchange for issuing a state identification card. During an undercover investigation, an undocumented immigrant was recorded offering $500 to a clerk in exchange for issuance of a card. The clerk agreed to the deal and later that day exchanged the card for the money, after which both parties were arrested. In a jurisdiction following the common law approach to conspiracy, which of the following statements is correct? A. The clerk can be convicted of violating the statute and conspiracy to violate the statute, and the undocumented immigrant can be convicted of no crime. B. The clerk can be convicted only of violating the statute, and the undocumented immigrant can be convicted of no crime. C. The clerk can be convicted only of violating the statute, and the undocumented immigrant can be convicted as an accomplice to violation of the statute. D. The clerk can be convicted of violating the statute and conspiracy to violate the statute, and the undocumented immigrant can be convicted of conspiracy to violate the statute.

The undocumented immigrant cannot be convicted of a crime under the statute because it was enacted for his protection, and the clerk cannot be convicted of conspiracy under the statute because the undocumented immigrant, who would otherwise be liable as an accomplice, is not subject to conviction because of a legislative intent to exempt him. If a statute is intended to protect members of a limited class from exploitation or overbearing, members of that class are presumed to have been intended to be immune from liability, even if they participate in the crime in a manner that would otherwise make them liable. Thus, the undocumented immigrant would not be liable as an accomplice under the statute, making (C) incorrect. The clerk clearly can be convicted for the substantive offense, but he cannot be convicted of conspiracy. One of the implications of the common law requirement that there be at least two guilty parties in a conspiracy arises when the crime involves members of a class protected by the statute. If members of a conspiracy agree to commit an act that violates a statute designed to protect persons within a given class, a person within that class not only cannot be guilty of the crime itself, as discussed above, but also cannot be guilty of a conspiracy to commit the crime. (D) is therefore incorrect. Because the member of the protected class cannot be guilty of conspiracy, if no other guilty party exists, the other member of the agreement cannot be guilty of criminal conspiracy because there were not two guilty parties to the agreement. Thus, because the undocumented immigrant cannot be convicted of conspiracy under the statute, neither can the clerk. (A) is therefore incorrect and (B) is correct.

A minor league ballplayer hit a fly ball over the wall and out of the park during a game and struck a woman riding along the adjacent street on a bicycle. The woman sued the ballplayer for negligence. The woman alleged that the ballplayer had often hit balls out of the park and was aware that he had previously struck a car driving down the street. Assuming the woman's allegations are correct, is she likely to prevail? A. Yes, because the ballplayer was aware that someone on the street could be struck by a ball he hit. B. Yes, because the woman was in the zone of danger from the balls flying out of the park. C. No, because the ballplayer was not aware of the woman's presence on the street. D. No, because the ballplayer did not breach a duty of care towards the woman.

The woman will not prevail because the ballplayer's conduct did not breach any duty owed to the woman. The prima facie case for negligence requires the plaintiff to show: (i) a duty on the part of the defendant to conform to a specific standard of conduct for the protection of the plaintiff against an unreasonable risk of injury; (ii) breach of that duty by the defendant; (iii) that the breach was the actual and proximate cause of the plaintiff's injury; and (iv) damage to the plaintiff's person or property. Whenever a person engages in an activity, he is under a legal duty to act as an ordinary, prudent, reasonable person engaged in the same or similar activity. If a defendant's conduct creates an unreasonable risk of injury to persons in the position of the plaintiff, the general duty of care extends from the defendant to the plaintiff. Here, there is some risk of injury to those outside the park based on previous occurrences. However, there are no precautions that the ballplayer could have undertaken that would not directly conflict with the requirements of his job and harm his career. On balance, the burden on the ballplayer to avoid any risk of injury far outweighs the likelihood of a ball hit by him clearing the wall and causing injury to someone. Hence, the ballplayer's conduct did not create an unreasonable risk of injury to the woman and he did not breach a duty of care owed to her. Thus, she is not likely to prevail.

While at a party, the defendant ran into an acquaintance. The acquaintance proceeded to ridicule the defendant about his looks. After an hour of verbal abuse by the acquaintance, the defendant suddenly took a champagne bottle that was on a nearby table and struck the acquaintance over the head, killing him instantly. At his arrest, the defendant told the police that voices inside his head told him to shut the acquaintance up, permanently. The defendant was tried in a jurisdiction that follows the Model Penal Code test for insanity. At trial, the defendant's lawyer introduced psychiatric testimony indicating that the defendant suffered from a mental illness. Which of the following, if proved by the defense, would most likely relieve the defendant of criminal responsibility? A. The defendant's actions were a product of his mental illness. B. The defendant could not appreciate the criminality of killing the acquaintance, or he could not conform his conduct to the requirements of the law. C. The defendant did not know that killing the acquaintance was wrong, or he could not understand the nature and quality of his actions. D. The defendant was unable to control himself or conform his conduct to the law.

This choice states the Model Penal Code test. Pursuant to the Model Penal Code, a defendant is entitled to acquittal if he suffered from a mental disease or defect and as a result lacked substantial capacity to either: (i) appreciate the criminality of his conduct; or (ii) conform his conduct to the requirements of law. (A) is wrong because it would be helpful only if the jurisdiction followed the Durham insanity test, pursuant to which a defendant is entitled to acquittal if his crime was the product of mental disease or defect. (C) is wrong because it presents a valid defense under the M'Naghten rule, which provides for acquittal if a disease of the mind caused a defect of reason, such that the defendant lacked the ability at the time of his actions to either: (i) know the wrongfulness of his actions; or (ii) understand the nature and quality of his actions. (D) is wrong because it presents the irresistible impulse test, which provides for acquittal if, because of mental illness, the defendant was unable to control his actions or to conform his conduct to the law. Note that the Model Penal Code test combines the M'Naghten and irresistible impulse tests. Thus, choices (C) and (D) contain elements of the Model Penal Code test, but are not as good as (B) because the question asks for the set of facts that gives the defendant the greatest likelihood of being relieved of criminal liability. Therefore, (B), which sets forth the complete test used in the jurisdiction, is the best choice.

An electronics company sued a competitor in federal court for patent infringement, alleging that the competitor had copied several aspects of the electronic company's latest smartphone model. The competitor plans to defend the lawsuit but is worried about being forced to reveal confidential research and development information. The parties scheduled a conference under Rule 26(f) of the Federal Rules of Civil Procedure. At the conference, the parties are to discuss whether they need a court order protecting trade secrets and other related confidential information. Is this a proper discussion for a Rule 26(f) conference? A. Yes, because the parties must discuss their discovery plan during a Rule 26(f) conference. B. Yes, because the sole purpose of a Rule 26(f) conference is to give the parties an opportunity to ask the court for protective orders. C. No, because at a Rule 26(f) conference the parties should discuss only their claims and defenses. D. No, because a Rule 26(f) conference is used to formulate a plan for trial.

This is a proper discussion for a Rule 26(f) conference because the parties must develop a discovery plan. At a Rule 26(f) conference, the parties must confer to consider their claims and defenses, the possibility of settlement, initial disclosures, and a discovery plan. The parties then must submit a proposed discovery plan to the court, and the plan must address the timing and form of required disclosures, the subjects on which discovery may be needed, the timing of and limitations on discovery, and relevant orders that may be required of the court. (B) and (C) are incorrect because the purpose of a Rule 26(f) conference is for the parties to discuss the topics listed above. (D) is incorrect because a final pretrial conference is used to formulate a plan for trial.