Mixed MBE Set 8 Q's

A tenant vacated an apartment because he could no longer afford the rent. To ensure that the delinquent tenant made up for past arrearages, the landlord would not let him remove his personal property from the apartment. The tenant found a temporary place to stay with a friend, who wanted to help the tenant get his property back. The tenant remembered that the apartment would be vacant the upcoming weekend and that the landlord would be out of town, so he suggested that they break into the apartment and take the property then. They drove the tenant's pickup to the apartment, and the friend entered through an unlocked window. The friend then opened the door for the tenant, and the pair collected the personal property. While the tenant was getting ready to drive away, the friend returned to the apartment and carried out some of the fixtures to the apartment. At this point, police officers who had been alerted by neighbors arrived and arrested the pair. What is the tenant's best defense to a charge of burglary? A. There was no "entry," because as an occupant of the apartment, he consented to the entry. B. There was no breaking, because the window was unlocked. C. There was no intent to commit a felony. D. He only took his own property.

Absence of intent to commit a felony is the best defense. If the tenant intended merely to retrieve his property, he would have had no intent to commit a felony when he entered the apartment and thus could not be convicted of burglary. Common law burglary consists of: (i) a breaking; (ii) and entry; (iii) of the dwelling; (iv) of another; (v) at nighttime; (vi) with the intent of committing a felony therein. The tenant entered the apartment intending to retrieve his own property. Thus, the facts indicate that the only felony the tenant could have intended to commit at the time of entry would be larceny. Larceny consists of: (i) a taking; (ii) and carrying away; (iii) of tangible personal property; (iv) of another; (v) by trespass; (vi) with intent to permanently (or for an unreasonable time) deprive the person of his interest in the property. Larceny element (iv) would be missing here if the tenant intended to retrieve only his own property. Without the intent to commit a felony, no burglary exists. (A) is wrong because the tenant was no longer an occupant of the apartment and so could not consent to the entry. (B) is wrong because opening the closed but unlocked window was a breaking. (D) is not his best defense. The tenant could argue that the landlord did not have superior rights to the tenant's property (despite a possible claim of arrearages) and that therefore he did not take the property of another, and also that he did not take part in his friend's theft. However, he still would be guilty if he entered the apartment with the intent to commit a felony inside; the stronger defense of choice (C) specifically negates that intent.

Three drivers were in an automobile accident in a city in State A. The drivers were citizens of State A, State B, and State C. The State B driver filed a tort action against the other two in a State A state court, seeking $300,000 for her severe injuries. The State C driver wants to remove the action to a federal district court. Is the action removable? A. No, because one of the defendants is a citizen of State A. B. No, because an action may be removed from state court only if it "arises under" federal law. C. Yes, because there is complete diversity of citizenship and the amount in controversy exceeds $75,000. D. Yes, because one of the defendants is a citizen of a state other than State A.

The action is not removable. Under 28 U.S.C. section 1441, a defendant may remove an action that could have originally been brought in the federal courts. (In other words, subject matter jurisdiction based on either a federal question being presented or on diversity of citizenship would have been present had the case been filed in federal court.) However, a case may not be removed on the basis of diversity jurisdiction if a defendant is a citizen of the state in which the action was filed. Here, the action was filed in State A against a State A defendant; thus, the case may not be removed, even though it is a State C defendant who is seeking removal. This fact also makes (D) incorrect. (B) is incorrect because a case may be removed based on diversity, with the restriction that removal is not available if one of the defendants is a citizen of the forum state. (C) is incorrect. Even though the case satisfies the requirements of diversity jurisdiction, the "in-state defendant" restriction prevents removal.

A homeowner and a local builder entered into a written contract that called for the builder to build a second story onto the top of the homeowner's one-story residence. When scheduling conflicts arose, the builder asked the homeowner if they could substitute his buddy, an out-of-town builder who had comparable experience and skills, to perform the local builder's part of the contract. All of the parties agreed to the substitution. Unfortunately, the out-of-town builder made a major blunder that will be quite expensive to correct. Is the local builder liable to the homeowner for the cost of correcting the defect? A. Yes, because the substitution in and of itself does not relieve the local builder of liability on the underlying contract. B. Yes, because the local builder did not give any consideration on which to base a release. C. No, because the local builder transferred his duties to the out-of-town builder. D. No, because the local builder was discharged through a novation.

The agreement among all of the parties to substitute the out-of-town builder for the local builder operates as a novation which immediately discharged the local builder from any duties he had under the original contract. A novation arises when the parties enter into an agreement to substitute a third party for one of the parties in a contract, releasing the party who was substituted. All parties must agree to the substitution. Here, the facts say that all of the parties agreed that the out-of-town builder would substitute for the local builder. Thus, there was a novation and the local builder was released immediately and is not liable for the out-of-town builder's blunder. (A) states incorrectly that the substitution does not relieve the local builder of liability. If the parties had not all agreed to substitute the out-of-town builder for the local builder, or the facts said that there was merely an assignment of rights and delegation of duties, (A) would reflect the correct result. However, where the parties agree to substitute a new party for an old party, there is a novation that does release the old party. (B) is incorrect because there was consideration to support the release—the local builder implicitly agreed to give up his rights under the original contract, the homeowner implicitly agreed to give up his right to look to the local builder for performance, and the out-of-town builder agreed to perform. (C) is not as good an answer as (D). The mere fact that a contractual duty was transferred does not release the transferor from a duty under the contract. It is only the agreement among the parties to substitute the new party for the old that released the local builder here.

An attorney came to work on a Saturday. When he signed in, he was advised by the morning security guard employed by the building management that he must be out of the building by 5 p.m., when it closes. However, he stayed past 5 p.m. to complete a brief that had to be filed on Monday morning. At 5:15 p.m., the afternoon security guard set the locks on all the doors of the building and left. Because she was in a hurry, she did not check the sign-in sheet to make sure that everyone had signed out, contrary to mandatory procedures. When the attorney tried to exit 15 minutes later, he discovered that the doors were all locked and could not be opened from the inside. He used his cell phone to call for help, and a supervisor from the building arrived and let him out shortly thereafter. If the attorney sues the building management for false imprisonment, is he likely to win? A. Yes, because the guard acted recklessly by locking the doors and leaving without checking that everyone was out of the building. B. No, because the attorney became a trespasser by staying in the building past 5 p.m. C. No, because the guard did not know that the attorney was locked in the building. D. No, because the attorney suffered no harm from the confinement.

The attorney will lose because the guard did not know that he was still in the building. For false imprisonment, the plaintiff must show (i) an act or omission on the part of the defendant that confines or restrains the plaintiff to a bounded area, (ii) intent on the part of the defendant to confine or restrain the plaintiff, and (iii) causation. Here, because the guard apparently did not know that the attorney was still in the building, she had no intent to confine him when she locked the doors. (A) is incorrect because recklessness is not enough; while the attorney likely has a cause of action for negligence against the guard, and through respondeat superior, the building, his claim is for false imprisonment. For liability for false imprisonment, there must be an intent to confine. (B) is incorrect because his status as a trespasser, while it may otherwise make him liable to the building for trespass, does not preclude him from recovering for false imprisonment. (D) is incorrect because the attorney need not show harm from the confinement to recover for false imprisonment, as long as he was aware of the confinement.

The owner of a boat took two friends out on a lake near his home. One of his friends was driving the boat when it struck a partially submerged rock that the owner of the boat had forgotten to tell him about. The owner of the boat and the other passenger were injured; the driver of the boat was not hurt. In a jurisdiction that applies joint and several liability with comparative contribution, the passenger brought suit against both the boat owner and the driver, and the boat owner also sued the driver. The jury determined that the boat owner was 55% at fault and suffered $10,000 in damages, the driver of the boat was 45% at fault, and the injured passenger suffered $100,000 in damages. After entry of judgment, the boat owner paid the passenger her total damages of $100,000, while the driver of the boat has paid nothing. How much, if anything, can the boat owner recover from the driver? A. $45,000, because the driver was 45% at fault. B. $49,500, because the driver was 45% at fault and the boat owner suffered $10,000 in damages. C. $50,000, because the boat owner and the driver are jointly liable. D. Nothing, because the boat owner was more at fault than the driver.

The boat owner can recover $45,000 through comparative contribution for the passenger's claim and $4,500 on his own claim against the driver of the boat. Most comparative negligence states have adopted a comparative contribution system based on the relative fault of the various tortfeasors. Nonpaying tortfeasors who are jointly and severally liable are required to contribute only in proportion to their relative fault. Here, because the jurisdiction retained joint and several liability, the boat owner had to pay the passenger all of her damages. Under comparative contribution rules, the boat owner can obtain contribution from the driver for 45% of that amount, because the driver was 45% at fault. In addition, the boat owner has a direct claim against the driver for his own damages of $10,000, reduced by 55%, the amount of his fault. Thus, the total amount that the boat owner can recover from the driver is $49,500, making (B) correct and (A) incorrect. (C) is incorrect because it reflects traditional contribution rules, in which all tortfeasors were required to pay equal shares regardless of their respective degrees of fault. (D) is incorrect because a tortfeasor who was jointly and severally liable is not precluded from recovering contribution merely because he was more at fault than the other tortfeasors.

A seller conveyed her residential city property to a buyer by a general warranty deed. On taking possession of the property, the buyer discovered that the garage of his neighbor encroached six inches onto his property. If the buyer wishes to compel the seller to assist him in a suit against the neighbor, which of the following covenants may he rely on to do so? A. Seisin and encumbrances. B. Warranty and further assurances. C. Seisin and warranty. D. Encumbrances and further assurances.

The buyer would rely on the covenants of warranty and further assurances to compel the seller to assist him in a suit against his encroaching neighbor. Under the covenant of warranty, the grantor agrees to defend, on behalf of the grantee, any lawful or reasonable claims of title by a third party, and to compensate the grantee for any loss sustained by the claim of superior title. The covenant for further assurances is a covenant to perform whatever acts are reasonably necessary to perfect the title conveyed if it turns out to be imperfect. These covenants are "continuous" (run with the land) and require the grantor to assist the grantee in establishing title. The covenants of seisin and encumbrances do not require such assistance. A covenant of seisin is a covenant that the grantor has the estate or interest that she purports to convey. Both title and possession at the time of the grant are necessary to satisfy this covenant. The covenant against encumbrances is a covenant assuring that there are neither visible encumbrances (easements, profits, etc.) nor invisible encumbrances (mortgages, etc.) against the title or interest conveyed. While the seller may have violated these two covenants because of the garage encroachment, they do not provide the basis to compel her to assist the buyer in a title suit. Instead, the buyer merely has a cause of action against the seller for their breach. Therefore, (A), (C), and (D) are wrong.

A State A citizen was arrested by a police officer in State A. The State A citizen filed a civil action against the police officer in a State A state court. The complaint alleges that the police officer wrongly beat the citizen in the course of the arrest and seeks money damages under both state tort law and under 42 U.S.C. section 1983 for violation of the citizen's civil rights. The police officer, who is also a citizen of State A, promptly filed a notice of removal to federal court. Is the case properly removable? A. No, because the citizen and police officer are citizens of the same state. B. No, because the police officer is a citizen of State A, the state in whose court the case is pending. C. Yes, as long as the amount in controversy exceeds $75,000. D. Yes, because one of the claims arises under federal law and the federal court has supplemental jurisdiction over the other claim.

The case is properly removable. Under 28 U.S.C. section 1441, a defendant may remove an action that could have originally been brought in the federal courts. Federal question jurisdiction is available when the plaintiff, in his well-pleaded complaint, alleges a claim that arises under federal law. In the instant case, the citizen's civil rights claims under section 1983 present a federal question. Because a federal question has been presented, the case is removable. Once one claim satisfies the requirements for original federal subject matter jurisdiction, the court has discretion to exercise supplemental jurisdiction over related claims that derive from the same common nucleus of fact and are such that a plaintiff would ordinarily be expected to try them in a single judicial proceeding. Here, the citizen's state tort law claim is derived from the exact same fact pattern. Thus, the court has supplemental jurisdiction over that claim. As a result, (D) is correct. When removal is based on federal question jurisdiction, unlike diversity jurisdiction, there is no amount in controversy requirement, nor is there any requirement that the parties be from different states. Thus, (A) and (C) are incorrect. (B) is incorrect because the "in-state defendant" restriction on removal applies only when removal is based solely on diversity of citizenship jurisdiction.

To increase tourism, a city began sponsoring laser light shows, which proved to be very popular. Several charitable organizations received permission from the council to sponsor a show and charge admission to raise money to help support their causes. One of them hired a famous laser light artist to give their show. When the artist arrived, he began setting up his lasers for the show. A city official soon stopped him, informing him that he could use only the city's lasers because the city feared that outsiders might use powerful lasers that could cause eye damage to viewers. The artist told the charitable organization that had hired him that the success of his art depends on the power of his lasers and that he could not produce desirable effects using the city's lasers. The charitable organization appealed to the city, but the city held fast to its rule requiring all laser light artists to use the city's lasers. If the charitable organization files an action against the city, how will the court most likely rule? A. Find for the charitable organization, because art is protected by the First Amendment and the city rule interferes with the artist's freedom of expression. B. Find for the charitable organization, because the city rule is not the least restrictive method for achieving the city's goals. C. Find for the city, because the laser light show is not speech and therefore is not protected by the First Amendment. D. Find for the city, because the rule is a reasonable time, place, and manner restriction.

The city will prevail because its rule is a reasonable time, place, and manner restriction. Speech protected by the First Amendment includes not only verbal communication, but also conduct that is undertaken to communicate an idea. The laser light show, like other art, probably is protected speech. While the content of speech generally cannot be limited, the conduct associated with speech in public forums can be regulated by reasonable time, place, and manner restrictions. To avoid strict scrutiny and be upheld, such a regulation must be content neutral, narrowly tailored to serve an important government interest, and leave open alternative channels of communication. The city's rule meets these requirements: The types of images displayed are not controlled, just the means of showing them; the rule is narrowly tailored because it does not regulate substantially more speech than is necessary to further an important government interest (here, preventing eye damage); and alternative channels of communication are available because the artist can use the city's equipment, albeit with less spectacular results. (A) is incorrect because while the artist's art is protected by the First Amendment, it may still be regulated by reasonable time, place, and manner regulations, as indicated above. (B) is incorrect because it states the wrong standard. A time, place, and manner regulation need not be the least restrictive means for achieving the desired result, but rather only narrowly tailored to the result. [See Ward v. Rock Against Racism (1989)] (C) is incorrect because art, including performance art such as the laser light show, is protected by the First Amendment. As discussed above, the First Amendment guarantee of freedom of speech protects more than merely spoken or written words; it includes conduct and other forms of expression undertaken to communicate an idea.

A man and a woman were arrested and charged with a series of armed robberies. Each suspect was given Miranda warnings, and different interrogation teams questioned each suspect separately. Upon being questioned, the man told the police, "I'm not going to talk until I see a lawyer." An officer responded, "You might want to reconsider, because your partner has already confessed, and she's implicated you in the crimes." The man then told the police that he wanted to talk to the woman privately. The police escorted the man to the woman's cell, locked him in with her, and left. Unbeknownst to either of them, the police had bugged the woman's cell and recorded both the man and the woman making self-incriminating statements during their meeting. The man made no further statements to the police on advice of counsel, whom he called immediately after his conversation with the woman. The man was put on trial first, and the prosecution sought to introduce into evidence tapes of the bugged conversation between the man and the woman. The defense made a motion to suppress the evidence. Should the court grant the motion to suppress? A. Yes, because the evidence is the fruit of a wiretap that violated the Fourth Amendment. B. Yes, because the police created a situation likely to induce the defendant to make an incriminating statement. C. No, because there is no expectation of privacy in a jail cell. D. No, because the conversation constituted a waiver of the man's Miranda rights.

The conversation should be suppressed because the police conduct violated the man's Sixth Amendment right to counsel. The Sixth Amendment provides that in all criminal prosecutions a defendant has a right to the assistance of counsel at all critical stages after formal proceedings have begun. For Sixth Amendment purposes, a criminal prosecution begins when adversary judicial proceedings have commenced, such as the filing of formal charges in this case. Because custodial interrogation is a critical stage of prosecution, the Sixth Amendment is violated by post-charge interrogation unless the defendant has waived his right to counsel. Interrogation includes not only direct questioning, but also any other conduct by the police intended to elicit a response. The police conduct here (telling the man that the woman had implicated him and then bugging the conversation) constitutes prohibited interrogation. [See Maine v. Moulton (1985)] (A) is incorrect because the wiretap was not an illegal search under the Fourth Amendment. Wiretapping and other forms of electronic surveillance are subject to the Fourth Amendment prohibition of unreasonable searches and seizures. However, to have a Fourth Amendment right, a person must have a reasonable expectation of privacy with respect to the place searched or the item seized. In a different context, the Supreme Court has held that prisoners have no reasonable expectation of privacy in their cells or in any personal property that they have in their cells. [Hudson v. Palmer (1984)] Hence, neither defendant can assert a Fourth Amendment claim based on the wiretap, because they had no reasonable expectation of privacy in the jail cell. The fact that there was no expectation of privacy does not make choice (C) correct, however. Even though he probably cannot claim that the bugging was an unreasonable search under the Fourth Amendment, the man can claim that it was an interrogation in violation of his Sixth Amendment right to counsel, as discussed above. (D) is incorrect because it is irrelevant. The facts probably would not give rise to a Miranda violation in light of the Court's ruling in Illinois v. Perkins (1990) that Miranda does not apply unless interrogation is by someone known to be a police officer (on the rationale that Miranda is merely a prophylactic rule designed to offset the coercive nature of a custodial interrogation by a police officer). In any case, Miranda rights and Sixth Amendment rights to counsel can only be waived knowingly, and so the man's ignorance of the fact that the cell was bugged precludes a finding of waiver here.

A husband was on his way to meet his wife for lunch at the restaurant in the lobby of a bank building where she worked. He entered the building, which was owned and operated by the bank, and started walking towards his wife, who he could see waiting for him at a table near the rear of the restaurant. Suddenly he heard the sound of breaking glass from the restaurant area and saw a large piece of artwork made of stained glass fall onto the seating area of the restaurant. Immediately thereafter he saw several injured persons, including his wife, lying in the wreckage of the artwork. He fainted and hit his head on the marble floor, fracturing his skull. The artwork had collapsed because the pedestal that the bank had provided for the artwork was not properly constructed. If the husband sues the bank for his injury, is he likely to prevail? A. No, because he was not personally in the zone of danger of physical injury. B. No, because his skull fracture was not foreseeable. C. Yes, because his wife was one of the persons he saw lying in the wreckage. D. Yes, because the bank had provided the pedestal for the artwork.

The husband will recover for his injuries because his wife was among those injured by the collapse of the artwork. The duty to avoid negligent infliction of emotional distress may be breached when the defendant creates a foreseeable risk of physical injury to the plaintiff. In most jurisdictions, a bystander who sees the defendant negligently injuring another can recover for his own distress if (i) the plaintiff and the person injured by the defendant's negligence are closely related, (ii) the plaintiff was present at the scene of the injury, and (iii) the plaintiff personally observed or perceived the event. Observation is typically by sight, but may also be by hearing or other senses under certain circumstances. Here, the husband heard the screams and the sound of breaking glass when the artwork collapsed as he entered the lobby. Even though he evidently did not see the artwork collapse on the diners, he heard it crash where his wife was sitting and saw the immediate aftermath. Because his wife was one of the persons injured by the collapse of the artwork, he can recover damages for the injuries caused by his distress. (A) is incorrect because, as stated above, the majority rule allows a bystander to recover based on the factors stated above even if he is outside the zone of danger of physical injury. (B) is incorrect because injury to the husband was foreseeable. The husband is a foreseeable plaintiff in a claim for negligent infliction of emotional distress because of the injury to his wife, as discussed above. The unusual manner in which his physical injury occurred is irrelevant to the defendant's liability. (D) is incorrect because it does not matter that the bank had provided the pedestal. Even if the negligent construction of the pedestal had been done by a third party, the bank remains liable to invitees on its premises because a business has a nondelegable duty to keep its premises safe for customers.

A fee simple owner of a restaurant provided in his will that the property should go on his death "in fee simple to my friend, but if during my friend's lifetime my son has children and those children are alive when my friend dies, then to said living children." When the owner died, the friend took over the restaurant. If the son has children and one or more of them are alive when the friend dies, who will take title to the restaurant at that time? A. The friend's heirs, because the attempted gift to the son's children is invalid under the Rule Against Perpetuities. B. The son's children, because their interest is not contingent, being a possibility of reverter. C. The son's children, because their interest is vested, subject to defeasance. D. The son's children, because their interest will vest, if at all, within a life in being plus 21 years.

The interest given to the son's children does not violate the Rule Against Perpetuities because the interest will vest, if at all, within 21 years after the life of the friend. Pursuant to the Rule Against Perpetuities, no interest in property is valid unless it must vest, if at all, not later than 21 years after one or more lives in being at the creation of the interest. In the case of a will, the perpetuities period begins to run on the date of the testator's death, and measuring lives used to show the validity of an interest must be in existence at that time. Here, the interest given to any of the son's children who are born during the friend's lifetime and who survive the friend must vest, if at all, on the death of the friend (who is a life in being at the time of the owner's death). Thus, this interest will vest, if it does vest, within 21 years after the friend's life, and is therefore not in violation of the Rule Against Perpetuities. (A) is therefore incorrect; if one or more of the son's children is alive at the time of the friend's death, the friend's heirs will get nothing because their fee simple will be divested. (B) incorrectly characterizes the interest of the son's children as a possibility of reverter. A possibility of reverter is the future interest left in a grantor who conveys a fee simple determinable estate. Although under different circumstances the son's children could acquire a possibility of reverter as heirs of the grantor (the owner), their interest in this case was conveyed directly to them in the owner's will. (C) is incorrect because the interest of the son's children is not vested. Their interest is a shifting executory interest rather than a remainder because it divests the fee simple estate of the friend and his heirs. The friend has a fee simple subject to an executory interest because the estate will remain with his heirs if none of the son's children are alive when the friend dies. The friend's death while the son's children are alive divests the interest of the friend's heirs; it is therefore a shifting executory interest rather than a remainder.

Several members of a small terrorist group are on trial in federal court for conspiring to bomb a military installation. The prosecution would like to introduce the testimony of a military guard at one of the installation's gates. The guard had been present when a bomb that was being planted by a member of the group had exploded prematurely. The guard will testify that she ran over to administer first aid to the member, who in great pain told her that his group was in the process of planting three other bombs in other areas of the military installation and was going to detonate them all at the same time to get publicity for their cause. The guard will also testify that the member disclosed the locations of the other bombs and the names of two other members of the group. The authorities were able to prevent the other bombings and arrest the other members of the group. The member died from his injuries. What is the best basis for allowing the guard to testify as to the member's statements? A. As a statement of a party-opponent's co-conspirator. B. As a statement against interest. C. As a statement of present state of mind. D. As a dying declaration.

The member's statements are admissible as a statement against interest. Under the Federal Rules, statements of a person, now unavailable as a witness, against that person's pecuniary, proprietary, or penal interest when made are admissible as an exception to the hearsay rule. Here, the member's statements implicating himself in the bombing conspiracy were against his penal interest when he made them; hence, they are probably admissible under that exception. (A) is wrong because for a co-conspirator's statement to qualify as a vicarious statement of an opposing party, the statement must have been in furtherance of the conspiracy by a participant in it. Here, the member's statements were not made in furtherance of the conspiracy but instead served to thwart its success. (C) is wrong because the member's statements are not being used to show his then-existing state of mind but rather the scope of the conspiracy and the defendants' participation in it. (D) is wrong because, even assuming that the member made the statements while believing his death was imminent (which the facts do not clearly establish), dying declarations are admissible under the Federal Rules only in a prosecution for homicide or in a civil action, and this case was neither of those.

A public high school's drug policy strictly prohibited the use, possession, or sale of any drug on school grounds, including any prescription or over-the-counter medication, unless supervised by a nurse. During lunch, the school principal observed a student ingesting two white pills. The student admitted to the principal that the pills were aspirins and had been given to her by a senior. School officials approached the senior and demanded to search her backpack. When no aspirins were found in the backpack, the officials required the senior to submit to a private physical search by the female school nurse. Some aspirins were subsequently found in the waistband of the senior's gym shorts that she was wearing under her school uniform, and she was suspended. The senior's mother sued school officials, claiming that the physical search violated her daughter's Fourth Amendment rights against unreasonable searches and seizures. In response, the school officials filed a motion for summary judgment against the mother's claim. The facts above are stipulated to by the parties. Should the court grant the motion for summary judgment? A. Yes, because the search revealed that the senior had violated the drug policy. B. Yes, because the school officials had reasonable grounds to believe that the search was necessary. C. No, because the trier of fact could determine that the search was excessively intrusive in light of the nature of the infraction. D. No, because the trier of fact could determine that the school officials did not have probable cause to conduct a physical search based on the uncorroborated statement of a minor.

The motion should be denied. A school search will be upheld only if it offers a moderate chance of finding evidence of wrongdoing, the measures adopted to carry out the search are reasonably related to the objectives of the search, and the search is "not excessively intrusive in light of the age and sex of the student and the nature of the infraction." [Safford United School District #1 v. Redding (2009)] In the Redding case, school officials were also attempting to locate lawful pain killers believed to be on a student's person based on an uncorroborated tip from another student. The medication was prohibited on school premises without a doctor's note on file. The Court concluded that a search of the student's outer clothing and backpack did not violate the Fourth Amendment. However, a subsequent strip search of the student was unconstitutional. Here, the trier of fact could find that a search of the senior's gym shorts that she was wearing under her school uniform was excessively intrusive and not reasonably related to the objectives of the search; hence, the school officials should not be entitled to summary judgment. (A) is incorrect. The fact that a search reveals the contraband that prompted the search does not make the search permissible under the Fourth Amendment. (B) is incorrect because, not only must school officials have reasonable grounds for the search, the search must not be excessively intrusive. Because the Court has held that a strip search to locate over-the-counter pain killers was excessively intrusive, summary judgment for the school officials is inappropriate here. (D) is incorrect because the Court has observed that the school setting requires some modification of the level of suspicion of illicit activity needed to justify a search, and has ruled that only reasonable suspicion and not probable cause is required.

A landowner was the owner in fee simple of a tract of land. The landowner conveyed the tract to her neighbor, "for life and then to the first child of my neighbor's only sister who shall reach the age of 21." The sister was unmarried and childless at the time of the conveyance. Five years later, the sister married, and she gave birth to a son the following year. When the son reached the age of 21, he brought an action in ejectment against the neighbor, who is still alive and living on the tract of land. Which of these is the neighbor's best defense against the son's attempt to eject her? A. The neighbor's life estate was not subject to termination during her lifetime. B. The son has no claim to the tract, because he was not living at the time of the landowner's original conveyance. C. A conveyance of the tract to the son violates the Rule Against Perpetuities. D. The son's interest, if any, would be that of a contingent remainder, and the contingency is the neighbor's death.

The neighbor's best defense against the son's attempt to eject her is that her life estate was not subject to termination during her lifetime. The usual life estate is measured by the life of the grantee. Although a life estate may be made defeasible (e.g., determinable, subject to a condition subsequent, or subject to an executory interest), the conveyance here created an indefeasible life estate (i.e., one that will end only when the life tenant dies) in the neighbor. (B) is incorrect because the son did not have to be alive at the time of the original conveyance in order to now claim an interest in the tract. (C) is incorrect because the son's interest would vest within 21 years of a life in being (his mother, the sister). (D) is incorrect because the son's interest would be a vested rather than contingent remainder. A remainder is contingent if it is created in favor of unborn or unascertained persons. Because the sister was childless at the time of the conveyance, the remainder to the sister's "first child . . . who shall reach the age of 21" was a contingent remainder. It remained contingent at the son's birth because he had to reach age 21 to take. However, the son has reached age 21, and thus his remainder is vested. It is indefeasibly vested because it is not subject to being defeated, divested, or diminished in size.

A pedestrian was injured in an auto accident caused by a driver. The pedestrian's injuries included a broken nose and a broken toe. Not sure of the strength of her case, she sued the driver only for the injuries to her nose. She was awarded $15,000 in damages. Encouraged by this success, she now wishes to sue the driver for the injuries to her toe. May she sue the driver again? A. No, because all related claims "merged" with the final decision in the first case. B. No, because she will be collaterally estopped from pursuing the claim. C. Yes, and she may use the prior decision against the driver. D. Yes, but she will have to relitigate the driver's liability.

The pedestrian may not sue the driver again because of merger. Merger occurs when the plaintiff wins; her cause of action is said to "merge" into the judgment such that she cannot relitigate the cause of action later. The court would hold that all of the personal injuries received by the pedestrian in one accident constitute a single cause of action, and that claim preclusion principles forbid relitigation. (B) is incorrect. Issue preclusion, also called "collateral estoppel," applies to issues, not entire cases. (C) and (D) are incorrect for the reasons stated above.