Practice Final Exam

An 11-year-old boy was driving a full-size motorcycle on a private road, where the boy was a trespasser. The motorcycle hit a tire that had fallen off a truck driven by a delivery company employee who was making a delivery to an address on the private road. The boy was injured when his motorcycle went out of control after striking the tire. In a negligence action brought on behalf of the boy against the delivery company, the company contends that the boy was contributorily negligent and that his damages, if any, should be reduced in conformance with the jurisdiction's comparative negligence statute. The boy argues that his conduct should be judged according to the standard of a reasonable child of like age, intelligence, and experience under the circumstances. Is the boy entitled to be judged according to the standard of care that he has argued for? A: No, because the boy was driving a motorcycle. B: No, because the boy was trespassing on the private road. C: Yes, because comparative negligence applies. D: Yes, because the boy was 11 years old at the time.

A. Children engaging in dangerous activity that is characteristically undertaken by adults may be held to an adult standard of care. Children engaging in a dangerous activity that is characteristically undertaken by adults may be held to an adult standard of care. Because the boy was driving a motorcycle—an adult activity—he will be held to the adult standard of care.

An employer retained a doctor to evaluate medical records of prospective employees. The doctor informed the employer that an applicant, a prospective employee, suffered from AIDS. The employer informed the applicant of this and declined to hire her. The applicant was shocked by this news and suffered a heart attack as a result. Subsequent tests revealed that the applicant in fact did not have AIDS. The doctor had negligently confused the applicant's file with that of another prospective employee. If the applicant sued the doctor for damages, on which of the following causes of action would the applicant recover? A: Negligent infliction of emotional distress. B: Invasion of privacy. C: Negligent misrepresentation. D: Both invasion of privacy and negligent misrepresentation.

A: Negligent infliction of emotional distress. The applicant would not typically recover for emotional damages that resulted in a heart attack unless she had also been in a "zone of danger." However, a special circumstance exists when one receives false reports of the death or serious bodily injury to a loved one. Here, the applicant received news that she had a potentially lifethreatening disease and even suffered a heart attack as a result.

A defendant has a small trampoline in his backyard which, as he knows, is commonly used by neighbor children as well as his own. The trampoline is in good condition, is not defective in any way, and normally is surrounded by mats to prevent injury if a user should fall off. Prior to leaving with his family for the day, the defendant leaned the trampoline up against the side of the house and placed the mats in the garage. While the defendant and his family were away, the plaintiff, aged 11, a new boy in the neighborhood, wandered into the defendant's yard and saw the trampoline. The plaintiff had not previously been aware of its presence, but, having frequently used a trampoline before, he decided to set it up, and started to jump. He lost his balance on one jump and took a hard fall on the bare ground, suffering a serious injury that would have been prevented by the mats. An action has been brought against the defendant on the plaintiff's behalf to recover damages for the injuries the plaintiff sustained from his fall. In this jurisdiction, the traditional common-law rules pertaining to contributory negligence have been replaced by a pure comparative negligence rule. In his action against the defendant, will the plaintiff prevail? A: No, because children likely to be attracted by the trampoline would normally realize the risk of using it without mats. B: No, because the plaintiff failed to exercise reasonable care commensurate with his age, intelligence, and experience. C: No, because the plaintiff entered the defendant's yard and used the trampoline without the defendant's permission. D: No, because the plaintiff did not know about the trampoline before entering the defendant's yard and thus was not "lured" onto the premises.

A: No, because children likely to be attracted by the trampoline would normally realize the risk of using it without mats. Here, the facts indicate that while the neighborhood children commonly used the defendant's trampoline, the plaintiff was new to the neighborhood and so was unknown to the defendant. The plaintiff is also 11, old enough to understand the risks. The defendant knew that the local children would be aware of the need for mats because those children "commonly" used the trampoline and the mats. Therefore, the plaintiff will not prevail.

In a civil action, a plaintiff sued a decedent's estate to recover damages for injuries she suffered in a collision between her car and one driven by the decedent. At trial, the plaintiff introduced undisputed evidence that the decedent's car had swerved across the centerline of the highway into oncoming traffic, where it had collided with the plaintiff's car. The decedent's estate introduced undisputed evidence that, before he swerved across the centerline, the decedent had suffered a fatal heart attack, which he had no reason to foresee, and that, just prior to the heart attack, the decedent had been driving at a reasonable speed and in a reasonable manner. A statute makes it a traffic offense to cross the centerline of a highway. In this case, which party is likely to prevail? A: The decedent's estate, because its rebuttal evidence is undisputed. B: The decedent's estate, because the plaintiff has not established a prima facie case of liability. C: The plaintiff, because the accident was of a type that does not ordinarily happen in the absence of negligence on the actor's part. D: The plaintiff, because the decedent crossed the centerline in violation of the statute.

A: The decedent's estate, because its rebuttal evidence is undisputed. The plaintiff's evidence that the decedent violated the statute and crossed over the centerline establishes a prima facie case of negligence. However, the prima facie case of negligence may be rebutted by showing that compliance with the statute was beyond the defendant's control. Here, the decedent's estate successfully rebutted the plaintiff's evidence by providing an undisputed explanation of how the accident happened that is inconsistent with a finding of negligence (the decedent's unforeseeable heart attack made her unable to comply with the statute or, indeed, with any standard of care).

A plaintiff sued a defendant for copyright infringement for using in the defendant's book some slightly disguised house plans on which the plaintiff held the copyright. The plaintiff is prepared to testify that he heard the defendant's executive copyright assistant say that the defendant had obtained an advance copy of the plans from the plaintiff's office manager. The plaintiff's testimony is A: admissible as reporting a statement of an employee of a party-opponent. B: admissible as a statement of a co-conspirator. C: inadmissible, because it is hearsay not within any exception. D: inadmissible, because there is no showing that the assistant was authorized to speak for the defendant.

A: admissible as reporting a statement of an employee of a party-opponent. The statement by the executive assistant is admissible as a vicarious admission by a party-opponent against the defendant because the assistant was acting in the scope of employment, during the existence of the employment relationship.

At a defendant's murder trial, the defendant calls his first witness to testify that the defendant has a reputation in their community as a peaceable and truthful person. The prosecutor objects on the ground that the witness's testimony would constitute improper character evidence. The court should A: admit the testimony as to peaceableness, but exclude the testimony as to truthfulness. B: admit the testimony as to truthfulness, but exclude the testimony as to peaceableness. C: admit the testimony as to both character traits. D: exclude the testimony as to both character traits.

A: admit the testimony as to peaceableness, but exclude the testimony as to truthfulness. Evidence of the defendant's reputation for peaceableness is relevant to the murder charge, a crime of violence, while his reputation for truthfulness is irrelevant to such a charge and no other basis exists to admit it.

For five years, a rancher had kept his horse in a ten-acre field enclosed by a six-foot woven wire fence with six inches of barbed wire on top. The gate to the field was latched and could not be opened by an animal. The rancher had never had any trouble with people coming onto his property and bothering the horse, and the horse had never escaped from the field. One day, however, when the rancher went to the field, he found that the gate was open and the horse was gone. Shortly before the rancher's discovery, a driver was driving with due care on a nearby highway when suddenly the rancher's horse darted in front of his car. When the driver attempted to avoid hitting the horse, he lost control of the car, which then crashed into a tree. The driver was injured. The driver sued the rancher to recover damages for his injuries and the rancher moved for summary judgment. If the facts stated above are undisputed, the judge should A: deny the motion, because pursuant to the doctrine of res ipsa loquitur, a jury could infer that the rancher was negligent. B: deny the motion, because an animal dangerous to highway users escaped from the rancher's property and caused the collision. C: grant the motion, because there is no evidence that the rancher was negligent. D: grant the motion, because the rancher did not knowingly permit the horse to run at large.

A: deny the motion, because pursuant to the doctrine of res ipsa loquitur, a jury could infer that the rancher was negligent. C: grant the motion, because there is no evidence that the rancher was negligent. A or C is correct. Although rare, on a few occasions the NCBE has released two correct answers for one question. For this question, when it was scored, either answer A or C was accepted as correct and given credit. However, moving forward, examinees should still approach each question as if only one answer is correct.

A supermarket is in a section of town where there are sometimes street fights and where pedestrians are occasionally the victims of pickpockets and muggers. In recognition of the unusual number of robberies in the area, the supermarket posted signs in the store that read: "Warning: There are pickpockets and muggers at work in this part of the city. The supermarket is not responsible for the acts of criminals." Other than posting the signs, the supermarket took no other precautions to prevent criminal activity on the premises. One evening, a customer drove to the supermarket to see about a special on turkeys that the supermarket was advertising. She decided that the turkeys were too large and left the store without purchasing anything. In the parking lot, she was attacked by an unknown man who raped her and then ran away. If the customer sues the supermarket, the result should be for the A: plaintiff, because the supermarket failed to take reasonable steps to protect customers against criminal attack in its parking lot. B: plaintiff, because the supermarket is liable for harm to business invitees on its premises. C: defendant, because the warning signs were visible to the customer. D: defendant, because the rapist was the proximate cause of the customer's injuries.

A: plaintiff, because the supermarket failed to take reasonable steps to protect customers against criminal attack in its parking lot. The supermarket had a duty to do more than post a warning. The fact that it was aware of ongoing violent crimes in the area meant that it had a duty to take reasonable affirmative steps to keep its customers safe against foreseeable dangers by third persons.

A man rented a beach house for a weeklong vacation. On the day he arrived, just after sunset, he took his bag upstairs to a second-floor bedroom and unpacked. As he was about to head back downstairs, he realized that the stairwell had become too dark to navigate without a light. The man spent about 30 seconds feeling the walls at the top of the stairwell but could not find a light switch. In fact, the switch was located in an awkward position not reachable without descending to the second step. Although he recognized the danger of descending an unfamiliar staircase in darkness, the man started down the stairs. He lost his footing halfway down, fell, and was seriously injured. The man has sued the owner of the beach house for negligence. The jurisdiction recognizes the traditional common law defense of assumption of risk. If the action proceeds to trial, which of the following would be an appropriate (paraphrased) instruction for the court to give to the jury? A: "If you conclude that the owner failed to provide reasonably safe premises, but that the man knowingly and voluntarily chose to encounter the risk of falling on the darkened stairs, then you must assign a percentage of responsibility to the man." B: "If you conclude that the owner failed to provide reasonably safe premises, but that the man knowingly and voluntarily chose to encounter the risk of falling on the darkened stairs, then you must find for the owner." C: "If you conclude that the owner failed to provide reasonably safe premises, but that the man was a mere licensee, then you must find for the owner." D: "If you conclude that the owner failed to provide reasonably safe premises, then you may in your discretion award the man both compensatory and punitive damages."

B: "If you conclude that the owner failed to provide reasonably safe premises, but that the man knowingly and voluntarily chose to encounter the risk of falling on the darkened stairs, then you must find for the owner." The traditional assumption of risk defense is a complete defense. Therefore, if the jury finds that the man knowingly and voluntarily chose to encounter the risk of falling down the darkened stairs, the owner will not be liable.

A woman brought a wrongful death action against a car driver who hit and killed her husband while her husband was crossing a street. In settlement negotiations, the driver told the woman that he was sorry for what had happened and that he had been too drunk to drive when he ran into her husband with his car. The woman and the driver settled the wrongful death action for $1 million. Subsequently, the driver was charged with reckless homicide of the husband. At the driver's criminal trial, the prosecutor offered, as evidence of the driver's guilt, the driver's statement to the woman during settlement negotiations. Is the driver's statement to the woman admissible in the subsequent criminal prosecution? A: No, because it is hearsay not within any exception. B: No, because a statement made in civil settlement negotiations between private parties is not admissible to prove the validity of a claim in a subsequent criminal prosecution. C: Yes, because a statement made in civil settlement negotiations is admissible in a subsequent criminal prosecution. D: Yes, because the statement's probative value outweighs the risk of prejudice and jury confusion.

B: No, because a statement made in civil settlement negotiations between private parties is not admissible to prove the validity of a claim in a subsequent criminal prosecution. Under Federal Rule of Evidence (FRE) 408(a)(2), statements made during settlement negotiations in a private civil action are inadmissible in a subsequent criminal case that arises out of the same incident. Here, the subsequent criminal case arises out of the same incident that was the subject of the civil case, the car accident that killed the woman's husband. Therefore, the driver's statements made during settlement negotiations for the civil action are inadmissible to prove the driver's guilt in the criminal case.

A farmer owns a large farm on which he allows his friends to hunt during quail-hunting season. He does not provide his friends with any instructions about gun safety. The neighbor who owns property adjacent to the farm knows of the friends' use of the property during the hunting season. One day during the hunting season, without the farmer's knowledge or permission, the neighbor took a shortcut across the farm to visit an acquaintance. The neighbor was wounded by a shot fired by one of the farmer's friends, who was shooting at quail and carelessly failed to see the neighbor. Traditional rules of landowners' and occupiers' liability apply. In an action by the neighbor against the farmer to recover for the injuries, will the neighbor be likely to prevail? A: No, because the farmer is not responsible for his friends' conduct. B: No, because the neighbor was trespassing. C: Yes, because the careless friend was permitted to hunt without safety training. D: Yes, because the use of firearms is an abnormally dangerous activity.

B: No, because the neighbor was trespassing. The nature of a duty owed by an owner of land to those on his premises depends on the legal status of the plaintiff regarding the property. There are three categories of plaintiffs: (i) trespassers; (ii) licensees; or (iii) invitees. A trespasser is one who comes onto the land without permission or privilege. A landowner owes no duty to an undiscovered trespasser. The neighbor took a shortcut across the farm without the farmer's knowledge or permission. Therefore, the neighbor is a trespasser, and the farmer is not liable for the injuries.

A hiker sustained a head injury when he was struck by a limb that fell from a tree. At the time of his injury, the hiker was walking through a forest on private property without the property owner's knowledge or permission. It was determined that the limb fell because the tree was infested with termites. In an action by the hiker against the property owner to recover for his head injury, will the hiker be likely to prevail? A: No, because the property owner could not foresee that anyone would be injured. B: No, because the property owner breached no duty to the hiker, who was a trespasser. C: Yes, because the property owner had a duty to prevent the trees on his property from becoming dangerous. D: Yes, because the property owner is liable for hidden dangers on his property.

B: No, because the property owner breached no duty to the hiker, who was a trespasser. The hiker was a trespasser because he entered without the permission of the owner. A possessor of land is not required to exercise reasonable care to make his land safe for trespassers.

A plaintiff sued a defendant in federal court for assault and battery. At trial, the court has allowed the plaintiff to introduce the deposition testimony of a witness, now deceased, that he was with the plaintiff at the time of the incident. The defendant now seeks to impeach the testimony of the witness with his 13-year-old conviction for burglary (for which he served 18 months in prison) for breaking into the home of a neighbor while she was away and taking some of her valuable jewelry. Should the court allow evidence of the conviction? A: No, because the witness did not testify at trial. B: No, unless the court finds, in the interests of justice, that the probative value of the conviction, supported by specific facts and circumstances, substantially outweighs its prejudicial effect. C: Yes, because prior convictions are probative to impeach the witness's character for truthfulness. D: Yes, because the crime involved an act of dishonesty.

B: No, unless the court finds, in the interests of justice, that the probative value of the conviction, supported by specific facts and circumstances, substantially outweighs its prejudicial effect. Prior convictions may be used for impeachment of a witness if the conviction is for a crime punishable for more than one year (a felony). If the witness is not a criminal defendant, any felony is admissible under the court's discretion and application of the FRE 403 balancing test for relevancy. The conviction may be excluded if its probative value as impeachment is substantially outweighed by the danger of unfair prejudice (FRE 609(a)(1)(A)). This balancing test, used for witnesses who are not criminal defendants, favors admission. However, if the conviction is over 10 years old, the conviction is generally inadmissible. The conviction will only be admissible if its probative value substantially outweighs its prejudicial effect (FRE 609(b). This test favors exclusion and applies whether the witness is a criminal defendant or not.

A defendant was charged with perjury for having falsely testified in an earlier civil case that he knew nothing about a business fraud. In the perjury trial, the defendant again testified that he knew nothing about the business fraud. In rebuttal, the prosecutor has called a witness to testify that after the civil trial was over, the defendant admitted to the witness privately that he had known about the fraud. Is the witness's testimony in the perjury trial admissible? A: Yes, but only to impeach the defendant's testimony. B: Yes, both to impeach the defendant's testimony and as substantive evidence of the perjury. C: No, because it is hearsay not within any exception. D: No, because it relates to the business fraud and not to the commission of perjury.

B: Yes, both to impeach the defendant's testimony and as substantive evidence of the perjury. This statement is admissible both to impeach the defendant's testimony as a prior inconsistent statement and as substantive evidence because it is an admission of a party-opponent under FRE 801(d)(2)(A).

A man and his friend were charged with burglary of a warehouse. They were tried separately. At the man's trial, the friend testified that he saw the man commit the burglary. While the friend was still subject to recall as a witness, the man calls the friend's cellmate to testify that the friend said, "I broke into the warehouse alone because [the man] was too drunk to help." The evidence of the friend's statement is A: admissible, as a declaration against penal interest. B: admissible, as a prior inconsistent statement. C: inadmissible, because it is hearsay not within any exception. D: inadmissible, because the statement is not clearly corroborated.

B: admissible, as a prior inconsistent statement. The friend's statement to his cellmate is a prior inconsistent statement to the friend's earlier testimony that he saw the man commit the burglary. Therefore, the cellmate's testimony regarding the friend's out-of-court statement is admissible to impeach the friend's earlier in-court testimony. As a foundational matter, the friend must be given an opportunity to explain or deny the allegedly inconsistent statement, but this can occur after the cellmate testifies.

A man and his friend were charged with conspiracy to dispose of a stolen diamond necklace. The friend jumped bail and cannot be found. Proceeding to trial against the man alone, the prosecutor calls the friend's girlfriend as a witness to testify that the friend confided to her that "[the man] said I still owe him some of the money from selling that necklace." The witness's testimony is A: admissible, as evidence of a statement by party-opponent. B: admissible, as evidence of a statement against interest by the friend. C: inadmissible, because the friend's statement was not in furtherance of the conspiracy. D: inadmissible, because the friend is not shown to have firsthand knowledge that the necklace was stolen.

B: admissible, as evidence of a statement against interest by the friend. The testimony contains two separate hearsay statements, both of which must satisfy an exemption or exception for the testimony to be admissible. The statement by the man to the friend is an admission by a partyopponent, and is therefore exempt as non-hearsay. The statement by the friend to the girlfriend constitutes an exception as a statement against interest. Therefore, the testimony is admissible.

A defendant was charged with attempted murder of a victim in a sniping incident in which the defendant allegedly shot at the victim from a bush as the victim drove his car along an expressway. The prosecutor offers evidence that seven years earlier the defendant had fired a shotgun into a woman's house and that the defendant had once pointed a handgun at another driver while driving on the street. This evidence should be A: excluded, because such evidence can be elicited only during cross-examination. B: excluded, because it is improper character evidence. C: admitted as evidence of the defendant's propensity toward violence. D: admitted as relevant evidence of the defendant's identity, plan, or motive.

B: excluded, because it is improper character evidence. Evidence of "prior bad acts" is inadmissible against a defendant when offered to prove that he is more likely to have committed the instant crime based on criminal propensity.

A trucking company employed nine salaried dispatchers to ensure that its truck fleet operated according to schedule. Two years ago, as a cost-saving measure, the company reduced the number of dispatchers to six, and each of the remaining dispatchers had to work substantially longer hours. One of the remaining dispatchers complained to his supervisor that the stress and fatigue associated with the new working conditions were too much for him to handle. The supervisor told the dispatcher that he should quit if he couldn't handle the increased hours. Over the next three months, the dispatcher continued to complain about the working conditions, to no effect. The dispatcher suffered severe emotional distress from the working conditions, but no physical injury. He eventually was hospitalized and had to miss several months of work as a result of the emotional distress. The dispatcher sued the trucking company for negligence. The company has moved for summary judgment, based on the undisputed facts set out above. Assume that there is no applicable workers' compensation statute. How should the court rule on the motion? A: Deny the motion, because the jury must determine the extent of the emotional distress suffered by the dispatcher. B: Deny the motion, because there is evidence from which a jury could reasonably conclude that the supervisor failed to act with ordinary care. C: Grant the motion, because the dispatcher suffered no physical injury. D: Grant the motion, because there is no evidence from which a jury could reasonably conclude that the supervisor acted carelessly with respect to the dispatcher's emotional well-being.

C: Grant the motion, because the dispatcher suffered no physical injury. As a general rule, a claim for negligently caused emotional distress must be connected to a physical injury. Here, the facts stipulate that the dispatcher suffered severe emotional distress but no physical injury.

A cyclist sued a defendant corporation for injuries sustained when she was hit by a truck owned by the defendant and driven by its employee, who was making deliveries for the defendant. The day after the accident, the employee visited the cyclist in the hospital and said, "I'm sorry for what I did." At trial, the employee has testified that he exercised due care. Why is the cyclist's testimony relating what the defendant's employee said at the hospital admissible to prove negligence? A: It is a prior inconsistent statement. B: It is a statement against interest. C: It is a statement by a party-opponent's agent. D: It is a statement of then-existing state of mind.

C: It is a statement by a party-opponent's agent. Federal Rule of Evidence (FRE) 801(d)(2)(D) allows the employee's statement to be substantively admissible as a non-hearsay admission by an agent of a party-opponent because it was regarding a matter within the scope of employment, during the existence of the employment relationship.

A hiker, although acting with reasonable care, fell while attempting to climb a mountain and lay unconscious and critically injured on a ledge that was difficult to reach. The plaintiff, an experienced mountain climber, was himself seriously injured while trying to rescue the hiker. The plaintiff's rescue attempt failed, and the hiker died of his injuries before he could be reached. The plaintiff brought an action against the hiker's estate for compensation for his injuries. In this jurisdiction, the traditional common-law rules relating to contributory negligence and assumption of risk remain in effect. Will the plaintiff prevail in his action against the hiker's estate? A: Yes, because his rescue attempt was reasonable. B: Yes, because the law should not discourage attempts to assist persons in helpless peril. C: No, because the hiker's peril did not arise from his own failure to exercise reasonable care. D: No, because the plaintiff's rescue attempt failed and therefore did not benefit the hiker.

C: No, because the hiker's peril did not arise from his own failure to exercise reasonable care. One who acts negligently and endangers himself is also liable for the resulting injuries of anyone who undertakes to rescue him. Here, however, the hiker was not negligent in creating his peril, and the plaintiff will not prevail.

A bright 12-year-old child attended a day-care center after school. The center was located near a man-made duck pond on the property of a corporation. During the winter, the pond was used for ice-skating when conditions were suitable. At a time when the pond was obviously only partially frozen, the child sneaked away from the center's property and walked out onto the ice over the pond. The ice gave way, and the child fell into the cold water. He suffered shock and would have drowned had he not been rescued by a passerby. At the time of the incident, the pond was clearly marked with numerous signs that stated, "THIN ICE—KEEP OFF." When the child sneaked away from the day-care center, the center was staffed with a reasonable number of qualified employees, and the employees were exercising reasonable care to ensure that the children in their charge did not leave the premises. There had not been a previous instance of a child coming onto the corporation's property from the day-care center. The jurisdiction follows a rule of pure comparative negligence. In a suit brought on the child's behalf against the day-care center and based only on the facts above, who is likely to prevail? A: The child, because he left the center while he was under the center's care. B: The child, because the day-care center is located near a pond. C: The day-care center, because it was not negligent. D: The day-care center, because the child was a trespasser.

C: The day-care center, because it was not negligent. Here, the call of the question states the suit is between the day-care center and the child. However, the facts state that the pond in question was the property of the corporation. Thus, the attractive nuisance doctrine would not apply under these facts against the day-care center. Thus, there is no evidence of lack of reasonable care by the day-care center and they would likely prevail.

A defendant is on trial in federal court for bank robbery. Before the police had any suspects, a police officer interviewed an eyewitness at the police station and showed her a "mug book" containing dozens of photographs. The eyewitness identified the defendant's photograph as that of the robber. At trial, the eyewitness surprises the prosecutor by testifying that she is unable to identify the defendant as the robber. The prosecutor calls the officer to testify that the eyewitness identified the defendant from the photograph in the police station. The eyewitness remains present in the courthouse and can be recalled. Is the officer's testimony admissible? A: No, because the eyewitness was unable to identify the defendant at trial. B: No, because the eyewitness's testimony has disappointed the prosecutor but has not affirmatively harmed the prosecution's case. C: Yes, because the eyewitness's statement of identification as reported by the officer is not excluded by the hearsay rule. D: Yes, because the hearsay rule does not exclude out-of-court statements if a declarant testifies and is available for cross- examination.

C: Yes, because the eyewitness's statement of identification as reported by the officer is not excluded by the hearsay rule. The officer's testimony regarding the eyewitness's prior identification of the defendant is admissible as non-hearsay under Federal Rule of Evidence (FRE) 801(d)(1)(C), allowing prior statements of identification.

A patient who had suffered a severe fracture of her leg was treated by an orthopedist, who set the patient's leg and put it in a cast. When the leg continued to bother the patient six months later, she consulted a second orthopedist in the same town. The second orthopedist surgically inserted a pin to facilitate healing. The patient brought a malpractice action against the first orthopedist, claiming that he should have surgically inserted a pin at the time of initial treatment. The only evidence that the patient offered in support of her malpractice claim was the testimony of the second orthopedist, as follows: In response to the question "Would you have inserted a pin initially?" the second orthopedist testified, "I personally would not have been satisfied that the leg would heal properly without a pin." At the close of the patient's evidence, the first orthopedist moved for judgment as a matter of law. Should the motion be granted? A: No, because the patient has introduced evidence that the first orthopedist failed to give the care that the second orthopedist would have provided. B: No, because the second orthopedist practices in the same town and field of specialty as the first orthopedist. C: Yes, because the patient has failed to introduce evidence that the first orthopedist's care fell below the professional standard of care. D: Yes, because

C: Yes, because the patient has failed to introduce evidence that the first orthopedist's care fell below the professional standard of care. Professionals are held to a different standard of conduct than that of the ordinary person. Doctors especially have a specialized standard of care; most courts will apply a national standard of care to evaluate their conduct. The patient is responsible for introducing evidence to show that the orthopedist breached his standard of care. There is nothing here to suggest that this was the case.

A defendant operates a bank courier service that uses armored trucks to transport money and securities. One of the defendant's armored trucks was parked illegally, too close to a street intersection. The plaintiff, driving his car at an excessive speed, skidded into the armored truck while trying to make a turn. The truck was not damaged, but the plaintiff was injured. The plaintiff has brought an action against the defendant to recover damages for his loss resulting from the accident. The jury determined that both parties were negligent, but that the defendant was less negligent than the plaintiff. The jurisdiction follows a pure comparative negligence rule. In this action, the plaintiff should recover A: nothing, because the defendant was not an active or efficient cause of the plaintiff's loss. B: nothing, because the defendant was less negligent. C: his entire loss, reduced by a percentage that reflects the negligence attributed to the plaintiff. D: his entire loss, because the defendant's truck suffered no damage.

C: his entire loss, reduced by a percentage that reflects the negligence attributed to the plaintiff. In a pure comparative rule jurisdiction, the plaintiff may recover his full amount of damages, less the portion attributed to his own negligence. The plaintiff is not barred from recovery by his own negligence, but he will have his award reduced, according to the court's determination of the plaintiff's percentage of responsibility for his own injuries due to his excessive speed in driving.

A defendant is charged with aggravated assault on a game warden. The defendant testified that, when he was confronted by the warden, who was armed and out of uniform, the defendant believed the warden was a robber and shot in self-defense. The state calls a witness to testify that a year earlier, he had seen the defendant shoot a man without provocation and thereafter falsely claimed self-defense. The witness's testimony is A: admissible, as evidence of the defendant's untruthfulness. B: admissible, as evidence that the defendant did not act in self-defense on this occasion. C: inadmissible, because it is improper character evidence. D: inadmissible, because it is irrelevant to the defense the defendant raised.

C: inadmissible, because it is improper character evidence. The witness's testimony is improper extrinsic character evidence intended to prove the defendant's propensity for violence. The state cannot initiate evidence of the defendant's bad character merely to show that he is more likely to have committed the crime.

At the defendant's trial for burglary, one of the defendant's friends supported the defendant's alibi that they were fishing together at the time of the crime. On cross-examination, the friend was asked whether his statement on a credit card application that he had worked for his present employer for the last five years was false. The friend denied that the statement was false. The prosecutor then calls a witness, the manager of the company for which the friend works, to testify that although the friend had been first employed five years earlier and is now employed by the company, there had been a threeyear period during which he had not been so employed. The testimony of the witness is A: admissible, in the judge's discretion, because the friend's credibility is a fact of major consequence to the case. B: admissible, as a matter of right, because the friend "opened the door" by his denial on cross-examination. C: inadmissible, because whether the friend lied in his application is a matter that cannot be proved by extrinsic evidence. D: inadmissible, because the misstatement by the friend could have been caused by a misunderstanding of the application form.

C: inadmissible, because whether the friend lied in his application is a matter that cannot be proved by extrinsic evidence. Specific instances of the conduct, for the purpose of attacking or supporting a witness's character for truthfulness, may only be inquired into on cross-examination in certain circumstances, not through extrinsic evidence. Here, whether the friend lied on his credit card application cannot be proven by the witness's testimony, which would be improper extrinsic evidence.

A patient had been under the care of a cardiologist for three years prior to submitting to an elective operation that was performed by a surgeon. Two days thereafter, the patient suffered a stroke, resulting in a coma, caused by a blood clot which formed after the operation. When it appeared that she had entered a permanent vegetative state, with no hope of recovery, the artificial life-support system that had been provided was withdrawn, and she died a few hours later. The withdrawal of artificial life support had been requested by her family, and duly approved by a court. The surgeon was not involved in that decision, or in its execution. The administrator of the patient's estate thereafter filed a wrongful death action against the surgeon, claiming that the surgeon was negligent in having failed to consult a cardiologist prior to the operation. At the trial the plaintiff offered evidence that accepted medical practice would require examination of the patient by a cardiologist prior to the type of operation that the surgeon performed. In this action, the plaintiff should A: prevail, because the surgeon was negligent in failing to have the patient examined by a cardiologist prior to the operation. B: prevail, because the blood clot that caused the patient's death was caused by the operation which the surgeon performed. C: not prevail, because there is no evidence that a cardiologist would have provided advice that would have changed the outcome if one had examined the patient before the operation. D: not prevail, because the surgeon had nothing to do with the withdrawal of artificial life support, which was the cause of the patient's death.

C: not prevail, because there is no evidence that a cardiologist would have provided advice that would have changed the outcome if one had examined the patient before the operation. The critical issue in this question is whether the lack of a cardiology review is the cause in fact and the legal cause of the injury the patient suffered. This answer choice is the only answer that addresses the need to provide evidence of the causal link between the surgeon's breach of duty and the subsequent medical injury to the patient.

A graduate student who was moving needed cardboard boxes, so she went to her usual grocery store to look for some. The store regularly gave repeat customers empty boxes to promote goodwill. Seeing no boxes outside, the student entered the store and asked a store employee for help. The employee pointed toward the rear of the store and said that all the empty boxes were in the storeroom. The student went into the storeroom through a door with a sign that said: "Keep Out. Employees Only." While in the storeroom, she tripped on a fold in a floor mat and fell into a stack of wooden crates. The topmost crate fell on the student, causing a head injury. The student has sued the store to recover for her injury. Which statement below is the most appropriate characterization of the student and her conduct under traditional common law rules? A: The student assumed the risk, because she knew that the storeroom was not normally accessible to the public. B: The student was a licensee in the store, because she had no intention of making a purchase at the store during the box-hunting visit. C: The student was a trespasser in the storeroom, because she ignored the sign on the door barring entrance to the storeroom. D: The student was an invitee in the storeroom, because she had permission to enter the storeroom consistent with the store's policy of making its empty boxes available to repeat customers.

D: The student was an invitee in the storeroom, because she had permission to enter the storeroom consistent with the store's policy of making its empty boxes available to repeat customers. The store's policy, combined with the employee's express grant of permission, gave the student the status of invitee while she was in the storeroom looking for empty boxes.

The beneficiary of a decedent's life insurance policy has sued the life insurance company for the proceeds of the policy. At issue is the date when the decedent first experienced the heart problems that led to his death. The decedent's primary care physician has testified at trial that the decedent had a routine checkup on February 15. The physician then identifies a photocopy of a questionnaire, provided by the physician and completed by the decedent on that date, in which the decedent wrote: "Yesterday afternoon I broke into a big sweat and my chest hurt for a while." The beneficiary now offers the photocopy in evidence. Should the court admit the photocopy? A: No, because the original questionnaire has not been shown to be unavailable. B: No, because the statement related to past rather than present symptoms. C: Yes, as a business record. D: Yes, as a statement for the purpose of obtaining medical treatment.

D: Yes, as a statement for the purpose of obtaining medical treatment. The photocopy should be admitted because the decedent's statement in the questionnaire falls within FRE 803(4), the exception for statements made for purposes of medical diagnosis or treatment. The photocopy is also admissible because duplicates are generally admissible in federal court unless a question of authenticity arises or it would be unfair to admit it over the original.

A man's car sustained moderate damage in a collision with a car driven by a woman. The accident was caused solely by the woman's negligence. The man's car was still drivable after the accident. Examining the car the next morning, the man could see that a rear fender had to be replaced. He also noticed that gasoline had dripped onto the garage floor. The collision had caused a small leak in the gasoline tank. The man then took the car to a mechanic, who owns and operates a body shop, and arranged with the mechanic to repair the damage. During their discussion the man neglected to mention the gasoline leakage. Thereafter, while the mechanic was loosening some of the damaged material with a hammer, he caused a spark, igniting vapor and gasoline that had leaked from the fuel tank. The mechanic was severely burned. The mechanic has brought an action to recover damages against the man and woman. The jurisdiction has adopted a pure comparative negligence rule in place of the traditional common law rule of contributory negligence. In this action, will the mechanic obtain a judgment against the woman? A: No, because there is no evidence that the woman was aware of the gasoline leak. B: No, because the mechanic would not have been harmed had the man warned him about the gasoline tank. C: Yes, because the mechanic was not negligent in failing to discover the gasoline leak himself. D: Yes, because the mechanic's injury was a proximate consequence of the woman's negligent driving.

D: Yes, because the mechanic's injury was a proximate consequence of the woman's negligent driving. It is foreseeable that a car accident could rupture a gas tank leading the gasoline to ignite and causing severe burn damage to anyone in or near the car, and the woman's negligence was the proximate cause of the accident and all foreseeable injuries. The manner of the accident is not determinative; the mechanic's injury was a foreseeable result of the accident. The mechanic's injury was not so removed in time and circumstance as to offend fundamental fairness.

A fire that started in the defendant's warehouse spread to the plaintiff's adjacent warehouse. The defendant did not intentionally start the fire, and the plaintiff can produce no evidence as to how the fire started. However, the defendant had failed to install a sprinkler system, which was required by a criminal statute. The plaintiff can produce evidence that had the sprinkler system been installed, it could have extinguished the fire before it spread. In an action by the plaintiff against the defendant to recover for the fire damage, is it possible for the plaintiff to prevail? A: No, because the statute provides only for criminal penalties. B: No, because there is no evidence that the defendant negligently caused the fire to start. C: Yes, because a landowner is strictly liable for harm to others caused by the spread of fire from his premises under the doctrine of Rylands v. Fletcher. D: Yes, because the plaintiff was harmed as a result of the defendant's violation of a statute that was meant to protect against this type of occurrence.

D: Yes, because the plaintiff was harmed as a result of the defendant's violation of a statute that was meant to protect against this type of occurrence. A criminal statute can be used to set the standard of care in a negligence action if it was intended to protect against the type of harm that occurred by specifying preventive steps that should be taken. In that case, violation of the statute is negligence per se.

A plaintiff sued a defendant under an age discrimination statute, alleging that the defendant refused to hire the plaintiff because she was over age 65. The defendant's defense was that he refused to employ the plaintiff because he reasonably believed that she would be unable to perform the job. The defendant seeks to testify that the plaintiff's former employer advised him not to hire the plaintiff because she was unable to perform productively for more than four hours a day. The testimony of the defendant is A: inadmissible, because the defendant's opinion of the plaintiff's abilities is not based on personal knowledge. B: inadmissible, because the plaintiff's former employer's statement is hearsay not within any exception. C: admissible as evidence that the plaintiff would be unable to work longer than four hours per day. D: admissible as evidence of the defendant's reason for refusing to hire the plaintiff.

D: admissible as evidence of the defendant's reason for refusing to hire the plaintiff. The statement is not being offered for the truth of its contents, but rather, to establish the defendant's reason for not hiring the plaintiff, and is thus admissible as non-hearsay.

A plaintiff suffered a severe loss when his manufacturing plant, located in a shallow ravine, was flooded during a sustained rainfall. The flooding occurred because the city had failed to maintain its storm drain, which was located on city land above the plaintiff's premises, and because a railroad had failed to maintain its storm drain, which was located on railroad land below the plaintiff's premises. The flooding would not have occurred if either one of the two storm drains had been maintained properly. The plaintiff sued the railroad to recover compensation for his loss. The evidence in the case established that the failures of the two drains were caused by the respective negligence of the city and the railroad. There is no special rule insulating the city from liability. In his action against the railroad, the plaintiff should recover A: nothing, because he should have joined the city, without whose negligence he would have suffered no loss. B: nothing, because he did not introduce evidence that enables the court reasonably to apportion responsibility between the city and the railroad. C: one-half his loss, in the absence of evidence that enables the court to allocate responsibility fairly between the city and the railroad. D: all of his loss, because but for the railroad's negligence none of the flooding would have occurred.

D: all of his loss, because but for the railroad's negligence none of the flooding would have occurred. The "but for" test is satisfied where several acts combine to cause the injury, but none of the acts standing alone would have been sufficient. But for any of the individual acts, the injury would not have occurred. Here, although the plaintiff's damages resulted from the negligence of two independent entities, neither of which alone would have been sufficient to flood the plaintiff's manufacturing plant, the combined negligence satisfies the but for test. Therefore, the plaintiff may recover all of his losses.

A plaintiff sued a defendant for shooting her husband from ambush. The plaintiff offers to testify that, the day before her husband was killed, he described to her a chance meeting with the defendant on the street in which the defendant said, "I'm going to blow your head off one of these days." The plaintiff's testimony concerning her husband's statement is A: admissible, to show the defendant's state of mind. B: admissible, because the defendant's statement is that of a party-opponent. C: inadmissible, because it is improper evidence of a prior bad act. D: inadmissible, because it is hearsay not within any exception.

D: inadmissible, because it is hearsay not within any exception. The deceased's statement to the plaintiff that the defendant told him that the defendant was going to blow the deceased's head off one of these days is an out-of-court statement being offered for the truth of the matter asserted - that the defendant threatened the deceased. This statement is thus hearsay and is inadmissible because it does not meet the requirements for any exception to the hearsay rule.