8/21 Mixed-subject MBE PQs 1

Question 7596 A corporation entered into a contract with an owner of land for the transfer of land at a price of $500,000 in sixty days. The contract was silent as to its assignment. Ten days after the contract was executed, the corporation assigned the contract to a developer with no connections to the corporation. The owner, upon learning of the assignment, has indicated that she objects to the assignment because the developer is not as creditworthy as the corporation and, as a result, there is a greater chance that the developer will be unable to pay the purchase price. Is the owner bound to convey the land to the developer? Answers: No, because the contract was silent as to its assignment. No, because the developer is not as creditworthy as the corporation. Yes, because the corporation did not specifically delegate its duty to pay to the developer. Yes, because the corporation remains liable to the owner under the contract.

Answer choice D is correct. An assignment of a contract that is not limited to contractual rights (e.g., "this contract is assigned to") is typically treated as both an assignment of rights and a delegation of duties. In this case, although the corporation, by assigning the contract to the developer, has delegated its duties under the contract as well as assigned its rights, the corporation remains liable to the owner for payment of the purchase price. Consequently, even though the developer is not as creditworthy as the corporation, and thus there is a greater chance that the developer will be unable to pay the purchase price, the owner can still contractually compel the corporation to do so. Answer choice A is incorrect. Contractual duties generally may be delegated unless the contract prohibits their delegation. Here, because the contract is silent with regard to its assignment or the delegation of its duties, the corporation was not prohibited by a restriction implied by law on the assignment of the contract or the delegation of the corporation's duties under the contract. Answer choice B is incorrect. The delegation of a contractual duty is prohibited when the party to whom the duty is owed has a substantial interest in having the delegating party perform. Although in this case the owner may be concerned that the developer will be less likely to pay the purchase price because the developer is less creditworthy, the owner has not surrendered its rights against the corporation. Answer choice C is incorrect. Generally, the assignment of a contract includes the delegation of its duties, as well as the assignment of its rights. Consequently, even though the term "assignment" is used, the corporation most likely has also delegated its duties to the developer.

Question 7274 The caretaker and owner of a graveyard that was no longer in operation hosted movie nights in the graveyard. The caretaker used old stone coffins as seating, and movie patrons watched horror movies on a portable projection screen. Because he knew that the lids of the stone coffins were heavy enough to create a danger for children, the caretaker did not permit children to attend these events. However, the caretaker suspected that on nights when he did not show a movie, children would sometimes sneak into the graveyard. To deter these children, the caretaker posted a "No Trespassing" sign. One night, two brothers, aged eight and nine, snuck into the graveyard. Together, they lifted the lid of one of the stone coffins. The eight-year-old brother climbed in, and the brothers shut the lid. When they tried to open the lid so the nine-year-old could have his turn, it would not budge. The nine-year-old went home to get his parents for help. In the meantime, the eight-year-old boy passed out from a lack of oxygen. The parents were able to save the boy before he died, but the boy suffered brain damage. If the parents sue the caretaker for damages on behalf of the boy, are they likely to succeed? Answers: Yes, because the caretaker failed to exercise reasonable care. Yes, because the caretaker is strictly liable for the harm. No, because the children were trespassers. No, because the caretaker posted a "No Trespassing" sign.

Answer choice A is correct. The attractive nuisance doctrine provides that a landowner may be liable for injuries to children trespassing on the land if the following conditions are met: (i) an artificial condition exists in a place where the land possessor knows or has reason to know that children are likely to trespass, (ii) the land possessor knows or has reason to know that the condition poses an unreasonable risk of death or serious bodily injury to children, (iii) the children, because of their youth, do not discover or cannot appreciate the danger presented by the condition, (iv) the utility to the land possessor of maintaining the condition and the burden of eliminating the danger are slight compared to the risk of harm presented to children, and (v) the land possessor fails to exercise reasonable care to protect children from the harm. Here, the caretaker suspected that children came to the graveyard at night, and the stone coffins were an artificial condition in the graveyard which posed an unreasonable risk of harm. This risk could have been easily mitigated in many ways that would not have been an undue burden on the caretaker's business (e.g., bolt the stone coffins shut, put up a locked fence instead of just a sign, etc.). Therefore, the caretaker is likely liable for failing to exercise reasonable care to prevent trespassing children from injuring themselves. Answer choice B is incorrect because strict liability is not imposed on a land possessor for harm that occurred to a person while on the land, unless the harm resulted from an abnormally dangerous activity on the possessor's land. Instead, the land possessor is only liable if he breached the specific duty owed to the person on the land (e.g., discovered trespasser, licensee, invitee, etc.). Here, the caretaker is not strictly liable for the boy's injury; rather, he is liable for the boy's injury because he failed to exercise reasonable care. Answer choice C is incorrect. The fact that the children were trespassers does not preclude recovery due to the attractive nuisance doctrine. Answer choice D is incorrect because a mere sign is unlikely to constitute reasonable care to protect trespassing children in this case. At a moderate cost, the caretaker could have easily built a fence or locked the stone coffins in order to prevent the risk of injury to children.

Question 7009 A police officer received an all-points bulletin to look for a person of interest in a recent robbery of a diamond necklace. The alleged perpetrator was described as a tall blond man wearing a hooded sweatshirt and jeans. As the police officer drove towards the scene of the robbery, he noticed a tall blond man wearing a hooded sweatshirt and jeans walking down the street. The police officer pulled over and asked the man to stop. The man complied, and the police officer did a quick pat down of his outer clothing to ensure he was not carrying a weapon or any contraband. The police officer then checked the man's jean pockets and discovered a pawnshop receipt. The receipt was for a diamond necklace. Further investigation revealed it was the stolen necklace. Although the man denied stealing the necklace, he was arrested and charged with robbery. At trial, the man moved to suppress the pawnshop receipt. Should the court grant the motion to suppress? Answers: Yes, because the stop was not based upon a reasonable suspicion based upon articulable facts. Yes, because the receipt did not have physical characteristics that made its identity immediately obvious. No, because the police officer did not need probable cause to stop and frisk the man. No, because the police officer conducted a valid frisk under the plain feel exception.

Answer choice B is correct. A "stop" is a limited and temporary intrusion on an individual's freedom of movement short of a full custodial arrest. A stop is justified on the reasonable suspicion, based upon articulable facts that the detainees are or were involved in criminal activity. An officer who does not have probable cause to arrest may make a limited search of the person, such as a pat down of the outer clothing, if he has reasonable suspicion that the suspect was or is involved in criminal activity and that the frisk is necessary for the preservation of his safety or the safety of others. Finally, under the "plain feel" exception, if an officer conducting a valid frisk feels with an open hand an object that has physical characteristics that make its identity immediately obvious, then the officer may seize the evidence. Here, the police officer conducted a valid stop of the man based upon a reasonable suspicion because he matched the physical description of the perpetrator. The police officer was permitted to frisk the man for weapons or contraband, but a pawn shop receipt in the man's jean pocket would not fall under the "plain feel" exception as the officer had no reason to assume that a piece of paper was contraband of any sort. Answer choice A is incorrect because the police officer had a reasonable suspicion based upon articulable facts. He received an all-points bulletin describing the man, and the man was discovered in the area where the woman was robbed. Thus, based upon the totality of the circumstances, the stop was valid. Answer choice C is incorrect because even if the police officer did not need probable cause to stop the man, the police officer was only permitted to pat down the man for weapons or other contraband, and a receipt does not qualify as such. Answer choice D is incorrect because, as discussed above, the officer had no reason to assume that a piece of paper was contraband of any sort.

Question 8553 A manufacturer of an electric bus contracted with a public transportation system to provide 20 custom-made electric buses, at a total cost of $1,500,000, to be delivered within ninety days. A key necessary component of the buses' rechargeable batteries is rare earth mineral, which at the time that the contract was executed was being mined exclusively in a foreign country. Several days after the contract was executed, a civil war unexpectedly erupted in that country, resulting in the closing of the mine where the mineral was extracted. Thirty days later, with the civil war still raging, the bus manufacturer informed the public transportation system that because of the unavailability of the rare earth mineral, it would not be able to deliver the electric buses in the time frame agreed upon in the contract. Ninety-one days after the contract was signed, the public transportation system filed a complaint alleging breach of contract. Will the public transportation system likely prevail in its suit against the manufacturer? Answers: No, because performance was impracticable. No, because the parties had made a mutual mistake. Yes, because the manufacturer assumed the risk that a shortage of the rare earth mineral would arise. Yes, because the UCC perfect tender rule requires strict performance of the terms of the contract.

Answer choice A is correct. A party's duty to perform can be discharged by impracticability. The defense of impracticability is available if: (i) an unforeseen event occurs; (ii) the nonoccurrence of which was a basic assumption on which the contract was based; and (iii) the party seeking discharge is not at fault. Here, the civil war that erupted was unexpected, and the parties could not have foreseen the resulting closing of the mine, making it impossible for the manufacturer to produce the rechargeable batteries used by electric buses. The manufacturer was not at fault for the civil war, and therefore, would be able to raise a valid defense of impracticability. Answer choice B is incorrect because in order for mutual mistake to apply, a mistaken fact must have been in existence at the time the contract was formed. Answer choice C is incorrect because the facts do not indicate that the manufacturer had assumed the risk of the unavailability of the mineral, let alone a civil war, either expressly or impliedly. Answer choice D is incorrect because, although the UCC has adopted the perfect tender rule, it also recognizes the defense of impracticability, which discharges the manufacturer's duties in this case.

Question 8442 A farmer who owned 25 contiguous acres of orchards sold two acres of orchards to a couple in fee simple. Because the couple intended to build a residence on the two acres, they obtained an oral promise from the farmer that he and anyone to whom he transferred his land would cease using pesticides on the adjoining 23 acres of orchards. The farmer made the promise in good faith, intending to sell the remainder of his land to a developer who planned to subdivide the land into residential lots. The couple built a residence on their two acres, but soon sold their two acres to another buyer in fee simple. The couple told the buyer of the farmer's promise, and the buyer relied on this promise in making her decision to purchase the property as her primary residence. Due to an economic downturn, the developer dropped its plans to acquire the land, and the farmer instead sold the remaining 23 acres of orchards to a neighbor in fee simple. Before the sale, the farmer told the neighbor about his promise to the couple. The neighbor maintained the orchards on his 23 acres for one year without using pesticides, but because the harvest was substantially adversely affected by the lack of pesticides, the neighbor told the buyer that he would again use pesticides on the orchards. Can the buyer now living on the two acres enjoin the neighbor's use of pesticides on the orchards as a breach of the farmer's promise? Answers: No, because the farmer's promise was not in writing. No, because the neighbor was not in privity with the farmer. Yes, because the buyer relied on the farmer's promise when she purchased the residence. Yes, because the farmer's promise touched and concerned the land.

Answer choice A is correct. For a promise restricting the use of land to be enforced in equity against a subsequent transferee of the land, the requirements for an equitable servitude must be satisfied. Among those requirements is that the promise must be in writing. Here, the farmer's promise was only an oral promise. Therefore, the buyer who currently resides on the two acres of land cannot enforce the farmer's promise not to use pesticides on the orchards. Answer choice B is incorrect. Unlike a covenant running with the land, an equitable servitude is enforceable without regard to a privity requirement. In addition, the farmer and the neighbor were in privity because privity exists between a buyer and a seller for the purpose of the enforcement of a covenant when the successor holds an estate of the same duration as the original party. Answer choice C is incorrect because, despite the buyer's reliance on the farmer's promise, the promise is not enforceable as an equitable servitude because the promise was not in writing. Answer choice D is incorrect because, while a promise must touch and concern the land to be enforceable as an equitable servitude, this is not the only requirement, and even a promise meeting this requirement must also be in writing to be enforced as an equitable servitude.

Question 7090 The CEO of a water bottle company sent a memo on March 1 to various scientists stating that the first scientist to design and submit a water bottle made from 100% biodegradable materials would receive a $100,000 prize. The memo stated that the water bottle needed to be submitted to the company by September 1 in order to be considered for the prize. In response to the memo, an environmental scientist sent a letter to the CEO on March 15 stating that he accepted the CEO's offer to create the water bottle and that he intended to submit one by September 1. The scientist incurred $2,000 in expenses in preparation to begin experiments on making a biodegradable water bottle. On April 1, the CEO sent another memo to the scientists stating that the company was no longer interested in a 100% biodegradable water bottle. The scientist subsequently sued the water company to recover the $2,000 he spent in preparation to begin experiments. Will he recover this amount? Answers: Yes, because the scientist relied on the CEO's offer before it was withdrawn. Yes, because the scientist accepted the CEO's offer on March 15. No, because the scientist's acceptance was not effective until he made the water bottle. No, because the CEO effectively revoked the initial offer with his April 1 memo.

Answer choice A is correct. In general, an offer can be terminated by the offeror at any time. An offer is revoked when the offeror makes a manifestation of an intention not to enter into the proposed contract. In a unilateral contract, the offeree's promise to perform is insufficient to constitute acceptance. Acceptance of an offer for a unilateral contract requires complete performance, and a contract is not formed until performance is complete. Although starting performance is not enough to constitute acceptance of a unilateral contract, it makes the offer irrevocable for a reasonable period of time to allow for complete performance unless there is a manifestation of a contrary intent. Here, however, the scientist did not begin performance before the offer was revoked. Nevertheless, because the scientist incurred the $2,000 in expenses in reliance on the offer before it was revoked, the scientist can recover the $2,000. Answer choice B is incorrect because with a unilateral contract, a promise to perform is not enough; the offeree must complete performance. Answer choice C is incorrect. Although the scientist's acceptance was not effective until he completed performance, the scientist can recover expenses incurred in preparation to produce a biodegradable water bottle. Those expenses were incurred in reliance on the offer during the time that it was outstanding. Answer choice D is incorrect. Although the CEO revoked the prize offer before the scientist had begun to perform and thereby prevented the transformation of the offer into an irrevocable offer, the scientist can recover for expenses incurred in reliance on the offer before it was revoked.

Question 7510 A widowed landowner who held title to the land in fee simple wanted to keep the land in his family. Consequently, he devised the land as follows: "To my son, but if he dies survived by a spouse and children, then to his spouse during the spouse's life and remainder to my son's children, and if he dies survived only by a spouse, to my daughter." After the landowner's death, the landowner's daughter transferred her interest in the land by quitclaim deed to the son's spouse. Subsequently, the landowner's son died survived by that spouse but no children. By will, the landowner's son devised all of his real property interests to his spouse. The personal representative of the son's estate has filed an action in court seeking a determination as to whether the son's spouse or the landowner's daughter is the owner of the land. How should the court rule? Answers: For the son's spouse, because the landowner's daughter had quitclaimed her interest in the land to her. For the son's spouse, because the after-acquired title doctrine applies to property received through an inheritance or by will. For the landowner's daughter, because a future interest cannot be the subject of an inter vivos transfer. For the landowner's daughter, because the son died survived only by his spouse.

Answer choice A is correct. The landowner's devise created in the landowner's son a fee simple interest subject to two alternative future interests. One of those future interests was an executory interest in the landowner's daughter. After she acquired this interest, she transferred it to the son's spouse. Although at common law an inter vivos transfer of an executory interest was not permitted, today such a transfer is recognized as effective to pass this property interest. Upon the death of the landowner's son, this future interest became a present, possessory interest in fee simple. Because the son's spouse was the owner of this future interest at the time of the son's death, the son's spouse is the owner of the land in fee simple. Answer choice B is incorrect. When a person who purports to transfer real property that he does not own subsequently becomes the owner of that property, the after acquired title doctrine provides that title to the property automatically vests in the transferee. Regardless of whether this doctrine applies to property received through an inheritance or by will, the doctrine does not apply here because the landowner's daughter owned an executory interest in the land, which she validly transferred to the son's spouse. It is her transfer of that interest that gives rise to the son's spouse right to the land, not the application of the after-acquired title doctrine. Answer choice C is incorrect. Although at common law an inter vivos transfer of an executory interest was not permitted, today such a transfer is recognized as effective to pass this property interest. Answer choice D is incorrect. Although the terms of the landowner's will specified that if the landowner's son died, survived by a spouse and no children, which is what occurred, the land should pass to the landowner's daughter, the daughter had previously transferred her interest in the land to the son's spouse. Consequently, the son's spouse is entitled to the land.

Question 7340 A testator devised land to "my wife for her life, then to my son for his life, and then to his children who reach the age of 25." At the time of the testator's death, the testator's wife and only son were living, as was the son's only child, a six-year-old daughter. A court, in ruling on the devise, determined that it was the testator's intent that his grandchildren have a remainder interest in the land. The court reduced the age requirement of the devise from 25 to 21. Which of the following best explains the court's action? Answers: The court has applied the doctrine of cy pres to the devise. The court has applied the rule of convenience to the devise. The state has abolished the Rule Against Perpetuities. The state has an anti-lapse statute.

Answer choice A is correct. Under the doctrine of cy pres, a court may make changes to a conveyance in order to come "as near as possible" to the intent of the transferor. While the doctrine of cy pres is most often applied by a court in the context of a charitable gift, it may also be applied to achieve the intent of a grantor or testator by avoiding the effect of the Rule Against Perpetuities. Answer choice B is incorrect because, although the rule of convenience is sometimes applied to a remainder interest to prevent it from running afoul of the Rule Against Perpetuities, and this rule could be applied to save the grandchildren's remainder, it does not explain the court's action. The rule of convenience closes the class of persons who are entitled to take a future interest when any member of the class becomes entitled to immediate possession of the property if the instrument creating the future interest does not specify a closing date for determining the class members. It does not allow the court to alter the express terms of the devise. Answer choice C is incorrect because, if the state had abolished the Rule Against Perpetuities, there would be no reason for the court to modify the terms of the testator's will. The court's modification has been made to permit the grandchildren's remainder interest to avoid violating the Rule Against Perpetuities. Answer choice D is incorrect because the existence of an anti-lapse statute is irrelevant to the court's modification of the grandchildren's remainder interest. Anti-lapse statutes protect devises to individuals (usually close relatives) who have predeceased the testator from lapsing if the individuals left descendants who survive the testator.

Question 6182 A husband and wife decided to take a luxury cruise. On the last night of the cruise, the husband passed away in his sleep. The next morning, a temporary coffin was brought onto the ship to transport the husband's body to a mortuary. The cruise line used a crane to transport the coffin from the upper deck of the ship to the dock. The crewmembers negligently attached the crane straps to the coffin, and as the coffin was transported over the water, the straps loosened, and the husband's body fell out of the coffin and into the harbor. The wife, who watched her husband's body fall into the water, was horrified and traumatized by the incident. The wife filed suit against the cruise line for damages resulting from her emotional distress. Will the wife prevail? Answers: Yes, because the wife watched her husband's body fall into the harbor. Yes, because the crewmembers did not properly secure the coffin. No, because the wife did not suffer any physical injury from the accident. No, because the crewmembers' actions were not extreme and outrageous.

Answer choice B is correct. A plaintiff can recover for negligent infliction of emotional distress from a defendant whose tortious conduct placed the plaintiff in harm's way if the plaintiff demonstrates that: (i) he was within the "zone of danger" of the threatened physical impact—that he feared for his own safety because of the defendant's negligence; and (ii) the threat of physical impact caused emotional distress. Under the majority rule, damages for negligent infliction of emotional distress without physical symptoms are not recoverable; however, an exception exists for the negligent mishandling of a corpse. Here, the crewmembers mishandled the husband's corpse when they failed to properly secure the crane straps to the coffin. Due to their negligence, the wife will prevail. Answer choice A is incorrect because the simple fact that the wife saw her husband's body fall in the water does not give her a successful claim. If the body had fallen due to no fault on the part of the cruise line, she could not recover. It was the crewmembers' negligent handling of the body that is determinative of her claim, making answer choice B the better answer. Answer choice C is incorrect because, as discussed above, the negligent mishandling of a corpse is an exception to the physical injury requirement of negligent infliction of emotional distress claims. Answer choice D is incorrect because it applies the requirement for the nature of the defendant's conduct associated with intentional, not negligent, infliction of emotional distress. Even though the crewmembers' conduct was not extreme and outrageous, this does not bar the woman's recovery under negligent infliction of emotional distress.

Question 7793 A state legislator filed a complaint in a state court of general jurisdiction, alleging defamation by a media company incorporated in the state. The following year, the media company moved to dismiss the action for lack of prosecution. The court granted the motion, dismissing the complaint with prejudice and entering a judgment for the media company. Subsequently, the legislator filed a complaint based on diversity jurisdiction in the federal court, alleging the same defamation claim. In its answer, the media company raised the defense of claim preclusion (res judicata). Can the media company successfully plead the defense of claim preclusion (res judicata) based on the prior judgment? Answers: Yes, because the federal rules of civil procedure treat a dismissal for lack of prosecution as a final judgment. Yes, because a federal statute requires the federal court to give the state court judgment full faith and credit. No, because the Full Faith and Credit Clause of the U.S. Constitution only applies to the enforcement of the judgment of one state court by the courts of another state. No, because the issue of the media company's liability was not actually litigated.

Answer choice B is correct. In order for claim preclusion to apply with respect to a prior court decision, the decision must have been a valid, final judgment on the merits and the prior action and the current action must involve sufficiently identical parties and causes of action. Here, the state court judgment was a valid final judgment on the merits, despite being a dismissal for lack of prosecution, because the dismissal was with prejudice, and the parties and cause of action in the state court action are identical to those in the federal action. By federal statute, a federal court must give full faith and credit to a state-court judgment. Since the state court rendered a judgment for the media company, the federal district court is required to give this judgment preclusive effect. Answer choice A is incorrect because, although FRCP 41(b) does treat most involuntary dismissals, including a dismissal for failure to prosecute an action, as a dismissal with prejudice, the rule relates to dismissals with prejudice by federal courts, not to dismissals with prejudice by state courts. When determining the effect of a dismissal with prejudice by a state court, a federal statute requires the federal court to give the state court judgment full faith and credit. Answer choice C is incorrect because, while the Full Faith and Credit Clause of the U.S. Constitution only applies to the enforcement of the judgment of one state court by the courts of another state, a federal statute requires a federal court to give the same effect to judgment by a state court. Answer choice D is incorrect because, although an issue must actually be litigated in order for issue preclusion (collateral estoppel) to be applicable, there is no similar requirement with respect to claim preclusion.

Question 389 A defendant is charged with theft of services. The state statute provides in relevant part that "a person commits theft of services if the person willingly diverts services that are available only for compensation to the person's own benefit or to the benefit of another in order to avoid payment for the services." The state defines "willingly" as "action with knowledge that the conduct was unlawful." At trial, the defendant admitted that she helped her husband gain access to cable television and internet services in order to avoid payment to the cable provider, and that she knew that such access was unlawful, but asserted that she did so only because he threatened to harm their child unless the defendant helped him. The prosecution requested the court to instruct the jury that the burden of persuasion with regard to issue of whether the defendant acted under duress lies with the defendant. The defense objected to this request, arguing that it was unconstitutional. How should the court rule on the defense's objection? Answers: Overrule it, because a state is free to define the elements of a crime as it sees fit. Overrule it, because duress does not controvert the elements of theft. Sustain it, because the defendant, due to duress, did not possess the mens rea necessary to commit theft. Sustain it, because the defendant is entitled to present evidence in her defense.

Answer choice B is correct. While the prosecution bears the burden of persuasion with regard to each element of a crime, including the necessary intent, the burden of persuasion with regard to an affirmative defense, such as duress, that does not negate the elements of the crime may be placed on the defendant without violation of the Due Process Clause. Answer choice A is incorrect because, although a state is generally free to define the elements of a crime as it sees fit, it may not allocate the burden of persuasion with respect to those elements to the defense without violating the Due Process Clause. Answer choice C is incorrect because the defendant's alleged duress does not serve to negate the necessary mens rea (i.e., "willingly"--action with knowledge that the conduct was unlawful), which was established by the defendant's own admission, but instead acts as an excuse that, if established, would prevent the imposition of criminal liability for the defendant's otherwise criminal conduct. Answer choice D is incorrect because, while the Due Process Clause does require that a defendant have the opportunity to present evidence, such as evidence of duress, this requirement is irrelevant to the issue of whether, once evidence of duress has been presented, the burden of persuasion with regard to the defense of duress can be placed on the defendant.

Question 6664 A boyfriend and girlfriend lived together for two years. The boyfriend loved his girlfriend, but he was no longer attracted to her because she was 50 pounds overweight and expressed no intention of trying to lose the excess pounds. With the intention of helping her to lose weight without upsetting her, he started secretly crushing laxative and weight-loss pills and adding them to her meals. This went on for many months, during which the girlfriend lost 25 pounds. Eventually, the girlfriend started to feel lightheaded and dizzy all the time, she was always jittery, and she vomited on a regular basis, so she went to see a doctor. A toxicology report revealed that she had been ingesting weight-loss pills, and the doctor also discovered she had suffered some liver and kidney damage. The girlfriend confronted her boyfriend, because he usually did most of the cooking, and the boyfriend admitted that he had been adding the crushed pills to her meals because he loved her and didn't want to hurt her feelings by telling her she was overweight. The girlfriend immediately broke up with her boyfriend, but she started seeing a psychiatrist and taking anti-depressants because she was so upset by her boyfriend's actions. In an action against the boyfriend for intentional infliction of emotional distress, who will prevail? Answers: The boyfriend, because he did not intend to cause his girlfriend severe emotional distress. The boyfriend, because helping his girlfriend lose weight is not extreme and outrageous. The girlfriend, because the boyfriend's actions caused her severe emotional distress. The girlfriend, because the boyfriend caused her liver and kidney damage.

Answer choice C is correct. A defendant is liable for intentionally or recklessly acting with extreme and outrageous conduct that causes the plaintiff severe emotional distress. Here, the boyfriend caused his girlfriend severe emotional distress as evidenced by her need for a psychiatrist and anti-depressant pills. Answer choice A is incorrect as a defendant does not need to intend to cause severe emotional distress; it is enough that he acted recklessly with regard to the risk of causing the girlfriend such distress when he hid laxative and diet pills in her food for many months. Answer choice B is incorrect because helping someone lose weight is not extreme and outrageous, but the way that the boyfriend went about it went beyond the limits of human decency. Answer choice D is incorrect because the requirement for physical harm only applies when a bystander makes a claim for severe emotional distress.

Question 7326 A wealthy bicycle aficionado loaned one of his bicycles to a cyclist for use in a race. After the race, the cyclist failed to return the bicycle despite repeated requests by the aficionado. Several months later, while walking through the park, the aficionado happened upon the cyclist riding another bicycle that was the same make, model, and color as the aficionado's bicycle. Believing it to be his bicycle, the aficionado, standing only inches away from the bicycle, verbally threatened to grab the bicycle out from under the cyclist if he did not hand it over immediately. The cyclist, fearful of such an attack, surrendered the bicycle to the aficionado. Of the following, what is likely the most serious offense of which the aficionado could be properly convicted? Answers: Robbery Larceny Assault No crime

Answer choice C is correct. Assault is (i) an attempt to commit a battery, or (ii) intentionally placing another in apprehension of imminent bodily harm. Battery is the (i) unlawful (ii) application of force (iii) to another person (iv) that causes bodily harm to that person or (v) constitutes an offensive touching. With regard to the "fear of harm" type of assault, although the cyclist was fearful of the aficionado carrying out his threat, the threat was not to inflict imminent bodily harm on the cyclist, but instead to recover the bicycle. By contrast, with regard to the attempted battery version of assault, the verbal threat made by the aficionado coupled with his proximity to the bicycle makes it likely that he took a substantial step towards committing a battery. Although the aficionado did not threaten to harm the cyclist, he did threaten an offensive touching of the bicycle which was attached to the cyclist's person. The cyclist's apprehension of this offensive touching occurring was likely reasonable, given the aficionado's verbal threat and proximity to the bicycle. Even though he made a reasonable and honest mistake of fact that the bicycle in question was his bicycle because both were the same make, model, and color, the aficionado has no right to recover his own bicycle by the use of force when he voluntarily relinquished possession of it to the cyclist initially. Consequently, although the aficionado did not commit the "fear of harm" type assault, he did commit the attempted battery type of assault. Answer choice B is incorrect. Larceny is the (i) trespassory (ii) taking and carrying away (iii) of the personal property of another (iv) with the intent to permanently deprive that person of the property (i.e., intent to steal). A mistake of fact is a defense to a specific-intent crime, even if the mistake is unreasonable. Here, the aficionado had a reasonable and honest belief that the bicycle in question was his bicycle. Consequently, he did not have the specific intent to take the personal property of another and therefore did not commit larceny. Answer choice A is incorrect. Robbery is larceny from the person or presence of the victim by force or intimidation. Although the aficionado did gain possession of the bicycle through intimidation, because he did not commit larceny, he also cannot have committed robbery. Answer choice D is incorrect because, although the aficionado did not commit robbery or larceny, he did commit assault.

Question 7378 Congress passed and the President signed into law the Emissions Reduction Act, which requires all car manufacturers in the country to reduce the emissions of all of their vehicles to a certain percentage. The act provides that this percentage is to be set by executive order, but that the percentage must be determined by the application of specified standards and methods. Is the provision of the act allowing the President to set the percentage by executive order likely constitutional? Answers: No, because it is an impermissible delegation of the power to legislate. No, because it violates the Comity Clause of Article IV, Section 2. Yes, because Congress provided an intelligible standard for setting the percentage. Yes, because the President has the inherent power to issue executive orders governing domestic affairs.

Answer choice C is correct. Because Congress is vested by Article I with "all legislative powers," it may not delegate that power to any other branch of government. This principle is known as the "nondelegation doctrine." However, delegation of some of Congress's authority to the executive branch has consistently been held constitutional, so long as Congress specifies an "intelligible principle" to guide the delegate. Therefore, because the act provided an intelligible standard with which to determine the percentage to be enforced by executive order, it is likely constitutional. Answer choice A is incorrect because, due to the intelligible standards provided, this is a permissible delegation of legislative power. Answer choice B is incorrect because the Comity Clause, which provides that "the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states," is not relevant to this delegation of power between the legislative and executive branches. Answer choice D is incorrect. Although the President may exercise control over agencies by issuing executive orders, he still has no inherent power to make laws. Here, the executive orders contemplated by the Act will not manage an executive agency. Instead, because these orders would be directly applicable and enforceable against car manufacturers, they are outside the President's inherent authority. Consequently, with regard to this provision, the President's authority stems directly from congressional authorization of his act and not an inherent power to issue executive orders.

Question 7449 An individual was subpoenaed to appear as a witness before a federal grand jury investigating the existence of illegal drug activity. The subpoena was issued because there was reason to suspect that the individual possessed evidence relevant to the criminal activity under investigation, but there was no probable cause to believe that the individual had any such evidence or that she was involved in the crime. The individual timely filed a motion seeking to quash the subpoena as a violation of the Fourth Amendment. How should the court rule on this motion? Answers: Grant the motion, because the subpoena was not based on probable cause that the individual had committed a crime. Grant the motion, because the subpoena was not based on probable cause that the individual had evidence regarding a crime. Deny the motion, because the subpoena was not issued for the purpose of harassing the individual. Deny the motion, because the witness was not a target of the grand jury's investigation.

Answer choice C is correct. In general, the Fourth Amendment does not apply to a subpoena for a witness to testify before a grand jury. Consequently, even though the subpoena in question was not issued on the basis of probable cause, the individual's Fourth Amendment rights have not been violated. Accordingly, answer choices A and B are incorrect. Answer choice D is incorrect because, while a target of a grand jury investigation may refuse to answer a grand jury's questions when those questions violate the target's Fifth Amendment right against self-incrimination, any witness, even a target of the grand jury's investigation, is not protected by the Fourth Amendment from complying with a grand jury subpoena.

Question 7363 A corporation owned large, above-ground tanks that were used to store petroleum. The corporation's construction and use of these tanks for this purpose predated the adoption by the city of a zoning ordinance that prohibited such structures in the area. As required by the ordinance, the corporation filed a notice of non-conforming use with the proper zoning authority, but inadvertently failed to include payment of the required filing fee. Due to a drop in the demand for petroleum, the corporation decided to stop using the tanks. For one year while looking for a buyer for the tanks, the corporation kept the empty tanks in good repair. The corporation then acquired another corporation and transferred title to the tanks to that corporation. The wholly owned subsidiary corporation plans to use the tanks to store liquid asphalt. Of the following issues, which is least likely to serve as proper grounds for the zoning authority to thwart the subsidiary's plans to use the tanks to store liquid asphalt? Answers: The parent corporation abandoned the use of the tanks to store petroleum. The parent corporation failed to register its nonconforming use of the tanks properly. The transfer of title to the tanks to a wholly owned subsidiary constitutes a transfer of ownership of the tanks. Use of the tanks to store liquid asphalt rather than petroleum will constitute a change in use of the tanks.

Answer choice C is correct. Here, the parent corporation's use of the storage tanks on its property prior to the adopted zoning ordinance constitutes a nonconforming use that is permitted to continue. It is generally accepted that the owner of the right to use property in a manner that is not in keeping with the zoning ordinance may transfer that right to another person. Consequently, even if the transfer of title to the tanks to a wholly owned subsidiary were treated as a transfer of ownership, this would not serve as a basis for denying the subsidiary corporation the right to continue a nonconforming use of the property. Answer choice A is incorrect because a property owner may abandon the right to use property in a manner that does not conform to the zoning ordinance. Although some states recognize that abandonment may be deemed to occur via the passage of time, most states require that the property owner evidence an intent to abandon the nonconforming use. Since the parent corporation maintained the empty tanks, there is an issue as to whether this action evidences an intent to not abandon using the tanks as storage facilities. Answer choice B is incorrect because a zoning authority may require a property owner who has a qualifying nonconforming use to register that use with the authority. Failure to do so can result in the loss of the right to the nonconforming use. Here, the parent corporation's failure to pay the filing fee raises an issue as to whether the parent corporation registered its nonconforming use. Answer choice D is incorrect because a property owner may not switch from one nonconforming use to another. Here, there is an issue as to whether continuing to use the tanks for storage, but storing a different substance, constitutes such a switch.

Question 6358 While on patrol, a police officer saw a known drug dealer drive by alone in his car. The officer suspected that the dealer was in possession of drugs, but he lacked probable cause to stop the dealer on that basis. The officer noticed that the windows of the car were tinted in excess of what is permitted by state law. The officer pulled the dealer over for violation of the window-tinting law. While issuing the ticket to the dealer, the officer smelled marijuana smoke emanating from the vehicle. The officer ordered the driver out of the car and searched it, finding not marijuana, but a bag of cocaine on the floor of the trunk. At trial for drug possession, the dealer sought to suppress the cocaine. If the court grants this suppression motion, which of the following is most likely justification for doing so? Answers: The stop for violation of the window-tinting law was merely a pretext for determining whether the dealer was in possession of drugs. The officer was searching for marijuana, not cocaine. The officer lacked probable cause to search the trunk of the car. The officer was only justified in searching an area within the wingspan of the dealer once he was out of the car.

Answer choice C is correct. The Fourth Amendment does not require police to obtain a warrant to search a vehicle if they have probable cause to believe that it contains contraband or evidence of criminal activity. The police may search anywhere in a car that they have probable cause to believe contains contraband, including the trunk and locked containers. In this case, the officer smelled marijuana smoke, which gave him probable cause to search the passenger compartment of the car. However, the court could have logically concluded that the officer lacked probable cause to believe that the smoke was emanating from the trunk of the car, since the dealer, while driving, would not have had access to the trunk of the car, and there was no one else in the car. Answer choice A is incorrect because police may use a pretextual stop to investigate whether a law has been violated, provided they have probable cause to believe that the law for which the vehicle was stopped has been violated. In this case, the officers had probable cause to pull the vehicle over for having window tints that violated state law. Answer choice B is incorrect. Assuming an officer has probable cause to search a place, any contraband found in plain view while searching that place is admissible. Answer choice D is incorrect. While the police officer could order the dealer out of the car since it had been lawfully stopped, and, on the basis of smelling marijuana smoke, could have frisked the dealer for evidence of marijuana, the officer was not confined to conducting a frisk of the dealer. The smell of marijuana smoke coming from the car also gave the officer the right to search the passenger compartment of the car.

Question 7197 The owner of an apple orchard rented space in the loft of a local farmer's barn to store her harvested apples each year until they were frozen and ready to be pressed for ice cider in the spring. Each fall, the owner of the orchard hired workers to harvest the apples, store them in barrels, and transport the barrels to the farmer's loft. The farmer also rents space in the loft to other farmers to store their crops, and these other farmers are permitted to move the contents of the loft around to make room for their own stored crops. One winter, the farmer was working in his barn when a barrel of frozen apples rolled off the loft and struck him, causing severe injuries. The farmer has sued the owner of the apple orchard for negligence and has established all of these facts at trial before resting his case. The farmer has also established that the barrel would not have rolled out of the loft unless it had been negligently placed on its side. Can the owner of the apple orchard succeed in a motion for a directed verdict? Answers: No, because an employer may be vicariously liable for her employee's torts. No, because the barrel would not have injured the farmer in the absence of negligence. Yes, because the jury may not properly infer negligent conduct by either the orchard owner or her employees. Yes, because the owner of the orchard cannot be held liable for any injury that occurred on the farmer's property.

Answer choice C is correct. The court may grant a directed verdict against a party in a negligence action if the court finds that there is insufficient evidence for a jury to reasonably find for that party. However, if the plaintiff establishes a prima facie case of res ipsa loquitur, then the trial court should deny the defendant's motion for a directed verdict, and the issue of negligence must be decided by the trier of fact. Under the traditional standard for res ipsa loquitur, the plaintiff must prove that the accident was caused by an agent or instrumentality within the exclusive control of the defendant. Here, the facts establish that other farmers renting the loft had the ability to move the barrels. Therefore, even though this is not the kind of accident that would generally occur in the absence of negligence, other farmers had access to these barrels after the employees of the orchard owner loaded them into the loft. On these facts, the jury cannot properly infer negligence on the part of the owner of the apple orchard or her employees. Therefore, because the farmer rested his case, the orchard owner's motion is likely to succeed. Answer choice A is incorrect. Although this is a correct statement of law, there are not sufficient facts for a jury to infer that the employees of the orchard owner were negligent. Answer choice B is incorrect because this is only one requirement for the application of res ipsa loquitur. Because the farmer has not established that the barrel was in the exclusive control of the owner of the orchard or her employees, res ipsa loquitur will not protect the farmer from a directed verdict. Answer choice D is incorrect because it mistates the law. If the owner of the orchard had created a dangerous condition on the farmer's land that injured the farmer, she could have been held liable.

Question 1891 A friend convinced the owner of a vacant store to allow him use of the store for a one-year period for $12,000, to be payable in monthly installments of $1,000. This amount was significantly below its fair rental value. Their agreement was not reduced to writing. Near the end of the year, the friend and the owner discussed an extension of the arrangement, but did not arrive at an agreement. The owner informed the friend that, if the friend remained, the rent would be raised to its market value. The friend objected. After the end of the one-year period, the friend remained in the store. The friend sent the owner a $1,000 rent check. The owner returned it to the friend, indicating that the rent was now the fair rental value of the premises. Is the owner correct that the friend is obligated to pay the fair rental value of the premises? Answers: No, because the rental increase was not in writing. No, because the friend did not agree to the rent increase. Yes, because the owner did not have a duty to mitigate. Yes, because the friend was informed about the rent increase before the beginning of the rental period and the increase is reasonable.

Answer choice D is correct. A landlord may increase the rental amount that is due from a holdover tenant where the landlord informs the tenant about the rent increase before the prior rental period expires and the rent increase is not unreasonable. Answer choice A is incorrect because, since the rent increase is effective due to the operation of law rather than an agreement by the parties, it does not have to satisfy the Statute of Frauds. Moreover, since the maximum length of time to which a holdover tenant is bound is one year, even if the rent increase is treated as arising by an implied agreement between the parties, it does not need to be in writing in order to satisfy the Statute of Frauds. The Statute of Frauds requires a lease agreement for more than one year to be in writing; the original lease agreement was for one year. Answer choice B is incorrect because a tenant who holds over can be bound to a higher rent, even when the tenant objects to the rent increase, provided the landlord gives the tenant notice of the rent increase prior to the termination of the previous rental period. Answer choice C is incorrect because, although a landlord does have a duty to mitigate, this duty arises when a tenant has abandoned the leased premises and the landlord treats the abandonment as an offer of surrender, which the landlord accepts by retaking the premise. Consequently, the lack of a duty to mitigate is irrelevant to the issue of the rental amount that the landlord can charge to the friend.

Question 7361 A property owner operated a gas station in an area zoned for residential uses only. Although the gas station was a nonconforming use, the zoning ordinance provided that, as a use that predated the adoption of the zoning ordinance, it was permitted to continue. Recently, the owner has sought to transform the property from a gas station to a convenience store. Can the zoning board enjoin this use? Answers: No, because a convenience store is more in keeping with a residential neighborhood than a gas station. No, because the property owner has a vested right to use the property for a nonconforming use. Yes, because a zoning ordinance generally is not required to permit a nonconforming use to continue after the ordinance becomes effective. Yes, because the use of the property as a convenience store does not predate the adoption of the ordinance.

Answer choice D is correct. A property owner whose nonconforming use predates a zoning ordinance may not, after the ordinance becomes effective, switch to another nonconforming use. Here, the property owner cannot convert his property from a gas station to a convenience store because a convenience store is not a residential use of the property. Answer choice A is incorrect because, although a convenience store is arguably more in keeping with a residential use than a gas station, it is nevertheless a new nonconforming use and as such can be prohibited. Answer choice B is incorrect because, although a property owner may have a vested right to continue a nonconforming use after an ordinance prohibiting such use is effective, this right does not extend to a different nonconforming use of the property. Answer choice C is incorrect because a zoning ordinance generally is required to permit a nonconforming use to continue after the ordinance becomes effective. However, once that particular nonconforming use ceases, a subsequent nonconforming use may be and usually is prohibited.

Question 7242 A defendant was charged with committing larceny at a college party that took place on a Saturday night. At his trial, the defendant testified that he was at his parent's house in a neighboring state for that entire weekend. The defendant then called his mother to the stand. On direct, his mother testified that on the weekend of the college party, the defendant had come home from college for his father's birthday. She testified that he arrived Friday evening, the family spent all of Saturday and Sunday together, and the defendant left on Monday morning. On cross-examination, the prosecution asked the defendant's mother about a time in the past when the defendant had lied to his swimming coach about his whereabouts during an out-of-state competition. The defense objected to this line of questioning. Which of the following best supports the defense's objection to the prosecution's question? Answers: The defendant's character can only be proven by reputation or opinion evidence. Inquiries into the defendant's past acts are only permitted on cross-examination of the defendant. The defendant is not on trial for a crime involving dishonesty. The defendant's mother has not testified as to the defendant's character.

Answer choice D is correct. Generally, a specific instance of conduct (e.g., lying on a job application) is not admissible to attack or support the witness's character for truthfulness. However, on cross-examination, a witness may be asked about specific instances of conduct if it is probative of the truthfulness or untruthfulness of (i) the witness or (ii) another witness about whose character the witness being cross-examined has testified. Here, the prosecution cannot ask the defendant's mother about this instance of the defendant's dishonesty unless she has testified as to his character. Therefore, this reason best supports the defense's objection to the question. Answer choice A is incorrect because the defendant has testified at his trial. Therefore, his character for truthfulness is open to proper impeachment by reputation and opinion evidence, as well as specific acts of dishonesty. Answer choice B is incorrect because it misstates the law. When a character witness is cross-examined, the court may allow a party to inquire into specific acts committed by the person about whom the witness is testifying, even when that person is the defendant. Answer choice C is incorrect. A witness can be impeached by the proper admission of his or her past specific instances of dishonesty, even if the witness is a defendant on trial for a crime that does not involve dishonesty.

Question 6690 The police had a suspected drug dealer's house under surveillance for several days. One night, the suspect brought out a garbage bag, tied it shut, and left it on the curb for town pickup. The police waited until the suspect went back into the house, then grabbed the bag off the curb and searched it. Inside, they found plastic bags with traces of a substance that later proved to be heroin. The suspect was arrested and charged with various drug-related offenses. He moved to suppress the plastic bags with traces of heroin. Should the court grant the suspect's motion to suppress? Answers: Yes, because the garbage bag was tied shut. Yes, because the police needed a warrant to search the garbage bag. No, because the police had probable cause to search the garbage bag. No, because there was no reasonable expectation of privacy in the garbage bag.

Answer choice D is correct. There is no reasonable expectation of privacy in garbage set curbside for pickup. Answer choice A is incorrect. Although the fact that the bag was tied shut might evidence the suspect's subjective expectation of privacy in the garbage bag, there is no objectively reasonable expectation of privacy in the garbage bag. Answer choice B is incorrect. Because there is no reasonable expectation of privacy in the garbage bag, the police did not need a warrant to search the bag. Answer choice C is incorrect. Even assuming the police had probable cause to search the bag based on the surveillance conducted on the suspect's house, the police would have had to secure a warrant in order to search the bag, except for the fact that the suspect did not have a reasonable expectation of privacy in the garbage bag. Therefore, answer choice D is the better answer.

Question 4345 A Caucasian woman was charged with a felony. During voir dire, the woman's attorney objected to the make-up of the jury venire, which consisted entirely of Caucasian members, but the trial judge overruled the objection. Following jury selection, the woman's attorney objected that the jury consisted entirely of Caucasian members, and the trial judge again overruled the attorney's objection. At trial, the prosecution produced overwhelming evidence of the woman's guilt, and the jury convicted the woman. Following her conviction, the woman appealed on the grounds that her rights under the Equal Protection Clause were violated. The woman produced data showing that 30% of the relevant community were African-American, and that the overwhelming majority of these community members lived in three distinct zip codes. The defense further showed that the computer system used to summon citizens for jury duty did not have those three zip codes programmed into its software. Is the appellate court likely to rule in the woman's favor? Answers: No, because the woman cannot show that she suffered actual harm from having an all Caucasian jury. No, because the woman does not have standing to challenge the jury selection process because she cannot show actual bias. Yes, because the jury chosen to hear the case was not a representative sample of the community. Yes, because the venire from which the jury was chosen was not a representative sample of the community.

Answer choice D is correct. The Equal Protection Clause prohibits racial discrimination in the selection of juries. A jury must be selected from a representative cross-section of the community. To establish a prima facie case for non-representative jury selection, a defendant must show that: (i) the group excluded is a distinctive group in the community; (ii) the group was not fairly represented in the venire from which the jury was selected; and (iii) the underrepresentation resulted from a systematic exclusion of the group. In this case, all three elements are present, and the appellate court is likely to rule in the woman's favor. Answer choice A is incorrect because the woman does not have to show actual harm in this case. The right to have a jury selected from a representative cross-section of the community is not subject to harmless error analysis. Answer choice B is incorrect because a defendant has standing to challenge the jury selection process without showing actual bias. Answer choice C is incorrect because although a jury must be selected from a representative cross-section of the community (the venire), the actual jury selected need not represent a fair cross-section of the community.

Question 7349 In accordance with state law, the developer of a subdivision filed a declaration of covenants, restrictions, and easements with the applicable county land records office. Among the provisions in the declaration was one that restricted the use of each lot in the subdivision to a single-family home; the declaration also provided that the developer could amend the declaration at any time with regard to the lots owned by the developer. After approximately four-fifths of the lots were sold and single-family residences were constructed on those lots, the developer modified the declaration to permit the construction of multi-family residences on the lots still owned by the developer. Shortly thereafter, the developer turned over control of the subdivision association to its members, the owners of the lots, and secured local government approval of the construction of multi-family residences on his lots. The association sued the developer, seeking an injunction to prevent the developer from building multi-family residences on the lots owned by the developer. How is the court likely to rule on the association's action? Answers: For the developer, because the developer reserved the right to amend the declaration with regard to the lots he owned. For the developer, because the local government approved the construction of multi-family residences on his lots. For the subdivision association, because the developer must seek the association's approval for any further development. For the subdivision association, because the declaration did not fairly apprise purchasers of the developer's power to materially change the character of the subdivision.

Answer choice D is correct. While the declaration gives the developer a general power to amend the declaration with respect to lots owned by the developer, the developer may not use this power in a way that would materially change the character of the development or the burdens on the existing community members unless the declaration fairly apprises purchasers that the power could be used for the kind of change proposed. The change in the type of residences that may be constructed on the developer's lots likely represents a material change. Consequently, the court is likely to grant the injunction requested by the association. Answer choice A is incorrect because, while the declaration gives the developer a general power to amend the declaration with respect to lots owned by the developer, it fails to alert those homeowners who have purchased lots that the power could be used to change the residential character of the subdivision from single to multi-family residences. Answer choice B is incorrect because, even though the developer's plan to build multi-family residences on his lots has been approved by the local government, the developer must also comply with the restrictions in the declaration that limit the type of residential structure that he can build on a lot. Answer choice C is incorrect because, once a developer turns over control of a homeowners' association to its members, the developer is required to develop his lots in accord with the declaration. The developer need not seek the association's approval to do so.

Question 4332 A local convenience store was robbed and the clerk on duty was shot. The next day, the police arrested a suspect and brought her into the police station for questioning. An officer read the suspect her Miranda rights, which she stated she understood. For an hour, a police officer questioned the suspect about her involvement in the robbery. The suspect did not respond to the questions, remaining silent. Learning that the clerk had died, the officer informed the suspect of the clerk's death, and told her that she should start talking if she wanted to get the best possible plea deal. She confessed to the robbery and shooting. At trial, the suspect sought to suppress her confession. Is the confession likely to be suppressed for violation of Miranda rights? Answers: No, because the suspect waived her Miranda rights by making the statement. No, because the suspect's statement was not made in response to a question from police. Yes, because the suspect did not receive fresh Miranda warnings before she was told of the clerk's death. Yes, because the suspect invoked her Miranda rights by remaining silent in the face of police questioning for over an hour.

Answer choice A is correct. A defendant may knowingly, voluntarily, and intelligently waive her Miranda rights. While silence alone is not sufficient to waive those rights, a suspect who has received and understood the Miranda warnings, and has not expressly invoked her Miranda rights, waives the right to remain silent by making an uncoerced statement to the police. In this case, the suspect waived her rights when she confessed. Answer choice B is incorrect because Miranda applies not only to express questioning by police but also to words or actions that the police know or should know are likely to elicit an incriminating response. Consequently, the suspect confession was made in response to police interrogation. Answer choice C is incorrect because the police are not required to provide the suspect with fresh Miranda warnings where there has been no break in the interrogation. Answer choice D is incorrect because a suspect who has not expressly invoked her Miranda rights waives her right to remain silent by making an uncoerced statement.

Question 8606 A lifeguard at a community pool and her friend went camping in the woods at a spot beside a lake. The evening they arrived, the lifeguard assured her friend that it was safe for her friend to swim in the lake. Although the lake presented no danger to an experienced swimmer like the lifeguard, it was dangerous for a novice swimmer like her friend. The next morning, the friend woke up before the lifeguard and went for a swim by himself in the lake. When the lifeguard woke up, she went in search of her friend, but unfortunately discovered his drowned body. Is the lifeguard's conduct likely sufficient to hold her criminally liable? Answers: No, because the lifeguard was not aware that the friend was in danger. No, because the lifeguard was not on duty and the friend was not related to the lifeguard. Yes, because a failure to act can satisfy the actus reus requirement. Yes, because the friend went swimming in reliance on the lifeguard's assurance that it was safe to swim in the lake.

Answer choice A is correct. A legal duty to act and the failure to do so can result in criminal liability. Here, the lifeguard had a duty to save her friend because the friend had gone swimming based on the lifeguard's assurance that it was safe to do so. Despite this duty and the fact that it would likely have been reasonably possible for the lifeguard to have rescued her friend, the lifeguard did not have knowledge of the facts giving rise to the duty to act and yet fail to act—she was unaware that her friend had gone swimming. Answer choice B is incorrect. Although the lifeguard did not have a duty arising from either a contract or a special relationship, the lifeguard did have a duty to act because the friend had gone swimming based on the lifeguard's assurance that it was safe to do so. Answer choice C is incorrect. Although typically a criminal act must be a voluntary, affirmative act that causes a criminally proscribed result, a legal duty to act and the failure to do so can result in criminal liability. However, the defendant must have knowledge of the facts giving rise to the duty to act and yet fail to act. Here, the lifeguard did not know that the friend went swimming. Therefore, she cannot be held criminally liable for the friend's death even though she otherwise had a legal duty to act to save her friend. Answer choice D is incorrect. The lifeguard's assurance that it was safe to swim in the lake gave rise to a legal duty to act to save her friend. Despite this duty, she was unaware that her friend had gone swimming and therefore cannot be held criminally liable for the friend's death.

Question 7406 Three siblings, two brothers and a sister, inherited land as equal tenants in common from their mother. The property was subject to a mortgage that contained an acceleration clause, which provided that the entire outstanding balance of the mortgage loan was due upon default. None of the siblings made the mortgage payments as they became due and the mortgage fell into default. The mortgagee foreclosed on the mortgage. At the foreclosure sale, one of the siblings, the sister, purchased the land, paying 45 percent of the land's fair market value. Can either of her two brothers reclaim his interest in the land? Answers: Yes, if he pays his sister one-third of the amount she paid to redeem the land. Yes, if he pays his sister one-third of the fair market value of the land. No, because co-tenants do not owe each other fiduciary duties. No, because their interests were eliminated through the foreclosure sale.

Answer choice A is correct. Although co-tenants owe a duty of fair dealing to each other, co-tenants generally do not owe fiduciary duties to each other. However, a fiduciary obligation can be imposed on co-tenants who jointly purchase the property in reliance on each other or acquire their interests at the same time from a common source, such as by gift, will, or inheritance. Typically, these co-tenants will be related or in a confidential relationship. The primary situation in which such a co-tenant is found to have a fiduciary obligation arises when the property is sold at a tax or mortgage foreclosure sale and a co-tenant acquires the property. In such a situation, the other co-tenants have the right to reacquire their original interests by paying their due contributions within a reasonable time. Here, the co-tenant purchaser, the sister, can be compelled to permit the other former co-tenants the opportunity to reacquire their interests in the property by paying their share of the acquisition costs. Answer choice B is incorrect because the former co-tenants are not required to repurchase their interests based on the fair market value of the property; rather, they can repurchase their interests based on the amount that the purchasing co-tenant, the sister, paid to acquire the property. Answer choice C is incorrect. Although generally a co-tenant does not owe fiduciary duties to another co-tenant, a fiduciary obligation can be imposed on co-tenants who jointly purchase the property in reliance on each other or acquire their interests at the same time from a common source, such as by gift, will, or inheritance. The primary situation in which such a co-tenant is found to have a fiduciary obligation arises when the property is sold at a tax or mortgage foreclosure sale and a co-tenant acquires the property. In such a situation, the other co-tenants have the right to reacquire their original interests by paying their due contributions within a reasonable time. Answer choice D is incorrect because, although the buyer at a foreclosure sale generally takes free of the mortgagor or the mortgagor's successors in interest, here the sister, as a co-tenant, can be compelled to permit the other former co-tenants the opportunity to reacquire their interests in the property by paying their share of the acquisition costs.

Question 6710 The vice principal at a public high school had suspicions that a particular 18-year-old student possessed a legally prescribed but controlled pain medication in violation of the school district rules. Although she did not have probable cause to conduct a search of the student, the vice principal believed she had a moderate chance of finding evidence of the student's possession of the medication. Pursuant to the vice principal's order, the student emptied his pockets in her office. Although the student did not have any pain medication in his pockets, among the items in the student's pockets were three tablets of an amphetamine that the student possessed illegally. The student was charged with possession of the amphetamine tablets. If the student moves to suppress the three tablets seized by the vice principal, should the court grant the student's motion? Answers: No, because the search was reasonable. No, because the student did not have a reasonable expectation of privacy with respect to items brought onto school grounds. Yes, because the vice principal lacked probable cause to search the student's pockets. Yes, because the vice principal was not searching for amphetamine tablets but for a pain medication that the student legally possessed.

Answer choice A is correct. Although the Fourth Amendment prohibits unreasonable searches and seizures by a government official and a warrantless search conducted without probable cause generally violates this prohibition, there is an exception for administrative searches, including searches of students by public school personnel. For such student searches to be reasonable, the school personnel must have a "moderate chance" of finding the expected evidence, and the measures adopted for the search must be reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction. Here, these requirements appear to have been met. Therefore, the search was reasonable, and the evidence is admissible. Answer choice B is incorrect because a student retains a reasonable expectation of privacy in items brought onto school property. This expectation of privacy, however, must yield when school officials have reasonable grounds for a search of the student's belongings. Answer choice C is incorrect. Although probable cause is generally a touchstone for a search conducted by a governmental official to be valid, a public school official need only have reasonable grounds for conducting a search of a student. Answer choice D is incorrect. School personnel may search for an item that is prohibited from being in a student's possession pursuant to school rules, even though the student's possession of the item is legal. As with other governmental officials (e.g., the police), illegal items seized during a valid search are admissible, even though such items were not the reason for the search.

Question 7225 A student visited a local library to finish a last-minute essay. The student lost track of time while poring over her research in the basement of the library, so she did not hear the announcement that the library was closing. The library security guard was supposed to walk through the library before locking up to ensure that no library patrons were accidentally trapped in the library overnight. However, because the security guard was in a hurry, he left and locked the doors without checking the basement. When the student finally noticed the time and tried to leave the library, she found all the exits locked. She was discovered, asleep and unharmed, on the library floor the next morning. If the student brings a claim of tortious false imprisonment against the security guard, is she likely to succeed? Answers: No, because the security guard did not know she was in the library when he locked the door. No, because the student was not harmed by the imprisonment. Yes, because the security guard recklessly locked the library without checking the basement for patrons. Yes, because the student was physically confined to the library with no reasonable means of escape.

Answer choice A is correct. False imprisonment occurs when a person intends to confine another to a bounded area, confinement occurs, and the other is aware of or harmed by the confinement. If the confinement is due to the defendant's negligence rather than his intentional acts, then the defendant may be liable under the rules governing negligence, but not under the intentional tort of false imprisonment. Therefore, because the security guard did not act with the requisite intent, the student cannot bring a successful claim against him for false imprisonment. Answer choice B is incorrect because a plaintiff in an action for tortious false imprisonment is only required to prove actual damages if she was unaware of the confinement. Here, the student knew she was trapped, which is sufficient for a claim of tortious false imprisonment. Answer choice C is incorrect. As discussed above, the defendant in an action for tortious false imprisonment must intend to cause the imprisonment. Recklessness does not satisfy the requisite intent for this tort. Answer choice D is incorrect because it also overlooks the required intent for tortious false imprisonment.

Question 6210 A shopper brought a federal diversity action in federal court against a grocery store for negligence based on a slip and fall on the grocery store's premises. The shopper's complaint alleged that the grocery store negligently failed to clean a liquid spill on the floor—a spill that its employees were aware of. The failure to clean the spill caused the shopper to slip and fall, resulting in permanent injuries to her leg. The grocery store's answer contained a general denial, stating that it denied every allegation in the complaint. After the shopper received the grocery store's answer, she immediately filed a motion for summary judgment. In support of her motion, the shopper submitted three affidavits—two from other shoppers and one from a former employee of the store, each fully supporting the shopper's version of the event. The grocery store did not submit any affidavits or other evidence in opposition to the motion. Should the court grant the shopper's motion for summary judgment? Answers: Yes, because the grocery store failed to submit evidence showing a genuine issue of fact for trial. Yes, because the evidence, when viewed in the light most favorable to the shopper, demonstrates the lack of a genuine dispute. No, because the general denial in the grocery store's answer is sufficient to demonstrate a genuine dispute for trial. No, because the shopper failed to meet the burden of persuasion.

Answer choice A is correct. If a motion for summary judgment is properly made and supported, then an opposing party may not rely merely on allegations or denials in her own pleading, but she must either set out specific facts showing a genuine dispute for trial or show by affidavit or declaration that, for specified reasons, she cannot present facts essential to oppose the motion. If the opposing party does not so respond, then summary judgment, if appropriate, will be entered against that party. In this case, the shopper properly made a motion for summary judgment and supported it with three affidavits, fully supporting the shopper's version of the event. As such, the shopper has met the burden of persuasion. The grocery store, however, did not submit any affidavits or other evidence demonstrating a genuine issue of fact for trial. The grocery store also failed to assert that, due to an insufficient opportunity to obtain discovery, she could not present evidence that would demonstrate a genuine issue of fact. Rather, the store relied merely on the general denial in the answer. Because the shopper met the burden of persuasion and the grocery store has not presented any evidence to the contrary, the court should grant the shopper's motion for summary judgment. Answer choice B is incorrect because the evidence must be viewed in the light most favorable to the nonmoving party, the grocery store, when considering a summary-judgment motion. Answer choice C is incorrect because the grocery store cannot merely rely on the denials in its answer, especially a blanket general denial, to successfully oppose the shopper's motion for summary judgment. Answer choice D is incorrect because the shopper has met her burden of persuasion by submitting affidavits fully corroborating her version of the event.

Question 7336 An individual, disguised as a health care worker, entered a room in an assisted living facility with the intent of stealing the valuables of the occupants of the room. Both of the unrelated occupants were asleep. As the individual was searching the items on the table next to the bed of one of the occupants, the other occupant lying on his bed across the room woke up. The individual flashed a knife and told the occupant that she would harm his sleeping roommate unless the occupant revealed to her where he kept his cash. The occupant stated that it was in a book lying on a chair beside his bed. The individual walked over to the chair, picked up the book, and removed the cash. As she was walking towards the door of the room, an employee of the facility entered the room and confronted the individual. The individual was arrested and charged with robbery. Can the individual properly be convicted of robbery? Answers: Yes, because she was leaving the room with the occupant's cash that she had gained through intimidation. Yes, because, at the time that the individual entered the room, she had the intent to commit a felony. No, because the individual did not use force or threaten to use force against the occupant whose property she took. No, because the individual did not remove the cash from the occupant's room.

Answer choice A is correct. Robbery is larceny from the person or presence of the victim by force or intimidation. Larceny is the (i) trespassory (ii) taking and carrying away (iii) of the personal property of another (iv) with the intent to steal. Here, the individual took and carried away the occupant's cash with the intent to steal it. In addition, the individual took the cash from a book on a chair beside the bed in which the occupant was lying after having intimidated the occupant into revealing its whereabouts. Consequently, the individual can be convicted of robbery. Answer choice B is incorrect. Unlike burglary, robbery does not require that the defendant have the intent to commit a felony before entering a dwelling. Answer choice C is incorrect. Although robbery does require that the defendant take property through force or intimidation, the threat of immediate serious physical injury need not be made against the victim himself, but may be made against another person who is present when the threat is made. Moreover, the other person against whom serious physical harm is threatened need not be related to the victim. Answer choice D is incorrect. Although larceny does require that the defendant carry the victim's personal property away, larceny does not require the defendant to have left the premises where the larceny took place, but merely that the defendant move the property. Even a slight movement of the property is sufficient. Here, after the individual gained control of the occupant's cash, the individual was walking out of the room with the cash when she was stopped.

Question 5945 Congress enacted a statute that required a state "to take appropriate action to overcome language barriers that impede equal participation by its students in its instructional programs." The statute was enacted in response to Congress's concern that public school students whose native language was not English were hampered in their ability to learn because classroom instruction was almost exclusively presented in English, and that a state's failure to take action to address this issue resulted in the denial of equal educational opportunities to students on the basis of their race or national origin. Among the approved appropriate state actions is the funding of special classes for such students. Of the following, which constitutes the best source of constitutional authority for this statute? Answers: Section 5 of the Fourteenth Amendment. The General Welfare Clause of Article I, Section 8. The Equal Protection Clause of the Fifth Amendment. The Spending Clause of Article I, Section 8.

Answer choice A is correct. The Section 5 Enabling Clause of the Fourteenth Amendment permits Congress to pass legislation to enforce the equal protection and due process rights guaranteed by the Fourteenth Amendment, as long as there is "congruence and proportionality" between the injury to be prevented or remedied and the means adopted to achieve that end. Congress may override state government action that infringes upon Fourteenth Amendment rights, but it may not regulate wholly private conduct under this amendment. Answer choice B is incorrect because the General Welfare Clause has been interpreted as giving Congress the power to tax and spend for the general welfare, but not as permitting Congress to enact legislation simply for the general welfare, as a state legislature can under its police power. The General Welfare Clause is inapplicable here because the federal statute at issue authorizes the expenditure of state funds to fund these classes, not federal funds. Answer choice C is incorrect. There is no federal equal protection clause. Although there is no federal equal protection clause, the Supreme Court has held that the Fifth Amendment Due Process Clause includes the rights guaranteed by the Equal Protection Clause of the Fourteenth Amendment. However, this only means that discrimination by the federal government is subject to the same standard as discrimination by the states—it does not give Congress the power to pass legislation to enforce the equal protection and due process rights guaranteed by the Fourteenth Amendment. Answer choice D is incorrect. Although Congress has the power pursuant to the Spending Clause to authorize the expenditure of federal funds for the general welfare, this statute does not authorize such an expenditure. Instead, the statute sanctions a state's allocation of its funds in a particular manner to meet the objectives of this statute.

Question 6338 Police believed that a suspect had been involved in a hit-and-run accident that critically injured a pedestrian. The suspect's car was a dark-colored sedan, just as the offending vehicle had been, and the suspect generally matched the description of the driver given by witnesses at the scene. The suspect was picked up several blocks from the scene of the accident. Upon his arrest, he was forced to give a urine sample, which ultimately confirmed that he had been driving while intoxicated. He was then made to stand in an in-person lineup. After several witnesses identified him as the driver of the car that critically injured the pedestrian, he was charged with driving while intoxicated and vehicular assault, both felonies. After he was charged, the suspect requested an attorney. The defense attorney moved to have the results of the urine test and in-person lineup suppressed as violations of the suspect's Sixth Amendment right to counsel. How should the court rule on the defense attorney's motion to suppress? Answers: Deny the motion as to both the in-person lineup and the urine test. Deny the motion as to the in-person lineup, but grant the motion as to the urine test. Grant the motion as to the in-person lineup, but deny the motion as to the urine test. Grant the motion as to both the in-person lineup and the urine test.

Answer choice A is correct. The Sixth Amendment provides a constitutional right to counsel in any case in which a defendant is sentenced to incarceration. The Sixth Amendment right to counsel applies at all critical stages of a prosecution, after formal proceedings have begun. The right automatically attaches when formal judicial proceedings have begun, whether that be at a post-arrest initial appearance before a judicial officer, or by way of formal charge, preliminary hearing, indictment, information, or arraignment. This right does not apply to pre-charge lineups or the taking of fingerprints or blood samples, or likely urine samples. Accordingly, the suspect's Sixth Amendment rights were not violated. Thus, the motion to suppress should be denied. Accordingly, answer choices B, C, and D are incorrect.

Question 7103 A wine critic went to a tour of a winery. Before the tour group entered the room where the wine barrels were stored, the tour guide explained that the room needed to be cool and dark in order to store the wine properly. He also explained that due to the porousness of the barrels, the wine often soaked through the wood and turned the barrels purple. As the tour group walked through the dark room, the critic accidentally slipped on a puddle of wine that had seeped out of one of the barrels and broke his foot. The critic sued the winery to recover damages for his broken foot. At trial, it was established that the winery hired an expert to check on the wine barrels on a daily basis to ensure that the wine barrels were intact and that there was not any excess seepage of wine on the floor. It was also established that the expert had skipped his scheduled shift the morning before the critic's injury, and that no one had inspected the room for dangerous puddles. Is the critic likely to succeed in a negligence action against the winery? Answers: Yes, because the winery's duty to inspect the property and protect invitees from any unreasonably dangerous conditions cannot be delegated. Yes, because the trier of fact may infer the existence of the winery's negligence from the puddle of wine on the floor. No, because the winery satisfied its duty to the critic with a warning that wine sometimes soaked through the barrels in the dark wine storage room. No, because the winery hired the expert to check on the wine barrels on a daily basis to ensure there was not any excess seepage of wine.

Answer choice A is correct. The critic, as a member of a regular tour group, is an invitee of the winery; i.e., someone invited to enter or remain on the land for a purpose connected to business dealings with the land possessor. As such, the winery owes him a duty of reasonable care, including the duty to use reasonable care to inspect the property, to discover unreasonably dangerous conditions, and to protect the critic from those dangers. Because this duty is non-delegable, the winery remains liable for the expert's negligence. Answer choice B is incorrect because res ipsa loquitur is not necessary for the winery to be held liable for the critic's injuries. Regardless of where the wine came from and whose negligence is to blame for the puddle, the winery owes the critic a duty of reasonable care, including the duty to use reasonable care to inspect the property, to discover unreasonably dangerous conditions, and to protect the critic from those dangers. The critic can establish that the winery has breached this duty through direct evidence, without resorting to res ipsa loquitur. Answer choice C is incorrect because it more accurately states a land possessor's duty to a licensee; however, as noted above, the critic as a business visitor is an invitee owed a higher duty of care. The winery should have satisfied its duty of care by ensuring there was no wine on the floor prior to a tour of the wine storage room. Answer choice D is incorrect because a land possessor's duty to invitees is non-delegable.

Question 2976 A woman told her friend that she believed she had a peanut allergy, although it had not been diagnosed. In an attempt to prove her long-held theory that peanut allergies do not really exist, the friend decided to surreptitiously give the woman some peanuts. The friend invited the woman over for lunch, assuring her that the lunch was peanut-free. In fact, the friend had substituted peanuts for pine nuts in the pesto on their sandwiches. After they finished eating, the friend began to feel guilty and admitted to her plan. When the woman saw hives forming on her arm, she decided to go to the doctor. The doctor told the woman that the hives were likely due to anxiety, but that he would provide an ointment. Due to a mix-up, the doctor ordered the nurse to provide the woman with an antibiotic to which the woman was allergic. The woman suffered a severe reaction to the antibiotic. The woman has sued her friend and her doctor for negligence. The friend has filed a motion to dismiss the claims against her. Is the friend likely to succeed in having the claims against her dismissed? Answers: No, because the doctor's error and the resulting harm were foreseeable. No, because the friend's actions were the direct cause of the woman's injuries. Yes, because the doctor's error was the direct cause of the woman's injuries. Yes, because the doctor's error was a superseding cause of the woman's injuries.

Answer choice A is correct. To succeed on a negligence claim, the plaintiff must prove proximate causation. Proximate cause exists when the defendant's actions are a direct cause of the plaintiff's injuries. Or, if an intervening force occurs between the defendant's act and the plaintiff's injury, the defendant still may be liable if the intervening force was foreseeable. Medical malpractice is a foreseeable intervening force. In this case, the doctor's error was foreseeable after the friend intentionally gave the woman a food to which she may have been allergic. Accordingly, the friend was the proximate cause of the woman's injuries. Answer choice B is incorrect because the doctor's negligence in providing the woman with the wrong medication was the direct cause of the woman's injuries. Answer choice C is incorrect because, although the doctor's error was the direct cause of the woman's injuries, the doctor's actions were a foreseeable intervening force. Accordingly, the friend is unlikely to succeed in having the claims dismissed. Answer choice D is incorrect because the doctor's actions were not a superseding cause of the woman's injuries. When an intervening cause is unforeseeable, it may become a superseding cause and cut off the defendant's liability. Medical malpractice is foreseeable, however. Thus, the doctor's actions were not a superseding cause.

Question 7075 A movie director entered into a two-year rental agreement with the CEO of a production company to rent one of the company's 20 studios for $3,000 a month. The agreement also included an option that stated in its entirety, "At his option, [the director] may purchase one of the company's studios prior to the end of the rental agreement." Prior to signing the agreement, the CEO made a promise to add new editing equipment to the rented studio, but did not follow through on the promise. Before the rental agreement expired, the director refurbished the studio he was renting in order to enhance its editing quality. The director then attempted to pay $100,000 in order to exercise his option and purchase the studio. The CEO refused to sell the studio to the director. What is the strongest argument in favor of the CEO if the director sues him for specific performance? Answers: The terms of the option to purchase a studio are too indefinite. The CEO's oral promise to add editing equipment was a condition precedent to his duty to perform. The option to purchase the studio by the director violates the parol evidence rule. There is no consideration to support the option to purchase a studio at the production company.

Answer choice A is correct. Under common law, all essential terms (i.e., the parties, subject matter, price, and quantity) must be covered in an agreement. Here, the rental agreement did not describe the essential terms of the option to purchase, including the cost of the studio or the specific studio that was for sale. Answer choice B is incorrect because the CEO would not be able to benefit from his own failure to perform. Answer choice C is incorrect. The parol evidence rule prevents parties from altering their written contract through the use of contemporaneous or prior oral declarations. Here, the option to purchase was included in the written rental agreement. Therefore, it does not violate the parol evidence rule. Answer choice D is incorrect. If an option is within an existing contract, no separate consideration is required for the option to be enforceable. Here, the option was included in the rental agreement. The rental agreement included consideration in the form of the director's monthly payment of rent to the company. Therefore, no separate consideration for the option is required.

Question 7444 A defendant was unaware that he had been charged with conspiring to distribute cocaine in violation of federal law. Prior to his arrest, he traveled to a foreign country. He returned to the United States a year later, and lived in the United States under his own name for more than seven years before he was arrested on the cocaine conspiracy charge of which he had been unaware. Shortly after his arrest, he filed a motion to dismiss the charge against him on the grounds that his right to a speedy trial granted by the Sixth Amendment had been violated. Upon which date is the time period for measuring the defendant's Sixth Amendment right commenced? Answers: The date on which he was charged. The date on which he returned to the United States. The date on which he was arrested. The date on which he asserted his Sixth Amendment right.

Answer choice A is correct. Under the Sixth Amendment's right to a speedy trial, the time period for measuring this right commences at the time of arrest or formal charge, whichever comes first. The defendant need not know about the charges against him for the right to attach. Answer choice B is incorrect because, while the absence of the defendant from the applicable jurisdiction is a factor to be considered in determining whether his right to a speedy trial has been violated, the time period for measuring this right commences at the time of arrest or formal charge. Answer choice C is incorrect because the time period for measuring a defendant's speedy trial right commences at the time of arrest or formal charge, whichever comes first. Here, the defendant was charged with crime of conspiracy to distribute cocaine before he was arrested for that crime. Answer choice D is incorrect because, although the defendant's assertion of his right to a speedy trial is a factor to be considered in determining whether that right has been violated, the time period for measuring this right commences at the time of arrest or formal charge, whichever comes first.

Question 6588 The Employee Retirement Income Security Act (ERISA) provides that specific provisions of the Act "supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan." Among those specific provisions is one that requires an employer with a group health plan to provide to each employee who would lose coverage as the result of termination of employment the opportunity to elect continuation coverage under the plan for a period of at least 60 days. Prior to the enactment of the continuation coverage election requirement, a state statute imposed a similar requirement on employers within the state with a group health plan. What is the effect of the federal provision on the state statute? Answers: The federal provision preempts the state statute. The state statute continues to be effective because it imposes the same requirements as the federal provision. The state statute continues to be effective because it only applies to employers within the state. The state statute continues to be effective because it was enacted before the federal provision.

Answer choice A is correct. Under the Supremacy Clause of Article VI, Section 2 of the U.S. Constitution, a federal law that expressly prohibits state regulation of a matter preempts state law on that matter. Here, ERISA provides that specific provisions of the Act, including the provision that addresses the right of an employee to elect continuation of health care coverage under an employer's group health plan, preempt state laws with regard to this right. Consequently, the state statute that provides for this right is expressly preempted. Answer choice B is incorrect because, even though the state law is consistent with the federal provision, the federal law expressly preempts the state law. Answer choice C is incorrect because federal law, as the "law of the land," applies to all states unless otherwise limited. The fact that the state law was limited to employers within the state does not protect it from preemption by a federal law that applies throughout the United States. Answer choice D is incorrect because the language of the federal law expressly preempts existing as well as future state regulation of this employee right.

Question 5062 A plaintiff filed a complaint in federal district court. The defendant was properly served with the complaint and summons and the process server properly filed a return of service with the court. The defendant has failed to timely serve an answer on the plaintiff or file it with the court. Which of the following steps should the plaintiff take first? Answers: Request the court clerk to enter a default. File a motion seeking sanctions under Rule 11. File a motion to strike under Rule 12. File a motion for a default judgment under Rule 55.

Answer choice A is correct. When a defendant has failed to plead or otherwise defend an action, the plaintiff can request that the court clerk enter a default. The court clerk must enter a default if the plaintiff can establish the defendant's failure, usually by affidavit. Answer choice B is incorrect because sanctions under Rule 11 apply to improper pleadings (e.g., the allegations lack evidentiary support) or improper use of pleadings (e.g., to harass the opposing party). Rule 11 sanctions do not apply to a failure to plead. Answer choice C is incorrect. A motion to strike is a request for the court to remove redundant, immaterial, impertinent, or scandalous material or an insufficient defense from a pleading. Here, because the defendant has not answered the complaint, and therefore has not pled, there are no pleadings to strike. Answer choice D is incorrect. Before a default judgment against a defendant can be sought, the court clerk must first enter the defendant's default.

Question 6262 In a medical malpractice suit by a woman against a doctor, the woman seeks to introduce a properly authenticated photocopy of her hospital chart. The woman alleges that she told the assisting medical resident who took her medical history that, given the option, she would prefer to be prescribed a generic medication that was covered by her insurance. The chart contained a notation made by the medical resident suggesting that the doctor should prescribe the generic medication. The medical resident recalls including a notation regarding the generic medication on the hospital chart. However, the woman was given a non-generic medication during her stay at the hospital, and suffered injuries due to an unexpected side effect. She had never had similar side effects on the generic medication covered by her insurance. The woman has chosen to enter the photocopy of the notated hospital chart, but does not seek to enter the actual prescriptions given and filled by the hospital. Is the photocopy of the notated hospital chart admissible? Answers: Yes, as a record of regularly conducted activity. Yes, as a recorded recollection. No, because the photocopy violates the best evidence rule. No, because the hospital chart is hearsay not within an exception.

Answer choice A is correct. While made out of court and offered to prove the truth of the matter asserted, a record or other writing (e.g., memorandum, report, data compilation) of any act or event made in the course of regularly conducted business is admissible. Medical records are considered business records to the extent that the entries relate to diagnosis or treatment. Accordingly, the hospital chart falls under the business records exception to the hearsay rule. Answer choice B is incorrect because the recorded recollection exception only applies if a witness is unable to testify about a matter for which a record exists. Here, the medical resident recalls making the notation. Unlike the recorded recollection exception, the business records exception does not require the inability to remember. Answer choice C is incorrect because a properly authenticated photocopy of a document is an "original" for the purposes of the best evidence rule. Answer choice D is incorrect because the hospital chart falls within the business records exception to hearsay.

Question 7183 In 1923, Congress enacted a statute banning the sale of "filled milk" products. Any person who sold a filled milk product would be subject to prosecution for violating the statute. The statute has not been enforced for eighty years because, following its enactment, courts held that the statute's definition of filled milk is too ambiguous. Recently, however, a milk producer created a recipe for a filled milk product that would be a combination of evaporated milk powder and coconut oil. The milk producer has started to sell the filled milk product to grocery stores. The milk producer seeks to enjoin enforcement of the statute against him. Is a federal court likely to hear the milk producer's case? Answers: No, because the court will not issue an injunction until an action is brought against the milk producer. No, because the statute has a long history of non-enforcement. Yes, because the milk producer's claim is fully developed as he has started distributing the filled milk product. Yes, because there is an imminent threat of prosecution of the milk producer.

Answer choice B is correct. "Ripeness" refers to the readiness of a case for litigation. A federal court will not consider a claim before it has fully developed; to do so would be premature, and any potential injury would be speculative. For a case to be "ripe" for litigation, the plaintiff must have experienced a real injury (or imminent threat thereof). Hence, if an ambiguous law has a long history of non-enforcement, a case challenging that law may lack ripeness. Here, the filled milk statute has a long history of non-enforcement because the language of the statute has been found to be ambiguous. For this reason, the milk producer's case likely lacks ripeness. Answer choice A is incorrect. If this issue was not unripe due to the statute's history of enforcement, this would be a proper situation in which to request injunctive relief. If his case was ripe, the milk producer would not have to wait until an action was brought against him to file for injunctive relief. Answer choice C is incorrect because simply distributing the filled milk product will not render the milk producer's case ripe when the statute has a long history of non-enforcement. Answer choice D is incorrect because there is no imminent threat of prosecution, as there is a long history of non-enforcement of the statute.

Question 6109 An upstairs and downstairs neighbor in a duplex exchanged apartment keys in the event there was an emergency. One of the water pipes in the upstairs neighbor's bathroom burst and started leaking while she was out of the country. The downstairs neighbor noticed the leak coming through her bathroom ceiling, so she immediately went upstairs and turned off the water. As she was leaving the apartment, she noticed a beautiful fur coat hanging by the door. She decided to borrow it for a big date she had that night. She ended up keeping the fur coat for a week and wearing it frequently, but she returned it before the upstairs neighbor returned from vacation. The upstairs neighbor saved thousands of dollars in repair because the downstairs neighbor turned off her water. She tried to give the downstairs neighbor a thank you gift, but the downstairs neighbor said no thank you was necessary because she had borrowed her fur coat while the neighbor was on vacation. The upstairs neighbor felt tremendously violated, and sued the downstairs neighbor for trespass to chattels. At the trial, the upstairs neighbor explained that the fur coat had great sentimental value because it had belonged to her great grandmother. Is the upstairs neighbor likely to succeed? Answers: No, because the downstairs neighbor returned the fur coat to the upstairs neighbor. No, because the upstairs neighbor cannot prove she suffered any damages. Yes, because the upstairs neighbor does not need to prove actual damages. Yes, because the downstairs neighbor wore the fur coat.

Answer choice B is correct. A defendant is liable for trespass to chattels if he intentionally interferes with a plaintiff's right of possession by either dispossessing the plaintiff of the chattel, or using or intermeddling with the plaintiff's chattel. Trespass to chattels requires that the plaintiff show actual harm to or deprivation of the use of the chattel for a substantial time. The upstairs neighbor cannot prove that she suffered any damages, so her trespass to chattels claim will likely fail. Answer choice A is incorrect because even if the downstairs neighbor returned the coat, she could have still been liable if the upstairs neighbor had suffered actual damages. Answer choice C is an incorrect statement of law because actual damages must be proven. Answer choice D is an incomplete statement of law—the upstairs neighbor must prove both interference with her possession of the coat and actual damages.

Question 6325 A father was throwing a wedding for his daughter, and the wedding costs were adding up so quickly that the father was forced to take out a second mortgage on his home, as well as a bank loan at a very high interest rate. The father was under a great amount of financial pressure, but he was willing to do anything to give his daughter her dream wedding. After many months of stress and anxiety, his daughter's wedding day finally arrived. While waiting in the buffet line to get some dinner at the wedding reception, the father overheard his daughter's mother-in-law tell another guest that she thought the wedding was low-rent and tacky, and that her daughter-in-law's father was a penny-pinching, tightfisted man. The father became enraged and could not control himself. He grabbed a knife from the roast beef carving station and stabbed his daughter's mother-in-law to death. A state statute defines murder in the first degree as premeditated and deliberate, murder in the second degree as common-law murder, and voluntary manslaughter under the common-law rule. What crime did the father commit? Answers: First-degree murder. Second-degree murder. Voluntary manslaughter. Involuntary manslaughter.

Answer choice B is correct. Common-law murder is the unlawful killing of another human being committed with malice aforethought. Malice aforethought includes the following mental states: intent to kill, intent to do serious bodily injury, reckless indifference to an unjustifiably high risk to human life (depraved heart), or intent to commit certain felonies (felony murder). Here, the father intended to do serious bodily injury when he stabbed the mother-in-law with a carving knife. He also demonstrated a callous disregard for human life when he stabbed her over some disparaging comments about the wedding and his alleged tight-fistedness. Answer choice A is incorrect. Based upon the facts, the father's actions were not premeditated, because there is no indication that the father planned to kill the mother-in-law in advance. Answer choice C is incorrect. For a defendant to be found guilty of voluntary manslaughter, there must be adequate provocation arousing a sudden or intense passion in the mind of an ordinary person. The defendant must suffer a loss of control, must not have sufficient time to cool off, and must in fact not have regained her self-control before the killing of the victim. Here, the father suffered a loss of control when he overheard the mother-in-law, and he did not regain self-control before he stabbed her to death. However, words alone are not adequate, no matter how provocative. Answer choice D is incorrect because the homicide was not committed with criminal negligence or during an unlawful act; it was an intentional act.

Question 7184 Congress created an investigatory committee to look into the judicial administrative processes of federal judges. In particular, the committee was tasked with investigating the issuance of court orders, the management of trial schedules, and the drafting of basic court documents by judicial assistants. The goal of the committee was to ensure that the administrative processes were carried out efficiently, accurately, and pursuant to federal legislation regarding the judicial administrative process. After much investigation, the committee concluded that a federal district court judge was negligently mismanaging his trial schedule, causing undue delays in his case log. Based upon its findings, the committee made a recommendation to Congress to remove the federal judge. Can Congress remove the federal judge based on the committee's recommendation? Answers: No, because Congress cannot investigate a federal judge's administrative processes. No, because the federal judge may only be removed by impeachment. Yes, because Congress can remove federal judges with or without cause. Yes, because the federal judge mismanaged his trial schedule.

Answer choice B is correct. Congress is limited in its restraints on the independence of the judiciary, and in particular under Article III, Section 1, as to its ability to remove or impeach a federal judge. Federal judges may "hold their offices during good behavior" and may be removed only by impeachment. Here, impeachment proceedings were not brought against the federal judge. Rather, the removal was sought based on the investigatory committee's recommendation. Moreover, although the federal judge in this case mismanaged his trial schedule, this does not violate the good behavior clause of the Constitution. A violation of the good behavior clause would more likely arise in a scenario where a judge has accepted a bribe or committed perjury. Answer choice A is incorrect because Congress can investigate judicial administrative processes. Answer choice C is incorrect because Congress cannot remove federal judges without proper impeachment proceedings based on a lack of "good behavior." Answer choice D is incorrect because, as stated above, mismanagement of a trial schedule likely does not violate the good behavior clause.

Question 8423 A newspaper published a story about a matter of public concern involving a local charity. The story stated that some of the charity's workers, who numbered approximately 100, harbored illegal aliens in violation of federal law. The statement was false and, although the newspaper did not know that it was false, the newspaper entertained serious doubts as to its truth prior to publication. The charity's workers cannot establish economic or other special damages. Which of the following is the best argument that individual charity workers cannot recover damages from the newspaper in a libel action? Answers: The newspaper did not know that the story was false. The story did not identify specific workers who harbored illegal aliens. The story was about a matter of public concern. The workers are unable to establish special damages.

Answer choice B is correct. If the defamatory language applies to a group, then a member of the group can maintain a defamation action only if the group is so small that the matter can reasonably be understood to refer to that member, unless there is other evidence that the language refers to that particular member. In this case, the charity had approximately 100 workers, and the newspaper's story did not identify specific workers. Accordingly, due to the size of the group, the individual charity workers would likely not be able to establish that the defamatory statement referred to them without additional evidence that tied the statement to particular charity workers. Answer choice A is incorrect. If the plaintiff in a defamation action is a private person and the defendant's statement involves a matter of public concern, as is the case here, then the plaintiff is constitutionally required to prove that the defendant acted with fault—either negligence or actual malice. Therefore, the newspaper's entertainment of serious doubts as to the truth of the statement is sufficient for the statement to be actionable as defamation even though the newspaper did not know that the statement was false. Answer choice C is incorrect. The fact that the newspaper's story involved a matter of public concern does not preclude individual charity workers from recovering damages from the newspaper in a libel action. A defamatory statement involving a matter of public concern can be the subject of a libel action. However, the individual charity workers likely cannot successfully bring a libel action in this case because the story did not identify specific charity workers, and there is no other evidence that the defamatory language referred to any particular member of the group of charity workers. Answer choice D is incorrect. A libel plaintiff need only prove general damages in order to complete the prima facie tort of libel. If the plaintiff is a private figure and the matter is one of public concern, presumed and punitive damages may not constitutionally be awarded unless the plaintiff establishes the defendant's fault by proving actual malice. Here, the newspaper's entertainment of serious doubts as to the truth of the statement likely constitutes actual malice.

Question 8385 Officials from the federal Environmental Protection Agency sought an injunction in federal court to preclude the owner of a hazardous facility from illegally discharging pollution from the facility into the river in the future. Shortly before trial, the owner, closing the facility temporarily for routine maintenance, voluntarily ceased to discharge pollutants into the river. The owner filed a motion to dismiss the action as moot. Should the court grant the owner's motion to dismiss? Answers: No, because a live controversy need only exist when a suit is filed. No, because the owner retained the ability to pollute the river. Yes, because the injunction sought by the government would have a prospective effect. Yes, because the owner had voluntarily ceased to pollute.

Answer choice B is correct. In general, a case has become moot if further legal proceedings would have no effect (i.e., if there is no longer a controversy). A court will not dismiss as moot a case in which the defendant voluntarily ceases its illegal or wrongful action once litigation has commenced. The court must be assured that there is no reasonable expectation that the wrong will be repeated. Here, while the facility has voluntarily ceased its illegal pollution of the river, this has been effected by a temporary shutdown of the facility for routine maintenance. The owner has not taken any action that would make it reasonable to expect that the facility will not illegally pollute the river in the future. Answer choice A is incorrect because a live controversy must exist at each stage of review, not merely when the complaint is filed, for a case to be viable at that stage. Answer choice C is incorrect because, although the government seeks to enjoin the owner of the facility from future illegal pollution, the owner's voluntary cessation of illegal or wrongful conduct is not alone sufficient to moot this action in the absence of an assurance that there is no reasonable expectation that the wrong will be repeated; similarly, the voluntary cessation of illegal or wrongful conduct is not alone sufficient in the absence of such an assurance, making answer choice D incorrect.

Question 7407 The owner of a commercial building that was subject to a mortgage that had been properly recorded forged a release from the mortgagee. The owner recorded the release in the proper office. The owner then sold the building at its full fair market value to a buyer, who relied on the recorded release. The buyer promptly and properly recorded the deed in the same office. The mortgagee learned of the owner's actions after the owner had left the state and could not be located. When the mortgagee contacted the buyer and demanded payment of the outstanding balance on the mortgage, which was in default, the buyer brought suit to quiet title against the mortgagee. The state recording act provides: "No unrecorded conveyance or mortgage of real property shall be good against subsequent purchasers for value without notice, who shall first record." For whom should the court rule? Answers: The buyer, because the buyer relied on the recorded release. The buyer, because of the recording act. The mortgagee, because the release had been forged by the owner. The mortgagee, because the recording act is a race-notice act.

Answer choice C is correct. A forged instrument, such as a deed or release from a mortgage, is void and has no effect on property rights, even if relied upon by a bona fide purchaser. Consequently, the forged release is not effective to terminate the mortgagee's rights, even though the release was properly recorded and relied on by the buyer. Answer choice A is incorrect because, although generally a primary purpose of a recording act is to encourage recording instruments that affect real property rights and reliance on those instruments, a person cannot rely on a forged instrument. Such an instrument has no legal effect. Answer choice B is incorrect because the recording act does not protect a subsequent purchaser for value of property who relies on a forged instrument that has been properly recorded. The act, by its terms, only applies to protect a subsequent purchaser from an unrecorded instrument. Here, the buyer's rights are based on a forged recorded instrument. Answer choice D is incorrect because, although the recording act in question is a race-notice act, the recording act does not address the rights of the parties when a forged instrument has been recorded.

Question 4997 A recluse successfully pursued a libel action in federal district court against a newspaper publisher. Fifteen months after the entry of the judgment, the publisher discovered evidence that clearly established the truthfulness of the statements that the publisher had made about the recluse. This evidence, although it existed at the time of the trial, could not have been discovered earlier despite reasonable diligence by both parties. Promptly upon learning of this evidence, the publisher filed a motion for relief from the judgment with the court. Should the court grant the publisher's motion? Answers: Yes, because the publisher filed the motion promptly upon learning of the evidence. Yes, because the evidence would have altered the result of the action. No, because the motion was not timely. No, because the evidence existed at the time of the trial.

Answer choice C is correct. A motion for relief from a judgment under Rule 60(b) that is based on newly discovered evidence must be filed within a reasonable time and no later than one year from the entry of the judgment. Because the publisher did not file this motion until 15 months after the judgment had been entered, the motion is therefore not timely. Answer choice A is incorrect. Although the publisher did act promptly upon discovering the evidence, a motion for relief from a judgment sought on the basis of newly discovered evidence must be filed no later than one year from the entry of the judgment. Answer choice B is incorrect. While truth is a complete defense to a libel action and thus the evidence would have altered the result, relief from a judgment due to newly discovered evidence cannot be granted if the motion for such relief is filed more than one year from the entry of the judgment. Answer choice D is incorrect. In order to qualify for relief from a judgment on the basis of newly discovered evidence, the evidence must have existed at the time of the trial and could not have been discovered earlier with reasonable diligence. Therefore, the fact that the evidence existed at the time of the trial supports the court granting the publisher's motion for relief from judgment.

Question 7226 The owner of a building in a large city wanted to start a business of horse-drawn carriages to give tours. After determining that his plan was permitted by all applicable zoning codes, he converted the building into code-compliant horse stables. He bought a number of horse-drawn carriages that he kept in the building's garage, and obtained 30 horses from a horse rescue mission. Although the stable conditions were compliant with all relevant codes, the unavoidable smells of any horse stable began to permeate throughout the neighboring apartment buildings. After the owner operated his stables for a year without his neighbors voicing any complaints, a new tenant moved into a neighboring apartment building. Although the tenant knew about the stables before moving in, he brought a public nuisance action against the owner, citing the stench. Which of the following is the owner's strongest defense against the neighboring tenant's claim? Answers: No other neighbors have complained about the stables for a year. The converted stables comply with all local zoning and safety codes. The tenant has not suffered a harm different from that suffered by the other nearby residents. The tenant moved next door knowing about the owner's horses and stable operation.

Answer choice C is correct. A public nuisance is an unreasonable interference with a right common to the general public. However, a private citizen has a claim for public nuisance only if she suffers harm that is different in kind from that suffered by members of the general public. Because there is no evidence that the new tenant is suffering a different sort of injury than his neighbors, a public nuisance action is the improper claim to bring. Therefore, this is the owner's strongest defense. Answer choice A is incorrect. The fact that no one has complained yet does not conclusively establish that an interference is not a substantial and unreasonable interference. Therefore, although this is supported by the fact patterns, this is not an effective defense against the tenant's claim. Answer choice B is incorrect because the fact that a defendant complies with a statute, local ordinance, or administrative regulation is not a complete defense to a nuisance action. Answer choice D is incorrect because it is generally not a defense that the plaintiff "came to the nuisance" by purchasing property in the vicinity of the defendant's premises with knowledge of the nuisance operated by the defendant.

Question 8540 During dinner at a restaurant, a woman who had inherited a dilapidated house agreed to sell it to a developer for $100,000. Having no intent to occupy the house, the woman gave the developer the keys to the house. Prior to the date fixed for closing, the developer undertook significant renovations. By closing, he had gutted the interior and replaced the plumbing and electrical systems throughout the house. At closing, when the developer tendered a check for $100,000 to the woman, the woman told the developer that she had changed her mind and would not sell. The developer sued the woman to enforce the real estate sales contract. Will the developer likely prevail? Answers: No, because the agreement was not in writing. No, because the developer had not paid the woman the purchase price before he started renovating the house. Yes, because the developer had partially performed on the contract. Yes, because the woman agreed to sell the house to the developer.

Answer choice C is correct. Although a promise to transfer or receive any interest in real property is within the Statute of Frauds and therefore must be in writing and signed by the party against whom enforcement is sought to be enforceable, subsequent acts by either party that show the existence of the contract may make it enforceable. Most jurisdictions require two of the three following acts to establish sufficient part performance: (i) payment of all or part of the purchase price; (ii) possession by the purchaser; or (iii) substantial improvement of the property by the purchaser. Here, the investor has at least met requirements (ii) and (iii). The oral agreement is therefore likely enforceable. Answer choice A is therefore incorrect. Answer choice B is incorrect because, while payment, even partial payment, is one of three acts that, together with one of the other two acts, establishes sufficient part performance to permit the enforcement of an oral contract to sell real property, most jurisdictions require only two of the three acts in order to establish sufficient part performance. Here, the developer can prove that the other two acts (possession and substantial improvement) have occurred. Answer choice D is incorrect because an oral agreement to sell real estate is not usually enforceable under the Statute of Frauds; the partial performance here creates an exception to the rule.

Question 5934 A city had recently experienced a number of arsons in a residential area. Police arrived on the scene of a residential fire after the firefighters identified signs of an accelerant. The officers fanned out through the crowd of bystanders to ask whether any of them had seen anything suspicious that might suggest the work of an arsonist. Many bystanders simply declined to speak to the officers and walked away. However, one officer noted that a man in the crowd was acting nervous. As the officer approached the man, he could smell gasoline. The officer told the man he had a few questions for him. The man said he didn't really want to talk. As the man turned to leave, the officer mentioned that the firefighters had found evidence that the fire was started with gasoline. The man burst into tears and confessed to setting the fire, and the officer arrested him. The man was then given Miranda warnings. The man's attorney filed a motion to suppress the man's crime scene confession. Should the court suppress the man's confession to arson? Answers: Yes, because the officer asked a question that he knew or should have known was likely to illicit an incriminating response. Yes, because the officer continued to speak to the man after the man attempted to leave. No, because the man was not in custody. No, because the man was not interrogated.

Answer choice C is correct. An individual must be in custody to necessitate Miranda warnings. "Custody" requires the existence of conditions that would cause a reasonable person, under the totality of the circumstances, to believe that he is not free to leave. The questioning of a person at a crime scene does not constitute custody for the purposes of Miranda if the individual being questioned is free to leave. Here, the facts indicate that several bystanders did leave during the questioning process, and that the man himself even felt free to leave. Answer choice A is incorrect because, although a statement designed to elicit a response may be considered an interrogation for purposes of Miranda, that interrogation still must be custodial in order for Miranda warnings to be required. Answer choice B is incorrect because the man remained free to leave even after the officer continued to speak to him. Answer choice D is incorrect because interrogations must be custodial in order to require Miranda warnings, so whether the man was being interrogated is not the outcome determinative issue here.

Question 4232 A highway was known as a drug corridor used to transport drugs between two cities. The drug unit of a state police force launched an initiative to combat drug trafficking along this section of highway. They formulated a plan to conduct checkpoint stops to check for drugs along certain sections of the highway. Under the plan, the police would stop every hundredth car that passed the checkpoint, and a trained canine would sniff for the presence of drugs. The defendant was stopped at a checkpoint, and the canine detected the presence of cocaine in the trunk of his car. The police then searched the trunk, where they found large amounts of cocaine. The entire stop lasted less than three minutes. The defendant was charged and tried for drug trafficking crimes. At his trial, he moved to suppress evidence of the drugs found during the search. Are the drugs likely to be suppressed? Answers: No, because the canine sniff provided probable cause to search the trunk. No, because the checkpoint stop was based on neutral, articulable standards. Yes, because the checkpoint stop constituted an unreasonable seizure. Yes, because a canine sniff of a car may not be performed without probable cause.

Answer choice C is correct. Police may stop an automobile at a checkpoint without reasonable, individualized suspicion of a violation of the law if the stop is based on neutral, articulable standards and its purpose is closely related to an issue affecting automobiles. A roadblock to perform sobriety checks has been upheld, while a similar roadblock to perform drug checks has not. Additionally, absent reasonable suspicion, police extension of a permissible traffic stop in order to conduct a dog sniff violates the Fourth Amendment's protection against unreasonable seizures. In this case, the checkpoint stops would constitute an unreasonable seizure because their purpose was to only to perform drug checks rather than to prevent an issue affecting automobiles (for example, driving safely). Answer choice A is incorrect because although the sniff provided probable cause for the search of the trunk, the evidence seized would not be admissible because the stop itself violated the Fourth Amendment. Answer choice B is incorrect because, even if the standards are neutral and articulable, the purpose of the stop must be permissible. Checkpoint stops to perform drug tests are not permissible. Answer choice D is incorrect because the use of a trained dog to sniff for the presence of drugs does not violate the reasonable expectation of privacy present during a valid stop. Thus, a canine search may be performed without probable cause, provided the stop itself meets other constitutional requirements.

Question 5760 A man spent his weekends attending live action role-play ("LARP") events. During a LARP event, a LARP enemy struck the man with a foam sword. Although the foam sword caused no injury, the man, in trying to avoid the sword, slipped and fell down a steep hill behind him, sustaining significant injuries. Angry that he lost the battle and embarrassed over his injuries from the fall, the man sued the LARP enemy for battery and assault in federal district court on the basis of diversity jurisdiction. The LARP enemy was properly served. A week later, the man decided to dismiss the case when he learned his friends had defeated the LARP enemy in another LARP battle. The LARP enemy had not yet filed a response to the man's claim. Can the man dismiss the action without leave of the court? Answers: No, because the LARP enemy had not yet filed a response to the claim. No, because the time in which the LARP enemy could serve his answer had not passed. Yes, because the LARP enemy had not yet filed a response to the claim. Yes, but the dismissal of the case by the man will be with prejudice.

Answer choice C is correct. Pursuant to Rule 41(a)(1)(A), a plaintiff may dismiss an action without leave of the court by filing a notice of dismissal at any time before the opposing party serves either an answer or a motion for summary judgment, or by filing a stipulation of dismissal signed by all parties who have appeared in the action. Unless otherwise stated in the notice or stipulation, the voluntary dismissal will be without prejudice. Here, the LARP enemy had not yet filed a response to the man's claim, so the man can voluntarily dismiss the case. For this reason, answer choice A is incorrect. Answer choice B is incorrect. There is no requirement that the man needs to wait 21 days from the date of service to dismiss the action. Similarly, there is no requirement that the man first obtain leave of court prior to dismissing the action during this period. Answer choice D is incorrect because this voluntary dismissal is without prejudice.

Question 7012 A daughter babysat her neighbor's children every Thursday night. Her mother had coveted the neighbor's antique vase for many years. The mother bought a cheap replica of the vase, broke it, and gave the pieces to her daughter Thursday morning. The mother told the daughter to leave the broken pieces in the neighbor's trash, steal the antique vase, and claim that the children had broken it. The daughter reluctantly agreed. While she was babysitting that evening, the daughter put the pieces of the cheap replica in the garbage. However, before she actually stole the vase, her mother called her. The mother had changed her mind and told the daughter not to steal the vase. The daughter did not steal the vase, but forgot to take the pieces of the cheap replica out of the garbage. When the neighbor discovered the pieces of the replica in the garbage, she confronted the daughter, and the daughter confessed the whole plan. The neighbor called the police, who arrested the mother; she was subsequently charged with solicitation. Is the mother guilty of solicitation under the common law? Answers: No, because the daughter did not actually steal the vase. No, because the mother renounced the crime by calling the daughter and telling her not to steal the vase. Yes, because the mother encouraged her daughter to steal the antique vase. Yes, because the mother took a substantial step towards committing the crime by buying a cheap replica of the vase.

Answer choice C is correct. Solicitation is the enticing, encouraging, requesting, or commanding of another person to commit a crime with the intent that the other person commits the crime. The encouragement may take the form of enticement, incitement, request, or command. The crime is completed upon the encouragement. The other person need not agree to commit the crime. Here, the mother is guilty of solicitation because she encouraged and commanded her daughter to steal the antique vase, and the crime was complete upon the encouragement. Answer choice A is incorrect because it is irrelevant that the daughter did not actually steal the antique vase; this has no bearing on the mother's liability for solicitation. Answer choice B is incorrect because at common law, renunciation is no defense to solicitation. Answer choice D is incorrect because a defendant taking a substantial step towards committing the crime is not an element of solicitation.

Question 8598 During jury selection for a trial for felony theft, a defendant used all five of his peremptory challenges to strike men from the jury. In response to a constitutional challenge to his actions, the defendant provided a gender-neutral reason for doing so, which the court found to be pretextual. Is the defendant's use of his peremptory challenges unconstitutional? Answers: No, because the defendant struck members of his own gender from the jury. No, because it was the defendant, not the prosecution, who exercised his preemptory challenges to strike male jurors. Yes, because of the Equal Protection Clause. Yes, because the defendant's actions prevented the selection of an impartial jury.

Answer choice C is correct. The Fourteenth Amendment Equal Protection Clause prohibits both the criminal defendant and the prosecutor from exercising peremptory challenges solely based on race or gender. The Batson test requires that (i) the moving party establishes a prima facie case of discrimination, (ii) the party who exercised the challenge provides a nondiscriminatory explanation for the strike, and (iii) the moving party carries her burden of proving that the other party's proffered reason was pretextual and that the strike was indeed motivated by purposeful discrimination. Here, the elements of the Batson test have been satisfied. Answer choice A is incorrect. The fact that the defendant is a member of the excluded group does not permit him to exclude potential jurors through peremptory challenges based solely on their gender. Answer choice B is incorrect because the Batson test applies to discriminatory use of peremptory challenges by a criminal defendant or the prosecution. Answer choice D is incorrect because the right to an impartial jury is a right that belongs to the defendant. Therefore, even if the proper exercise of peremptory challenges is a means for achieving an impartial jury, the defendant can waive that right.

Question 7434 A father, as he had been on three other occasions, was held in civil contempt for failure to pay child support payments to the mother of his child. The father was then incarcerated for six months. He appealed the court decision that found him in contempt. He contended that he was indigent and was entitled to the appointment of counsel to represent him at the contempt hearing. He argued that the court's failure to do so violated his rights under the Due Process Clause of the Fourteenth Amendment. By the time the father's appeal was heard, he had been released from prison. The state argues that although the father's financial and employment situation remained unchanged, the father's action should be dismissed as moot. How should the court rule on the state's defense? Answers: For the state, because there was no live controversy after the father was released from prison. For the state, because any further potential injury to the father would be speculative. Against the state, because there is a reasonable expectation that the father will be subject to a civil contempt action again. Against the state, because the father is entitled to counsel to represent him at a civil contempt hearing.

Answer choice C is correct. The state has defended against this action by arguing it is moot. Here, the father is no longer incarcerated and therefore no longer entitled to the appointment of counsel to represent him at the contempt hearing. However, since the father's financial and employment situation has not changed, there is a reasonable expectation that he will again be held in contempt for failure to pay child support, and may again be subject to incarceration without representation that terminates before his appeal could be heard. Consequently, under the mootness exception for an action that is capable of repetition yet evading review, the court should reject the state's defense. Accordingly, answer choice A is incorrect. Answer choice B is incorrect because the father, if indigent, has suffered harm by being incarcerated for six months without adequate representation by counsel. Not only is this harm capable of repetition yet evading review, a court's refusal to hear a matter because any potential injury would be speculative is an argument that the matter is not ripe for litigation, rather than that the action is moot. Answer choice D is incorrect because whether the father is entitled to the appointment of counsel is irrelevant to the question posed here, which is whether the court should recognize the state's defense that the action is moot.

Question 6170 A woman was going for a stroll in a rural area. As she was walking along the road, she noticed an open field that she could cross over to reach a stream on the other side. The woman did not realize that the open field belonged to a farmer who lived adjacent to the field. If the farmer sues the woman for trespass to land, which of the following facts is necessary in order for the farmer to prevail? Answers: The woman caused damage to the field when she crossed it. The woman intended to commit a wrongful trespass on the farmer's land. The woman intentionally crossed the open field. The woman should have known the open field belonged to someone else.

Answer choice C is correct. Trespass to land occurs when the defendant's intentional act causes a physical invasion of the land of another. The defendant need not know that the land belongs to another. Here, the woman did not know that the farmer owned the open field, but if she intentionally entered the land in order to reach the stream on the other side, she is liable for trespass to land. Answer choice A is incorrect because proof of actual damages is not required to prove trespass to land. Answer choice B is incorrect because a defendant need only have the intent to enter the land, not the intent to commit a wrongful trespass. Answer choice D is incorrect because what the woman knew or should have known will not affect her liability for trespass to land.

Question 7337 A borrower who was a citizen of State A defaulted on a loan that was secured by a mortgage on undeveloped land located in State B. Pursuant to a "power of sale" clause in the mortgage, the lender, who was a citizen of State C, conducted a foreclosure sale of the land. At the sale, which was held in State B, the lender bought the land, but did not have the sale judicially confirmed. Because the purchase price was less than the outstanding amount of the loan, the lender sought a deficiency judgment against the borrower in a State A court. Under the laws of State B, a lender is not entitled to bring a deficiency judgment unless, within 30 days after a foreclosure sale, the sale is judicially confirmed. Under the laws of State A, there is no similar restriction on the right of a lender to bring a deficiency judgment. The court determines that the conflict-of-laws rules of its own state should apply and that, under those rules, State B has the most significant relationship to the loan, the lender, and the borrower. Should the court apply State A law or State B law regarding the lender's right to a deficiency judgment to resolve this matter? Answers: State A law, because the court is located in State A. State A law, because the defendant is a citizen of State A. State B law, because State B has the most significant relationship to this matter. State B law, because the property is located in State B.

Answer choice C is correct. When there is an issue regarding real property and there is a conflict as to which state's law should be applied to resolve the issue, the general conflict-of-laws rule is that the law applied by the forum court should be determined by the conflict-of-laws rule that would be applied by the state court where the property is located (i.e., situs). However, issues that relate to a foreclosure but do not affect an interest in land, such as the mortgagee's right to bring suit upon the underlying debt without having first proceeded against the mortgaged land, are determined by the law that governs the debt for which the mortgage was given. The law of the state that has the most significant relationship to the transaction and the parties governs the debt for which the mortgage was given. Since State B has the most significant relationship to loan, the lender, and the borrower, the court should apply the law of State B in determining whether the lender can bring a deficiency action against the borrower. Answer choice A is incorrect because, although the court is located in State A and has determined that its own conflict-of-laws rules should apply, the court has determined that State B has the most significant relationship to the issue at hand. Answer choice B is incorrect because, while the State A court has personal jurisdiction over the defendant, this does not mandate that State A should apply its own law regarding the right of a lender-mortgagee to pursue a deficiency judgment against the borrower-mortgagor. Answer choice D is incorrect because, while the law of the situs of the property is generally applied to resolve issues regarding the method for foreclosure of a mortgage on land and the interests in the land resulting from the foreclosure, the law of the state with the most significant relationship to the loan and the parties to the loan should be applied to resolve the issue of the right of the mortgagee to hold the mortgagor liable for a deficiency.

Question 7132 On May 1, a tourist went on a rock-climbing trip with a rock climbing guide. While on their climb, an anchor, used to attach a climber to the climbing surface, was placed on the cliff face by the guide. However, the anchor broke loose, and the guide fell, nearly taking the tourist with him. Luckily, the tourist caught a stone outcropping, saving both himself and the guide. The guide, fearing that the anchor had failed because he had placed it negligently, entered into a written contract with the tourist providing that the guide promised to pay the tourist $200,000 in consideration for saving the guide's life, and for the tourist's promise to not bring a negligence action against the guide for his injuries related to the fall. The contract provided that the guide would pay the money by August 1. Honestly believing he had a valid negligence claim against the guide, but unwilling to pay the legal costs of bringing such an action, the tourist signed the contract. A month later, an investigation revealed that the guide had not attached the anchor negligently, and that the failure was due to a manufacturing defect of the anchor. This discovery made it clear that in the applicable jurisdiction, the guide could not have been found liable to the tourist for negligence. On August 1, the tourist demanded payment under the written contract, but the guide refused to pay. The tourist sued the guide to recover $200,000 under the contract. Will the tourist succeed in his action? Answers: No, because past acts are typically insufficient consideration. No, because the tourist had no valid cause of action against the guide. Yes, because the contract was in writing and signed by the guide. Yes, because the tourist believed he had a valid negligence claim against the guide.

Answer choice D is correct. A promise not to bring a legal action or to assert a particular claim or defense in such an action generally can serve as consideration for a settlement agreement because the party making the promise is foregoing a legal right. The legal action need not be one that is certain to succeed. Instead, the claim or defense must be in fact doubtful due to uncertainty of facts or law, or the party failing to assert the claim or defense must believe in good faith that it may be fairly determined to be valid. Here, the tourist had a good-faith belief as to the validity of the negligence claim against the guide. Therefore, the contract between the guide and the tourist was supported by valid consideration and is enforceable against the guide. Answer choice A is incorrect. Even though the tourist's rescue of the guide would generally not constitute valid consideration because it was not bargained for, his promise not to bring a negligence action against the guide is valid consideration. Answer choice B is incorrect. As long as the party agreeing to forbear bringing the action had an honest belief as to the validity of the claim and a reasonable basis for that belief, that promise will constitute valid consideration. Answer choice C is incorrect because this contract is not subject to the Statute of Frauds. Therefore, the fact that it is contained in a signed writing is not determinative of its enforceability.

Question 8582 An Assistant United States Attorney (a federal prosecutor) knowingly presented false evidence against a criminal defendant because he believed that the defendant was having sex with his ex-wife. In doing so, the prosecutor acted with malice and for the sole purpose of preventing the defendant from presenting an effective defense. The defendant brought a civil action in federal court against the prosecutor personally for damages based on the violation of the defendant's Fifth Amendment due process rights. The defendant acknowledges that the prosecutor had jurisdiction to try the case. The prosecutor seeks dismissal on the action on the grounds of immunity. Should the court dismiss the case? Answers: No, because a prosecutor enjoys only qualified immunity with regard to the violation of a person's constitutional rights. No, because the prosecutor acted with malice. Yes, because an action for damages may not be maintained against a federal prosecutor. Yes, because the prosecutor had jurisdiction to try the criminal case.

Answer choice D is correct. A prosecutor is absolutely immune from civil liability for damages resulting from his prosecutorial acts unless it is clear that the prosecutor did not have jurisdiction. Since the Assistant United States Attorney in question had jurisdiction to try the criminal case, the court should dismiss the criminal defendant's action. Answer choice A is incorrect because a prosecutor enjoys absolute immunity regardless of the basis for the civil action against him. Answer choice B is incorrect because a prosecutor enjoys absolute immunity from civil liability for damages resulting from his prosecutorial acts, even when they are done with malice. Answer choice C is incorrect because a prosecutor may be sued for damages for conduct that is unrelated to the prosecutor's prosecutorial role, such as when the prosecutor is acting as an administrator with respect to personnel, for example.

Question 7108 A manufacturer of inflatable slides sold three of the slides to an indoor amusement park. The three slides were subjected to the manufacturer's usual rigorous inspection process. The slides were outsourced for delivery, and were delivered by a service in a standard delivery van. When the amusement park received the slides, the park's managers left the slides outside in the sun for a week before they were inflated and installed by an independent contractor. One week later, while a child was riding down one of the slides, the slide burst a seam and rapidly deflated. As a result, the child fell and broke his arm. The mother of the child sued the manufacturer of the slides under a negligence theory to recover for her child's injuries. Of the following, what is the manufacturer's best defense against the negligence charge? Answers: The child assumed the risk of being injured when he played on an inflatable slide. The slide was not under the exclusive control of the manufacturer before it ruptured. The mother and her child were not in privity with either the manufacturer or the park. The manufacturer exercised reasonable care in the inspection of these slides and discovered no defects.

Answer choice D is correct. In a products liability action based on negligence, defendants have a duty to exercise reasonable care in the inspection of a product. If a product is defective, the plaintiff must prove that the defendant would have discovered the defect if they had exercised reasonable care. In this case, the defendant subjected all of its slides—including these slides-to a rigorous inspection process. Accordingly, the defendant did not breach its duty to the plaintiff. Answer choice A is incorrect because regardless of how assumption of risk is treated in this jurisdiction, there is no evidence that the child voluntarily and unreasonably assumed the risk that the slide would rupture, causing him to fall. This kind of malfunction was not the kind of risk inherent in playing at an amusement park. Therefore, the child did not assume the risk of this injury. Answer choice B is incorrect. The "exclusive control" element is relevant to the doctrine of res ipsa loquitor, which allows the trier of fact to infer negligence in the part of the defendant in the absence of direct evidence. However, application of the doctrine isn't appropriate in all negligence cases, and there is no indication that the plaintiff is even depending on the doctrine in this case. A better defense is simply that the defendant did not act negligently. Answer choice C is incorrect because there is no privity requirement; a commercial manufacturer owes a duty to any foreseeable plaintiff, whether a purchaser, user, or bystander.

Question 4378 A grocery store and a farmer entered into a valid contract for 1,200 bottles of Grade A maple syrup, to be delivered over the course of a year in twelve equal installments of 100 bottles, delivered on or before the last day of each month, beginning in January and ending in December. From January to March the farmer delivered three shipments of conforming Grade A maple syrup. In April, on the last day of the month, the farmer delivered to the store 97 bottles of Grade A maple syrup. The grocery store rejected the syrup, and informed the farmer that the contract between them was canceled. Which of the following is a correct statement of the grocery store's actions? Answers: The store's rejection of the 97 bottles of Grade A maple syrup and cancellation of the contract were proper. The store's rejection of the 97 bottles of Grade A maple syrup was proper, but the store's cancellation of the contract was improper. The store's rejection of the 97 bottles of Grade A maple syrup was improper, but the store's cancellation of the contract was proper. The store's rejection of the 97 bottles of Grade A maple syrup and cancellation of the contract were improper.

Answer choice D is correct. In general, the UCC requires perfect tender of goods, and substantial performance will not suffice. However, the UCC does permit substantial performance with regard to an installment contract. In addition, when there is a nonconforming tender or a tender of nonconforming goods under one segment of an installment contract, the buyer may cancel the contract only if the nonconformity substantially impairs the value of the entire contract to the buyer. Here, the farmer made a tender of three fewer bottles of syrup than called for under the contract. However, shipping 97 out of 100 bottles of maple syrup likely qualifies as substantial performance, and the grocery store was not entitled to reject the shipment. Further, the shortfall of three bottles likely does not substantially impair the value of the entire contract to the grocery store. Answer choice A is incorrect. Because the three-bottle shortfall likely did not substantially impair the value of the April installment, the grocery store's rejection of the farmer's tender of 97 bottles was improper. In addition, since this shortfall likely does not substantially impair the value of the entire contract to the grocery store, the store's cancellation of the entire contract was improper. Answer choices B and C are incorrect for the same reason.

Question 6587 Concerned with the adverse environmental and health effects of burning wood as a fuel, Congress is considering legislation that would prohibit the cutting and interstate sale of trees grown on private land for the purpose of burning the wood in order to produce energy. The proposed legislation would apply to any individual landowner who cuts down trees grown on his own property to burn as fuel. There is a rational basis for concluding that, in the aggregate, such actions by individual landowners substantially affect the interstate commerce of wood as a fuel. If enacted, is this proposed legislation likely to withstand a constitutional challenge with regard to its application to individual landowners? Answers: No, because the impact on interstate commerce of the landowner's cutting and burning of trees found on his own land is both indirect and minuscule. No, because the regulation of land use is traditionally an area of state concern. Yes, because burning wood as a fuel has adverse environmental and health effects. Yes, because there is a rational basis for concluding that, in the aggregate, such actions by individual landowners substantially affect the interstate commerce of wood as a fuel.

Answer choice D is correct. With respect to an intrastate activity that does not have a direct economic impact on interstate commerce, as long as there is a rational basis for concluding that the "total incidence" of the activity in the aggregate substantially affects interstate commerce, Congress may regulate even a minute amount of that total. Because the fact pattern provides that there is such a basis here for regulation of individual landowners who cut trees found on their own property to burn for their own personal energy needs, the proposed legislation is likely to be found constitutional as a valid exercise of the congressional power to regulate interstate commerce. Answer choice A is incorrect. Even though the wood harvested by an individual from his own land for personal consumption never enters the stream of commerce, and even though the effect on interstate commerce is minuscule, Congress may nevertheless regulate this activity because there is a rational basis for concluding that the "total incidence" of the activity in the aggregate substantially affects interstate commerce. Answer choice B is incorrect. Although the regulation of land use is an area that traditionally has been a matter of state concern, the proposed legislation does not directly dictate private land use. Instead, this legislation deals specifically with the production, distribution, and consumption of a commodity—the harvesting and selling of wood as a fuel—in interstate commerce. Thus, the legislation falls with the Commerce Clause of Article I, Section 8 of the U.S. Constitution. In addition, the federalism limitation on the regulation of intrastate activity that is matter of traditional state concern arises only when the activity in question is not an economic activity. Answer choice C is incorrect. Congress can regulate environmental and health matters only insofar as they substantially affect interstate commerce. Congress does not have a freestanding police power simply to protect the environment or public health.

Question 8441 In the summer, a woman rented an apartment unit in a large apartment building. The lease contained a provision that placed the duty of repair on the landlord. As winter approached, the woman noticed that the radiator in her living room was not working. She has informed the landlord about the issue several times over the past two months, but no action has been taken. The forecast for the next month is for unseasonably cold weather. The woman wishes to remain in the apartment because its location is ideally situated for her job, but she wants to receive some compensation in the form of a rent abatement if the landlord continues to ignore the problem. Of the following, which is the most likely legal basis that would provide the woman with a satisfactory remedy to her situation? Answers: Covenant of quiet enjoyment Doctrine of constructive eviction Repair provision in the lease Warranty of habitability

Answer choice D is correct. here is an implied warranty of habitability in most residential leases, particularly when the dwelling is a multi-family unit. The landlord must maintain the property such that it is reasonably suited for residential use. A failure to provide adequate heat can constitute a breach of this warranty and, if not addressed, can provide the tenant with a remedy, such as a rent abatement, until the breach is corrected. Answer choice A is incorrect. Every lease contains an implied covenant of quiet enjoyment, which is breached only when the landlord, someone claiming through the landlord, or someone with superior title disrupts the possession of the tenant. While a landlord may breach this covenant through actual, partial, or constructive eviction of the tenant, no eviction has occurred under these facts. Therefore, under these facts, the covenant of quiet enjoyment will not allow the woman to seek a rent abatement as a remedy. Answer choice B is incorrect. A constructive eviction occurs if the landlord breaches a duty to the tenant, such as failing to make a repair, that substantially interferes with the tenant's use and enjoyment of the leasehold (e.g., fails to provide heat or water). However, the tenant's obligation to pay rent is excused by constructive eviction only if the tenant (i) gives notice and adequate time to permit the landlord to fulfill his duty, and (ii) vacates the property within a reasonable amount of time. Here, while the woman has given the landlord notice of the problem and two months to address it, the woman does not want to leave her apartment. Therefore, the woman cannot seek a rent abatement based on a constructive eviction. Answer choice C is incorrect because, while the woman may enforce a repair provision in the lease, the enforcement of that provision does not affect her obligation under the lease to pay rent.