8/26-Mixed-subject MBE PQs 3

Question 7591 In exchange for a payment of $6,000, a company agreed to prepare a site on which a contractor was committed to erect a building. The written agreement required the company to be finished on or before a specific date and contained a clause that penalized the company $500 for each day the company was late in meeting this deadline. The company was two days late in meeting the deadline. As a consequence of the delay, the contractor suffered $200 in damages. The contractor paid the company $5,000, and the company sued the contractor to collect the remaining $1,000 of the contract price. How much can the company recover in damages under this contract from the contractor? Answers: $1,000 $800 $200 $0

Answer choice B is correct. Liquidated damages are damages to be recovered by one party without proof of actual loss in the event the other party breaches the contract. If the liquidated damages are disproportionate to the actual damages, then the clause will not be enforced, and recovery will be limited to the actual damages proven. In this case, although the contractor is not entitled to enforce the liquidated damages clause because the amount specified in the clause ($500 per day) constitutes a penalty rather than a reasonable estimate of the damages that the contractor might sustain, the contractor is entitled to actual damages that were suffered as a consequence of the company's delay in completing the contract. Consequently, the company can recover $1,000 (the contract price) less $200 (the actual damages suffered by the contractor from the two-day delay). Answer choice A is incorrect because, although the contractor cannot recover under the liquidated damages clause, the contractor can recover the actual damages that were suffered as a consequence of the company's delay in completing the contract. This amount ($200) would be subtracted from the remaining amount under the contract ($1,000), permitting the company to recover $800 from the contractor. Answer choice C is incorrect because this represents the amount of damages to which the contractor is entitled, not the amount that the company can recover. Answer choice D is incorrect because a liquidated damages clause is unenforceable if the amount constitutes a penalty rather than a reasonable estimate of the damages that the nonbreaching party might sustain, as in this case.

Question 4275 A buyer and a seller entered into a written contract for the sale of residential property. The contract did not specifically impose a duty of marketable title on the seller. The buyer put a down payment into an escrow account after the parties signed the contract. One month before the parties were to close on the sale, the buyer learned that the seller's neighbor had an easement on the property. The seller assured the buyer that he was in negotiations with the neighbor to release the easement, and that the seller was confident that the neighbor would sign something to release it before closing. Unconvinced, the buyer brought suit to rescind the contract and to recover the down payment that he had placed in escrow. Is the buyer likely to succeed in his suit? Answers: No, because the seller is not required to deliver marketable title until closing. No, because the contract did not specifically impose a duty of marketable title on the seller. Yes, because the easement renders the title unmarketable. Yes, because the contract had not yet merged with the deed.

Answer choice A is correct. Absent contrary language, an implied covenant of marketable title is part of a land sales contract, regardless of the type of deed created. Defects in title rendering title unmarketable include private encumbrance, such as an easement. However, unless otherwise agreed, the seller is not required to deliver marketable title until the closing. In this case, the buyer's suit is premature. Answer choice B is incorrect because the duty of marketable title is implied as part of a land sales contract unless the parties agree otherwise. Answer choice C is incorrect because, although the title is unmarketable, the buyer cannot rescind the contract unless the seller fails to deliver marketable title as of the closing, which has yet to occur. Answer choice D is incorrect because, although it is true that the contract and title had not yet merged (they will not merge until the deed is delivered), this would not give the buyer grounds to rescind the contract.

Question 4225 A customer entered a hardware store to purchase paint. The associate who helped the customer had just been hired the day before, and was not trained with regard to paint selection. The customer explained that she was painting her house and had applied a water-based primer, and that she needed to select an appropriate top coat. The associate showed the customer an oil-based paint, assuring the customer that the paint was appropriate for the job. The associate then told the customer that he was selling the paint "as is," and that he could not be responsible for any adverse reactions. The customer made the purchase and used the oil-based paint to paint her house. Upon drying, the paint immediately peeled away from the water-based primer, causing extensive damage to the exterior of the house. In a breach of warranty action against the hardware store, will the customer prevail? Answers: Yes, because the associate's promises created an express warranty. Yes, because the warranty of fitness for a particular purpose cannot be disclaimed. No, because the associate's statement that the paint was sold "as is" disclaimed any warranties. No, because the associate was not a merchant.

Answer choice A is correct. Any promise, affirmation, description, or sample that is part of the basis of the bargain is an express warranty, unless it is merely the seller's opinion or commendation of the value of the goods. In this case, the associate's assurances that the paint selected was appropriate for the job created an express warranty. That warranty was breached, and the customer would prevail. Answer choice B is incorrect because the implied warranty of fitness for a particular purpose can be disclaimed by use of language such as "as is," which calls the buyer's attention to the exclusion of warranties and makes plain that there is no implied warranty. However, such disclaimer must be in writing and conspicuous. Answer choice C is incorrect because disclaimer clauses that conflict with express warranties are ignored. Thus, any attempt to disclaim the warranty with the language "as is" would be ignored. Answer choice D is incorrect because express warranties may be made by a merchant or a non-merchant. Moreover, the associate in this case was a merchant.

Question 6489 After a college professor discovered that students were submitting essays purchased online as their own work, the college implemented new school-wide procedures to identify and penalize plagiarism by students. The procedures mandate that students submit lengthy assignments through an online service that requires an expensive monthly subscription. A student on the college paper published the following later that week: "It is ironic that this costly choice comes as a reaction to reports of plagiarism from a professor who, in his days at this institution, attempted to cheat and lie his way to a degree." The professor has sued the student for libel, and the student alleges truth as a defense. After the professor testified as to his character for honesty, the student seeks to admit a disciplinary report indicating that the professor failed a political science class for bringing commercially prepared material to use on the final exam in violation of the honor code. Should the court admit the disciplinary report as substantive evidence? Answers: Yes, because the report is a means of proving an essential element of a defense. Yes, because the professor opened the door to this report by testifying about his honesty. No, because it is admissible only to impeach the professor. No, because character may not be shown by specific instances of conduct.

Answer choice A is correct. Character evidence is admissible as substantive evidence when character is an essential element of a claim or defense, rather than a means of proving a person's conduct. Here, the truth of the student's allegations is an affirmative defense to the claim of libel, and the student may offer specific instances of the professor's conduct to support that affirmative defense. Answer choice B is incorrect because, although a criminal defendant can "open the door" to attacks on his character, this rule does not apply in civil cases. Answer choice C is incorrect because the evidence can be admitted as substantive evidence to support the student's affirmative defense. Answer choice D is incorrect because, although there are a number of limitations on the use of specific instances of conduct to prove character, when character evidence is admissible as evidence in a civil case (i.e., evidence that is an essential element of a claim or defense), it may be proved by specific instances of a person's conduct.

Question 8401 The nephew of a testator is called as a witness in a civil proceeding challenging the validity of the testator's will. The opposing party objects to the nephew's testifying on each of the following grounds: the nephew is named as a beneficiary under the will; the nephew is an atheist; the nephew states that his conscience will not allow him to swear or affirm that he will tell the truth; and the nephew has been convicted of perjury. On what grounds can the nephew be prevented from testifying? Answers: He cannot swear or affirm that he will tell the truth. He has previously been convicted of perjury. He is an atheist. He is named as a beneficiary under the will.

Answer choice A is correct. Even though there is some flexibility as to form, a witness must give an oath or affirmation to testify truthfully. Here, the nephew's conscience will not allow him to swear or affirm that he will tell the truth, and he can be prevented from testifying on these grounds. Answer choice B is incorrect because there is no restriction under the Federal Rules of Evidence that precludes a convicted perjurer from testifying. Answer choice C is incorrect because there is no requirement that a witness believe in a deity in order to be competent to testify. Answer choice D is incorrect because the fact that a witness has an interest in the outcome of the proceedings does not prevent the witness from being competent to testify.

Question 3096 A man believed that he and his wife were headed toward a divorce, and was concerned that his wife would fight to keep a valuable painting they had purchased together on their honeymoon. Although the man was staying at a hotel, he decided to break into the house and take the painting when he believed his wife would be out. So as not to draw any neighbors' attention by walking in the front door, the man climbed through an open window in the back. The wife was in fact home, and she was furious when she saw the man there. She pushed him repeatedly, telling him to get out of her house. The man pushed the wife back, and the wife hit her head on the corner of a table. Because she had a blood clotting disorder, the injury caused excessive bleeding in her brain, and she died the next day. The man has been charged with felony murder. The evidence at trial shows that the man knew of his wife's blood clotting disorder. Is the man likely to be convicted of felony murder? Answers: No, because the man did not commit an underlying felony. No, because the man did not intend to kill the wife. Yes, because the man knew of the wife's blood clotting disorder when he pushed her. es, because the wife was killed during the commission of an inherently dangerous felony.

Answer choice A is correct. Felony murder is an unintended killing proximately caused by and during the commission or attempted commission of an inherently dangerous felony, including burglary. To convict a defendant of felony murder, the prosecution must establish the underlying felony. In this case, the man did not commit a felony. The elements of burglary and robbery cannot be established because the man did not intend to take the property of another. Rather, he intended to take a painting that he owned. Because there was no felony, the man may not be convicted of felony murder. Answer choice B is incorrect because felony murder is by definition an unintentional killing; thus, the fact that the killing was unintentional would not prevent the man from being convicted of felony murder. Answer choice C is incorrect because it is irrelevant that the man knew of the wife's disorder for purposes of determining whether felony murder may be established. Answer choice D is incorrect because the man did not commit a felony.

Question 6031 In anticipation of the holiday season, a toy store owner sent a signed, written order for 100 dolls at a cost of $100 per doll to a manufacturer. The manufacturer initially refused to accept the order due to the owner's bad credit, but shipped the doll to the owner when an investor, who had previously loaned the toy store owner $25,000 in order to keep the store afloat, called the manufacturer and guaranteed that if the owner failed to pay for the dolls, she would do so. The investor was worried that without this wildly popular doll, the store would not attract sufficient customers for the holidays, and the investor would lose her investment when the owner was forced to close the store. Due to discounts offered on the doll by larger competing retailers, the owner only sold ten dolls. The owner paid the manufacturer $1,000 for the dolls that were sold, but refused to pay the remaining $9,000. When the manufacturer contacted the investor for payment, the investor also refused to pay the manufacturer the remaining $9,000. If the manufacturer sues the investor to recover the $9,000, will it likely prevail? Answers: Yes, because the investor's purpose in agreeing to pay the manufacturer was to protect her investment in the toy store. Yes, because the benefit received by the investor was financial in nature. No, because the investor's promise was not in writing. No, because the investor did not receive the dolls.

Answer choice A is correct. Generally, a promise made to a person (i.e., the obligee) that the promisor (i.e., a surety) will be responsible for any debt or other obligation of a third party (i.e., the principal) resulting from the principal's failure to pay as agreed is subject to the Statute of Frauds, and the surety's promise must be in writing. However, if the main purpose of a surety in agreeing to pay the debt of the principal is the surety's own economic advantage, rather than the principal's benefit, then the contract does not fall within the Statute of Frauds, and an oral promise by the surety is enforceable. Here, because the investor entered into the suretyship promise because she wanted to protect her investment in the store, her oral promise is enforceable. Accordingly, answer choice C is incorrect. Answer choice B is incorrect because, although the investor did receive a financial benefit in promising to guarantee payment, consideration for a party's promise need not be financial in nature for that promise to be enforceable. Answer choice D is incorrect because a promise may be enforceable even though the primary beneficiary of the promise is a third party (here, the owner) rather than the promisor (here, the investor).

Question 5890 A woman borrowed money from a bank and secured the loan by a mortgage on a store that she owned. The mortgage was properly recorded. The woman later sold the store to a buyer who knew about the mortgage, although the land sales contract and the deed were both silent as to the buyer's liability on the mortgage. The buyer initially made payments on the mortgage obligation but later defaulted on the loan. The bank initiated proper foreclosure proceedings. The purchase price received by the bank at the foreclosure sale was not sufficient to satisfy the mortgage obligation. Is the buyer liable for the deficiency? Answers: No, because the buyer took the property subject to the mortgage. No, because the buyer assumed the mortgage. Yes, because the buyer is secondarily liable on the mortgage. Yes, because transferring the mortgage resulted in a novation.

Answer choice A is correct. If a deed is silent or ambiguous about the transferee-buyer's liability on the mortgage, then the buyer is considered to have taken the property subject to the mortgage obligation. If the buyer takes title subject to the mortgage, he is not personally liable upon default, but the property may be sold at a foreclosure sale to satisfy the outstanding mortgage loan obligation. If there is a deficiency after distribution of the sale proceeds, only the transferor-seller is personally liable for it. If, on the other hand, the buyer assumes the mortgage, then upon default, the buyer is personally liable for any deficiency. In this case, the land sales contract and deed were silent as to the buyer's liability on the mortgage. As such, the buyer has taken the property subject to the mortgage and is not personally liable for the deficiency. Answer choice B is incorrect because the buyer did not assume the mortgage. Even if the buyer had assumed the mortgage, answer choice B is incorrect because it misstates the law—had the buyer assumed the mortgage, he would be liable for the deficiency. Answer C is incorrect because the buyer is not personally liable. Even if the buyer had assumed the mortgage, the buyer would be primarily liable and the woman would be secondarily liable. Answer choice D is incorrect because there was not a novation here. A novation occurs when a lender agrees to release the original borrower from personal liability and substitute the borrower's liability with the personal liability of the buyer. In this case, there was no such agreement.

Question 7795 An invitee was injured while on the premises of a business that was owned by a corporation. The invitee filed a negligence suit in a federal court in State A against only the manager of the business. The manager himself filed a third-party complaint against the corporation for contribution and indemnity. The jury returned a verdict that the invitee was 15 percent at fault, the manager 40 percent, and the corporation 45 percent. Based on this verdict, the court entered a judgment against the manager for the invitee for 40 percent of her damages and dismissed the claims by the manager against corporation with prejudice. Subsequently, the invitee brought a negligence action against the corporation in a state court of State B. The corporation has filed a motion to dismiss this action on the grounds that the prior federal court judgment precludes the invitee's claim against the corporation. Under the law of State A, the invitee's claim is not precluded because the corporation is not treated as having been an opposing party in the prior action, while under the law of State B, this claim is precluded. How should the state court rule on the corporation's motion to dismiss? Answers: Deny the motion, because the law of State A is applied to determine the preclusive effect of its judgment. Deny the motion, because the corporation was determined to be 45 percent at fault by the jury in the prior action. Grant the motion, because the invitee's claim against the corporation arose out of the same occurrence as its claim against the corporation. Grant the motion, because, since the forum court is located in State B, the law of State B is applied to determine the preclusive effect of the judgment

Answer choice A is correct. In determining the claim-preclusive effect of a prior federal judgment in an action based on diversity jurisdiction, federal common law requires that the law of the state in which the federal court rendered its judgment be applied. Since, under the law of State A, the invitee's claim against the corporation would not be precluded by the dismissal of the manager's claim against the corporation, the state court should deny the corporation's motion to dismiss. Answer choice B is incorrect because, while the jury did determine that the corporation was 45 percent at fault for the invitee's injuries and this determination might preclude the relitigation of this issue in the current action, it is not relevant to the issue of claim preclusion that is based on the dismissal of the manager's claims for contribution and indemnification against the corporation. Answer choice C is incorrect because, although, under the transactional approach, claim preclusion can apply not only claims that were actually litigated but also to claims that could have been litigated, claim preclusion also requires an identity of parties. Here, the applicable state law, State A, does not treat the corporation as having been an opposing party in the prior action. Answer choice D is incorrect because a state court may not apply its own law in determining the preclusive effect of a judgment rendered by federal court in sitting in diversity jurisdiction in another state. Instead, federal common law requires that the law of the state in which the federal court rendered its judgment be applied. Reference: Marshall v. Inn on Madeline Island, 631 N.W.2d 113 (Minn. Ct. App. 2001).

Question 7372 A recently enacted federal statute bans the sale of automatic firearms to anyone under the age of 16. A national manufacturer and seller of automatic firearms was charged with violating this statute for selling an automatic firearm to a 15-year-old boy with his parents' consent. Which of the following provides the strongest constitutional argument in the manufacturer's defense against this prosecution? Answers: The statute denies individuals under the age of 16 a fundamental constitutional right. The statute infringes on the police power reserved to the states by the Tenth Amendment. The statute is an improper use of the congressional war and defense powers. The statute unduly burdens interstate commerce.

Answer choice A is correct. The Second Amendment guarantees an individual's right to possess a firearm unconnected with service in a militia and to use that firearm for traditionally lawful purposes. The Second Amendment right to bear arms is not unlimited. Examples of lawful regulations include imposing conditions and qualifications on the commercial sale of arms, as well as prohibitions on (i) concealed weapons, (ii) possession of firearms by felons and the mentally ill, and (iii) carrying guns in schools, government buildings, and other sensitive places are presumed to be legitimate. However, because it is a recognized fundamental right, this argument will force the court to apply strict scrutiny to the regulation in question. Therefore, because applying strict scrutiny will provide the manufacturer with its best chance of finding that this statute is unconstitutional, this is the manufacturer's strongest defense. Answer choice B is incorrect. Banning firearms to those under age 16, in and of itself, is unlikely (even in the aggregate) to substantially affect interstate commerce. Nonetheless, the sale of any product (including guns) is "commerce"; all gun sales nationally certainly have a substantial effect on interstate commerce. The Necessary and Proper Clause allows Congress to ban gun sales to minors as part of its broader regulation of gun sales. Therefore, because this statute regulates commercial activity, it likely falls within the power of Congress to regulate interstate commerce and thus likely does not infringe upon the police powers reserved to the states. Answer choice C is incorrect because, even though this statute is unlikely to be permitted under the congressional war and defense powers, this argument ignores the fact that this statute regulates commercial activity. Therefore, this is not the manufacturer's strongest argument. Answer choice D is incorrect. Under the Dormant Commerce Clause, a state generally cannot enact legislation that unduly burdens interstate commerce. There is no such limitation on congressional authority over interstate commerce.

Question 8592 An indigent defendant was tried for misdemeanor assault. The defendant did not request a lawyer be appointed to represent him and the court did not appoint one. The crime carries a maximum punishment of one year in prison and a $2,000 fine. The defendant was found guilty and the court imposed only a fine on the defendant. Has the defendant's Sixth Amendment right to counsel been violated? Answers: No, because the court only imposed a fine on the defendant. No, because the defendant did not request a lawyer be appointed to represent him. Yes, because the crime carried a maximum punishment of imprisonment for more than six months. Yes, because the defendant was indigent.

Answer choice A is correct. The Sixth Amendment provides a constitutional right to counsel in any case in which the defendant is sentenced to incarceration, even if that sentence is suspended. Here, the defendant's Sixth Amendment right to counsel was not violated because he was not sentenced to imprisonment, but rather required to pay a fine. Answer choice B is incorrect. Unlike the Fifth Amendment right to counsel, the defendant does not need to invoke the Sixth Amendment right to counsel. The failure to provide counsel at trial results in automatic reversal of a conviction. Answer choice C is incorrect. The constitutional right to a jury trial exists for non-petty offenses—those that carry an authorized sentence of more than six months of imprisonment, regardless of the actual penalty imposed. The right to counsel, on the other hand, exists only when the defendant is actually sentenced to incarceration, regardless of the maximum length of the sentence that may be imposed for the crime. Answer choice D is incorrect. Although an indigent defendant has the right to the appointment of counsel, this right only exists when the right to counsel exists. Here, the Sixth Amendment right to counsel did not exist because the defendant was not imprisoned.

Question 7520 In the early winter, a couple purchased a waterfront vacation home. Early the next spring, before occupying the home, the couple paid a local contractor $15,000 to install a stone patio and construct an outdoor brick structure for grilling in order to entertain guests outside. Later that spring, they learned that their deed had not been recorded and that, in mid-winter, the original owner had sold the property a second time to a buyer who had notice of the prior sale. The second buyer had promptly recorded his deed. The applicable recording statute provides the following: "No conveyance or mortgage of real property shall be good against subsequent purchasers for value unless the same be first recorded according to law." When the couple brought an ejectment action against the second buyer, who had moved into the vacation home after the contractor had finished the construction, the court ruled in favor of the second buyer. However, the court awarded the couple $15,000 to reflect the value of the improvements they had made to the property. Of the following, which best explains the $15,000 award made by the court? Answers: The couple, believing they owned the property, had made the improvements in good faith. The court erred in ruling for the second buyer. The doctrine of waste entitled the couple to compensation. The improvements constituted fixtures that belonged to the couple as the initial buyers of the property.

Answer choice A is correct. The couple's rights to the property were not good against the second buyer because he recorded his deed before the couple's deed had been recorded in a jurisdiction with a race-type recording statute. This would make them trespassers to the property, and under common law, a trespasser is prohibited from removing a fixture attached to the land. However, the couple did make the improvements to the property in the good-faith belief that they owned the property. Since removal of these improvements would have been impracticable, the court's award likely constituted a recognition of the increase in value to the property that the second buyer had purchased. Answer choice B is incorrect. Since the applicable jurisdiction has enacted a race-type recording statute, and since the second buyer recorded his deed first, the court did not err in ruling in favor of the buyer. Moreover, if the court's ruling had been in error, the couple would have been entitled to eject the second buyer from the property, rather than receiving a $15,000 award. Answer choice C is incorrect because the doctrine of waste creates a duty of the holder of the current possessory interest in property to the holder of subsequent interest in the property. Here, the dispute involves two buyers of the property with competing claims to ownership of the property. Answer choice D is incorrect. Generally, unless the contract of sale provides otherwise, fixtures belong to the buyer, and not the seller of the property. However, the contest in this case is not between the buyer and the seller of the waterfront vacation home, but between two buyers of the property. In addition, the improvements were made after the second buyer purchased the property.

Question 5168 An employee was fired by his employer after working for 20 years at the employer's headquarters. Shortly thereafter, the employee accepted a position in a neighboring state and moved to that state. After moving, the employee filed a complaint in federal court in the state where the employer had its headquarters. The plaintiff-employee alleged that the defendant-employer had discriminated against the plaintiff based on his race, and asserted civil rights claims under state law. The complaint was filed one week before the statute of limitations for these claims was set to expire. The defendant filed an answer, and the parties engaged in discovery, which revealed information previously unknown to either party. Six months after the complaint was filed, the plaintiff filed a motion to add federal claims based on information obtained during discovery. The statute of limitations for the federal claims was the same as that for the state law claims. Over the defendant's objection, the court, noting that the defendant would not be unduly prejudiced, granted the motion and allowed the plaintiff to amend his complaint. Did the court err in allowing the amendment? Answers: No, because a court must freely grant leave to amend a pleading when justice so requires. No, because the plaintiff was entitled to amend his complaint once as a matter of right. Yes, because the new claims were barred by the statute of limitations, and thus the amendment was futile. Yes, because the amendment was untimely.

Answer choice A is correct. The court should freely give leave to amend a pleading when justice so requires, and amendments are generally allowed unless the amendment would be futile because it would immediately subject the claim to dismissal or it would result in undue prejudice to the opposing party. In this case, the amendment would not be futile, and it would not result in undue prejudice. Accordingly, the court did not err in allowing the plaintiff to amend the complaint. Answer choice B is incorrect because although the plaintiff was allowed one amendment as of right within 21 days of being served with the answer, the proposed amendment was outside that time period. Thus, the plaintiff needed leave of court to amend. Answer choice C is incorrect because an amendment to a pleading relates back to the date of the original pleading when the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out, or attempted to be set out, in the original pleading. In this case, the amendment did arise out of the same conduct, transaction, or occurrence set out in the original complaint, and thus it would relate back to the date of the filing of the complaint. Accordingly, it would not be barred by the statute of limitations. Answer choice D is incorrect because although the plaintiff's amendment was made outside of the period for amending as of right, the plaintiff could amend by leave of court.

Question 7575 A customer filed a negligence action against a store. The customer alleged she was injured after slipping and falling on a flight of stairs located just inside the store's entryway. After the customer filed suit against the store, the store hired a contractor to install rubber mats on the floor of the entryway and treads on the stairs to prevent them from becoming slippery. At trial, the customer seeks to introduce testimony by the contractor regarding the store's installation of the rubber mats and treads in order to prove the store's negligence. Is the contractor's testimony admissible? Answers: No, because the rubber mats and treads were installed in the entryway after the customer's injury. No, because the contractor is not a party to the customer's suit. Yes, because the customer likely cannot prevail if the evidence is not admitted. Yes, because the store's installation of the rubber mats and treads is relevant.

Answer choice A is correct. When measures are taken that would have made an earlier injury or harm less likely to occur (e.g., repairing an area where a customer slipped), evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defective product or design, or the need for a warning or instruction. In this case, the customer seeks to introduce evidence of the store's subsequent remedial measures in order to prove the store's negligence in her case. This evidence is not admissible for this purpose. Answer choice B is incorrect. The fact that the contractor is not a party to the customer's suit does not preclude the admission of his testimony. The contractor is a witness with personal knowledge, and thus his testimony would typically be admissible. However, he cannot testify as to the installation of the rubber mats and treads because the testimony is subject to a public policy exclusion. Answer choice C is incorrect. Evidence of the store's subsequent remedial measures is inadmissible to prove the store's negligence under the public policy exclusion for such evidence. The exclusion applies regardless of whether the evidence is essential to the customer's case. Answer choice D is incorrect. Although evidence of the store's subsequent remedial measures is certainly relevant to the issue of the store's negligence, the evidence is inadmissible under a public policy exclusion.

Question 6173 A man liked to exercise late at night in the gym located in his condominium. As he entered the gym one night, he heard a woman screaming for help. The man rushed over to the woman, who was trapped under an 80-pound barbell. The man lifted the barbell off the woman, but injured his back in his rush to help the woman. The woman thanked the man, and told him that she knew she should not have been lifting the barbell by herself because it was too heavy for someone her size. The man has brought a negligence action against the woman to recover for his back injury. Will he prevail? Answers: Yes, because the man's actions were reasonable given the woman's need for help. Yes, because the woman failed to exercise reasonable care. No, because the man had no affirmative duty to help the woman. No, because the man's own negligence was the cause of his injury.

Answer choice B is correct. A person who comes to the aid of another is a foreseeable plaintiff, and a person who negligently puts herself in danger is liable for her rescuer's injuries. Here, the woman negligently put herself in danger because she was lifting a barbell that was too heavy for her size by herself. Answer choice A is incorrect because a rescuer who takes significant risks when attempting a rescue may also be permitted to recover, despite the rescuer's negligence, although the rescuer's recovery may be reduced. Answer choice C is incorrect. Generally, there is no affirmative duty to act. However, this rule would not prevent the man from recovering damages from the woman because she negligently put herself in danger. Answer choice D is incorrect. To the extent that a rescuer's efforts are unreasonable, comparative responsibility should be available to reduce, rather than to bar, recovery by a rescuer. Here, the man's rush to help the woman may have contributed to his back injury, but this fact will not completely bar the man from recovering.

Question 4211 A tenant rented a two-story building; she operated a store on the first floor of the building and lived on the second floor. During a winter weekend when the tenant was out of town and the store was closed, a thief broke into the building. The thief left the building exposed to the elements. As a consequence, water in the pipes froze and burst the pipes, resulting in structural damage to the building. When the tenant returned and discovered the problem, she promptly notified the landlord. The lease contains a provision obligating the tenant to maintain and repair the premises during the tenancy. Which of the following would be the tenant's best argument that she is not obligated to repair the damage to the building? Answers: The criminal act of a third party caused the damage. The lease was residential. The structure of the building was damaged. The damage was due to natural causes.

Answer choice B is correct. A residential lease generally cannot place the duty to make repairs on the tenant, and a provision to that effect is void. This would certainly be true if the need for the repairs did not arise from the tenant's acts and the tenant promptly notified the landlord of the need for such repairs, as is the case here. Answer choice A is incorrect because, even if the damage is attributable to the criminal act of a third party, a provision in a commercial lease that the tenant is obligated to maintain and repair the premises may still impose the duty to repair on the tenant even in this instance. Answer choice C is incorrect because, although it is possible that damage affecting the structure of the building may defeat a provision in a commercial lease obligating the tenant to repair the premises, because the duty to repair is less likely to be imposed in a residential lease, the tenant's best argument is that she is a resident of the premises. Answer choice D is incorrect because, even if the damage to the premises is attributable to natural causes, if the provision is in a commercial lease, the duty to repair may still be placed on the tenant.

Question 6255 A store that carried women's clothing was experiencing a sudden spike in shoplifting by teenagers. The store requested police help to thwart the shoplifting. The police set up a camera in one of the store's dressing rooms. One afternoon, a female police officer who was monitoring the camera observed a teenage girl go into a dressing room, try on a blouse the teen had selected from a store rack, and put her own sweater over the blouse. When the teen attempted to exit the store, the police officer stopped the teen and asked her to lift up the hem of her sweater to her waist. The concealed blouse was revealed, and the officer arrested the teen. The prosecutor has charged the teen with shoplifting. If the teen moves to prevent the state from entering the blouse into evidence, will she succeed? Answers: Yes, because the police should have secured a search warrant before asking the teen to lift her sweater. Yes, because the teen had a reasonable expectation of privacy in the dressing room. No, because the police validly arrested the teen based on probable cause. No, because the teen's action in the dressing room was in plain view of the police officer.

Answer choice B is correct. A search occurs when governmental activities violate one's reasonable expectation of privacy. A government search must be pursuant to a warrant based on probable cause, or be justified by one of the exceptions to the warrant requirement. Persons have a reasonable expectation of privacy in store dressing rooms, and the police officer's act of watching people change in those rooms violated that expectation. As a result, the police officer's actions constituted a search. The police officer did not have a warrant to conduct the search and no exceptions to the warrant requirement apply under these facts. Therefore, the blouse should not be entered into evidence. Answer choice A is incorrect because the lifting of the teen's sweater likely falls under the emergency exception to the warrant requirement. A search without a warrant is authorized whenever there is a reasonable apprehension that the delay required in obtaining the warrant would result in the immediate danger of evidence destruction, or when a suspect is likely to flee before a warrant can be obtained. Answer choice C is incorrect because the illegal search at issue occurred prior to, not incident to, the arrest. Answer choice D is incorrect because the teen's activities were not in plain view; she had a reasonable expectation of privacy in the dressing room that the police violated.

Question 7255 A defendant was sued for defamation for allegedly publishing a false and defamatory story about a local business man based on an anonymous tip. On the stand, the defense attorney asked the defendant for the pseudonym used by the anonymous tipster who provided him with the details of the story about the business man. Overwhelmed by the stress of the trial, the defendant admitted that he could not remember the name. The defense attorney has asked for permission to show the defendant the notes he used to write the allegedly defamatory story to remind him of the name of the tipster. Is the court likely to permit the defense attorney to show the defendant his notes? Answers: Yes, to lay foundation for the admission of the notes into evidence. Yes, as a proper attempt to refresh the defendant's recollection. No, because the use of the notes violates the best evidence rule. No, because it is an improper attempt to lead the witness on direct examination.

Answer choice B is correct. A witness may examine any item (e.g., writing, photograph) to "refresh" the witness's present recollection. The witness's testimony must be based on the witness's refreshed recollection, not on the item itself. Here, because the defendant has forgotten the pseudonym of the tipster due to the stress of the trial, the defense attorney may offer him the copy of his notes to refresh his memory. Answer choice A is incorrect because, based on the facts provided, the notes are not being introduced into evidence. Answer choice C is incorrect. The best evidence rule applies only when the contents of the document are at issue or a witness is relying on the contents of the document when testifying. The contents of a document are at issue when (i) the document is used as proof of the happening of an event; (ii) the document has a legal effect, such as with a contract or a will; or (iii) the witness is testifying based on facts learned from the writing. Here, the contents of the defendant's notes are not at issue and the notes are being used merely to refresh the defendant's recollection. Therefore, the best evidence rule does not apply. Answer choice D is incorrect because the proper use of an item under the present recollection refreshed doctrine does not constitute an improper leading question on direct examination.

Question 8437 On April 1 of Year 1, a teacher orally agreed with a school principal to teach for nine months beginning on September 1 of Year 1. The agreement required that the teacher be paid $1,000 per month in advance on the first of each month. The teacher taught for eight months, for which he was paid in accordance with the agreement. On May 1 of Year 2, the principal paid the teacher $1,000, but he refused to teach. The principal sued the teacher to recover the $1,000 she paid him. In his defense, the teacher pleads the Statute of Frauds. Is the teacher's defense likely to be successful? Answers: No, because the agreement provided for the teacher to teach for only nine months. No, because the principal had fully performed her obligation under the agreement. Yes, because the agreement could not be completed within one year of its formation. Yes, because the value of the services was more than $500.

Answer choice B is correct. Contracts that cannot be performed within one year because of the constraints of the terms of the agreement must be in writing. The year starts the day after the contract is made. Here, the teacher and the principal entered into their agreement on April 1 of Year 1. Because the agreement called for the teacher to teach through the month of May in Year 2, the contract could not be performed within one year and therefore was subject to the Statute of Frauds. However, full performance by either party to the contract will generally take the contract out of the Statute of Frauds. Here, the principal made her final payment to the teacher on May 1 of Year 2, thereby fully performing under the agreement and removing the contract from the Statute of Frauds. Answer choice A is incorrect. In determining whether a contract cannot be performed within one year, what is important is the time that the contract is made, not the length of performance. Here, although the agreement called for the teacher to teach for only nine months, the agreement was entered into five months before the teacher was to begin teaching. Therefore, the agreement exceeded the one-year period for a contract to be enforceable without a writing. Answer choice C is incorrect. Although the contract could not be performed within one year of its making, the principal's completion of her obligation under the agreement on May 1 of Year 2 removed the agreement from the Statute of Frauds. Answer choice D is incorrect. Although a contract for the sale of goods of $500 or more is subject to the Statute of Frauds, there is no similar dollar threshold for a contract for services.

Question 8395 One morning, as a man was standing beside his automobile in the parking lot of his employer, the man suffered a serious injury to his finger when a self-closing door on his automobile unexpectedly shut on his hand. The man filed a product liability action against the automobile manufacturer. The manufacturer contends that the man's own negligence contributed to the accident. The manufacturer presents a coworker of the man as a witness who will testify that, although she was not at work on the day in question, the man had unfailingly arrived at work intoxicated each morning for the year before the incident. To admit this testimony as habit evidence, which of the following must the court find? Answers: The man must have put his character for sobriety in question before the defendant manufacturer can introduce evidence of the man's character for insobriety. The man's intoxication would support the inference that he was negligent in interacting with the self-closing mechanism on the automobile's door. There is a second witness who will corroborate the coworker's testimony. There were no eyewitnesses to the incident.

Answer choice B is correct. Evidence of a person's habit is admissible to prove that the person acted in accordance with the habit on a particular occasion. A habit is a person's particular routine reaction to a specific set of circumstances; habit requires that the conduct occur often and that it is specific. Here, the court must find that the coworker's testimony is evidence that the man was intoxicated on the morning in question, and in order for this fact to be relevant to the present action, the court must also find that his intoxication would support the inference that he was negligent in interacting with the self-closing mechanism on the automobile's door. Answer choice A is incorrect because, unlike the limitation imposed on the introduction of character evidence by the prosecution in a criminal case, there is no similar limitation on the introduction of habit evidence. Answer choice C is incorrect because FRE 406 specifies that habit evidence may be admitted despite a lack of corroboration. Answer choice D is incorrect because, although the lack of an eyewitness to an event can make the introduction of habit evidence the best available evidence that one party has as to what transpired, FRE 406 specifies that habit evidence may be admitted regardless of whether there is an eyewitness to the event.

Question 8365 A buyer, who contracted to purchase land from a seller, filed a specific performance action against the seller in federal district court for the Northern District of State A, where the seller resides. The land lies in the Southern District of State A. Is venue improper? Answers: No, because the land lies in State A. No, because the seller resides in the Northern District of State A. Yes, because, since the action is a local action, it must be brought in the federal district court for the Southern District of State A. Yes, because, since the land is the subject of this action, it must be brought in the federal district court for the Southern District of State A.

Answer choice B is correct. In general, venue in a federal civil action is proper in only one of the following judicial districts: (i) a judicial district in which any defendant resides, if all defendants reside in the same state in which the district is located, or (ii) a judicial district in which a "substantial part of the events or omissions" on which the claim is based occurred, or where a "substantial part of the property" that is the subject of the action is located. Here, the seller resides in the Northern District of State A. Consequently, venue is proper in that district. Answer choice A is incorrect because the venue rules focus on the judicial district, not on the state in which an action can been brought. Answer choice C is incorrect because the federal rules no longer distinguish between local and transitory actions in determining whether venue is proper. Answer choice D is incorrect. While venue would also be proper in the Southern District of State A because it is where the land that is the subject of the action is located, venue is also proper in the judicial district where the defendant resides.

Question 7007 A defendant is on trial for a series of rapes. Based on victim accounts, the rapist would show up at the victims' homes with a bouquet of yellow roses blocking his face, and then spray the victims in the face with mace to prevent them from seeing his face. All of the victims were attacked after providing their personal information to the same profile on a dating site, a profile later linked to the defendant. After obtaining a valid search warrant for the defendant's home, the police searched the home but found no incriminating evidence. The police then searched the backyard, which abutted a public road and was not enclosed by a fence. They discovered a large plot of yellow roses along the road approximately 50 yards away from the home. Upon closer inspection, the police discovered that some of the rose bushes were adorned with personal trinkets reported as missing from each of the rapist's victims. Can the defendant successfully move to exclude evidence of the trinkets? Answers: No, because the incriminating character of the yellow roses was immediately apparent, and the officers were in the back yard for a lawful purpose. No, because there was no reasonable expectation of privacy in the rose garden. Yes, because the rose garden was protected as part of the curtilage of the home. Yes, because the search warrant obtained by the police only encompassed a search of the home.

Answer choice B is correct. Only unreasonable searches and seizures are subject to the Fourth Amendment. A search occurs when governmental conduct violates a reasonable expectation of privacy. Here, the rose garden was in the backyard along a public road and approximately 50 yards from the home. The backyard was not enclosed by a fence. There is no evidence that the defendant took steps to protect the rose garden adorned with trinkets from observation by the public, so it is not protected as a part of the curtilage of his home. Therefore, he had no reasonable expectation in the garden, and the trinkets need not be excluded. Answer choice A is incorrect because it states the standard for what may be seized in plain view in private areas, such as a home. Here, the rose garden is in an open field along a public road. Therefore, the incriminating character of the roses is irrelevant. Answer choice C is incorrect because the garden is not protected as the curtilage of the home. In determining whether an area is protected as curtilage, the following four-factor test applies: (i) the proximity of the area to the home; (ii) whether the area is included within an enclosure surrounding the home; (iii) the nature of the uses to which the area is put; and (iv) the steps taken by the resident to protect the area from observation by passersby. This garden was 50 yards from the home in an unenclosed field, and it was along a public road. Under these facts, the garden is not part of the curtilage of the home. Answer choice D is incorrect because the police do not need a warrant to seize this evidence. It was in plain view in a public place, so there was no reasonable expectation of privacy requiring a warrant.

Question 3047 A plaintiff sued a defendant for injuries resulting from alleged negligence by the defendant in an automobile accident. On direct examination, the plaintiff described the circumstances surrounding the accident and testified that the defendant's car was blue. On cross-examination, the defendant's attorney showed the plaintiff pictures of the accident scene taken by the police that indicate that the defendant's car was actually black. In rebuttal, the plaintiff's attorney calls the plaintiff's boss as a witness to testify that she has known the plaintiff for ten years, and that in her opinion the plaintiff is a truthful person. The defendant objects to the introduction of this evidence. Should the judge admit the boss's statement over the defendant's objection? Answers: No, because the boss's statement does not discuss the plaintiff's reputation for truth and veracity. No, because the plaintiff's character was not attacked. Yes, because it is properly in the form of opinion evidence. Yes, because it tends to show that the plaintiff is an honest person.

Answer choice B is correct. Pursuant to FRE 608, evidence of the truthful character of the witness is generally admissible only if the character of the witness for truthfulness has been attacked. Here, the plaintiff's character for truthfulness has not been attacked. Instead, his credibility has been attacked by showing that his testimonial faculties were faulty. While evidence for the truthful character of a witness may be introduced after the witness's character for truthfulness has been attacked, an attack on credibility cannot be rebutted by evidence showing the witness to be honest. Answer choice A is incorrect because evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise. As explained above, the plaintiff's character for truthfulness has not been attacked. In addition, evidence of a witness's truthful character, if admissible, may take the form of opinion testimony as well as reputation testimony. Answer choice C is incorrect. While evidence used to support the witness's character for truthfulness must be presented in the form of either opinion or reputation evidence, introduction of this evidence at all is inappropriate here, as was explained with respect to answer choice B. Answer choice D is incorrect. As noted above, evidence of the truthful character of the witness is generally admissible only if the character of the witness for truthfulness has been attacked. Here, the plaintiff's character for truthfulness has not been attacked.

Question 7308 A defendant met with an undercover officer and conspired with the officer to commit a bank robbery that afternoon. His conduct met the statutory requirements of criminal conspiracy in the state. When the defendant showed up at the bank an hour later, he assumed that the undercover officer had turned off the cameras and deactivated the alarms as they had planned. Instead, when the defendant drew his gun to threaten the bank teller, he was surrounded by officers and arrested. The defendant was subsequently charged with attempted robbery and went to trial. After the jury was empaneled and sworn in but before any witness was sworn in to testify, the defendant accepted a plea deal with the prosecutor. The defendant pled guilty, and the jury was dismissed. Months later, the prosecutor brought a conspiracy charge against the defendant for conspiring with the undercover officer to commit the robbery. The defendant's lawyer has moved to dismiss the charges as a violation of the defendant's constitutional protection from double jeopardy. Should the court dismiss the conspiracy charge on the grounds of double jeopardy? Answers: No, because jeopardy attaches in a jury trial when the first witness is sworn in. No, because attempted robbery and conspiracy each require proof of different elements. Yes, because jeopardy attaches in a jury trial when the jury is empaneled and sworn in. Yes, because the Double Jeopardy Clause bars successive prosecutions for lesser-included offenses.

Answer choice B is correct. The Fifth Amendment's Double Jeopardy Clause prohibits multiple criminal prosecutions for the same offense. Two different crimes committed in one criminal transaction are generally deemed the same offense unless each crime requires proof of an element that the other does not. An attempted offense and the conspiracy to commit that offense are not the same offense for double-jeopardy purposes because each requires proof of different elements. Therefore, this action is not barred by the Double Jeopardy Clause. Answer choice A is incorrect. Jeopardy attaches in a bench trial when the first witness is sworn in, but in a jury trial, it attaches when the jury is empaneled and sworn in. Answer choice C is incorrect because, although jeopardy did attach for the attempted robbery charge, an attempted offense and the conspiracy to commit that offense are not the same offense for double-jeopardy purposes because each requires proof of different elements. Answer choice D is incorrect because, although the Double Jeopardy Clause generally bars successive prosecutions for greater and lesser included offenses, conspiracy to commit a crime is always considered a separate offense from the underlying crime.

Question 4962 A United States citizen was killed in an airplane crash in a foreign country. The airplane was owned by a foreign corporation. The personal representative of the estate of the U.S. citizen filed suit against the foreign corporation in state court in the state in which the citizen was domiciled. The foreign corporation properly removed the suit to the federal district court located in that state. In federal district court, the foreign corporation moved to dismiss the action and the personal representative opposed the motion. In its motion papers, the foreign corporation noted that the evidence regarding the accident, including all of the witnesses, was located in the foreign country in which the plane crashed. In addition, the foreign corporation argued that the law of that foreign country was determinative of liability in the case. The foreign corporation also pointed out there was a current judicial action in that foreign country brought on behalf of other victims of the crash and their relatives. Of the following actions, which is the court clearly precluded from taking? Answers: Denying the motion and retaining the suit. Transferring jurisdiction of the suit to the foreign court. Granting the motion despite the plaintiff's opposition. Dismissing the suit on the basis of forum non conveniens.

Answer choice B is correct. The federal district court is not empowered to transfer an action to a court in a foreign country, even if the facts indicate that such a forum would be the most appropriate for the action. Answer choice A is incorrect because, although the foreign corporation has presented an array of facts indicating why the court should dismiss the suit on the basis of forum non conveniens, there is the countervailing consideration of providing a local forum for a U.S. citizen that could justify the court's denial of this motion. Answer choice C is incorrect because the mere fact that the plaintiff has opposed the motion would not prevent the court from applying the doctrine of forum non conveniens and granting the motion to dismiss the action. Answer choice D is incorrect because the foreign corporation has made a strong showing that the doctrine of forum non conveniens is applicable to this action. Thus, the court could, but is not required to, dismiss this action.

Question 6377 After the frozen bodies of several victims were found around a small town, police developed a theory that a serial murderer lured victims into his home, locked them in a walk-in freezer in the basement, and let them freeze to death. The police identified a suspect and obtained classified military equipment that would allow them to look through the walls of the suspect's home, see shapes inside, and detect any changes in temperature that might be associated with a human body in a freezer. The police installed the equipment in the house next door to the suspect's, with the owner's permission. They used it to look inside the suspect's basement and detected a woman's form. They then entered the home, rescued the woman from the basement freezer, and took her to the hospital. The officers found physical evidence of the crime in plain view while in the basement. Another team of officers waited until the suspect returned home and arrested him for attempted murder. The suspect moved to suppress the physical evidence found in his basement. Will the court likely grant the man's motion? Answers: Yes, because the police lacked probable cause to search. Yes, because the police used technology not available to the general public. No, because exigent circumstances permitted entry into the man's home. No, because the evidence found by the officers was in plain view.

Answer choice B is correct. The use of a device or sense-enhancing technology (e.g., a thermal sensing device) that is not in use by the general public to explore the details of a dwelling that would previously have been unknowable without physical intrusion constitutes a search. In this case, the police used classified military equipment to look inside the man's house and detect changes in temperature. This technology was not available to the general public, and the information learned from it would not otherwise have been knowable without physical intrusion into the man's home. Thus, the use of the military equipment constituted a search. Accordingly, the police were required to obtain a warrant to use the equipment. Because the police failed to obtain a warrant, the search of the man's house using the military equipment was illegal. Therefore, the evidence of the crime that was ultimately discovered should be suppressed. Answer choice A is incorrect. The issue of whether the police had probable cause is not determinative here. Even if the police had probable cause to conduct the search of the man's house using the military equipment, they still needed a warrant for the search to be valid. Answer choice C is incorrect. Exigent circumstances existed based on the discovery of the presence of the woman through the use of the military equipment. However, the initial use of the military equipment constituted a search, requiring a valid warrant. Because the police did not obtain a warrant for the initial search, any evidence subsequently found as a result of that initial search, even though exigent circumstances existed, is considered "fruit of the poisonous tree" and will be excluded. Answer choice D is incorrect. Although the evidence was in plain view, the initial search of the house through the use of the military equipment was illegal because the police did not have a warrant. Therefore, any evidence found as a result of the initial illegal search is considered "fruit of the poisonous tree" and must be excluded.

Question 6304 An illustrator filed an action in federal district court against a competitor, alleging that the competitor had used one of the illustrator's designs without permission in violation of federal copyright law. A pretrial conference was scheduled for the following month. On the scheduled date, the illustrator failed to attend the pretrial conference, and he failed to notify the court or the competitor. He later informed the judge that his absence was due to a family emergency. The judge then issued an order requiring both parties to notify the judge by telephone at any time prior to the conference if they could not appear. On the date of the re-scheduled pretrial conference, the illustrator again failed to appear as he had to deal with another family emergency. In his haste, the illustrator forgot to notify the judge by telephone. Due to his frustration with the illustrator's conduct, the judge dismissed the case. Was dismissal of the action proper? Answers: No, because dismissal is not a permitted sanction for failure to appear at a pretrial conference or obey a pretrial order. No, because the illustrator's conduct was excusable. Yes, because the illustrator failed to attend the pretrial conference. Yes, because the illustrator failed to obey the judge's order.

Answer choice B is correct. Under Rule 16(a), the court may direct counsel and unrepresented parties to appear for pretrial conferences for such purposes as expediting disposition of the action, effective case management, and facilitating settlement. If counsel or a party fails to appear, fails to participate in good faith, or fails to obey a pretrial conference order, then the court may generally impose the same sanctions as those permitted for failure of a party to comply with a discovery order, including contempt of court or dismissal of an action. Dismissal of an action is a severe sanction, and generally it is appropriate only when a party's conduct is serious, repeated, extreme, and otherwise inexcusable. In this case, the illustrator failed to attend the pretrial conference on two occasions and did not comply with the judge's order requiring prior notice by telephone if he could not make the conference. However, the illustrator's conduct was excusable in each case due to family emergencies. Therefore, while the judge could have imposed some sanctions, dismissal is not appropriate because the illustrator's conduct, although repeated, was not serious, extreme, or otherwise inexcusable. Answer choice A is incorrect because dismissal of a case is a permitted sanction in such circumstances. Answer choices C and D are incorrect. Although the failure to attend the pretrial conference or obey a pretrial order are possible grounds for dismissing a case, as discussed above, dismissal is not proper here.

Question 5950 A telecommunications company applied for a permit to construct a tower on land that the company owned to host a wireless communications signal. The local zoning board denied the permit based on the existing zoning of that land. Prior to seeking a special use variance, the company filed suit in federal court seeking a declaratory judgment that the zoning board's denial violated a federal law that prohibits a state or local government from effectively denying the provision of wireless services to the public. Of the following, which likely constitutes the local government's best constitutional defense against this suit? Answers: An action by a local zoning board does not constitute an unconstitutional taking unless the action results in a permanent total loss of the property's economic value. The matter is not ripe for adjudication. The suit is barred by the Eleventh Amendment. The suit violates the "case or controversy" requirement of Article III, Section 2 of the Constitution because it seeks a declaratory judgment.

Answer choice B is correct. Under the ripeness doctrine, which is grounded in part on the "case or controversy" requirement of Article III, Section 2, a federal court will not consider a claim before it has fully developed, as doing so would be premature, and any potential injury would be speculative. Here, because the company has failed to seek a special use variance, it is likely that court will find the company's claim is premature. Answer choice A is incorrect because whether the denial of a permit by the local zoning board constitutes an unconstitutional taking is irrelevant. The company's action is based on an alleged violation of a federal statute, not on an assertion that the denial has resulted in an unconstitutional taking. Answer choice C is incorrect. The Eleventh Amendment applies only to states and state agencies. Local governments (e.g., counties, cities) are not immune from suit. Answer choice D is incorrect because the fact that a plaintiff is seeking a declaratory judgment as a form of relief does not violate the "case or controversy" requirement.

Question 8590 A consumer sued a business in state court for violation of a state consumer protection law. The law contained an ambiguous provision regarding the requirements for consumers to bring deceptive practice claims against businesses in the state. This provision in the state law was identical to one in a federal consumer protection act, and relied in part on definitions contained in the federal act. In its defense, the business claimed that, based on the ambiguous provision, it could not be sued under the state law. When the case reached the state's highest court, that court sided with the business, but it was unclear whether the court relied on the interpretation of definitions contained in the federal act. The consumer petitioned the U.S. Supreme Court for review of the state court's decision. Is it constitutional for the Supreme Court to review the state court's decision? Answers: No, because the action by the consumer against the business involved a state, not federal, cause of action. No, because the state court's decision could rest on adequate and independent state grounds. Yes, because the Supreme Court may determine whether the state court decision relied upon a determination of a federal issue. Yes, because the Supreme Court may review any final judgment rendered by the highest court of a state.

Answer choice C is correct. Although a final state-court judgment that rests on adequate and independent state grounds may not be reviewed by the U.S. Supreme Court, the Supreme Court may constitutionally review a state court decision to determine whether such grounds exist. Here, because it is unclear whether the state court opinion relied on the court's interpretation of definitions in the federal law, the Supreme Court may review the state court decision to make that determination. If the Supreme Court finds that the state court decision turns on a federal issue, then the Supreme Court may rule on whether the state court correctly decided the federal issue. If not, then the Supreme Court must dismiss the appeal. Answer choice A is incorrect. Even though a suit is based on a state cause of action, the Supreme Court may hear an appeal involving a federal issue that impacts the state cause of action. Answer choice B is incorrect. Although the state court decision could rest on adequate and independent state grounds, the Supreme Court may review the decision to determine whether it does. If it does, then the Supreme Court must dismiss the appeal. Answer choice D is incorrect because it overstates the power given to the Supreme Court by the Supremacy Clause. The Supreme Court may review a state court decision that involves a federal issue, but it may not review a state court decision that rests solely on adequate and independent state grounds.

Question 7168 In response to an increase in the number of sexual harassment suits filed by government employees, a state passed a statute requiring all government employees to participate in sexual harassment classes. Pursuant to a provision in the statute, the classes would include watching videos depicting common interactions between employees that were considered acts of sexual harassment in the workplace. Accordingly, the state validly contracted with a production company to create the sexual harassment videos. However, before the production company began to create the videos, the state legislature decided that it would be less expensive to create a government employee handbook regarding sexual harassment that could be reviewed by government employees during the sexual harassment classes. As a result, the state amended the statute to exclude the required videos and canceled its contract with the production company. Was the state permitted to amend the statute and cancel the contract? Answers: Yes, because the production company had not yet started production of the videos when the statute was amended. Yes, because the state has the constitutional authority to amend the statute regarding the videos. No, because the amendment impairs the state's contractual obligation to the production company. No, because the amendment was not substantially related to a compelling government interest.

Answer choice C is correct. Article I, Section 10 of the U.S. Constitution prohibits states from passing any law "impairing the obligation of contracts." This prohibition applies only to state legislation that retroactively impairs contractual rights. Impairment by the state of a public contract (one to which the state or local government is a party) must be reasonable and necessary. Furthermore, the state must show that its important interest cannot be served by a less-restrictive alternative and that the impairment it seeks is necessary because of unforeseeable circumstances. Here, the amendment retroactively impaired the state's contract with the production company. Although arguably reasonable, there is nothing in the fact pattern to indicate that the government lacked sufficient funds for the creation of the videos. Moreover, there was no unforeseeable circumstance requiring the state to impair the contract with the production company. Therefore, the state was prohibited from amending the statute and canceling the contract. Answer choice A is incorrect because the state cannot retroactively impair the contract even if the production company had yet not started working on the videos. Answer choice B is incorrect because of the prohibition regarding the retroactive impairment of contractual rights. Although the state has the authority to amend statutes, it cannot do so in this case because the amendment resulted in the impairment and cancelation of its contract with the production company. Answer choice D is incorrect because it does not correctly state the test for determining whether the impairment of a public contract by a state is constitutional. The correct test is whether the impairment was reasonable and necessary to serve an important interest, there is no less-restrictive alternative, and the impairment is necessary because of an unforeseeable circumstance.

Question 7614 A public utility that operated in several states and a manufacturer of electrical equipment entered into an agreement under which the utility was to purchase equipment from the manufacturer for a specific price. Among the provisions in the written agreement was a provision that disclaimed the manufacturer's liability for consequential damages. When the manufacturer's equipment failed in breach of the manufacturer's express and implied warranties, the manufacturer repaired the equipment. However, while the manufacturer was doing so, the utility had to purchase electricity from other sources and suffered lost profits as a consequence. The utility brought a breach of warranty action against the manufacturer seeking to recover its lost profits. Is the utility likely to be successful in this action? Answers: Yes, because a disclaimer of liability for consequential damages is unenforceable. Yes, because these damages were foreseeable. No, because of the consequential damages disclaimer. No, because consequential damages are not available for breach of a warranty.

Answer choice C is correct. Generally consequential damages for breach of warranty may be limited or excluded unless the limitation or exclusion is unconscionable. Although limitation of consequential damages for injury to the person in the case of consumer goods is prima facie unconscionable, a limitation of damages when the loss is commercial is not. Here, because the public utility operates in several states, it is unlikely that a court would find that the clause was the product of greatly unequal bargaining power between the utility and the manufacturer. Accordingly, the term is neither substantively nor procedurally unconscionable. Answer choice A is incorrect. Although limitation of consequential damages for injury to the person in the case of consumer goods is prima facie unconscionable, a limitation of damages when the loss is commercial is not. Answer choice B is incorrect. Although lost profits as consequential damages must be foreseeable in order to be recoverable, here the contract contains a disclaimer provision with regard to such damages. Answer choice D is incorrect because consequential damages may be recovered for a breach of warranty. Here, however, the contract contains a disclaimer provision with regard to such damages.

Question 4309 The owner of a ranch owned a large amount of property used almost entirely for grazing cattle. The owner would spend hours each day maintaining the property, tending to his cattle, and making improvements on the structures attached to the land. He would regularly inspect the structures on the land for evidence of trespassers. Because the land bordered a rural community of homes on the edge of town, children used a far corner of the property as a shortcut to get to school. The owner saw a path worn into the ground where the children crossed, but had never actually seen anyone crossing his property and did not know the identities of those who had worn the path. One day, a child who strayed from the worn path severely injured his leg when he fell into a crumbling well on the property. The well was covered with a rotten piece of wood that had been overgrown with brush, and although the owner knew of the well, he had seen no evidence that anyone had ever gone near it and therefore posted no warning about the presence of the well. The child's father sued, and the owner responded that he had no obligation to the man's child, as he did not know the man's child had been on his land. Is the defense outlined by ranch owner likely to be successful in a state following majority rule? Answers: Yes, because he had no actual knowledge that the specific injured child had walked across his land. Yes, because he regularly inspected the structures on his land for trespassers. No, because the landowner did not warn of the well. No, because the man did not prevent the children from entering his land.

Answer choice C is correct. Land possessors owe no duty to undiscovered trespassers, nor do they have a duty to inspect their property for evidence of trespassers. When a land possessor should reasonably know that trespassers are consistently entering his land (e.g., frequent trespassers using a footpath to cut across the corner of the property), the land possessor owes a duty to the anticipated trespasser, regardless of the land possessor's actual knowledge of the trespasser's presence. Here, the owner suspected that people had been using his land as a shortcut, so he owed suspected trespassers a duty to warn them of the dangerous well, even if he had not seen them in that part of his property. He would therefore be liable for the child's injury resulting from his failure to post a warning about the well. Answer choice A is incorrect because the owner had a duty to suspected trespassers consistently entering his land, even if he had no actual knowledge of their activity or exact identity. Answer choice B is incorrect because the owner's diligence in inspecting his property for trespassers would not relieve him of liability. Answer choice D is incorrect because the man had no duty to prevent the children from entering his land but did have a duty to warn of known hazards.

Question 6632 An older man was corresponding daily with a 13-year-old girl in an online chat room called Minors for Men. The older man knew that the girl was a minor because they discussed her age and the trials and tribulations of being a teenager during their many online chats. In addition, the girl sent a picture of herself to the older man and it was clear that she was a minor. The two agreed to meet, and they ended up having sexual intercourse. The older man's wife discovered the relationship when she was looking through his Internet history. She reported him immediately to the authorities and the older man was arrested. The girl found out, and revealed to the authorities that she was actually 23 years old, but she looked very young and she enjoyed role-playing. Can the older man be found guilty of attempt to commit statutory rape? Answers: No, because it was factually impossible for the older man to commit statutory rape of a 23-year-old woman. No, because it was legally impossible for the older man to commit statutory rape of a 23-year-old woman. Yes, because the older man sincerely believed that the girl was 13 years old. Yes, because mistake of fact is a defense to statutory rape.

Answer choice C is correct. Statutory rape is sexual intercourse with a person under the age of consent. The man intended to have sexual intercourse with a minor. Impossibility is not a defense to attempt if the crime attempted is factually impossible to commit due to circumstances unknown to the defendant. If the girl had actually been only 13 years old, then there would have been a crime committed. Further, the MPC crime of attempt (as well as many jurisdictions) requires the performance of a substantial step to support a conviction of attempt, which the man performed here. Answer choice A is therefore incorrect. Answer choice B is incorrect because legal impossibility does not apply to this situation. Legal impossibility is a defense if the act intended is not a crime; the defendant cannot then be guilty of attempt. Statutory rape is a crime, so the older man is guilty of attempt. Answer choice D is incorrect because statutory rape is a strict-liability crime with respect to the age of the victim. Thus, a defendant's reasonable mistake of fact concerning the victim's age is not a defense.

Question 3041 A telecommunications company retained a lawyer to represent it in a commercial dispute in which it was the plaintiff. The fee agreement provided that the lawyer would bill the company on an hourly basis but would not collect anything except costs "unless and until the telecommunications company received a recovery or settlement in the action." Due to disagreements with the lawyer's strategy for the trial, the telecommunications company discharged the lawyer and hired a new law firm on a contingency basis to represent it in the case. The company was ultimately awarded a large judgment. The original lawyer sued the company for her uncollected fees. The company denied owing the lawyer anything, asserting that no money was due yet because the judgment had not actually been collected. The lawyer wants to introduce evidence that the judgment has been collected by showing disbursements from the new law firm's trust account to the telecommunications company. Is this evidence admissible? Answers: No, because the evidence is protected by the attorney-client privilege. No, because the evidence is irrelevant. Yes, because the evidence does not constitute a confidential communication covered by the attorney-client privilege. Yes, because the attorney-client privilege does not apply to disputes between the client and the attorney.

Answer choice C is correct. The attorney-client privilege prevents anyone from testifying about confidential communications made to an attorney for the purpose of obtaining legal services. Here, the payments made out of the trust account were not communications made for the purpose of obtaining representation, and are therefore not covered by this privilege. Answer choice A is incorrect because disbursements from a lawyer's trust account are not communications that the attorney-client privilege protects. Answer choice B is incorrect because this evidence is logically relevant to show that the company had received the funds as a result of the judgment, which triggers the company's contractual obligation to pay the lawyer. Answer choice D is incorrect. Although there is an exception to attorney-client privilege when there is a dispute between the attorney and the client, the dispute at issue is between the company and the original lawyer, not the company and the law firm that made this disbursement. Moreover, the payments made out of the trust account were not communications made for the purpose of obtaining representation, and are therefore not covered by this privilege.

Question 8589 Animal rights advocates put pressure on Congress to address the mistreatment of animals used in scientific research. In response, Congress passed legislation conditioning the receipt of federal research grants on adhering to specific standards in the treatment of laboratory animals. Which of the following constitutional provisions most strongly supports the enactment of this legislation? Answers: The Necessary and Proper Clause under Article I, Section 8 The Police Power under Article I, Section 8 The Taxing and Spending Power under Article I, Section 8 The Privileges or Immunities Clause of the Fourteenth Amendment

Answer choice C is correct. The spending power has been interpreted very broadly. Congress has the power to spend for the "general welfare"—i.e., any public purpose—not just to pursue its other enumerated powers. Although there are areas in which Congress cannot directly regulate, it can use its spending power to accomplish such regulation indirectly by conditioning federal funding on certain behavior. Here, Congress conditioned federal grants on the adherence of grant recipients to standards for the treatment of laboratory animals. This is a proper use of the spending power for a public purpose. Answer choice A is incorrect. Congress is given the power to enact any legislation necessary and proper to execute any authority granted to any branch of the federal government. However, the Necessary and Proper Clause is not an independent source of power; it permits Congress's otherwise designated authority to be exercised fully. Answer choice B is incorrect because Congress does not have a specific police power to legislate for the public welfare. Such "police power" is reserved for the states. Congress can, however, tax and spend for the general welfare. Answer choice D is incorrect because the issue here is not one of infringement by the states upon the privileges or immunities of national citizenship.

Question 2370 A couple sought to purchase a particular house in large part because they believed, based on their research, that a certain historical figure had lived in it. The owner, having not previously heard about this association, neither confirmed nor denied their belief, merely shrugging his shoulders in response to their inquiries about it. The owner did not investigate the matter. The couple purchased the house from the owner. Later, the couple found out that the historical figure had not in fact lived in the house. If the couple sues to void the contract, will they prevail? Answers: Yes, because the owner's failure to investigate the historical figure's connection with the house constituted a breach of the duty of good faith. Yes, because the couple's purpose in entering into the contract was frustrated by the mistake. No, because the risk of this unilateral mistake was borne by the couple. No, because the fact that the historical figure did not live there did not materially affect the bargain.

Answer choice C is correct. This was a unilateral mistake of the buyers, and there is no evidence that the risk of that mistake was assumed by the owner. Answer choice A is incorrect because the duty of good faith generally does not impose an affirmative duty to act, but instead simply requires honesty in fact. Here, the owner did not create the couple's erroneous belief and did nothing to lend credence to it. Answer choice B is incorrect because frustration of purpose involves something that happens in the future. This question involves a mistake about a present state of the property. Answer choice D is incorrect because, although the association of the historical figure with the house did not affect the condition of the house or its habitability, the couple "in large part" wanted the house because of its association with the historical figure. Thus, it was material to their bargain.

Question 4980 The plaintiff, the maker of an electronic device, filed a declaratory judgment action in federal district court against the defendant, the maker of a similar electronic device. The plaintiff sought a judgment that his device did not infringe on the defendant's patent. The court's subject matter jurisdiction was based on a federal question. The plaintiff was a citizen of the state in which the federal district court was located. The defendant, who was a citizen of a neighboring state, lived less than 100 miles from the forum court. Despite the defendant's proximity to the forum court, the defendant was not subject to service of process in her home state for this action under the laws of the forum state. A process server employed by the plaintiff personally served the complaint and summons on the defendant in her home state. Federal patent law does not contain special service of process provisions. Does this service of process confer personal jurisdiction over the defendant on the federal district court? Answers: Yes, because the court's subject matter jurisdiction is based on a federal question. Yes, because the "bulge provision" of Rule 4 of the Federal Rules of Civil Procedure applies. No, because this is a declaratory judgment action. No, because the defendant was not subject to service of process under the laws of the state in which the court is located.

Answer choice D is correct. A federal court must generally determine whether personal jurisdiction exists as if it were a court of the state in which it is situated. The service of a summons in a federal action establishes personal jurisdiction over a defendant "who is subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located." Because the defendant was not subject to service of process for this action under the laws of the forum state, the federal district court does not have personal jurisdiction over the defendant despite the fact that she was personally served with process. Answer choice A is incorrect because this general rule applies to actions that are based on federal question jurisdiction as well as diversity jurisdiction, unless the applicable federal statute provides for nationwide personal jurisdiction by service of process. Here, the facts indicate that the federal patent law does not contain special service of process provisions. Answer choice B is incorrect. Although there is a "bulge provision" in the federal rules that provides for service of process on a party within 100 miles of the forum court even if state law would not otherwise permit such service, this provision only applies to a third-party defendant joined under Rule 14 or a required party joined under Rule 19. Service in this instance was on the original defendant. Answer choice C is incorrect because there is no special service of process rule with regard to a declaratory judgment action.

Question 6250 A college student had been flirting with a teaching assistant who was in his 20s. She invited the assistant to her dorm room to have sexual intercourse. He arrived at 9:00 p.m., and she immediately took his hand and led him to her bed. After they kissed for a few minutes, the assistant began to remove his clothes. The student then said, "I've changed my mind. I don't want to have sex." The assistant said, "Come on. I really like you." Even though the assistant tried for a few minutes to persuade her, the student continued to refuse to have sex, and the assistant left. The assistant did not know that the student was a child prodigy and was a 14-year-old college sophomore. She appeared to be older, and the assistant reasonably believed she was probably about 19 years old. In this jurisdiction, statutory rape is a strict-liability crime defined, in pertinent part, as "having sexual intercourse with a person under the age of 15." Should the state charge the teaching assistant with attempted rape under this statutory provision? Answers: Yes, because statutory rape is a strict-liability crime. Yes, because the assistant continued the sexual contact after the student said she wanted to stop. No, because the student originally consented and the assistant stopped before intercourse occurred. No, because the assistant did not intend to have intercourse with a person under the age of 15.

Answer choice D is correct. Although intent is not required for a strict liability crime such as the one detailed here, an attempted crime requires a substantial step and the specific intent to commit the crime. Because the teaching assistant did not have the specific intent to have sex with a person under the age of 15 when he tried to have sex with the student, he cannot be guilty of attempted rape. Answer choice A is incorrect because any attempt crime requires specific intent, even when the underlying crime is a strict-liability offense. Answer choice B is incorrect because the facts do not suggest that the sexual contact continued after the student changed her mind. Therefore, neither an attempted or completed rape charge is appropriate. Answer choice C is incorrect because consent, which the student later revoked, is not a defense to a strict-liability crime. This answer choice is therefore not determinative, because the student's consent would not have excused the teaching assistant's conduct if he had acted with the requisite specific intent for attempting to violate the statute.

Question 7246 A class action based on strict products liability was brought against a shampoo manufacturer after users of the manufacturer's shampoo started losing their hair. The plaintiffs alleged that an unknown chemical reaction between the listed active ingredient in the shampoo and the unlisted botanical substances used in the manufacturer's proprietary scent formula must have caused chemical burns to their scalps and resulting hair loss. Because the manufacturer's scent formula was a trade secret, the manufacturer requested and was granted a protective order preventing its disclosure. However, the court properly appointed a chemist as an expert witness to run chemical tests on the proprietary scent formula. At trial, the chemist was shown the chemical formula of the active ingredient of the shampoo, and the defense attorney asked whether the active ingredient could react with anything in the proprietary formula to cause chemical burns. The chemist testified, "If this active ingredient had been mixed with any combination of the ingredients I identified in the scent formula using reliable principles and methods of chemistry, no matter the proportions, clear principles of elemental chemistry dictate that no chemical reaction would occur." Is the chemist's testimony proper? Answers: No, because his opinion is based in part upon inadmissible evidence. No, because the chemist did not analyze the active ingredient before trial. Yes, because the chemist spoke hypothetically. Yes, because the formula of the active ingredient was made known to him at trial.

Answer choice D is correct. An expert's opinion may be based on facts and data that the expert has personally observed or about which the expert has been made aware. When such facts and data are not admissible, the opinion itself may nevertheless be admissible if experts in the particular field would reasonably rely on those kinds of facts and data in forming an opinion on the subject. Here, the chemist had personally tested the scent formula prior to trial. Thus, once he was shown the formula of the active ingredient at trial, he had sufficient facts and data to support his testimony. Answer choice A is incorrect because the chemist's opinion may be based on facts and data that the expert has personally observed, even if they are not admissible, if experts in the particular field would reasonably rely on those kinds of facts and data in forming an opinion on the subject. Here, the chemist could rely on the results of his chemical testing in forming an opinion about a substance's ability to react with another known substance. Therefore, this does not make the chemist's testimony improper. Answer choice B is incorrect because the chemist may rely on evidence made known to him at trial as well as facts he personally observed before trial. Answer choice C is incorrect. The fact that the chemist spoke hypothetically here, as he had not personally tested the two substances together, is not relevant to whether his testimony was proper. As discussed above, the testimony would be proper regardless of whether the chemist spoke hypothetically.

Question 8419 An elderly man had walked almost a mile away from his home when an acquaintance on her way to pick up lunch from a nearby fast food restaurant drove by and offered to take the man directly home. The man accepted her offer. Exhausted from his walk, the man immediately fell asleep in the car. The acquaintance decided to continue to the fast food restaurant before taking the man home. After picking up her lunch, she drove the man home and woke him up. The total time the man was in her car did not exceed 15 minutes. Can the elderly man successfully sue the acquaintance for false imprisonment? Answers: Yes, because nominal damages are available for false imprisonment. Yes, because the length of time of the confinement is immaterial. No, because the man had consented to be in the acquaintance's car. No, because the man was not aware of his confinement.

Answer choice D is correct. False imprisonment results when a defendant acts (i) intending to confine or restrain the plaintiff within boundaries fixed by the defendant, (ii) those actions directly or indirectly result in such confinement, and (iii) the plaintiff is conscious of the confinement or is harmed by it. Here, the man was not harmed by the confinement. Thus, to recover for false imprisonment, the man must have been aware of his confinement. However, the man was not aware, as he slept through the trip to the fast food restaurant. Therefore, the man cannot successfully sue for false imprisonment. Answer choice A is incorrect. Although nominal damages are available for false imprisonment, such damages are available only when the plaintiff was aware of his confinement. Here, the man had been asleep throughout the trip to the fast food restaurant. Answer choice B is incorrect. The length of time of a plaintiff's confinement is immaterial with respect to the issue of liability and is relevant only to the determination of the extent of damages. Here, however, the man's lack of awareness of his confinement precludes him from recovering even nominal damages on the basis of false imprisonment. Answer choice C is incorrect. Although the man consented to be in his acquaintance's car, his consent extended only to being driven home. He did not consent to the trip to the fast food restaurant.

Question 6665 A brother went to a mental health facility to visit his sister, who suffered from paranoid delusions and was suicidal. During the visit, the sister told the brother that one of the orderlies was an alien from outer space who had been sent to earth to kidnap the sister and bring her back to the alien's planet. To prevent this from happening, she told the brother that she was going to put herself to sleep permanently. Knowing that the orderlies carefully meted out the medication on a daily basis and were supposed to ensure that the mental patients had swallowed the pills, the brother was not worried. However, a few minutes later, the sister pulled out a large handful of sedatives and swallowed all of them. The brother called the orderlies, but by the time they arrived, the sister had already passed out. The orderlies tried to revive the sister, but she didn't respond, and they informed the brother that she was dead. The brother was distraught, but experienced no physical symptoms. About an hour later, the brother received news from the facility's doctor that the sister was not actually dead; she had just been in a deep, drug-induced coma. The brother later found out that the sister had been squirreling away the sedatives for weeks because no one at the facility had been checking to ensure that she was swallowing the pills on a regular basis. If the brother sues the facility for negligent infliction of emotional distress, is he likely to prevail? Answers: No, because he was not in any danger, himself. No, because he did not suffer any physical injury. Yes, because he witnessed the results of the defendant's extreme conduct. Yes, because he was misinformed about her death.

Answer choice D is correct. Generally, a plaintiff can recover for negligent infliction of emotional distress only if the defendant's action causes a threat of physical impact that results in some kind of bodily harm (e.g., a heart attack). However, there is an exception to the physical-injury requirement in cases of misinforming someone that a family member has died. It is for that reason that the brother may be able to prevail in a negligent infliction of emotional distress claim. Answer choices A and B are incorrect because there are limited ways in which a defendant can recover for NIED, one of which is in the case of misinforming a plaintiff about a loved one's death. Answer choice C is incorrect. This answer choice hints at a requirement for intentional infliction of emotional distress, not negligent infliction of emotional distress.

Question 8524 A customer visited a boat dealer, looking for a sailboat. The dealer named a price for a sailboat that the customer wanted to purchase. The customer asked the dealer to put her offer in writing. The dealer wrote down the sailboat's unique identification number, the price, the date, and the statement, "Firm offer for 30 days from today's date, provided sailboat is in stock," and then signed the document. Twenty-five days later, the customer returned to the dealer, and asked whether the sailboat was still in stock. The dealer stated that it was, but told the customer that the sailboat would now cost $500 more. The customer replied that he was ready, willing and able to buy the sailboat, but only at the lower price. Does the man's statement constitute acceptance of the dealer's lower price for the sailboat? Answers: No, because the dealer withdrew the offer of a lower price before the customer accepted it. No, because the offer was subject to a condition and was therefore not a firm offer. Yes, because the customer was not a merchant. Yes, because the dealer was a merchant.

Answer choice D is correct. Generally, unless consideration is given to keep an offer open, the offeror can withdraw an offer at any time prior to its acceptance by the offeree, even an offer that the offeror states is irrevocable. However, a firm offer made by the offeror in a signed writing is irrevocable for the stated time period, where such period is three months or less, provided that the offeror is a merchant. Here, the boat dealer is a merchant because she is a person who is regularly engaged in the business of selling goods. Therefore, the dealer's attempt to revoke her offer was unsuccessful. By making the customer a firm offer in a signed writing, that offer was irrevocable and the customer could and did accept it within the 30-day period fixed by the offer. Answer choice A is incorrect because, as noted with respect to answer choice D, the dealer had given the customer an irrevocable firm offer for 30 days. Answer choice B is incorrect because any offer, including a firm offer, may be subject to a condition. The condition serves as a limitation on the terms of the offer, but does not prevent the offer from being a firm offer. Moreover, in this case, the condition was satisfied, since the boat had not been sold. Answer choice C is incorrect because the firm offer rule applies to any sale of goods by a merchant, regardless of whether the buyer is a merchant.

Question 2975 The plaintiff and his friend were walking on a city sidewalk. The friend jokingly pushed the plaintiff after the plaintiff started making fun of the friend's taste in music. This caused the plaintiff to trip over his own feet and stumble into the bike lane of the street. The defendant driver, who was involved in a heated argument on his cell phone, had veered into the bike lane and did not see the plaintiff. He hit the plaintiff, causing the plaintiff numerous injuries. The plaintiff has sued the driver. The evidence at trial shows that the plaintiff's injuries were caused by the negligence of both the friend and the defendant. The state has adopted a system of pure several liability. Is the plaintiff likely to prevail in a negligence claim against the defendant? Answers: No, because the plaintiff's injuries were caused by multiple tortfeasors. No, because the state does not recognize joint and several liability. Yes, because the defendant and the friend were independent tortfeasors. Yes, because the defendant's conduct was the actual cause of the plaintiff's injury.

Answer choice D is correct. In order to prove negligence, the plaintiff must establish that the defendant's actions were both the actual cause and the proximate cause of the plaintiff's injury. Generally, the plaintiff must show that his injury would not have occurred but for the defendant's conduct. When multiple defendants have contributed to the plaintiff's injury, the plaintiff may establish causation by showing that the defendant's conduct was a substantial factor in causing the plaintiff's injury. In this case, the defendant and the friend were both the actual causes of the plaintiff's injury, and the plaintiff could recover against either or both of them. Answer choice A is incorrect because a plaintiff may recover against a single tortfeasor when his injuries were caused by multiple tortfeasors so long as the plaintiff can show that the defendant's conduct was the "but for" cause or a substantial factor in causing the injuries. Answer choice B is incorrect because, under joint and several liability, when two or more persons are responsible for a plaintiff's harm, the plaintiff may sue any one of them and obtain a full judgment. Under a system of pure several liability, a tortfeasor is generally only liable for his comparative share of the plaintiff's damages. In this case, the plaintiff could likely collect only a share of the full damages from the defendant. This does not, however, prevent the plaintiff from successfully pursuing a negligence action against the defendant alone. Answer choice C is incorrect because when more than one individual is the cause of a plaintiff's harm, the plaintiff may choose to sue only one defendant regardless of whether the defendants acted in concert with one another or were independent tortfeasors.

Question 5930 The police had probable cause to believe that a man was involved in drug trafficking. After observing the man exchanging cash with another individual on a street corner, the police followed the man back to a hotel where the man had checked in for a few nights. The next day, when the man left the hotel for lunch, a police officer asked the hotel manager if the officer could search the man's room. The manager consented, unlocked the man's room, and supervised the officer as he searched the room. The officer found a notebook open on a desk. Concerned about the possible liability of the hotel for an invasion of the man's privacy, the hotel manager withdrew her consent. The officer ignored her, read the notebook, and discovered that it was a record of the man's drug sales. What is the man's best argument for having the notebook suppressed? Answers: Because the defendant was not present at the time of the search, the hotel manager did not have the authority to consent to the search of this jointly held property. Permission does not constitute consent to a search when a police officer fails to warn the person from whom consent is sought that she has a right to withhold consent. The hotel manager withdrew her consent before the officer learned of the contents of the notebook. The hotel manager could not consent to the search of the man's hotel room.

Answer choice D is correct. In some instances, ownership of the premises is not sufficient to confer authority to consent to a search. The Fourth Amendment protects a person's reasonable expectation of privacy in his dwelling, including a temporary dwelling, such as a hotel room. A hotel manager cannot consent to the search of a guest's room until the guest has permanently checked out. Absent exigent circumstances, which were not present in this situation, the Fourth Amendment protections require the officer to have obtained a warrant before entering the man's hotel room. Answer choice A is incorrect because this is not jointly held property (which is usually an apartment shared by co-tenants or spouses). Further, it misstates the rule regarding the search of jointly held property; generally, the third party can consent to the search of jointly held property if the defendant is not present. Answer choice B is incorrect because it is an incorrect statement of law—there is no Miranda-like requirement that an officer is required to tell a person that she can withhold her consent to a search. Answer choice C is incorrect because, although consent to a search may be withdrawn, this was not a consensual search because the hotel manager did not have the authority to consent to the search of the man's hotel room.

Question 5119 A woman, who was a long-time resident of State A, decided to go on vacation. Unable to fly nonstop to her destination, she changed planes at an airport located in State B. While in the waiting area for her next flight, the woman was served with process in connection with a lawsuit filed against her by her former business partner. The former partner, who had recently become a citizen of State B, had brought suit in federal district court in State B under diversity jurisdiction, asserting that the woman had defrauded him out of his rightful share of the profits of the partnership. According to the complaint, the fraud took place entirely in State A. Can the federal district court in State B properly exercise personal jurisdiction over the woman? Answers: No, because the alleged fraud took place entirely in State A. No, because the woman is a citizen of State A. Yes, because the former partner is a citizen of State B. Yes, because the woman was served in State B.

Answer choice D is correct. Personal service in the forum state is constitutionally sufficient to confer personal jurisdiction over a defendant. If a defendant is voluntarily present in the forum state and is served with process while there, then the court has personal jurisdiction over the defendant, even though the defendant otherwise has no contacts with the forum state. In this case, State B can properly exercise personal jurisdiction over the woman because she was served with process while voluntarily in State B. Answer choice A is incorrect. It does not matter for purposes of personal jurisdiction that the alleged fraud, the cause of action, took place entirely in State A because the federal district court in State B can properly exercise personal jurisdiction over the woman based upon personal service in State B. Answer choice B is incorrect because the fact that the woman is a citizen of State A is not controlling for purposes of personal jurisdiction in this suit. Rather, if a defendant is voluntarily present in the forum state and is served with process while there, then the court has personal jurisdiction over the defendant. Answer choice C is incorrect because the citizenship of the former partner, the plaintiff in the matter, is irrelevant to the constitutional assessment required with respect to the existence of personal jurisdiction over the defendant.

Question 7294 A housecleaner purchased a textile iron manufactured by an appliance manufacturer. The housecleaner successfully used the iron for a few weeks, ironing clothing for her clients. One day, the housecleaner accidentally knocked an expensive oil painting into her mop bucket, causing the painting to get wet. The housecleaner let the painting dry, but the canvas was left wrinkled and puckered. The housecleaner tried to use the iron on its lowest setting to iron out the wrinkles. When she did, the iron sparked, the oil painting caught on fire, and the housecleaner suffered burns on her hands and arms. The housecleaner sued the appliance manufacturer under a strict products liability theory of recovery, alleging a design defect. At trial, it was established that the wiring in the iron had sparked due to the cheap insulation material used by the manufacturer, and that the manufacturer could have prevented this by using a safer type of insulation at the same cost. However, the manufacturer established that the cheap insulation it used complied with governmental safety standards. The relevant jurisdiction is a traditional contributory-negligence jurisdiction and applies the risk-utility test to determine whether a design defect exists. Will the housecleaner succeed in her suit against the manufacturer? Answers: Yes, but her recovery will be reduced due to her misuse of the iron. Yes, because the defect regarding the safety mechanism existed when the iron left the manufacturer's control. No, because the manufacturer complied with governmental safety standards. No, because the iron was not used by the house cleaner in a foreseeable way.

Answer choice D is correct. To recover under a strict products liability theory of recovery, the plaintiff must prove that the product was defective, the defect existed at the time the product left the defendant's control, and the defect caused the plaintiff's injuries when the product was used in an intended or reasonably foreseeable way. Here, the iron was defective, and a design defect existed when it left the manufacturer's control. However, the housecleaner did not use the iron in an intended or reasonably foreseeable way. The misuse, alteration, or modification of a product by the user in a manner that is neither intended by nor reasonably foreseeable to the manufacturer typically negates liability. The textile iron was not intended to be used to dry something as combustible as an oil painting, and this misuse of the iron will probably prevent the housecleaner from recovering. Answer choice A is incorrect because most contributory-negligence jurisdictions hold that product misuse totally bars recovery. Answer choice B is incorrect because, although the defect in the iron existed when it left the manufacturer's control, the housecleaner's unforeseeable misuse of the iron will likely bar her recovery. Answer choice C is incorrect because compliance with governmental safety standards is not conclusive evidence that the product is not defective. Therefore, answer choice D is the best answer.

Question 7268 A woman was hiking along an isolated trail through the woods. Although primarily uninhabited, there were a number of homes a few hundred feet off the trail. As she was walking along the trail, the woman passed an elderly couple walking in the opposite direction. Right after passing them, she heard the elderly woman scream for help because her husband was having a heart attack. The woman immediately got out her cell phone to call 911, but she had no cellular reception. As she looked around, she noticed a tall metal post a few hundred feet off the trail to her right. Knowing it would improve her cellular signal, the woman ran up to it, overlooking a "No Trespassing" sign in her haste. Unbeknownst to her, the post was located on the property of a homeowner. The woman called 911 and immediately left the homeowner's property without causing any damage to it. The homeowner saw the woman enter and exit his property. If the homeowner sues the woman for trespass to land, what is the woman's best defense? Answers: The woman did not cause any damage to the homeowner's property. The woman did not intend to trespass on the homeowner's property. The woman did not see the "No Trespassing" sign before entering the homeowner's property. The woman entered the homeowner's property in an effort to get cell phone reception.

Answer choice D is correct. Trespass to land occurs when the defendant's intentional act causes a physical invasion of the land of another. The defendant need only have the intent to enter the land, not the intent to commit a wrongful trespass. No proof of actual damages is required. However, the privilege of necessity is available to a person who enters or remains on the land of another (or interferes with another's personal property) to prevent serious harm, which typically is substantially more serious than the invasion or interference itself. Private necessity is a qualified privilege to protect an interest of the defendant or a limited number of other persons from serious harm. The privilege applies if the interference was reasonably necessary to prevent a serious injury from nature or another force not connected with the property owner. Despite this privilege, the property owner is entitled to recover actual damages, but cannot recover nominal or punitive damages nor use force to eject the defendant. If this defense is established, the property owner is entitled to recover actual damages, but he cannot recover nominal or punitive damages nor can he use force to eject the defendant. Here, the woman should argue that she had a qualified privilege of private necessity to enter the homeowner's property because she was trying to call 911 in order to help the elderly man who was having a heart attack. Answer choice A is incorrect because the woman can be liable for trespass to land even if she did not cause any actual damage to the homeowner's property. Answer choice B is incorrect because the woman only needed to have the intent to enter the land, not the intent to commit a wrongful trespass on the homeowner's property. Answer choice C is incorrect because even if the woman did not see the "No Trespassing" sign, she could still be liable for trespass to land.

Question 8393 A state law provides that the Registrar of Motor Vehicles, upon receipt of a police report that a driver who was arrested for operating a motor vehicle under the influence refused to submit to a breath-analysis test, must immediately suspend the driver's license for 90 days. The driver, upon surrendering his license, is then entitled to a "same day" hearing before the Registrar. Of the following, which is NOT a factor in determining whether this failure to provide a pre-suspension hearing violates the Due Process Clause of the Fourteenth Amendment? Answers: The degree to which reliability would be materially enhanced by mandating a pre-suspension hearing The driver's interest in the continued possession and use of his license pending the outcome of the hearing The risk of erroneous observation or deliberate misrepresentation by the reporting police officer of the facts forming the basis of the suspension Whether the state can demonstrate a compelling interest in not providing a pre-suspension hearing

Answer choice D is correct. When an individual's protected interest is threatened by governmental action, a court considers three factors in determining the amount of process that is due: (i) the private interest affected by the governmental action; (ii) the risk of erroneous deprivation of that interest using current procedures and the probable value of additional or substitute safeguards; and (iii) the burden involved in providing the additional process. A state has the burden to demonstrate a compelling interest justifying its actions when a fundamental right is at issue. Answer choice A is incorrect because the degree to which reliability would be materially enhanced by mandating a pre-suspension hearing focuses on the probable value of a pre-suspension hearing. Answer choice B is incorrect because the driver's interest in the continued possession and use of his license pending the outcome of the hearing is the driver's interest that is affected by the immediate license suspension. Answer choice C is incorrect because the risk of erroneous observation or deliberate misrepresentation by the reporting police officer of the facts forming the basis of the suspension reflects the risk of erroneous deprivation of the driver's interest affected by the license suspension.