MBE Question Set 3

A pedestrian was injured in a car accident involving two cars. The pedestrian filed a negligence action in federal district court against the first driver, seeking $100,000 in damages. The pedestrian is a citizen of State A and the first driver is a citizen of State B. The first driver then filed a third-party claim against the second driver, claiming that the second driver is responsible for half of the harm caused to the pedestrian and seeking to recover half of any liability the first driver is found to have to the pedestrian. The second driver is a citizen of State A. Does the federal court have subject matter jurisdiction over the third-party claim asserted by the first driver against the second driver? A Yes, because the court has supplemental jurisdiction over the third-party claim. B Yes, because the court has diversity of citizenship jurisdiction over the third-party claim. C No, because the amount in controversy in the third-party claim is too small. D No, because complete diversity of citizenship is lacking.

A Yes, because the court has supplemental jurisdiction over the third-party claim. The court has supplemental jurisdiction over the third-party claim. Diversity of citizenship jurisdiction is available when (i) there is complete diversity of citizenship, meaning that each plaintiff must be a citizen of a different state from every defendant; and (ii) the amount in controversy exceeds $75,000. In the instant case, the case is properly in federal court because diversity jurisdiction exists for the underlying claim (i.e., the claim by the pedestrian against the first driver), given that the pedestrian is from State A, the first driver is from State B, and the amount in controversy is $100,000. The third-party indemnity claim, however, cannot invoke diversity jurisdiction, even though the first driver is from State B and the second driver is from State A, because the amount claimed is $50,000. This makes (B) an incorrect answer choice. When the federal court has subject matter jurisdiction over one claim, it has discretion to exercise supplemental jurisdiction over related claims that derive from the same common nucleus of fact and are such that a plaintiff would ordinarily be expected to try them in a single judicial proceeding. (Essentially, this means that the supplemental claim must arise from the same common nucleus of operative fact as the claim invoking federal subject matter jurisdiction.) In the instant case, the claims of pedestrian (the underlying claim) vs. first driver and of first driver vs. second driver (the indemnity claim) are derived from the same accident, and thus both are derived from the same transaction or occurrence. There are restrictions on the use of supplemental jurisdiction when the use of supplemental jurisdiction would be contrary to diversity jurisdiction. In terms of third-party practice, claims by a plaintiff against an impleaded party may not use supplemental jurisdiction to circumvent the diversity statute. However, claims by a defendant are not listed among the restrictions; thus, supplemental jurisdiction is available to a defendant (third-party plaintiff) against a third-party defendant. Therefore, the first driver may use supplemental jurisdiction to have his claim against the second driver heard in federal court. (This would be true even if they were from the same state, so long as the claim was a true indemnity claim.) As a result, (A) is correct, and (C) and (D) incorrect.

A skier broke his leg when he was knocked down by the chair lift as he tried to avoid other skiers who had fallen off while disembarking. The ski resort employee operating the lift had not been paying attention and had failed to stop the lift. Ski patrol personnel placed the skier on a stretcher, which they then hooked up to a snowmobile to bring him down the mountain. The route down ran along the edge of a ski trail. Midway down, a novice snowboarder tried to see how close he could come to the stretcher without hitting it, but he lost control and landed on top of the skier's leg, damaging it further. The skier filed a lawsuit against the snowboarder and the resort in a jurisdiction that has adopted a comparative contribution system in joint and several liability cases. At trial, the skier's physician testified that the skier's leg was permanently disabled, but that neither injury, by itself, would have caused the permanent disability and it was impossible to quantify how much each injury contributed to the disability. The jury determined that the damages from the permanent disability equaled $2 million, and that the snowboarder and the resort were each 50% at fault. What amount of damages can the skier recover from the snowboarder for his permanent disability? A $1 million, because the jurisdiction follows comparative contribution rules. B $2 million, because it was not possible to identify the portion of the injury that the snowboarder caused. C Nothing for his permanent disability, because the skier has not met his burden of proof as to the amount of damages that the snowboarder caused. D Nothing for his permanent disability, because the injury inflicted by the snowboarder, by itself, would not have caused the disability.

B $2 million, because it was not possible to identify the portion of the injury that the snowboarder caused. The skier can recover $2 million from the snowboarder because the snowboarder is jointly and severally liable for the injury. The doctrine of joint and several liability provides that when two or more tortious acts combine to proximately cause an indivisible injury to plaintiff, each tortfeasor will be jointly and severally liable for that injury. This means that plaintiff can recover the entire amount of his damages from any one defendant. The doctrine applies even though each tortfeasor acted entirely independently and at different times. Here, both the snowboarder and the employee of the ski resort breached their duty to the skier to act with reasonable care. Each tortfeasor's act was the actual cause of the skier's disability because but for either one of the acts, his leg would not have been permanently disabled. The snowboarder's act was the proximate cause of the skier's disability because the disability was the direct result of the snowboarder's act. The fact that the extent of the harm was unforeseeable is irrelevant; i.e., the tortfeasor takes the victim as he finds him. Thus, the skier can recover the entire $2 million from the snowboarder. (A) is incorrect because the contribution rules govern only whether a defendant required to pay more than his share of damages has a claim against the other jointly liable parties for the excess. Contribution does not involve the amount of damages that the plaintiff can collect in the first place. (C) is incorrect because the skier has met his burden of proof by establishing that the snowboarder was an actual and proximate cause of his permanent disability. Because the injury caused by the tortfeasors was not divisible, under joint and several liability rules, the snowboarder is liable for the full amount of the damages, including that attributable to the permanent disability. (D) is incorrect because but for the snowboarder's collision with the skier, the skier would not have been disabled. The "but for" test applies in concurrent cause situations—cases where several acts combine to cause the injury, but none of them standing alone would have been sufficient. The fact that the snowboarder's act standing alone would not have caused the disability is irrelevant to the snowboarder's liability.

A town adopted an ordinance providing that a person must have been a resident of the town for at least one year to be eligible to vote in school board elections. A resident who moved to the town seven months ago attempted to register to vote in the school board elections scheduled for the next month. However, the town clerk refused to register the resident because he will not have resided in the town for a full year prior to the election. The resident filed a class action suit on behalf of all of the new residents of the town, challenging the validity of the one-year residency requirement. Which of the following statements is correct? A If the resident's suit is not heard before the election, it will be dismissed as moot, because the resident will have met the residency requirement by the time of the next annual election. B The resident will prevail even if the matter is not decided until after next month's election. C As long as there is some legitimate purpose for the one-year residency requirement, such as the need to prepare voting lists, the residency requirement will be upheld. D The resident will lose because one-year residency requirements have been held permissible restrictions on the right to vote in local elections.

B The resident will prevail even if the matter is not decided until after next month's election. The resident will prevail even if the matter is not decided until after the election, because the suit is not moot and the residency requirement is unconstitutional. The resident's suit is not moot even if the matter will not be decided until after the election because other members of the class might have a live controversy. Under the case and controversy requirement of the Constitution, there must be a real, live controversy at all stages of the suit. If through the passage of time, the controversy between the parties is resolved, the case is said to be moot. However, there are exceptions to the mootness doctrine. In a class action, it is not necessary that the suit by the named plaintiff be viable at all stages, as long as the claim is viable by some member of the class. Thus, the suit here would not be moot. Moreover, the residency requirement here violates the resident's fundamental rights to vote and to interstate travel. A restriction on the right to vote is subject to strict scrutiny and is valid only if it is necessary to achieve a compelling state interest (otherwise the restriction violates the Equal Protection Clause by treating new residents differently from old residents). Relatively short residency requirements (e.g., 30 days) have been upheld as being necessary to promote the compelling interest of assuring that only bona fide residents vote. However, the Supreme Court has struck down longer durational requirements for lack of a compelling justification. Thus, the one-year requirement here probably unconstitutionally impinges on the right to vote. The residency requirement also impinges on the fundamental right to travel in the same manner (i.e., it discourages people from migrating by denying them the right to vote without a compelling reason). Thus, the requirement is invalid. (A) is incorrect because, as indicated above, the case will not be moot since other members of the class might have a live controversy. (C) is incorrect because it applies the wrong standard. Because fundamental rights are affected by the residency requirement here, the government must show a compelling justification; a mere rational or legitimate basis is not enough. (D) is incorrect because, as stated above, the Supreme Court has found that there was no compelling interest for a one-year residency requirement in order to vote.

A recent law school graduate was offered a job as an aide by a state legislator. The legislator told the graduate that before she could begin working, she had to take the following loyalty oath: "I swear to uphold our state and federal Constitutions; to show respect for the state and federal flags; and to oppose the overthrow of the government by violent, illegal, or unconstitutional means." The graduate told the legislator that the oath is unconstitutional and refused to take the oath. Is the graduate correct? A Yes, as to the promise to uphold the state and federal Constitutions. B Yes, as to the promise to respect the flag. C Yes, as to the promise to oppose the overthrow of the government. D No, as to all three provisions.

B Yes, as to the promise to respect the flag. The graduate is correct as to the promise to respect the flag, but incorrect as to the other two promises. The Supreme Court has upheld oaths requiring government employees to oppose the violent overthrow of the government and to support the Constitution; hence, (A) and (C) are incorrect. However, it has held that government employees cannot be required to show respect for the flag, as a person might refuse to salute the flag on religious grounds. Thus, (B) is correct and (D) is incorrect.

A statute requires that any pilot who flies passengers for hire must have a commercial pilot's license. An experienced pilot who had only a private pilot's license and not the commercial license required by statute was asked by an attorney to fly her to another city to close a deal. The attorney knew that the pilot did not have a commercial license but the only commercial flight to the city was at an inconvenient time. The pilot flew the attorney through bad weather and landed safely, but because of a minor navigational error he landed at an airport a few miles away from the airport he was heading for. As he was going to start taxiing toward the hangar, another plane struck the aircraft. The student pilot of that plane had ignored the control tower's instructions and gone onto the landing runway instead of the takeoff runway. The attorney was injured in the collision. If the attorney sues the pilot for her injuries, who will prevail? A The pilot, because the attorney knew he lacked a commercial license and voluntarily assumed the risk of flying with him. B The pilot, because the injuries to the attorney were caused by the negligence of the student pilot of the other plane. C The attorney, because the pilot violated a statute designed to prevent persons without commercial licenses from flying passengers for a fee, and such violation imposes liability per se. D The attorney, because the pilot landed at the wrong airport, and but for this mistake the attorney could not have been injured by the other aircraft.

B. The pilot, because the injuries to the attorney were caused by the negligence of the student pilot of the other plane. The pilot will prevail because the conduct of the other plane's student pilot constituted a superseding intervening force that relieves the pilot from liability. To establish a prima facie case for negligence, the attorney must show that the pilot's breach of his duty to her was the actual and proximate cause of her injury. The attorney can establish actual cause because but for the pilot's error, she would not have been injured. However, not all injuries "actually" caused by a defendant will be deemed to have been proximately caused by his acts. The general rule of proximate cause is that the defendant is liable for all harmful results that are the normal incidents of and within the increased risk caused by his acts. This rule applies to cases such as this, where an intervening force comes into motion after the defendant's negligent act and combines with it to cause plaintiff's injury (indirect cause cases). Here, the pilot's navigational error did create a greater risk of collision with other planes in the process of landing, but it did not increase the risk of a plane using the landing runway to take off in disregard of the control tower's instructions once the pilot was safely on the ground. Hence, the student pilot's unforeseeable conduct was not within the increased risk created by the pilot's negligence and constitutes a superseding force that breaks the causal connection between the pilot's conduct and the attorney's injury, enabling the pilot to avoid liability to the attorney. (A) is incorrect because assumption of the risk requires knowledge of the specific risk and the voluntary assumption of that risk. Although the attorney knew that the pilot lacked a commercial license, she also was under the impression that he was a very good pilot. There is no indication that she knew of or voluntarily assumed any risk. Certainly, she did not assume the risk of the type of harm she suffered. (C) is incorrect because even though the pilot may be negligent per se, he would not be liable per se. A clearly stated specific duty imposed by a statute may replace the more general common law duty of due care when: (i) the plaintiff is within the class to be protected by the statute, and (ii) the statute was designed to prevent the type of harm suffered. The statutory duty is clearly stated and arguably applies here because the attorney, as the pilot's paying passenger, is within the protected class, and runway collisions and other pilot errors are what the license requirement is officially designed to prevent. There are no grounds for excusing the pilot's violation of the statute, so the pilot's conduct could be seen as "negligence per se." This means that plaintiff will have established a conclusive presumption of duty and breach of duty. However, for the attorney to prevail, she must also establish actual and proximate causation. As explained above, the attorney will not be able to show that the pilot's negligence was the proximate cause of her injuries. Thus, while she may be able to establish "negligence per se," she has not made a case for "liability per se." (D) is true as far as it goes. An act or omission to act is the cause in fact of an injury when the injury would not have occurred but for the act, and this injury would not have occurred but for the pilot's landing at the wrong airport. However, the attorney must also be able to establish that the pilot's conduct was a proximate cause of her injury. As noted above, the pilot's conduct was not a proximate cause of her injury because the student pilot's actions acted as a superseding intervening force.

Congress passed legislation banning the hunting of snipe birds within the United States. The range of the snipe is quite limited; they are found primarily in only one state, although they migrate annually to several nearby states. Hunters from throughout the United States have traditionally traveled to the snipe's home state during snipe hunting season, bringing considerable revenue into the state. A state statute allows hunting of snipe during a two-week period in November and charges a $50 license fee for state residents and a $250 fee for hunters from other states. The bag limit is one snipe bird per licensed hunter. Is the state statute allowing snipe hunting valid? A Yes, because states have the right to control their own natural resources and wildlife. B Yes, because the power exercised is reserved to the states by the Tenth Amendment. C No, because of the Supremacy Clause. D No, because of the Commerce Clause.

C. No, because of the Supremacy Clause. The state statute is invalid because of the Supremacy Clause. Under the Clause, if the federal government adopts legislation that it has the power to adopt, the federal legislation is supreme, and a conflicting state law is rendered invalid. The federal law here, banning the hunting of snipe, is within the federal government's power under the Commerce Clause, which gives the government power to regulate anything that might affect interstate commerce. Because the birds themselves are found in a few states, they probably cross state lines. Also, hunters come from out of state and generate revenue in the state, so interstate commerce is involved. The state law directly conflicts with the federal law because it allows hunting of snipe. Therefore, the state law will be held invalid under the Supremacy Clause. (A) is incorrect because, while states do have a limited right to control their natural resources, the right is concurrent with the federal government's power, and cannot be exercised to conflict with federal regulation in the area. Note further that a state's power to control its natural resources is also limited even if Congress does not act: A state may not adopt a law discriminating against interstate commerce or excessively burdening interstate commerce, even absent federal legislation. Regarding (B), the Tenth Amendment reserves all powers not granted to the federal government to the states. (B) is incorrect because the Court will not likely strike down on Tenth Amendment grounds a federal regulation that subjects state governments to the same regulations as apply to the private sector. In such cases, the states' interests are best protected by the states' representation in Congress. (D) is incorrect because the Commerce Clause does not render the state's action invalid; it merely gives Congress the power to act. It is the Supremacy Clause that makes the interfering state law invalid.

A dog whistle manufacturer's factory was located near a residential area. The manufacturer used the most effective methods for testing its whistles, but it was impossible to completely soundproof the testing area. A breeder of champion show dogs bought some property near the factory and raised and trained her dogs there. Although the whistles were too high-pitched to be perceived by human ears, they could be heard by the breeder's dogs. Consequently, the dogs often were in a constant state of agitation. In a suit by the breeder against the manufacturer, what is the likely outcome? A The breeder will prevail on a trespass theory, because the sound waves are entering onto the breeder's property. B The breeder will prevail on a nuisance theory, because the sound of the whistles is a substantial interference with the breeder's use of her land. C The breeder will not prevail, because the sound of the whistles is not a substantial interference with the breeder's use of her land. D The breeder will not prevail, because the manufacturer has acted reasonably in testing its whistles.

C. The breeder will not prevail, because the sound of the whistles is not a substantial interference with the breeder's use of her land. The breeder will not recover because there has been no substantial interference with her use or enjoyment of her land, nor has there been a trespass. A private nuisance is a substantial, unreasonable interference with another person's use or enjoyment of her property. The interference must be offensive, inconvenient, or annoying to the average person in the community. It is not a substantial interference if it merely interferes with a specialized use of the land. Here, the testing of the dog whistles did not bother humans, and so it did not disturb the average person in the community. It is disturbing to the breeder's dogs, but this affects only her specialized use of her land. Thus, the manufacturer's actions do not constitute a private nuisance. (Nor do they constitute a public nuisance—an act that unreasonably interferes with the health, safety, or property rights of the community.) Therefore, (C) is correct, and (B) is incorrect. (A) is incorrect because the sounds reaching the breeder's property do not constitute a trespass. A trespass is an intentional physical invasion of another's land. Sound waves do not produce a physical invasion. Thus, the facts here do not support a basis for trespass. (D) is incorrect because the manufacturer could be found liable to the breeder even if it acted reasonably. In determining whether there is a nuisance, a court would consider the manufacturer's care in testing its whistles, but that factor alone would not be determinative. If the activities were offensive to the average person, the court might still find there is a nuisance—even if it is impossible to do a better job of soundproofing. The court would have to consider the "reasonableness" of the interference, i.e., balance the injury against the utility of the manufacturer's conduct.

A manufacturer of widgets was incorporated in and has its principal place of business in State A. The manufacturer also operates its own stores in State A, State B, and State C, through which it sells its widgets to consumers. A consumer who resides in State D visited a State D store to purchase a widget. The State D store did not have the widget he needed, and employees at the store directed him to the State B store operated by the manufacturer. The consumer visited the manufacturer's State B store and purchased the widget. The consumer returned to his home in State D, where he was injured while using the widget. The consumer intends to file a products liability action against the manufacturer in federal district court. In what district or districts is venue proper? response - incorrect A The District of State A, the District of State B, and the District of State C. B The District of State A only. C The District of State A and the District of State D only. D The District of State A, the District of State D, and the District of State B.

D The District of State A, the District of State D, and the District of State B. Venue is proper in the District of State A, the District of State D, and the District of State B. Federal venue in civil actions is proper in (i) the district where any defendant resides, if all defendants are residents of the state in which the district is located; and (ii) the district in which a substantial part of the events or omissions giving rise to the claim occurred. The District of State D is proper because a substantial part of the events giving rise to the claim—use of the widget and the injury—took place there. Substantial events also occurred in the District of State B (the sale). Additionally, venue is proper in other districts because the manufacturer is deemed to reside there. Corporations are deemed to reside in any district in which it is subject to personal jurisdiction with respect to the action in question. The manufacturer is subject to personal jurisdiction and thus deemed to reside in the District of State A (because its incorporation and principal place of business are there, thus subjecting it to general jurisdiction there), the District of State B (because it sold the widget from its store there, thus subjecting it to specific jurisdiction there with respect to the current action), and the District of State D (because the injury took place in State D, thus subjecting it to specific jurisdiction there with respect to the current action). Thus, (B) and (C) are incorrect. (A) is incorrect because, although the manufacturer transacted business in the District of State C (because it operates stores there), such activity would not subject the manufacturer to personal jurisdiction with respect to the action here, because State C has no connection with the consumer's injury. As a result, the manufacturer does not reside, for the current action, in that district for venue purposes.

A resident of City A (located in the Northern District of State A) brought a diversity action against a resident of City B (located in the Eastern District of State B). The cause of action arose in City B. The defendant commutes daily from his home in City B to his office in City A and would find it much more convenient to litigate the action there than in City C, where the appropriate court for the Eastern District of State B is located. The plaintiff would also find it more convenient to litigate in City A, but will go to City C if necessary. May the action be litigated in City A? A No, because venue is not proper there. B No, if process is served in State A. C Yes, because a plaintiff is entitled to choose venue. D Yes, if the defendant waives proper venue.

D. Yes, if the defendant waives proper venue. The action may be litigated in City A because improper venue may be waived. The defendant may inform the plaintiff that he will waive any objection to venue in City A. Given that the plaintiff has indicated a willingness to bring the action in City C if necessary, the defendant would not seem to gain any advantage by insisting on proper venue at great inconvenience to him, unless other factors make City C a preferable venue. (A) is incorrect because although City A is not a proper venue under 28 U.S.C. section 1391, improper venue may be waived. (B) is incorrect because the place where process is served has no effect on venue. (C) is incorrect because a defendant may object to improper venue.