MBE Set 16
A motorist was driving his car down the street when he struck a 10-year-old boy who had darted into the road to retrieve a bouncing ball. After the accident, the boy's mother refused to take the boy for treatment on religious grounds. As a result, the boy's injuries were more severe than they would otherwise have been. What argument provides the boy with his best chance to recover for all of his injuries?
The boy's best argument is that his mother's refusal to take him to a physician, if deemed to be negligent, is not imputed to him. A plaintiff has a duty to take reasonable steps to mitigate damages. Thus, in personal injury cases, there is a duty to seek appropriate treatment to effect healing and to prevent aggravation. Failure to do so will preclude recovery for any particular item of injury that occurs or is aggravated due to the failure to mitigate (this is the avoidable consequences rule). Thus, the boy's not consulting a doctor could limit his recovery to the damages for the original injury only. ****However, he is a child and his mother decided not to seek medical help for him. In actions against a third party, a parent's negligence is not imputed to the child.*****
At the time he met with the sales rep, the promoter's contract with the company had one more month to run. When the promoter's contract with the company expired, he announced that he was forming his own business to market a different line of water filtration systems manufactured by a competitor of the company, and that the sales rep would be in charge of his promotional network. Promotor independant contractor?
The court should not grant the promoter's motion because the jury could find that the promoter used improper means, while working for the company, to divert the sales rep for his own purposes. To establish a prima facie case for interference with business relations, the following elements must be proved: (i) existence of a valid contractual relationship between plaintiff and a third party or a valid business expectancy of plaintiff; (ii) defendant's knowledge of the relationship or expectancy; (iii) intentional interference by defendant that induces a breach or termination of the relationship or expectancy; and (iv) damage to plaintiff. Thus, a plaintiff has a cause of action for interference with probable future business relationships for which the plaintiff has a reasonable expectation of financial benefit
"She is getting married soon and I want her to have a nice wedding present from me." The daughter was aware that her father made this statement to the homeowner. She married, but soon thereafter the contractor told the homeowner to pay him the $5,000, and not the daughter, because his son-in-law had a gambling problem and would probably use the money to bet at the racetrack.
The daughter's best argument to enforce the contract in her favor is that she married in reliance on the contract (detrimental reliance), although she will probably be unsuccessful. Under the doctrine of detrimental reliance, a promise will be enforced to the extent necessary to prevent injustice if it was made with a reasonable expectation that it would induce reliance, and such reliance was in fact induced. The problem with this argument here is that it is not clear that the daughter relied on the promise to give her $5,000, because she already had planned to get married.
Field Preemption--- A *comprehensive* federal health-care reform statute created a Federal Health Policy Board but nothing in the statute provided for caps on fee increases. One state passed legislation that prohibited most fee increases of 10% or more per year for specified health-care services covered by insurance AND created a health-care review board to regulate these costs and impose monetary penalties on health-care providers or insurers that tried to circumvent the cap.
The fact that the federal board was similar to the state board but was not given the power to restrict fee increases and impose sanctions in an otherwise comprehensive bill suggests that such provisions in the state law violate the Supremacy Clause. A state law may fail under the Supremacy Clause even if it does not directly conflict with a federal statute or regulation if it interferes with the achievement of a federal objective or the federal regulations occupy the entire field. Where the federal laws are comprehensive or a federal agency is created to oversee the field, preemption will often be found. The fact that the health-care legislation was *comprehensive* but the federal board was not given regulatory or enforcement power suggests that Congress did not want specific restrictions in these areas and may have wanted free-market principles to determine fee increases at the outset. The state board's power to impose these restrictions may violate the Supremacy Clause under these circumstances.
judgment lienor protected by the recording statute? Due to an error by the title company, the deed from the tortfeasor to the buyer was not recorded, although the mortgage to the bank was recorded. Neither the buyer nor the bank had any knowledge of the victim's judgment. On May 20, the victim recorded his judgment in the county recorder's office where the land was located. At that time, he had no knowledge of the buyer's or the bank's rights. When he learned about them, he immediately brought a proceeding to foreclose his judgment lien, naming the tortfeasor, the buyer, and the bank as parties
The victim will not likely prevail against the bank because a majority of courts hold that the judgment lienor is not protected by the recording statute. If the statute here, which is a notice statute, were applicable to protect the victim, he would have priority over the bank because his judgment lien was recorded before the buyer's deed was recorded. However, most courts reason that either (i) a judgment creditor is not a bona fide purchaser because he did not pay contemporaneous value for the judgment, or (ii) the judgment attaches only to property "owned" by the debtor, and not to property previously conveyed away, even if that conveyance was not recorded. Under the statute in the present question, a judgment does not attach until it is recorded. Here, the victim's judgment did not attach to the land until after the bank obtained a mortgage on it, and the recording statute does not change that result. The failure of the buyer to record, and the resultant treatment of the bank as unrecorded, is irrelevant. Thus, the bank's mortgage is superior to the victim's lien.
A mother died, bequeathing all of her property to a trustee "to pay the income to my husband for life, and to distribute the principal to my son and daughter if they graduate from college. If they do not graduate from college, then the principal shall be distributed to charity." Subsequently, the son and the daughter graduated from college. Upon their graduation from college, how would the interests of the son and the daughter in the trust principal be classified?
Upon their graduation, the interests of the son and the daughter in the trust principal would be classified as tenants in common to a vested remainder. A remainder is classified as contingent if its taking in possession is subject to a condition precedent. Here, because the condition precedent—that the son and the daughter graduate from college—has been satisfied, the son and the daughter's contingent remainder has "vested." Also, at common law, it was held that any conveyance to two or more persons was presumed to create a joint tenancy unless a contrary intention was clearly expressed. But today all courts hold that such a conveyance creates a tenancy in common. To create a joint tenancy, words such as "as joint tenants with right of survivorship" must normally be used to show the necessary intent. Thus, the son and the daughter are tenants in common to a vested remainder.