L201 All Practice Questions

Which of the following actions is considered to reflect a counteroffer?

A grumbling acceptance All four choices are correct Answer = A demand for additional terms A silent acceptance An inquiry regarding terms

Which of the following characterizes the effect of incapacity caused by mental impairment?

A person formerly incapacitated by mental impairment cannot ratify a contract if he/she regains his capacity If a court has found a person mentally incompetent after holding a hearing on his mental capacity and has appointed a guardian for him, the contract is considered voidable The contracts of people who are suffering from a mental defect at the time of contracting are usually considered to be void A person disaffirming on the ground of mental impairment need not return any consideration given by the other party Answer = If a contract is found to be voidable on the ground of mental impairment, the person who lacked capacity at the time the contract was made has the right to disaffirm the contract

Which of the following meets the requirements of consideration?

A promise not to engage in a crime or tort A promise without a binding obligation Answer = A promise that involves the exchange of a legal value A promise to do a preexisting duty A promise to give a gift

Normally, an illegal contract is:

A quasi-contract Implied-in-fact Answer = Unenforceable Voidable Ratified

Which legal form of business has the ability to attract the greatest amount of capital from investors?

A sole proprietorship. A limited liability company. A corporation.= ANSWER A partnership.

Aaron promises to sell his boat to Matt, and Matt promises to buy it from Aaron. What type of contract is this?

A unilateral contract A quasi-contract Answer = A bilateral contract A promissory estoppel contract An implied contract

According to the Code, when there is an acceptance that contains terms that are different from the original terms of the contract, the contract will consist of _______________ and the appropriate gap-filling presumptions of the Code.

An inquiry regarding terms Notifications to prevent breach of conduct Counteroffers from either party Answer = Terms on which the parties' writings agree Standardized form terms

Calvin tells Sara that he will sell her his car for $5,000. Sara agrees. The exchange is to take place in 10 days. The contract between Calvin and Sara is now:

Answer = Bilateral, executory, and express Bilateral, executed, and voidable Bilateral, executory, and implied Unilateral, executed, and valid Unilateral, executory, and valid

Which form of damages is intended to give the victim of the breach of contract the "benefit of the bargain"?

Answer = Compensatory Punitive Nominal Liquidated Waiver

The shipment of nonconforming goods, intended as an accommodation to the buyer, is a(n) _______________.

Answer = Counteroffer Ambiguous offer Prompt shipment Inquiry regarding terms Stipulation

A contract is said to be __________ - that is, the legal part can be separated from the illegal part—if the contract consists of several promises or acts by one party, each of which corresponds with an act or a promise by the other party.

Answer = Divisible Unenforceable Voidable Implied-by-law Implied-in-fact

The California legislature passes a law that sets a minimum wage of $15/hour for qualified workers in California. Which is true:

Answer = Employees covered by the law are entitled to whichever wage is higher, the one under federal law or the California law. The law is invalid because of the law of supremacy; federal law already sets a minimum wage.

When the surrounding facts and circumstances indicate that an agreement has in fact been reached, a(n) _____ has been created.

Answer = Implied contract Quasi-contract Void contract Unenforceable contract Voidable contract

Guy and Boyd make an oral contract whereby Guy agrees to sell Boyd, 480 widgets (goods) at a price of $480. Later, the parties want to modify the contract so that the price would become $520. This modification:

Answer = Must be in writing Must be oral because the first contract was oral Can be oral but need not be Is unenforceable because the first contract is unenforceable Is an unenforceable modification

The general common law rule on contract modifications holds that an agreement to modify an existing contract requires:

Answer = New and independent consideration A necessary increase in the value of the exchange A writing (always) An economic exchange of substantial value Inclusion of a new party to the contract

A minor entered into a contract with GAM & Co. On attaining majority, he wishes to enforce the contract. The adult party must:

Answer = Perform the contract Rescind the contract Abandon the contract Ratify the contract Void the contract

Which of the following allows a party who has materially breached a contract to recover the reasonable value of any benefits he has conferred on the promise?

Answer = Quasi-contract Anticipatory repudiation Specific performance Accord and satisfaction Promissory estoppel

The legal remedy of __________ requires the defendant to pay the value of the benefits that the plaintiff has conferred on him.

Answer = Restitution Waiver Compensatory damages Accord and satisfaction Punitive damages

Nina has breached a contract between Milo and her, but not materially. This means that Milo can:

Answer = Sue only for damages caused by the breach Sue for damages for a total breach of the contract Cancel the contract Withhold his performance, even if the breach is remedied Recover punitive damages

Which of the following is an exception to the consideration requirement?

Bargained-for exchange Answer = Charitable subscription Adequacy of consideration Gifts Nominal consideration

The settlement of an unliquidated debt is called a(n):

Bargained-for exchange Forbearance to sue Past consideration Moral obligation Answer = Accord and satisfaction

Judge determines both facts and law

Bench Trial

We listened to Cabinet Battle 1 (from Hamilton) to learn and talk about:

Congress has power to establish national bank (N&P Clause)

Traditionally, what has been least likely to be a defense to a claim of strict liability for defective products?

Contributory negligence.

New claim by defendant arising out of the matters in complaint

Counterclaim

Which of the following is designed to help an employee who loses a job because the employer relocated the company to some other country?

FLSA (Fair Labor Standards Act) Title VII Equal Pay Act Worker's Compensation Answer = Unemployment Compensation

True or False: Agreements in restraint of competition in contracts for the sale of a business are generally scrutinized more thoroughly than agreements in restraint of competition in employment contracts.

False

True or False: All United States public and private employees have a reasonable expectation of privacy in their employment and cannot be subject to polygraph tests or random drug tests without probable cause.

False

True or False: In a strict liability case, the plaintiff must prove that the defendant breached a duty.

False

True or False: The major source of law protecting United States private employees in their employment is the U.S. Constitution.

False

True or False: To prove causation in a negligence case, the plaintiff must prove that the breach of duty was either an actual cause or a proximate cause, but not both.

False

Referring to the facts in Question 2, Garrett may deduct the business's losses on his individual tax return.

False Answer = True

Only fed court with jurisdiction based all on subject matter rather than geographic location

Federal Circuit

Federal jurisdiction when case arises under the Constitution, laws, or treaties of the U.S.

Federal question jurisdiction (no amt in controversy req'd)

Federal gov possess powers delegated by the US constitution; remain powers reserved for states/people

Federalism

The reason why Congress cannot compel states to enact desired regulatory program

Federalism

A principal is _____ if a third party knows or has a reason to know that the agent is acting for a principal and the principal's identity.

Formalized. Disclosed.= Answer Undisclosed. Nonexistent.

Removal is available:

From state to federal court when concurrent jurisdiction

The kind of protection misleading political speech recieves

Full First Amendment protection

Xerox, Google, Kleenex, Velcro, & Sharpie are examples of marks that have become/are becoming:

Generic

Commerce Clause allowed federal government to enforce CSA against CA residents (medical Marijuana)

Gonzales V. Raich

Patrick sues Derek for negligence. At the trial, it is determined that Patrick's negligence was 40% responsible for his injury, and Derek's negligence was 60% responsible. Patrick's losses total $10,000. Under a pure comparative negligence system, he will recover:

$6,000.

Under the facts of question above, how much would Sally recover in a state that had a pure comparative negligence system?

$7 million.

Under the facts of the previous question, how much would Sally recover in a state that had a mixed comparative negligence system?

$7 million.

Sarah is 16 years old. She left home at age 15; her parents no longer support her. Sarah entered into a contract with Best Groceries for the purchase of $100 of groceries on credit. The groceries consisted of basic, necessary items. However, their reasonable value is only $80. If Sarah discovers that she has been overcharged and refuses to pay, Best is entitled to collect:

$80

An attorney acquires confidential information about a certain client (Client A). However, he discovers that this information is important for the affairs of a second client (Client B). In this situation, two duties are in conflict. The two conflicting duties are ___(1)___ and ___(2)___. How are they are resolved? _____(3)_____.

(1) the duty not to disclose confidential information (one aspect of the duty of loyalty), and (2) the duty to notify the principal about all information relevant to the agency business. (3) The agent must terminate his relationship with either Client A or Client B as he cannot maintain competing duties. (1) the duty not to disclose confidential information (one aspect of the duty of loyalty), and (2) the duty to notify the principal about all information relevant to the agency business. (3) If the agent cannot properly represent Client B without revealing Client A's information, he should refuse to represent Client B any further. = ANSWER (1) the duty inform and (2) the duty to reimburse. (3) The agent should refuse to represent Client B any further. (1) the duty not to disclose confidential information (one aspect of the duty of loyalty), and (2) the duty to notify the principal about all information relevant to the agency business. (3) If the agent cannot properly represent the Client B without revealing Client A's information, he must terminate his relationship with both clients.

Procedural action party takes if it believes a federal district court doesn't have jurisdiction

***NOT SURE****

Melissa hurls a rock with the intention to hit James, because James sat in her chair. The rock hits Chris, instead, who is sitting next to James. Melissa is liable for battery under the doctrine of:

- Actual malice. - Implied consent. - Melissa is not liable for battery. - Nuisance. - Transferred intent.

Which of the following is NOT an invasion of privacy tort?

- Commercial appropriation of name or likeness - Defamation - False light publicity - a. Intrusion on solitude or seclusion - Public disclosure of private facts

You are walking down a street and you pass by a beer brewery. A barrel rolls out of a third story window and injures you. You have no idea how this accident occurred, and you will have difficulty proving that the brewery was at fault. What legal theory will serve you BEST if you sue the brewery?

- Res ipsa loquitur - Negligence per se - Battery - Trespass - Strict liability

Jimmy worked as a paralegal for attorney Sally. While Sally was engaged in a conversation with the president of Baker Toys, Billy Bob Baker in Sally's office, Jimmy attempted to enter Sally's office. Billy Bob pushed the door closed in Jimmy's face, forcing him back into the hall. Jimmy, who suffered no physical injury as a result of Billy Bob's contact, sued Billy Bob for battery. In an affidavit filed in opposition to Billy Bob's motion for summary judgment, Jimmy stated that he was offended, shocked, and frightened as a result of Billy Bob's contact and the "You get out of here" statement Billy Bob allegedly made to Jimmy as Billy Bob pushed the door closed slightly brushing against his face and forcing him back into the hall. The trial court granted Billy Bob's motion for summary judgment, and Jimmy appealed. If the appellate court affirms the trial court's granting of summary judgment, it will probably be because:

- The court of appeals reasoned that the offensiveness element of a battery claim is to be determined in light of a reasonable sense of personal dignity. - Jimmy was unreasonably sensitive based on these facts. - The court's observation that an ordinary, reasonable person who intruded upon a private conversation like Jimmy did would not have been offended by Billy Bob's response to the intrusion.

A plaintiff will succeed against her employer in a disparate treatment case under Title VII if she can prove that:

Her employer does not pay her well Her workload is very high Her employer rarely approves her requests for leave of absence Her employer discriminates against her on the basis of race =ANSWER Her employer discriminates against her on the basis of weight

Case that ended debate on meaning of principal place of business deciding it meant nerve center

Hertz v. Friend

Which is the LEAST true about USERRA - Uniformed Services Employment and Reemployment Rights Act:

It applies to employers of any size There is an escalator principle It applies to any member of the uniformed military service including reservists and the national guard Applies for an absence from the workplace for military service for up to 15 years = Answer Employers have limited defenses to the reemployment requirement

A bilateral contract is "taken out of the statute of frauds" when:

It cannot be completed within a year from the day of its existence Answer = It is fully performed by at least one party It is put in writing It has strict rules of performance It is proven by the parol evidence rule

When do traditional contract (common law) rules apply to a contract for the sale of goods?

It depends if the seller is a merchant Courts can choose to apply the UCC Article 2 or traditional contract (common law) rules at their discretion Always Answer = Where no specific UCC Article 2 rule exists Never

Why is past consideration not a consideration in a present promise?

It falls under exceptions to consideration Answer = It does not pertain to the present exchange It is not covered under the UCC codes for consideration It involves an issue of moral obligation It involves a modification

What is the legal status of an improperly dispatched acceptance that was sent by a means of communication that was nonauthorized by the offeror (traditional common law)?

It is a stipulation It leads to an immediate revocation Answer = It is effective when received It is effective upon dispatch It is valid but unenforceable

True or False: American general incorporation statutes originally permitted incorporation for limited purposes beneficial to the pubic and had many restrictions.

True = Answer False

Employers can defend against a claim under Title VII by showing that to accommodate an employee's religious practice would create an undue hardship to the business.

True =ANSWER False

Lisa is the Vice President of Acquisitions/Organic Snack Foods for Enjoy Life Foods. She regularly negotiates for the acquisition of brands for Enjoy Life Foods, but only in the area of organic snack foods. Enjoy Life Foods has instructed Lisa to negotiate to purchase a company that makes organic cookies. Lisa signs a contract on behalf of Enjoy Life Foods with Mockolate Foods, which makes organic cookies. Lisa has actual authority to enter into this contract.

True =ANSWER False

Model statues, not the law until enacted by the legislature

Uniform Acts

Has original jurisdiction to hear controversies between two states

United States Supreme Court

A sole proprietorship lasts for how long if it continues to run unabated?

Until the filing expires, and then business has to be reformed. 10 years with an option to renew for another 10 years. For 100 years. Until the death of the owner.= Answer

Which of the following is least likely to involve liability for violating the so-called "right of publicity"? In each case, assume that the plaintiff's name, likeness, work, etc. was appropriated without the plaintiff's permission.

Using the work of an unknown artist to illustrate the T-shirts one makes and sells.

Which of the following contracts are agreements that create no legal obligations and for which no remedy is given?

Valid contracts Unenforceable contracts Answer = Void contracts Voidable contracts Quasi-contracts

A(n) _____ case involves harm caused by the principal's negligence regarding the agent.

Vicarious liability. Respondent superior. Direct liability.= Answer Implied warranty.

An otherwise valid contract whose enforcement is barred by the applicable contract statute of limitations is an example of a(n):

Void contract Bilateral contract Quasi-contract Voidable contract Answer = Unenforceable contract

Payne entered into a written agreement to sell a parcel of land to Stevens. At the time the agreement was executed, Payne had consumed alcoholic beverages. Payne's ability to understand the nature and terms of the contract was not impaired. Stevens did not believe that Payne was intoxicated. The contract is:

Voidable at Payne's option Answer = Legally binding on both parties Illegal Voidable at Stevens' option Void as a matter of law

Which of the following is not part of the pleadings?

Voir Dire, Complaint, Answer, or Reply? =Voir Dire

Which of the following is an express or implied promise about the nature of the product sold?

Warranty

To establish a cause of action based upon strict liability for injuries from a defective product, one of the elements the plaintiff must prove is that the defendant:

Was engaged in the business of selling the product.

The internet/website test used to establish personal jurisdiction

Zippo Manufacturing sliding scale test

Three days before she was judicially declared mentally incompetent and institutionalized, Irma bought a $50,000 automobile by cash and took delivery of it. Which of the following is true about this contract?

It is voidable at the discretion of the seller Answer = The contract is voidable due to Irma's institutionalization The contract cannot be disaffirmed because it is fully executed Irma ratified the contract by paying the price of the car The contract is void

Which of the following is true of apparent authority?

It requires that the agent receive consideration from the principal, i.e., the agent is not a gratuitous agent. It arises when an agent falsely claims to be acting under the authority of a principal. It requires express authorization, in words or writing, from the principal. It arises when the principal leads a third party to believe that an agent is authorized.= ANSWER

Roman Holiday checked into Windy Manor, a bed and breakfast hotel, for the weekend. While dressing for dinner in his room at Windy Manor, Roman had a massive heart attack and died instantly. Several days later, local officials learned that Windy Manor does not have a functioning fire sprinkler system as is required by state law. Roman's heirs sued Windy Manor for negligence in not having a functioning fire sprinkler system. In this case, Windy Manor's best argument is that:

Its failure to have a functioning fire sprinkler system was not the actual or proximate cause of Roman's death.

Takes cases away from jury after the jury returns a verdict

JNOV (judgement non obstinate verdicto)

Joe buys a bottle of Coca-Cola. When Joe spots a needle inside the bottle, his buddies dare him to drink the coke. After doing so, Joe suffers physical injury as the needle sticks in his throat. Joe sues Coke under section 402A; Coke defends by arguing assumption of risk on Joe's part. Transylvania, however, has eliminated assumption of risk as a separate defense in product liability cases. Instead, it has a comparative fault statute. Under that statute, what is the result of Joe's lawsuit and why? Assume that Coke would be liable under section 402A.

Joe would recover the portion of his provable damages not attributable to his own fault. The fact finder would allocate causal responsibility between Coke's defect and Joe's assumption of risk and allow Joe to recover which would be Joe's provable damages times Coke's share of the responsibility. Modern comparative fault statutes include assumption of risk within their definition of fault.

State X has a "Sunday Closing Law" making it a crime to operate a retail business on Sundays. The law's legislative history reveals that it was enacted to promote respect for the Sabbath by all the people of the state, and thus to promote public decency and morality. One Sunday, Judy Smith slips on a puddle of spilled soft drink at Joe's Hamburger joint (which is operating in violation of the statute), and suffers an injury to her spine. The soft drink would not have been spilled if the store had not been open on Sunday. Judy sues Joe in negligence. One part of her complaint relies on the doctrine of negligence per se. Under the doctrine of NEGLIGENCE PER SE:

Judy will not recover because she did not suffer harm of a kind that the statute was intended to protect against.

Kyle sent Tara a letter offering to sell Tara his car. Tara left the letter on her desk, where her roommate, Maggie, saw it. After reading the letter, Maggie wrote to Kyle and stated that she (Maggie) wanted to accept Kyle's offer. Which of the following is true?

Kyle must sell Maggie his car unless Kyle is a merchant under the UCC Answer = There is no contract between Kyle and Maggie because Kyle did not communicate the offer to Maggie Kyle and Tara have a contract for the purchase of Kyle's car Maggie's letter is a valid acceptance of Kyle's offer None of the above

Garrett opens a roofing business in the state of Illinois. Garrett has 7 employees. Garrett is the sole owner. Garrett does not file any paperwork to form his business. This type of business is a(n):

LLC (Limited Liability Company) C corporation Closely held corporation LP (Limited Partnership) Answer = Sole proprietorship

Which of the following business forms makes the owner of a business personally liable for all actions of the business?

LLLP LLP LLC Corporation Partnership = Answer

A(n) _____ is a limited partnership whose partners have elected limited liability status for all the partners.

LLLP.= ANSWER A corporation. LLP. LLC.

Daniel owes Casey a debt, the amount of which is subject to a good faith dispute. The parties agree to settle the debt, with Daniel promising to pay Casey $15,000 and Casey promising to release Daniel on a $25,000 debt. The settlement agreement:

Lacks consideration because it is past consideration Answer = Is supported by consideration Is binding even though there is no consideration Lacks consideration because Daniel is promising to perform a preexisting legal obligation Lacks consideration because Casey is not giving Daniel any legal value

Must prove in a trademark infringement claim but NOT in a trademark dilution claim

Likelihood of confusion

Used for personal jurisdiction over out of state defendants where sufficient minimum contact

Long Arm Statue

Barney is 23 years old. His aunt had promised in writing to pay him $1,000 if Barney would refrain from drinking alcohol for one year. Barney refrained from drinking alcohol for one year. However, his aunt now refuses to pay Barney as agreed-upon. The aunt claims that because Barney suffered no detriment by refraining from alcohol, his non-drinking does not constitute legal consideration and therefore no contract was formed. If Barney sues his uncle, Barney will:

Lose because refraining from an action can never be considered legal consideration Answer = Win because Barney had a legal right to drink alcohol Win because no consideration is needed in this contract Lose because his aunt just had his best interests in mind and was trying to help him make good choices Lose because consideration must have monetary value

Bing engaged Dill to perform personal services for $2,200 a month for a period of four months. The contract was entered into orally on July 1, 1984, and performance was to commence September 1, 1984. On August 10, Dill anticipatorily repudiated the contract. As a result, Bing:

May not assign his rights to damages under the contract to a third party Can obtain specific performance May not enforce the contract against Dill since the contract is oral Answer = Can immediately sue for a breach of contract Cannot withhold performance

Jay Walker was attempting to cross a busy street blindfolded. Although the street sign said "Don't Walk," he stepped into the street and began to cross it. Just then, a speeding car driven by a drunken driver, Anita Martini, crossed the centerline and struck Jay. Jay almost died, and spent several months in the hospital in intensive care. He survived, but has serious permanent injuries. Jay sued Anita for negligence. The jury finds that his damages are $1 million. The jury finds that Jay and Anita were both substantial factors in Jay's injuries. It also finds that Jay was 90% at fault and Anita was 10% at fault. How much would Jay recover in a state in which contributory negligence is still valid law?

Nothing

Arbitrator starts as a mediators but in event of a failed mediation imposes a binding decision

Med/Arb

An independent person between 2 contending parties to aid them in settling their disagreement

Mediation

Pursuant to the facts of the previous question (question 5), how much would Jay recover in a state that had a mixed comparative negligence system?

Nothing

A seller's ability to disclaim implied warranties is sometimes restricted by the doctrine of:

unconscionability.

Goods that are not "merchantable" are:

unfit for the ordinary use for which such goods are used.

Which of the following characterizes false imprisonment?

unfounded assertion of legal authority to detain a person.

Reggie went to the Napa Valley Harvest Festival, when he stopped at Tracy's booth where she was selling paintings of vineyards. Reggie admired a painting of vineyards, which did not appear to be for sale. Reggie said to Tracy, "I will give you $200 if you give me that painting right now." Tracy said nothing in response, but she gave Reggie the painting, and Reggie gave her $200 in cash. This is an example of a contract that is now:

unilateral and executed

In an assault case, it is irrelevant:

whether the threatened contact actually occurs.

If Lisa instead contracted for the acquisition of a paper goods company, would Enjoy Life Foods likely be bound by that contract?

No, because she lacked actual authority but had apparent authority Yes, because of the doctrine of ratification Yes, because she lacked actual authority but had apparent authority Yes, because of the doctrine of estoppel No, because she lacked actual authority and she lacked apparent authority =ANSWER

Sam resigned from his job as a cardiologist (physician) at Southern Hospital. After he submitted his resignation, Sam agreed to sign a non-compete agreement with Southern Hospital that states that for six months Sam will not accept employment as a cardiologist within a 25-mile radius of Southern Hospital. Southern Hospital has a full staff of cardiologists and Southern Hospital is not located in a medically underserved area. Is this noncompete agreement likely to be upheld?

No, because the clause must be ancillary to, or part of, an otherwise valid contract.

Entitles employer to use inventions patented by employees without liability for infringement

Shop Right

A _____ is owned by shareholders and governed by a board of directors.

Sole proprietorship Limited Liability Company Corporation = Answer LLP Partnership

When a promisee who has an existing claim agrees with the promisor that he will accept some performance different from that which was originally agreed on, both parties can use the remedy of:

Specific performance Answer = Accord and satisfaction Waiver Rescission Injunction

Congress can use conditional grants to encourage states to regulate but can't compel them using___

Spending Power

Be based on an enumerated power and not collide with an interdependent check

The 2 tests a federal law must meet to be constitutional

An agent's apparent authority ends when:

The agent's actual authority, both express and implied, ends. The principal loses capacity or dies. The principal revokes authority. The third-party receives notice of the termination of agency.= Answer

Which of the following factors is most likely to distinguish employees from independent contractors?

The agent's personal liability for illegal actions taken on behalf of the principal. The principal's right to control the manner and means of the agent's performance.= ANSWER Whether the agent has authority to bind the principal by his actions. Whether or not consideration is given by the principal for the agent's performance.

Troika Corp. owns an apartment complex at which break-ins and prior instances of criminal activity had occurred. However, no security-related measures have been adopted. As a result, a criminal intruder easily enters the complex and physically attacks a tenant. Which of the following is true regarding the case?

Troika is liable for proximate and actual cause.

True or False: Express and implied authority both derive from the same source, the agent, due to the agent's manifestations.

True False = Answer

True or False: The BFOQ defense applies to race.

True False = Answer

True or False: Title VII disparate treatment theory focuses on results, not proving employer's intent to discriminate.

True False =ANSWER

Historically, it has been legal in most places to fire someone based on his or her sexual orientation.

True = Answer False

Pursuant to the facts of the questions above (questions 5 and 6), how much would Jay recover in a state that had a pure comparative negligence system?

$100,000.

Referring to the facts in Question 8, it is determined that Patrick's negligence was 60% responsible for Patrick's own injury, and Derek's negligence was 40% responsible for Patrick's injury. Patrick's losses total $10,000. Under a pure comparative negligence system, Patrick will recover:

$4,000.

P sues D in negligence. At trial, it is determined that P's negligence was 40% responsible for P's injury, and D's negligence was 60% responsible. P's losses total $10,000. Under a pure comparative negligence system, P will recover:

$6,000.

The part of the pleading that must state the requested remedy

Compliant

When both Congress & state can make a law w/in certain areas unless preempted by supremacy clause

Concurrent powers

The first thing a court will do before applying the rules to determine which law takes priority

Determine if different types of laws conflict

Which of the following is generally true regarding the tort of conversion?

A defendant who buys or sells stolen property may be liable for conversion even if she does so in good faith and without knowledge of the theft.

The maximum number of shareholders that are allowed in a Subchapter S corporation is:

50. 75. 500. 100.= ANSWER

Number of justices on the U.S. Supreme Court (WHEN FULL CAPACITY) number of members in U.S. Senate

9;100

A Co. builds a footbridge over railroad tracks that have electrified power lines strung above them to provide power to the trains. A Co. considers two different options to protect against the risk of pedestrians on the footbridge somehow coming into contact with the electrified power lines. One option is five times more expensive than the other but past experience indicates that it is ten times more effective. A Co. opts for the cheaper, less effective option. B, a pedestrian, comes into contact with the electrified power lines when trailing a long wire over the edge of the footbridge. Which of the following statements most accurately states the proper analysis of the related questions of risk and precaution?

A Co. may not have been negligent if the precautions it took were reasonably effective given the magnitude of the risk, even though it could have achieved greater effectiveness at greater expense

Which of the following contracts is void?

A contract made by an unemancipated minor Answer = A contract made by a person who has been adjudicated insane and institutionalized A contract made by a person under the influence of mind-altering drugs A contract made by a minor who receives no support from a parent or guardian A contract made under duress

Which of the following is true of a corporation?

A corporation is not a tax-paying entity for federal income tax purposes. A corporation does not have a life separate from its owners and its managers. A corporation is managed by a board of directors and officers.= ANSWER A corporation is created by default. A corporation is owned by partners who have founded the business and have the right to manage it.

Congress passes law prohibiting companies from advertising the price of liquor. Companies sue___

A court will employ intermediate scrutiny in this case

Larry works for Shannon as a salesperson. Shannon gave Larry a credit card with Larry's name on it so that Larry could charge necessary business expenses to Shannon's business account. Larry charged $1,000 in personal expenses, wholly unrelated to Larry's employment. Does apparent authority exist?

A. No. Larry's name is on the credit card so Larry is the only one liable. No. Larry used the work credit card for personal expenses without permission. Yes, but only up to $500. Yes. It is likely that apparent authority existed. Shannon gave Larry a work credit card connected to her business account thus enabling Larry to cause third persons to reasonably believe Larry is authorized to use the card.= ANSWER

Which of the following ends the right to rescind a voidable contract?

Acquiescence Rescission Concealment Assertion Answer = Ratification

Which of the following is most likely to be classed as a nuisance (rather than as a trespass to land)?

Allowing thick smoke from your manufacturing operations to continually drift over an adjoining landowner's land.

Which of the following is NOT true about an LP (limited partnership)?

An LP is controlled by the general partner(s). Answer = In an LP, the limited and general partners' liability is limited to their capital contributions except for their individual torts. An LP is typically taxed like a partnership. If a corporation is the only general partner, an LP can insulate itself from unlimited liability

Which is most likely to receive protection against discrimination under Title VII:

An employee who claims s/he was not promoted because s/he is blind A job applicant who claims he was not hired because of his sexual orientation A 65-year old man who claims he was denied overtime benefits because of his age A job applicant who claims s/he was not hired because s/he speaks with a Russian accent =ANSWER An employee who claims he was fired because he missed work to care for his sick child

In general, which of the following statements is correct with respect to unemployment compensation?

An individual who has been discharged from employment because of work-connected misconduct is ineligible for unemployment compensation.= Answer An employee who voluntarily quits work without a reasonable cause is entitled to unemployment compensation. The maximum amount of unemployment compensation paid by a state is determined by federal law. The maximum period during which unemployment compensation may be collected is uniform throughout the United States.

Mr. White contracts with his wife Ms. White to watch their kids, Joe and Jimmy, for $50 for night. What is the status of the contract between Mr. Smith and Ms. White?

Answer = There is no contract because Ms. White gave inadequate consideration There is a contract as long as Mr. White registers the contract with the Secretary of State There is a contract as long as $50 is a reasonable profit for watching the kids There is a contract as long as a court reviews the terms within 30 days It depends on how well-behaved the kids are

Tracy, aged 12, is named the sole inheritor of her family mansion, which is valued to be worth millions. She has disaffirmed the agreement on the advice of her uncle and guardian Pete. This automatically transfers the title to the latter. Which of the following statements is true of the case?

Answer = Tracy cannot disaffirm until she has reached majority Tracy's decision will be allowed by the family courts Pete has every right to Tracy's property and can take legal possession of it Tracy's decision is valid as long as it is in writing It depends on the value of the real estate

An employer may bar an employee's religious dress or grooming practice based on workplace safety, security or health concerns, but only if the practice or a modification actually poses an undue hardship on the operation of the business or the safety of the employee or others (e.g., a ban on loose clothing near moving machinery).

Answer = True False

Henry is an employee of Pizza Express, a pizza shop, for which he delivers pizzas. While delivering pizzas on his delivery route, he struck a cyclist with his car. Pizza Express is likely to be liable to the pedestrian for Henry's actions.

Answer = True False

Referring to the facts in question in Question 2, when a customer sues Garrett over a faulty roofing job, Garrett may have to pay damages from his personal assets to cover the damages.

Answer = True False

A contract in which one or more of the parties have the legal right to cancel their obligations under the contract is called a(n):

Answer = Voidable contract Void contract Valid contract Unenforceable contract Quasi-contract

Was the "swing" vote on the U.S. Supreme court before he retired

Anthony Kennedy

Which of the following statements characterizes an implied warranty of fitness?

Any seller, merchant or non merchant may make this implied warranty.

The FMLA (Family and Medical Leave Act):

Applies to employers with 50 or more employees = Answer Provides for paid maternity leave Provides for 6 weeks of leave each year Provides for paid leave to care for a sick parent Only applies to women

Kroger is a ________mark

Arbitrary/fanciful

Pepsi is a ______mark

Arbitrary/fanciful

The type of mark most likely to be registered for trademark protection

Arbitrary/fanciful

Austen Construction, a general contractor, advertised for bids from subcontractors on the electrical work for the renovation of one of State University's parking structures. The advertisement announced that the contract will be awarded to the lowest responsible bidder. Bronte, a responsible electrical subcontractor, submitted the lowest bid to Austen for the electrical portion of the work. Austen informed Bronte that she should begin work immediately. Bronte then stated that she is "withdrawing" her bid from Austen. Which of the following statements is most accurate?

Austen should not rely on Bronte's offer to do the electrical work Austen has accepted Bronte's offer, thereby forming a contract Austen is not bound by Bronte's bid until he informs her of his intent to accept Answer = Bronte has accepted Austen's offer by submitting the lowest bid Bronte may withdraw her bid at any time prior to beginning work

Xena and Yoni have a contract, which obligated Xena to sell Yoni 100 boxes of screws for $100. Xena seeks to cancel the contract but instead the parties agree to orally modify the contract so that Xena will sell Yoni the same 100 boxes of screws for $75. The second agreement is:

Binding because it is due to unforeseeable situation Not binding because it isn't in writing Answer = Binding by virtue of being mutually agreed upon Not binding due to the promise of performing a preexisting legal obligation Not binding because it is an output contract

Which of the following is a similarity between Title VII and the employment discrimination provision known as "Section 1981"?

Both Title VII and Section 1981 apply to racial discrimination. Both Title VII and Section 1981 impose limits on covered employees. Both Title VII and Section 1981 impose limits on compensatory damages. Both Title VII and Section 1981 apply to sex discrimination.= Answer

Newest justice on the Supreme Court

Brett Kavanaugh

Mark the answer choice that is the LEAST correct. In a limited partnership, the general partner:

Can be a corporation Is an investor but does not play an active role in the management of the firm= ANSWER Can be more than one person Pays federal income tax on his share of the profits Has unlimited liability for the firm's debts

A statute in Rhode Island makes it a crime to give, barter, sell, or supply alcoholic beverages to a person under the age of 21. The Ticktock Tavern, located in Providence, Rhode Island, served alcohol to Dale, age 20. Dale became intoxicated, drove away from the Ticktock at a high speed, and ran over Sylvia, who was jogging by the side of the road. Sylvia suffered very serious personal injuries. Under these facts, the Ticktock Tavern:

Can probably be held liable to Sylvia under the doctrine of negligence per se.

Catherine decided to have lunch at Tom's, one of the most popular restaurants in town. She ordered soup before her main course as usual. The soup served to Catherine contained a maggot floating about in it. Fortunately, she noticed this before she had it. She sued Tom's for negligence. The MOST LIKELY result will be:

Catherine will not win since she did not sustain any damages.

Clorox Company maintains an electronic mail communication system. The company has assured its employees that all email communications on the system will remain confidential. Clorox further assured its employees that it would not intercept email communications and use them as grounds for terminating or reprimanding employees. Jenny, a Clorox employee, received and opened work account emails from her supervisor on her home computer. Relying on Clorox's assurances, Jenny exchanged some emails with her supervisor that included threats to kill the *&%*&^* and another filled with lewd jokes and images. Later, Clorox retrieved or intercepted these emails and fired Jenny for what it deemed inappropriate and unprofessional comments over the company email system. Jenny sued Clorox for wrongful discharge under the public policy theory alleging that public policy precludes an employer from firing an employer in violation of her privacy. Who will likely win?

Clorox, because an employee does not have a reasonable expectation of privacy in a communication made to her supervisor over a company's email system.

Which of the following draws on the personal property right connected with a person's identity and her exclusive right to control it?

Commercially using someone's name.

Amtul and Hassan were involved in an automobile accident. Amtul's car, worth $10,000 was destroyed. Hassan suffered no personal injuries or property damage. The case went to the court and a jury determined that Amtul was 30% at fault and Hassan was 70% at fault. Under what legal theory would Amtul be able to recover $7,000 from Hassan?

Comparative negligence what does it mean for Contributory negligence?

Damages that are agreed upon at the time the contract is entered into are called _____.

Compensatory damages Consequential damages Answer = Liquidated damages Mitigation of damages Bargain damages

Price signed a contract to sell Wyatt a parcel of land for $90,000. The entire sales price was payable at the closing. Price has decided to keep the land. If Wyatt commences an action against Price, what relief is Wyatt most likely to receive?

Compensatory damages Punitive damages Answer = Specific performance Rescission Compensatory damages and punitive damages

April and Brian entered into a partially integrated written contract. Before the written contract was completed, April made an oral statement to Brian regarding the terms of the contract. This statement was not contained in the written contract. Under the parol evidence rule, evidence of April's oral statement would be admissible if it were used to:

Create a completely new agreement Introduce an ambiguous term in the written contract Answer = Prove an additional term consistent with the written agreement Change the terms of the written contract None of the above

Claim by one defendant against another named defendant

Crossclaim

Which of the following is not an equitable remedy

Damages

Davis throws a dagger at Smith, intending to kill Smith. However, the dagger misses Smith and strikes the hat on Potter's head. The dagger does not make contact with Potter's body. Unharmed but finding the whole thing offensive, Potter sues Davis for battery. Which of the following is most true?

Davis is liable to Potter for battery.

An oral examination of another party or witness, under oath

Deposition

Fresh Market is a ________mark

Descriptive

Walnut Street Antiques is a ____mark

Descriptive

Zed is an employee of VeggieLand, a produce delivery service. Zed drives a VeggieLand truck when he drives his route and makes his deliveries. VeggieLand has a very strict policy that its drivers are to observe every safety regulation and are never to speed. Zed has no prior traffic citations and VeggieLand checked Zed's references before hiring Zed (Zed had good references). VeggieLand has a strong management system in place and regularly trains and supervises its employees, including Zed. On the day in question, Zed is trying to get his deliveries done quickly so that he doesn't miss his date with Marisa. Zed is going 10 miles over the speed limit when he strikes Tim who is legally crossing the street in the crosswalk. If Tim sues VeggieLand, under which theory is VeggieLand most likely to be liable?

Direct liability No liability, VeggieLand could not reasonably expect the criminal behavior Vicarious liability =ANSWER Direct and vicarious liability No liability, outside of scope of employment

Benji enlists Sal as his agent for the sole purpose of selling his house. Benji directs Sal to tell potential buyers that the house has never had any flood damage even though the house has flooded three times. Mara is a potential buyer. Benji never speaks to Mara. Sal tells Mara that the house has never had any flood damage and that it is in perfect condition. Mara purchases Benji's house. Mara discovers the flood damage. Mara may sue Benji pursuant to:

Direct liability =ANSWER Vicarious liability Direct liability and vicarious liability Breach of fiduciary duty None of the above

Takes case away from jury and decided as matter of law after non moving party presents evidence

Directed verdict

Which of the following is used by sellers to eliminate any kind of liability that may be claimed by an injured buyer?

Disclaimer.

Which type of warranty disclaimers must be written in order to be effective?

Disclaimers of the warranty of fitness for a particular purpose.

The key requirement for registration of a mark on the principal registry

Distinctiveness

Which of the following statements about the Employee Retirement Income Security Act (ERISA) is accurate?

ERISA does not guarantee employee participation in pension funds. ERISA does not impose fiduciary duties on pension fund managers. ERISA does not allow pension plan participants to sue employers. ERISA does not require employers to establish or fund pension plans.= Answer

The doctrine of employment at will states that:

Either party in an employment relationship can terminate an employment contract of indefinite duration at any time, without notice, and for any reason, without incurring legal liability to the other party.

US Constitution restricts federal legislative authority by listing______Congress can exercise

Enumerated Powers

Which of the following is least likely to create liability for the first form of invasion of privacy (intrusion on personal solitude or seclusion)?

Examining public records concerning a person.

A written agreement was signed by two parties and it was intended to be their entire agreement. The parol evidence rule will prevent the admission of evidence that is offered to:

Explain the meaning of an ambiguity in the written contract Prove the existence of a subsequent oral agreement that modifies the contract Answer = Prove the existence of a contemporaneous oral agreement that modifies the contract Establish that there was a mistake of fact in the formation of the contract Establish that fraud had been committed in the formation of the contract

Celia is the owner of a hardware store, Celia's Hardware. She hires Nina to be the manager of her store. They do not discuss in detail what Nina will do to operate the store. Nina interviews and hires workers and buys supplies for the store. Nina's authority to hire workers is called _____ authority; Celia's obligation to cover the costs of the supplies is called _____.

Express; duty of loyalty Implied; duty to reimburse =ANSWER Apparent; duty to indemnify Implied; fiduciary duty Express; duty of care

Hillary tells Iris that she wants to buy Iris's house "on behalf of a party who wishes her identity not to be known." The party is Baker Associates. With Baker's consent, Hillary contracts with Iris on Baker's behalf to buy the house. What is Hillary's liability on this contract?

Hillary can be liable only if she expressly agreed to be liable Hillary is liable because Baker is an unidentified principal = Answer Hillary is liable because Baker is a legally non-existent principal Hillary is liable because Baker is an undisclosed principal

While in the course of employment with Marco, Inc., Payne was injured. Marco has complied with the state's mandatory workers' compensation statute. Marco's workers' compensation carrier has asserted the following defenses to Payne's claim for workers' compensation benefits: I. Marco was free from any wrongdoing. II. Payne assumed the risk by disregarding Marco's safety procedures. III. Payne's injury was intentionally self-inflicted. Which defense(s) asserted by the workers' compensation carrier, if proven, will prevent Payne from recovering?

II only I and II I and III II and III None of the above I only I, II, and III III only = Answer

Which is the LEAST true about the ADA (Americans with Disabilities Act):

If a disability substantially limits one life activity, it does not need to limit another Employers have to make reasonable accommodations even if it is a substantial hardship = Answer A disability that is episodic or in remission can still qualify as a disability if it would substantially limit a major life activity when active The ADA is broadly construed The ADA applies to employers with 15 or more employees

Even if reg within Congress' enumerated powers or state's police power, still unconstitutional:

If collides with one of the US Constitution independent checks

A principal will not be liable to a third party for a tort committed by an agent:

If the agency agreement limits the principal's liability for the agent's tort. Unless the tort was committed within the scope of the agency relationship.= Answer Unless the principal was legally nonexistent. If the tort is also regarded as a criminal act.

The doctrine that prevents many normal social contacts, even offensive contacts, from giving rise to battery liability - where the law infers consent for customary or reasonably necessary touching - is called:

Implied consent

Lynn, an at-will employee for Barb's Barber Shoppe in Kentucky for the past 30 years, received an annual $10,000 bonus every year on December 1st. Lynn was terminated this year, without cause, on the day before her expected $10,000 annual bonus. If Lynn wanted to assert a wrongful discharge claim against her employer, what would her best theory be?

Implied covenant of good faith and fair dealing

Jurisdiction that depends on the presence of property within the state

In Rem Jurisdiction

Selected provisions of Bill of Rights made applicable to statues thru Due Process Clause -14th A

Incorporation

Substantially related to an important government interest

Intermediate Scrutiny

Test applied in Matal V. Tam case

Intermediate protection Central Hudson four-part test

Case that taught us about minimum contacts and the notion of fair play and substantial justice

International Shoe

Written questions from one party to another and written answers under oath

Interrogatories

When the consideration given in exchange for the collateral promise is something the guarantor seeks primarily for his own benefit rather than for the benefit of the primary debtor, the contract:

Is the opposite of an original contract Is considered void Answer = Is outside the statute of frauds Needs to be in writing Must be proven by parol evidence

When a seller may apply to register mark with U.S. Patent and Trademark Office (PTO)

Seller uses mark in commerce or forms bona fide intention to....

Morton Reeves, a building subcontractor, submitted a bid for construction of a portion of a high-rise office building. The bid contained material errors in computation. Lago Corp., the general contractor, accepted the bid with the knowledge of Reeves' errors. Reeves:

Must perform the contract unless he can show that Lago acted fraudulently Must perform the contract according to the stated terms since his errors were unilateral Can avoid liability on the contract only if his errors were not due to his negligence Caused the contract to be void Answer = Can avoid liability on the contract since Lago knew of his errors

A group of employees argues that they are entitled to be paid for the time they spend putting on protective clothing for work each day. Which law will they cite in support?

NLRA (National Labor Relations Act) FLSA (Fair Labor Standards Act) = Answer OSHA (Occupational Safety and Heath Act) FMLA (Family and Medical Leave Act) Worker's Compensation

Weather subject matter jurisdiction can be waived or consented to

NO

The Equal Pay Act prohibits discrimination in pay based on:

National Origin Disability Answer = Gender Race Age

The rest set fourth in Hertz on how to determine a corporation's principal place of business

Nerve center test

40% of corporations listed on the New York Stock Exchange are incorporated in ___________________, because of its liberal corporation statute, low incorporation fees, and highly experienced and competent judiciary for dealing with intra-corporate disputes.

New York Nevada Delaware = Answer California Florida

King sent Foster, a real estate developer, a signed offer to sell a specified parcel of land to Foster for $200,000. King, an engineer, had inherited the land. Foster telephoned King the same day that he received his letter and accepted the offer. Which of the following statements concerning the contract is correct under the statute of frauds?

No contract was formed because Foster did not sign the offer No contract was formed because King is not a merchant Answer = A contract was formed, although it would be enforceable only against King A contract was formed but it is unenforceable A contract was formed and it is enforceable against both parties

Anna hired Juan to act as her sales agent in her auto dealership. However, Anna has instructed Juan not to enter into any sales contracts before she has had a chance to review the transaction. However, one day Juan entered into a sales contract with William, without informing Anna first. Has Juan created a contract with William that is binding on Anna in this situation?

No, Juan did not have authority to act Yes, Juan did have apparent authority to act = Answer Yes, Juan did have implied authority to act Yes, Juan did have actual authority to act

Sally Sea Shell was selling seashells by the sea shore. She was overloaded with seashells and was not paying attention to where she was going. Because she wasn't paying attention, she tripped and fell over Jack's magic beanstalk that he had negligently allowed to grow at the beach. Sally suffered a severe shark bite and spent several months in the hospital. Sally sued Jack for negligence. The jury found that Sally's damages totaled $10 million. The jury found that Sally and Jack were both substantial factors in Sally's injuries. It also found that Sally was 30% at fault and Jack was 70% at fault. How much would Sally recover in a state in which contributory negligence is still valid law?

Nothing

Where the parties to a contract wish to cancel their contract and be in the same position as they were prior to forming the contract, they should seek to obtain a(n) ___________.

Novation Accord and satisfaction Revocation Answer = Rescission Specific performance

Marty sued his lawyer, Max Bluster, for malpractice (professional negligence), claiming that Max had been negligent in drafting a contract for Marty's business. In this case, Max Bluster's conduct will be judged by the standard of care:

Of the reasonable member of his profession (the legal profession).

Whose signatures are needed in order to satisfy the statute of frauds?

Only the signatures of witnesses to the agreement are required Only the signature of the party, attempting to enforce the contract, is required Answer = Only the signature of the party against whom enforcement is being sought Only the signature of the third party to the contract, the beneficiary, is required All parties to the contract

False representations likely to induce 3rd parties to believe defendant's goods are plaintiff's

Palming off or passing off (tort)

Chewy Vuitton and Sniffanys are examples of

Parody

Intentionally creates an association with a famous mark but communicates that it is a satire

Parody

A bilateral contract is accepted by when the offeree:

Performs the requested act Answer = Makes the promise requested by the offer Accepts the offer in silence without prior indication Makes additional inquiries regarding the terms Makes a counteroffer

The courts power over a defendant

Personal Jurisdiction

Dave tells Dora that Phil, a financial advisor, has been stealing money from his clients. Dora then repeats Dave's statement to Tom, telling Tom that the information comes from Dave. All these statements are oral, defamatory, and false. Phil sues Dave and Dora for defamation. Which of the following is true?

Phil can win the case against Dave and Dora without proving special damages.

Phil decided to rescue Bobo the Dancing Bear from a traveling circus that was closing its business. Although Bobo was usually a well-behaved grizzly bear, Phil took great caution to make sure that Bobo - a naturally dangerous wild animal - would not escape from his yard by reinforcing the yard's fence with steel and padlocking the gate. One day, without notice, Bobo rushed the fence, knocked the padlock off the gate, and escaped from Phil's yard. Bobo lunged at a young child in the neighborhood, injuring him. Based on these facts:

Phil will be liable, regardless of the steps that he took to secure the yard, because keeping a naturally dangerous wild animal triggers strict liability.

Test used to determine the merits of a trademark infringement claim!!!!!!

Polaroid 8 Factor balancing test

Appoints federal district court judges

President

The constitution allocates distinct powers between Congress, the President, and federal courts

Separation of Powers

The Age Discrimination in Employment Act prohibits discrimination against employees who are at least 40 years of age.

True = Answer False

On May 1, Dix and Wilk entered into an oral agreement by which Dix agreed to purchase a small parcel of land from Wilk for $450. Dix paid Wilk $100 as a deposit. The following day, Wilk received another offer to purchase the land for $650, the fair market value. Wilk immediately notified Dix that Wilk would not sell the land for $450. If Dix sues Wilk for specific performance, Dix will:

Prevail, because there was part performance. Lose, because the fair market value of the land is over $500 Prevail, because of promissory estoppel Answer = Lose, because the agreement was not in writing and signed by Wilk Prevail, because the amount of the contract was less than $500

Diablo sets Pablo on fire, and in Pablo's subsequent frenzy to extinguish the flames burning his flesh, he jumps out of the only window in the room and onto a box full of kittens (six stories below), killing them all (Pablo, sadly, does not survive the fall either and dies immediately from the injury to his head - not the flames). Considering actual and proximate cause, if Pablo's family and the owner of the kittens sue Diablo, which death(s) can Diablo be held liable for?

Probably Pablo and the kittens, assuming the court takes a broad view of proximate cause and finds that injuries to the kittens below the apartment window were natural and probable or within the foreseeable scope of risk.

Jackie and her niece were shopping at a Sears' retail store. There were few shoppers in the store at the time. Jackie spent about 2 minutes in the store's women's department, where she observed no other shoppers. After Jackie's niece completed a purchase in another part of the store, the two women began to walk through the women's department. Jackie, who was pushing a shopping cart, suddenly lost her balance and struggled to avoid a fall. As she did so, her right leg struck the shopping cart and began to swell. Jackie observed a "gob" on the floor where she had slipped. Later, a Sears' employee said that "it looked like someone spat on the floor, like it was phlegm." Assuming that Jackie can only prove that the gob was on the floor for the 2 minutes she spent in the women's department, under the reasonable person standard, did Sears breach a duty to Jackie by not cleaning up the gob?

Probably not, because Sears' obligation to invitees like Jackie is only to protect such persons against dangerous conditions of which it is actually aware and if it can be proved that the "gob" was only on the floor for 2 minutes, it would be unreasonable to require Sears to run "phlegm patrols" down the store's aisles every ten minutes.

Scully operated a travel agency from a store front that he leased in a one-story commercial building owned by Fitzgerald. Attached to the back portion of the structure was a two-story building which Fitzgerald also owned. The two-story building contained two apartments, one on each floor. The rear portion of the first-floor apartment was a storage area, over which a deck extended from the second-floor apartment. During a summer heat wave, a fire that started in the storage area spread and destroyed most of the apartment building. The attached commercial building was significantly damaged by smoke and water that firefighters used to extinguish the blaze. Scully suffered a total loss of his office property and had to relocate his business. In the area where the fire started, Fitzgerald had stored mulch, construction debris, gasoline, a gas engine lawn mower, a gas engine snow blower, old papers and other refuse that had accumulated over time, and garbage that was both in and out of trash cans. Because the storage area was unenclosed, it was freely accessible. The tenants who lived in the second-floor apartment regularly smoked cigarettes on the deck and above the storage areas and dropped cigarette butts in and near the storage area. Fire officials who investigated the blaze found cigarette butts in that general area. Scully sued Fitzgerald for negligence, alleging that Fitzgerald had failed to use reasonable care to maintain the storage area and that this failure caused the fire. The local fire chief, who determined that the fire originated in the storage area, testified in his deposition that he could not pinpoint the fire's exact cause but that he was able to eliminate potential causes such as the building's air conditioning units, the lawn mower and snow blower, the electrical outlets and lights, and the mulch. The fire chief offered his "best guess" that the fire started accidentally when a lit cigarette or match ignited loose debris. An expert witness for the plaintiff provided a report concluding that the storage of construction materials, equipment containing gasoline, and various other combustibles in the open storage area created an "unreasonable risk of fire" that "could have been avoided or greatly reduced by properly securing the area and/or prohibiting smoking in the area." In the expert's opinion, the failure to take those remedial steps led to the fire. Fitzgerald moved for summary judgment. The trial court granted his motion after ruling that Scully had failed to produce evidence of a breach of duty on Fitzgerald's part. The trial court rejected the testimony of Scully's expert because he did not identify a standard of care by reference to a building or fire code. Did the trial court rule correctly in granting Fitzgerald's motion for summary judgment?

Probably not, because landlords have a general duty to protect their tenants against foreseeable dangers arising from the property, and Scully's expert report established enough of a causal connection to survive Fitzgerald's motion for summary judgment. Probably not, because no building or fire code provision is necessary to establish that landlords may not keep their properties in the condition of a combustible "tinderbox."

While Sandy and Mike were shopping at a Marsh grocery store, Mike was pushing a shopping cart and Sandy was walking alongside him. They were proceeding through the frozen foods section when, after rounding a corner, Sandy slipped on a wet substance. Sandy then fell, hitting a small portable freezer known as a "spot box" and landing on her lower back and buttocks. She attempted to pull herself up using the cart that Mike was holding, but slipped halfway up and fell a second time. Once Sandy was finally standing up, she noticed that her clothes and shoes were soaked. She thought that the substance on which she slipped was water from the spot box freezer. The store manager arrived on the scene and ordered an employee to clean up the pool of liquid. The employee who did so noted that the pool was approximately ten inches in diameter and was located "right there under the drain of the freezer." According to Sandy and Mike, the store manager told them he thought the liquid was water that had leaked from the spot box freezer. They also contended that the manager pointed out to them that the plug on the bottom of the spot box freezer was out. Sandy, who was treated at a hospital emergency room, experienced severe bruises and considerable pain, for which she was prescribed medication. In accordance with her physician's advice, she remained off her feet for a week. Sandy filed a negligence lawsuit against Marsh grocery store. In particular, she attempted to rely on the res ipsa loquitur theory. The court ruled in favor of Marsh because it did not think that Sandy had proven what was necessary to enable her to rely on res ipsa loquitur. Was the court correct?

Probably not, especially if Sandy had produced sufficient evidence indicating that the spot freezer had been in the exclusive control of Marsh, that the harm experienced by Sandy would not ordinarily occur in the absence of negligence, and that Sandy was not responsible for her injury.

Anne is using the elevator in Hodge Hall when the elevator suddenly shuts down. Trying to call for help, Anne gets electrocuted. IU administration has been previously warned by inspectors that the elevators need to be fixed and were not working correctly. IU did not make any attempt to notify students that the elevators were not working correctly. Anne sues Indiana University for negligence involving the elevators. Will Anne's case succeed?

Probably yes because Anne was an invitee who is owed a duty of reasonable care for the safety of all students by IU that IU has negligently breached.

Ann is troubled with the noise of the old generator set up by her neighbor Joe at his residence. The noise the generator makes is ridiculously unbearable. Will Ann succeed if she sues Joe for nuisance?

Probably yes, if Ann can demonstrate that the noise is substantial and unreasonable and Joe intends to interfere with Ann's use and enjoyment of her land.

Which damages are especially awarded by the court to punish the defendant?

Punitive

A memorandum on the sale of goods that does not indicate the _________ of goods to be sold will not satisfy the UCC's writing requirement.

Quality Answer = Quantity Delivery Cost None of the above

Jurisdiction based on location of property within state, but judgement unrelated to property

Quasi-In Rem

Ralph, the owner of a medium-sized business, which is operated as a sole proprietorship, gives his vice-president, Wanda, the authority to hire a new manager for the firm. Ralph gives Wanda detailed instructions about the salary she can contract to pay but tells her that under no circumstances can she make commitments regarding the new manager's pension. Wanda contracts to hire Nick for the new managerial position. But to get Nick to sign up, she has to make certain specific pension commitments to him. Some years later, Nick sues Ralph for copping out on those pension commitments. Which of the following is true in this case?

Ralph is bound on the basis of Wanda's actual authority Ralph has no liability because he expressly told Wanda that she didn't have authority to bind him on pension matters Ralph is bound on the basis of Wanda's apparent authority = Answer Ralph is bound on the basis of Wanda's implied authority

Today, trespassers who are injured while on someone else's land:

Recover in negligence against the landowner in certain limited situations, such as when the plaintiff is a constant trespasser or a child who the owner knows is likely to trespass.

Where may Congress use it's Commerce Power

Regulate the channels of interstate commerce Regulate/protect instrumentality of interstate commerce Reg activities that substantially affect interstate commerce ****ALL OF THE ABOVE******

A(n) _____ is a clause attempting to block recovery of certain damages.

Remedy limitation.

Written demand that other party admit/deny, in writing statements of fact /application of law

Requests for admission

Contracts in which one party to the agreement agrees to buy all of the other party's production of a particular commodity is called a(n):

Requirements contract Composition agreement Answer = Output contract Nominal consideration Exclusive dealing contract

The "confirmatory memorandum" exception to the UCC's statute of frauds provision:

Requires that the memorandum be signed by the party to be bound Requires that the memorandum be sent within ten days after the contract is made Applies even though the memorandum does not satisfy the UCC's writing requirement Answer = Requires that both parties to the contract be merchants None of the above

Store owners' "conditional privilege" defense against intentional tort claims brought by detained shoplifting suspects, which is recognized by most states, usually:

Requires that the storeowner act with reasonable cause, in a reasonable manner, and detain the suspect for only a reasonable length of time.

Collections of common law- not law, and not binding, unless court adopts as a rule of decision

Restatements

Cyrano hired Roxanne to purchase a yacht. Cyrano did not want sellers to know that he was the buyer because he was very rich and he thought that sellers would demand a higher price if they were aware of this. So he instructed Roxanne to inform the sellers that she was acting for an anonymous buyer. Roxanne followed these instructions and entered into a contract to purchase a yacht from Richard. However, Cyrano did not like the yacht that Roxanne selected and refused to pay the purchase price. Richard insisted that Roxanne herself pay the purchase price. If Richard sues Roxanne to enforce the contract against her, what will be the outcome?

Richard will win because Roxanne did disclose that she was acting as an agent, and not for herself. Richard will win because Roxanne did not disclose her principal's identity.= Answer Richard will lose because Roxanne was acting as an agent with actual express authority. Richard will lose because Roxanne did disclose that she was acting as an agent, and not for herself.

Consumers have come to associate descriptive TM with certain product over period of time, has

Secondary meaning

Holiday Inn has acquired____over time allowing it to become a registered trademark

Secondary meaning

Abel was employed as a security guard for Seep Corporation. Abel's job was to guard a fenced-in area and to use force to keep intruders from climbing the fence to enter the plant. His working hours were from 8:00 A.M. to 5:00 P.M. At about 11:00 P.M. one evening, Abel drove past his place of employment. He saw a teenager named Johnny climbing the outside of the fence that he guarded during the day. Angered by this violation of Seep's property rights and by the fact that Johnny had called him a "potbellied moron" only three days earlier, Abel stopped his car, ran up to the fence, pulled Johnny off of it, and beat him up. Johnny sues Seep Corporation for Abel's assault and battery (both intentional torts). Which of the following is most likely to be the court's verdict?

Seep's is not liable because Abel didn't act within the scope of his employment = Answer Seep's is not liable for the intentional torts committed by its employees Seep's is liable under the doctrine of respondeat superior, since Abel was an employee Seep's is directly liable because Abel was an employee of the corporation at the time of the incident

Stan adopted a baby tiger as an infant. He raised the tiger from a few weeks old, to be docile, like a house cat. As Daisy the Tiger grew bigger, Stan built her a secure pen in his yard. Stan took great care to make sure that Daisy would not escape from her pen reinforcing the pen with steel and a steel padlock. One day, without notice, Daisy rushed the fence, broke out of her pen, and escaped from Stan's yard. These actions were completely out of character for Daisy. Daisy lunged at a young child in the neighborhood, injuring her. Based on these facts:

Stan will be liable, regardless of the steps that he took to secure the pen.

Like cases should be decided alike (same facts and legal issues)

Stare Decisis

Courts of general subject matter jurisdiction

State Courts

Law federal courts will generally apply in case where jurisdiction is based solely on diversity

State substantive law

Worker's compensation is an example of which type of wrongfulness?

Strict Liability

Necessary to achieve a compelling government interest

Strict Scrutiny

You are standing on a street corner. A truck belonging to the Safety First Trucking Co. (SFTC) carrying radioactive nuclear waste has a brand new tire unexpectedly blow out - not due to any reckless or negligent action on the part of SFTC - which causes the truck to overturn near you. Radioactive waste escapes from the truck and covers half your body. As a result, you suffer extremely serious medical harm. What legal theory of recovery is available to you and will not require you to prove that SFTC was at fault?

Strict liability.

The court's power over a claim

Subject matter jurisdiction

The Elle Corporation manufactures fingernail polish. Suzy buys a container of Elle's fingernail polish, applies it to her nails, and suffers a severe allergic reaction. She sues Elle under the implied warranty of merchantability. The test for determining whether Suzy will recover is whether:

Such a reaction in an appreciable number of consumers was reasonably foreseeable.

Georgia state law has provisions for the protection of highway construction workers at construction zones. Any persons caught speeding in designated construction areas may be jailed for up to 2 years as a minimum sentence. On a late night in December, a highway was being repaired in Georgia. The construction zone was not clearly designated, but it had a few signs indicating that workers were present. On this late night, Bob, speeding in his SUV, hits Jeff in his sports car in one of these construction zones. Both were on their way home from a football game. What options does Jeff have?

Sue Bob for negligence, because he did not drive like a reasonable person.

Habitat (for home furnishings) is a _____mark

Suggestive

Show there is no genuine issue of material fact & entitled to judgement as a matter of law

Summary Judgment

Power Supreme Ct help Congress could rely on in enacting Affordable Care Act (NFIB v. Sebelius)

Taxing Power

Powers we are talking about when we say using a federal club v federal carrot

Taxing power and Spending Power

Powers that Constitution not give to fed gov or deny to states are reserved to states or people

Tenth Amendment

Joe buys some watermelon seeds from a seed manufacturer's catalog. The catalog describes the seed Joe buys as "top quality." Joe strongly relies upon this statement in making the purchase. The seed turns out to be worthless, and Joe sues the manufacturer for breach of express warranty. You are the attorney representing the manufacturer. Which of the following is your best argument for escaping liability?

That the alleged warranty was merely sales talk.

Todd is a licensed real estate broker in Ohio. One of Todd's largest clients, Sun Corp., contracted in writing with Todd to find a purchaser for its plant in New York and agreed to pay him a 6% commission if he was successful. Todd located a buyer who purchased the plant. Unknown to Todd, New York has a real estate broker's licensing statute, which is regulatory in nature, intended to protect the public against unqualified persons. Todd violated the licensing statute by failing to obtain a New York license. If Sun refuses to pay Todd any commission and Todd brings an action against Sun, he will be entitled to recover:

The commission agreed upon Answer = Nothing Out of pocket expenses only A reasonable fee A fee based on the actual hours spent

In deciding whether consideration necessary to form a contract exists, a court must determine whether:

The consideration given by each party is of roughly equal value The consideration conforms to the subjective intent of the parties The consideration has sufficient monetary value Answer = There is mutuality of consideration

In order for the consideration requirement in contracts to be met:

The consideration given by each party must be of roughly equal value Answer = Each party must give consideration The consideration must have monetary value The consideration must consist of some form of property The consideration must be illusory

Mr. White enters into a contract to sell a car to Joe Jr. who is 15 years old and is considered a minor in the state where he lives. What is the status of the contract that Mr. White and Joe Jr. entered into?

The contract is void and unenforceable If the contract is registered with the Secretary of State's office it will become enforceable The contract is enforceable and valid Answer = The contract is voidable and is enforceable unless and until Joe Jr. cancels it The contract is only valid if its in writing

James goes to a dentist to have a tooth extracted. James never signs a written contract for this service, and he and the dentist never made an oral agreement either. Later, the dentist bills James who refuses to pay. The dentist sues James. Which of the following is true?

The dentist cannot recover because there was no express contract here It depends on the application of Article of the UCC The dentist can recover under the doctrine of promissory estoppel Answer = The dentist can recover under quasi-contract The dentist can recover under the preexisting duty theory

Pam and Deb were in a car accident. Deb went through a red light, hitting Pam from the side. However, Pam was driving 45 miles per hour in a 25 mile per hour zone. Pam sues Deb based on negligence for damages. If Pam loses the suit, which of the following is the most likely reason why?

The lawsuit was filed in a "contributory negligence" state.

Which of the following is true of necessaries?

The liability for necessaries is based on promissory estoppel Answer = The liability for necessaries is quasi-contractual A minor is liable for the necessaries that he/she did not receive In case of a disaffirmance, the minor need not pay for any necessary An item is considered a necessary even if the minor already possesses it

Under the strict liability theory of product liability, which parties can be held liable? (Answer using the majority rule used in most States.)

The manufacturer, wholesaler or retailer who are engaged in the business of selling that product.

Which of the following is true of a revocation?

The power of revocation of an offer lies with the offeree Death or insanity cannot be reasons for revocation Answer = Promissory estoppels are used to prevent revocations Offers that fail to state a specified time period are considered invalid Revocations are never valid

On May 1, 1985, Mint, a 16-year-old, purchased a sailboat from Sly Boats. Mint used the boat for six months, at which time he advertised it for sale. Which of the following statements is correct?

The sale of the boat to Mint was void, thereby requiring Mint to return the boat and Sly to return the money received Sly Boats has the power to recover the boat from Mint because he has advertised it for sale Mint's use of the boat for six months after the sale on May 1 constituted a ratification of that contract Answer = Mint may disaffirm the May 1 contract at any time prior to reaching majority The contract is illegal

Ordinarily, an agent is not liable for unauthorized acts made on behalf of a principal if:

The third party knows that the principal lacks legal capacity. The principal is undisclosed. The principal eventually ratifies the contract.= Answer The third-party has no knowledge about the principal's identity.

What Constitutional Amendment protects employees from drug and alcohol testing at a private employer?

There is no constitutional protection since it is a private employer.

Mr. Yellow delivers a stack of newspapers to Mr. Green's store to see if he wants them. A note attached indicates the stack of papers is $50. Mr. Green without communicating an acceptance sold the entire stack of papers to his customers. What is the status of the agreement between Mr. Yellow and Mr. Green?

There is no contract because Mr. Green did not expressly accept the offer Answer = There is a contract because Mr. Green accepted by implied action There is no contract because the goods are treated as gifts to Mr. Green There is no contract because the Secretary of State was not notified There is no contract because silence cannot constitute acceptance

For an employee to recover under a workers compensation system, what percentage of negligence must the employer be found guilty of?

There is no requirement for a finding of employer negligence =ANSWER Employer must be 51% negligent for the injury Employer must be more than 30% negligent for the injury Employer must be more than 75% negligent for the injury Employer must be 100% negligent for the injury

Abe and Carlos want to form a general partnership. What must they do in order to create this legal form of business? Group of answer choices

They must first orally agree to become partners and then formulate a contract. They must sign a written agreement and file it with the secretary of state. They can start a partnership without any formalities.= ANSWER They must get a partnership license from the secretary of state.

Schools can limit students' rights when a material & substantial disruption to educational envt

Tinker V Des Moines

Which of the following employment discrimination laws does not require the complainant to file a charge with the appropriate agency before pursuing his or her claim in court?

Title VII GINA (Genetic Information Nondiscrimination Act) ADEA (Age Discrimination in Employment Act) ADA (Americans with Disabilities Act) Answer = EPA (Equal Pay Act)

Original reason the Framers included the Commerce Clause

To nationalize economic matters & block state protectionism

Any secret method used in owner's business, if gives advantage over competitors who don't know

Trade Secret

Any word/name/symbol used by manufacturer/seller to i.d. products & distinguish from competitor

Trademark

2 topics that intersected to form the issue in the U.S. Supreme Court case involving The Slants

Trademarks and the First Amendment

Maine has a law requiring that all cars have a functioning muffler. The legislative intent motivating the law was protection of all state citizens against the hazards of noise pollution. Donna violates the law when her muffler falls off her car while she is driving on a busy freeway. Pete, a citizen of Maine, suffers damage to his car when he collides with the muffler. Pete sues Donna under a theory of negligence per se. True or False: Pete will not recover under negligence per se, because while Donna violated the statute and Pete was within the class of persons it was to protect, he did not suffer harm of a sort the statute was to protect against. Since the statute's aim was to stop noise pollution, and Pete suffered property damage to his car, negligence per se will not result in a winning lawsuit.

True

True or False: If you are negligent and injure somebody, you are responsible for any aggravation to underlying injuries. In other words, you take your victim as you find him.

True

True or False: In a negligence claim, without a duty, there can be no breach.

True

True or False: Inevitable disclosure law rests on a prediction about future harm.

True

True or False: Public employees generally enjoy greater protection than private employees with respect to privacy.

True

True or False: Searches of public employees' offices, desks, or files, are constitutional under the Fourth Amendment when they are reasonable under the circumstances.

True

True or False: Special duties that run from possessors of real estate to those who enter that property are called "premises liability" cases.

True

True or False: The intent required for trespass liability is simply the intent to be on the land or to cause it to be invaded.

True

Marsha is a partner at Michelin Services, a limited liability partnership. She committed fraud and embezzled $3 million from a client. The other partners would be personally liable for Marsha's malpractice.

True False = Answer

True or False: An employer may be liable for violating the Americans with Disabilities Act even if the employer was unaware of the employee's disability.

True False = Answer

Helen worked for ABC Motors for 25 years. The president of ABC said to her: "In consideration of your past service for 25 years, I promise to give you a new car next week." However, he did not give the car. Is this promise legally enforceable?

Yes, a contract was formed Yes, promissory estoppel requires enforcement of the promise Answer = No, legal consideration is absent No, legal capacity is absent Yes, quasi-contract requires enforcement of this promise

Can a local businessman pay a police officer $50 a week to watch the business more closely?

Yes, as long as the contract is registered with the Secretary of State Answer = No, Public Officials cannot give consideration on duties they are already supposed to perform Yes, as long as $50 is reasonable amount to watch the business Yes, as long as a court reviews the contract within 30 days No, unless a court approves the agreement

Jack had taken his girlfriend Jenny on a long drive. While driving on the highway, he suddenly had a severe headache and lost control of the car. A passing car hit them. The doctor had earlier warned Jack that he has a brain tumor, due to which he would experience occasional pains. Jenny sued Jack for negligence. Will she succeed?

Yes, because Jack could reasonably foresee severe pain, which might lead to accidents.

Sara tells Kate that she will give her $50 to clean her garage. When Kate is halfway done, Sara decides to revoke her offer. Is this a valid revocation?

Yes, because Sara is the master of the offer here Yes, because Sara can revoke the offer any time she feels like No, because this is a valid contract that cannot be revoked Yes, because you can't force someone to do something they don't want to do Answer = No, because this is now a bilateral contract

The owner of a football stadium negligently failed to install the appropriate number of emergency exits as required by law. During a Green Bay Packers versus Chicago Bears football game, one of the intoxicated fans began running up and down the aisles. The intoxicated man tripped over a bag of popcorn and fell into a lady who was absentmindedly flicking her cigarette lighter. The lighter sent a spark forward to the cheesehead on the boy in front of her and started the cheesehead on fire. The entire stadium was quickly ablaze. There was only one emergency exit. Thus, many fans were killed in the stampede. Is the stadium owner likely to be liable for negligence?

Yes, because the owner had a duty to have the appropriate number of emergency exits and a defendant can be liable when a foreseeable consequence comes about through an unforeseeable means if the harm risked is identical to the harm risked by a defendant's breach of duty

Sue offers to buy a house from John and they were negotiating the price of the house. In the meantime, Sue confides in John's girlfriend that she is willing to pay an amount of $50,000 for the house. Delighted to hear this, John's girlfriend tells him the good news. John immediately calls up Sue and accepts her offer. Is there a binding contract?

Yes, because there is valid consideration Yes, because a third party has communicated the terms of Sue's offer to John and that John had accepted the same Answer = No, because the offeror had not communicated the terms of the offer to the offeree No, because the contract is still not signed by both the parties Yes, because of the doctrine of implied contract Yes, because of the doctrine of implied contract

Milner Developers proposed an offer to Henry Wright, an independent contractor, offering to hire him for their next project. They offered him a certain rate and specified the contract details along with describing the stipulated mode of acceptance but received no response. Wright responded to the offer after a delay of two months with a quote for a higher amount than that mentioned by Milner Developers. Do the two parties have a binding contract?

Yes, because they agreed on the material terms Answer = No, because Wright's letter was a counteroffer to the original offer No, because the offer made by Milner Developers was ambiguous Yes, because Milner Developers did receive a response from Wright Yes, because Wright's silent signaled his acceptance of the offer

Betty, age 16, buys a car and wrecks it one week later. She takes it back to the seller and demands all her money back. According to the traditional rule, is she entitled to get all her money back?

Yes, regardless of the condition of the car, because this was a void contract Answer = Yes, regardless of the condition of the car, because this was a voidable contract No, she is entitled to no remedy in this situation No, she is entitled to get some money back but less the value of the damage to the car It depends if the car can be fixed

X (NM) sues Y (NM) in NM federal ct for damages under federal firearm statue - Jurisdiction

Yes, the case "arises under federal law"

The necessary intent for the tort of assault and for the tort of battery is to cause:

offensive contact.

Store owners' "conditional privilege" defense against intentional tort claims brought by detained shoplifting suspects, recognized by most states, usually:

requires that the store owner act with reasonable cause.

Lazur Corp. entered into a contract with Baker Suppliers, Inc. to purchase a used word processor from Baker. Lazur was engaged in the business of selling new and used word processors to the general public. The contract required Baker to ship the goods to Lazur by common carrier pursuant to the following provision in the contract: "FOB - Baker Suppliers, Inc. loading dock." Baker also represented in the contract that the word processor had been used for only 10 hours by its previous owner. The contract included the provision that the word processor was being sold "as is" and this provision was in larger and different type style than the remainder of the contract. With regard to the contract between Lazur and Baker:

the "as is" provision would not prevent Baker from being liable for a breach of any express warranties created by the contract.