MBE practice test2
Question 2100 - The question is: A man and a woman were competing in an illegal drag race. Both of them were driving over the speed limit but were otherwise driving very carefully. However, when a tire on the woman's car suddenly blew out, she lost control of her car and crashed, injuring a pedestrian. The pedestrian later sued the man, because the woman had no insurance or assets. Will the pedestrian be likely to prevail in that action? A: No, because the man did not cause the injury. B: No, because the man was driving very carefully. C: Yes, because the man and the woman were acting in concert in a dangerous activity. D: Yes, because the man was exceeding the speed limit.
C
Question 2103 - The question is: During a deer-hunting season open to rifle hunters, a hunter saw a deer in the forest. He shot his rifle at the deer, hoping to hit and kill it. Instead, he hit and injured a hiker. The hunter had not realized that the hiker was there. Does the injured hiker have an actionable battery claim against the hunter? A: No, because the hunter did not intend to shoot the hiker. B: No, because the hunter did not make direct physical contact with the hiker. C: Yes, because the bullet from the hunter's rifle made direct physical contact with the hiker. D: Yes, because the hunter intentionally shot the rifle.
A
Question 1945 The question is: A large privately owned and operated shopping mall is open to the public and includes small shops, major department stores, and restaurants that are located around a pedestrian area. It also has several movie theaters, an ice-skating rink, a small amusement park, and a branch of the local public library. The mall is advertised as "a small town with a big-town feel." During shopping hours, a group of 10 protesters gathered in the pedestrian area near the entrance to a department store to denounce the sale of animal fur products in that store. The protesters were peaceful and did not interfere with traffic into or out of the store, but they carried signs and vocally communicated their message to people walking in the area. Mall management quickly broke up the protest and required the protesters to leave the mall. The protesters have sued the mall, claiming that their right to freedom of speech guaranteed by the First and Fourteenth Amendments was violated. Should the protesters prevail? A: No, because the mall is private property, and there was no state action to which the freedom of speech guarantees of the First and Fourteenth Amendments apply. B: No, because the prohibition of protests adjacent to the entrance of a department store during shopping hours is a constitutionally proper limitation on the time, place, and manner of speech. C: Yes, because the mall is functionally equivalent to a town and, therefore, its actions are subject to the Constitution's guarantees of freedom of speech and assembly. D: Yes, because the mall's restriction on the protesters' speech was broader than necessary to ensure proper access to the department store.
A
Question 1904 - Civil Procedure - The question is: A patient domiciled in State A sued a surgeon domiciled in State B in a federal court in State A, alleging claims for malpractice. The surgeon moved to dismiss the action for lack of personal jurisdiction. The court denied the motion and set discovery cutoff and trial dates. The surgeon has appealed the denial of the motion. Should the appellate court hear the merits of the surgeon's appeal? A: No, because the appellate court lacks jurisdiction over the appeal. B: No, because the district court's decision on jurisdiction is final. C: Yes, because a contrary appellate decision could terminate the action. D: Yes, because the surgeon's personal-jurisdiction challenge raises a constitutional question.
A
Question 1923 - The question is: A woman sued her former employer in state court, asserting age and sex discrimination claims under both state and federal law. The woman's attorney had recently been embarrassed in court by the judge to whom the case was assigned. Wishing to avoid difficulties with the judge, the woman's attorney promptly removed the case to federal court on the basis of federal-question jurisdiction. The employer's attorney has timely moved to remand. How is the federal court likely to proceed? A: Remand the entire case. B: Remand the state claims but keep the federal claims. C: Retain the case to avoid the risk of bias and impropriety in having it proceed before a judge who has shown clear hostility toward the woman's attorney. D: Retain the case, because it was timely removed and the woman alleges federal claims.
A
Question 1924 - The question is: A construction contractor brought a breach of contract claim in federal court against a homeowner who had hired the contractor to build an apartment over an existing garage. The action turned on the scope of the work covered by the contract. The contractor and the homeowner were the only witnesses at the bench trial, and they strongly disagreed about the scope of the work. At the end of the trial, the judge stated findings of fact on the record but never issued a written opinion. Neither party objected to the findings. The judge found in favor of the homeowner, and the contractor appealed. Is the appellate court likely to overturn the findings? A: No, because the appellate court must give due regard to the trial judge's opportunity to determine witness credibility. B: No, because the contractor failed to object to the findings when the judge stated them in open court. C: Yes, because a judge must set forth findings of fact in a written opinion or memorandum of decision. D: Yes, because there were disputed issues of fact at trial.
A
Question 1958 - The question is: Under the authority of a federal voting rights statute, some states drew congressional districts in a manner calculated to increase the likelihood that members of historically disadvantaged minority racial groups would be elected. The U.S. Supreme Court declared these districts to be unconstitutional, as improper racial gerrymanders. In response to this ruling, Congress passed a new statute that explicitly denies the Supreme Court appellate jurisdiction over all future cases challenging the constitutionality of action taken under the authority of the federal voting rights statute. Which of the following is the most persuasive argument for the constitutionality of the new statute restricting the Supreme Court's appellate jurisdiction? A: Article III of the Constitution explicitly states that the Supreme Court's appellate jurisdiction is subject to such exceptions and regulations as Congress shall make. B: The constitutional principle of separation of powers authorizes Congress to pass statutes calculated to reduce the effects of Supreme Court decisions that interfere with the exercise of powers that have been delegated to the legislative branch. C: The establishment and apportionment of congressional districts directly affect interstate commerce, and the Constitution authorizes Congress to use its plenary authority over such commerce for any purpose it believes will promote the general welfare. D: The Fifteenth Amendment authorizes Congress to enforce the amendment's voting rights provisions by appropriate legislation, and Congress could reasonably determine that this restriction on the Supreme Court's appellate jurisdiction is an appropriate means to that end.
A
Question 2040 - The question is: A defendant, a nurse at a nursing home, is charged with murdering a resident at the home by adding an allegedly lethal substance to the resident's food. At trial, to prove that the substance added to the resident's food could result in death, the prosecutor, without first calling any witnesses, offers to read into evidence several pages from a standard medical treatise that support the prosecution's claim that the substance the defendant added to the food is lethal. Is the evidence offered admissible? A: No, because the treatise excerpts were not offered during the examination of a qualified expert. B: No, because the treatise itself must be introduced as an exhibit. C: Yes, although hearsay, under the learned treatise exception to the hearsay rule. D: Yes, because the lethal nature of the substance is relevant to the defendant's state of mind and intent.
A
Question 2044 - The question is: A defendant has been charged with making a false statement to a federally insured financial institution to secure a loan. At trial, the prosecutor calls the defendant's wife as a willing witness to testify that the defendant told her in confidence that he had misrepresented his assets on the loan application. The defendant objects to his wife's testimony. Should the testimony be admitted? A: No, because even though the wife is a willing witness, the defendant has the right to exclude confidential marital communications in federal court. B: No, but only if the law of the state where the defendant and his wife reside recognizes a privilege for confidential marital communications. C: Yes, because in federal court the right not to testify belongs to the testifying spouse, and she is a willing witness. D: Yes, because while the adverse testimonial privilege is recognized in federal court, the marital communications privilege is not.
A
Question 2075 - The question is: A man conveyed the eastern half of a tract of vacant land to a woman by a warranty deed. The woman promptly recorded the deed. The land conveyed to the woman fronted on a public highway. The land retained by the man was landlocked. One year later, the man died intestate, leaving a cousin as his only heir. The cousin visited the man's land for the first time and discovered that it had no access to a public highway. A neighbor who owned adjoining land fronting on the public highway offered to sell the cousin a right to cross the neighbor's land for access to the highway. Although the neighbor's price was reasonable, the cousin rejected the offer. The woman has refused to allow the cousin to cross her land for access to the public highway even though the woman's land is still vacant. The cousin has sued the woman, seeking access across the woman's land to the public highway. Who is likely to prevail? A: The cousin, based on necessity. B: The cousin, because the woman's land is still vacant. C: The woman, because the cousin could obtain an alternative access to the highway from the neighbor. D: The woman, because the man failed to reserve an easement in his deed to the woman.
A
Question 2080 - The question is: Two years ago, a developer conveyed title to a lot to a woman by warranty deed. The woman purchased an owner's policy of title insurance before the closing. Because of an error by the title insurance company, the title commitment and title policy failed to list a county tax lien encumbering the lot as an exception to coverage. Last year, the woman conveyed the lot for a bargain price by a quitclaim deed to a friend, who paid cash, did not conduct a title search, and did not purchase title insurance. Subsequently, the county began proceedings to foreclose the tax lien, and the friend filed a claim with the woman's title insurance company, demanding that the company reimburse her for the tax lien amount. Is the title insurance company obligated to pay the friend's claim? A: No, because the friend is not a named insured on the title insurance policy. B: No, because the title insurance policy expired when the woman conveyed the lot to the friend. C: Yes, because the tax lien was not listed as an exception on the title insurance policy. D: Yes, because the woman is liable to the friend for breach of the covenant against encumbrances, and the title policy should cover the friend's potential loss.
A
Question 2098 - The question is: A plumbing company hired a worker to work at various construction sites. The worker used his own truck to travel between the company's warehouse and the construction sites, but the company fitted the truck with a rack for carrying plumbing pipes. The company paid the worker for traveling between the warehouse and the construction sites, but not for his drive to and from work. Because the worker was required to haul pipes on his truck while driving between the warehouse and the construction sites, the company asked the worker, before hiring him, whether he had a valid driver's license. The worker represented that he did, although in fact his license had been suspended because he had been convicted of recklessly causing motor vehicle collisions. The company made no effort to verify the worker's representation. While driving to work one morning in his truck, the worker carelessly caused a collision in which a woman was injured. In her subsequent action against the plumbing company, based on a theory of negligent hiring, is the woman likely to prevail? A: No, because the company's duty to use reasonable care in hiring a competent driver extended only to actions taken by the worker in the scope of his employment. B: No, because the worker was an independent contractor. C: Yes, because the company fitted the worker's truck with a pipe rack. D: Yes, because the company had a duty to ensure that its workers had valid driver's licenses.
A
Question 1930 - The question is: Before the close of evidence in a federal negligence trial, the defendant submitted a proposed jury instruction on contributory negligence. Before instructing the jury, the judge informed the parties of the instructions she would give, which did not include the defendant's contributory negligence instruction or any instruction on contributory negligence. Neither party objected, either then or after the judge had given the instructions. The jury returned a verdict for the plaintiff, and the judge entered judgment on the verdict. The defendant would like to appeal the verdict on the ground that the judge should have instructed the jury on contributory negligence. Has the defendant preserved the issue for appeal? A: No, because the defendant failed to object after the judge gave the instructions to the jury. B: No, because the defendant failed to object after the judge informed the parties of the instructions she would give. C: Yes, because the defendant submitted a proposed instruction on contributory negligence. D: Yes, because the judge's failure to give the defendant's contributory negligence instruction amounted to a ruling on the instruction.
B
Question 1955 - The question is: To preserve the appearance and accessibility of its capitol building, a state enacted a law prohibiting "the display of any sign on any portion of the public sidewalk surrounding" the building. A group of five demonstrators who wanted to protest inadequate state funding for children's services applied for a permit to march single file on the sidewalk surrounding the capitol building. Each demonstrator planned to carry a two-foot-square sign that would read, "Our lawmakers do not care about our children." The group's permit application was denied pursuant to the state law, and the group has filed an action challenging the law's constitutionality. Should the court uphold the law's constitutionality? A: No, because even though the sidewalk at issue is not a public forum, the prohibition against the display of signs is more restrictive than needed to serve a legitimate government interest. B: No, because the sidewalk at issue is a public forum, and the prohibition against the display of signs is not narrowly tailored to serve a substantial government interest. C: Yes, because even though the sidewalk at issue is a public forum, the prohibition against the display of signs is necessary to serve a compelling public interest. D: Yes, because the sidewalk at issue is not a public forum, and the prohibition against the display of signs is reasonable.
B
Question 1974 - The question is: An engineer signed a two-year contract to serve as the chief safety engineer for a coal mine at a salary of $7,000 per month. The position required the engineer to work underground each workday. After one week on the job, the engineer became very ill. He requested testing of the mine air system, which revealed the presence of a chemical agent to which the engineer had a rare allergic reaction. The engineer promptly quit. The coal mine then hired a qualified replacement for the remainder of the engineer's contract at a salary of $7,500 per month. Assume that no statute or regulation applies. If the coal mine sues the engineer for breach of contract, is the coal mine likely to recover damages? A: No, because an at-will employee has the right to terminate an employment contract. B: No, because the risk to the engineer's health excused his nonperformance of the contract. C: Yes, because the coal mine acted in good faith in mitigating the effect of the engineer's failure to finish the contract term. D: Yes, because the mine is reasonably safe for most people.
B
Question 1991 - The question is: A man became ill while at work and decided to go home early. When he entered his bedroom, the man saw his wife engaged in sexual intercourse with a neighbor. The man grabbed a gun from a dresser drawer and shot and killed the neighbor. He was later charged and prosecuted. In a jurisdiction that follows the common law for homicide offenses, which crimes should the court instruct the jury on? A: Murder and involuntary manslaughter. B: Murder and voluntary manslaughter. C: Murder, voluntary manslaughter, and involuntary manslaughter. D: Voluntary manslaughter and involuntary manslaughter.
B
Question 2013 - The question is: A man was angry at a coworker who had received a promotion. The man believed that the coworker had taken credit for the man's work and had bad-mouthed him to their boss. One day, as the man was leaving the company parking lot in his car, he saw the coworker walking through the lot. On a sudden impulse, the man pushed the accelerator pedal hard and veered toward the coworker with the intention of scaring him. The coworker tried to jump out of the way but slipped and fell and was run over. Although the coworker suffered life-threatening injuries, he survived. In a jurisdiction that follows the common law of homicide, could the man properly be convicted of attempted murder? A: No, because the coworker's slip and fall broke the chain of proximate causation. B: No, because the man lacked the requisite intent. C: Yes, because the coworker suffered life-threatening injuries. D: Yes, because the man acted with reckless disregard for human life
B
Question 2050 - The question is: A plaintiff sued a utility company that owns a reservoir that is open to the public for recreation pursuant to a license from a federal agency. The plaintiff was severely injured in the reservoir when he dove from a boat into what he thought was deep water and hit an unmarked submerged island. The plaintiff alleges that the company was negligent in failing to mark the submerged island. At trial, the plaintiff has called an engineer and qualified him as an expert in managing reservoirs. Which of the following opinions by the plaintiff's expert is the court most likely to admit? A: "The accident probably occurred in the manner shown by this computer-animated film I made." B: "The company could have marked the island in a day and at a cost of $300." C: "The company was required by federal law to mark the island." D: "The plaintiff was not contributorily negligent."
B
Question 2069 - The question is: When a buyer and a seller executed a valid contract for the sale of a house, the buyer gave the seller $1,000 as earnest money. The contract noted that the earnest money tendered would be applied to the purchase price at the time of sale but was silent as to remedies in the event of any default. Just before the closing, the buyer lost her job. The buyer told the seller that she could no longer purchase the house and asked him to return the earnest money. The seller accurately told the buyer that the seller's actual losses exceeded the amount of the earnest money; that if the seller sued the buyer for damages, he would receive a minimum of $5,000; and that it would be difficult for him to sell the house in the current market. Should the buyer get the earnest money back? A: No, because the contract was silent regarding remedies. B: No, because the seller's actual losses exceeded the amount of the earnest money. C: Yes, because the buyer is no longer ready, willing, and able to purchase the house. D: Yes, because the reason for the buyer's default was not anticipated.
B
Question 1950 The question is: A nightclub owner applied for a required zoning permit to open a nude-dancing nightclub in the theater district of a city. An organization of influential city residents began an intensive lobbying effort to persuade the city council to deny the owner a permit to operate any type of nude-dancing facility at any time or in any place in the city. The owner has sued the city in an appropriate federal court, seeking an injunction that would prohibit the city council from considering the organization's views, on the ground that if the organization is successful in its lobbying efforts, the owner's First and Fourteenth Amendment rights would be violated. The city has moved to dismiss the action. Should the court dismiss the owner's action? A: No, because nude dancing is symbolic speech and is therefore protected by the First and Fourteenth Amendments. B: No, because the organization does not seek a reasonable time, place, and manner regulation of nude dancing, but instead seeks a total ban on the owner's opening any type of nude-dancing facility at any time or in any place in the city. C: Yes, because the action is not ripe. D: Yes, because the First and Fourteenth Amendments do not protect obscenity, and nude dancing is obscene
C
Question 1973 - The question is: A buyer sent a signed letter to a seller that stated: "Ship 100 boxes of nails at $3 per box, the price quoted in your circular." The seller mailed the buyer a signed form acknowledgment that agreed to the buyer's terms and stated on the reverse side: "Disputes regarding quality shall be arbitrated." The buyer did not reply to the seller's acknowledgment, and the seller shipped the nails. When the buyer received the nails, it found their quality to be unsatisfactory and sued the seller for breach of warranty. The seller has asked an attorney whether the parties' contract requires arbitration of the buyer's claim. What is the best advice the attorney can provide? A: A contract was formed pursuant to conduct when the buyer received the nails, and a court would exclude the arbitration provision from the contract. B: A contract was formed when the seller mailed its acknowledgment, and the arbitration term became part of the contract. C: A contract was formed when the seller mailed its acknowledgment, and the court must decide whether the arbitration term should be excluded as a material alteration of the contract. D: No contract exists, because the arbitration term in the seller's acknowledgment created a counteroffer that the buyer never accepted.
C
Question 1977 - The question is: A woman prepared an accurate statement of her financial condition and submitted it with a loan application to a local bank with which she had done business for many years. Shortly thereafter, the woman's financial condition worsened significantly, but she failed to disclose this fact to the bank. Unaware of the woman's changed financial condition, the bank then agreed to lend money to the woman. The bank later learned of the woman's true financial condition. The bank refused to honor its promise to lend money to the woman, contending that the parties' contract was voidable at the bank's option because of the woman's misrepresentation. If the woman sues the bank for breach of contract, will the bank's misrepresentation defense likely succeed? A: No, because the woman did not make any subsequent affirmative misrepresentations about her financial condition. B: No, because the woman's representations were accurate at the time she submitted the loan application to the bank. C: Yes, because the woman had an obligation to correct her previous representations about her financial condition in order to prevent them from being fraudulent. D: Yes, because the woman had an obligation to tell the bank about her changed financial condition due to the longstanding relationship of trust and confidence between them.
C
Question 2031 - The question is: A plaintiff sued a defendant over title to land on a riverbank. Changes in the water level over time were important to the plaintiff's case. For 15 years, a commercial fisherman had kept a daily log of the water level at his dock on the riverbank opposite the land in order to forecast fishing conditions. The plaintiff hired a draftsman to graph the data from the fisherman's logs for use as a trial exhibit. At trial, the fisherman testified to the care with which he had made the measurements and recorded them in his logs, which had been made available for the defendant's inspection. The draftsman then testified to the manner in which he had prepared the graphs. With this foundation, are the graphs admissible? A: No, because they are hearsay not within any exception. B: No, because they violate the "best evidence" rule. C: Yes, as summaries of voluminous business records. D: Yes, as the draftsman's expert opinion of the water levels.
C
Question 2041 - The question is: A defendant has been charged with selling cocaine to a police informant. At trial, the alleged cocaine no longer exists, and the only evidence that the substance sold was cocaine is the informant's testimony that it tasted like cocaine and gave her a cocaine-like sensation. The informant has no formal training in identifying controlled substances. Should the court admit the informant's opinion testimony that the substance was cocaine? A: No, because identification of a controlled substance requires an expert with formal training. B: No, because, without a quantity of the controlled substance for testing, opinion testimony is insufficient to make a prima facie case against the defendant. C: Yes, if the court determines that the informant has sufficient knowledge and experience to identify cocaine. D: Yes, provided there is evidence sufficient to support a jury finding that the informant has sufficient knowledge and experience to identify cocaine.
C
Question 2049 - The question is: At trial in an action for personal injuries suffered in a traffic accident, the plaintiff first calls the defendant as an adverse party. The plaintiff then calls a witness who was a passenger in the plaintiff's car but who also happens to be the defendant's former employer. On direct examination, the witness testifies to how the accident occurred and also expresses his opinion that the defendant is not a truthful person. Which one of the following areas of questioning is most likely to be held beyond the proper scope of cross-examination? A: In letters to prospective employers, the witness has described the defendant as very honest and dependable. B: The defendant recently filed an action against the witness for breach of contract. C: The plaintiff's injuries were not as serious as the plaintiff is claiming. D: The witness has been falsifying his income tax returns.
C
Question 2067 - The question is: A man borrowed money from a lender and mortgaged land that he owned to secure repayment of the loan. Before he had completely repaid the loan, the man conveyed the land to an investor, who expressly assumed the loan. The note and mortgage did not contain a due-on-sale clause. After the investor had made several payments on the loan, she defaulted on two payments. The lender notified the man and the investor of its intention to accelerate the loan pursuant to the terms of the note and mortgage unless the default was cured within 60 days. When neither the man nor the investor made the required payment, the lender accelerated the loan and initiated foreclosure proceedings, naming both the man and the investor as party defendants. The foreclosure sale resulted in a deficiency. The lender has sought a deficiency judgment against only the man, because the investor has become insolvent in the meantime. Will the court likely find the man liable for the deficiency? A: No, because the investor's express assumption of the loan released the man from liability. B: No, because the lender must first seek to obtain a deficiency judgment against the investor. C: Yes, because even after the assumption, the man remains liable as a surety of the investor in the absence of a release from the lender. D: Yes, because the note and mortgage did not contain a due-on-sale clause.
C
Question 2072 - The question is: 10 years ago, a couple bought a building and moved into its second-floor apartment with their teenage daughter. The couple operated a shoe store on the first floor of the building for many years. When the couple purchased the building, the area was predominantly rural and was zoned for nonresidential use. The municipality's zoning is cumulative. Five years ago, the municipality rezoned the area to single-family residential use. The daughter was not aware of this change, since she was away at college. Recently, the daughter inherited the building from her parents. The daughter immediately moved into the apartment and took over the operation of the shoe store on the first floor. The daughter has learned that a developer is planning to build a large residential community in the area surrounding her building. The daughter has asked her lawyer for advice regarding her ability to continue operating the shoe store. Should the lawyer advise the daughter that she can continue to operate her shoe store? A: No, because the nonconforming use of the building terminated when the daughter's parents died. B: No, but the municipality must pay her reasonable compensation for her loss resulting from the change in zoning. C: Yes, because the shoe store is a nonconforming use. D: Yes, because the zoning is cumulative and the building is also used for single-family residential purposes.
C
Question 2105 - The question is: A buyer bought a large, nicely kept house near a university campus. She was able to buy the house for a very good price because it was located directly across the street from a fraternity house known for its frequent late-night parties. The buyer knew of the fraternity's reputation before she bought the house. The reputation was well deserved, and the buyer found the noise from the parties extremely unpleasant and disruptive. The buyer has asked an attorney for legal advice regarding a possible nuisance claim against the fraternity. Which of the following responses would best express the applicable law? A: "You have no nuisance claim, because the fraternity members have the right to use their property as they please." B: "You have no nuisance claim, because you came to the nuisance." C: "You might have a nuisance claim, but the fact that you bought the house fully aware of the fraternity's habitual late-night activities will count against your claim and could help defeat it." D: "You will be able to recover damages in a nuisance action, because the late-night activities of the fraternity members violate your right to the quiet enjoyment of your property."
C
Question 1908 - The question is: A plaintiff filed an action in federal district court and served the defendant with the summons and complaint. The defendant moved to dismiss the complaint for failure to state a claim. Instead of opposing the motion to dismiss, the plaintiff voluntarily dismissed the action and filed a new action, alleging the same claims but also addressing the pleading defects outlined in the defendant's motion to dismiss. The defendant then moved to dismiss the second action, and the plaintiff again voluntarily dismissed the second action instead of filing opposition papers. The plaintiff then filed a third action, alleging the same claims but also including additional allegations that were responsive to the defendant's second motion. The defendant has moved to dismiss the third action; the plaintiff opposes the motion. Is the court likely to grant the defendant's motion? A: No, because the plaintiff has promptly and diligently attempted to address the pleading defects. B: No, because the plaintiff voluntarily dismissed each previous action before the defendant filed an answer or moved for summary judgment. C: Yes, because the plaintiff failed to seek a court order dismissing the second action. D: Yes, because the plaintiff's previously dismissed actions asserting the same claims operate as an adjudication on the merits
D
Question 1912 - The question is: A retailer brought a federal diversity action against an architect, alleging fraudulent misrepresentations in the architect's design of the retailer's store. The complaint did not include a jury demand. The architect timely moved to dismiss the action for failure to state a claim; he did not file an answer. Twenty days after being served with the motion, the retailer amended the complaint to add a defamation claim based on the architect's recent statements about the retailer in a local newspaper. In the amended complaint, the retailer demanded a jury trial on both claims. Has the retailer properly demanded a jury trial? A: No, because the retailer filed the demand more than 14 days after service of the motion to dismiss. B: No, because the retailer filed the demand more than 14 days after service of the original complaint. C: Yes, but on the defamation claim only, because the original complaint did not contain a jury demand. D: Yes, on both claims, because the architect had not answered the original complaint when the retailer filed the amended complaint with the jury demand.
D
Question 1927 - The question is: A mail clerk domiciled in State A slipped and fell on ice that had formed near the loading dock of the building in State B where the clerk's State B employer leased space for its headquarters. The building was owned and operated by a State C corporation. As a result of the fall, the clerk was injured and the employer's expensive computer he was carrying was badly damaged. The clerk sued the building owner for negligence in a federal district court in State B, seeking $100,000 in personal-injury damages. The employer has filed a timely motion to intervene, asserting an $80,000 negligence claim against the building owner for the damage to its computer. Is the court likely to grant the employer's motion to intervene? A: No, because although the employer has an interest in the clerk's action, that interest is not likely to be impaired in the employer's absence. B: No, because the clerk chose not to join the employer as a co-plaintiff in his action. C: Yes, because the employer is an indispensable party. D: Yes, because the employer's claim shares common questions of law and fact with the clerk's action.
D
Question 1929 - The question is: A purchaser filed a federal diversity action against a seller, alleging breach of contract. The seller answered the complaint and included as a separate defense an allegation that the purchaser had brought and lost a similar contract claim against a different seller three years earlier, and that this history represented a pattern of filing frivolous lawsuits. The purchaser believes that the earlier lawsuit was factually completely different from the current one and is therefore irrelevant. What is the purchaser's best response to the seller's answer? A: File a reply that includes a denial of the separate defense. B: Move for sanctions against the seller for asserting a frivolous defense. C: Move to amend the complaint to add allegations about the differences between the lawsuits. D: Move to strike the separate defense as irrelevant.
D
Question 1986 The question is: On June 1, an appliance manufacturer telephoned a supplier to determine whether the supplier could provide 300 washing machine motors of a particular model by October 1. The supplier offered to do so at a price of $300 per motor (a total price of $90,000). The manufacturer's representative said, "Deal." The next day the manufacturer's representative sent the supplier an unsigned note on company letterhead that stated, "I am happy that you are going to supply us with the motors. I will call you soon to talk about another order." The manufacturer then sent catalogs to its regular customers advertising washing machines that included the specified motors. The manufacturer did not hear from the supplier until July 1, when the supplier called to say that it would be unable to supply the motors because it was no longer carrying that model. At that time, the manufacturer had received no orders for the machines with the specified motors. The manufacturer sued the supplier for breach of contract, and the supplier raised the Statute of Frauds as a defense. Is the supplier's Statute of Frauds defense likely to succeed? A: No, because the manufacturer distributed the catalogs in reliance on the contract, making the contract enforceable under the Statute of Frauds. B: No, because the supplier failed to object to the contents of the note sent by the manufacturer. C: Yes, because the manufacturer's note failed to contain a signature. D: Yes, because there is no writing that contains the quantity term of the contract.
D
Question 2000 - The question is: Four hours into a defendant's assault trial, the lawyers gathered in the judge's chambers to discuss an evidentiary issue. While there, the judge received a phone call from his wife telling him that her mother had suddenly died. Without asking the lawyers what they wanted to do, the judge brought the lawyers back into the courtroom, declared a mistrial, excused the jury, and rushed home to his wife. A new jury was impaneled the next day before a second judge. The defendant has objected to the second trial on double jeopardy grounds. Would the second trial violate the prohibition against double jeopardy? A: No, because the first judge acted in good faith in declaring a mistrial. B: No, because the first trial did not produce a verdict. C: Yes, because the second judge's evidentiary rulings might be inconsistent with those of the first judge. D: Yes, because there was no manifest necessity for a mistrial.
D
Question 2045 - The question is: A plaintiff has sued the government for injuries she received when her car was allegedly forced off the road by a military convoy. At trial, an eyewitness testifies for the plaintiff and then is asked on cross-examination whether he belongs to a religious group that refuses on principle to file federal tax returns, because the revenues are used to build weapons of war. Is the question proper? A: No, because evidence of the witness's religious beliefs cannot be used for impeachment in this case. B: No, because the witness's character cannot be impeached by evidence of criminal acts, but only by convictions. C: Yes, because a person's willingness to violate tax laws indicates possible willingness to testify falsely. D: Yes, because the witness's beliefs are relevant to the possibility of bias.
D
Question 2066 - The question is: A woman owned a four-unit apartment building and lived in one of the units. When one of her tenants vacated his apartment, the woman placed an advertisement in the local paper that read as follows: "Large two-bedroom apartment available for rent. White male preferred." The woman's preference was motivated by the fact that she liked to have a mix of tenants of both genders and from various racial and ethnic backgrounds in her building, and of the remaining rented units, one was rented to an African American man and the other to a Pacific Islander woman. Based upon these facts, which of the following statements is true? A: The federal Fair Housing Act makes it illegal for the woman to refuse to rent her units to prospective tenants because of their race or gender. B: The woman's motive absolves her from any liability under the federal Fair Housing Act. C: There are no violations of any federal laws under these facts. D: Under the federal Fair Housing Act, the woman was not permitted to state a racial or gender preference in the advertisement.
D
Question 2089 - The question is: A chemical company's plant was located in a residential community. The manufacturing process used at the plant generated a toxic chemical as a by-product. The chemical was stored in a state-of-the-art tank on the site before being moved to an off-site disposal facility. The on-site storage arrangement conformed to the requirements of reasonable care and to the applicable government regulations. However, the storage of the toxic chemical created a foreseeable and highly significant risk of physical harm even when reasonable care was exercised. Despite the chemical company's proper use and care of the storage tank, toxic fumes escaped from the tank and made residents of the area seriously ill. No state or federal statutes address the issue of the company's liability. In an action by one of the affected residents against the chemical company, will the resident be likely to prevail? A: No, because the chemical company conformed to the requirements of reasonable care and to the applicable government regulations. B: No, because the chemical company used a state-of-the-art storage tank. C: Yes, because the chemical company is strictly liable in tort for any harm caused by the toxic chemicals it produced. D: Yes, because the storage of toxic chemicals in a residential community created a highly significant risk of physical harm even when reasonable care was exercised.
D
Question 2106 - The question is: A homeowner was injured when he slipped and fell in a puddle of water on his sunroom floor; the water had accumulated on the floor during a rainstorm because of leaks in the roof. The roof's manufacturer had supplied nondefective materials to the installer, who was a franchisee (and not an employee) of the manufacturer. The leaks resulted from the carelessness of the installer during the installation of the roof. The installer's truck, which had been parked in front of the homeowner's house during the roof installation, bore the manufacturer's logo. The manufacturer was aware that the truck and the literature supplied by the installer both displayed the manufacturer's logo. Is there any basis for a claim by the homeowner against the manufacturer? A: No, because a franchisor has no duty to supervise the conduct of a franchisee. B: No, under the rule that a manufacturer is liable only for defects in a product that existed at the time the product left the hands of the manufacturer. C: Yes, because the installer was a franchisee of the manufacturer. D: Yes, under the rule of apparent agency.
D
Question 2110 - The question is: While visiting at his son's home, a grandfather tripped on a toy left on the floor by his four-year-old grandson. The grandfather fell and was severely injured. The grandfather regularly visited his son's home and was aware that the grandson routinely left toys scattered about the house. The son had never warned the grandfather to look out for toys. The grandfather brought an action against his son to recover for his injuries. At trial, after the close of evidence, both the grandfather and the son have moved for judgment as a matter of law as to liability. The jurisdiction has abolished intra-family immunity and applies the traditional rules of landowner liability. What action should the court take? A: Deny both motions and submit the case to the jury based on negligence. B: Deny both motions and submit the case to the jury based on strict liability. C: Grant the grandfather's motion, because the son is liable as a matter of law for failing to warn about the risk of toys being left on the floor. D: Grant the son's motion, because the son had no duty to warn that the grandson might leave toys on the floor.
D