Simulated Exam MBE

In a criminal trial for attempted murder, the prosecutor seeks to introduce a statement made by the victim immediately after he was attacked by the defendant. The victim, very seriously injured, shouted the defendant's name and said, "I can't believe you shot me! I'm dying!" At the time of the trial, the victim has mostly recovered from his injuries, but suffered permanent memory loss, has no recollection of the incident at all, and has no recollection of making the statement. The prosecutor seeks to introduce the statement as a dying declaration, but the defendant objects. Should this statement be admissible under the "dying declaration" exception to the hearsay rules? Answer Choices: No, the statement is not admissible as a dying declaration. No, because the victim did not die. Yes, because the victim is unavailable due to his inability to remember. Yes, because the proceeding in which the statement will be introduced is a criminal trial.

Answer choice A is correct. A dying declaration only qualifies as a hearsay exception if (i) the statement is made by an individual who believes she is dying, (ii) the individual believes that her death is imminent, and (iii) the statement pertains to the cause or circumstance of her death. The statement made by this victim likely would meet this standard. However, under the Federal Rules, a dying declaration is admissible only in homicide prosecutions and civil actions. Because this is a criminal trial for attempted murder, and not homicide or a civil case, the statement is not admissible as a dying declaration. Answer choice B is incorrect in part for the reasons explained above, but also because the Federal Rules do not require that the declarant actually die, nor do they require that the declarant be the victim in the case at hand. The declarant must simply be unavailable for some reason. Answer choice C is incorrect because, while unavailability is a requirement for the dying declaration exception, the statement is still inadmissible because the trial in question is not a homicide or civil trial. Answer choice D is incorrect because it misstates the law for the reasons discussed above.

An artist who had designed a sculpture to be made out of steel went to the website of a merchant that sold specialized tools. Using the chat feature, the artist explained to an employee of the merchant that the artist wanted to purchase a tool that could cut through steel. The employee suggested that the artist purchase a particular saw. The employee, pointing out that the website's description of the saw indicated that it could cut through most metals, added that the saw "should cut through steel with no problem." The artist purchased the saw from the merchant's website for a total cost of $450. Conspicuously appearing on the page where the artist had to indicate his consent in order to purchase the saw was the following: "There are no implied warranties provided with this product other than the general warranty of merchantability." The tool failed to cut through the steel that the artist intended to use for his sculpture. The artist sued the merchant for damages attributable to breach of the implied warranty of fitness for a particular purpose. Which party is likely to prevail? Answer Choices: The merchant, because the merchant disclaimed the warranty of fitness for a particular purpose. The merchant, because warranties do not apply to goods valued under $500. The artist, because the merchant's employee knew that the artist wanted a saw that would cut steel and relied on his judgment that the saw would do so. The artist, because the implied warranty of fitness for a particular purpose cannot be disclaimed by a merchant.

Answer choice A is correct. A warranty that the goods are fit for a particular purpose may be disclaimed by a conspicuous writing. Such a writing need not refer to this warranty by name. Answer choice B is incorrect because unlike the applicability of the Statute of Frauds to the sale of goods, there is no dollar threshold that a warranty related to goods must exceed in order to be effective. Answer choice C is incorrect because, although a warranty of fitness for a particular purpose was made under these facts, the merchant effectively disclaimed this warranty. Answer choice D is incorrect because any seller may provide a warranty of fitness for a particular purpose and any seller may disclaim such a warranty.

A potential renter, a resident of State A, was searching for an apartment. The renter completed an application for a lease at an apartment complex located in State A, which was owned and managed by an apartment management company. The apartment management company's principal place of business was in State A, but it was incorporated in State B. The renter fulfilled all the requirements detailed in the application, yet the management company refused to offer her a lease. Suspecting that the management company refused to rent to her because of her ethnicity, the renter filed a claim under the Federal Fair Housing Act in State A state court seeking damages of $100,000. If the management company seeks to remove the action to the federal district court located in State A, will it be successful? Yes, because the federal district court has original federal question jurisdiction. Yes, because the federal district court has original diversity jurisdiction. No, because, as a landlord-tenant dispute, the case is properly in state court. No, because when the state courts and federal courts have concurrent jurisdiction, the plaintiff holds the right to choose where to file the claim.

Answer choice A is correct. Any civil action commenced in a state court that is within the original jurisdiction of a U.S. district court may generally be removed by the defendant to the district court for the district and division in which the state court action is pending. Answer choice B is incorrect. There is no complete diversity of citizenship, as the corporation is a citizen of both States A and B. Answer choice C is incorrect. The case involves a federal statute, the Federal Fair Housing Act. Therefore, removal is proper under federal question jurisdiction. Answer choice D is incorrect. Although the plaintiff originally files the claim in his court of choice, the defendant may remove the action to federal district court under certain circumstances.

During a personal injury trial, the plaintiff called an eyewitness to testify. On cross-examination, the defense attorney asked the witness about a previous conviction. Seven years ago, when the witness was 16 years old, she was tried as a juvenile and convicted of check fraud. The plaintiff objected to the introduction of evidence of this conviction, but the defense attorney maintained that he could introduce it for impeachment purposes. Is evidence of the witness's conviction admissible? No, because the witness is testifying in a civil trial. No, because the conviction constitutes a prior bad act. Yes, because it was a conviction of a crime involving fraud or deceit. Yes, because the conviction is less than 10 years old.

Answer choice A is correct. Evidence of juvenile adjudications is not admissible in civil cases. The court may occasionally permit evidence of a juvenile adjudication of a witness other than the accused under certain circumstances, but only in a criminal trial. Because the witness was a juvenile when she was convicted and because she is a witness in a civil trial, the conviction is not admissible. Answer choice B is incorrect for several reasons. First, prior bad acts are not necessarily inadmissible; a witness may be asked about specific instances of conduct on cross-examination, including prior bad acts, if the judge determines that the acts are probative of truthfulness or untruthfulness, and the lawyer has a good-faith basis for asking about the conduct. Additionally, a conviction of a crime does not constitute a "prior bad act." Subject to certain rules, a witness may always be impeached with evidence that he has been convicted of a crime. Answer choices C and D are incorrect because, as mentioned above, the general rules regarding impeachment with convictions do not apply to juvenile convictions. If this were not a juvenile conviction, it would be true that this conviction would be admissible, as a witness may be impeached with evidence that she has been convicted of any crime involving dishonesty or false statements within 10 years of the conviction. Further, even if the crime did not involve dishonesty or a false statement, convictions of felonies that are less than 10 years old may be admissible, if the probative value outweighs the prejudicial effect.

A company owned and operated a private golf course. One of the fairways on the course ran parallel to a navigable body of water. The company was aware that golfers frequently but unintentionally hit golf balls into the water when playing that hole because there were no barriers to prevent the balls from going into the water. A 12-year-old child, while sailing on the water, was struck by one such ball and suffered a serious physical injury. The injured child's parent has filed a public nuisance action against the company, on behalf of his child, to recover for his injuries. Is the plaintiff precluded from recovering? No, because the child was seriously injured while on navigable water due to the company's negligence. No, because of the attractive nuisance doctrine. Yes, because the child did not have an ownership interest in land. Yes, because the golfer's action was unintentional.

Answer choice A is correct. In order for a private citizen to successfully maintain a public nuisance action, that person must suffer a special injury that is different in kind to that suffered by the general public. The plaintiff's physical injury here constitutes a special injury. In addition, with respect to the use of a public passageway, the plaintiff's injury must arise from the use of that passageway and the defendant's conduct must interfere with, obstruct, or render the passageway dangerous for passage. Answer choice B is incorrect because the attractive nuisance doctrine applies to a child-plaintiff who trespasses on the defendant's property and is injured by an artificial condition on that property. Here, the child was injured while legally on navigable water, not while trespassing on the defendant's property. Answer choice C is incorrect because, unlike a private nuisance, a public nuisance does not require that the plaintiff have possessory rights in real property. Answer choice D is incorrect because the plaintiff's suit is against the company that operated the golf course, not the golfer personally. In addition, nuisance actions, whether public or private, may be based on the defendant's negligent conduct; the defendant's conduct need not be intentional.

In order to finance the purchase of a property, the buyer received a loan and in return gave the lender a promissory note secured by a mortgage on the property. Subsequently, the buyer divided the property into two parcels, retaining one of the parcels and selling the other to a friend. The friend took the parcel subject to the mortgage. The buyer and the friend agreed that each would be liable for one-half of the outstanding mortgage. One year later the buyer disappeared. Since the buyer was no longer paying one-half of the mortgage obligation, the lender threatened to foreclose on the property. The friend paid off the outstanding balance of the loan. The applicable jurisdiction recognizes the lien theory of mortgages. Can the friend bring a foreclosure action against the buyer's parcel? Yes, because the friend is subrogated to the lender's rights in the parcel. Yes, because the friend obtained ownership rights in his own parcel by purchase. No, because the friend does not have an ownership interest in the parcel since the jurisdiction adheres to the lien theory of mortgages. No, because the friend was not under a legal duty to pay the buyer's portion of the mortgage.

Answer choice A is correct. Since the friend paid the buyer's loan obligation in full in order to protect his own interest, the friend became subrogated to the lender's rights based not only on the personal obligation of the buyer, but also on the mortgage on the land itself. Answer choice B is incorrect because the way in which the friend acquired his interest in his own parcel is irrelevant to the issue of subrogation. Answer choice C is incorrect because, while the friend does not have an ownership interest in the buyer's parcel, the friend may nevertheless seek to foreclose on the mortgage on that parcel, which it holds through its right of subrogation. Answer choice D is incorrect because, although payment of another person's obligation that is secured by a mortgage, by a person who is under a legal duty to do so, can give rise to the right of subrogation, payment of such an obligation by a person in order to protect his property interest is also entitled to subrogation.

A mother and her son were both injured at a construction site. They brought a negligence action in federal court against the construction company for failure to exercise reasonable care with respect to their presence at the site. The mother alleged in good faith that she suffered $55,000 in damages; her son alleged in good faith $200,000 in damages. Subsequently, they permissively joined as a defendant under Rule 20 an individual whose intentional actions in tampering with warnings posted by the construction company also allegedly caused their injuries. The mother and her son are citizens of the forum state; the two defendants are citizens of other states. The individual defendant has moved to dismiss the mother's claim against it for lack of subject-matter jurisdiction. How should the court rule? Answer Choices: Grant the motion, because the mother's claim was asserted against a defendant who was permissively joined under Rule 20. Grant the motion, because supplemental jurisdiction does not apply to a claim for which diversity jurisdiction does not exist. Deny the motion, because there is complete diversity between the parties. Deny the motion, because the court has supplemental jurisdiction over the mother's claim.

Answer choice A is correct. The court does not have diversity jurisdiction over the mother's claim against the individual defendant, even though there is complete diversity between the parties, because her claim does not exceed $75,000. Nor can the court exercise supplemental jurisdiction over her claim against the individual defendant. The mother's claim does form part of the same case or controversy as her son's claim and the court does have diversity jurisdiction over his claim because it meets both the amount-in-controversy and diversity-of-citizenship requirements. Despite that, because the mother's claim is made by a plaintiff against a party permissively joined under Rule 20, the court cannot exercise supplemental jurisdiction. Answer choice B is incorrect because supplemental jurisdiction may apply to a claim for which there is no diversity jurisdiction, but does not in this case as discussed with respect to answer choice A. Answer choice C is incorrect because, even though there is complete diversity between the parties, the court does not have diversity jurisdiction over the mother's claim because her claim does not exceed $75,000. In addition, the court cannot exercise supplemental jurisdiction over this claim, as discussed with respect to answer choice A. Answer choice D is incorrect because, even though the court has diversity jurisdiction over the son's claim against the individual defendant, the court cannot exercise supplemental jurisdiction over the mother's claim against this defendant, as discussed with respect to answer choice A.

Two friends, a chef and an electrician, together purchased a beachfront residence. They took title to the residence as joint owners, with the chef owning a 75% interest and the electrician a 25% interest. The chef, during the time he used the residence, prepared elaborate meals. He advertised those meals, attracted a paying clientele, and made a net profit from them. The electrician pointed out to the chef that the electrical system in the house was in dangerous condition. The chef, agreeing with the electrician that repair of the system was necessary, stated that he had neither the time nor the expertise to fix it himself and couldn't afford the cost of doing so. The electrician repaired it and demanded that the chef contribute to the cost of the repair. The chef refused. The electrician brought an action for partition. The court ordered the sale of the residence. It was purchased by a third party for its appraised value. In allocating the sale proceeds, should the court take into account either the chef's net profit from the meals or the electrician's repair of the electrical system? Answer Choices: Only the electrician's repair of the electrical system. Only the chef's net profit from the meals. Both must be taken into account. Neither should be taken into account.

Answer choice A is correct. The friends have a tenancy in common interest in the residence. Because there is a partition action, the electrician's repair of the electrical system must be taken into account because the repair was necessary. However, the chef's profit is not taken into account. Net income from a business operated by a co-tenant on the premises is not required to be shared with any other cotenants. Based on this analysis, answer choices B, C, and D are incorrect.

A retail furniture store ordered ten sofas from a manufacturer at $1,000 each, plus shipping, to be delivered and paid for in five equal monthly installments. With the first shipment of two sofas, the manufacturer sent an invoice to the retailer, billing the retailer $2,000 plus shipping. The invoice also noted that the manufacturer retained a security interest in all sofas shipped until the purchase price for all sofas ordered was paid in full. Not happy with the security interest term, the retailer immediately notified the manufacturer that this term was unacceptable. After sending payment for the first two sofas, the retailer told the manufacturer not to send any more sofas. The manufacturer sued the retailer for breach of contract. In the breach of contract action by the manufacturer against the retailer, what will be the result? The manufacturer will prevail, because both parties are merchants. The manufacturer will prevail, but can only enforce the terms of the original offer. The retailer will prevail, because the knock-out rule voids the contract. The retailer will prevail, because the additional terms materially affected the bargain.

Answer choice B is correct. Even if the manufacturer included an additional term in its acceptance and the retailer objected to that term, a contract was still formed on the terms of the original offer. Answer choice A is incorrect because, regardless of whether both parties are merchants, the retailer did not have a right to refuse to perform the contract; a contract was formed based on the original terms. The fact that the retailer objected to the term means that it would not be part of the contract regardless of the parties' status as merchants. Answer choice C is incorrect because the knock-out rule, which applies to conflicting terms proposed by merchant parties, does not itself serve as a basis to void a contract. Under the knock-out rule, different terms in the offer and acceptance nullify each other and are "knocked out" of the contract. Answer choice D is incorrect because, even though the security interest term materially affected the bargain by altering the remedies available to the manufacturer if the store failed to pay, the retailer nonetheless was required to perform the contract per the original terms.

An employee sued her former employer after she was fired. At trial, the employee argued that when she was hired she had signed an employment contract that stated that she could be fired only for cause. The employer argued that the parties had never signed an employment contract, and that the employee was an at-will employee. The employer stipulated that there was not cause to discharge the employee, because she performed her job in a satisfactory manner. Rather, the CEO testified that, as part of a downsizing effort, he had approved the discharge of all at-will employees in the department where the employee worked. At trial, the employee sought to question the CEO about a conversation in which the CEO told the employee that he was happy with her performance. The employer objected to admission of the testimony. Is the CEO's testimony likely to be admitted? No, because the testimony is hearsay not within any exception. No, because the evidence is not probative and material. Yes, because the evidence does not constitute hearsay. Yes, because the probative value outweighs any danger of unfair prejudice.

Answer choice B is correct. Evidence must be relevant to be admissible. Evidence is relevant if it has a tendency to make a fact more or less probable than it would be without the evidence (i.e., probative) and the fact is of consequence in determining the action (i.e., material). In this case, the employer stipulated that the employee performed her job in a satisfactory manner, and the sole fact at issue was whether the employee was an at-will or contract employee. Thus, the testimony is not relevant to any fact at issue. Answer choice A is incorrect because the CEO's statement was a statement of a party-opponent, and thus qualifies as nonhearsay. Answer choice C is incorrect because, although the evidence was nonhearsay, it is not admissible because it is not relevant. Answer choice D is incorrect because the evidence was not probative of any fact at issue in the case. Moreover, it misstates the standard for admission of relevant evidence under Rule 403, which permits the exclusion of relevant evidence where the probative value is substantially outweighed by the danger of unfair prejudice, among other factors.

The driver of a truck was involved in an accident with a car driven by a citizen of a foreign country. The truck driver filed suit in a federal district court in the state in which the accident occurred, where the truck driver was domiciled. The driver of the car was a permanent legal resident of the United States and was domiciled in this state as well. The truck driver alleged damages of $35,000 in good faith due to personal injuries and damages of an additional $50,000 due to property losses. As permitted by state law under a direct action statute, the suit named only the insurer of the car as a defendant. The insurer was incorporated in a neighboring state and had its headquarters in a distant state. The insurer timely moved to dismiss the action due to lack of subject-matter jurisdiction. How should the court rule on this motion? Answer Choices: Grant the motion, because alienage jurisdiction does not exist. Grant the motion, because diversity of citizenship does not exist. Deny the motion, because the amount in controversy exceeds $75,000. Deny the motion, because the insurer is not a citizen of the forum state.

Answer choice B is correct. In order for subject-matter jurisdiction to exist in an action based on state law, the action must satisfy both the amount-in-controversy requirement and the diversity requirement. Here, the action satisfies the amount-in-controversy requirement, since the plaintiff is permitted to aggregate personal injury and property loss that arises from the incident in question. The aggregated amount, of $85,000 ($35,000 + $50,000), exceeds $75,000. But, the action does not meet the diversity requirement. As a corporation, the insurer is a citizen of the state of its incorporation and also a citizen of the state of its principal place of business. However, an insurer is also deemed to be a citizen of the insured's state when the insurer is sued in a direct action. Here, the insured's state is the forum state for purposes of diversity jurisdiction because the insured is a lawful permanent resident of the United States domiciled in the forum state. Consequently, diversity jurisdiction does not exist between the plaintiff-truck driver and the defendant-insurer. Answer choice A is incorrect because this is not an action between the truck driver and the driver of the car, but a direct action against the insurer, a United States corporation. Answer choice C is incorrect because, even though the amount-in-controversy requirement is met, the court does not have subject-matter jurisdiction over the action because the diversity requirement is not. Answer choice D is incorrect because an insurer is treated as a citizen of the state in which its insured is a citizen. Here, the insured is treated as a citizen of the forum state because the insured is a lawful permanent resident of the United States who is domiciled in the forum state. Consequently, diversity jurisdiction does not exist between the plaintiff-truck driver and the defendant-insurer.

Eleven years ago, the owner of a condominium unit located in another state, upon his death, bequeathed the condominium unit to his wife for her life and then to their son. A year after the owner's death, the wife had a stroke that left her incapacitated. The son sought and was granted both personal and financial guardianship over his mother. Six months later the son suddenly died. By will, the son devised his real property to his daughter, who was unaware of the condominium unit and took no action with regard to it. The daughter assumed guardianship over her grandmother who remains alive but unable to care for herself. Shortly after the owner's death, the wife granted an acquaintance the right to occupy the condominium unit for the following month. At the end of that month, the acquaintance tried unsuccessfully to obtain the wife's permission to remain longer. Deciding to remain despite the lack of permission, the acquaintance, since that time, has resided in the unit, maintaining it as well as paying the annual condominium fees and real estate taxes on it. The applicable statutory period to acquire title by adverse possession is 10 years. The acquaintance brings an appropriate action to determine title to the condominium unit. What type of ownership interest in the condominium unit will the acquaintance be found to possess? Answer Choices: Fee simple absolute A life estate measured by the wife's life A remainder interest None

Answer choice B is correct. The acquaintance has adversely possessed the condominium unit for more than the requisite 10-year period. The acquaintance's possession is adverse, however, only as to any property owner with the current right to possess the unit at the time that the adverse possession began. Since only the wife's life estate was a current possessory interest at the time that the acquaintance's adverse possession began, the acquaintance is only entitled to her life estate. Answer choices A and C are incorrect. Since the daughter's remainder interest is not currently a possessory interest, the limitations period on the daughter's ability to bring an action to eject the acquaintance has not yet begun to run. Answer choice D is incorrect because, although the acquaintance originally entered the unit with the permission of the owner (i.e., the wife), the acquaintance's possession of the unit became adverse when the acquaintance decided to remain in the unit without such permission. While incapacity of the property owner at the time that the adverse possession begins will toll the statutory period during the period of incapacity, the wife's incapacity arose after the acquaintance's possession became adverse.

A farmer was diagnosed by his doctor with a terminal illness. Upon arriving home immediately after having received the news, the farmer wrote the following, "I, farmer, now transfer my farm, Blackacre, to my son." The farmer, who owned Blackacre in fee simple absolute, then signed and dated the document. The farmer neither discussed the document nor its contents with anyone else, but simply placed it with his personal papers. Soon thereafter, the farmer died. Among the farmer's personal papers, in addition to the document, was a will. The farmer had executed the will in compliance with the required formalities 10 years prior to his death. Under the terms of the will, the farm was devised to the farmer's daughter. The daughter and son were the farmer's only heirs. After learning of the document and the will, the son and daughter each claimed ownership of Blackacre outright. In an appropriate action to determine ownership of the farm filed by the personal representative of the farmer's estate after admission of the will to probate, who is entitled to ownership of the farm? Answer Choices: The daughter, because the unwitnessed document is not a valid deed and therefore the farm passed to her by the terms of the will. The daughter, because the document, which was neither delivered to nor accepted by the son prior to the farmer's death, was not a valid deed and therefore the farm passed to her by the terms of the will. The son, because the document was a deed that took effect during the farmer's lifetime. The son, because the document was executed after the will and therefore superseded the will.

Answer choice B is correct. The document, although valid as a deed, did not operate to transfer the farm to the son because there was no delivery. By keeping the deed in his possession until his death, the farmer retained the right to revoke it. Answer choice A is incorrect because, unlike a will, a deed need not be witnessed in order to be valid. Answer choice C is incorrect because, as noted with regard to answer choice B, the document did not operate as a deed to transfer title to the farm to the son because of the lack of delivery. Answer choice D is incorrect because the fact that the deed was executed after the will does not give it priority over the will. In addition, as noted with regard to answer choice B, mere execution of a deed is not sufficient to transfer title; delivery and acceptance are also required.

When a mortgagor defaulted on her loan obligation, the bank forced a foreclosure sale. Among the claims on the sale proceeds were attorney's fees associated with the foreclosure sale, the unpaid portion of the bank loan associated with the mortgage five years ago, and a debt owed by the mortgagor to a contractor who had recently performed work on the property. The original purchase-money mortgage had previously been paid off. All creditors filed claims in the appropriate court to receive the funds of the foreclosure in satisfaction of the debt. Within the state, none of the interested parties were afforded additional rights or liens on the property other than those regulating regular foreclosure actions. What is the appropriate order of the application of the money from the foreclosure sale to these debtors? Answer Choices: Contractor, Bank, Attorney Attorney, Bank, Contractor Bank, Attorney, Contractor Bank, Contractor, Attorney

Answer choice B is correct. The money from a foreclosure sale is applied first to the costs associated with the foreclosure sale itself (which would include attorney's fees), second to the mortgage obligation being foreclosed, and finally to the mortgage obligations owed to all junior interest holders. When multiple interests must be paid out of the proceeds, generally, the earliest mortgage placed on the property has priority over the other interests. The answer that correctly lists this order of priority is answer choice B. Answer choice A is incorrect because the attorney should be paid before the bank, which should be paid before the contractor. Answer choice C is incorrect because the attorney should be paid before the bank. Answer choice D is incorrect because it does not list the correct order of priority.

In a valid contract, the plaintiff promised to pay the defendant $87,000 to fumigate the plaintiff's commercial office building within seven days to stop a major insect infestation. The defendant performed the fumigation, and plaintiff paid the $87,000. Two months later, the plaintiff filed a complaint in the State A federal district court, making three main allegations. First, "Plaintiff is a State Z citizen, Defendant is a State A citizen, the amount in controversy is $87,000, and the court has diversity jurisdiction." Second, "Defendant breached its contract with Plaintiff (copy attached) by failing to render adequate performance, and Plaintiff has been unable to sell his commercial office building." Third, "Plaintiff demands judgment of $87,000, the amount Plaintiff lost as a result of Defendant's breach." What would be the defendant's best response? Answer Choices: Filing a Rule 12(b) motion to dismiss for lack of subject matter jurisdiction. Filing a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted. Filing an answer denying the plaintiff's allegation that the defendant breached the contract. Filing a motion for summary judgment on the grounds that there is no genuine issue of material fact and that the defendant is entitled to judgment as a matter of law.

Answer choice B is correct. The plaintiff has failed to allege facts sufficient to support a cognizable legal claim. Rather, the plaintiff has simply made the conclusory assertion that the defendant breached the contract by failing to perform adequately, without setting forth any facts explaining why the performance is inadequate under the contract. The fact that the plaintiff has been unable to sell his building is irrelevant, as this inability might reflect any number of factors unrelated to the quality of the building fumigation (such as a poor economy or an unreasonably high asking price). Answer choice A is incorrect because the facts alleged, if true, establish subject matter jurisdiction (diversity of citizenship). Answer choice C is incorrect because the defendant's best response would be to obtain a motion to dismiss, rather than to answer the claim and become mired in a lawsuit (even though an answer would be a lawful option). Answer choice D is incorrect because a summary judgment motion would be appropriate only if matters outside the pleadings had been introduced.

In a bicycle race with a $5,000 prize for the winner, a cyclist was leading by a significant margin. A spectator at the race was married to the second place rider. Sensing that her husband would not win unless she took action, the spectator drove to a point two miles ahead on the course, scattered several nails in the middle of the course, and then left the area. Soon thereafter, the cyclist approached the area and noticed the nails. He attempted to swerve around the obstruction but a nail punctured his tire. He fell off his bike, suffered significant physical injuries, and was unable to complete the race. If the cyclist sues the spectator, under what theory is the cyclist least likely to recover maximum punitive damages? Answer Choices: Assault Intentional infliction of emotional distress Trespass to chattels Battery

Answer choice B is correct. To sustain a claim of intentional infliction of emotional distress, a plaintiff must prove that the defendant intended to cause severe emotional distress, or acted with recklessness as to the risk of causing such distress. The claimed conduct must be extreme and outrageous, and the plaintiff must suffer severe emotional distress. Here, there is no factual evidence that the bicyclist suffered severe emotional distress. A plaintiff can recover punitive damages in assault, battery, and trespass to chattels claims, if the defendant's behavior is willful and wanton, reckless, or if the defendant acted with malice. Here, the facts suggest such a situation, as the spectator was attempting to knock the cyclist out of the race. For these reasons, answers A, C, and D are incorrect.

In reporting on the death of a city official whose bullet-ridden body was found in a barren apartment, a newspaper attributed the death to a "drug deal that went sour." The newspaper reporter who filed the report had serious doubts about the official's involvement with drugs. Later, the newspaper determined that the official neither used nor sold illegal drugs, but instead was killed because he had been involved in a fraud scheme that went awry. The executor of the official's estate brought an action for defamation against the newspaper. The executor is unable to establish special damages. Who will prevail? Answer Choices: The executor, because presumed damages are permitted for a libel action. The executor, because the newspaper acted with malice. The newspaper, because the city official was dead. The newspaper, because the statement regarding the city official's involvement in criminal activity was substantially true.

Answer choice C is correct. A deceased person cannot legally be defamed. The estate of the deceased official cannot maintain an action for defamation because the defamatory statement was made after the official's death. Answer choice A is incorrect, because, even though presumed damages are permitted in a libel action, there is no basis for an action under these facts. Answer choice B is incorrect because, even though the newspaper acted with a reckless disregard for the truth of its statement about the official's involvement in illegal drug activity, which is sufficient to constitute malice, the statement was made about a deceased person. Answer choice D is incorrect because a statement that a person has engaged in conduct that is substantially different from the conduct in which the person did in fact engage, such as different kinds of crime, is not considered to be true.

An indigent defendant was indicted for driving under the influence of alcohol, a misdemeanor. The lawyer who had been appointed to represent the defendant suffered a fatal heart attack on his way to the courthouse on the day scheduled for the trial. In discussing the absence of the defendant's lawyer with the defendant, the trial judge learned from the defendant that he intended to plead guilty. The judge indicated that, in exchange for the defendant's guilty plea, the defendant would not serve time in prison. The defendant agreed and was sentenced to two months in prison, with the sentence suspended. The defendant appealed his conviction, contending that he was denied his Sixth Amendment right to counsel at trial. Should the judge reverse the defendant's conviction? Answer Choices: No, because the defendant was convicted of a misdemeanor. No, because the defendant's prison sentence was suspended. Yes, because the defendant was convicted of a crime for which a sentence of incarceration was imposed. Yes, because the defendant was convicted of a crime that was punishable by imprisonment.

Answer choice C is correct. A defendant has the right to the assistance of counsel at any trial that results in a sentence of incarceration, even when that sentence is suspended. Answer choice A is incorrect because even a misdemeanor that results in a sentence involving incarceration requires the assistance of counsel. Answer choice B is incorrect because the fact that the sentence was suspended does not eliminate the requirement that defense counsel be provided. Answer choice D is incorrect because assistance of counsel is not required for a crime that is punishable by imprisonment as long as that punishment is not imposed

An organization against drunk driving sought permission from the owner of a mall to pass out leaflets in favor of tougher drunk driving laws in front of a liquor store. The mall owner denied the organization permission. The organization, filing an action in an appropriate court, sought an injunction permitting the organization to pass out its leaflets in accord with its free speech rights. The state's highest court, interpreting the state constitution, permits the exercise of free speech rights on private property that is regularly held open to the public. Of the following reasons, which is the best argument for granting the injunction? Leafleting is a form of speech that is protected by the First Amendment of the United States Constitution. The reason for leafleting was related to the place where the organization sought to leaflet. The leafleting was permitted by the state constitution. By admitting members of the general public, the mall constituted a limited public forum.

Answer choice C is correct. Although, for the reasons discussed below, the First Amendment to the United State Constitution does not require the mall owner to permit leafleting in this instance, the state constitution as interpreted by the state's highest court does. A state may expand, but cannot contract, individual rights, such as free speech, granted by the United States Constitution. Answer choice A is incorrect because, although leafleting is a form of speech that enjoys First Amendment protection, such protection does not extend to leafleting on private property, even private property that is open to the public such as a mall. Answer choice B is incorrect because the fact that the purpose for leafleting has a logical relationship to the location where the leafleting is to be conducted does not trigger First Amendment protection of the leafleting, where that location is private property. Answer choice D is incorrect because, as noted with respect to answer choice A, the opening of private property to the public does not convert it into a public or limited public forum at which leafleting must be permitted despite the objection of the owner of the property.

A man and his girlfriend spent the afternoon at the beach, where each of them consumed a significant quantity of alcohol. The man saw one of the town's wealthiest residents arrive at the beach, spread out a beach towel, put down a large cloth bag on the towel, drop what looked like a wallet into the bag, and run into the ocean. The man told his girlfriend what he had seen the wealthy man do. She didn't respond, but walked over to the bag and opened it. The bag did not contain the man's wallet, but it did contain an expensive ring. She took the ring, and closed the bag. The wealthy man's companion, who was just coming onto the beach, observed the girlfriend's actions. The girlfriend was arrested. Soon thereafter, the man was arrested as well. The man is charged with conspiracy to commit larceny, among other crimes. The applicable jurisdiction has adopted a conspiracy statute based on the Model Penal Code. Which of the following is the weakest argument that the man can advance in defense of the charge? The man's statement to his girlfriend was inadequate to form a conspiracy agreement. The theft of the ring was beyond the scope of the conspiracy. The man did not perform an overt act to advance the conspiracy. The man's intoxicated state prevented him from forming the intent necessary to commit the crime.

Answer choice C is correct. An overt act need not necessarily be performed by the defendant, but may be performed by any party to the conspiracy. The girlfriend's act of searching through the wealthy man's bag suffices. Answer choice A is incorrect because, even though the jurisdiction has adopted a unilateral approach to conspiracy, the defendant must agree to commit an unlawful act in order to be convicted of conspiracy. Here, the man's mere recounting of his observations would likely be insufficient to establish such agreement. Answer choice B is incorrect because under the Model Penal Code, a member of a conspiracy is not liable for a crime unless he aids and abets in its commission. This differs from the majority rule, in which a conspirator can be convicted of both the offense of conspiracy and all substantive crimes committed by any other co-conspirators acting in furtherance of the conspiracy. Here, because the Model Penal Code is in effect, the man could argue that he did not aid or abet in stealing the wealthy man's ring. Answer choice D is incorrect because conspiracy is a specific intent crime for which voluntary intoxication may be a defense.

A defendant was charged with the sale of narcotics. At his trial, the prosecution planned on calling as witnesses the police officer who investigated the crime, an eyewitness to the crime, a desk officer to testify regarding chain of custody, and a former co-defendant who had reached a plea agreement with the prosecution. The defendant demanded, as a matter of right, that each of these individuals be excluded from the courtroom to prevent them from hearing the testimony of the other witnesses. The prosecution objected to removing any of these individuals from the courtroom. Which of the following individuals should the judge order be removed from the courtroom? The eyewitness only. The eyewitness and the former co-defendant only. The eyewitness, the former co-defendant, and the desk officer, but not the investigating officer. The eyewitness, the former co-defendant, the desk officer, and the investigating officer.

Answer choice C is correct. At a party's request, the court must order the exclusion of a witness from the courtroom so that the party cannot hear the testimony of the other witnesses, unless an exception applies. There is an exception for a person whose presence is essential to the presentation of a party's case, such as the police officer in charge of investigating a criminal case. Answer choices A and B are incorrect because there is no exception for an eyewitness, a former co-defendant, or an officer who testifies as to chain of custody. Accordingly, these individuals must be removed from the courtroom if so requested by the defendant. Answer choice D is incorrect because it would wrongfully exclude the investigating officer, whose presence is essential to the presentation of the prosecution's case.

A woman took her car to an unscrupulous auto mechanic's garage for a tune-up. The woman's car had a new and expensive set of tires that the mechanic coveted. The woman left her car at the garage overnight. Later that night, after the woman had left the premises, the mechanic took the tires off the woman's car, put them into a back room of his garage, and replaced the tires with a cheap, old set. That same evening, the woman's friend told her about the mechanic's unscrupulous nature, and that he had a habit of stealing tires. The woman went back to the garage the next morning. Noticing that the tires on her vehicle were different, she demanded that the new, expensive tires be put back on the vehicle. The mechanic complied, and the woman left the premises. The woman reported the mechanic to the police, and the mechanic is charged with larceny. Based on the foregoing facts, should he be convicted of the crime? Answer Choices: Yes, because the mechanic moved the tires from the car to the back room. Yes, because the mechanic had a present intent to permanently deprive the woman of the tires. No, because the car was left with the mechanic by consent. No, because the tires were returned to the woman before she was permanently deprived of them.

Answer choice C is correct. For a larceny, the initial taking and asportation of another's property must be trespassory; that is, the defendant must not be legally entrusted with the property. Here, the woman entrusted the mechanic with her vehicle (and the tires on the vehicle). Thus, the initial taking of the tires was not trespassory, and the mechanic's crime was embezzlement, not larceny. Answer choices A and B are incorrect because, while both correctly apply elements of larceny, they incorrectly state that the mechanic should be convicted. Because the mechanic had the intention of permanently depriving the woman of the tires at the time of the taking, answer choice D is incorrect. That he later returned them to the woman is of no matter.

A law makes it a crime to "knowingly sell, distribute, or barter a sexually explicit film featuring actors younger than the age of majority." The owner of an adult video store sold explicit videos in her store that featured 18-year-old actors, but she took reasonable steps to ensure that no videos featuring younger actors were sold in her store. The video store owner, however, incorrectly believed that the age of majority in the jurisdiction was 18; in fact, the age of majority was 19 years old. The owner was arrested and charged with violating the statute in a jurisdiction that has adopted the Model Penal Code. The prosecution does not contest that her error was made honestly. Should she nonetheless be convicted? Yes, because the owner's error was a mistake of law, which is not a valid defense. Yes, because the owner knowingly sold the illegal videos. No, because the owner's error negated the requisite mens rea. No, because the owner's conscious objective was not to engage in selling the illicit videos.

Answer choice C is correct. If a statute does not state the culpable mind applicable to all material elements of the crime, then the mens rea applicable to one material element is applicable to all material elements unless a contrary purpose plainly appears. Consequently, the "knowingly" state of mind is applied to both the "sell, distribute, or barter a sexually explicit film" element and the "featuring actors younger than the age of majority" element. Here, the store owner subjectively did not know that the videos she was selling featured performers below the age of majority; thus, she cannot be convicted under the statute. For the foregoing reasons, answer choice B is incorrect. Answer choice A is incorrect because an honest mistake of law can be a valid defense when the mistake negates the required intent. Answer choice D is incorrect because it applies the "purposely" mental state, when "knowingly," a lesser mental state, is the mens rea required by the statute.

A defendant is on trial for robbery. A witness picked the defendant's picture out of a photo array that was conducted by a police officer at the police station after the defendant's arrest. The photo array was impermissibly suggestive. No counsel was present for the defendant at the photo array. Later, at trial, the witness identified the defendant. Because of the witness's extended opportunity to view the defendant at the time of the crime, this identification was reliable. The defendant moves to suppress the identification. Should the court grant this motion? Answer Choices: Yes, because the defendant's right to counsel was violated. Yes, because the identification procedure was impermissibly suggestive. No, because the identification was reliable. No, because the photo array was conducted by a police officer at a police station.

Answer choice C is correct. In order for a witness to be prevented from identifying the defendant in court due to a previous impermissibly suggestive photo array, the defendant must demonstrate that there was a substantial likelihood of misidentification, which is not the case here. Answer choice A is incorrect because there is no right to counsel at a photo identification. Answer choice B is incorrect because, even though the identification procedure was impermissibly suggestive, the witness's in-court identification was reliable. Answer choice D is incorrect because neither the location of the photo array nor the identity of the person who conducted it is relevant to the issue of whether the witness's in-court identification of the defendant should be suppressed.

A physician entered into a written agreement to purchase land from his aunt. The agreement, which was secured by not only the land itself but also all future improvements, required the physician to make annual installment payments to the aunt. The deed from the aunt to the physician was recorded, but it made no mention of this agreement. The agreement itself was not recorded. The following year, the physician obtained a loan from the local bank to build a house on the land in exchange for a mortgage on the property and any structures built on it. The physician informed the bank about the agreement with his aunt. The bank required the aunt to sign an agreement subordinating her loan to the bank's loan. The mortgage agreement was recorded, but the agreement between the bank and the aunt was not recorded. After the house was built, a patient successfully sued the physician for malpractice. The judgment was promptly and properly recorded so that it became a lien against the residence of the physician. The patient was unaware of the physician's financial dealings with his aunt or the bank. The physician failed to make timely payments on the mortgage. In accord with the terms of the mortgage, the bank declared the full mortgage obligation due and properly foreclosed on the property. At the time of the foreclosure sale, which was properly conducted, the physician's outstanding balance with regard to the agreement with his aunt was $100,000, and with regard to the mortgage was $500,000. The total amount owed with respect to the judgment was $400,000. After expenses, the sale of the mortgaged property netted only $550,000. The applicable jurisdiction has the following two statutes: "Every conveyance not recorded is void as against any subsequent purchaser or mortgagee in good faith and for valuable consideration from the same vendor whose conveyance is first duly recorded." "Any judgment properly filed shall, for twelve years from filing, be a lien on the real property then owned or subsequently acquired by any person against whom the judgment is rendered." What is the amount due to the aunt from the sale? Answer Choices: $100,000, because the aunt's interest predated the other interests. $100,000, because the aunt's interest was a seller-financed purchase money security interest. $50,000, because the aunt's interest has priority over the patient's judgment lien, but not the bank's mortgage. Nothing, because both the patient's judgment lien and the bank's mortgage have priority over the aunt's interest.

Answer choice C is correct. The basic rule of "first in time, first in right" would entitle the aunt to $100,000 (answer choice A). In addition, the status of the aunt's interest as a seller-financed security interest would give the aunt first priority to the net proceeds from the foreclosure sale (answer choice B). However, because of the subordination agreement, the aunt's interest, which arises from the installment sale contract, takes a back seat to the bank's mortgage. The jurisdiction has a race-notice recording act, which protects subsequent purchasers from unrecorded installment sale contracts without notice. However, even though the patient obtained the lien without notice of the aunt's interest in the property, because the patient is the holder of a judgment lien, he is not treated as a purchaser protected by the recording act. Consequently, the aunt's interest, by preceding the judgment lien, has priority over it, but not over the bank's interest. Therefore, answer choice C, not D, is correct.

The owner of an undeveloped lot agrees to sell the lot to a buyer. The written agreement identifies the parties, describes the property in sufficient detail, specifies the price to be paid, and spells out the payment terms. The agreement is signed by the owner. In accord with the agreement, the buyer pays the required down payment to the owner. Subsequently, the buyer constructs a garage on the lot as the first step towards building a three-story residence, but, due to a financial reversal, abandons his construction efforts. May the seller bring an action to compel the buyer to complete the purchase? Answer Choices: No, because of the Statute of Frauds. No, because the owner's remedy at law is adequate. Yes, because of the doctrine of part performance. Yes, because of the doctrine of detrimental reliance.

Answer choice C is correct. The buyer's actions of paying a portion of the purchase price to the owner and constructing a garage on the lot (which constitutes a substantial improvement of the lot) are persuasive evidence that a contract between the parties exists. The doctrine of part performance may be asserted by either party to a land sales contract in order compel specific performance of the contract. Answer choice A is incorrect because, although the buyer did not sign the written agreement and otherwise would enjoy the protection of the Statute of Frauds, the buyer's actions with respect to the lot are sufficient to establish the existence of the contract through part performance. Answer choice B is incorrect because, although the owner's remedy at law (damages) is adequate, the owner is permitted to seek specific performance under the theory of mutuality of remedies. Answer choice D is incorrect because the facts do not indicate that the seller detrimentally relied on the buyer's agreement to purchase the property in a manner that would create a hardship.

An individual acquired a newly constructed house with a purchase money mortgage. Although the deed was recorded, through an oversight by the mortgagee, the mortgage was not. Several years later, the individual sold the house at its fair market value to a couple who obtained a purchase money mortgage through another mortgagee. Both the deed and the mortgage were recorded. Neither the couple nor the second mortgagee was aware of the prior mortgage. Shortly thereafter, the couple was killed in an accident, survived by their two young children. The couple did not leave a will. Under the law of intestate succession, the young children are the rightful heirs of their parents. The children's financial guardian, having been contacted by both mortgagees, has filed an appropriate action to determine ownership of the house. The jurisdiction is a lien state with regard to mortgages. In addition, the applicable recording act reads, "No conveyance or mortgage of real property shall be good against subsequent purchasers for value and without notice unless the same be recorded according to law." Who is entitled to priority with respect to the house? Answer Choices: First mortgagee, second mortgagee, children Second mortgagee, first mortgagee, children Second mortgagee, children, first mortgagee First mortgagee, children, second mortgagee

Answer choice C is correct. The recording statute is a notice statute. Since the second mortgage was given by the mortgagee without notice as to the first mortgage, it has priority over the first mortgage. A purchase money mortgagee is treated as having paid value for purposes of the recording act. In addition, since the second mortgage was given by the couple before their deaths, the children's claims to the property as heirs of their parents are junior to the second mortgage. The recording act would not be helpful to the children's claim because the second mortgage was recorded before their interests arose and because as heirs they are not purchasers for value protected by the act. With regard to the first mortgage, while the children as heirs are not protected by the act, they are protected under the shelter rule because their parents were entitled to priority over the first mortgage by virtue of acquiring the property without notice of that mortgage. For all these reasons, answer choices A, B, and D are incorrect.

A large manufacturer, seeking to trim costs, entered into an agreement with an outside contractor to provide its employees with "appropriate and safe workplace tools and equipment," and to maintain that equipment in safe working order. A rotary saw provided by the outside contractor malfunctioned as a result of improper maintenance, and severely injured one of the manufacturer's employees. The employee sued the manufacturer for negligence. Is the employee likely to succeed? Answer Choices: No, because the manufacturer was relieved of liability when it outsourced its activities to an independent contractor. No, because the manufacturer is free to subcontract functions that are not inherently dangerous. Yes, because a principal remains simultaneously liable for the torts of its independent contractor. Yes, because workplace safety is uniquely the responsibility of the manufacturer.

Answer choice D is correct. A company's duty to ensure the safety of its workforce is a critical function, and, therefore, a non-delegable duty. Consequently, the manufacturer's decision to outsource its equipment-supplying functions will not relieve it of liability associated with the negligent furnishing of faulty equipment. Answer choice A is incorrect for that reason. Answer choice B is incorrect because inherently dangerous activities are only one subset of non-delegable duties. Answer choice C is incorrect because employers are not liable for the torts of true independent contractors, except where (i) an employer is negligent in selecting an independent contractor, (ii) the function is inherently dangerous, (iii) the employer is a storekeeper or operator of premises open to the public and has the duty to keep the premises in a reasonably safe condition, or (iv) as in this case, the function is non-delegable.

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

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

A witness who was not a defendant invoked his Fifth Amendment right to remain silent during a federal criminal trial for insider trading. After being given derivative-use immunity, the witness testified. Several weeks later, the witness was a defendant in a state-law civil fraud proceeding based on his previous testimony in the federal trial. He moved to dismiss the case on the grounds that the previous grant of immunity protected him against a future action against him. Will the defendant's motion be granted? Yes, because a grant of immunity can be given to a witness who is not a defendant. Yes, because the defendant was given derivative-use immunity. No, because the defendant's immunity was limited to federal prosecution. No, because the defendant's immunity does not extend to a subsequent civil trial.

Answer choice D is correct. Derivative-use immunity protects a witness from the use of the witness's own testimony, or any evidence derived from that testimony, against the witness in a subsequent prosecution, but does not protect him from its use in a civil suit. Answer choice A is incorrect because, while it is true that a witness need not be a defendant in order to be given immunity, such immunity does not extend to use of the witness's testimony at a subsequent civil trial. Answer choice B is incorrect because immunity, whether transactional or derivative-use immunity, does not apply to subsequent civil actions. Answer choice C is incorrect because immunity is not limited to federal prosecution despite the "separate sovereignty" doctrine. However, it is limited to criminal prosecutions.

An adult woman was vacationing at a friend's house on a lake. One afternoon, the woman watched her friend maneuver his motorized personal watercraft around the lake; the friend took a particularly violent spill that temporarily knocked the wind out of him but left him otherwise unharmed. The next morning, without the friend's knowledge, she decided to take the personal watercraft out on the lake herself. Due to her inability to control the vehicle, it flipped over. As a consequence, the woman suffered serious physical injuries. The woman brought a lawsuit against the friend to recover damages for her injuries. The applicable jurisdiction has adopted comparative negligence rules. Prior to the submission of the case to the jury, the friend requested that the court specifically instruct the jury on the assumption of the risk defense. Should the court grant this request? Answer Choices: Yes, because the woman voluntarily assumed the risk of being injured. Yes, because assumption of the risk is an absolute bar to recovery. No, because the defendant did not have the requisite knowledge for this defense. No, because assumption of the risk is not recognized as a separate defense.

Answer choice D is correct. In a comparative negligence jurisdiction, assumption of the risk is not recognized as a separate defense—it has been merged into the comparative-fault analysis and merely reduces recovery. The plaintiff's awareness of the risk of her conduct is generally taken into account in determining the degree to which she is at fault, but it can also be considered in determining the reasonableness of the plaintiff's or the defendant's actions. Answer choice A is incorrect because, even assuming that the woman did voluntarily assume that risk, such a defense is not recognized as a separate defense in a comparative negligence jurisdiction. Answer choice B is incorrect because assumption of the risk is only an absolute bar to recovery in a contributory negligence jurisdiction, not a comparative negligence jurisdiction. Answer choice C is incorrect because assumption of the risk requires the plaintiff, not the defendant, to be aware of the risks of the plaintiff's conduct.

Congress has enacted many laws regulating navigation generally, but not regarding the specific subject of water pollution by ships sailing on navigable bodies of water. A state enacted a law prohibiting any ship from discharging specified pollutants, including oil, into the navigable waterways of the state. Violation of the law was punishable by fines based on the amount of the discharge. The law is necessary to the important state interest of preventing pollution; there are no reasonable alternatives available. In addition, the benefits of the law to the state outweigh the burdens it imposes on interstate commerce. A ship owner from another state is fined pursuant to this law for discharging oil into a waterway in the state. Will the ship owner's challenge to the state law as unconstitutional be successful? Answer Choices: Yes, because the law regulates interstate commerce, which may be regulated only by Congress. Yes, because the fine constitutes an impermissible ad valorem tax. No, because the law is necessary to the important state interest of preventing pollution and there are no reasonable alternatives available. No, because the law does not discriminate against interstate commerce and does not impose an undue burden on interstate commerce.

Answer choice D is correct. The Dormant Commerce Clause requires that a state law not discriminate against out-of-state commerce and not constitute an undue burden on interstate commerce. The law in question satisfies these two requirements. Answer choice A is incorrect because although Congress has the power to regulate interstate commerce, if Congress has not acted with respect to a particular aspect of interstate commerce, a state may regulate that aspect. Answer choice B is incorrect because the law imposes a fine, not a tax. Even if the fine were construed to constitute a tax, it is not assessed on the value of property, and therefore is not an ad valorem tax. Answer choice C is incorrect because, since the law does not discriminate against out-of-state commerce, it is irrelevant that the law satisfies the exception that permits discriminatory laws if they are necessary to an important state interest.

A father was an avid golfer who often practiced chipping the ball in his backyard. To facilitate this practice, he always left a golf club, a wedge, and a bucket of golf balls inside the house next to the back door. One afternoon, the father's 15-year-old son—an experienced golfer—came home from school, saw the golf club next to the back door, and decided to take some practice swings. On the son's second swing, the golf club slipped out of his hands, flew into the next yard, and struck a neighbor in the head. The neighbor collapsed in pain, and was later diagnosed with a concussion. If the neighbor sues the father for his son's actions, which party should prevail? Answer Choices: The neighbor, because the son breached his duty of care for a child his age. The neighbor, because the father is vicariously liable. The father, because he had no duty to supervise his son. The father, because his actions were reasonable.

Answer choice D is correct. The father is not liable because his actions were reasonable. The son was an experienced golfer of an advanced age, and the activity of swinging the golf club is unlikely to be considered a particularly dangerous activity. Thus, a reasonable person under similar circumstances would be unlikely to take precautionary measures to restrict the son's access to the golf club or to supervise his use of it. Answer choice A is incorrect because, while the son's failure to maintain a proper grip on the golf club constituted a breach of the duty of care for a child of his age and experience, this failure is not imputed to his father. Answer choice B is an incorrect statement of the law; a parent is not vicariously liable for a child's torts. Answer choice C is incorrect because a parent continues to have a duty to supervise a child until the child reaches the age of majority. However, as noted with respect to answer choice D, the father did not breach that duty.

A man decided to master the art of throwing knives. He practiced for several years, until he had perfected his skills and was able to hit a spot no larger than a dime with confidence. After demonstrating his prowess to a friend, the man convinced the friend to stand against a wall while the man threw knives at her. The man threw three knives extremely close to the friend, but the fourth knife struck the friend, injuring her slightly. Although the friend's injury was minor, unbeknownst to the man, she had a rare blood disorder that caused her to bleed to death. The crimes below are listed in ascending order of seriousness. What is the most serious common law crime for which the man can be convicted? Answer Choices: Battery Involuntary manslaughter Voluntary manslaughter Murder

Answer choice D is correct. The man may be convicted of depraved heart murder. Depraved heart murder is a killing that results when the defendant acts with reckless indifference to a known and unjustifiably high risk. For this type of murder, the man need not have had the intent to cause either death or serious bodily injury. The woman's consent to the act that led to her death is not a defense. Nor is the fact that the woman's death would not have happened but for her rare medical condition, or the man's lack of awareness of that condition. Because the man may be convicted of murder, the less serious crimes listed in answer choices A, B, and C are incorrect.

A borrower owed a substantial sum of money to an unsavory lender. One afternoon, the lender knocked on the borrower's door. When the borrower opened the door, the lender was holding a baseball bat and said, "If you don't get me the money you owe within the next two hours, I'll break your legs." The borrower was extremely frightened, and immediately gave the lender the cash needed to satisfy the debt. If the borrower later sues the lender for assault, will the borrower prevail? Answer Choices: Yes, because the lender threatened the borrower with harmful or offensive bodily contact. Yes, because the lender intended to place the borrower in apprehension of harmful or offensive bodily contact. No, because the lender's words alone cannot give rise to an assault claim. No, because the lender gave the borrower two hours to deliver the money.

Answer choice D is correct. To recover for assault, a plaintiff must prove that the defendant's intentional action or threat caused the plaintiff to experience reasonable apprehension of an imminent harmful or offensive bodily contact. Here, the lender threatened the borrower with harm two hours later in time; thus, the threatened harmful bodily contact was not imminent, and an assault claim cannot prevail. Answer choice A is incorrect because although the lender threatened the borrower with harmful or offensive bodily contact, the threat was not imminent. Answer choice B is incorrect because while the lender intended to place the borrower in apprehension of harmful or offensive bodily contact, the requisite intent for assault, the lender's words and conduct did not create the apprehension of an imminent contact. Answer choice C is incorrect because, while words alone generally do not constitute an assault, they may be sufficient if coupled with conduct or other circumstances. The lender's words along with his conduct (i.e., carrying a baseball bat) are sufficient to constitute an assault.

A defendant was convicted of bank robbery in federal court. Subsequently, the defendant was indicted in the state where the bank was located for the crimes of robbery and conspiracy to commit robbery. The defendant moved to dismiss the state prosecution of these offenses on double jeopardy grounds. Should the defendant's motion be granted? Answer Choices: Yes, as to both offenses. Yes, as to the robbery offense only. Yes, as to the conspiracy offense only. No, as to either offense.

Answer choice D is correct. Under the "Dual Sovereignty" doctrine, prosecution of a defendant by the federal government for a crime arising out of an event does not prevent a state from prosecuting the defendant for a crime arising out of the same event. (Note: Under this doctrine, the reverse is also true.) Under Blockburger, robbery and conspiracy to commit robbery are separate offenses. Each contains an element that the other does not. Consequently, prosecution of the defendant for either robbery or conspiracy to commit robbery by the state is not prohibited by double jeopardy. For these reasons, answer choices A, B, and C are incorrect.

Under his will, a bachelor devises his farm to his brother. The language of the devise makes no mention of the need of the brother to survive the testator. The will contains a residuary clause that leaves all property not otherwise devised by the will to the bachelor's sister. The bachelor's brother dies more than a year before the bachelor, but the brother has two children, both of whom survive the bachelor. There is an anti-lapse statute that applies to a devise by a testator to a relative who is a descendant of the testator, of the testator's parents, or of the testator's grandparents. Are the brother's children entitled to their uncle's farm? No, because their father did not survive his brother. No, because the will contained a residuary clause. Yes, because the language of the will did not require the brother to survive the testator. Yes, because the anti-lapse statute operates to save the lapsed devise.

Answer choice D is correct. Under the common law, a devise to a beneficiary who predeceases the testator lapses. An anti-lapse statute can operate to prevent the devise from lapse. In this instance, the anti-lapse statute applies because the brother is a descendant of the testator's parents and he left children who survived the testator. Consequently, the farm passes to the brother's children. Answer choice A is incorrect because, as noted with regard to answer choice D, the common law rule of lapse, which requires the beneficiary under a will to survive the testator in order to be entitled to a devise, is superseded by the anti-lapse statute with respect to the devise of the farm. Answer choice B is incorrect because the residuary clause only applies to property that otherwise does not pass under the terms of the will. In this instance, the devise of the farm to the brother is effective under the anti-lapse statute to pass the farm to the brother's children. In addition, a residuary clause does not create an alternative taker who is entitled to take the property because of the death of the primary beneficiary. Answer choice C is incorrect because the lapse rule is the default rule unless the anti-lapse statute applies. In order to overcome the presumption of lapse, the will must contain language that clearly indicates the testator's intent that the devise survive the beneficiary's death.

A plaintiff sued a defendant for state law negligence in a federal district court sitting in diversity jurisdiction. The plaintiff was injured after tripping and falling at the defendant's place of business and is seeking damages for injuries resulting from the fall. The defendant has liability insurance that would cover any judgment that the plaintiff might win in the case. There have been no agreements between the parties or orders by the court regarding discovery in the case. What is the defendant's obligation with regard to the disclosure of the defendant's liability insurance? Answer Choices: The defendant's liability insurance agreement is not subject to discovery. The defendant need only provide a copy of the liability insurance agreement to the plaintiff if the plaintiff makes a request for production of documents concerning such agreements. The defendant need only provide information to the plaintiff concerning any insurance agreement if the insurer is joined as a party to the litigation. The defendant must make the insurance agreement available to the plaintiff even if the plaintiff does not ask for it.

Answer choice D is correct. Unless otherwise agreed by stipulation or ordered by the court, each party must provide to the other parties for inspection and copying, any insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment. Accordingly, the defendant is required to make the insurance agreement available to the plaintiff even if the plaintiff does not ask for it. Answer choice A is incorrect. As explained above, the insurance agreement is subject to the mandatory disclosure requirements. Answer choice B is incorrect. Even in the absence of a request for production of documents, the defendant is required to make available the liability insurance agreement under the mandatory disclosure requirements. Answer choice C is incorrect. The defendant must provide the plaintiff with any insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment. Accordingly, even if the insurer is not joined as a party to the litigation, the defendant is required to provide the agreement to the plaintiff.