MLA MCQ
While attending an amusement park's fireworks display, a spectator was struck and injured by a rocket set off as part of the display. The rocket unexpectedly failed to shoot upward but instead followed a trajectory parallel to the ground and struck the spectator. The spectator has sued the amusement park for damages. On which of the following theories is the spectator most likely to be able to obtain a summary judgment as to liability? A: Abnormally dangerous activity. B: Battery. C: Nuisance. D: Strict products liability.
A: Abnormally dangerous activity. A is correct. Even though the spectator might not obtain summary judgment on a claim of liability for an abnormally dangerous activity, of the choices given, it provides the spectator with the best chance of doing so. Historically, fireworks have been considered to be an abnormally dangerous activity; that is, an activity that poses a high risk of physical harm that cannot be eliminated even when all actors are reasonably careful.
A merchant from State A sued a banker from State B in the federal district court of State A on a state law claim that arose in State A, where most of the evidence remains. The banker moved for a change of venue to the federal district court of State B. The merchant opposed the banker's motion to change venue. There is only one federal district court located in State A and one federal district court located in State B. Under State A's choice-of-law principles, State A law will govern the claim. Had the suit been filed in State B, under State B's choice-of-law principles, State B law would have governed the claim. Should the federal district court in State A grant the banker's motion to transfer? A: No, because State A is the merchant's choice of forum, it is a proper venue, State A law applies, and most of the evidence is located in State A. B: No, because the district court of State B is an improper venue, and the merchant has not consented to it. C: Yes, because the district court of State B is a proper venue given that the defendant resides in State B. D: Yes, because venue is proper in State B, and State B law governs the claim under State B choice of law principles.
A: No, because State A is the merchant's choice of forum, it is a proper venue, State A law applies, and most of the evidence is located in State A. A is correct. The court should deny the banker's motion to transfer because State A is where a substantial part of the claim arose and is thus a proper venue. In this scenario, the court's decision to transfer to another proper venue is discretionary based on the convenience of the parties and witnesses and the interest of justice. Here, State A law would apply. A court sitting in State A would be more familiar with State A substantive law and most of the evidence is present in State A.
An entrepreneur from State A decided to sell hot sauce to the public, labeling it "Best Hot Sauce." A company incorporated in State B and headquartered in State C sued the entrepreneur in federal court in State C. The complaint sought $50,000 in damages and alleged that the entrepreneur's use of the name "Best Hot Sauce" infringed the company's federal trademark. The entrepreneur filed an answer denying the allegations, and the parties began discovery. Six months later, the entrepreneur moved to dismiss for lack of subject-matter jurisdiction. Should the court grant the entrepreneur's motion? A: No, because the company's claim arises under federal law. B: No, because the entrepreneur waived the right to challenge subject-matter jurisdiction by not raising the issue initially by motion or in the answer. C: Yes, because although the claim arises under federal law, the amount in controversy is not satisfied. D: Yes, because although there is diversity, the amount in controversy is not satisfied.
A: No, because the company's claim arises under federal law. A is correct. The claim asserts federal trademark infringement, and therefore it arises under federal law. Subjectmatter jurisdiction is proper under 28 U.S.C. § 1331 as a general federal-question action. That statute requires no minimum amount in controversy, so the amount the company seeks is irrelevant.
A dentist was anesthetizing a patient's jaw before pulling a tooth. Although the dentist used due care, the hypodermic needle broke off in the patient's gum tissue, causing injury. The needle broke because of a manufacturing defect that the dentist could not have detected. Is the patient likely to recover damages in an action against the dentist based on strict products liability and malpractice? A: No, on neither basis. B: Yes, based on malpractice, but not on strict products liability. C: Yes, based on strict products liability, but not on malpractice. D: Yes, on both bases.
A: No, on neither basis. A is correct. The strict products liability suit would fail because the dentist was not in the business of selling the product, and thus he is not a commercial supplier of the needles. Rather, he is a service provider. The malpractice suit would fail because the plaintiff could not establish that the defendant departed from the professional standard of care
A passenger domiciled in State A has brought a federal diversity action in State A against a railroad, seeking damages for injuries suffered when the railroad's train, which the passenger boarded in State A, derailed in State B. The railroad is incorporated and has its principal place of business in State B and operates in States A and B. Several other passengers were also injured and have brought individual actions in State B federal court. The railroad has moved the State A federal court to transfer the action to the State B federal district court. State B has only one federal district. What is the railroad's best argument in support of the motion? A: The accident occurred in State B and many witnesses are located there. B: The action involves common questions of fact with similar actions pending in State B. C: The railroad is incorporated and has its principal place of business in State B. D: Venue is not proper in State A
A: The accident occurred in State B and many witnesses are located there. A is correct. Transfers to a different federal court are granted in the interest of justice and for the convenience of the parties and witnesses. Here, because the accident occurred in State B, the railroad is located in State B, and other passengers have brought actions in State B federal court, State B would be the most convenient venue for the action.
A company operates an aircraft maintenance and repair business serving the needs of owners of private airplanes. A pilot contracted with the company to replace the engine in his plane with a more powerful engine of foreign manufacture. The company purchased the replacement engine through a representative of the manufacturer and installed it in the pilot's plane. A short time after it was put into use, the new engine failed, and the plane crashed into a warehouse, destroying the warehouse and its contents. The company was guilty of no negligence in the procurement, inspection, or installation of the engine. The failure of the engine was caused by a defect that would not be disclosed by inspection and testing procedures available to an installer. There was no negligence on the part of the pilot, who escaped the disabled plane by parachute. The warehouse owner recovered a judgment for damages from the pilot for the destruction of his warehouse and its contents, and the pilot has asserted a claim against the company to recover compensation on account of that liability. In that action, the pilot will recover A: full compensation, because the engine was defective. B: no compensation, because the company was not negligent. C: contribution only, because the company and the pilot were equally innocent. D: no compensation, because the warehouse owner's judgment established the pilot's responsibility to the warehouse owner
A: full compensation, because the engine was defective. A is correct. This is a products liability claim based on a theory of strict liability. The company supplied and installed the defective engine as part of its normal course of business in maintaining and repairing private airplanes for customers. Therefore, the company is a commercial seller of a defective product and can be held strictly liable for the damages caused by the pilot as the result of the pilot's use of the defective engine. Thus, the pilot will recover against the company for the full amount of the judgment against him
After a fire burned down a house that a tenant was renting, the tenant brought a federal diversity action against the landlord. The complaint alleged that the fire had been caused by the landlord's negligent failure to maintain the house's electrical system in accordance with the applicable housing code. The landlord's own investigation indicated that the fire had been caused by the tenant's leaving a soup pot unattended on a hot stove. The landlord has moved to dismiss the action on the ground that the tenant failed to comply with a state law that requires plaintiffs suing for negligence to plead that they were not contributorily negligent. In opposition to that motion, the tenant argues that under federal law, contributory negligence is an affirmative defense that a defendant who wishes to assert the defense must plead in an answer or other responsive pleading. Which law governs how the court should rule on the motion to dismiss? A: Federal law, because the burden of pleading on a motion to dismiss in federal court is substantive, not procedural. B: Federal law, because the Federal Rules of Civil Procedure control pleading in federal court. C: State law, because the application of federal law would be outcome-determinative. D: State law, because the assignment of the burden of pleading is bound up with the definition of the tenant's substantive rights.
B: Federal law, because the Federal Rules of Civil Procedure control pleading in federal court. B is correct. When a Federal Rule of Civil Procedure (FRCP) is valid and on point, it controls over a conflicting state rule. FRCP 8(c)(1) is on point because it specifically provides that contributory negligence is an affirmative defense that a defending party must assert in its answer to the complaint. Additionally, the Rule is a valid exercise of the US Supreme Court's rulemaking power because the manner of pleading defenses is an issue that can rationally be classified as procedure, and the Rule itself regulates the manner and means to enforce the parties' rights
A dancer sued her employer, a ballet company, in federal court in State A, claiming that the ballet company violated the dancer's rights under Title VII of the federal Civil Rights Act. The ballet company is a small business, and the dancer is concerned that the ballet company might not have sufficient assets to pay the judgment. State A law provides a method for attaching property at the start of a lawsuit to secure satisfaction of potential judgments. Federal Rule of Civil Procedure 64(a) states: "every remedy is available that, under the law of the state where the court is located, provides for seizing a person or property to secure satisfaction of the potential judgment." May the dancer use State A's attachment law to secure the judgment? A: Yes, because the dancer is able to add a state law claim to the lawsuit. B: Yes, because the court's federal question jurisdiction does not prevent use of State A's attachment law. C: No, because the federal court's jurisdiction is based on federal question, not diversity. D: No, because the dancer has not added a state claim to attach the property.
B: Yes, because the court's federal question jurisdiction does not prevent use of State A's attachment law. B: Yes, because the court's federal question jurisdiction does not prevent use of State A's attachment law.
A defendant's dog ran into the street in front of the defendant's home and began chasing cars. The plaintiff, who was driving a car on the street, swerved to avoid hitting the dog, struck a telephone pole, and was injured. Assume that the defendant knew his dog would often chase cars but refused to restrain it. If the plaintiff asserts a claim against the defendant, will the plaintiff prevail? A: Yes, because the defendant's dog was a cause in fact of the plaintiff's injury. B: Yes, because the defendant knew his dog had a propensity to chase cars and did not restrain it. C: No, because a dog is a domestic animal. D: No, because there is no statute or ordinance making it unlawful for the owner to allow a dog to be unleashed on a public street.
B: Yes, because the defendant knew his dog had a propensity to chase cars and did not restrain it. B is correct. The owner of an animal can be held responsible for the damage caused when that animal escapes its owner's property. Because the dog is a domestic animal, the damage caused by the defendant's dog will generally create liability for compensation only if the defendant knew of his dog's "mischievous propensity." (Note: Some states, however, have imposed strict liability statutes for damage caused by wandering/trespassing dogs).
At a country auction, a plaintiff acquired an antique cabinet that he recognized as an extremely rare and valuable collector's item. Unfortunately, the plaintiff's cabinet had several coats of varnish and paint over the original oil finish. Its potential value could only be realized if these layers could be removed without damaging the original finish. Much of the value of the cabinet depends on the condition of a unique oil finish, the secret of which died with the original inventor. A professional restorer of antique furniture recommended that the plaintiff use a specific paint stripper to remove the paint and varnish from the cabinet. The plaintiff obtained and read a sales brochure published by the company who manufactures the paint stripper, which contained the following statement: "This product will renew all antique furniture. Will not damage original oil finishes." The plaintiff purchased the paint stripper and used it on his cabinet, being very careful to follow the accompanying instructions exactly. Despite the plaintiff's care, the original finish of the cabinet was irreparably damaged. When finally refinished, the cabinet was worth less than 20% of what it would have been worth if the original finish had been preserved. No other removal technique could have preserved the original finish. If the plaintiff sues the manufacturer to recover the loss he has suffered as a result of the destruction of the cabinet's original finish, will the plaintiff prevail? A: Yes, because no other known removal technique would have preserved the original finish. B: Yes, because the loss would not have occurred had the statement in the brochure been true. C: No, because the product was not defective when sold by the manufacturer. D: No, because the product was not dangerous to persons.
B: Yes, because the loss would not have occurred had the statement in the brochure been true. B is correct. This is a misrepresentation issue. The assertions in the brochure were a public misrepresentation of a material fact concerning the quality or character of the manufacturer's product that caused an injury to the plaintiff when the cabinet was ruined because he relied on the statement to his detriment.
A construction company was engaged in blasting operations to clear the way for a new road. The company had erected adequate barriers and posted adequate warning signs in the vicinity of the blasting. Although the plaintiff read and understood the signs, he entered the area to walk his dog. As a result of the blasting, the plaintiff was hit by a piece of rock and sustained head injuries. The jurisdiction follows the traditional common law rules governing the defenses of contributory negligence, assumption of risk, and last clear chance. In an action by the plaintiff against the construction company to recover damages for his injuries, the plaintiff will A: not prevail, because the construction company exercised reasonable care to protect the public from harm. B: not prevail, because the plaintiff understood the signs and disregarded the warnings. C: prevail, because the plaintiff was harmed by the construction company's abnormally dangerous activity. D: prevail, because the plaintiff used reasonable care to protect himself from harm
B: not prevail, because the plaintiff understood the signs and disregarded the warnings. B is correct. The general rule prohibiting the defense of contributory negligence in strict liability cases does not apply where the plaintiff knew of the danger and voluntarily, unreasonably subjected himself to the danger anyway. Here, the plaintiff saw and understood the signs, and disregarded them, and will thus be barred from recovery due to his contributory negligence or assumption of risk
A chemical company manufactured a liquid chemical product known as XRX. Some XRX leaked from a storage tank on the chemical company's property, seeped into the groundwater, flowed to a farmer's adjacent property, and polluted the farmer's well. Several of the farmer's cows drank the polluted well water and died. If the farmer brings an action against the chemical company to recover the value of the cows that died, the farmer will A: prevail, because a manufacturer is strictly liable for harm caused by its products. B: prevail, because the XRX escaped from the chemical company's premises. C: not prevail, because the farmer is not a foreseeable plaintiff. D: not prevail, because the chemical company was not engaged in an abnormally dangerous activity.
B: prevail, because the XRX escaped from the chemical company's premises. B is correct. These facts are enough to sustain a strict liability claim, including an absolute duty to make safe the abnormally dangerous activity of storing the toxic chemical, causation in that the chemical that killed the cows leaked from the company's premises, and damage in the form dead cows, a lost property interest.
A builder purchased a large tract of land intending to construct residential housing on it. The builder hired a contractor to build a large in-ground swimming pool on the tract. The contract provided that the contractor would carry out blasting operations that were necessary to create an excavation large enough for the pool. The blasting caused cracks to form in the walls of the plaintiff's home in a nearby residential neighborhood. In the plaintiff's action for damages against the builder, the plaintiff should A: prevail, only if the builder retained the right to direct and control the contractor's construction of the pool. B: prevail, because the blasting that the contractor was hired to perform damaged the plaintiff's home. C: not prevail, if the contractor used reasonable care in conducting the blasting operations. D: not prevail, if the builder used reasonable care to hire a competent contractor.
B: prevail, because the blasting that the contractor was hired to perform damaged the plaintiff's home. B is correct. The general rule of an employer's non-liability for torts of his independent contractor does not apply to abnormally dangerous work, which is considered non-delegable and triggers strict liability. As such, the builder will be liable for the damage caused by the contractor's blasting.
A plaintiff, who was an asbestos insulation installer from 1955 to 1965, contracted asbestosis, a serious lung disorder, as a result of inhaling airborne asbestos particles on the job. The asbestos was manufactured and sold to the plaintiff's employer by an asbestos company. Because neither the asbestos company nor anyone else discovered the risk to asbestos installers until 1966, the company did not provide any warnings of the risks to installers until after that date. The plaintiff brought an action against the asbestos company based on strict liability in tort for failure to warn. The case is to be tried before a jury. The jurisdiction has not adopted a comparative fault rule in strict liability cases. In this action, an issue that is relevant to the case and is a question for the court to decide as a matter of law, rather than for the jury to decide as a question of fact, is whether A: a satisfactory, safer, alternative insulation material exists under today's technology. B: the defendant should be held to the standard of a prudent manufacturer who knew of the risks, regardless of whether the risks were reasonably discoverable before 1966. C: the defendant should reasonably have known of the risks of asbestos insulation materials before 1966, even though no one else had discovered the risks. D: the asbestos insulation materials to which the plaintiff was exposed were inherently dangerous.
B: the defendant should be held to the standard of a prudent manufacturer who knew of the risks, regardless of whether the risks were reasonably discoverable before 1966. B is correct. Here, the defendant is accused of failing to warn about the dangers of asbestos through a strict liability claim. Before any questions can be submitted to the jury, the judge must decide the legal standard for a "reasonable asbestos company," i.e. whether the asbestos company should be held to the standard of a prudent manufacturer who knew of the risks, regardless of whether the risks were reasonably discoverable before 1966.
A chef from State A sued a butcher from State B in State A federal court, seeking $100,000 in damages. The damages were for tortious injuries caused in a car accident by the butcher's allegedly negligent driving while he was in State A. The single day of the car accident was the only time the butcher has ever been to State A. The butcher does not want to litigate in State A because he would have to close his butcher shop and lose all profits while traveling to State A. Which action should the butcher take to be excused from litigating in State A? A: File a motion to dismiss for lack of subject-matter jurisdiction because the butcher does not have minimum contacts with State A. B: File a motion to transfer the case to State B federal court in order to cure the defect in personal jurisdiction. C: File a motion to transfer venue due to the burden imposed on the butcher to litigate the case in State A. D: File a notice of removal in the federal district court of State B, where the butcher resides
C: File a motion to transfer venue due to the burden imposed on the butcher to litigate the case in State A. C is correct. The doctrine of forum non conveniens allows a federal court with proper jurisdiction to decline to hear a civil case out of fairness to the parties IF there is a more convenient federal court available. Here, because the case was originally brought in a proper venue (federal court in State A) and the butcher will experience financial hardship if required to litigate in State A, the court may exercise its discretion to transfer the case. It is the butcher's burden to show how and why another venue would be more proper.
Just before the statute of limitations ran on his claim, a pilot from State A sued a radiologist from State C in the federal judicial district in State A, an extremely busy court. The radiologist has never been to State A and a substantial part of the events giving rise to the claim did not occur in State A, but in State C. The radiologist moved to transfer the case to a federal court in State B because he travels to State B often for work. The pilot has family in State B and consented to the transfer. Should the court grant the motion to transfer to a federal court in State B? A: Yes, because both parties have expressed their consent to litigating the case in State B. B: Yes, because of the extremely busy docket of the federal court in State A. C: No, because State B is not a district in which the action could have properly been brought originally. D: No, because transfer is permitted only from one proper venue to another
C: No, because State B is not a district in which the action could have properly been brought originally. C is correct. The court should deny the motion because State A, the original venue, was improper. A court may only transfer from an improper venue to a venue that would have been proper originally. State B was not a venue where the case could have been properly filed originally, so the court must deny the transfer
A senator from State A became upset when he learned that residents of State A are not permitted to bring state law products liability suits against State A companies in State A federal courts, but that residents of State B may do so. The senator plans to introduce legislation that states: "Federal courts shall have jurisdiction when the plaintiff's cause of action shows that it is based upon a state products liability law." Is the proposed legislation constitutional? A: Yes, because Congress has plenary power to extend federal jurisdiction to any questions arising under federal law or the U.S. Constitution. B: Yes, because Congress has plenary power to create federal courts and determine their jurisdiction. C: No, because it would extend federal jurisdiction to state law claims without requiring diversity of citizenship among the parties. D: No, because it would not extend federal jurisdiction to defendants who invoked state products liability as a defense.
C: No, because it would extend federal jurisdiction to state law claims without requiring diversity of citizenship among the parties. C is correct. If the senator's proposed legislation were to pass, it would allow a plaintiff to bring suit and avoid the diversity requirement, which would be unconstitutional.
A company incorporated and headquartered in State A brought a federal diversity action in State A against an attorney domiciled in State B. The complaint asserted that the attorney had sent defamatory emails to the company's customers in many different states, including State A. The attorney had few contacts with State A, and none of the contacts in that state were related to the alleged defamatory emails. After being served in State B with the summons and complaint, the attorney determined that he was not subject to personal jurisdiction in State A and ignored the action. On the company's motion, the clerk entered a default in the action. After a hearing on damages, the court entered a default judgment for the company. The attorney has moved for relief from the default judgment. What is the attorney's best argument in support of the motion? A: The attorney has a meritorious defense to the action, which he should be allowed to assert. B: The attorney's failure to respond to the service of process was reasonable under the circumstances. C: The default judgment is void, because the court did not have personal jurisdiction over the attorney. D: The default judgment was entered as a result of the attorney's mistaken belief that he need not respond.
C: The default judgment is void, because the court did not have personal jurisdiction over the attorney. C is correct. Federal Rule of Civil Procedure (FRCP) 60(b)(4) specifically authorizes relief if the "judgment is void." Here, the court had no personal jurisdiction over the attorney in the action, so the judgment is void, and the court may relieve the attorney from the judgment.
A mining company that operated a copper mine in a remote location kept dynamite in a storage facility at the mine. The storage facility was designed and operated in conformity with state-of-the-art safety standards. In the jurisdiction, the storage of dynamite is deemed an abnormally dangerous activity. Dynamite that was stored in the mining company's storage facility and that had been manufactured by an explosives manufacturer exploded due to an unknown cause. The explosion injured a state employee who was at the mine performing a safety audit. The employee brought an action in strict liability against the mining company. What would be the mining company's best defense? A: The mine was in a remote location. B: The mining company did not manufacture the dynamite. C: The state employee assumed the risk of injury inherent in the job. D: The storage facility conformed to state-of-the-art safety standards.
C: The state employee assumed the risk of injury inherent in the job. C is correct. Assumption of risk can be a complete defense to strict liability, and in this case, the state employee willingly took on auditing duties in potentially dangerous environments
A shareholder of a car manufacturing company wants to sue the company in federal court for breach of fiduciary duty. What information about the company, besides its place of incorporation, does the shareholder's attorney need in order to determine whether the parties are diverse? A: Where the company distributes its cars. B: Where the company has sufficient minimum contacts. C: Where the company's headquarters is located. D: Where the company's major place of manufacturing is located.
C: Where the company's headquarters is located. C is correct. Determining diversity for purposes of diversity jurisdiction is done with reference to the citizenship of the adverse parties. Here, because the party in question is a corporate entity, its citizenship is determined by its place of incorporation and the location of its principal place of business, which the Supreme Court has defined as a company's headquarters. Hertz Corp. v. Friend, 559 U.S. 77 (2010).
In state court, a ballerina sued a non-diverse manufacturer of an over-the-counter drug that the ballerina ingested as directed on the packaging. The ballerina claimed she suffered serious vision impairment because of the drug. The ballerina asserted two state law claims: (i) products liability; and (ii) improper labeling of the drug. In its defense, the manufacturer asserted that it complied with federal law requirements regarding drug labeling. The manufacturer also filed a timely notice of removal with the local federal district court. The ballerina then moved to remand the case to state court, asserting that the federal court lacks subject-matter jurisdiction. Should the court grant the ballerina's motion to remand? A: No, because the court has jurisdiction over the case by virtue of the manufacturer's defense that it complied with federal law. B: No, because the ballerina could have asserted against the manufacturer a claim arising under the federal law that governs drug labeling. C: Yes, because the court lacks subject-matter jurisdiction over the case. D: Yes, because the ballerina prefers to litigate the federal issue in state court, which has concurrent jurisdiction over the case.
C: Yes, because the court lacks subject-matter jurisdiction over the case. C is correct. The ballerina's claims are based in state law, against the manufacturer, a non-diverse defendant, and the manufacturer's asserted federal defense may not give rise to federal subject-matter jurisdiction
A plaintiff domiciled in State A brought a federal diversity negligence action in State A against a defendant domiciled in State B. The action was based on an accident that had occurred in State C. The defendant was personally served with process at her office in State B, which is located 50 miles from the State A federal courthouse. The defendant travels to State A once each year for a weeklong vacation but has no other State A contacts. The defendant answered, denying all allegations. One week later, the defendant filed an amended answer, denying all allegations and including the defense of lack of personal jurisdiction. State A has a long-arm statute that permits personal jurisdiction to the constitutional limit. The defendant has moved for an order dismissing the action based on the personal-jurisdiction challenge asserted in the amended answer. Should the court issue the order? A: No, because the defendant waived the challenge to personal jurisdiction by failing to include it in her original answer. B: No, because the defendant was personally served with process within 100 miles of the federal courthouse where the action is pending. C: Yes, because the defendant lacks minimum contacts with State A. D: Yes, because service was not delivered to the defendant at her home.
C: Yes, because the defendant lacks minimum contacts with State A. C is correct. The defendant lacks sufficient minimum contacts with State A that are related to this lawsuit. The defendant is not domiciled in State A and only visits periodically for reasons unrelated to the plaintiff's claim.
A plaintiff, who was 20 years old, purchased a new, high-powered sports car that was marketed with an intended and recognized appeal to youthful drivers. The car was designed with the capability to attain speeds in excess of 100 miles per hour. It was equipped with tires designed and tested only for a maximum safe speed of 85 miles per hour. The owner's manual that came with the car stated that "continuous driving over 90 miles per hour requires highspeed-capability tires," but the manual did not describe the speed capability of the tires sold with the car. The plaintiff took her new car out for a spin on a straight, smooth country road where the posted speed limit was 55 miles per hour. Intending to test the car's power, she drove for a considerable distance at over 100 miles per hour. While she was doing so, the tread separated from the left rear tire, causing the car to leave the road and hit a tree. The plaintiff sustained severe injuries. The plaintiff has brought a strict product liability action in tort against the manufacturer of the car. You should assume that pure comparative fault principles apply to this case. Will the plaintiff prevail? A: No, because the plaintiff's driving at an excessive speed constituted a misuse of the car. B: No, because the car was not defective. C: Yes, because the statement in the manual concerning the tires did not adequately warn of the danger of high-speed driving on the tires mounted on the car. D: No, because the plaintiff's driving at a speed in excess of the posted speed limit was negligence per se that was not excusable
C: Yes, because the statement in the manual concerning the tires did not adequately warn of the danger of high-speed driving on the tires mounted on the car. C is correct. The car manufacturer created a high-powered sports car and then failed to equip it with high-speed capability tires. This would make the car unreasonably dangerous and strict liability may be applied if, as in this case, the manufacturer failed to give a proper warning as to the type of tires needed for the car to be driven at its higher speeds. The duty to warn will create strict liability despite the plaintiff's prolonged use of the car at a high speed because its use at that high speed was a foreseeable use, given its design and marketing. While the car was not defective, the failure to give proper directions and specific warning was.
A small commercial airplane crashed in State A. The passengers and pilot, all citizens of State B, were killed in the crash. The airline that owned and operated the airplane is incorporated and has its maintenance facilities and principal place of business in State C. One day before the statute of limitations on their claims would have run, the estates of the pilot and each of the passengers filed a wrongful death action against the airline in federal court in State A. The airline was served one week later and wants to prevent the State A federal court from hearing the action. Which of the following motions is most likely to accomplish the airline's goal? A: A motion to dismiss the action for improper venue. B: A motion to dismiss the action for lack of personal jurisdiction. C: A motion to dismiss the action under the doctrine of forum non conveniens. D: A motion to transfer the action to a federal court in State C
D: A motion to transfer the action to a federal court in State C D is correct. When a case is originally filed in a proper venue, the court has the discretion to transfer the case if allowed under the rules governing both jurisdiction and venue. Venue was proper in State A, so a motion to transfer is the airline's only option
A beneficiary of a trust, who is a citizen of State A, has sued the trustee in federal court in State A for failing to correctly distribute the income from the trust, seeking an accounting. The trustee was personally served with process and the complaint by the beneficiary's attorney while the trustee was vacationing in State A. The trustee is a citizen of State B, and the accounts that are the subject of the trust are located in State B. What is the trustee's best response to the complaint? A: Answer the complaint and counterclaim for abuse of process. B: File an action in a State B court and move to enjoin the State A action. C: Move to dismiss for improper service by the attorney. D: Move to dismiss for lack of personal jurisdiction
D: Move to dismiss for lack of personal jurisdiction D is correct. The court in State A lacks personal jurisdiction over the trustee. Although the trustee was served in State A, the facts fail to indicate any other contacts between the trustee and State A, and the trust assets are located in State B. In addition, the trustee was sued in a representative capacity but was served while in State A on a personal vacation. Thus, the trustee can argue that the service did not establish personal jurisdiction over him concerning his role as trustee. Further, the trustee has no minimum contacts as a trustee with State A to satisfy the requirements of fair play and substantial justice. See Hanson v. Denkla, 357 U.S. 235 (1958).
A pilot from State A sued a librarian from State B in a federal district court in State A. The librarian sold the pilot an expensive collectible watch through a website that generated a valid sales contract. The pilot's complaint alleged that the librarian breached the contract's terms because the librarian sold the pilot a watch that materially varied from the description the librarian had provided. The pilot is seeking $175,000 in damages. Shortly after selling the watch, the librarian went to State A on vacation with her family. This was the librarian's first time ever in State A. While visiting State A, the librarian was served with the pilot's complaint and a summons in accordance with State A law. The librarian filed a motion to dismiss for lack of jurisdiction. Should the court grant the librarian's motion to dismiss? A: Yes, because only federal courts have jurisdiction to hear disputes between citizens of different states with an amount in controversy over $75,000. B: Yes, because the librarian does not have sufficient minimum contacts with State A to establish personal jurisdiction. C: No, because personal jurisdiction requirements only apply to federal courts, not state courts. D: No, because the librarian's physical presence in State A when she was served is sufficient to establish personal jurisdiction.
D: No, because the librarian's physical presence in State A when she was served is sufficient to establish personal jurisdiction. D is correct. The court should not grant the motion because both subject-matter and personal jurisdiction are satisfied. The facts support diversity jurisdiction based on the citizenship of the parties and amount in controversy. Furthermore, under Pennoyer v. Neff, 95 U.S. 714 (1878), a court may exercise personal jurisdiction over a non-resident defendant if she is present in the forum state when personally served with process. This occurred here, when the librarian was in State A on vacation and personally served with the complaint and summons in accordance with State A law
An ophthalmologist from State A sued a manufacturer from State B in State A state court. The manufacturer makes widgets in a small factory and sells them throughout the country through his website. The ophthalmologist purchased a widget from the manufacturer through the manufacturer's website after seeing an advertisement for the widget in a State A newspaper. The ophthalmologist was injured when the widget malfunctioned. The ophthalmologist is seeking $85,000 in damages under State A products liability law. State A's long-arm statute authorizes the state to have the full range of constitutionally-valid personal jurisdiction. The manufacturer filed a motion to dismiss for lack of personal jurisdiction because the manufacturer has never been to State A. Should the court grant the manufacturer's motion to dismiss? A: Yes, because the manufacturer does not have minimum contacts with State A. B: Yes, because the manufacturer has the right to remove the case to federal court. C: No, because state courts are courts of general jurisdiction. D: No, because the manufacturer has purposely availed himself of State A law.
D: No, because the manufacturer has purposely availed himself of State A law. D is correct. The court should not grant the manufacturer's motion because by advertising and selling his goods in State A, the manufacturer targeted citizens of State A, amounting to purposefully availing himself of the benefits of conducting business within State A. Based on this activity, it was foreseeable to the manufacturer that he could be called into court to defend a lawsuit. Because he has established minimum contacts with State A, the court may exercise personal jurisdiction over the manufacturer and his motion should be denied
An ecologist, a citizen of State A, sued a cab driver, a citizen of State B, in the federal district court in State C. The ecologist is seeking $77,000 in damages for tortious injuries caused by the cab driver's allegedly negligent driving while the ecologist and cab driver were in State D. The cab driver was served with process while on vacation in State C, in accordance with State C law. What is the cab driver's strongest argument against litigating the case in State C? A: The court should dismiss the lawsuit because it does not have subject-matter jurisdiction over the cause of action. B: The court should dismiss the lawsuit because it does not have personal jurisdiction over the cab driver. C: The court should transfer the lawsuit to a State D state court because it is inconvenient for the cab driver to litigate in State C. D: The court should dismiss the lawsuit because State C is not a proper venue to litigate the cause of action.
D: The court should dismiss the lawsuit because State C is not a proper venue to litigate the cause of action. D is correct. Venue in State C is improper because the cab driver does not reside there, nor did the accident occur there. Furthermore, because there are other districts where the action could have properly been brought, the fact that the cab driver was subject to personal jurisdiction in State C (by way of service) does not render it a proper venue under 28 U.S.C. § 1391(b).
A client sued his former attorney in federal court for malpractice. The client had retained the attorney to file and prosecute U.S. patent applications. The client alleged that if the attorney had not omitted from the client's patent application a portion of the computer source code for the client's invention, the resulting U.S. patent would not have been held invalid for indefiniteness. The malpractice claim requires analysis of U.S. patent law and proof of the patent's invalidity. Claims arising under U.S. patent law are within the exclusive jurisdiction of the federal courts. In response to the former client's complaint, the attorney moved to dismiss for lack of subject-matter jurisdiction. Is the court likely to grant the attorney's motion to dismiss? A: No, because the client's right to relief depends on the resolution of a substantial, disputed question of federal law. B: No, because federal patent law completely preempts the client's malpractice claim. C: Yes, because the claim cannot arise under federal law given that it is based on state law. D: Yes, because the claim does not sufficiently raise a substantial, disputed question of federal law to support federal jurisdiction.
D: Yes, because the claim does not sufficiently raise a substantial, disputed question of federal law to support federal jurisdiction. D is correct. The malpractice claim is based on state law. The embedded federal issue is not sufficiently substantial to support federal jurisdiction because it presents only a hypothetical question about whether the inclusion of a piece of computer source code in the patent application would have prevented the patent from being held invalid for indefiniteness.
The plaintiff is being treated by a physician for asbestosis, an abnormal chest condition that was caused by his on-thejob handling of materials containing asbestos. His physician has told him that the asbestosis is not presently cancerous, but that it considerably increases the risk that he will ultimately develop lung cancer. The plaintiff brought an action for damages, based on strict product liability, against the supplier of the materials that contained asbestos. The court in this jurisdiction has ruled against recovery of damages for negligently inflicted emotional distress in the absence of physical harm. If the supplier is subject to liability to the plaintiff for damages, should the award include damage for emotional distress he has suffered arising from his knowledge of the increased risk that he will develop lung cancer? A: No, because the plaintiff's emotional distress did not cause his physical condition. B: No, because the court does not recognize a cause of action for an increased risk of cancer. C: Yes, because the supplier of a dangerous product is strictly liable for the harm it causes. D: Yes, because the plaintiff's emotional distress arises from bodily harm caused by his exposure to asbestos.
D: Yes, because the plaintiff's emotional distress arises from bodily harm caused by his exposure to asbestos. D is correct. This is an instance where a defendant (the supplier) is liable for a physical injury (the chest condition and related prognosis) and the plaintiff's emotional distress stems from that underlying tortious conduct. Because the plaintiff may recover for all consequences flowing from this underlying liability, he may tack on the emotional distress damages.
Two ranchers, both citizens of State A, brought an action in a state court in State A against a developer, a citizen of State B. The ranchers alleged a state-law tort claim for water runoff damage to their properties caused by construction on the developer's neighboring property. The first rancher claimed $250,000 in damages and the second rancher claimed $50,000. In their complaint, the ranchers cited federal law regarding the calculation of damages due to water runoff. The developer timely removed the action to federal court. Is removal proper? A: No, because the ranchers are not diverse from each other. B: No, because the second rancher's claim does not meet the amount-in-controversy requirement. C: Yes, because the complaint includes a federal question. D: Yes, because the ranchers are diverse from the developer and both ranchers' claims arise from the same facts.
D: Yes, because the ranchers are diverse from the developer and both ranchers' claims arise from the same facts. D is correct. Although the second rancher's claim does not meet the amount-in-controversy minimum for federal diversity jurisdiction, supplemental jurisdiction authorizes jurisdiction over claims that otherwise would not meet the amount-in-controversy requirement. See 28 U.S.C. § 1367; Exxon Mobil Corp. v. Allapattah Services, 545 U.S. 546 (2005). To establish supplemental jurisdiction, the insufficient claims must be so related to claims in the action that are within the court's original jurisdiction that they form part of the "same case or controversy." Here, both ranchers' claims arise from water runoff caused by the same construction on the neighboring property and thus meet that standard.
A plaintiff domiciled in State A brought a wrongful death action in a federal court in State A against a State B parent corporation and one of its foreign subsidiaries. The plaintiff alleged that a tire manufactured by the subsidiary in Europe had caused his wife's death in an automobile accident in Europe. The parent corporation does significant business throughout the United States, including in State A. The subsidiary conducts no business and has no employees or bank accounts in State A. The subsidiary manufactures its tires for the European market, but 2% of its tires are distributed in State A by the parent corporation. The subsidiary has moved to dismiss for lack of personal jurisdiction. Should the court grant the subsidiary's motion? A: No, because 2% of the subsidiary's tires entered State A through the stream of commerce. B: No, because of the general personal jurisdiction established over the parent corporation. C: Yes, because the accident did not occur in the United States. D: Yes, because the subsidiary lacks continuous, systematic, and substantial contacts with State A
D: Yes, because the subsidiary lacks continuous, systematic, and substantial contacts with State A D is correct. Although the subsidiary put tires into the stream of commerce, this is not enough to establish the minimum contacts necessary for personal jurisdiction. The cause of action is not related to the activity in the state because the accident occurred in Europe, not in State A
A homeowner owned a large poisonous snake which had been defanged and was kept in a cage. A storm damaged the homeowner's house and the snake's cage, allowing the snake to escape. During the cleanup after the storm, a volunteer worker came across the snake. The worker tried to run away from the snake and fell, breaking his arm. In a suit by the worker against the homeowner based on strict liability in tort to recover for his injury, will the worker prevail? A: No, because the snake's escape was caused by a force of nature. B: No, because the worker should have anticipated an injury during his volunteer work. C: Yes, because the homeowner did not take adequate precautions to secure the snake. D: Yes, because the worker's injury was the result of his fear of the escaped snake
D: Yes, because the worker's injury was the result of his fear of the escaped snake D is correct. Strict liability applies to the homeowner because it was reasonably foreseeable that a person (i.e., the worker) who encountered his large, poisonous snake, with no reason to believe it had been de-fanged, would try to escape and potentially suffer an injury.
A 16-year old boy purchased an educational chemistry set manufactured by Chemco. The teenager invited his friend and classmate, the plaintiff, to assist him in a chemistry project. Referring to a library chemistry book on explosives and finding the chemistry set contained all of the necessary chemicals, the teenager and the plaintiff agreed to make a bomb. During the course of the project, the teenager carelessly knocked a lighted Bunsen burner into a bowl of chemicals from the chemistry set. The chemicals burst into flames, injuring the plaintiff. Although the chemistry set was as safe as possible, and its educational benefits exceeded its risks, the set did not contain a warning that it could be used to make dangerous explosives. In a suit by the plaintiff against Chemco, based on strict liability, the plaintiff will A: prevail, because the chemistry set did not contain a warning that its contents could be combined to form dangerous explosives. B: prevail, because manufacturers of chemistry sets are engaged in an abnormally dangerous activity. C: not prevail, because the teenager's negligence was the cause in fact of the plaintiff's injury. D: not prevail, because the chemistry set was as safe as possible, consistent with its educational purposes, and its benefits exceeded its risks.
D: not prevail, because the chemistry set was as safe as possible, consistent with its educational purposes, and its benefits exceeded its risks. D is correct. The facts indicate that the chemistry set was exactly as it was designed. This is a defective design case. For strict liability to apply in defective design, the plaintiff must prevail in a risk-utility balancing test where the plaintiff must show that the risk and severity of his injuries were predictable. In some jurisdictions, the court would then consider the feasibility of alternative designs. Other jurisdictions shift the burden to the defendant (once plaintiff proves causation) requiring the manufacturer to show that the chemistry set was as safe as possible, with its educational utility and benefits outweighing the risks
A college student purchased a large bottle of No-Flake dandruff shampoo, manufactured by a shampoo company. The box containing the bottle stated in part: "CAUTION - Use only one capful at most once a day. Greater use may cause severe damage to the scalp." The college student read the writing on the box, removed the bottle, and threw the box away. The college student's roommate asked to use the No-Flake, and college student said, "Be careful not to use too much." The roommate thereafter used No-Flake twice a day, applying two or three capfuls each time, notwithstanding the label statement that read: "Use no more than one capful per day. See box instructions." The more he used No-Flake, the more inflamed his scalp became, the more it itched, and the more he used. After three weeks of such use, the roommate finally consulted a doctor who diagnosed his problem as a serious and irreversible case of dermatitis caused by excessive exposure to the active ingredients in No-Flake. These ingredients are uniquely effective at controlling dandruff, but there is no way to remove a remote risk to a small percentage of persons who may contract dermatitis as the result of applying, for prolonged periods of time, amounts of No-Flake substantially in excess of the directions. This jurisdiction adheres to the traditional common law rules pertaining to contributory negligence and assumption of risk. Based upon the foregoing facts, if the roommate sues the shampoo company to recover damages for his dermatitis, his most promising theory of liability will be that the No-Flake shampoo A: had an unreasonably dangerous manufacturing defect. B: had an unreasonably dangerous design defect. C: was inherently dangerous. D: was inadequately labeled to warn of its dangers.
D: was inadequately labeled to warn of its dangers. D is correct. An inadequate warning can function as a type of design defect claim where the product is in a defective condition or is unreasonably dangerous to the user based on a design or manufacturing defect. A product is unreasonably dangerous when it is dangerous beyond the expectations of the ordinary consumer because of a departure from the intended design. A type of design defect is an inadequate warning which does not provide users with clear and complete warnings of dangers, which may not be apparent
