Torts & Evidence Practice Problems

A is a professional hockey player. During a game, A is pushed to the ice by B while the two are struggling for the puck. While A is down, C intentionally hits A in the mouth with his stick, breaking A's jaw. Were any torts committed?

Battery by C. B impliedly consented by playing.

A throws a rock at B with the intent to frighten B. The rock hits B. Were any torts committed?

Battery on B (transfer intent from tort to tort)

A throws a rock at B with the intent to frighten B. The rock hits C, who is standing next to B. Were any torts committed?

Battery on C (transfer intent from tort to tort and from person to person)

In January 2010, the defendant proposed to his girlfriend. During the engagement, the defendant confided in her about various drug deals in which he was participating. The woman swore that she would never reveal any of his confidences. On January 1, 2011, the couple married. The defendant continued to share with his wife information concerning his illegal drug activity. The wife's only rule was that he could not participate in any illegal drug transactions in their home. On one occasion in 2011, the wife came home unexpectedly and saw the defendant completing a drug transaction in the living room. The defendant was not aware that his wife had observed the event. In 2012, the defendant was charged by a federal prosecutor with 57 counts of illegal drug sales that occurred between 2009 and 2012. The prosecutor wishes to call the defendant's wife as a witness for the government. Assuming the defendant's attorney makes appropriate objections, which of the following statements is correct regarding the testimony by the defendant's wife? A.She can testify about the defendant's 2011 statements if she desires. B.She must testify to the defendant's 2010 statements. C.The defendant can keep her from testifying about his 2010 statements. D.She can testify to the drug sale that she observed in 2011 if she desires.

D.She can testify to the drug sale that she observed in 2011 if she desires.

Defendant is on trial for extorting $10,000 from Victim. An issue is the identification of the person who made a telephone call to Victim. Victim is prepared to testify that the caller had a distinctive accent like Defendant's, but that he cannot positively identify the voice as Defendant's. Victim recorded the call but has not brought the tape to court, although its existence is known to Defendant. Victim's testimony is A. inadmissible, because Victim cannot sufficiently identify the caller. B. inadmissible, because the tape recording of the conversation is the best evidence. C. admissible, because Defendant waived the "best evidence" rule by failing to subpoena the tape. D.admissible, because Victim's lack of certainty goes to the weight to be given Victim's testimony, not to its admissibility

D.admissible, because Victim's lack of certainty goes to the weight to be given Victim's testimony, not to its admissibility

Betsy had just received a new necklace for her birthday, and she loved showing it off to her friends. One day Norma told Betsy that Betsy's arms looked flabby. Betsy was surprised by Norma's comment, but felt compelled to answer Norma in a practical way. Therefore, to show how strong her arms were, Betsy took off her necklace, put the necklace over a tree branch, and started to do pull-ups holding on to only the strands of the necklace. Norma was impressed. If the necklace breaks while Betsy did pull-ups due to defective strands in the necklace, and Betsy suffers damages thereby, what is the likely result in a products liability action against Manufacturer?

Manufacturer prevails, because Betsy's misuse was unreasonable and unforeseeable.

A is walking down the sidewalk when she notices a large hole in the sidewalk negligently left uncovered by D. A could easily walk around the hole, but instead tries to jump it. A comes up short and is injured. May A recover? Would your answer change if the only route around the hole is through fast moving, dangerous traffic?

No, A assumed the risk of injury. Assumption of the risk would not apply because A had no reasonable alternatives.

A telephones B and says, "I'm going to beat you to a pulp!" Were any torts committed?

No, because the threat of battery is not imminent

A taps B on the shoulder to ask B for the time. B was not injured. Were any torts committed?

No, because there is no harm and the contact is not offensive to an average person

D operates a cruise ship. D has an inadequate amount of life boats on board. A is a passenger on the ship. The ship hits an iceberg instantly killing A. Is D's failure to have an adequate supply of lifeboats (i.e., the negligent act) the actual cause of A's death?

No, the lack of life boats is not the "but for" cause.

P was driving along Elm Street at 35 m.p.h. (the posted speed limit). As he approached the intersection with 13th Street, a car driven by S entered from 13th Street at 50 m.p.h. The two cars crashed. P, who was seriously injured in the accident, brought a personal injury action against S. At trial, P called Nurse to the stand. Nurse testified that on the date of the accident she was on duty in the hospital emergency room when P was admitted. She further testified that she saw Dr. Dole treat P's broken hip. Immediately before taking the witness stand, Nurse refreshed her recollection by studying the hospital records that had not yet been admitted into evidence. Upon objection by S's attorney, Nurse's testimony is •a. admissible as present recollection recorded. •b. admissible as evidence of the nature of P's injuries. •c. inadmissible, because it is based on hearsay not within an exception. •d. inadmissible, because it is not the best evidence of P's injuries.

b. admissible as evidence of the nature of P's injuries.

In a personal injury action by P, an apartment tenant, against D, the landlord, P claims to have fallen on a dark staircase leading from her second story apartment to the first floor. There was only minimal lighting on the stairs at the time of the accident. D claims that given the design of the stairwell, it was not possible to better illuminate the area. P takes the stand to testify that a month after the accident, D installed better lighting on the stairs. This evidence is: •a. inadmissible evidence of subsequent remedial measures. •b. inadmissible evidence of a specific instance of conduct to prove D's character. •c. admissible to prove the feasibility of better lighting. •d. admissible to prove that D was negligent.

c. admissible to prove the feasibility of better lighting.

In a personal injury action by P against D arising out of an automobile accident, D testifies at trial that he was driving carefully at the time of the accident. On cross-examination, P's attorney asks D, "isn't it true that your liability insurance covers you for $1 million per accident?" Under the facts as just related, this question is: •a. proper because negligence may be inferred from D's having extensive liability coverage. •b. proper because it is relevant to D's ability to satisfy any judgment against him. •c. improper because it is irrelevant and potentially prejudicial. •d. improper because plaintiffs can never ask about insurance coverage.

c. improper because it is irrelevant and potentially prejudicial.

•Assume the same facts as the prior slide. In the claim of Driver against Contractor, the best defense of Contractor is that •(A) the tree was on the property of House. •(B) he repaired the sidewalk at the direction of House. •(C) he could not reasonably foresee that the tree would fall. •(D) he was relieved of liability when House paid for the repair.

(C) he could not reasonably foresee that the tree would fall.

A and B are involved in an automobile accident. A sues B for the injuries A suffered in the accident. The jury determines that A was 60% at fault and B was 40% at fault. How much, if any, may A recover in: 1. a contributory negligence state? 2. a modified comparative fault state? 3. a pure comparative fault state?

1. nothing 2. nothing 3. 40%

Which of the following items of evidence is LEAST likely to be admitted without a supporting witness? •A. In a libel action, a copy of a newspaper purporting to be published by Defendant Newspaper Publishing Company. •B. In a case involving contaminated food, a can label purporting to identify the canner as Defendant Company. •C. In a defamation case, a document purporting to be a memorandum from the Defendant Company president to "All Personnel," printed on Defendant's letterhead. •D. In a case involving injury to a pedestrian, a pamphlet on stopping distances issued by the State Highway Department.

C. In a defamation case, a document purporting to be a memorandum from the Defendant Company president to "All Personnel," printed on Defendant's letterhead. Not enough just on letterhead.

At the defendant's trial for grand theft auto and other offenses, the prosecution offers to introduce the testimony of a police officer. The officer will testify that he showed a photographic lineup containing the defendant's picture to a witness who had seen the defendant fleeing from the stolen vehicle at the conclusion of a high-speed chase, and the witness selected the defendant's picture. The witness has left the state and refuses to return. Should the court admit the evidence? A.Yes, because the witness is unavailable to testify. B. Yes, because it is a prior identification. C. No, because it is inadmissible hearsay. D. No, because the picture has not been properly authenticated. Which answer would be correct if the witness were present in court to testify?

C. No, because it is inadmissible hearsay. B. Yes, because it is a prior identification.

The defendant is charged with soliciting an act of prostitution. The prosecutor calls a police officer who testifies that while working undercover he drove into a neighborhood where prostitutes were suspected of working. He slowed down and a provocatively clad woman, the defendant, approached his car. He rolled down the window and said, "Hey there." The officer would testify that she said, "I'll have sex with you for two hundred dollars." Does the officer's testimony about what she said fit within the definition of hearsay? •A. Yes, because the defendant's statements are offered for the truth of an assertion. •B. No, because there was no assertion. •C. No, because it was a legally operative fact. •D. No, because the defendant was the declarant.

C. No, because it was a legally operative fact.

In a suit to quiet title, to prove that X had conveyed a piece of land to Y, the plaintiff offers in evidence a deed signed by X conveying X's interest in the property to Y. Is the deed hearsay?

No. The deed is admissible because it does not fit within the definition of hearsay.

What standard of care does defendant owe in the following cases? 1. D, a bus company, is involved in a two-vehicle accident in which A, a passenger on the bus, and B, the driver of the other vehicle, are hurt. 2. D, a board-certified cardiologist, performs heart bypass surgery on A. 3. C, age 3, and D, age 7, negligently start a fire that destroys A's barn.

1. Duty to A? D has a heightened duty of care; D is liable for even slight negligence. Duty to B? D will be held to the reasonable person standard. 2. Duty to A? D will be held to the standard of a national expert 3. C's Duty to A? None. D's Duty to A? D will be held to the standard of a child of like age, education, intelligence, and experience.

A's house is situated between the houses of B and C. B's property adjoins A's property to the north, and C's property adjoins A's property to the south. On one warm and dry fall afternoon, both B and C decide to burn leaves. Unfortunately, they both do so negligently and both fires spread to A's property and destroy A's house. Each fire alone would have destroyed A's house. 1. But for C's negligence, would A's house have burned? 2. But for B's negligence, would A's house have burned? 3. So what test applies?

1. Yes 2. Yes 3. Substantial Factor Test

A Hollywood actress, Hilda-May, earns $30 million per movie. Despite her wealth and fame, not to mention a busy schedule, Hilda-May has the time and leisure to consider suing some of the many people who offend her. Which of these behaviors would give Hilda-May the strongest claim for "appropriation of the plaintiff's name or likeness"? Assume that Hilda-May has consented to none of them. •(A) A struggling entrepreneur uses the name and photo of Hilda-May on the packaging of his new line of squash rackets. •(B) A start-up entertainment magazine prints a photograph of Hilda-May storming away from her boyfriend in a restaurant. •(C) A starving novelist names one of his characters Hilda-May. The character, a waitress with ambitions to sell a screenplay she has written, is manipulative and dishonest. •(D) A disgruntled ex-lover of Hilda-May's gives a long interview to a television show describing their defunct relationship in painful detail.

A) A struggling entrepreneur uses the name and photo of Hilda-May on the packaging of his new line of squash rackets.

•A college student sued an amusement company for injuries he sustained when the amusement company's roller coaster allegedly malfunctioned so that the student fell out. At trial, after the student presented his case, the amusement company called a witness who testified that just before the accident he had heard a bystander say to the bystander's companion, "That crazy fool is standing up in the car." The student has offered the testimony of another witness who would testify that the day after the accident she was with the same bystander, and that in describing the accident, the bystander told her that the car had jerked suddenly and "just threw the guy out of his seat." How should the court rule with respect to this offered testimony? •(A) Rule it admissible only to impeach the bystander's credibility. •(B) Rule it admissible to impeach the bystander's credibility and to prove the amusement company's negligence. •(C) Rule it inadmissible, because the bystander was given no opportunity to deny or explain her apparently inconsistent statement. •(D) Rule it inadmissible, because the bystander herself was not called as a witness.

A) Rule it admissible only to impeach the bystander's credibility.

Alice was held up at the point of a gun, an unusual revolver with a red-painted barrel, while she was clerking in a neighborhood grocery store. Dennis is charged with armed robbery of Alice. The prosecutor calls Winthrop to testify that, a week after the robbery of Alice, he was robbed by Dennis with a pistol that had red paint on the barrel. Winthrop's testimony is •(A) admissible as establishing an identifying circumstance. •(B) admissible as showing that Dennis was willing to commit robbery. •(C) inadmissible, because it is improper character evidence. •(D) inadmissible, because its probative value is substantially outweighed by the danger of unfair prejudice.

A) admissible as establishing an identifying circumstance.

Plaintiff sued Defendant for breach of a commercial contract in which Defendant had agreed to sell Plaintiff all of Plaintiff's requirements for widgets. Plaintiff called Expert Witness to testify as to damages. Defendant seeks to show that Expert Witness had provided false testimony as a witness in his own divorce proceedings. This evidence should be •A. Admitted only if elicited from Expert Witness on cross-examination. •B. Admitted only if the false testimony is established by clear and convincing extrinsic evidence. •C. Excluded, because it is impeachment on a collateral issue. •D. Excluded, because it is improper character evidence.

A. Admitted only if elicited from Expert Witness on cross-examination.

Dalton is on trial for burglary. During cross-examination of Dalton, the prosecutor wants to inquire about Dalton's earlier conviction for falsifying a credit application. Which of the following facts concerning the conviction would be the best reason for the trial court's refusing to allow such examination? •A. Dalton was released from prison 12 years ago. •B. Dalton was put on probation rather than imprisoned. •C. It was for a misdemeanor rather than a felony. •D. It is on appeal.

A. Dalton was released from prison 12 years ago.

A defendant, a nurse at a nursing home, is charged with murdering a resident at the home by adding an allegedly lethal substance to the resident's food. At trial, to prove that the substance added to the resident's food could result in death, the prosecutor, without first calling any witnesses, offers to read into evidence several pages from a standard medical treatise that support the prosecution's claim that the substance the defendant added to the food is lethal. Is the evidence offered admissible? •A. No, because the treatise excerpts were not offered during the examination of a qualified expert. •B. No, because the treatise itself must be introduced as an exhibit. •C. Yes, under the learned treatise exception to the hearsay rule. D. Yes, because the lethal nature of the substance is relevant to the defendant's state of mind and intent.

A. No, because the treatise excerpts were not offered during the examination of a qualified expert.

An off-duty mall security guard was at a bar with his girlfriend when he got into an argument with another patron. The argument escalated and the guard drew out his pistol he had been given at work and shot the patron in the chest, killing him. The survivors of the dead patron brought a wrongful death action against the security agency that hired the guard. At trial, they established that the guard had been required to fill out an application listing references and indicating whether he had any prior convictions for offenses involving violence or the use of a weapon, which would disqualify him by law from a position as a security officer. The guard had listed as references some aunts and uncles who had not seen him in some time, and he stated that he had no prior convictions. In fact, the guard had several times been convicted of violent assaults using firearms, and the records of these convictions were available in a public database. The agency, however, had not investigated the statements on his application. The survivors will likely: •A. Prevail, because a reasonable employer would have discovered the guard's prior convictions. •B. Prevail, because the agency employed the guard and gave him the pistol he used to kill the patron. •C. Not prevail, because the agency owed no duty to the patron which was violated. •D. Not prevail, because the guard's actions occurred while he was acting outside the scope of his employment.

A. Prevail, because a reasonable employer would have discovered the guard's prior convictions.

Defendant is charged with arson of a church. His defense is that another individual, Frank, set fire to the church, based solely on the testimony of a Witness. The Witness, who works with Frank, will testify that Frank told him that he set fire to the church. The prosecutor's objection to the Witness's testimony should be: •A. Sustained, if there is no corroboration of Frank's statement. •B. Overruled, if defendant can show that Frank is unavailable as a witness. •C. Overruled, because it is a declaration against interest. •D. Overruled, because Frank's statement to the Witness was not made to a police officer.

A. Sustained, if there is no corroboration of Frank's statement.

Dirk is on trial for the brutal murder of Villas. Dirk's first witness, Wesley, testified that in her opinion Dirk is a peaceful and nonviolent person. The prosecution does not cross-examine Wesley, who is then excused from further attendance. Which one of the following is INADMISSIBLE during the prosecution's rebuttal? •A. Testimony by Wesley's former employer that Wesley submitted a series of false expense vouchers two years ago. •B. Testimony by a police officer that Dirk has a long-standing reputation in the community as having a violent temper. •C. Testimony by a neighbor that Wesley has a long-standing reputation in the community as an untruthful person. •D. Testimony by Dirk's former cell mate that he overheard Wesley offer to provide favorable testimony if Dirk would pay her $5,000.

A. Testimony by Wesley's former employer that Wesley submitted a series of false expense vouchers two years ago. A, C, D deal with impeachment. B is character evidence.

A motorist purchased a new sport utility vehicle from his local dealer. Standard equipment on the vehicle included a set of top-of-the-line tires from a premium tire company. However, the motorist was able to save $400 on the purchase price by allowing the dealer to substitute lower priced tires manufactured by a discount tire manufacturer. Unbeknownst to the motorist and the dealer, the tire manufacturer had negligently designed the tires, with the result that a tire would occasionally blowout when the car was traveling at a high rate of speed in hot weather. On an exceptionally hot day, the motorist was traveling 80 mph in a 55 mph zone. A tire exploded, resulting in damage to the vehicle and injury to the motorist. If the motorist sues the dealer on a theory of strict liability, is he likely to prevail? •A. Yes, because the tire was in a dangerously defective condition when the motorist purchased the car. •B. Yes, because the dealer is responsible for the negligence of the tire manufacturer, because the dealer used its tires. •C. No, because the motorist assumed the risk when he substituted the discount tires in exchange for $400. •D. No, because the motorist was misusing the tire when he was traveling at 80 mph.

A. Yes, because the tire was in a dangerously defective condition when the motorist purchased the car.

Roberta Monk, a famous author, had a life insurance policy with Drummond Life Insurance Company. Her son, Peter, was beneficiary. Roberta disappeared from her residence in the city of Metropolis two years ago and has not been seen since. On the day that Roberta disappeared, Sky Airlines Flight 22 left Metropolis for Rio de Janeiro and vanished; the plane's passenger list included a Roberta Rector. Peter is now suing Drummond Life Insurance Company for the proceeds of his mother's policy. At trial, Peter offers to testify that his mother told him that she planned to write her next novel under the pen name of Roberta Rector. Peter's testimony is •A. admissible as circumstantial evidence that Roberta Monk was on the plane. •B. admissible as a party admission, because Roberta and Peter Monk are in privity with each other. •C. inadmissible, because Roberta Monk has not been missing more than seven years. •D. inadmissible, because it is hearsay not within any exception.

A. admissible as circumstantial evidence that Roberta Monk was on the plane.

In an arson prosecution the government seeks to rebut Defendant's alibi that he was in a jail in another state at the time of the fire. The government calls Witness to testify that he diligently searched through all the records of the jail and found no record of Defendant having been incarcerated there during the time Defendant specified. The testimony of Witness is •A. admissible as evidence of absence of an entry from a public record. •B. admissible as a summary of voluminous documents. •C. inadmissible, because it is hearsay not within any exception. •D. inadmissible, because the records themselves must be produced.

A. admissible as evidence of absence of an entry from a public record.

Park sued Dunlevy for copyright infringement for using in Dunlevy's book some slightly disguised house plans on which Park held the copyright. Park is prepared to testify that he heard Dunlevy's executive assistant for copyright matters say that Dunlevy had obtained an advance copy of the plans from Park's office manager. Park's testimony is •A. admissible as reporting a statement of an employee of a party opponent. •B. admissible as a statement of a co-conspirator. •C. inadmissible, because it is hearsay not within any exception. •D. inadmissible, because there is no showing that the assistant was authorized to speak for Dunlevy.

A. admissible as reporting a statement of an employee of a party opponent.

Dexter was tried for the homicide of a girl whose strangled body was found beside a remote logging road with her hands taped together. After Dexter offered evidence of alibi, the state calls Wilma to testify that Dexter had taped her hands and tried to strangle her in the same location two days before the homicide but that she escaped. The evidence is •A. admissible, as tending to show Dexter is the killer. •B. admissible, as tending to show Dexter's violent nature. •C. inadmissible, because it is improper character evidence. •D. inadmissible, because it is unfairly prejudicial.

A. admissible, as tending to show Dexter is the killer.

At defendant's murder trial, Defendant calls Witness as his first witness to testify that Defendant has a reputation in their community as a peaceable and truthful person. The prosecutor objects on the ground that Witness's testimony would constitute improper character evidence. The court should •A. admit the testimony as to peaceableness, but exclude the testimony as to truthfulness. •B. admit the testimony as to truthfulness, but exclude the testimony as to peaceableness. •C. admit the testimony as to both character traits. •D. exclude the testimony as to both character traits.

A. admit the testimony as to peaceableness, but exclude the testimony as to truthfulness. Truthfulness not relevant to murder.

Supermarket is in a section of town where pedestrians are occasionally the victims of pickpockets and armed robbers. In recognition of the unusual number of robberies in the area, Supermarket posted signs in the store and in its parking lot that read: Warning: There are pickpockets and muggers at work in this part of the city. Supermarket is not responsible for the acts of criminals. One evening, Lerner drove to Supermarket to see about a special on turkeys that Supermarket was advertising. She decided that the turkeys were too large and left the store without purchasing anything. In the parking lot, she was attacked and robbed by an unknown man who then ran away. If Lerner sues Supermarket, the result should be for the •A. plaintiff, if Supermarket failed to take reasonable steps to protect customers against criminal attack in its parking lot. •B. plaintiff, because Supermarket is liable for harm to business invitees on its premises. •C. defendant, if the warning signs were plainly visible to Lerner. •D. defendant, because the robber was the proximate cause of Lerner's injuries.

A. plaintiff, if Supermarket failed to take reasonable steps to protect customers against criminal attack in its parking lot.

Peter and Donald were in the habit of playing practical jokes on each other on their respective birthdays. On Peter's birthday, Donald sent Peter a cake containing an ingredient that he knew had, in the past, made Peter very ill. After Peter had eaten a piece of the cake, he suffered severe stomach pains and had to be taken to the hospital by ambulance. On the way to the hospital, the ambulance driver suffered a heart attack, which caused the ambulance to swerve from the road and hit a tree. As a result of the collision, Peter suffered a broken leg. In a suit by Peter against Donald to recover damages for Peter's broken leg, Peter will •A. prevail, because Donald knew that the cake would be harmful or offensive to Peter. •B. prevail, only if the ambulance driver was negligent. •C. not prevail, because Donald could not reasonably be expected to foresee injury to Peter's leg. •D. not prevail, because the ambulance driver's heart attack was a superseding cause of Peter's broken leg.

A. prevail, because Donald knew that the cake would be harmful or offensive to Peter.

Darby was prosecuted for sexually abusing his 13-year-old stepdaughter, Wendy. Wendy testified to Darby's conduct. On cross-examination, defense counsel asks Wendy, "Isn't it true that shortly before you complained that Darby abused you, he punished you for maliciously ruining some of his phonograph records?" The question is •A. proper, because it relates to a possible motive for Wendy to accuse Darby falsely. •B. proper, because Wendy's misconduct is relevant to her character for veracity. •C. improper, because the incident had nothing to do with Wendy's truthfulness. •D. improper, because it falls outside the scope of direct examination.

A. proper, because it relates to a possible motive for Wendy to accuse Darby falsely.

Phil is suing Dennis for injuries suffered in an automobile collision. At trial Phil's first witness, Wanda, testified that, although she did not see the accident, she heard her friend Frank say just before the crash, "Look at the crazy way old Dennis is driving!" Dennis offers evidence to impeach Frank by asking Wanda, "Isn't it true that Frank beat up Dennis just the day before the collision?" The question is •A. proper, because it tends to show the possible bias of Frank against Dennis. •B. proper, because it tends to show Frank's character. •C. improper, because Frank has no opportunity to explain or deny. •D. improper, because impeachment cannot properly be by specific instances.

A. proper, because it tends to show the possible bias of Frank against Dennis.

In a wrongful death action for the death of his wife in an automobile accident, the plaintiff alleged that the accident was caused by a mud-flap assembly that fell off the defendant's truck. The plaintiff wishes to introduce the testimony of a witness, another truck driver who was on the same highway at the time, who heard someone tell the defendant over CB radio that he had noticed at the truck stop that the defendant's mud-flap assembly on his truck was loose. The witness does not know the identity of the person who gave the warning. If the defendant objects to the admission of this testimony, the court should rule that it is: A.Admissible to prove that the defendant was notified that the mud-flap assembly was loose. B. Admissible both to prove that the defendant was notified that the mud-flap assembly was loose and as substantive evidence that it was loose. C. Inadmissible, because the witness cannot identify who made the statement. D. Inadmissible, because it is hearsay not within any recognized exception.

A.Admissible to prove that the defendant was notified that the mud-flap assembly was loose.

In a negligence action, plaintiff sues defendant, a heating and cooling company, for injuries she suffered when defendant allegedly failed to fix plaintiff's heater during a sub-zero cold snap. Plaintiff, who is elderly and housebound, alleges that she phoned defendant as soon as the heater failed, and that defendant promised to respond "within two hours," the plaintiff waited in vain for the entire night, and the defendant never appeared. While waiting for defendant, plaintiff alleges that she suffered cold-related injuries to her fingers and toes. Plaintiff testified that she placed her call to the number for defendant listed in the phone book, and that a voice answered, "heating service." Defendant denies ever receiving the call, and moves to strike plaintiff's testimony from the record. How should the court rule? A.The court should deny defendant's motion because there is sufficient evidence to support a finding that the call was actually placed to defendant. B. The court should deny the motion if it finds that the call was not placed to defendant. C. The court should grant the motion because the party answering the phone did not identify itself as defendant's heating and cooling company. D. The court should deny the motion because plaintiff has already testified, and it is too late to keep the evidence from the jury.

A.The court should deny defendant's motion because there is sufficient evidence to support a finding that the call was actually placed to defendant.

In a fraud action by plaintiff against defendant, a car dealership, plaintiff claims that the car defendant sold to her got only 11 miles per gallon, even though defendant's salesperson told plaintiff that it would get "in the mid-20s." Defendant denies its salesperson made such representation. To prove the representation was made, plaintiff wishes to offer the testimony of five other customers that the salesperson made the same representation to them about the same model of car. Defendant does not deny that the other representations were made, but objects to admission of the evidence. How should the court rule? A.The court should overrule the objection because the evidence is admissible pattern evidence to show that the representation was made. B. The court should overrule the objection because the evidence is admissible habit evidence. C. The court should sustain the objection because the evidence is inadmissible character evidence. D. The court should sustain the objection because the evidence, though relevant non-character evidence, is inadmissible because this is a civil action.

A.The court should overrule the objection because the evidence is admissible pattern evidence to show that the representation was made.

Plaintiff sues defendant for breach of contract. Plaintiff claims the defendant breached the written contract by failing to deliver 200 crates of apples by the specified date. At trial, defendant (without offering the written contract into evidence) wishes to testify that the contract called for delivery of only 100 crates. Plaintiff makes a best evidence rule objection. How should the court rule? A.The court should sustain the objection. B. The court should overrule the objection because a contract is an agreement brought about by the meeting of two minds, not a writing. The writing is only a memorandum of the agreement, not the contract itself. C. The court should overrule the objection because defendant is not testifying about the contents of the writing, but about her understanding of the agreement. Thus, the best evidence rule does not apply. D. The court should overrule the objection because the central issue in the case concerns the terms of the agreement, and the jury is entitled to hear defendant's interpretation of the terms.

A.The court should sustain the objection.

Plaintiff brings a civil action against defendant arising out of a hit-and-run accident. Defendant claims that although she drives the same kind of car that was involved in the accident, she had nothing to do with the accident. Defendant claims that X was the responsible party, and she subpoenas X to appear at trial. However, X refuses to testify (even when ordered to do so by the court), raising an invalid claim of privilege. Consequently, defendant wishes to call witness to testify that an hour after the accident he was introduced to X for the first time, and that X told witness that he (X) had just been involved in an accident and "took off before the cops arrived." Which of the following statements is most accurate? A.The evidence concerning X's statement to witness is hearsay but admissible as a declaration against interest. B. The evidence concerning X's statement is admissible as an admission. C. The evidence concerning X's statement is admissible as a present sense impression. D.The evidence concerning X's statement is inadmissible because X is not unavailable.

A.The evidence concerning X's statement to witness is hearsay but admissible as a declaration against interest.

Plaintiff sues defendant for negligence arising out of an automobile collision. As part of her case-in-chief, plaintiff calls defendant to the stand. During the direct examination of defendant, plaintiff's attorney asks, "Isn't it true that at the time of the accident you were going 65 mph?" Which of the following statements about this question is accurate? A.The question is leading but proper. B.The question is an improper leading question. C.The question is not leading and is proper. D.The question is not leading but assumes a fact not in evidence. On cross-examination of defendant, may defendant's attorney ask leading questions?

A.The question is leading but proper. No.

Defendant is being prosecuted for assault and battery of victim. The attack took place at the corner of First and Main Streets. At trial, the prosecution calls witness, who witnessed the attack. After a few preliminary questions, the prosecutor asks witness where he was at on the evening the crime occurred. Witness says he cannot remember. The prosecutor then asks if witness was standing on the corner of First and Main Streets. Which of the following statements is most accurate? A.The question is unobjectionable. B. If defendant's attorney objects to the question as assuming a fact not in evidence, the court will sustain the objection. C. If defendant's attorney objects to the question as leading, the court will sustain the objection. D. If defendant's attorney objects on the basis that the question has already been asked and answered, the court will sustain the objection.

A.The question is unobjectionable. Laying foundation.

A and B both negligently fired their shotguns in C's direction. C is hit in the eye by one pellet, but does not know which defendant fired the pellet. In such case, the court will shift the burden of proving who caused the accident to A and B and, if they are unable to prove causation, they will be held jointly and severally liable for C's injuries. What rule is employed here?

Alternative Liability Test (Summers v. Tice)

A throws a rock at B, intending to scare B. B ducks out of the way at the last minute, so the rock misses B. Were any torts committed? Assume the rock hits B despite B's attempt to duck out of the way. Were any torts committed?

Assault Assault and battery

A throws a rock at B with the intent to frighten B. The rock frightens C, who is standing next to B. Were any torts committed?

Assault on C (transfer intent from person to person)

A, who is age 5 and weighs 35 pounds, takes a swing at Mike Tyson, the former heavyweight champion. Mike ducks, so the punch misses. Mike walks away laughing. Were any torts committed?

Assault, because Mike had a reasonable expectation of battery; fear is not required.

A points a gun at B, intending to scare B. Unbeknownst to B, the gun is unloaded. Were any torts committed?

Assault, if B reasonably believed the gun was loaded.

At trial, questions have been raised as to whether the proposed testimony of the witness falls within the present sense impression exception to the hearsay rule. As to a preliminary determination of the admissibility of the witness's testimony: •(A) A judge should determine whether the proposed testimony falls within the exception before it is heard by the jury, and in making that determination she is limited by the rules of evidence. •(B) A judge should decide whether the testimony falls within the present sense impression exception, but in making that determination she is not limited by the rules of evidence other than privilege. •(C) The jury, after being instructed on the rules of evidence by a judge, should determine whether the testimony falls within the scope of the present sense impression exception. •(D) The jury should determine whether the testimony falls within the scope of the exception and the judge should then instruct the jury on the appropriate uses for that evidence.

B) A judge should decide whether the testimony falls within the present sense impression exception, but in making that determination she is not limited by the rules of evidence other than privilege.

During the course of his trial for assault, the defendant placed a professional sociologist on the stand. The sociologist testified that she had scientifically polled the community in which the defendant lived and that the defendant had a high reputation for being a peaceable man in a rather rough community. On cross-examination, the prosecutor asked the sociologist if she filed a false income tax return last year. The sociologist has in fact been convicted of filing a false tax return; however, the defense immediately objected. Should the court require the sociologist to answer the question posed to her? •(A) Yes, because the sociologist has been convicted of filing a false tax return. •(B) Yes, because the question is relevant to the truthfulness and credibility of the witness. •(C) No, because specific instances of conduct are inadmissible. •(D) No, because the question does not go to a relevant character trait.

B) Yes, because the question is relevant to the truthfulness and credibility of the witness.

Plaintiff sued Defendant for illegal discrimination, claiming that Defendant fired him because of his race. At trial, Plaintiff called Witness, expecting him to testify that Defendant had admitted the racial motivation. Instead, Witness testified that Defendant said that he had fired Plaintiff because of his frequent absenteeism. While Witness is still on the stand, Plaintiff offers a properly authenticated secret tape recording he had made at a meeting with Witness in which Witness related Defendant's admissions of racial motivation. The tape recording is •A. Admissible as evidence of Defendant's racial motivation and to impeach Witness's testimony. •B. Admissible only to impeach Witness's testimony. •C. Inadmissible, because it is hearsay not within any exception. •D. Inadmissible, because a secret recording is an invasion of Witness's right of privacy under the U.S. Constitution.

B. Admissible only to impeach Witness's testimony.

While walking down a city street, the plaintiff was seriously injured when a rotten limb fell off of a tree and hit him on the head. The tree was located on a vacant lot next to the defendant's house. The lot appeared to be part of the defendant's property. The plaintiff sued the defendant to recover damages for his injuries, alleging that the defendant was negligent with respect to the care of the tree. The defendant's defense was that he did not own the lot or the tree, and that both the lot and the tree were the property of the city. At trial, the plaintiff calls a witness to testify that shortly after the plaintiff was taken to the hospital, he observed the defendant cutting down the rotten limbs on a number of trees on the vacant lot. The witness's testimony is most likely: A.Admissible, to help prove that the defendant was negligent in not removing the rotten limbs sooner. B. Admissible, to help prove that the defendant owned the lot. C. Inadmissible, because subsequent repairs are encouraged for reasons of public safety. D. Inadmissible, because the evidence does not prove that the defendant owned the lot.

B. Admissible, to help prove that the defendant owned the lot.

D is on trial for murder. At trial, the prosecution offers against D a written statement prepared by X (a witness to the crime) at the request of the investigating police officer. X is now dead. X's statement includes a description of the perpetrator, and the characteristics match those of D. The court holds that the written statement is hearsay that does not fit within the regular exceptions to the hearsay rule, but that it satisfies the residual exception (FRE 807). D claims that the evidence should not be admitted because it would violate her confrontation rights under the Sixth Amendment. Which of the following statements is most likely correct? •A. Because the evidence satisfies the requirements of the residual hearsay exception, which include considerations of reliability, X's statement is admissible despite the Confrontation Clause. •B. Because X's statement is testimonial in nature, because D never had a chance to cross-examine X, and because X is unavailable, the court must exclude the statement. •C. Because X's statement is not testimonial, the court may admit it despite the Confrontation Clause. D. Because the residual exception is not "firmly rooted," the court may not admit X's statement unless it finds the statement trustworthy after an independent inquiry

B. Because X's statement is testimonial in nature, because D never had a chance to cross-examine X, and because X is unavailable, the court must exclude the statement.

Roger robbed a bank with another man. When they were arrested, Roger made a deal with the prosecutor to become a cooperating witness and testify against his accomplice. At the accomplice's trial, Roger testified that he was only the getaway driver, and the accomplice entered the bank and shot the bank guard. On cross-examination, accomplice's defense counsel brought out that the prosecution had promised to drop the charges against Roger, put him in the witness protection program, and set him up with a new identity and employment. The defense lawyer suggested that Roger had made up the story against her client in order to please the government and get a good deal for himself. The prosecutor then called Roger's brother to testify that before he knew he was suspected of involvement in the robbery, Roger had confessed his participation in the robbery to him, supplying the same details about his participation and that of the accomplice he had testified to in court. The defendant's objection should be: •A. Sustained, because it is hearsay. •B. Overruled, because the statement is admissible as a prior consistent statement. •C. Overruled, but the court should give a limiting instruction that the statement may only be used to bolster the credibility of the witness. •D. Sustained, because it is improper character evidence.

B. Overruled, because the statement is admissible as a prior consistent statement. KEY = Pre-dates the bias, no motive to lie.

Motorco has manufactured an automobile with brakes that are prone to failing every third time a driver presses down on the pedal. P buys a car from a Motorco dealer and drives it off the lot. The first time she uses the brakes, she stops at a red light. The stop was complete and normal. While waiting at the red light, D, driving a sports car, rams into P's car, destroying the car and seriously injuring P. If P sues Motorco under the products liability law for her injuries, a court should rule: •A. P's case fails because her car was not defective. •B. P's case fails because the defect in the car was not the actual cause of her injuries. •C. P's case fails because D's actions were an intervening cause that broke the chain of causation. •D. P's case succeeds.

B. P's case fails because the defect in the car was not the actual cause of her injuries.

•The driver of a Zamboni machine at an ice rink began to clean the ice without making sure that all of the doors to the rink were closed, contrary to established procedures. A young child who had just completed a skating lesson went back onto the ice through an open door to retrieve a water bottle from the bench. A bystander saw what was happening and worried that the Zamboni driver would not see the child, and the machine's engines were too loud to yell to the driver or child. Intending to get the child off of the ice, the bystander darted through another door to the rink just in front of the approaching Zamboni machine, but she slipped and fell in front of it. She suffered serious injuries when she was struck by the machine. The bystander sued the ice rink to recover damages for her injuries in a jurisdiction that has adopted a modified form of comparative negligence. The trier of fact determined that the bystander was 45% at fault and the Zamboni driver was 55% at fault. The Zamboni driver was employed by a reputable rink maintenance company that contracted with the ice rink for its services. The bystander will: •A. Recover 45% of her damages from the ice rink because she was less at fault than the Zamboni driver. •B. Recover 55% of her damages from the ice rink because she was less at fault than the Zamboni driver. •C. Not recover damages from the ice rink because she assumed the risk of falling by going onto the ice. •D. Not recover damages from the ice rink because the Zamboni driver was employed by a rink maintenance company rather than the rink itself.

B. Recover 55% of her damages from the ice rink because she was less at fault than the Zamboni driver.

Plaintiff sues defendant for negligence arising out of an automobile collision. Plaintiff calls witness, who testifies that she was standing at the intersection waiting to cross the street when defendant ran a red light and struck plaintiff's car broadside. On cross-examination, defendant establishes that witness was toward the back of a large crowd on the sidewalk before the crash, and had only a partial view of the street, that witness was looking in the direction of the bright sun, that witness has poor eyesight and was not wearing her glasses at the time, and that just after the crash, someone told witness the defendant had run the red light. Defendant moves to strike witness's testimony due to a lack of personal knowledge, and asks the court to instruct the jury to disregard witness's testimony. Which of the following statements is correct? A.The court should deny the motion if it concludes that witness had first-hand knowledge of the accident. B. The court should deny the motion if it finds that there is sufficient evidence to support a finding that witness had first-hand knowledge of the accident. C. The court should deny the motion because whether witness had first-hand knowledge is always a question for the jury. D. The court should deny the motion regardless of whether witness had first-hand knowledge because witness has already testify about the crash.

B. The court should deny the motion if it finds that there is sufficient evidence to support a finding that witness had first-hand knowledge of the accident.

In litigation on a federal claim, Plaintiff had the burden of proving that Defendant received a notice. Plaintiff relied on the presumption of receipt by offering evidence that the notice was addressed to Defendant, properly stamped, and mailed. Defendant, on the other hand, testified that she never received the notice. Which of the following is correct? •A. The jury must find that the notice was received. •B. The jury may find that the notice was received. •C. The burden shifts to Defendant to persuade the jury of non-receipt. •D. The jury must find that the notice was not received, because the presumption has been rebutted and there is uncontradicted evidence of non-receipt.

B. The jury may find that the notice was received.

The plaintiff was driving her daughter to school when their car was struck broadside by a car driven by the defendant at an intersection controlled in all directions by stop signs. The plaintiff and her daughter were taken by ambulance to the hospital. In a personal injury action brought by the plaintiff and her daughter against the defendant, pretrial discovery revealed that both cars were in perfect mechanical condition just before the accident, and the defendant was on his way home from work at the time of the accident, but had stopped off at a bar before he reached the intersection at which he struck the plaintiff's car. There is no witness available to testify as to how much the defendant had to drink at the bar that day. At trial, the plaintiff calls a co-worker of the defendant, who testifies over objection that the defendant has a reputation as a hard drinker who tolerates alcohol well, as witnessed by the co-worker at numerous events. Was it an error for the trial court to admit this testimony? A.Yes, because in a civil matter, evidence of a party's character may not be introduced until he has put his character at issue. B. Yes, because the plaintiff may not attempt to prove that the defendant acted in a particular way on one occasion in conformity with his reputation as to that behavior. C. No, because the co-worker had personal knowledge of the defendant's drinking habits from having observed him while drinking. D. No, because there exists no unbiased eyewitness who can testify as to how much the defendant actually drank at the bar before he had the accident with the plaintiff.

B. Yes, because the plaintiff may not attempt to prove that the defendant acted in a particular way on one occasion in conformity with his reputation as to that behavior.

Fran, who was driving at an excessive speed, applied her brakes to stop at a traffic light. Due to damp, fallen leaves, her car skidded and came to a halt perpendicular to the roadway. Sid, who was also driving at an excessive speed and was immediately behind Fran, saw Fran's car perpendicular to the roadway. Although Sid had sufficient distance to come to a slow, controlled stop, he decided not to slow down but, rather, to swerve to the left in an effort to go around Fran's car. Due to oncoming traffic, the space was insufficient and Sid's car collided with Fran's car, severely injuring Fran. Fran filed a personal injury action against Sid in a jurisdiction in which contributory negligence is a bar to recovery. Will Fran prevail? •A. Yes, if the jury finds that Sid was more than 50% at fault. •B. Yes, if the jury finds that Sid has the last clear chance. •C. No, if the jury finds that Fran's conduct was in any way a legal cause of the accident. •D. No, if the jury finds that, in speeding, Fran assumed the risk.

B. Yes, if the jury finds that Sid has the last clear chance.

Daggett was prosecuted for murder of Vales, whose body was found one morning in the street near Daggett's house. The state calls Witt, a neighbor, to testify that during the night before the body was found he heard Daggett's wife scream, "You killed him! You killed him!" Witt's testimony is •A. admissible as a report of a statement of belief. •B. admissible as a report of an excited utterance. •C. inadmissible, because it reports a privileged spousal communication. •D. inadmissible on spousal immunity grounds, but only if the wife objects.

B. admissible as a report of an excited utterance.

Perez sued Dawson for damages arising out of an automobile collision. At trial, Perez called Minter, an eyewitness to the collision. Perez expected Minter to testify that she had observed Dawson's automobile for five seconds prior to the collision and estimated Dawson's speed at the time of the collision to have been 50 miles per hour. Instead, Minter testified that she estimated Dawson's speed to have been 25 miles per hour. Without finally excusing Minter as a witness, Perez then called Wallingford, a police officer, to testify that Minter had told him during his investigation at the accident scene that Dawson "was doing at least 50." Wallingford's testimony is •A. admissible as a present sense impression. •B. admissible to impeach Minter. •C. inadmissible, because Perez may not impeach his own witness. D.inadmissible, because it is hearsay not within any exception

B. admissible to impeach Minter.

Paul sued Donna for breach of contract. Paul's position was that Joan, whom he understood to be Donna's agent, said: "On behalf of Donna, I accept your offer." Donna asserted that Joan had no actual or apparent authority to accept the offer on Donna's behalf. Paul's testimony concerning Joan's statement is •A. admissible, provided the court first finds by a preponderance of the evidence that Joan had actual or apparent authority to act for Donna. •B. admissible upon or subject to introduction of evidence sufficient to support a finding by the jury that Joan had actual or apparent authority to act for Donna. •C. inadmissible, if Joan does not testify and her absence is not excused. •D. inadmissible, because it is hearsay not within an exception.

B. admissible upon or subject to introduction of evidence sufficient to support a finding by the jury that Joan had actual or apparent authority to act for Donna.

•Defendant is on trial for nighttime breaking and entering of a warehouse. The warehouse owner had set up a camera to take infrared pictures of any intruders. After an expert establishes the reliability of infrared photography, the prosecutor offers the authenticated infrared pictures of the intruder to show the similarities to Defendant. The pictures are •A. admissible, provided an expert witness points out to the jury the similarities between the person in the photographs and Defendant. •B. admissible, allowing the jury to compare the person in the photographs and Defendant. •C. inadmissible, because there was no eyewitness to the scene available to authenticate the photographs. •D. inadmissible, because infrared photography deprives a defendant of the right to confront witnesses.

B. admissible, allowing the jury to compare the person in the photographs and Defendant.

Defendant is on trial for robbing a bank in State A. She testified that she was in State B at the time of the robbery. Defendant calls her friend, Witness, to testify that two days before the robbery Defendant told him that she was going to spend the next three days in State B. Witness's testimony is •A. admissible, because the statement falls within the present sense impression exception of the hearsay rule. •B. admissible, because a statement of plans falls within the hearsay exception for then-existing state of mind. •C. inadmissible, because it is offered to establish an alibi by Defendant's own statement. •D. inadmissible, because it is hearsay not within any exception.

B. admissible, because a statement of plans falls within the hearsay exception for then-existing state of mind.

Deetz was prosecuted for homicide. He testified that he shot in self-defense. In rebuttal, Officer Watts testified that he came to the scene in response to a telephone call from Deetz. Watts offers to testify that he asked, "What is the problem here, sir?" and Deetz replied, "I was cleaning my gun and it went off accidentally." The offered testimony is •A. admissible, as an excited utterance. •B. admissible, to impeach Deetz and as evidence that he did not act in self-defense. •C. inadmissible, because of Deetz's privilege against self-incrimination. •D. inadmissible, because it tends to exculpate without corroboration.

B. admissible, to impeach Deetz and as evidence that he did not act in self-defense.

Defendant is charged with murder in connection with a carjacking incident during which Defendant allegedly shot Victim while attempting to steal Victim's car. The prosecutor calls Victim's four-year-old son, whose face was horribly disfigured by the same bullet, to testify that Defendant shot his father and him. The son's testimony should be •A. admitted, provided the prosecutor first provides evidence that persuades the judge that the son is competent to testify despite his tender age. •B. admitted, provided there is sufficient basis for believing that the son has personal knowledge and understands his obligation to testify truthfully. •C. excluded, because it is insufficiently probative in view of the son's tender age. •D. excluded, because it is more unfairly prejudicial than probative.

B. admitted, provided there is sufficient basis for believing that the son has personal knowledge and understands his obligation to testify truthfully.

In a civil action for personal injury, Payne alleges that he was beaten up by Dabney during an altercation in a crowded bar. Dabney's defense is that he was not the person who hit Payne. To corroborate his testimony about the cause of his injuries, Payne seeks to introduce, through the hospital records custodian, a notation in a regular medical record made by an emergency room doctor at the hospital where Payne was treated for his injuries. The notation is: "Patient says he was attacked by Dabney." The notation is •A. inadmissible, unless the doctor who made the record is present at trial and available for cross-examination. •B. inadmissible as hearsay not within any exception. •C. admissible as hearsay within the exception for records of regularly conducted activity. •D. admissible as a statement made for the purpose of medical diagnosis or treatment.

B. inadmissible as hearsay not within any exception.

A plaintiff sued a defendant in connection with the dissolution of a partnership they had formed to run a parcel delivery service. They had relied on a business attorney in establishing the business. After the business failed, the plaintiff and the defendant disagreed about their respective obligations. At trial, both have hired new counsel. The plaintiff calls the business attorney to testify to representations the defendant made in meetings she had with the plaintiff and the business attorney. The defendant objects to the business attorney's testimony, invoking the attorney-client privilege. Should the court uphold the defendant's privilege claim? A.No, because the business attorney's professional relationship with the plaintiff and the defendant has ended. B.No, because the plaintiff and the defendant consulted the business attorney jointly. C.Yes, because either the plaintiff or the defendant may block disclosure of statements made during such meetings. D.Yes, because either the plaintiff or the defendant may claim the privilege on behalf of the partnership.

B.No, because the plaintiff and the defendant consulted the business attorney jointly.

•Miller is tried for armed robbery of the First Bank of City. The prosecution, in its case in chief, offers evidence that when Miller was arrested one day after the crime, he had a quantity of heroin and a hypodermic needle in his possession. This evidence should be •(A) admitted to prove Miller's motive to commit the crime. •(B) admitted to prove Miller's propensity to commit crimes. •(C) excluded, because its probative value is substantially outweighed by the danger of unfair prejudice. •(D) excluded, because such evidence may be offered only to rebut evidence of good character offered by a defendant.

C) excluded, because its probative value is substantially outweighed by the danger of unfair prejudice.

Defendant is charged with assault and battery. Defendant claims misidentification. Defendant calls his pastor as a witness. The pastor testifies that he has known defendant for most of his life, and that in his opinion defendant is a peaceful and nonviolent person who is not capable of committing the type of act with which he is charged. The prosecutor has credible evidence that defendant once attacked and severely beat a former employer. The prosecutor: •A. May not ask the pastor whether he has heard about the prior attack and may not introduce any other evidence that the attack occurred. •B. May ask the pastor whether he has heard that defendant once attacked a former employer, and, if the pastor denies having heard this, may call another witness to testify to the prior attack. •C. May ask the pastor whether he has heard that defendant once attacked a former employer, but may not introduce other evidence of the attack. •D. May not ask the pastor about the former attack unless criminal charges were brought against defendant for that attack.

C. May ask the pastor whether he has heard that defendant once attacked a former employer, but may not introduce other evidence of the attack.

While driving at a speed in excess of the statutory limit, Dant negligently collided with another car, and the disabled vehicles blocked two of the highway's three northbound lanes. When Page approached the scene two minutes later, he slowed his car to see if he could help those involved in the collision. As he slowed, he was rear-ended by a vehicle driven by Thomas. Page, who sustained damage to his car and was seriously injured, brought an action against Dant to recover damages. The jurisdiction adheres to the traditional common law rules pertaining to contributory negligence. If Dant moves to dismiss the action for failure to state a claim upon which relief may be granted, should the motion be granted? •A. Yes, because it was Thomas, not Dant, who collided with Page's car and caused Page's injuries. •B. Yes, if Page could have safely passed the disabled vehicles in the traffic lane that remained open. •C. No, because a jury could find that Page's injury arose from a risk that was a continuing consequence of Dant's negligence. •D. No, because Dant was driving in excess of the statutory limit when he negligently caused the first accident.

C. No, because a jury could find that Page's injury arose from a risk that was a continuing consequence of Dant's negligence.

Following her murder conviction, a juror approaches defendant's attorney and complains about several things that occurred during deliberations. If defendant makes a motion for a new trial, and asks the court to hold a hearing at which the juror may testify, which of the following would the court permit the juror to describe at the hearing? A.Several of the jurors announced at the beginning of deliberations that they made up their minds right at the end of the prosecution's case-in-chief that the defendant was guilty, and that they paid little attention to the defendant's case. B. During a lunch break while the trial was going on, several of the jurors drank beer to the point of obvious intoxication. C. One of the jurors told the other jurors that a publisher had approached her about a book deal if the jury voted to convict. D. One of the jurors made a disparaging remark about the defendant's unkempt appearance.

C. One of the jurors told the other jurors that a publisher had approached her about a book deal if the jury voted to convict.

A and B are on trial for the crimes of conspiracy and bank robbery. The judge has made a preliminary finding that the evidence is sufficient to prove that A and B conspired to commit bank robbery. Of the following statements, which is most likely to be admitted to prove the guilt of both A and B? •A. Prior to the robbery, A, hoping to impress his girlfriend, told her that "B and I plan to rob First National Bank tomorrow." •B. One week after the robbery, A voluntarily appeared at the local police station and informed a police officer that "B and I robbed First National Bank last week." •C. One week before the robbery, A attempted to recruit C into the conspiracy by telling C, "B and I plan to rob First National Bank and we need you to drive the getaway car." •D. One year after the robbery, A reveals to a friend that "B and I robbed First National Bank last year and got away with it."

C. One week before the robbery, A attempted to recruit C into the conspiracy by telling C, "B and I plan to rob First National Bank and we need you to drive the getaway car."

Parker sues Dix for breach of a promise made in a letter allegedly written by Dix to Parker. Dix denies writing the letter. Which of the following would NOT be a sufficient basis for admitting the letter into evidence? •A. Testimony by Parker that she is familiar with Dix's signature and recognizes it on the letter. •B. Comparison by the trier of fact of the letter with an admitted signature of Dix. •C. Opinion testimony of a non-expert witness based upon familiarity acquired in order to authenticate the signature. •D. Evidence that the letter was written in response to one written by Parker to Dix.

C. Opinion testimony of a non-expert witness based upon familiarity acquired in order to authenticate the signature.

Plaintiff has sued Defendant over an auto accident that resulted in damage to the vehicles but not in personal injury. In Plaintiff's lawsuit against Defendant, Plaintiff would testify that as soon as he got out of his car, Defendant said to Plaintiff: "Would you take a check for $5,000 to forget all of this?" Defendant's objection to this testimony should be: •A. Sustained, because the statement was made in the course of attempting to settle a claim. •B. Sustained, because Defendant's offer to pay for Plaintiff's damages does not conclusively prove that Defendant believed himself to be at fault for the accident. •C. Overruled, because it is admissible to show Defendant's consciousness of his own negligence. •D. Sustained, because it is improper character evidence.

C. Overruled, because it is admissible to show Defendant's consciousness of his own negligence. (statement of a party opponent)

In a federal investigation of Defendant for tax fraud, the grand jury seeks to obtain a letter written January 15 by Defendant to her attorney in which she stated: "Please prepare a deed giving my ranch to University but, in order to get around the tax law, I want it backdated to December 15." The attorney refuses to produce the letter on the ground of privilege. Production of the letter should be •A. Prohibited, because the statement is protected by the attorney-client privilege. •B. Prohibited, because the statement is protected by the client's privilege against self-incrimination. •C. Required, because the statement was in furtherance of crime or fraud. •D. Required, because the attorney-client privilege belongs to the client and can be claimed only by her.

C. Required, because the statement was in furtherance of crime or fraud.

A was driving on a dark road, using her high beams. When a car driven by C approached, A tried to flip the handle to dim the headlights but, due to a manufacturing defect in the handle, it broke off in her hand, and the high beams stayed on. C was temporarily blinded and as a result lost control of the car and went off the road. P, a passenger in C's car, was badly injured in the accident. A purchased her car from a new car dealer several years ago. If P wishes to sue the car manufacturer, which of the following theories would offer P the best chance of succeeding in a jurisdiction that follows the majority view? •A. Implied warranty of merchantability. •B. Express warranty. •C. Strict liability in tort. •D. Each of the above theories has an equally good chance of success.

C. Strict liability in tort.

Plaintiff sues defendant in a negligence action arising out of an automobile accident. Plaintiff was the sole occupant of her car, and defendant was the driver of a car in which witness was riding. Both plaintiff and witness were injured in the accident, and both sued defendant for their injuries. Prior to trial, defendant and witness settled, and at trial, witness testifies for defendant that plaintiff's car crossed the centerline and crashed into defendant's car. On cross-examination of witness, plaintiff wishes to inquire about the settlement between defendant and witness. Defendant objects. How should the court rule? A.The court should exclude the evidence. B. The court should admit the evidence only to prove defendant's negligence. C. The court should admit the evidence only to impeach witness by showing bias. D. The court should admit the evidence both to prove the defendant's negligence and to impeach witness by showing bias.

C. The court should admit the evidence only to impeach witness by showing bias.

Plaintiff sues attorney for legal malpractice. Attorney formerly represented plaintiff in a breach of contract case. Plaintiff lost that case, and now claims it was because of the incompetent representation by attorney. Attorney claims she represented plaintiff competently, and that early in the litigation process, she advised plaintiff to take certain action to maximize her chances of prevailing, but the plaintiff refused to follow her advice. At trial, attorney wishes to testify about the advice she gave plaintiff and plaintiff's response. Plaintiff objects on grounds of attorney-client privilege. How should the court rule? A.The court should sustain the objection because plaintiff is the holder of the privilege, and plaintiff has manifested her intention to maintain the privilege. B. The court should sustain the objection because the attorney-client privilege continues as long as there is a client in existence. C. The court should overrule the objection because there is no privilege for communications relevant to an alleged breach of duty by the attorney or client arising from the relationship. D. The court should sustain the objection as to statements made by plaintiff to attorney, but overrule the objection as to the advice attorney gave to plaintiff

C. The court should overrule the objection because there is no privilege for communications relevant to an alleged breach of duty by the attorney or client arising from the relationship.

Plaintiff is at Airport riding up an escalator to reach the gates. Plaintiff is holding on to the handrail when the escalator malfunctions. The handrail stops moving, but the stairs keep moving, causing plaintiff to lose her balance and fall, breaking her leg. Plaintiff sues Airport for negligence, but presents no proof of why the handrail malfunctioned. Airport argues that the negligence case cannot go to the jury because Plaintiff presented no proof of breach. How should the court rule on Airport's argument? •A. The court should accept the argument because a plaintiff must show how a defendant failed to use ordinary care to avoid a reasonably foreseeable risk to the plaintiff. •B. The court should accept the argument because Plaintiff fell and no one pushed her. •C. The court should reject the argument if the jury could believe that this kind of escalator malfunction ordinarily does not occur in the absence of negligence of the person in charge of keeping the escalator in good repair. •D. The court should reject the argument because it is the defendant, not the plaintiff, that bears the burden of proving breach in a negligence case.

C. The court should reject the argument if the jury could believe that this kind of escalator malfunction ordinarily does not occur in the absence of negligence of the person in charge of keeping the escalator in good repair.

Assume each of the opinions listed below is relevant to a case. Which of the following opinions is a court least likely to allow a lay witness to give? A.The house smelled of gas just before the explosion. B. The car that passed us as we were trying to cross in the crosswalk was going at least 50 mph. C. The damage to the basement was caused by the water that seeped into the basement. D. The driver appeared to be intoxicated when he stepped out of the car moments after the crash. Would the court allow an expert witness to testify that the damage to the basement was caused by water seeping into the basement?

C. The damage to the basement was caused by the water that seeped into the basement. Yes, if the expert is qualified to offer such an opinion.

An automobile, a truck, and a motorcycle were involved in a three vehicle accident. The automobile driver sued the trucker and the motorcyclist, each of whom countersued the driver and sued each other. At trial, it was determined by the trier of fact that the driver suffered $10,000 in damages, the trucker suffered $1,000 in damages, and the motorcyclist suffered $100,000 in damages. It was also determined that the driver was 45% at fault, the trucker was 35% at fault, and the motorcyclist was 20% at fault. How would damages be assessed in a jurisdiction that has adopted a modified or "partial" form of comparative negligence? •A. The motorcyclist has a claim for $80,000, and the driver and the trucker have no claims. •B. The motorcyclist has a claim for $80,000, which she can collect from either the driver or the trucker, the trucker has a claim for $650, which he can collect only from the driver, and the driver has no claim. •C. The driver has a claim for $5,500, the trucker has a claim for $650, and the motorcyclist has a claim for $80,000. •D. The driver has a claim for $10,000, the trucker has a claim for $1,000, and the motorcyclist has a claim for $100,000.

C. The driver has a claim for $5,500, the trucker has a claim for $650, and the motorcyclist has a claim for $80,000.

Under the rule allowing exclusion of relevant evidence because its probative value is substantially outweighed by other considerations, which of the following is NOT to be considered? •A. The jury may be confused about the appropriate application of the evidence to the issues of the case. •B. The evidence is likely to arouse unfair prejudice on the part of the jury. •C. The opponent is surprised by the evidence and not fairly prepared to meet it. •D. The trial will be extended and made cumbersome by hearing evidence of relatively trivial consequence.

C. The opponent is surprised by the evidence and not fairly prepared to meet it.

At the trial of a civil action between plaintiff and defendant following an intersection collision between their cars, plaintiff calls witness, who was the only other witness to the accident. Just after plaintiff's attorney asks witness a question, defendant's attorney says, "I object, your honor. That question is clearly improper." The court overruled the objection. Defendant loses the case, and appeals the judgment on the basis of the court's ruling on the objection. Which of the following statements is most accurate? A.Because defendant objected at the appropriate time, the appellate court will reverse if any error in the court's ruling affected a substantial right of defendant. B. If the record clearly reflects the nature of the error, the appellate court will reverse because witness's testimony was crucial to plaintiff's case. C. Unless the record clearly reflects both the nature of the error and that it affected a substantial right of defendant, the appellate court will not reverse. D. Because defendant did not state the ground for the objection, the appellate court will not reverse.

C. Unless the record clearly reflects both the nature of the error and that it affected a substantial right of defendant, the appellate court will not reverse.

Plaintiff sues defendant for defamation. To prove the defamatory utterance was made, plaintiff calls Wilma, who testifies that she was in a group of plaintiff's business associates when defendant told the group that plaintiff was a "famous liar." During his case-in-chief, defendant calls Walter, Wilma's husband, to testify that Wilma suffers from moderate hearing loss and often forgets to wear her hearing aids. Which of the following statements is correct? A.Walter's testimony is admissible only if Wilma is given an opportunity to explain or deny the substance of Walter's testimony. B. Walter's testimony is admissible to impeach Wilma's character for truthfulness. C. Walter's testimony is admissible to impeach the accuracy of Wilma's testimony. D. Walter's testimony is inadmissible because extrinsic evidence may not be used in this situation.

C. Walter's testimony is admissible to impeach the accuracy of Wilma's testimony.

Plaintiff, a law professor, brings a wrongful discharge action against defendant university, his former employer. Plaintiff claims he was fired without cause. Defendant claims it fired plaintiff because rather than teaching Evidence, plaintiff taught quantum mechanics. Plaintiff denies this. To prove that plaintiff was teaching quantum mechanics, defendant calls witness, a student in plaintiff's class, to testify about the contents of a certain class session. Despite efforts to refresh witness's recollection, she cannot recall what took place on that day. Defendant then asked witness if she took notes during the class on that day and whether the notes accurately reflected what took place in the classroom. Witness answers "yes" to both questions. Defendant then asks witness to read aloud a page of her notes. The notes state that defendant discussed Schrodinger's cat, a quantum mechanics thought experiment. Plaintiff makes a hearsay objection. Which of the following statements is most accurate? A.Witness's notes are not hearsay because they are not offered to prove the truth of plaintiff's statements about quantum mechanics. The notes may be read into the record. B. Witness's notes are hearsay and because witness had no legal duty to record plaintiff's words accurately, no hearsay exception applies. C. Witness's notes are hearsay but may be read aloud by the witness under the doctrine of past recollection recorded. D. Witness's notes are not hearsay because defendant is merely using them to refresh the witness's recollection. They may therefore be read into the record.

C. Witness's notes are hearsay but may be read aloud by the witness under the doctrine of past recollection recorded.

In a civil action against defendant for sexually molesting Victim, a child, plaintiff (Victim's parent) in her case-in-chief wishes to call a Witness to testify (truthfully) that defendant molested Witness three years ago (when Witness was age 14). Defendant was never arrested nor convicted of molesting Witness. Which of the following is most likely correct? A.Witness's testimony is inadmissible hearsay. B. Witness's testimony is inadmissible because character evidence may not be admitted in a civil case. C. Witness's testimony is admissible character evidence. D. Witness's testimony is admissible because exclusion would violate Victim's due process rights.

C. Witness's testimony is admissible character evidence.

A farmer kept a pet bear at his farm. The bear was very old and had no teeth, no claws, and very little energy, but people liked to see the bear when they visited the farmer because no one else in the region had a pet bear. When the farmer first obtained the bear many years ago, he had a large steel cage constructed to house the animal. The cage had an electronic lock that only opened with a security code. Even though the bear was now old and harmless, it was always kept locked in the cage. One night during a severe storm while the farmer was out of town, a bolt of lightning hit the cage and the door opened. The bear left the cage and wandered off. The next morning, a 10-year-old girl was waiting on a country road for her school bus. The bear emerged from a wooded area about 100 feet from where the girl was standing and headed towards her. She screamed and turned to run, tripping on the road and breaking her arm when she fell. If the girl sues the farmer on a theory of strict liability for her bodily harm, will she prevail? •A. No, because the bear was in fact a non-dangerous animal. •B. No, because the damage she suffered was not the type of damage that a bear would normally cause. •C. Yes, because the bear is a wild animal. •D. Yes, because pet bears were not commonly kept in the community.

C. Yes, because the bear is a wild animal.

Defendant is on trial for the murder of his father. Defendant's defense is that he shot his father accidentally. The prosecutor calls Witness, a police officer, to testify that on two occasions in the year prior to this incident, he had been called to Defendant's home because of complaints of loud arguments between Defendant and his father, and had found it necessary to stop Defendant from beating his father. The evidence is •A. inadmissible, because it is improper character evidence. •B. inadmissible, because Witness lacks firsthand knowledge of who started the quarrels. •C. admissible to show that Defendant killed his father intentionally. •D. admissible to show that Defendant is a violent person.

C. admissible to show that Defendant killed his father intentionally. lack of mistake

Because of Farmer's default on his loan, the bank foreclosed on the farm and equipment that secured the loan. Among the items sold at the resulting auction was a new tractor recently delivered to Farmer by the retailer. Shortly after purchasing the tractor at the auction, Pratt was negligently operating the tractor on a hill when it rolled over due to a defect in the tractor's design. He was injured as a result. Pratt sued the auctioneer, alleging strict liability in tort. The jurisdiction has not adopted a comparative fault rule in strict liability cases. In this suit, the result should be for the •A. plaintiff, because the defendant sold a defective product that injured the plaintiff. •B. plaintiff, if the defendant failed to inspect the tractor for defects prior to sale. •C. defendant, because he should not be considered a "seller" for purposes of strict liability in tort. •D. defendant, because the accident was caused in part by Pratt's negligence.

C. defendant, because he should not be considered a "seller" for purposes of strict liability in tort.

Paulsen Corporation sued Dorr for ten fuel oil deliveries not paid for. Dorr denied that the deliveries were made. At trial, Paulsen calls its office manager, Wicks, to testify that Paulsen employees always record each delivery in duplicate, give one copy to the customer, and place the other copy in Paulsen's files; that he (Wicks) is the custodian of those files; and that his examination of the files before coming to court revealed that the ten deliveries were made. Wicks's testimony that the invoices show ten deliveries is •A. admissible, because it is based on regularly kept business records. •B. admissible, because Wicks has first-hand knowledge of the contents of the records. •C. inadmissible, because the records must be produced in order to prove their contents. •D. inadmissible, because the records are self-serving.

C. inadmissible, because the records must be produced in order to prove their contents.

At Devlin's trial for burglary, Jack supported Devlin's alibi that they were fishing together at the time of the crime. On cross-examination, Jack was asked whether his statement on a credit card application that he had worked for his present employer for the last five years was false. Jack denied that the statement was false. The prosecutor then calls Wilcox, the manager of the company for which Jack works, to testify that although Jack had been first employed five years earlier and is now employed by the company, there had been a three-year period during which he had not been so employed. The testimony of Wilcox is •A. admissible, in the judge's discretion, because Jack's credibility is a fact of major consequence to the case. •B. admissible, as a matter of right, because Jack "opened the door" by his denial on cross-examination. •C. inadmissible, because whether Jack lied in his application is a matter that cannot be proved by extrinsic evidence. •D. inadmissible, because the misstatement by Jack could have been caused by a misunderstanding of the application form.

C. inadmissible, because whether Jack lied in his application is a matter that cannot be proved by extrinsic evidence.

Plaintiff sued Defendant for personal injuries suffered in a train-automobile collision. Plaintiff called an eyewitness, who testified that the train was going 20 miles per hour. Defendant then offers the testimony of an experienced police accident investigator that, based on his training and experience and on his examination of the physical evidence, it is his opinion that the train was going between 5 and 10 miles per hour. Testimony by the investigator is •A. improper, because there cannot be both lay and expert opinion on the same issue. •B. improper, because the investigator is unable to establish the speed with a sufficient degree of scientific certainty. •C. proper, because a police accident investigator has sufficient expertise to express an opinion on speed. •D. proper, because Plaintiff first introduced opinion evidence as to speed.

C. proper, because a police accident investigator has sufficient expertise to express an opinion on speed.

A borrows B's car without permission and intends to return it 15 minutes later. Two minutes after borrowing the car, A is involved in an accident that seriously damages B's car. A was not at fault in the accident. Were any torts committed?

Conversion

A horse breeder offered to sell a colt to his neighbor and they agreed on a purchase price. The horse breeder subsequently received a letter from the neighbor thanking him for the sale and summarizing their agreement. The letter contained the neighbor's alleged signature. When the horse breeder attempted to set up transfer of the colt, the neighbor denied that she agreed to purchase it. In a breach of contract action against the neighbor, the horse breeder offers into evidence the letter. The horse breeder testifies that he is familiar with the neighbor's handwriting and recognizes the signature on the letter as being hers. Assuming appropriate objection by the neighbor, who claims that she did not sign the letter, the trial court should: •A. Exclude the letter for lack of foundation because lay opinion testimony regarding handwriting identification is not admissible. •B. Exclude the letter unless its authenticity is established by a preponderance of the evidence. •C. Admit the letter as authentic and instruct the jury accordingly. •D. Admit the letter but instruct the jury that it is up to them to decide whether the letter is authentic.

D. Admit the letter but instruct the jury that it is up to them to decide whether the letter is authentic.

In a contract suit between P and D, D testified that he recalls having his first conversation with P on January 23. When asked how he remembers the date, he answers, "In the conversation, P referred to an obituary of a mutual friend that was published in that day's newspaper." P's counsel moves to strike the reference to the newspaper. The judge should •A. Grant the motion on the ground that the original writing rule requires production of the newspaper itself. •B. Grant the motion because the reference to the newspaper story does not fit within any established exception to the hearsay rule. •C. Deny the motion on the ground that the court may take judicial notice of local newspapers and their contents. •D. Deny the motion on the ground that a witness may refer to collateral documents without providing the documents themselves.

D. Deny the motion on the ground that a witness may refer to collateral documents without providing the documents themselves.

The victim collapsed at her desk while drinking her morning coffee. Her secretary came rushing to her aid. Gasping for breath, the victim said, "I don't think I have much time left. I want you to remember when they come looking for suspects that I believe my assistant would kill for my job." The victim soon lost consciousness. She regained consciousness briefly after arriving at the hospital, but the doctors would not allow her to speak to anyone, including the police. She again lapsed into a coma, and she remains in a vegetative state. It was determined that she was poisoned. The assistant is arrested and charged with attempted murder. At the assistant's trial, the prosecution wishes to call the victim's secretary to testify to the victim's statement about the assistant before the ambulance arrived. The court should find the statement: A.Admissible, because it is a dying declaration. B.Admissible, because it is a declaration of the victim's state of mind. C.Admissible, as a statement of physical condition. D.Inadmissible, because it is hearsay not within any exception. If a civil claim was brought on behalf of the victim against the assistant for battery, would the victim's secretary be permitted to testify to the victim's statement?

D. Inadmissible, because it is hearsay not within any exception. Yes. A dying declaration may be admitted into evidence in a civil case even if the declarant survives, as long as (1) the declarant made the statement while believing her death was imminent, and (2) the declarant is unavailable at trial.

On trial for murdering her husband, Defendant testified she acted in self-defense. Defendant calls Expert, a psychologist, to testify that under hypnosis Defendant had described the killing, and that in Expert's opinion Defendant had been in fear for her life at the time of the killing. Is Experts' testimony admissible? •A. Yes, because Expert was able to ascertain that Defendant was speaking truthfully. •B. Yes, because it reports a prior consistent statement by a witness (Defendant) subject to examination concerning it. •C. No, because reliance on information tainted by hypnosis is unconstitutional. •D. No, because it expresses an opinion concerning Defendant's mental state at the time of the killing.

D. No, because it expresses an opinion concerning Defendant's mental state at the time of the killing.

Del's sporting goods shop was burglarized by an escaped inmate from a nearby prison. The inmate stole a rifle and bullets from a locked cabinet. The burglar alarm at Del's shop did not go off because Del had negligently forgotten to activate the alarm's motion detector. Shortly thereafter, the inmate used the rifle and ammunition stolen from Del in a shooting spree that caused injury to several people, including Paula. If Paula sues Del for the injury she suffered, will Paula prevail? •A. Yes, if Paula's injury would have been prevented had the motion detector been activated. •B. Yes, because Del was negligent in failing to activate the motion detector. •C. No, because the storage and sale of firearms and ammunition is not an abnormally dangerous activity. •D. No, unless there is evidence of circumstances suggesting a high risk of theft and criminal use of firearms stocked by Del.

D. No, unless there is evidence of circumstances suggesting a high risk of theft and criminal use of firearms stocked by Del.

•A young man borrowed his mother's car to go to a job interview. He was running late and made a left turn directly in front of a taxicab without looking. The cab driver was busy talking on his cell phone and did not see the man until it was too late, so the two cars collided. Had the cabdriver been paying proper attention, he could have avoided the accident. The cab's passenger was injured in the accident. The cab's passenger asserted a claim against the young man's mother for personal injuries. The jurisdiction retains the common law rule pertaining to the liability of car owners for the conduct of drivers. The passenger will: •A. Recover, because a car owner is vicariously liable for the tortious acts of the driver. •B. Recover, because the cab driver's negligence will not be imputed to the passenger. •C. Not recover, because the immediate cause of the collision was the cab driver's cell phone use. •D. Not recover, because the jurisdiction retains the common law rule.

D. Not recover, because the jurisdiction retains the common law rule.

At the trial of the plaintiff's breach of contract action against the defendant, the plaintiff called her accountant as a witness to testify about the difference in gross sales, gross income, and net profit caused by the defendant's failure to supply the promised quantity of ice cream to the plaintiff's ice cream shop. When the plaintiff's attorney asked the accountant to state the gross income figures for the year prior to the formation of the contract between the plaintiff and the defendant, the accountant replied he could not remember the exact amount. The plaintiff's counsel then handed the accountant a copy of the federal tax return submitted by the plaintiff for that year, and asked him to read it. Counsel then asked, "Now that you have read the tax return, can you remember what the gross income of the plaintiff's ice cream shop was for the relevant period?" The accountant answered, "Yes." Counsel then asked, "What was the gross income for that period?" The defendant's counsel objects. How should the court rule? A.Sustained, because the plaintiff's counsel is seeking to elicit testimony based on inadmissible hearsay. B. Sustained, because the accountant's testimony is not the best evidence. C. Overruled, because the accountant's hearsay testimony is admissible as a past recollection recorded. D. Overruled, because the accountant's testimony is admissible evidence relating to the plaintiff's damages.

D. Overruled, because the accountant's testimony is admissible evidence relating to the plaintiff's damages.

The plaintiff was badly injured in an automobile accident and spent several weeks recovering after he was released from the hospital. He has sued the driver of the other car for damages, including pain and suffering. At trial, the plaintiff's wife would testify that for six weeks after he came home from the hospital he complained of pain in his back and right hip every morning. The defendant's objection to the testimony should be: •A. Sustained, hearsay. •B. Sustained, the wife has no personal knowledge of the plaintiff's pain. •C. Overruled, statement by a party opponent. •D. Overruled, statement of then-existing physical condition.

D. Overruled, statement of then-existing physical condition.

In a negligence action, plaintiff sues defendant for an automobile accident arising from a collision at an intersection controlled by traffic signals. Plaintiff was driving east on one street, and defendant was driving north on the cross-street. Both parties claim that the other ran the light at the intersection, leading to the collision. At trial, plaintiff wishes to use a photograph to show the positions of the cars about 15 minutes after the collision. The photograph was taken by a passerby, who gave it to plaintiff. The passerby is not called to testify. Plaintiff seeks to authenticate the photograph by testifying that it accurately depicts the scene as it appeared immediately after the collision. Defendant objects, claiming lack of authentication. How should the court rule? A.The court should sustain the objection because plaintiff has not called the photographer to testify. B. The court should sustain the objection because the cars might have been moved between the time of the collision and the time the photograph was taken (15 minutes later). C. The court should sustain the objection because the photograph is not the best evidence of what happened at the time of the accident. D. The court should overrule the objection.

D. The court should overrule the objection.

Defendant is on trial for bank robbery. To prove that witness, not defendant, committed the crime, defendant calls witness and asks if witness committed the crime. Witness denies committing the crime. Defendant then asks witness if she admitted during her grand jury testimony that she had robbed the bank. Witness denies making such a statement. To prove witness's guilt, defendant wishes to offer witness's grand jury testimony admitting responsibility. Which of the following is correct? A.The evidence is inadmissible hearsay. B. The evidence is admissible as a party admission of witness. C. The evidence is admissible only if defendant did not know that witness would deny making the statement to the grand jury. D. The evidence is admissible non-hearsay to prove that witness committed the crime.

D. The evidence is admissible non-hearsay to prove that witness committed the crime.

Plaintiff sued Defendant for personal injuries arising out of an automobile accident. Which of the following would be ERROR? •A. The judge allows Defendant's attorney to ask Defendant questions on cross-examination that go well beyond the scope of direct examination by Plaintiff, who has been called as an adverse witness. •B. The judge refused to allow Defendant's attorney to cross-examine Defendant by leading questions. •C. The judge allows cross-examination about the credibility of a witness even though no question relating to credibility has been asked on direct examination. •D. The judge, despite Defendant's request for exclusion of witnesses, allows Plaintiff's eyewitness to remain in the courtroom after testifying, even though the eyewitness is expected to be recalled for further cross-examination.

D. The judge, despite Defendant's request for exclusion of witnesses, allows Plaintiff's eyewitness to remain in the courtroom after testifying, even though the eyewitness is expected to be recalled for further cross-examination.

A defendant is on trial for bribing a government procurement officer by providing the officer with free vacation facilities. When the defendant was approached by an FBI investigator, the defendant stated that her invitation to the procurement officer to spend his vacation in the defendant's mountain cabin was a favor to a friend, unrelated to his government office. The defendant also said to the investigator that she would reveal some "hot" information on a large-scale fraud in exchange for the investigator's promise to "stop worrying about a little vacation." Is the investigator's testimony about the defendant's offer to give information admissible? A.No, because it is hearsay not within any exception. B.No, because the defendant made the offer in a negotiation for settlement of a criminal investigation. C.Yes, as a matter observed and reported by the investigator pursuant to a duty imposed by law. D. Yes, as a statement of an opposing party.

D. Yes, as a statement of an opposing party. Because Rule 410 only excludes statements made during plea discussions with an attorney for the prosecuting authority.

A balloonist sued the manufacturer of deflation panels for hot air balloons after one of the panels failed while his balloon was descending, causing the balloon to crash and the balloonist to suffer severe injuries. At trial, the balloonist calls as a witness a structural engineer, who testifies, common to industry practice, her opinion is based on several reports done by an independent laboratory on the burst strength and material composition of the deflation panel closures. The balloonist's attorney then asks the engineer whether, in her opinion, the closures caused the deflation panel to give way. The manufacturer objects. Should the court admit this testimony? A.No, because the engineer did not perform the laboratory tests herself. B. No, because the laboratory reports are hearsay not within an exception. C. Yes, but the balloonist must offer into evidence the reports to which the engineer referred, so that the manufacturer may cross-examine as to them. D. Yes, because structural engineers reasonably rely on such reports in the course of their profession.

D. Yes, because structural engineers reasonably rely on such reports in the course of their profession.

A hot-air balloon touring company operated near a golf course. The company's property was separated from the golf course by a fence on which the company had posted signs warning people not to enter the property because of the dangers of balloons landing. A golfer on the golf course hit an errant shot onto the company's property, ignored the warning signs, and jumped over the fence to retrieve her golf ball. At about the same time, one of the company's balloons experienced mechanical problems and had to make an emergency landing to avoid crashing. The balloon, which was out of control when it landed, struck the golfer and injured her. In an action by the golfer against the company, does the company have any affirmative defenses? •A. No, because the balloon was out of control when it struck the golfer. •B. No, because the company was engaged in an abnormally dangerous activity. •C. Yes, because the balloon landed to avoid crashing. •D. Yes, because the golfer assumed the risk by coming onto the company's property.

D. Yes, because the golfer assumed the risk by coming onto the company's property.

Pedestrian died from injuries caused when Driver's car struck him. Executor, Pedestrian's executor, sued Driver for wrongful death. At trial, Executor calls Nurse to testify that two days after the accident, Pedestrian said to Nurse, "The car that hit me ran the red light." Fifteen minutes thereafter, Pedestrian died. As a foundation for introducing evidence of Pedestrian's statement, Executor offers to the court Doctor's affidavit that Doctor was the intern on duty the day of the Pedestrian's death and that several times that day Pedestrian had said that he knew he was about to die. Is the affidavit properly considered by the court in ruling on the admissibility of Pedestrian's statement? •A. No, because it is hearsay not within any exception. •B. No, because it is irrelevant since dying declarations cannot be used except in prosecutions for homicide. •C. Yes, because, though hearsay, it is a statement of then-existing mental condition. •D. Yes, because the judge may consider hearsay in ruling on preliminary questions.

D. Yes, because the judge may consider hearsay in ruling on preliminary questions.

A defendant is on trial for possession of heroin. During the prosecution's case-in-chief, a police officer testifies that he watched another officer seize a bag of white powder from the defendant and seal it in an envelope, which both officers initialed and dated and then placed in the police property room. The prosecutor then calls a chemist to testify that she obtained, intact from the property room, the dated, sealed envelope with the initials of both police officers, whose handwriting she recognized from previous experience, and that testing disclosed that the powder therein was heroin. The defendant argues that the prosecutor has not sufficiently authenticated the powder tested by the chemist as the powder that was seized from the defendant. Is the chemist's testimony admissible? •A. No, because the chemist lacks firsthand knowledge that the powder came from the defendant. •B. No, unless the envelope and powder are produced in court or their absence is explained. •C. Yes, because an object in official custody is self-authenticating. •D. Yes, because the powder is sufficiently identified as having come from the defendant.

D. Yes, because the powder is sufficiently identified as having come from the defendant.

A plaintiff has sued the government for injuries she received when her car was allegedly forced off the road by a military convoy. At trial, an eyewitness testifies for the plaintiff and then is asked on cross-examination whether he belongs to a religious group that refuses on principle to file federal tax returns, because the revenues are used to build weapons of war. Is the question proper? •A. No, because evidence of the witness's religious beliefs cannot be used for impeachment in this case. •B. No, because the witness's character cannot be impeached by evidence of criminal acts, but only by convictions. •C. Yes, because a person's willingness to violate tax laws indicates possible willingness to testify falsely. •D. Yes, because the witness's beliefs are relevant to the possibility of bias.

D. Yes, because the witness's beliefs are relevant to the possibility of bias.

Defendant is on trial for participating in a drug sale. The prosecution calls Witness, an undercover officer, to testify that, when Seller sold the drugs to Witness, Seller introduced Defendant to Witness as "my partner in this" and Defendant shook hands with Witness but said nothing. Witness's testimony is •A. inadmissible, because there is no evidence that Seller was authorized to speak for Defendant. •B. inadmissible, because the statement of Seller is hearsay not within any exception. •C. admissible as a statement against Defendant's penal interest. •D. admissible as Defendant's adoption of Seller's statement.

D. admissible as Defendant's adoption of Seller's statement.

Plaintiff sued Defendant for injuries sustained in an automobile collision. During Plaintiff's hospital stay, Doctor, a staff physician, examined Plaintiff's X-rays and said to Plaintiff, "You have a fracture of two vertebrae, C4 and C5." Intern, who was accompanying Doctor on her rounds, immediately wrote the diagnosis on Plaintiff's hospital record. At trial, the hospital records custodian testifies that Plaintiff's hospital record was made and kept in the ordinary course of the hospital's business. The entry reporting Doctor's diagnosis is •A. inadmissible, because no foundation has been laid for Doctor's competence as an expert. •B. inadmissible, because Doctor's opinion is based upon data that are not in evidence. •C. admissible as a statement of then existing physical condition. •D. admissible as a record of regularly conducted business activity.

D. admissible as a record of regularly conducted business activity.

Plaintiff sued Defendant under an age discrimination statute, alleging that Defendant refused to hire Plaintiff because she was over age 65. Defendant's defense was that he refused to employ Plaintiff because he reasonably believed that she would be unable to perform the job. Defendant seeks to testify that Employer, Plaintiff's former employer, advised him not to hire Plaintiff because she was unable to perform productively for more than four hours a day. The testimony of Defendant is •A. inadmissible, because Defendant's opinion of Plaintiff's abilities is not based on personal knowledge. •B. inadmissible, because Employer's statement is hearsay not within any exception. •C. admissible as evidence that Plaintiff would be unable to work longer than four hours per day. •D. admissible as evidence for Defendant's reason for refusing to hire Plaintiff.

D. admissible as evidence for Defendant's reason for refusing to hire Plaintiff.

Passenger is suing Defendant for injuries suffered in the crash of a small airplane, alleging that Defendant had owned the plane and negligently failed to have it properly maintained. Defendant has asserted in defense that he never owned the plane or had any responsibility to maintain it. At trial, Passenger calls Witness to testify that Witness had sold to Defendant a liability insurance policy on the plane. The testimony of Witness is •A. inadmissible, because the policy itself is required under the original document rule. •B. inadmissible, because of the rule against proof of insurance where insurance is not itself at issue. •C. admissible to show that Defendant had little motivation to invest money in maintenance of the airplane. •D. admissible as some evidence of Defendant's ownership of or responsibility for the airplane.

D. admissible as some evidence of Defendant's ownership of or responsibility for the airplane.

At Darrow's trial for stealing an automobile, Darrow called a character witness, Goode, who testified that Darrow had an excellent reputation for honesty. In rebuttal, the prosecutor calls Wick to testify that he recently saw Darrow cheat on a college examination. This evidence should be •A. admitted, because Darrow has "opened the door" to the prosecutor's proof of bad character evidence. •B. admitted, because the cheating involves "dishonesty or false statement." •C. excluded, because it has no probative value on any issue in the case. •D. excluded, because Darrow's cheating can be inquired into only on cross-examination of Goode.

D. excluded, because Darrow's cheating can be inquired into only on cross-examination of Goode.

Parr sued Davis for damages for physical injuries allegedly caused by Davis's violation of the federal civil rights law. The incident occurred wholly within the state of Chippewa but the case was tried in federal court. The Chippewa state code says, "The common-law privileges are preserved intact in this state." At trial, Davis called Dr. Webb, Parr's physician, to testify to confidential statements made to him by Parr in furtherance of medical treatment for the injuries allegedly caused by Davis. Parr objects, claiming a physician-patient privilege. The court should apply •A. state law and recognize the claim of privilege. •B. federal law and recognize the claim of privilege. •C. state law and reject the claim of privilege. •D. federal law and reject the claim of privilege.

D. federal law and reject the claim of privilege.

Plaintiff's estate sued Defendant Stores claiming that Guard, one of Defendant's security personnel, wrongfully shot and killed Plaintiff when Plaintiff fled after being accused of shoplifting. Guard was convicted of manslaughter for killing Plaintiff. At his criminal trial Guard, who was no longer working for Defendant, testified that Defendant's security director had instructed him to stop shoplifters "at all costs." Because Guard's criminal conviction is on appeal, he refuses to testify at the civil trial. Plaintiff's estate then offers an authenticated transcript of Guard's criminal trial testimony concerning the instructions of Defendant's security director. The evidence is •A. admissible, as a statement of an agent of a party-opponent. •B. admissible, because the instruction from the security director is not hearsay. •C. admissible, although hearsay, as former testimony •D. inadmissible, because it is hearsay not within any exception.

D. inadmissible, because it is hearsay not within any exception.

A borrows B's car without permission (or with permission based fraud or misrepresentation) and drives it for 5,000 miles without any damage. Were any torts committed?

Probably Conversion b/c high mileage.

A casually walks up to B and says, "I'm going to beat you to a pulp!" Were any torts committed? Would your answer change if, at the time A made the statement, A was swinging his fist at (or running violently toward) B?

Probably not, because the threat of battery is not imminent. Assault, because A's words and actions combine to make the threat of battery imminent.

The National Inquirer publishes a story claiming that Tom Cruise is being treated by a psychiatrist. The paper bases its story on three anonymous tips and on the fact that Tom was seen entering a building that contains several psychiatrist offices. It turns out the story was untrue. Were any torts committed?

Probably not, because there is no evidence of "actual malice."

P purchases a new truck from X for use in P's delivery business. Because of a defect in the electrical system, the truck catches fire and is totally destroyed. There were no personal injuries and no other property was damaged. P sues X for negligence and strict tort liability, seeking damages for the cost of the truck and for the profits P lost by not having a delivery truck. X moves to dismiss both claims. How should the court rule?

The court should grant the motion because P seeks only economic loss, which may not be recovered in a tort action.

A entered an out-patient clinic for a minor operation on his face. Before entering the operating room, A was in excellent condition. A was unconscious during the operation. When A awoke, he discovered that his right leg was broken in three places. A was in the care of clinic employees during the entire operation. A sues the clinic. At trial, A was unable to produce any evidence to prove what caused his injury. The clinic moved for a directed verdict. Result? If A survives the motion for directed verdict and the clinic puts on no evidence, what result?

The directed verdict should be denied because the clinic had exclusive control over A and this type of injury does not occur unless someone was negligent. Because RIL creates only a "permissive" inference, the jury could rule for A or the clinic.

A is walking by an eight-story condominium building. The building contains 75 condos with 75 different owners. As A was walking by the building, a chair fell out of a window and hit A, injuring A. A sued all 75 owners for negligence. At trial, A was unable to produce any evidence to prove what caused the chair to fall out of the window or from which window the chair fell. The 75 defendants moved for a directed verdict. Result?

The directed verdict should be granted because there is no evidence to prove that any one of the 75 defendants had exclusive control over the instrumentality or condition that caused the injury.

A returned home late at night. He mistakenly entered his neighbor's unlocked front door, thinking that it was his house. Were any torts committed? Would your answer change if A were intoxicated?

Trespass to land No. Intoxication is not a defense to intentional torts.

A was born with a genetic predisposition to heart disease. While leaving a tavern late one night, he was accosted by B, who ordered A to hand over his wallet. When A resisted, B hit A in the chest with his fist, which resulted in A suffering a heart attack. Is B liable for the entire injury?

Yes, A's heart attack is within the scope of B's liability as a matter of law.

A, who owns a sports memorabilia shop, sells B an autographed baseball card he claims was signed by Sammy Sosa. B, a big Sosa fan, paid $200 for the card, believing it was authentic. The card was not signed by Sosa; it was actually signed by A himself. The forged signature was not apparent to B or other amateur collectors, but nearly any expert would have spotted it. As a result, it is worth only one dollar; if it had been authentic, it would be worth $250. Were any torts committed? What is the amount of plaintiff's damages (in contract)?

Yes, intentional fraud; B had no duty to investigate the authenticity of the signature. A defendant cannot defeat a claim for fraud by saying that the plaintiff was stupid for believing him. $249

A kisses B while B is asleep. B did not see or feel the kiss, and was not injured. Were any torts committed?

Yes, offensive contact

A taps B on the shoulder to ask B for the time. B was not injured. If A knew that B was a "germophobe" who had not been touched by a human in 30 years are any torts committed?

Yes, offensive contact because A knew of B's sensitivity

A is driving his car at 75 MPH in a school zone. B is crossing the street in a crosswalk and is forced to jump out of the way of A's speeding car. A's car did not impact B, but frightened B so much that B suffered a heart attack. May B recover for NIED?

Yes, this is a classic NIED fact-pattern.

A negligently drives his car into B, a pedestrian. B receives only a small scratch in the accident but, because B suffers from hemophilia (a fact that A did not know or have reason to know), B is required to spend six months in the hospital and undergo numerous expensive treatments. Is A liable for the entire injury?

Yes.

A statute in Ohio prohibits drivers from crossing double yellow lines in the middle of highways. This statute is designed to prevent head-on collisions. While driving, A crosses a double yellow line and hits B's car head-on, injuring B. Is this negligence per se?

Yes.

A pulls the chair out from under B while B is sitting down. B falls to the ground, breaking her hip. Were any torts committed?

Yes. Battery—indirect harmful contact.

W was driving west on I-40 when she noticed D pass her at about 80 miles per hour. About a minute later she passed the scene of an accident involving D and another vehicle (driven by P). W was called to testify in an action by P that she had observed D approximately a mile from the accident traveling at an excessive speed. D's speed at the time of the accident is a material issue in the trial. W's testimony should be •a. admitted, because it tends to prove that D was speeding at the time of the accident. •b. admitted, but only if W is qualified as an expert at judging vehicular speed. •c. excluded, unless it is proved that D has a habit of speeding every time he travels on the highway. •d. excluded, because it is character evidence offered in a civil trial.

a. admitted, because it tends to prove that D was speeding at the time of the accident.

One morning Tess telephoned her next-door neighbor Wilma and asked if she could borrow Wilma's car. Tess explained that her car was being serviced. Tess told Wilma that she had a doctor's appointment that afternoon and would return the car immediately afterwards. Wilma agreed to let Tess use her car. As Tess was driving to her appointment, she collided with a car driven by P. As a result of the accident, P brought suit against Wilma and Tess to recover for her personal injuries. P asserted a claim against Wilma for negligent entrustment of an automobile and charged Tess with negligent operation of a motor vehicle. In her case-in-chief, P called Vernon to testify to three incidents in which Wilma loaned her car to careless drivers during the past six months. The trial judge should rule Vernon's testimony •a. admissible, as circumstantial evidence that Wilma was negligent on this occasion. •b. admissible, since Vernon had personal knowledge of Tess's poor driving record. •c. admissible against Wilma, but not Tess. •d. inadmissible.

d. inadmissible.

The police arrested the defendant and charged him with murder. After the defendant's arrest, two police officers went to his home, where they found his wife. The victim had been killed on the night of March 13, and the officers asked the wife to give them the jacket that the defendant wore on the evening of March 13. Without saying a word, the wife handed the officers a jacket that was covered with bloodstains. Crime lab tests established that the blood on the jacket matched the victim's blood characteristics. At the defendant's trial for murder, the prosecution seeks to introduce the jacket into evidence. Assuming the prosecution successfully establishes a foundation, if the defense objects to the jacket's admissibility, the court should rule that the jacket is: •(A) Admissible, as relevant evidence linking the defendant to the crime. •(B) Admissible, because the wife waived the marital privilege by handing over the jacket. •(C) Inadmissible, as hearsay not within any exception. •(D) Inadmissible, because of the privilege against self-incrimination.

•(A) Admissible, as relevant evidence linking the defendant to the crime.

•Gasco owns a storage facility where flammable gases are stored in liquified form under high pressure in large spherical tanks. The facility was constructed for Gasco by Acme Company, a firm that specializes in the construction of such facilities. After the facility had been in use for five years, an explosion in the facility started a large fire that blanketed the surrounding countryside with a high concentration of oily smoke. Farber owns a large truck farm near the facility. His entire lettuce crop was destroyed by the smoke. If Farber asserts a claim against Gasco for the loss of his lettuce crop and is unable to show any negligence on the part of Gasco, will Farber prevail? •(A) Yes, because the operation of the storage facility was an abnormally dangerous activity. •(B) Yes, because the intrusion of the smoke onto Farber's farm amounted to a trespass. •(C) No, if the explosion was caused by internal corrosion that reasonable inspection procedures would not have disclosed. •(D) No, if the explosion was caused by negligent construction on Acme's part.

•(A) Yes, because the operation of the storage facility was an abnormally dangerous activity.

Rider, a bus passenger, sued Transit Company for injuries to his back from an accident caused by Transit's negligence. Transit denies that Rider received any injury in the accident. Rider's counsel seeks to introduce an affidavit he obtained in preparation for trial from Dr. Bond, who has since died. The affidavit states that Dr. Bond examined Rider two days after the Transit Company accident and found him suffering from a recently incurred back injury. Assume the same facts as the prior slide. Transit Company calls Observer to testify that right after the accident, Rider told him that he had recently suffered a recurrence of an old back injury. The judge should rule Observer's testimony •(A) admissible, as an admission of a party opponent. •(B) admissible, as a spontaneous declaration. •(C) inadmissible, because it is irrelevant. •(D) inadmissible, because it is hearsay, not within any exception.

•(A) admissible, as an admission of a party opponent.

•Professor Merrill, in a lecture in her psychology course at a private university, described an experiment in which a group of college students in a neighboring city rushed out and washed cars stopped at traffic lights during the rush hour. She described how people reacted differently—with shock, joy, and surprise. At the conclusion of her report, she said, "You understand, of course, that you are not to undertake this or any other experiment unless you first clear it with me." Four of Merrill's students decided to try the same experiment but did not clear it with Merrill. One subject of their experiment, Carr, said, "I was shocked. There were two people on each side of the car. At first I thought negatively. I thought they were going to attack me and thought of driving away. Then I quieted down and decided there were too many dirty cars in the city anyway." If Carr asserts a claim against the students who washed his car, his best theory is •(A) assault. •(B) negligence. •(C) invasion of privacy. •(D) false imprisonment.

•(A) assault.

•Assume the same facts as the prior slide. If Parker asserts a claim against Driver for damage to Parker's automobile, the most likely result is that Parker will •(A) recover, because the purpose of the ordinance is to provide access to the fire hydrant. •(B) recover, because Driver's negligence was later in time than Parker's act of parking. •(C) not recover, because Parker was contributorily negligent as a matter of law. •(D) not recover, because Parker's action in parking unlawfully was a continuing wrong.

•(A) recover, because the purpose of the ordinance is to provide access to the fire hydrant.

•The defendant was charged with reckless driving after his car hit a car driven by a priest. At trial, the passenger in the defendant's car at the time of the accident testified that the priest slammed on the brakes with no warning before the accident. The defendant was acquitted of the reckless driving charge. Subsequently, the priest sued the defendant for personal injuries and property damages. At the civil trial, counsel for the defendant asked the passenger, "Did the priest stop suddenly before the defendant hit him?" The passenger, who was angry with the defendant after a recent argument, responded, "I don't remember it that way. The priest may have slowed down a bit." The defense attorney seeks to introduce the transcript of the passenger's statement from the criminal trial. The priest's attorney objects. The transcript is: •(A) Admissible, for impeachment purposes only. •(B) Admissible, for impeachment purposes and as substantive evidence. •(C) Inadmissible, because it is hearsay. •(D) Inadmissible, because the passenger is not unavailable.

•(B) Admissible, for impeachment purposes and as substantive evidence.

•A motorist was driving his car down the street when he struck a 10-year-old boy who had darted into the road to retrieve a bouncing ball. After the accident, the boy's mother refused to take the boy for treatment on religious grounds. As a result, the boy's injuries were more severe than they would otherwise have been. The boy's best chance to recover for all of his injuries is to argue that: •(A) The doctrine of avoidable consequences at most bars recovery for the aggravation of his injuries, but not for the original injuries themselves. •(B) Any negligence on the mother's part is not to be imputed to her child. •(C) Victims have no duty to take steps for their own safety after the accident. •(D) Defendants must take their victims as they find them, including their mothers' attitudes toward medical treatment

•(B) Any negligence on the mother's part is not to be imputed to her child.

•A plaintiff sued a chimney sweeping company for personal injury and property damages resulting from an explosion in her chimney the evening after the company had cleaned it. The explosion, which occurred when the plaintiff lit a fire in the fireplace, caused minor damage to the chimney, roof, and to the plaintiff, who was hit by falling bricks. As evidence that she assumed the risk of injury, the company offers to have its foreman testify that he told the plaintiff not to use the fireplace for 48 hours to allow certain chemicals to evaporate. Is the foreman's proposed testimony hearsay? •(A) No, because the declarant is testifying as a witness at the hearing. •(B) No, because the statement is not offered for its truth. •(C) Yes, but it should be admitted as present recollection recorded. •(D) Yes, but it should be admitted under the present state of mind exception to the hearsay rule.

•(B) No, because the statement is not offered for its truth.

•Landco purchased a large tract of land intending to construct residential housing on it. Landco hired Poolco to build a large in-ground swimming pool on the tract. The contract provided that Poolco 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 Plaintiff's action for damages against Landco, Plaintiff should •(A) Prevail, only if Landco retained the right to direct and control Poolco's construction of the pool. •(B) Prevail, because the blasting that Poolco was hired to perform damaged Plaintiff's home. •(C) Not prevail, if Poolco used reasonable care in conducting the blasting operations. •(D) Not prevail, if Landco used reasonable care to hire a competent contractor.

•(B) Prevail, because the blasting that Poolco was hired to perform damaged Plaintiff's home.

Two neighbors who worked in a nearby large city alternated days driving. Because the commute took them through a crime-ridden area, one commuter was vigilant about keeping her car well-maintained, but the other failed to maintain her car or bring it in for servicing, despite the first commuter's complaints and dashboard warning lights indicating that it needed servicing. One evening after dark when the latter was driving them both home from work, her car died just as they were passing through a dangerous neighborhood. The passenger, who was calling for assistance on her cell phone, protested when the driver opened her door to look at the engine. Two assailants appeared and beat and robbed the driver and passenger. Does the passenger have a valid claim against the driver for her injuries? •(A) Yes, because the driver owed her the same increased level of care that a common carrier owed its passenger. •(B) Yes, because the jury could reasonably conclude that the driver's negligence increased the risk that the passenger would be the victim of criminal activity. •(C) No, because independent criminal acts of third persons are considered intervening forces that supersede any negligence by the driver. •(D) No, because the driver had no duty to prevent criminal attacks on the passenger.

•(B) Yes, because the jury could reasonably conclude that the driver's negligence increased the risk that the passenger would be the victim of criminal activity.

•Drew was tried for the July 21 murder of Victor. In his case in chief, Drew called his first witness, Wilma, to testify to Drew's reputation in his community as a "peaceable man." The testimony is •(A) admissible as tending to prove that Drew is believable. •(B) admissible as trying to prove that Drew is innocent. •(C) inadmissible, because Drew has not testified. •(D) inadmissible, because reputation is not a proper way to prove character.

•(B) admissible as trying to prove that Drew is innocent.

•An ordinance of City makes it unlawful to park a motor vehicle on a City street within 10 feet of a fire hydrant. At 1:55 p.m., Parker, realizing that he must be in Bank before it closed at 2:00 p.m., and finding no other space available, parked his automobile in front of a fire hydrant on a City street. Parker then hurried into the bank, leaving his aged neighbor, Ned, as a passenger in the rear seat of the car. About five minutes later, and while Parker was still in Bank, Driver was driving down the street. Driver swerved to avoid what he mistakenly thought was a hole in the street and sideswiped Parker's car. Parker's car was turned over on top of the hydrant, breaking the hydrant and causing a small flood of water. Parker's car was severely damaged and Ned was badly injured. If Ned asserts a claim against Parker, the most likely result is that Ned will •(A) recover, because Parker's action was negligence per se. •(B) recover, because Parker's action was a continuing wrong which contributed to Ned's injuries. •(C) not recover, because a reasonably prudent person could not foresee injury to Ned as a result of Parker's action. •(D) not recover, because a violation of a city ordinance does not give rise to a civil cause of action.

•(C) not recover, because a reasonably prudent person could not foresee injury to Ned as a result of Parker's action.

•In a jury trial, Owner proved that Power Company's negligent maintenance of a transformer caused a fire that destroyed his restaurant. The jury returned a verdict for Owner in the amount of $450,000 for property loss and $500,000 for emotional distress. The trial judge entered judgment in those amounts. Power Company appealed that part of the judgment awarding $500,000 for emotional distress. On appeal, the judgment should be • (A) affirmed, because Power Company negligently caused Owner's emotional distress. •(B) affirmed, because harm arising from emotional distress is as real as harm caused by physical impact. •(C) reversed, because the law does not recognize a claim for emotional distress incident to negligently caused property loss. •(D) reversed, unless the jury found that Owner suffered physical harm as a consequence of the emotional distress caused by his property loss.

•(C) reversed, because the law does not recognize a claim for emotional distress incident to negligently caused property loss.

Huckleberry was a passenger on a tour bus owned and operated by Bus Co. (not a common carrier). At one point, the driver pulled over to the side of the road so she could fix something on her uniform, which had become uncomfortable. While the bus was stopped, it was struck from the rear by another vehicle. Huckleberry was injured when the collision caused him to hit his head on a metal bar. Huckleberry sues Bus Co. for negligence, alleging that the driver had a duty not to stop the bus except at designated rest stops and that she breached her duty by stopping when she did. Bus Co. regulations provide that drivers must stop only at designated rest stops. Which of the following statements is accurate? •(A) Because the driver's conduct violated company regulations, her actions were a superseding cause of Huckleberry's harm, defeating Huckleberry's claim. •(B) The driver's conduct, if negligent, would be viewed as a superseding cause, defeating Huckleberry's claim. •(C) Because the driver's conduct constituted an intentional tort, Bus Co. may not be held vicariously liable. •(D) If the driver's conduct was unreasonable, Huckleberry can recover against Bus Co.

•(D) If the driver's conduct was unreasonable, Huckleberry can recover against Bus Co.

•Landco owns and operates a 12-story apartment building containing 72 apartments, 70 of which are rented. Walker has brought an action against Landco alleging that while he was walking along a public sidewalk adjacent to Landco's apartment building a flowerpot fell from above and struck him on the shoulder, causing extensive injuries. The action is to recover damages for those injuries. If Walker proves the foregoing facts and offers no other evidence explaining the accident, will his claim survive a motion for directed verdict offered by the defense? •(A) Yes, because Walker was injured by an artificial condition of the premises while using an adjacent public way. •(B) Yes, because such an accident does not ordinarily happen in the absence of negligence. •(C) No, if Landco is in no better position than Walker to explain the accident. •(D) No, because there is no basis for a reasonable inference that Landco was negligent.

•(D) No, because there is no basis for a reasonable inference that Landco was negligent.

•Dieter parked her car in violation of a city ordinance that prohibits parking within 10 feet of a fire hydrant. Because Grove was driving negligently, his car sideswiped Dieter's parked car. Plaintiff, a passenger in Grove's car, was injured in the collision. If Plaintiff asserts a claim against Dieter to recover damages for his injuries, basing his claim on Dieter's violation of the parking ordinance, will Plaintiff prevail? •(A) Yes, because Dieter was guilty of negligence per se. •(B) Yes, if Plaintiff would not have been injured had Dieter's car not been parked where it was. •(C) No, because Dieter's parked car was not an active or efficient cause of Plaintiff's injury. •(D) No, if prevention of traffic accidents was not a purpose of the ordinance.

•(D) No, if prevention of traffic accidents was not a purpose of the ordinance.

In a state that imposed a maximum speed limit of 65 m.p.h. by statute, a truck driver was going 75 m.p.h. on a stretch of highway when a car pulled in front of her. The truck driver was unable to stop in time and hit the car, pushing it into the next lane where it was struck by a bus traveling the speed limit. The collision with the bus caused serious injury to the driver of the car. In an action against the truck driver for negligence, uncontroverted evidence was introduced that, even if the truck driver had been going 65 m.p.h., she would have struck the car and pushed it into the path of the bus. The injured driver most likely will: •(A) Prevail, because the truck driver's breach of the speed limit statute was negligence per se. •(B) Prevail, because the truck driver's conduct was criminal as well as tortious. •(C) Prevail, but the injured driver's recovery will be reduced by the percentage of fault attributed to him by the trier of fact for pulling in front of the truck driver. •(D) Not prevail, because the violation of the speed law was not a cause in fact of the harm.

•(D) Not prevail, because the violation of the speed law was not a cause in fact of the harm.

•Acorp and Beeco are companies that each manufacture pesticide X. Their plants are located along the same river. During a specific 24-hour period, each plant discharged pesticide into the river. Both plants were operated negligently and such negligence caused the discharge of the pesticide into the river. Landesmann operated a cattle ranch downstream from the plants of Acorp and Beeco. Landesmann's cattle drank from the river and were poisoned by the pesticide. The amount of the discharge from either plant alone would not have been sufficient to cause any harm to Landesmann's cattle. If Landesmann asserts a claim against Acorp and Beeco, what, if anything, will Landesmann recover? •(A) Nothing, because neither company discharged enough pesticide to cause harm to Landesmann's cattle. •(B) Nothing, unless Landesmann can establish how much pesticide each plant discharged. •(C) One-half of Landesmann's damages from each company. •(D) The entire amount of Landesmann's damages, jointly and severally, from the two companies.

•(D) The entire amount of Landesmann's damages, jointly and severally, from the two companies.

•The owner of a shopping mall hired a construction company to design and construct a new entryway to the mall. The construction company negligently selected an unusually slippery material for the floor covering. A week after the entryway was completed, a customer who had come to the mall to buy cosmetics slipped on the floor of the entryway, sustaining injuries. The customer sued the mall owner for the construction company's negligent design of the mall's entryway. Will the injured customer be likely to recover damages? •(A) No, because the construction company will likely be considered an independent contractor. •(B) No, because no other customers had previously slipped on the floor. •(C) Yes, because the customer intended to make a purchase at the mall. •(D) Yes, because the mall's duty to maintain safe conditions was nondelegable.

•(D) Yes, because the mall's duty to maintain safe conditions was nondelegable

•Assume the same facts as the prior slide. If Farber asserts a claim against Acme Company for the loss of his lettuce crop, will Farber prevail? •(A) No, if Acme did not design the storage facility. •(B) No, because Acme was an independent contractor. •(C) Yes, because the operation of the storage facility was an abnormally dangerous activity. •(D) Yes, if the explosion resulted from a defect of which Acme was aware.

•(D) Yes, if the explosion resulted from a defect of which Acme was aware.

•The most generally accepted basis on which a court will hold that X has a legal duty to aid another is the recognition by X that there is immediate danger of serious harm to •(A) another human being from a stranger's wrongful conduct. •(B) his neighbor from a stranger's wrongful conduct. •(C) his cousin from a stranger's wrongful conduct. •(D) another human being from X's own non-negligent conduct.

•(D) another human being from X's own non-negligent conduct.

Park brought an action against Dan for injuries received in an automobile accident, alleging negligence in that Dan was speeding and inattentive. Park calls White to testify that Dan had a reputation in the community of being a reckless driver and was known as "daredevil Dan." White's testimony is •(A) admissible as habit evidence. •(B) admissible, because it tends to prove that Dan was negligent at the time of this collision. •(C) inadmissible, because Dan has not offered testimony of his own good character. •(D) inadmissible to show negligence.

•(D) inadmissible to show negligence.

•. Miller is tried for armed robbery of the First Bank of City. The prosecutor offers the testimony of a bartender who will say that when he saw the money in Miller's wallet, he said, "You must have robbed a bank," to which Miller made no reply. This evidence is •(A) admissible to prove that Miller's conduct caused the bartender to believe that Miller robbed the bank. •(B) admissible as a statement made in the presence of the defendant. •(C) inadmissible, because it would violate Miller's privilege against self-incrimination. •(D) inadmissible, because Miller had no reason to respond to the bartender's statement.

•(D) inadmissible, because Miller had no reason to respond to the bartender's statement.

•D was tried for the July 1 murder of V. D did not testify at trial. In his case-in-chief, D called as his first witness W to testify to D's reputation in his community as an "honest man." The testimony is •(A) admissible as tending to prove D is believable. •(B) admissible as tending to prove D is innocent. •(C) admissible as proper opinion testimony. •(D) inadmissible.

•(D) inadmissible. Must be for a relevant character trait & truthfulness is not relevant for murder.

•D was tried for the July 1 murder of V. D did not testify at trial. D called Z to testify to alibi. On cross-examination of Z, the prosecutor asked, "Isn't it true that you were convicted of perjury last year?" This question is •(A) improper because it goes beyond the scope of direct examination. •(B) improper, unless its probative value outweighs the prejudice to D. •(C) proper, but only if the maximum punishment for perjury was more than one year imprisonment. •(D) proper.

•(D) proper.

In a jurisdiction without a Dead Man's Statute, Parker's estate sued Davidson claiming that Davidson had borrowed from Parker $10,000, which had not been repaid as of Parker's death. Parker was run over by a truck. At the accident scene, while dying from massive injuries, Parker told Officer Smith to "make sure my estate collects the $20,000 I loaned to Davidson." Smith's testimony about Parker's statement is •A. inadmissible, because it is more unfairly prejudicial than probative. •B. inadmissible, because it is hearsay not within any exception. •C. admissible as an excited utterance. •D. admissible as a statement under belief of impending death.

•B. inadmissible, because it is hearsay not within any exception.

Plaintiff is suing Doctor for medical malpractice occasioned by allegedly prescribing an incorrect medication, causing Plaintiff to undergo substantial hospitalization. When Doctor learned of the medication problem, she immediately offered to pay Plaintiff's hospital expenses. At trial, Plaintiff offers evidence of Doctor's offer to pay the costs of his hospitalization. The evidence of Doctor's offer is •A. admissible as a non-hearsay statement of a party. •B. admissible, although hearsay, as a statement against interest. •C. inadmissible, because it is an offer to pay medical expenses. •D. inadmissible, because it is an offer to compromise.

•C. inadmissible, because it is an offer to pay medical expenses.

In a personal injury action by P against D following an automobile collision, P claims that she suffered $25,000 in damages. D wishes to testify that a week before trial, P approached her and said, "You were negligent, but I was distracted by something on the side of the road and was looking away at the time of the crash. I'll dismiss the action if you'll pay me $5,000." Which of the following statements is most accurate? •A. P's statement about being distracted is admissible as a party admission. The rest is inadmissible. •B. P's entire statement is admissible as a party admission. •C. P's entire statement is admissible as a declaration against interest. •D. P's entire statement is inadmissible.

•D. P's entire statement is inadmissible.

If P (from the previous question) recovers the entire $100,000 from B, how much can B recover from A?

$100,000 as indemnity

P is injured by the negligence of A. At the time of the accident, A was employed by B and the tort occurred within the scope of A's employment. P suffered $100,000 in damages. P sues A and B. The jury holds both A and B liable. How much of the $100,000 may P recover from B?

$100,000 under joint and several liability

In a personal injury case involving a two-car collision, the plaintiff wishes to introduce a sworn deposition taken from a witness who died two weeks before the case came to trial. In the deposition, the witness stated that she saw the defendant run a red light at the time of the collision with the plaintiff's car. Both the plaintiff's and the defendant's attorneys were present at the deposition. The defendant objects in the appropriate manner to the introduction of the witness's statement. How should the court rule on the admissibility of the deposition? •(A) Admissible, because the defendant had an opportunity to cross-examine the witness at the time the deposition was taken. •(B) Admissible. as a dying declaration. •(C) Inadmissible, because the statement was not made while the witness was testifying in court. •(D) Inadmissible, because the defendant has no opportunity to cross-examine the witness at trial.

(A) Admissible, because the defendant had an opportunity to cross-examine the witness at the time the deposition was taken.

A manufacturing plant located near a busy highway uses and stores highly volatile explosives. The owner of the plant has imposed strict safety measures to prevent an explosion at the plant. During an unusually heavy windstorm, a large tile was blown off the roof of the plant and crashed into a passing car, damaging the hood and the windshield. The driver of the car brought a strict liability action against the owner of the plant to recover for the damage to the car. Is the driver likely to prevail? •(A) No, because the damage to the car did not result from the abnormally dangerous aspect of the plant's activity. •(B) No, because the severity of the windstorm was unusual. •(C) Yes, because the plant's activity was abnormally dangerous. •(D) Yes, because the plant's location near a busy highway was abnormally dangerous.

(A) No, because the damage to the car did not result from the abnormally dangerous aspect of the plant's activity.

•A manufacturing plant emitted a faint noise even though the owner had installed state-of-the-art sound dampeners. The plant operated only on weekdays and only during daylight hours. A homeowner who lived near the plant worked a night shift and could not sleep when he arrived home because of the noise from the plant. The other residents in the area did not notice the noise. Does the homeowner have a viable nuisance claim against the owner of the plant? •(A) No, because the homeowner is unusually sensitive to noise during the day. •(B) No, because the plant operates only during the day. •(C) Yes, because the noise is heard beyond the boundaries of the plant. •(D) Yes, because the operation of the plant interferes with the homeowner's quiet use and enjoyment of his property.

(A) No, because the homeowner is unusually sensitive to noise during the day.

In an automobile collision case, the defendant's attorney called the defendant to the stand and asked, "Was the traffic light red, amber, or green when you entered the intersection?" The defendant replied, "It was green." Next, the defendant's attorney asked, "What did you tell the first police officer who arrived on the scene about the condition of the traffic light when you entered the intersection?" Before the defendant could reply with "I told him it was green," the plaintiff's attorney objected. The objection should be: •(A) Sustained, because the statement is hearsay not within any recognized exception to the hearsay rule. •(B) Sustained, because the testimony is an irrelevant prior consistent statement. •(C) Overruled, because the statement is made from personal knowledge and, therefore, is non-hearsay. •(D) Overruled, because the defendant is in court and is subject to cross-examination by the plaintiff's attorney.

(A) Sustained, because the statement is hearsay not within any recognized exception to the hearsay rule.

In an action by plaintiff, who was struck in a crosswalk by a car driven by defendant, plaintiff wishes to offer evidence that defendant is a wealthy person. Which of the following statements is most likely correct? (A) The evidence might be relevant if plaintiff's action is brought on an intentional tort theory and plaintiff seeks punitive damages. (B) Because a wealthy person is not likely to be concerned about the potential financial impact of a tort judgment against her, the evidence is relevant if plaintiff's action is brought on a negligence theory. (C) Regardless of the substantive theory supporting plaintiff's action, the evidence is relevant. (D) Regardless of the substantive theory supporting plaintiff's action, the evidence is irrelevant.

(A) The evidence might be relevant if plaintiff's action is brought on an intentional tort theory and plaintiff seeks punitive damages.

A plaintiff sued a defendant in a contract dispute. The plaintiff calls a witness to testify as to his personal knowledge of the agreement. The plaintiff now wants a second witness to testify as to her knowledge of the first witness's honesty. The defendant objects and the court sustains the objection. The plaintiff may not call the second witness to testify because: •(A) The first witness's credibility has not been questioned. •(B) It would be inadmissible under the hearsay rule. •(C) The second witness may not testify as to an opinion. •(D) Character evidence is generally inadmissible in civil cases.

(A) The first witness's credibility has not been questioned.

A sportscaster on a local television show interviewed the parent of a child on a high school football team. The interviewee told the sportscaster that the head football coach "openly condones the use of steroids by team members." The coach, who had always conducted a strong anti-drug program for his football players, watched and recorded the show daily. He was outraged when he saw the live broadcast, and filed suit for defamation against the interviewee, the sportscaster, and the television station. At the trial of the suit, the coach wishes to testify as to what the interviewee said on the television show. The defense objects. Should such testimony be admitted? •(A) Yes, because the coach saw the live television broadcast. •(B) Yes, because the matter goes to the ultimate issue of the case and is thus highly relevant. •(C) No, because a videotape of the broadcast is available. •(D) No, because such testimony would be hearsay, not within any recognized exception to the hearsay rule.

(A) Yes, because the coach saw the live television broadcast.

Assume the same facts as the prior two slides. If City asserts a claim against Driver for the damage to the fire hydrant and Driver was negligent in swerving his car, his negligence is •(A) a cause in fact and a legal cause of City's harm. •(B) a cause in fact, but not a legal cause, of City's harm because Parker parked illegally. •(C) a legal cause, but not a cause in fact, of City's harm because Parker's car struck the hydrant. •(D) neither a legal cause nor a cause in fact of City's harm.

(A) a cause in fact and a legal cause of City's harm.

Peters sued Davis for $100,000 for injuries received in a traffic accident. Davis charged Peters with contributory negligence and alleged that Peters failed to have his lights on at a time when it was dark enough to require them. Davis offers to have Bystander testify that he was talking to Witness when, just before Bystander heard the crash, Bystander heard Witness, now deceased, exclaim, "That car doesn't have any lights on." Bystander's testimony is •(A) admissible as a statement of present sense impression. •(B) admissible, because Witness is not available to testify. •(C) inadmissible as hearsay, not within any exception. •(D) inadmissible, because of the Dead Man's Statute.

(A) admissible as a statement of present sense impression.

•Penn sued Duke's Bar for injuries suffered in an automobile accident caused by Chase, who had been a patron of Duke's Bar. Penn claimed that Chase was permitted to drink too much liquor at Duke's Bar before the accident. Penn offered evidence that, after the accident, the owner of Duke's Bar visited him at the hospital and, offering to pay all of Penn's medical expenses, said, "That's the least I can do after letting Chase leave the bar so drunk last night." The statement that Chase was drunk when he left the bar on the night of the accident is •(A) admissible as an admission by the owner of Duke's Bar that Chase was drunk when he left the bar. •(B) admissible as a factual admission made in connection with an offer of compromise. •(C) inadmissible as hearsay, not within any exception. •(D) inadmissible as a statement made in connection with an offer to pay medical expenses.

(A) admissible as an admission by the owner of Duke's Bar that Chase was drunk when he left the bar.

Dean, charged with murder, was present with her attorney at a preliminary examination when White, who was the defendant in a separate prosecution for concealing the body of the murder victim, testified for the prosecution against Dean. When called to testify at Dean's trial, White refused to testify, though ordered to do so. The prosecution offers evidence of White's testimony at the preliminary examination. The evidence is •(A) admissible as former testimony. •(B) admissible as past recollection recorded. •(C) inadmissible, because it would violate White's privilege against self-incrimination. •(D) inadmissible, because it is hearsay, not within any exception.

(A) admissible as former testimony.

In a prosecution of Dale for murdering Vera, Dale testified that the killing had occurred in self-defense when Vera tried to shoot him. In rebuttal, the prosecution seeks to call Walter, Vera's father, to testify that the day before the killing, Vera told Walter that she loved Dale so much she could never hurt him. Walter's testimony is •(A) admissible within the hearsay exception for statements of the declarant's then existing state of mind. •(B) admissible, because Vera is unavailable as a witness. •(C) inadmissible as hearsay not within any exception. •(D) inadmissible, because Vera's character is not an issue.

(A) admissible within the hearsay exception for statements of the declarant's then existing state of mind.

•Drew was tried for the July 21 murder of Victor. Drew called William to testify that on July 20 Drew said that he was about to leave that day to visit relatives in a distant state. The testimony is •(A) admissible, because it is a declaration of present mental state. •(B) admissible, because it is does not fit within the definition of hearsay. •(C) inadmissible, because it is irrelevant. •(D) inadmissible, because it is hearsay, not within any exception.

(A) admissible, because it is a declaration of present mental state.

In a trial between Jones and Smith, an issue arose about Smith's ownership of a horse that had caused damage to Jones's crops. Jones offered to testify that he looked up Smith's telephone number in the directory, that he called that number, and that a voice answered, "This is Smith speaking." At this, Jones asked, "Was that your horse that tramped across my cornfield this afternoon?" The voice replied, "Yes." The judge should rule the testimony •(A) admissible, because the answering speaker's identification of himself, together with the usual accuracy of the telephone directory and transmission system, furnishes sufficient authentication. •(B) admissible, because judicial notice may be taken of the accuracy of telephone directories. •(C) inadmissible unless Jones can further testify that he was familiar with Smith's voice and that it was in fact Smith to whom he spoke. •(D) inadmissible unless Smith has first been asked whether or not the conversation took place and has been given the opportunity to admit, deny, or explain.

(A) admissible, because the answering speaker's identification of himself, together with the usual accuracy of the telephone directory and transmission system, furnishes sufficient authentication.

•Drew was tried for the July 21 murder of Victor. Drew called Wilson to testify to alibi. On cross-examination of Wilson, the prosecution asked, "Isn't it a fact that you are Drew's first cousin?" The question is •(A) proper, because it goes to bias. •(B) proper, because a relative is not competent to give alibi testimony. •(C) improper, because the question goes beyond the scope of direct examination. •(D) improper, because the evidence being sought is irrelevant.

(A) proper, because it goes to bias.

Motorist arranged to borrow his friend Owner's car to drive for one day while Motorist's car was being repaired. Owner knew that the brakes on his car were faulty and might fail in an emergency. Owner forgot to tell Motorist about the brakes when Motorist picked up the car, but Owner did telephone Spouse, Motorist's wife, and told her about them. Spouse, however, forgot to tell Motorist. Motorist was driving Owner's car at a reasonable rate of speed and within the posted speed limit, with Spouse as a passenger. Another car, driven by Cross, crossed in front of Motorist at an intersection and in violation of the traffic signal. Motorist tried to stop, but the brakes failed, and the two cars collided. If the brakes had been in proper working order, Motorist could have stopped in time to avoid the collision. Motorist and Spouse were injured. If Motorist asserts a claim against Cross, Motorist will •(A) recover the full amount of his damages, because Motorist himself was not at fault. •(B) recover only a proportion of his damages, because Spouse was also at fault. •(C) not recover, because Spouse was negligent and a wife's negligence is imputed to her husband. •(D) not recover, because the failure of the brakes was the immediate cause of the collision.

(A) recover the full amount of his damages, because Motorist himself was not at fault.

•Dever drove his car into an intersection and collided with a fire engine that had entered the intersection from Dever's right. The accident was caused by negligence on Dever's part. As a result of the accident, the fire engine was delayed in reaching Peters' house, which was entirely consumed by fire. Peters' house was located about ten blocks from the scene of the accident. If Peters asserts a claim against Dever, Peters will recover •(A) the part of his loss that would have been prevented if the collision had not occurred. •(B) the value of his house before the fire. •(C) nothing if Dever had nothing to do with causing the fire. •(D) nothing, because Dever's conduct did not create an apparent danger to Peters.

(A) the part of his loss that would have been prevented if the collision had not occurred.

A columnist for a major metropolitan newspaper had a very antagonistic relationship with the city's mayor. When a restaurant owned by the columnist's family was shut down by city health inspectors, the columnist responded with a column publicizing the shutdown and asserting that it was in retaliation for his prior columns in which he had criticized the mayor. In fact, the mayor had nothing to do with the action by the city health inspectors. While the columnist had no evidence of the mayor's involvement, he believed that there was a connection because "that's how the city works." Can the mayor recover against the columnist for defamation? (A)No, because the columnist did not act with "actual malice." (B)No, because the columnist had a qualified privilege to explain why he believed his family's business was shut down. (C)Yes, because the columnist's hostility toward the mayor establishes malice so as to overcome any qualified privilege the columnist had. (D)Yes, because the columnist should have investigated the accuracy of his claims before publishing the column.

(A)No, because the columnist did not act with "actual malice."

A pedestrian walking on the sidewalk was struck by a car backing out of a driveway. The driver did not see the pedestrian because her neighbor's bushes obscured her view of the sidewalk. The pedestrian was seriously injured and brought suit against the driver and the neighbor. The pedestrian also included the city in his lawsuit, alleging that the city failed to enforce its ordinance requiring homeowners to provide a clear view of sidewalks where they intersect with driveways. The trier of fact determined that the driver was 60% at fault, the neighbor was 30% at fault, and the city was 10% at fault. The jurisdiction has adopted comparative contribution in cases applying joint and several liability. Assume the city has no immunity from this type of tort. Which of the following is a correct statement regarding liability? (A)The city is liable to the pedestrian for the full amount of the damage award. (B)Both the driver and the neighbor are liable to the pedestrian for 90% of the damage award. (C)Each of the three defendants is liable to the pedestrian for one-third of the damage award. (D)The driver is liable to the pedestrian for 60% of the damage award, the neighbor is liable for 30% of the damage award, and the city is liable for 10% of the damage award.

(A)The city is liable to the pedestrian for the full amount of the damage award.

A landowner had a swimming pool and a dressing cabana constructed in her spacious backyard. The pool was entirely within the confines of the landowner's property. However, one corner of the cabana extended a few inches on to the far corner of her neighbor's land. At the time of the construction, neither the neighbor nor the landowner was aware that the cabana extended onto the neighbor's property. Does the neighbor have a cause of action for trespass? (A)Yes, because the cabana extends onto the neighbor's land. (B)Yes, because the presence of the cabana on the neighbor's land has caused damage to his property. (C)No, because the landowner did not actually enter the neighbor's property. (D)No, because the landowner did not intend to have the cabana encroach on the neighbor's property.

(A)Yes, because the cabana extends onto the neighbor's land.

A motorcyclist was injured in a collision and suffered $100,000 worth of injuries, including $20,000 in hospital and physician's bills. The motorcyclist's medical insurance company paid her $20,000 to cover hospital and medical expenses. Later, she filed suit against the driver of the car that struck her motorcycle. When the case came to trial, the jury agreed with the motorcyclist's contention that her injuries were worth $100,000. The jury also determined that the motorcyclist was 30% negligent and that the driver was 70% negligent. How much should the motorcyclist recover from the driver? •(A) $100,000. •(B) $70,000. •(C) $56,000. •(D) $50,000.

(B) $70,000.

An elderly neighbor hired a 17-year-old boy with a reputation for reckless driving to drive the neighbor on errands once a week. One day the teenager, driving the neighbor's car, took the neighbor to the grocery store. While the neighbor was in the store, the teenager drove out of the parking lot and headed for a party on the other side of town. While on his way to the party, the teenager negligently turned in front of a moving car and caused a collision. The other driver was injured in the collision. The injured driver has brought an action for damages against the neighbor, based on negligent entrustment, and against the teenager. The jury has found that the injured driver's damages were $100,000, that the injured driver was 10% at fault, that the teenager was 60% at fault, and that the neighbor was 30% at fault for entrusting his car to the teenager. Based on these damage and responsibility amounts, what is the maximum that the injured driver could recover from the neighbor? •(A) $100,000. •(B) $90,000. •(C) $60,000. (D) $30,000.

(B) $90,000.

In the prosecution of the defendant for bank robbery, it is established that as the robber came out of the bank, he was seen entering a car by a group of people, including a witness and his friend. The witness is prepared to testify that as the car drove off, someone yelled, "Get that number," whereupon the friend screamed, "I've got it. The number is 07771!" The witness's testimony is: •(A) Admissible only if the friend fails or refuses to testify to such facts, because the friend's testimony would be the best evidence thereof. •(B) Admissible hearsay. •(C) Inadmissible hearsay. •(D) Inadmissible, because there is no proper foundation or identification of the hearsay declarant.

(B) Admissible hearsay.

Porter sued Data Exchange, a computer dealer engaged in buying and selling used computers, alleging that he was not given credit for a CD-ROM drive on the computer that he had sent back for resale. Warden, the bookkeeper, testified that it was company practice when a boxed computer was returned to have one clerk open the box and identify the type of computer and its components and have another clerk record the information in the inventory ledger. Data Exchange seeks to enter into evidence the original ledger entry, which Warden authenticated, showing that a CD-ROM drive was not checked off on the components list for Porter's computer. Porter objects to the admission of the ledger. The ledger is: •(A) Admissible, because it is a record of a transaction for which Warden does not have any present recollection. •(B) Admissible, because it was regular company practice to record receipt of the components in the inventory ledger. •(C) Inadmissible as hearsay within hearsay, because even if a hearsay exception permits introducing the record itself rather than requiring testimony by the employee who made it, that employee was just recording hearsay because he had no personal knowledge of what he was recording. •(D) Inadmissible hearsay, because absence of the notation implies a statement that no CD-ROM was received, and the evidence is being offered as proof of that assertion.

(B) Admissible, because it was regular company practice to record receipt of the components in the inventory ledger.

A defendant was charged with arson (a felony) of an antique shop. Only one corner of the shop was damaged before the fire was extinguished. Under a plea agreement, the defendant pled guilty and received a suspended sentence. Because the owner of the shop had not yet insured a recently acquired 400-year-old table that was destroyed by the fire, he sued the defendant for damages. At trial, the owner offers the properly authenticated record of the defendant's conviction for arson. The record should be: •(A) Admitted as proof of the defendant's character in order to infer liability. •(B) Admitted as proof that the defendant set the fire. •(C) Excluded, because the conviction was not the result of a trial. •(D) Excluded, because it is hearsay not within any exception.

(B) Admitted as proof that the defendant set the fire.

A driver negligently ran into a pedestrian who was walking along a road. The pedestrian sustained an injury to his knee, causing it to buckle from time to time. Several months later, the pedestrian sustained an injury to his shoulder when his knee buckled, causing him to fall down a flight of stairs. The pedestrian then brought an action against the driver for the injuries to his knee and shoulder. In his action against the driver, for which of his injuries may the pedestrian recover damages? •(A) For the injuries to his knee and shoulder, because the driver takes the victim as he finds him. •(B) For the injuries to his knee and shoulder, if the jury finds that the pedestrian's fall down a flight of stairs was a normal consequence of his original injury. •(C) For the injury to his knee only, because the injury to the pedestrian's shoulder is separable. •(D) For the injury to his knee only, if the jury finds that the driver could not have foreseen that his negligent driving would cause the pedestrian to fall down a flight of stairs.

(B) For the injuries to his knee and shoulder, if the jury finds that the pedestrian's fall down a flight of stairs was a normal consequence of his original injury.

A defendant is on trial for attempted fraud. The state charges that the defendant switched a price tag from a cloth coat to a more expensive fur-trimmed coat and then presented the latter for purchase at the cash register. The defendant has testified in her own behalf that someone else must have switched the tag. On cross-examination, the prosecutor asks whether the defendant was convicted on two prior occasions of misdemeanor fraud of a retailer by the same means of switching the price tag on a fur-trimmed coat. Is the question about the prior convictions proper either to impeach the defendant or to prove that the defendant committed the crime? •(A) It is not proper for either purpose. •(B) It is proper for both purposes. •(C) It is proper to impeach the defendant, but not to prove that the defendant committed the crime. •(D) It is proper to prove that the defendant committed the crime, but not to impeach the defendant. In a common law jurisdiction, what crime did the defendant commit (or at least attempt to commit)?

(B) It is proper for both purposes. Why? May use for impeachment b/c veracity crime <10 years old and may use for substantive evidence to prove identity. -False pretenses

A defendant was charged with the crime of defrauding the federal agency where he worked as an accountant. At trial, the court allowed the defendant to call his supervisor at the large corporation where he had previously worked, who testified about the defendant's good reputation in the community for honesty. Over objection, the defendant then sought to elicit testimony from his former supervisor that on several occasions the corporation had, without incident, entrusted him with large sums of money. Should the testimony be admitted? •(A) No, because the testimony is extrinsic evidence on a collateral matter. •(B) No, because good character cannot be proved by specific instances of conduct unless character is an essential element of the charge or defense. •(C) Yes, because it is evidence of a pertinent character trait offered by an accused. •(D) Yes, because it is relevant to whether the defendant was likely to have taken money as charged in this case.

(B) No, because good character cannot be proved by specific instances of conduct unless character is an essential element of the charge or defense.

A plaintiff has brought a civil suit against a defendant for injuries arising out of a fistfight between them. The day after the fight, a police officer talked to the plaintiff, the defendant, and an eyewitness, and made an official police report. At trial, the plaintiff seeks to introduce from the properly authenticated police report a statement attributed to the eyewitness, who is unavailable to testify at trial, that "[the defendant] started the fight." Should the court admit the statement from the report? •(A) No, unless the entire report is introduced. •(B) No, because it is hearsay not within any exception. •(C) Yes, because it was based on the eyewitness's firsthand knowledge. •(D) Yes, because it is an excerpt from a public record offered in a civil case. If the plaintiff seeks to introduce from the properly authenticated police report a statement attributed to the defendant, should the court admit that statement from the report?

(B) No, because it is hearsay not within any exception. Cannot get the inner layer (statement w/in police report) in. Yes, the report itself (the "outer" hearsay statement) is admissible as a business or public record, but the defendant's statement (the "inner" hearsay statement) is admissible only if it satisfies a separate hearsay exception. Here, the defendant's statement is admissible as a statement of a party-opponent.

A state statute required that anyone performing construction work for another in exchange for value must either have a contractor's license or work for someone who is licensed. A homeowner wishing to remodel his kitchen knew that a friend had previously worked for a licensed contractor for many years and was extremely knowledgeable about her trade, so he offered her money to assist in the project. When the friend explained that she would not be able to get a contractor's license in time to do the work, the homeowner responded that he did not care about her lack of a license. The friend began working in the homeowner's house, and parked her truck containing all her tools and materials in his driveway. Late in the day, a meteoroid fell from the sky and struck a can of solvent lying in the bed of her pickup. The solvent exploded from the force of the impact, setting the truck afire, which itself exploded when the gas tank caught fire, in turn igniting the homeowner's house. Is the friend liable for the damage to the house? •(A) No, because the homeowner assumed the risk of any property damage when he knowingly solicited her to work without a contractor's license. •(B) No, because no carelessness on her part was a legal or proximate cause of the property damage to the homeowner. •(C) Yes, because her lack of a contractor's license is negligence per se. •(D) Yes, because there would have been no damage to the homeowner's house but for the friend's decision to park her truck in his driveway.

(B) No, because no carelessness on her part was a legal or proximate cause of the property damage to the homeowner.

A driver negligently ran over a pedestrian. A bystander witnessed the accident from across the street. The bystander ran to the pedestrian, whom he did not know, and administered first aid, but the pedestrian died in the bystander's arms. The bystander suffered serious emotional distress as a result of his failure to save the pedestrian's life, but he experienced no resulting physical manifestations. The bystander has brought a negligence action against the driver. Is the bystander likely to prevail? •(A) No, because the bystander assumed the risk. •(B) No, because the bystander had no familial or other preexisting relationship with the pedestrian. •(C) Yes, because danger invites rescue. (D) Yes, because the bystander was in the zone of danger.

(B) No, because the bystander had no familial or other preexisting relationship with the pedestrian.

A defendant was prosecuted for mail fraud. At trial, the defendant moved to have all witnesses excluded from the courtroom, and the court granted the motion. The government named the investigating FBI agent as its designated representative. Upon learning that the agent would be giving testimony during the trial, the defendant moved that the agent also be excluded from the courtroom. Should the defendant's motion be granted? •(A) No, provided that the government can show that the agent's presence is essential to the presentation of its case. •(B) No, because the government has a right to have its designated representative remain in the courtroom throughout the trial. •(C) Yes, because the agent's testimony might be influenced by the testimony of other witnesses. •(D) Yes, because the defendant has a right to exclude all persons who may be called as government witnesses.

(B) No, because the government has a right to have its designated representative remain in the courtroom throughout the trial.

Patten suffered from a serious, though not immediately life-threatening, impairment of his circulatory system. Patten's cardiologist recommended a cardiac bypass operation and referred Patten to Dr. Cutter. Cutter did not inform Patten of the 2% risk of death associated with this operation. Cutter defended his decision not to mention the risk statistics to Patten because "Patten was a worrier and it would significantly lessen his chances of survival to be worried about the non-survival rate." Cutter successfully performed the bypass operation and Patten made a good recovery. However, when Patten learned of the 2% risk of death associated with the operation, he was furious that Cutter had failed to disclose this information to him. If Patten asserts a claim against Cutter based on negligence, will Patten prevail? •(A) No, if Cutter used his best personal judgment in shielding Patten from the risk statistic. •(B) No, because the operation was successful and Patten suffered no harm. •(C) Yes, if Patten would have refused the operation had he been informed of the risk. •(D) Yes, because a patient must be told the risk factor associated with a surgical procedure in order to give an informed consent.

(B) No, because the operation was successful and Patten suffered no harm.

Diggers Construction Company was engaged in blasting operations to clear the way for a new road. Diggers had erected adequate barriers and posted adequate warning signs in the vicinity of the blasting. Although Paul read and understood the signs, he entered the area to walk his dog. As a result of the blasting, Paul 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 Paul against Diggers to recover damages for his injuries, Paul will •(A) Not prevail, if Diggers exercised reasonable care to protect the public from harm. •(B) Not prevail, because Paul understood the signs and disregarded the warnings. •(C) Prevail, because Paul was harmed by Digger's abnormally dangerous activity. •(D) Prevail, unless Paul failed to use reasonable care to protect himself from harm. Would your answer change if Paul negligently failed to see the warning signs?

(B) Not prevail, because Paul understood the signs and disregarded the warnings. Yes, now (C) is correct.

•A defendant is charged with having been one of two men who robbed a bar and its patrons at gunpoint at 5:30 p.m. on December 16. The defendant calls a witness in his defense who testifies that she drove to the defendant's home at 10 a.m. on December 16 and picked up the defendant and his wife, then took them to a birthday party that lasted until 7 p.m. The prosecutor asks on cross-examination, "Isn't it true that you are related to the defendant's wife?" Defense counsel objects. How should the court rule? •(A) Overruled, because the question directly attacks the witness's truth and veracity. •(B) Overruled, because the question is directed at discovering possible bias in the witness. •(C) Sustained, because the question seeks to elicit irrelevant information. •(D) Sustained, because the answer to the question would create prejudice that would outweigh its probative value.

(B) Overruled, because the question is directed at discovering possible bias in the witness.

A defendant is charged with robbing a bank. The prosecutor has supplied the court with information from accurate sources establishing that the bank is a federally insured institution and that this fact is not subject to reasonable dispute. The prosecutor asks the court to take judicial notice of this fact. The defendant objects. How should the court proceed? •(A) The court must take judicial notice and instruct the jury that it is required to accept the judicially noticed fact as conclusive. •(B) The court must take judicial notice and instruct the jury that it may, but is not required to, accept the judicially noticed fact as conclusive. •(C) The court may refuse to take judicial notice, because judicial notice may not be taken of essential facts in a criminal case. •(D) The court must refuse to take judicial notice, because whether a bank is federally insured would not be generally known within the court's jurisdiction.

(B) The court must take judicial notice and instruct the jury that it may, but is not required to, accept the judicially noticed fact as conclusive.

A boater taking his new powerboat out on a large lake ran out of gas because of a defective seal in the gas tank. The defect was not discoverable by an ordinary inspection. His frantic signaling alerted the captain of a nearby sightseeing boat. The captain pulled up alongside to assist and attempted to restart the boat. A spark ignited a pool of gas that had leaked from the gas tank and collected in the lower part of the boat, causing an explosion and fire. The captain was severely burned and died from his injuries. The captain's estate brought a wrongful death action based on strict liability against the powerboat dealer and the manufacturer. Evidence at trial established that the dealer had sold the manufacturer's boats for years without any problems reported by customers. Can the captain's estate recover any damages from the dealer? (A) Yes, unless the jury finds that the boater was negligent in failing to investigate where the gas had gone. (B) Yes, because harm to someone in the captain's position was a foreseeable result of the gas leak. (C) No, because the dealer had no reason to anticipate the manufacturer assembled the gas tank improperly. (D) No, because the captain did not have a sufficient relationship to the boater to make the dealer liable for the captain's death.

(B) Yes, because harm to someone in the captain's position was a foreseeable result of the gas leak.

A defendant was visiting with his girlfriend in his apartment when a visitor came to see him. The defendant and the visitor engaged in a conversation relating to the distribution of illegal narcotics in the girlfriend's presence. Two months later, the defendant and his girlfriend married. Subsequent to the marriage, the defendant was arrested and charged under federal law with the sale and distribution of drugs. The prosecutor wants the defendant's wife to testify about the conversation between the defendant and the visitor, but the defendant forbids it. May she so testify? •(A) Yes, because the conversation occurred prior to their marriage. •(B) Yes, but only if she chooses to do so. •(C) No, because the defendant forbids it. •(D) No, unless both the defendant and his wife agree that she may testify.

(B) Yes, but only if she chooses to do so.

A man went into his neighbor's garage without permission and borrowed a chain saw to clear broken branches on the man's property. After he finished, the man noticed several broken branches on his neighbor's trees that were in danger of falling on his neighbor's roof. While the man was cutting his neighbor's branches, the saw broke. The neighbor sued the man for conversion. Will the neighbor recover? •(A) Yes, for the actual damage to the saw. •(B) Yes, for the value of the saw before the man borrowed it. •(C) No, because when the saw broke the man was using it to benefit his neighbor. (D) No, because the man did not intend to keep the saw.

(B) Yes, for the value of the saw before the man borrowed it.

Cycle Company manufactured a bicycle that it sold to Bike Shop, a retail bicycle dealer, which in turn sold it to Roth. Shortly thereafter, while Roth was riding the bicycle along a city street, he saw a traffic light facing him turn from green to yellow. He sped up, hoping to cross the intersection before the light turned red. However, Roth quickly realized that he could not do so and applied the brake, which failed. To avoid the traffic that was then crossing in front of him, Roth turned sharply to his right and onto the sidewalk, where he struck Perez, a pedestrian. Both Perez and Roth sustained injuries. If Perez asserts a claim based on negligence against Cycle Company and if it is found that the brake failure resulted from a manufacturing defect in the bicycle, will Perez prevail? •(A) Yes, because Cycle Company placed a defective bicycle into the stream of commerce. •(B) Yes, if the defect could have been discovered through the exercise of reasonable care by Cycle Company. •(C) No, because Perez was not a purchaser of the bicycle. •(D) No, if Roth was negligent in turning onto the sidewalk.

(B) Yes, if the defect could have been discovered through the exercise of reasonable care by Cycle Company.

At a civil trial for slander, the plaintiff showed that the defendant had called the plaintiff a thief. In defense, the defendant called a witness to testify, "I have been the plaintiff's neighbor for many years, and people in our community generally have said that he is a thief." Is the testimony concerning the plaintiff's reputation in the community admissible? •(A) No, because character is an essential element of the defense, and proof must be made by specific instances of conduct. •(B) Yes, to prove that the plaintiff is a thief and to reduce or refute the damages claimed. •(C) Yes, to prove that the plaintiff is a thief, but not on the issue of damages. •(D) Yes, to reduce or refute the damages claimed, but not to prove that the plaintiff is a thief.

(B) Yes, to prove that the plaintiff is a thief and to reduce or refute the damages claimed.

In litigation over the estate of Baggs, who died intestate, Payton, who is 18 years old, claimed to be Baggs's niece and entitled, therefore, to a share of his large estate. In support of her claim, Payton offered in evidence a Bible, properly identified as having belonged to Baggs's family, in the front of which was a list of family births, marriages, and deaths. The list recorded Payton's birth to Baggs's oldest sister. To prove that Payton is Baggs's niece, the Bible listing is •(A) admissible as an ancient document. •(B) admissible as a family record. •(C) inadmissible, because it is hearsay, not within any exception. •(D) inadmissible, because there was no showing of first-hand knowledge by the one who wrote it.

(B) admissible as a family record.

Potts, a building contractor, sued Dennis for failure to pay on a small cost-plus construction contract. At trial, Potts, who personally supervised all of the work, seeks to testify to what he remembers about the amount of pipe used, the number of workers used on the job, and the number of hours spent grading. Dennis objects on the ground that Potts had routinely recorded these facts in notebooks which are in Potts' possession. Potts' testimony is •(A) admissible as a report of regularly conducted business activity. •(B) admissible as based on first-hand knowledge. •(C) inadmissible, because it violates the best evidence rule. •(D) inadmissible, because a summary of writings cannot be made unless the originals are available for examination.

(B) admissible as based on first-hand knowledge.

P sued D in an automobile collision case. At trial, P wishes to show by extrinsic evidence that W, D's primary witness, is D's partner in a gambling operation. This evidence is •(A) admissible as evidence of W's character. •(B) admissible as evidence of W's possible bias in favor of D. •(C) inadmissible, because criminal conduct can be shown only by admission or a record of conviction. •(D) inadmissible, because bias must be shown on cross-examination and not by extrinsic evidence.

(B) admissible as evidence of W's possible bias in favor of D.

P sued D for a libelous letter received by Investigator. The authenticity of the letter is disputed. To establish authenticity, P's attorney asks Investigator to testify that, a week before receiving the libelous letter, he had written to D inquiring about P. The testimony is •(A) admissible provided that this inquiry was made in the regular course of Investigator's business. •(B) admissible without production of the inquiry letter or the showing of its unavailability. •(C) inadmissible unless P's attorney has given D notice of Investigator's intended testimony. •(D) inadmissible unless the inquiry letter itself is shown to be unavailable.

(B) admissible without production of the inquiry letter or the showing of its unavailability.

Plaintiff Construction Co. sued Defendant Development Co. for money owed on a cost-plus contract that required notice of proposed expenditures beyond original estimates. Defendant asserted that it never received the required notice. At trial Plaintiff calls its general manager, Witness, to testify that it is Plaintiff's routine practice to send cost overrun notices as required by the contract. Witness also offers a photocopy of the cost overrun notice letter to Defendant on which Plaintiff is relying, and which he has taken from Plaintiff's regular business files. On the issue of giving notice, the letter copy is •(A) admissible, though hearsay, under the present sense impression exception. •(B) admissible, because of the routine practices of the company. •(C) inadmissible, because it is hearsay not within any exception. •(D) inadmissible, because it is not the best evidence of the notice.

(B) admissible, because of the routine practices of the company.

Cars driven by Pugh and Davidson collided, and Davidson was charged with driving while intoxicated in connection with the accident. She pleaded guilty and was merely fined, although under the statute the court could have sentenced her to two years in prison. Thereafter, Pugh, alleging that Davidson's intoxication had caused the collision, sued Davidson for damages. At trial, Pugh offers the properly authenticated record of Davidson's conviction. The record should be •(A) admitted as proof of Davidson's character. •(B) admitted as proof of Davidson's intoxication. •(C) excluded, because the conviction was not the result of a trial. •(D) excluded, because it is hearsay, not within any exception.

(B) admitted as proof of Davidson's intoxication.

Deeb was charged with stealing furs from a van. At trial, Wallace testified she saw Deeb take the furs. The jurisdiction in which Deeb is being tried does not allow in evidence lie detector results. On cross-examination by Deeb's attorney, Wallace was asked, "The light was too dim to identify Deeb, wasn't it?" She responded, "I'm sure enough that it was Deeb that I passed a lie detector test administered by the police." Deeb's attorney immediately objects and moves to strike. The trial court should •(A) grant the motion, because the question was leading. •(B) grant the motion, because the probative value of the unresponsive testimony is substantially outweighed by the danger of unfair prejudice. •(C) deny the motion, because it is proper rehabilitation of an impeached witness. •(D) deny the motion, because Deeb's attorney "opened the door" by asking the question.

(B) grant the motion, because the probative value of the unresponsive testimony is substantially

•House owns his home in City. On the lawn in front of his home and within five feet of the public sidewalk there was a large tree. The roots of the tree caused the sidewalk to buckle severely and become dangerous. An ordinance of City requires adjacent landowners to keep sidewalks in safe condition. House engaged Contractor to repair the sidewalk, leaving it to Contractor to decide how the repair should be made. Contractor dug up the sidewalk, cut back the roots of the tree, and laid a new sidewalk. Two days after House had paid Contractor the agreed price of the repair, the tree fell over onto the street and damaged a parked car belonging to Driver. Driver has asserted claims against House and Contractor, and both defendants admit that cutting the roots caused the tree to fall. The theory on which Driver is most likely to prevail against House is that House is •(A) strictly liable, because the tree was on his property. •(B) liable for Contractor's negligence if, to House's knowledge, Contractor was engaged in hazardous activity. •(C) liable, because he assumed responsibility when he paid Contractor for the repair. •(D) liable on the basis of respondeat superior.

(B) liable for Contractor's negligence if, to House's knowledge, Contractor was engaged in hazardous activity.

•D was tried for the July 1 murder of V. D did not testify at trial. D called Y to testify to alibi. On cross-examination of Y, the prosecutor asked, "Isn't it a fact that you once cheated on a law school exam?" The question is •(A) proper because it goes to bias. •(B) proper to show that Y is untruthful. •(C) improper because the question goes beyond the scope of direct examination. •(D) improper because the evidence being sought is irrelevant.

(B) proper to show that Y is untruthful.

A backgammon player was upset after losing a match against the club champion. Rushing out of the club, he inadvertently grabbed the champion's board, which looked very much like his own but which was much more expensive. The player left the backgammon board in the trunk of his car, as was his usual practice. During the night, the car was stolen and along with it, the champion's expensive backgammon board. In an action by the champion against the player to recover the value of the backgammon board, the champion will likely: (A)Recover, because when the player took the backgammon board he committed a trespass to the champion's chattel. (B)Recover, because when the backgammon board was stolen along with the car, the player became liable for conversion of the champion's chattel. (C)Not recover, because the player believed in good faith that the board was his when he took it from the backgammon club. Not recover, because the backgammon board was lost through no fault of the player's

(B)Recover, because when the backgammon board was stolen along with the car, the player became liable for conversion of the champion's chattel.

After a sporting event at a stadium, one of the fans sought out the referees to complain about their handling of the game. The fan took out an electronically amplified bullhorn and knocked on the door of the referee's room. When one of the referees opened it, the fan began yelling and berating the referee through the bullhorn. The referee slammed the door shut, striking the bullhorn and jamming it against the fan's mouth, knocking out two of his teeth. If the fan asserts a claim based on battery against the referee and the referee prevails, it will be because: (A)The referee did not foresee that the bullhorn would knock out the fan's teeth. (B)The referee did not know the door was substantially certain to strike the bullhorn. (C)The referee was entitled to use force to protect himself. (D)The fan's conduct provoked the referee's response.

(B)The referee did not know the door was substantially certain to strike the bullhorn.

A 12-year-old snowboarder at a ski resort lost control while he was going down a slope and collided with a middle-aged skier who was ahead of him. The collision caused the skier to fall hard and sustain multiple fractures of her leg. The injuries required surgery and several months of rehabilitation before the skier could walk again. If the skier prevails in a personal injury action against the snowboarder, it will be because: •(A) The skier had not signed a ski resort waiver assuming the risk of any injuries suffered while skiing. •(B) The severity of the skier's injuries dictated that an adult standard of care be applied to the snowboarder's activity. •(C) A 12-year-old of like education, intelligence, and experience would have avoided the accident in the exercise of reasonable care. •(D) The snowboarder had used a fake pass to gain entrance to the ski resort.

(C) A 12-year-old of like education, intelligence, and experience would have avoided the accident in the exercise of reasonable care.

A defendant is being sued by his insurance company for filing a false claim. The insurance company seeks recovery of payment made to the defendant for the alleged theft of his car. At trial, the insurance company seeks to have the defendant's ex-wife testify that he told her that he had really given the car to a friend. The defendant objects on the ground of privilege. The ex-wife: •(A) Can be called and can testify against the defendant over the objection. •(B) Can be called and must testify because the privilege applies only in criminal cases. •(C) Cannot be directed to testify against the defendant over his objection if the facts were told to her in confidence during the marriage. •(D) Cannot be called as a witness at all over the defendant's objection.

(C) Cannot be directed to testify against the defendant over his objection if the facts were told to her in confidence during the marriage.

A plaintiff suffered injuries when her car was struck by the defendant's car. The police arrived on the scene and required the defendant to take a breathalyzer test. The defendant was cited for driving while intoxicated, tried in traffic court, and duly convicted. He received the maximum sentence for driving while intoxicated, which is 90 days' imprisonment in the county correctional facility. The plaintiff brought a civil action against the defendant, seeking compensation for her personal injuries. At the trial of the plaintiff's suit, the plaintiff's attorney offers a properly authenticated photocopy of the court judgment showing that the defendant was convicted of driving while intoxicated. The evidence is: •(A) Admissible as a public record. •(B) Admissible as a final judgment offered to prove a fact essential to a point in controversy. •(C) Inadmissible, because the crime was punishable by imprisonment of a maximum of 90 days. •(D) Inadmissible, because it is not the best evidence of the defendant's conviction. If defendant were convicted of "Felony DUI," which answer would be correct?

(C) Inadmissible, because the crime was punishable by imprisonment of a maximum of 90 days. (B) Admissible as a final judgment offered to prove a fact essential to a point in controversy.

The plaintiff is suing the defendant in federal court for personal injuries arising out of an assault and battery. The defendant has confided in his psychiatrist certain matters that the plaintiff believes would be helpful to her case. Assume the information is privileged, so the psychiatrist cannot be called at trial, but it is relevant and would lead to admissible evidence. If the defendant objects, will the federal court order discovery of what plaintiff told his psychiatrist? •(A) Yes, because the information from the psychiatrist will lead to other discoverable evidence. •(B) Yes, if the judge orders that the records from the psychiatrist be sealed. •(C) No, because the communication with the psychiatrist is privileged. (D)No, if the psychiatrist waives the privilege.

(C) No, because the communication with the psychiatrist is privileged.

•When Mary Weld visited Dugan's Alleys to participate in the weekly bowling league competition held there, she brought her two-year-old son, Bobby, along and left him in a nursery provided by Dugan for the convenience of his customers. The children in the nursery were normally supervised by three attendants, but at this particular time, as Mary Weld knew, there was only one attendant present to care for about 20 children of assorted ages. About 30 minutes later, while the attendant was looking the other way, Bobby suddenly started to cry. The attendant found him lying on his back, picked him up, and called his mother. It was later discovered that Bobby had suffered a skull fracture. If a claim is asserted against Dugan on Bobby's behalf, will Bobby prevail? •(A) Yes, because Dugan owed the child the highest degree of care. •(B) Yes, because a two-year-old is incapable of contributory negligence. •(C) No, unless Dugan or his employees failed to exercise reasonable care to assure Bobby's safety. •(D) No, if Mary Weld assumed the risk by leaving Bobby in the nursery.

(C) No, unless Dugan or his employees failed to exercise reasonable care to assure Bobby's safety.

Purvis purchased a used car from Daley, a used car dealer. Knowing that they were false, Daley made the following statements to Purvis prior to the sale: Statement 1. This car has never been involved in an accident. Statement 2. This car gets 25 miles to the gallon on the open highway. Statement 3. This is as smooth-riding a car as you can get. If Purvis asserts a claim against Daley based on deceit, which of the false statements made by Daley would support Purvis' claim? •(A) Statement 1 only. •(B) Statement 2 only. •(C) Statements 1 and 2 only. •(D) Statements 2 and 3 only.

(C) Statements 1 and 2 only.

In a prosecution of Dahle for assault, Wharton is called to testify that the victim, Valerian, had complained to Wharton that Dahle was the assailant. Wharton's testimony is most likely to be admitted if Wharton is •(A) a doctor, whom Valerian consulted for treatment. •(B) a minister, whom Valerian consulted for counseling. •(C) Valerian's husband, whom she telephoned immediately after the event. •(D) a police officer, whom Valerian called on instructions from her husband.

(C) Valerian's husband, whom she telephoned immediately after the event.

A man sued a railroad for personal injuries suffered when his car was struck by a train at an unguarded crossing. A major issue is whether the train sounded its whistle before arriving at the crossing. The railroad has offered the testimony of a resident who has lived near the crossing for 15 years. Although she was not present on the occasion in question, she will testify that, whenever she is home, the train always sounds its whistle before arriving at the crossing. Is the resident's testimony admissible? •(A) No, due to the resident's lack of personal knowledge regarding the incident in question. •(B) No, because habit evidence is limited to the conduct of persons, not businesses. •(C) Yes, as evidence of a routine practice. •(D) Yes, as a summary of her present sense impressions.

(C) Yes, as evidence of a routine practice.

A defendant was charged with possession of marijuana with intent to distribute. On direct examination, the defendant testified that he worked with disadvantaged children as a drug counselor, that he hated drugs, that he would "never possess or distribute drugs," and that he had never used drugs and would not touch them. The government offered as a rebuttal witness a police officer who would testify that, three years earlier, he saw the defendant buy cocaine from a street dealer. The defendant objected. Is the testimony of the police officer about the prior drug transaction admissible to impeach the defendant? •(A) No, because the bad act of buying drugs is not sufficiently probative of a witness's character for truthfulness. •(B) No, because it is contradiction on a collateral matter. •(C) Yes, because it is proper contradiction. •(D) Yes, because the bad act shows a disregard for the law and makes it less likely that the defendant would respect the oath of truthfulness.

(C) Yes, because it is proper contradiction.

Assume the same facts as the prior two slides. If Driver recovers a judgment against House, does House have any recourse against Contractor? •(A) No, if payment by House was an acceptance of the work. •(B) No, because House selected Contractor to do the work. •(C) Yes, if the judgment against House was based on vicarious liability. •(D) Yes, because House's conduct was not a factual cause of the harm.

(C) Yes, if the judgment against House was based on vicarious liability.

A plaintiff initiated a personal injury action against the defendant, alleging that the defendant struck her with his bicycle while she was rollerblading on a park trail. At trial, the plaintiff calls a witness who testifies that he was standing a short distance away and ran up to offer help. He further testifies that as the ambulance was leaving with the plaintiff, the defendant threatened to come after him unless he testified falsely that the plaintiff had suddenly swerved into the path of the defendant. Defendant is present at the trial. Should this last statement have been admitted into evidence? •(A) No, it is hearsay not within an exception. •(B) No, it is not relevant to the issue of negligence. •(C) Yes, it is relevant and not hearsay. •(D) Yes, it is a declaration against interest by the defendant.

(C) Yes, it is relevant and not hearsay.

In Polk's negligence action against Dell arising out of a multiple-car collision, Witt testified for Polk that Dell went through a red light. On cross-examination, Dell seeks to question Witt about her statement that the light was yellow, made in a deposition that Witt gave in a separate action between Adams and Baker. The transcript of the deposition is self-authenticating. On proper objection, the court should rule the inquiry •(A) admissible for impeachment only. •(B) admissible as substantive evidence only. •(C) admissible for impeachment and as substantive evidence. •(D) inadmissible, because it is hearsay, not within any exception.

(C) admissible for impeachment and as substantive evidence.

Patty sued Mart Department Store for personal injuries, alleging that while shopping she was knocked to the floor by a merchandise cart being pushed by Handy, a stock clerk, and that as a consequence her back was injured. Handy testified that Patty fell near the cart but was not struck by it. Thirty minutes after Patty's fall, Handy, in accordance with regular practice at Mart, filled out a printed form, "Employee's Report of Accident—Mart Department Store," in which he stated that Patty had been leaning over to spank her young child and in so doing had fallen near his cart. Counsel for Mart offers in evidence the report, which was given to him by Handy's supervisor. The judge should rule the report offered by Mart •(A) admissible as res gestae. •(B) admissible as a business record. •(C) inadmissible, because it is hearsay, not within any exception. •(D) inadmissible, because Handy is available as a witness.

(C) inadmissible, because it is hearsay, not within any exception.

A bicyclist was riding his bicycle in the street when a negligently driven car struck the bike, knocking the bicyclist off the bike and breaking his right ankle. The driver of the car immediately stopped and went to his assistance. She got him to his feet and was slowly moving him toward the curb when a negligently driven taxicab stuck him in the left leg. The bicyclist required surgery on both his right ankle and his left leg. If the bicyclist sues the driver and the cabbie, the bicyclist can: (A)Recover from either the driver or the cabbie for all his injuries because the driver and the cabbie are jointly and severally liable. (B)Recover from the driver only for the injury to his right ankle and recover from the cabbie only for the injury to his left leg. (C)Recover from either the driver or the cabbie for the injury to his left leg and recover from the driver only for the injury to his right ankle. (D)Not recover against the driver for the injury to his left leg unless the jury determines that the driver acted negligently when she came to his aid.

(C)Recover from either the driver or the cabbie for the injury to his left leg and recover from the driver only for the injury to his right ankle.

A store security guard who reasonably but mistakenly thought that a shopper had tried to steal a scarf directed her to accompany him to the manager's office, which had an interior window overlooking the sales floor. Because the blinds were up on the window, the occupants of the office could be seen from the sales floor. After the security guard described what he had seen, the manager began to berate her for trying to steal the scarf and threatened to prosecute her as a shoplifter. However, the manager had neglected to make sure that the public address system that he used to announce specials was turned off, and his statements were broadcast to everyone in the store. Assume the shopper suffered out-of-pocket damages. In an action against the store for defamation, the shopper will: (A)Not recover, because the manage was speaking directly to the shopper. (B)Not recover, because the manager did not intend for others to hear his statements. (C)Recover, because the manager should have checked that the public address system was not on. (D)Not recover, because the manager's belief that the shopper had stolen the scarf was reasonable based on the security guard's information.

(C)Recover, because the manager should have checked that the public address system was not on.

An article in a newspaper reported that the city's professional basketball franchise announced that financial difficulties have forced them to sell the franchise to a group of investors who will probably move the team to another state. The article stated that, according to inside sources, the main reason for the financial difficulties is that the general manager of the team has been siphoning off proceeds from ticket sales to support his gambling habits. The general manager, who is well-known in the community, brought an action against the newspaper for defamation. If the newspaper stipulates at trial that the statement regarding the general manager is false, what additional facts does he have to prove to recover? (A)That the newspaper was at least negligent in verifying the story. (B)That the general manager suffered pecuniary damages from publication of the story. (C)That the newspaper acted with actual malice in publishing the story. (D)That the general manager suffered actual injury as a result of the story.

(C)That the newspaper acted with actual malice in publishing the story.

A company that owned a tract of land believed to be rich in mineral deposits contracted with a licensed excavator for the removal of soil from the property and delivery of the soil to the company's laboratories. While one of the excavator's trucks was on the way to the laboratory the rear gate broke loose, dumping three tons of soil onto the highway. A motorist who was driving a short but safe distance behind the truck was unable to stop in time and collided with the soil, causing her serious injury. The rear gate had been negligently secured by one of the excavator's employees. If the motorist sues the company for his injuries and does not prevail, it will be because: (A)The rear gate was secured by the excavator's employee. (B)The excavator has a license to transport soil on the highway. (C)The company's duty in respect to the movement of its soil on the highway was delegable. (D)The transportation of soil on the highways was a common practice in the area where the accident occurred.

(C)The company's duty in respect to the movement of its soil on the highway was delegable.

A manufacturer of insecticides vital to local agriculture generated very foul-smelling fumes during the operation of its plant. When the plant was built many years ago, the surrounding area was completely agricultural, but now much of the area around the plant is residential, although the plant itself is zoned for manufacturing activities. In response to complaints, the manufacturer's engineers investigated whether it would be possible to install machinery to filter and scrub the plant emissions, but determined that the project would be too costly. Residents of nearby homes brought an action for nuisance against the manufacturer. If the manufacturer prevails, it will be because: (A)The plant was there first, and the residents came to the nuisance. (B)The area is zoned for commercial and manufacturing activities. (C)The fumes from the plant do not unreasonably interfere with the residents' use and enjoyment of their property. (D)The insecticides are vital to the local agriculture.

(C)The fumes from the plant do not unreasonably interfere with the residents' use and enjoyment of their property.

Park sued Officer Dinet for false arrest. Dinet's defense was that, based on a description he heard over the police radio, he reasonably believed Park was an armed robber. Police radio dispatcher Brigg, reading from a note, broadcasted the description of an armed robber on which Dinet claims to have relied. The defendant offers the following items of evidence: I. Dinet's testimony relating the description he heard. II. Brigg's testimony relating the description he read over the radio. III. The note containing the description Brigg testifies he read over the radio. Which of the following are admissible on the issue of what description Dinet heard? (A) I and II only. (B) I and III only. (C) II and III only. (D) I, II, and III.

(D) I, II, and III.

•Assume the same facts as the prior slide. If Carr has a valid claim against the students, will he also prevail against the university? •(A) Yes, if the students would not have performed the experiment but for Merrill's lecture. •(B) Yes, if Carr's claim against the students is based on negligence. •(C) No, because the students were not Merrill's employees. •(D) No, because Merrill did not authorize the car wash as a class project.

(D) No, because Merrill did not authorize the car wash as a class project.

Johnson wanted to purchase a used motor vehicle. The used car lot of Car Company, in a remote section away from town, was enclosed by a 10-foot chainlink fence. While Johnson and Sales Representative, an employee of Car Company, were in the used car lot looking at cars, a security guard locked the gate at 1:30 p.m., because it was Saturday and the lot was supposed to be closed after 1:00 p.m. Saturday until Monday morning. At 1:45 p.m., Johnson and Sales Representative discovered that they were locked in. There was no traffic in the vicinity and no way in which help could be summoned. After two hours, Johnson began to panic at the prospect of remaining undiscovered and without food and water until Monday morning. Sales Representative decided to wait in a car until help should come. Johnson tried to climb over the fence and, in doing so, fell and was injured. Johnson asserts a claim against Car Company for damages for his injuries. If Johnson's claim is based on false imprisonment, will Johnson prevail? •(A) Yes, because he was confined against his will. •(B) Yes, because he was harmed as a result of his confinement. •(C) No, unless the security guard was negligent in locking the gate. •(D) No, unless the security guard knew that someone was in the lot at the time the guard locked the gate.

(D) No, unless the security guard knew that someone was in the lot at the time the guard locked the gate.

A motorist who failed to stop at a stop sign was struck by a car being taken for a test drive by a mechanic who had repaired the car's brakes. The motorist sued the repair shop that employed the mechanic to recover for his injuries. At trial, he called a bystander to testify that when the mechanic saw that the motorist was injured, the mechanic ran over and told him, "I'm really sorry. I guess I didn't fix the brakes as well as I thought." The mechanic is available to testify at the trial. The repair shop's objection to the bystander's testimony should be: •(A) Sustained, because the mechanic's statement is inadmissible against the repair shop. •(B) Sustained, because the motorist did not stop at the stop sign. •(C) Overruled, because it is a declaration against interest. •(D) Overruled, because it is a statement attributable to a party-opponent.

(D) Overruled, because it is a statement attributable to a party-opponent.

•Which of the following statements is true? •(A) The judge conducting a trial in federal district court may not question a sworn witness who is one of the actual parties to the "case or controversy." •(B) The judge conducting a trial in federal district court may not question a sworn witness regarding the ultimate issues of the case. •(C) The judge conducting a trial in federal district court may not question a sworn lay (nonexpert) witness. •(D) The judge conducting a trial in federal district court may question a sworn witness in any of the above circumstances.

(D) The judge conducting a trial in federal district court may question a sworn witness in any of the above circumstances.

In a tort case involving personal injury, a hospital orderly is called to the stand. There is some dispute as to whether the plaintiff ever lost consciousness. The plaintiff's attorney wishes to have the orderly, who was working in the hospital emergency room when the plaintiff was brought in, testify that the plaintiff was unconscious at the time she entered the emergency room. Would such testimony be admissible over the defendant's objection? (A) No, because the orderly is not an expert witness. (B) No, because it impermissibly intrudes upon the province of the jury. (C) Yes, because it is the best evidence. (D) Yes, because it is proper opinion testimony by lay witness.

(D) Yes, because it is proper opinion testimony by lay witness.

In a suit based on a will, the distribution of $1 million depends upon whether the wife survived her husband when both died in the crash of a small airplane. An applicable statute provides that, for purposes of distributing an estate after a common disaster, there is a rebuttable presumption that neither spouse survived the other. A witness has been called to testify that as she approached the plane she heard what she thought was a woman's voice saying, "I'm dying," although by the time the husband and wife were removed from the wreckage they were both dead. Is the witness's testimony admissible? •(A) No, because the matter is governed by the presumption that neither spouse survived the other. •(B) No, because the witness's testimony is too speculative to support a finding. •(C) Yes, because the hearsay rule does not apply to statements by decedents in actions to determine rights under a will. •(D) Yes, because it is relevant and not otherwise prohibited. Why is the dying woman's statement not hearsay?

(D) Yes, because it is relevant and not otherwise prohibited. It is not being offered for its truth but only to prove that she could speak and therefore was alive.

A plaintiff sued a defendant and his employer for personal injuries. The plaintiff claimed that she was struck on the head by a wrench dropped by the defendant from a high scaffold, on which the defendant was working in the course of a construction project. To prove that it was the defendant who dropped the wrench, the plaintiff offers the wrench itself as evidence. The wrench bears the brand name "Craftsman" on the handle, and other evidence shows that the wrenches used by the defendant on the job are "Craftsman" brand wrenches. Is the wrench admissible? •(A) No, because but for the word "Craftsman" the wrench would be irrelevant, and the word "Craftsman" is inadmissible hearsay. •(B) No, because the wrench is irrelevant as it fails to show that it is more likely than not that the defendant was the person who dropped it. •(C) Yes, because the wrench is relevant direct evidence that it was the defendant who dropped the wrench and is not hearsay. •(D) Yes, because the wrench is relevant circumstantial evidence that it was the defendant who dropped the wrench and is not hearsay.

(D) Yes, because the wrench is relevant circumstantial evidence that it was the defendant who dropped the wrench and is not hearsay.

A plaintiff sued a defendant, alleging that she was seriously injured when the defendant ran a red light and struck her while she was walking in a crosswalk. During the defendant's case, a witness testified that the plaintiff had told him that she was "barely touched" by the defendant's car. On cross-examination, should the court allow the plaintiff to elicit from the witness the fact that he is an adjuster for the defendant's insurance company? •(A) No, because testimony about liability insurance is barred by the rules of evidence. •(B) No, because the reference to insurance raises a collateral issue. •(C) Yes, for both substantive and impeachment purposes. •(D) Yes, for impeachment purposes only.

(D) Yes, for impeachment purposes only.

P suffered a severe loss when his manufacturing plant, located in a shallow ravine, was flooded during a sustained rainfall. The flooding occurred because City had failed to maintain its storm drain, which was located on City land above P's premises, and because Railroad had failed to maintain its storm drain, which was located on Railroad land below P's premises. The flooding would not have occurred if either one of the two storm drains had been maintained properly. P sued Railroad to recover compensation for his loss. The evidence in the case established that the failures of the two drains were caused by the respective negligence of City and Railroad. There is no special rule insulating City from liability. In his action against Railroad, P should recover •(A) nothing, because he should have joined City, without whose negligence he would have suffered no loss. •(B) nothing, unless he introduces evidence that enables the court reasonably to apportion responsibility between City and Railroad. •(C) one-half his loss, in the absence of evidence that enables the court to allocate responsibility fairly between City and Railroad. •(D) all of his loss, because but for Railroad's negligence none of the flooding would have occurred.

(D) all of his loss, because but for Railroad's negligence none of the flooding would have occurred.

•D was tried for the July 1 murder of V. D did not testify at trial. D called X to testify that on July 2 D told him (X) that he (D) had just returned from a three-day visit to relatives in a distant state. The testimony is •(A) admissible because it is a declaration of present mental state. •(B) admissible because it is not hearsay. •(C) inadmissible because it is irrelevant. •(D) inadmissible because it is hearsay not within any exception.

(D) inadmissible because it is hearsay not within any exception.

Price sued Derrick for injuries Price received in an automobile accident. Price claims that Derrick was negligent in (a) exceeding the posted speed limit of 35 m.p.h., (b) failing to keep a lookout, and (c) crossing the center line. Bystander, Price's eyewitness, testified on cross-examination that Derrick was wearing a green sweater at the time of the accident. Derrick's counsel calls Wilson to testify that Derrick's sweater was blue. Wilson's testimony is •(A) admissible as substantive evidence of a material fact. •(B) admissible as bearing on Bystander's truthfulness and veracity. •(C) inadmissible, because it has no bearing on the capacity of Bystander to observe. •(D) inadmissible, because it is extrinsic evidence of a collateral matter.

(D) inadmissible, because it is extrinsic evidence of a collateral matter.

Rider, a bus passenger, sued Transit Company for injuries to his back from an accident caused by Transit's negligence. Transit denies that Rider received any injury in the accident. Rider's counsel seeks to introduce an affidavit he obtained in preparation for trial from Dr. Bond, who has since died. The affidavit states that Dr. Bond examined Rider two days after the Transit Company accident and found him suffering from a recently incurred back injury. The judge should rule the affidavit •(A) admissible, as a statement of present bodily condition made to a physician. •(B) admissible, as prior recorded testimony. •(C) inadmissible, because it is irrelevant. •(D) inadmissible, because it is hearsay, not within any exception.

(D) inadmissible, because it is hearsay, not within any exception.

Decker, charged with armed robbery of a store, denied that he was the person who had robbed the store. In presenting the state's case, the prosecutor seeks to introduce evidence that Decker had robbed two other stores in the past year. This evidence is •(A) admissible, to prove a pertinent trait of Decker's character and Decker's action in conformity therewith. •(B) admissible, to prove Decker's intent and identity. •(C) inadmissible, because the prosecutor may rely only on reputation or opinion evidence as this point in the trial to prove the defendant's character. •(D) inadmissible, because its probative value is substantially outweighed by the danger of unfair prejudice.

(D) inadmissible, because its probative value is substantially outweighed by the danger of unfair prejudice. Why? A mere showing that the defendant has committed other crimes in the same class is insufficiently probative of identity (FRE 403).

A dentist filling a child's cavities used a newly developed local anesthetic that was more effective than Novocain. However, it carried a 1% risk of causing a serious seizure when administered to children, which the dentist did not mention to the child's mother. The child's dental work was completed without any problem, but the mother looked up the anesthetic on the Internet and learned about the risk. She complained to the dentist that she would not have consented to use of the anesthetic had she known of the risk, but the dentist argued that using the new anesthetic was justified in the child's case because he would not have been willing to sit still for the dental work. The mother sues the dentist for negligence. Will she prevail? (A)Yes, because a reasonable person would have considered information about the risk important. (B)Yes, because the mother would not have consented to the use of the anesthetic if she had known the risk of seizure. (C)No, because the dentist used his best judgment in deciding that the benefits of using the anesthetic outweighed the risk. (D)No, because the child suffered no harm from use of the anesthetic.

(D)No, because the child suffered no harm from use of the anesthetic.

Paul sustained personal injuries in a three-car collision caused by the concurrent negligence of the three drivers, Paul, David, and Dawn. In Paul's action for damages against David and Dawn, the jury apportioned the negligence 40% to Paul, 30% to David, and 30% to Dawn. Paul's total damages were $100,000. Assume that a state statute provides for a system of pure comparative negligence, joint and several liability of concurrent tortfeasors, and contribution based upon proportionate fault. If Paul chooses to execute against David alone, he will be entitled to collect at most: If Paul collects the maximum amount from David, David will be entitled to collect how much from Dawn? Assume the same facts as the prior question, except assume the jurisdiction has retained the common-law rule pertaining to contribution and that the state's comparative negligence statute provides for a system of modified comparative negligence but abolishes joint and several liability. If Paul chooses to execute against David alone, he will be entitled to collect at most: If Paul collects the maximum amount from David, David will be entitled to collect how much from Dawn?

- $60,000. - $30,000 - $30,000 - Nothing

Cab driver Jerry was in a hurry to drop off his passenger, George, so he could pick up his next customer. Jerry maneuvered his cab through busy downtown River City until he approached George's destination. As they neared the address, George said, "here's my building." Jerry switched from the left lane to the broad right lane, and stopped just before an intersection, about ten feet from the curb. George paid the fare and stepped out of the cab, directly into the path of a car driven by Elaine, who had just robbed a bank and was fleeing at high speed. George did not see Elaine's car coming and was not contributorily negligent. A statute makes it unlawful for a cab or bus to drop a passenger off more than six feet from a curb. The statute was enacted to protect passengers' safety and to prevent cabs and buses from tying up traffic. Violation carries a fine. George brings an action against Jerry for negligence, basing the duty on the statutory standard. If Jerry claims he should not be responsible for the accident, which of the following best represents the court's most likely response? •(A) Because the harm to George came about by a type of risk from which the statute was designed to protect him, George will prevail. •(B) Because George was immediately harmed by a party not within Jerry's control, Jerry cannot be held liable. •(C) Because the harm would have occurred regardless of Jerry's conduct, Jerry cannot be held liable. •(D) Because the harm came about as a result of the conduct of a criminal intervening actor, Jerry cannot be held liable.

(A) Because the harm to George came about by a type of risk from which the statute was designed to protect him, George will prevail.

A car driven negligently by Doe collided with Preston's car. Preston brings an action against Doe for negligence. Which of the following statements is accurate? •(A) If Preston proves physical injury as a result of the collision, he may recover emotional distress damages regardless of the rule followed in the jurisdiction concerning the tort of negligent infliction of emotional distress. •(B) If emotional distress was not a reasonably foreseeable consequence of causing this collision, Preston cannot recover for the emotional distress. •(C) Because Preston's injuries did not result from observation of Doe's negligent injury of another person, Preston cannot recover for the emotional distress. •(D) If Preston had a preexisting condition that made him particularly susceptible to suffering emotional distress in an auto accident, Preston cannot recover for the emotional distress.

(A) If Preston proves physical injury as a result of the collision, he may recover emotional distress damages regardless of the rule followed in the jurisdiction concerning the tort of negligent infliction of emotional distress.

John's father, Jeremiah, died in Hospital. Hospital maintains a morgue with refrigerated drawers a bit larger than a human body. Jeremiah's body was placed in such a drawer awaiting pickup by a mortician. Before the mortician called for the body, a Hospital orderly placed two opaque plastic bags in the drawer with Jeremiah's body. One bag contained Jeremiah's personal effects, and the other contained an amputated leg from some other Hospital patient. It is stipulated that Hospital was negligent to allow the amputated leg to get into Jeremiah's drawer. The mortician delivered the two opaque plastic bags to John, assuming both contained personal effects. John was shocked when he opened the bag containing the amputated leg. John sued Hospital to recover for his emotional distress. At the trial, John testified that the experience had been extremely upsetting, that he had had recurring nightmares about it, and that his family and business relationships had been adversely affected for a period of several months. He did not seek medical or psychiatric treatment for his emotional distress. Who should prevail? •(A) John, because of the sensitivity people have regarding the care of the bodies of deceased relatives. •(B) John, because hospitals are strictly liable for mishandling dead bodies. •(C) Hospital, because John did not require medical or psychiatric treatment. •(D) Hospital, because John suffered no bodily harm.

(A) John, because of the sensitivity people have regarding the care of the bodies of deceased relatives.

Miller applied to the state liquor board for transfer of the license of Miller's Bar and Grill to a new site. The board held a hearing on the application. At that hearing, Hammond appeared without being subpoenaed and stated that Miller had underworld connections. Although Hammond did not know this information to be true, he had heard rumors about Miller's character and had noticed several underworld figures going in and out of Miller's Bar and Grill. In fact, Miller had no underworld connections. In a claim against Hammond based on defamation, Miller will •(A) not recover if Hammond reasonably believed his statement to be true. •(B) not recover if the board granted Miller's application. •(C) recover, because Hammond's statement was false. •(D) recover, because Hammond appeared before the board voluntarily.

(A) not recover if Hammond reasonably believed his statement to be true.

In 1970, Cattle Company paid $130,000 for a 150-acre tract of agricultural land well suited for a cattle feedlot. The tract was 10 miles from the city of Metropolis, then a community of 50,000 people, and five miles from the nearest home. By 2016, the city limits extended to Cattle Company's feedlot, and the city had a population of 350,000. About 10,000 people lived within three miles of the cattle-feeding operation. The Cattle Company land is outside the city limits and no zoning ordinance applies. The Cattle Company land is now worth $800,000, and $75,000 has been invested in buildings and pens. Cattle Company, conscious of its obligations to its neighbors, uses the best and most sanitary feedlot procedures, including chemical sprays, to keep down flies and odors, and frequently removes manure. Despite these measures, residents of Metropolis complain of flies and odors. An action has been filed by five individual homeowners who live within half a mile of the Cattle Company feedlot. The plaintiffs' homes are valued currently at $95,000 to $140,000 each. Flies in the area are five to ten times more numerous than in other parts of Metropolis, and extremely obnoxious odors are frequently carried by the wind to the plaintiffs' homes. The flies and odors are a substantial health hazard. If plaintiffs assert a claim based on public nuisance, plaintiffs will •(A) prevail if plaintiffs sustained harm different from that suffered by the public at large. •(B) prevail if Cattle Company's acts interfered with any person's enjoyment of his property. •(C) not prevail, because only the state may bring an action based on public nuisance. •(D) not prevail, because plaintiffs came to the nuisance.

(A) prevail if plaintiffs sustained harm different from that suffered by the public at large.

Abigail was scheduled to undergo surgery for removal of her appendix. Doctor Smith, her family doctor, agreed to perform the operation. The day of the surgery, Doctor Smith was called out of town because of a family illness. Even though there was no emergency, it was decided by the hospital to go ahead with the operation and substitute Doctor Michaels for Doctor Smith. Doctor Michaels is considered to be an expert in appendectomies. Abigail was not informed of the switch in doctors. If Abigail sues Doctor Michaels on a battery theory, who will prevail? •(A) Abigail, only if the operation did not improve her physical well-being. •(B) Abigail, regardless of whether the operation improved her physical well-being. •(C) Doctor Michaels, because he was at least as qualified as Doctor Smith. •(D) Doctor Michaels, if Doctor Smith approved the substitution of doctors.

(B) Abigail, regardless of whether the operation improved her physical well-being.

A driver negligently ran over a pedestrian. A bystander witnessed the accident from across the street. The bystander ran to the pedestrian, whom he did not know, and administered first aid, but the pedestrian died in the bystander's arms. The bystander suffered serious emotional distress as a result of his failure to save the pedestrian's life, but he experienced no resulting physical manifestations. The bystander has brought a negligence action against the driver. Is the bystander likely to prevail? •(A) No, because the bystander assumed the risk. •(B) No, because the bystander had no familial or other preexisting relationship with the pedestrian. •(C) Yes, because danger invites rescue. •(D) Yes, because the bystander was in the zone of danger.

(B) No, because the bystander had no familial or other preexisting relationship with the pedestrian.

Drew, the owner of a truck leasing company, asked Pat, one of Drew's employees, to deliver $1,000 to the dealership's main office. The following week, as a result of a dispute over whether the money had been delivered, Drew instructed Pat to come to the office to submit to a lie detector test. When Pat reported to Drew's office for the test, it was not administered. Instead, without hearing Pat's story, Drew shouted at him, "You're a thief!" and fired him. Drew's shout was overheard by several other employees who were in another office, which was separated from Drew's office by a thin partition. The next day, Pat accepted another job at a higher salary. Several weeks later, upon discovering that the money had not been stolen, Drew offered to rehire Pat. In a suit for slander by Pat against Drew, Pat will •(A) Prevail, because Pat was fraudulently induced to go to the office for a lie detector test, which was not, in fact, given. •(B) Prevail, if Drew should have foreseen that the statement would be overheard by other employees. •(C) Not prevail, if Drew made the charge in good faith, believing it to be true. •(D) Not prevail, because the statement was made to Pat alone and intended for his ears only.

(B) Prevail, if Drew should have foreseen that the statement would be overheard by other employees.

The manager of a department store noticed that Paula was carrying a scarf with her as she examined various items in the blouse department. The manager recognized the scarf as an expensive one carried by the store. Paula was trying to find a blouse that matched a color in the scarf, and, after a while, found one. The manager then saw Paula put the scarf into her purse, pay for the blouse, and head for the door. The manager, who was eight inches taller than Paula, blocked Paula's way to the door and asked to see the scarf in Paula's purse. Paula produced the scarf, as well as a receipt for it, showing that it had been purchased from the store on the previous day. The manager then told Paula there was no problem, and stepped out of her way. If Paula brings a claim against the store based on false imprisonment (or assault), the store's best defense would be that •(A) By carrying the scarf in public view and then putting into her purse, Paula assumed the risk of being detained. •(B) The manager had a reasonable belief that Paula was shoplifting and detained her only briefly for a reasonable investigation of the facts. •(C) Paula should have realized that her conduct would create a reasonable belief that facts existed warranting a privilege to detain. (D) Paula was not detained, but was merely questioned about the scarf.

(B) The manager had a reasonable belief that Paula was shoplifting and detained her only briefly for a reasonable investigation of the facts.

Palmco owns and operates a beachfront hotel. Under a contract with City to restore a public beach, Dredgeco placed a large and unavoidably dangerous stone-crushing machine on City land near Palmco's hotel. The machine creates a continuous and intense noise that is so disturbing to the hotel guests that they have canceled their hotel reservations in large numbers, resulting in a substantial loss to Palmco. Palmco's best chance to recover damages for its financial losses from Dredgeco is under the theory that the operation of the stone-crushing machine constitutes •(A) an abnormally dangerous activity. •(B) a private nuisance. •(C) negligence. •(D) a trespass.

(B) a private nuisance.

A recently established law school constructed its building in a quiet residential neighborhood. The law school had obtained all the necessary municipal permits for the construction of the building, which included a large clock tower whose clock chimed every hour. The chimes disturbed only one homeowner in the neighborhood, who had purchased her house prior to the construction of the building. The homeowner was abnormally sensitive to ringing sounds, such as bells and sirens, and found the chimes to be extremely annoying. In a nuisance action by the homeowner against the law school, will the homeowner be likely to prevail? •(A) Yes, because the chimes interfere with the homeowner's use and enjoyment of her property. •(B) Yes, because the homeowner purchased her house prior to the construction of the building. •(C) No, because the chimes do not disturb the other residents of the neighborhood. •(D) No, because the law school had obtained the requisite municipal permits to erect the clock tower.

(C) No, because the chimes do not disturb the other residents of the neighborhood.

David built in his backyard a garage that encroached two feet across the property line onto property owned by his neighbor, Prudence. Thereafter, David sold his property to Drake. Prudence was unaware, prior to David's sale to Drake, of the encroachment of the garage onto her property. When she thereafter learned of the encroachment, she sued David for damages for trespass. In this action, will Prudence prevail? •(A) No, unless David was aware of the encroachment when the garage was built. •(B) No, because David no longer owns or possesses the garage. •(C) Yes, because David knew where the garage was located, whether or not he knew where the property line was. •(D) Yes, unless Drake was aware of the encroachment when he purchased the property.

(C) Yes, because David knew where the garage was located, whether or not he knew where the property line was.

After being notified by Dr. Josephs that Nurse Norris's employment with his office was terminated, Norris applied for a position with Hospital. In her application, Norris listed her former employment with Josephs. Josephs, in response to a telephone inquiry from Hospital, stated that "Norris lacked professional competence." Although Josephs believed that to be a fair assessment of Norris, his adverse rating was based on one episode of malpractice for which he blamed Norris but which in fact was chargeable to another doctor. Because of the adverse comment on her qualifications provided by Josephs, Norris was not employed by Hospital. If Norris asserts a claim based on defamation against Josephs, will Norris prevail? •(A) Yes, because Josephs was mistaken in the facts on which he based his opinion of Norris's competence. •(B) Yes, because the statement of Josephs reflected adversely on Norris's professional competence. •(C) No, if Norris authorized Hospital to make inquiry of her former employer. •(D) No, if Josephs had reasonable grounds for his belief that Norris was not competent.

(D) No, if Josephs had reasonable grounds for his belief that Norris was not competent.

Ohner owns the Acme Hotel. When the International Order of Badgers came to town for its convention, its members rented 400 of the 500 rooms, and the hotel opened its convention facilities to them. Badgers are a rowdy group, and during their convention they littered both the inside and the outside of the hotel with debris and bottles. The hotel manager knew that objects were being thrown out of the hotel windows. At his direction, hotel employees patrolled the hallways telling the guests to refrain from such conduct. Ohner was out of town and was not aware of the problems which were occurring. During the convention, as Smith walked past the Acme Hotel on the public sidewalk, he was hit and injured by an ashtray thrown out of a window in the hotel. Smith sued Ohner for damages for his injuries. Will Smith prevail in his claim against Ohner? •(A) Yes, because a property owner is strictly liable for acts on his premises if such acts cause harm to persons using the adjacent public sidewalks. •(B) Yes, if the person who threw the ashtray cannot be identified. •(C) No, because Ohner had no personal knowledge of the conduct of the hotel guests. •(D) No, if the trier of fact determines that the hotel employees had taken reasonable precautions to prevent such an injury.

(D) No, if the trier of fact determines that the hotel employees had taken reasonable precautions to prevent such an injury.

A rancher and his neighbor were involved in a boundary dispute. In order to resolve their differences, each drove his truck to an open pasture area on his land where the two properties were separated by a fence. The rancher was accompanied by four friends, and the neighbor was alone. The neighbor got out of his truck and walked toward the fence. The rancher got out but simply stood by his truck. When the neighbor came over the fence, the rancher shot him, inflicting serious injury. In a battery action brought by the neighbor against the rancher, the rancher testified that he actually thought his neighbor was armed, although he could point to nothing that would have reasonably justified this belief. Is the neighbor likely to prevail? •(A) No, because the rancher was standing on his own property and had no obligation to retreat. •(B) No, because the rancher suspected that the neighbor was armed. •(C) Yes, because deadly force is never appropriate in a property dispute. •(D) Yes, because it was unreasonable for the rancher to consider the use of a gun necessary for self-defense.

(D) Yes, because it was unreasonable for the rancher to consider the use of a gun necessary for self-defense.

A man sued his neighbor for defamation based on the following facts: The neighbor told a friend that the man had set fire to a house in the neighborhood. The friend, who knew the man well, did not believe the neighbor's allegation, which was in fact false. The friend told the man about the neighbor's allegation. The man was very upset by the allegation, but neither the man nor the neighbor nor the friend communicated the allegation to anyone else. Should the man prevail in his lawsuit? •(A) No, because the friend did not believe what the neighbor had said. •(B) No, because the man cannot prove that he suffered pecuniary loss. •(C) Yes, because the man was very upset at hearing what the neighbor had said. •(D) Yes, because the neighbor communicated to the friend the false accusation that the man had committed a serious crime.

(D) Yes, because the neighbor communicated to the friend the false accusation that the man had committed a serious crime.

Employer retained Doctor to evaluate medical records of prospective employees. Doctor informed Employer that Applicant, a prospective employee, suffered from AIDS. Unbeknownst to Doctor, Employer informed Applicant of this and declined to hire her. Applicant was shocked by this news and suffered a heart attack as a result. Subsequent tests revealed that Applicant in fact did not have AIDS. Doctor had negligently confused Applicant's file with that of another prospective employee. If Applicant sues Doctor for damages, on which of the following causes of action would Applicant recover? I. Invasion of privacy. II. Negligent misrepresentation. III. Negligent infliction of emotional distress. •A. III only. •B. I and II only. •C. II and III only •D. I, II, and III. Why is "negligent misrepresentation" a wrong answer?

A. III only. Woodruff v. Gitlow, 91 A.3d 805 (R.I. 2014) (liability of physician hired to review medical records for FAA was limited to loss suffered by the entity that engaged the physician (the FAA); physician was not liable for negligent misrepresentation to person whose medical records were reviewed).

A 12-year-old boy took his radio-controlled model airplane to the park to show his friends the stunts he could do with it. The weather that day was rainy, and the instruction manual for the plane warned against flying in the rain, but the boy was able to get the plane off of the ground. However, because of the rain, he had trouble controlling it with the transmitter. He tried to have the plane make a loop but it veered off course and crashed through the fabric roof of a convertible, which is parked nearby on the street. If the car owner sues the boy for damages to his car and prevails it will be because: •A. A child of the boy's age, education, intelligence, and experience would not have flown the airplane that day. •B. A reasonable person would not have flown the airplane that day. •C. The airplane instruction manual warned against flying in the rain. •D. The boy committed a trespass to chattel with his airplane.

A. A child of the boy's age, education, intelligence, and experience would not have flown the airplane that day.

D was celebrating Independence Day by shooting a gun into the air in a sparsely populated area. One of the bullets fell through the roof of a neighbor's house striking P in the foot. P sues D for battery. Which of the following is a correct statement? •A. D has not committed a battery because, although he recklessly increased the risk of harming someone, he was not substantially certain that a harmful contact would occur. •B. D has not committed a battery against P because D's intent was celebratory. •C. D has not committed a battery because one must intend contact with a specific person. •D. Both B and C are correct.

A. D has not committed a battery because, although he recklessly increased the risk of harming someone, he was not substantially certain that a harmful contact would occur.

A longshoreman fell to his death through an open hatch on the deck of a ship. The longshoreman was an employee of a company that had contracted with ship's owner to load and unload the ship. The fall occurred at night, when loading work was over for the day, and there was no reason for the longshoreman to have been near the hatch. A negligence action was filed against the ship's owner for the death of the longshoreman. In that action, the owner has moved for summary judgment and has provided unrebutted evidence that it is customary for the crews of ships to open the hatches for ventilation after the longshoremen have left the ships. How should the court respond to the motion? •A. Deny the motion and submit the case to the jury with instructions that the custom is relevant but not conclusive on the issue of negligence. •B. Deny the motion and submit the case to the jury with instructions that the ship's owner should win if the longshoreman was improperly near the hatch. •C. Deny the motion, because the probability of serious injury caused by falling down an open hatch clearly outweighs the burden of keeping the hatch closed. •D. Grant the motion, because the custom should be considered conclusive on the issue of negligence.

A. Deny the motion and submit the case to the jury with instructions that the custom is relevant but not conclusive on the issue of negligence.

A resort maintained an outside bar adjacent to its pool. When the bar was closed, it was secured by a metal gate that reached up towards the roof of the bar, but which left about a three-foot gap between the top of the gate and the roof. The resort had installed motion detectors inside the bar linked to an alarm system because of several previous thefts of liquor by persons climbing over the gate. Late one night, an intoxicated guest of the resort who wanted to keep partying after hours began to climb over the gate to get into the bar through the gap at the top, intending to take some bottles of wine. The brackets attaching the gate to the walls, which had been gradually deteriorating and pulling away from the walls for some time, suddenly gave way as he reached the top. The gate collapsed, causing him to fall back onto the concrete patio. He sustained a severe concussion and other serious injuries. If the guest sues the resort for his injuries, is he likely to prevail? •A. No, because the guest did not have invitee status when he was climbing over the gate. •B. No, because the guest intended to steal alcohol belonging to the resort. •C. Yes, because the resort operators were aware that persons had climbed over the gate in the past. •D. Yes, because the brackets attaching the gate to the walls were in a weakened condition that could of been detected by a routine inspection.

A. No, because the guest did not have invitee status when he was climbing over the gate.

A young woman who attended a rock concert at a nightclub was injured when the band opened its performance with illegal fireworks that ignited foam insulation in the club's ceiling and walls. The young woman sued the radio station that sponsored the performance. The radio station has moved for summary judgment, claiming that it owed no duty to audience members. The evidence has established the following facts: - The station advertised its sponsorship on the radio and in print. -The station distributed free tickets to the concert. -The station staffed the event with the station's interns to assist with crowd control. -The station provided a station disc jockey to serve as master of ceremonies, who had the authority to stop or delay the performance at any time on the basis of any safety concern. -The station knew or should have known that the band routinely used unlicensed, illegal fireworks in its performances. Should the court grant the radio station's motion for summary judgment? •A. No, because there is sufficient evidence of knowledge and control on the part of the station to impose on it a duty of care to audience members. •B. No, because under respondeat superior, the radio station is vicariously liable for the negligent actions of the band. •C. Yes, because it is the band and the nightclub owners who owed audience members a duty of care. •D. Yes, because the conduct of the band in setting off illegal fireworks was criminal and was a superseding cause as a matter of law.

A. No, because there is sufficient evidence of knowledge and control on the part of the station to impose on it a duty of care to audience members.

The police in City notified local gas station attendants that a woman, known as Robber, recently had committed armed robberies at five City gas stations. The police said that Robber was approximately 75 years old, had white hair, and drove a vintage, cream-colored Ford Thunderbird. Attendants were advised to call police if they saw her, but not to attempt to apprehend her. Armed robbery is a felony under state law. Traveler was passing through the City on a cross-country journey. Traveler was a 75-year-old woman who had white hair and drove a vintage, cream-colored Ford Thunderbird. When Traveler drove into Owner's gas station, Owner thought Traveler must be the robber wanted by police. After checking the oil at Traveler's request, Owner falsely informed Traveler that she had a broken fan belt, that her car could not be driven without a new belt, that it would take him about an hour to replace it, and that she should stay in his office for consultation about the repair. Traveler was greatly annoyed that her journey was delayed, but she stayed in Owner's office while she waited for her car. Owner telephoned the police and, within the hour, the police came and questioned Traveler. The police immediately determined that Traveler was not Robber, and Traveler resumed her journey without further delay. In Traveler's action for false imprisonment against Owner, Traveler will •A. Not prevail, if Owner reasonably believed that Traveler was Robber. •B. Not prevail, because Traveler suffered no physical or mental harm. •C. Prevail, if Traveler reasonably believed she could not leave Owner's premises. •D. Prevail, because Owner lied to Traveler about the condition of her car.

A. Not prevail, if Owner reasonably believed that Traveler was Robber.

Sarah and Elaine were shopping at a department store located in the mall. While Sarah was trying on a new dress in the dressing room, Elaine wedged a door stop under the dressing room door so that she could finish buying Sarah a surprise birthday present. The sales clerk took an extra minute to process the credit card purchase, so Sarah wound up pounding on the door, saying "Let me out!" After sixty seconds, Elaine took the door stop away and pretended that it got stuck. Did Elaine commit the tort of false imprisonment? •A. Yes, because Elaine intended to confine her. •B. Yes, but only if Sarah suffered severe emotional distress. •C. No, because Elaine did not intend to cause physical harm. •D. No, because the confinement only lasted a short period of time.

A. Yes, because Elaine intended to confine her.

Homeowner owns a house on a lake. Neighbor owns a house across a driveway from Homeowner's property. Neighbor's house sits on a hill and Neighbor can see the lake from his living room window. Homeowner and Neighbor got into an argument and Homeowner erected a large spotlight on his property that automatically comes on at dusk and goes off at sunrise. The only reason Homeowner installed the light was to annoy Neighbor. The glare from the light severely detracts from Neighbor's view of the lake. In a suit by Neighbor against Homeowner, will Neighbor prevail? •A. Yes, because Homeowner installed the light solely to annoy Neighbor. •B. Yes, if, and only if, Neighbor's property value is adversely affected. •C. No, because Neighbor's view of the lake is not always obstructed. •D. No, if the spotlight provides added security to Homeowner's property.

A. Yes, because Homeowner installed the light solely to annoy Neighbor.

Dayton operates a collection agency. He was trying to collect a $400 bill for medical services rendered to Pratt by Doctor. Dayton went to Pratt's house and when Martina, Pratt's mother, answered the door, Dayton told Martina he was there to collect a bill owed by Pratt. Martina told Dayton that because of her illness, Pratt had been unemployed for six months, that she was still ill and unable to work, and that she would pay the bill as soon as she could. Dayton, in a loud voice, demanded to see Pratt and said that if he did not receive payment immediately, he would file a criminal complaint charging her with fraud. Pratt, hearing the conversation, came to the door. Dayton, in a loud voice, repeated his demand for immediate payment and his threat to use criminal process. If Pratt asserts a claim against Dayton based on intentional infliction of emotional distress, will Pratt prevail? •A. Yes, if Pratt suffered severe emotional distress as a result of Dayton's conduct. •B. Yes, unless the bill for medical services was valid and past due. •C. No, unless Pratt suffered physical harm as a result of Dayton's conduct. •D. No, if Dayton's conduct created no risk of physical harm to Pratt.

A. Yes, if Pratt suffered severe emotional distress as a result of Dayton's conduct.

D is a six-year-old boy who has a well-deserved reputation for bullying younger and smaller children. His parents have encouraged him to be aggressive and tough. D, for no reason, knocked down, kicked and severely injured P, a four-year old. A claim for relief has been asserted by P's parents for their medical and hospital costs and for P's injuries. If the claim is asserted against D's parents, the most likely result is they will be •A. Liable, because parents are strictly liable for the torts of their children. •B Liable, because D's parents encouraged him to be aggressive and tough. •C. Not liable, because a six-year-old cannot commit a tort. •D. Not liable, because parents cannot be held liable for the tort of a child.

B Liable, because D's parents encouraged him to be aggressive and tough.

Mike decided to excavate a large portion of his property in preparation for adding a new building on the land. He did not illuminate the excavated site or post a warning sign. Mike's land is not fenced and, although he has not noticed any trespassers on his property, he has done nothing to keep them away. One night, Tommy, age 17, took a shortcut through Mike's land to hurry home after breaking curfew. Tommy fell into the excavation and was injured. An action by Tommy against Mike should •A. Fail, because Tommy assumed the risk. •B. Fail, because Tommy was not a discovered trespasser. •C. Succeed, because it was negligent for Mike not to illuminate his property or warn visitors. •D. Succeed, because Tommy's trespassing was foreseeable. Would an action by Tommy succeed if Mike actually knew that trespassers were cutting through his land?

B. Fail, because Tommy was not a discovered trespasser. Yes, if it was negligent for Mike not to illuminate his property or warn visitors.

Adam and Barbara were walking on a public sidewalk that ran along the edge of Philip's rose garden. Adam thought it would be funny to push Barbara into the garden so that Barbara's shoes would get muddy. As they passed the garden, Adam shoved Barbara toward the garden. Barbara lost her balance for a moment, and one of her arms went into the air above some of the roses on Philip's side of the property line, but Barbara managed quickly to regain her balance and to avoid stepping off the sidewalk or touching anything with her arm. Philip was looking out the window, saw what happened, and was very angry that anyone was acting so silly around his beloved roses. If Philip files a lawsuit, what is the most likely result? •A. Adam and Barbara will both be liable for trespass to land. •B. Adam will be liable for trespass to land, but not Barbara. •C. Barbara will be liable for trespass to land, but not Adam. D. Neither Adam nor Barbara will be liable for trespass to land.

B. Adam will be liable for trespass to land, but not Barbara.

An ice cream truck driver was driving at a safe speed. From the other direction, a tractor-trailer came around a curve and was confronted with a very slow moving red car just in front of him. To avoid colliding with the car, the tractor-trailer pulled to the left and crossed the center lane, where he bore down on the ice cream truck driver who was approaching from the opposite direction. The tractor-trailer driver did not yield and there were other vehicles (including the red car) to the ice cream driver's left. The ice cream truck driver's only option was to turn to the right, onto landowner's land. His truck caused damage to the landowner's property. Which of the following best describes the ice cream truck driver's liability to the landowner? •A. Ice cream truck driver is liable only for nominal damages. •B. Ice cream truck driver is liable for actual damage to the land. •C. Ice cream truck driver is liable for nothing because he reacted to an emergency situation that he did not create. •D. Ice cream truck is liable for nothing because the incident was not his fault and he acted in a reasonable and responsible manner.

B. Ice cream truck driver is liable for actual damage to the land.

A tenant remained in possession of the house she was renting after her lease term had expired, prompting the landlord to begin eviction proceedings. While the tenant was still in the house, a heavy snowfall covered the driveway, requiring her to shovel the driveway so she could get her car out of the garage. Shortly after she finished shoveling, the tenant's neighbor used a snowblower to blow all of the snow from his driveway onto the tenant's driveway. Consequently the tenant had to shovel it again before she could get her car out. A trespass action against the neighbor can be brought by: •A. Just the landlord, because the tenant no longer had the right to possession of the property. •B. Just the tenant, because the neighbor blew the snow onto her driveway. •C. Just the tenant, because the neighbor interfered with her use of the driveway. •D. Both the landlord and the tenant.

B. Just the tenant, because the neighbor blew the snow onto her driveway

Vintner is the owner of a large vineyard and offers balloon rides to visitors who wish to tour the grounds from the air. During one of the rides, Vintner was forced to make a crash landing on his own property. Without Vinter's knowledge or consent, Trespasser had entered the vineyard to camp for a couple of days. Trespasser was injured when he was hit by the basket of the descending balloon. If Trespasser sues Vintner to recover damages for his injuries, will Trespasser prevail? •A. No, unless the crash landing was made necessary by negligence on Vintner's part. •B. No, unless Vintner could have prevented the injury to Trespasser after becoming aware of Trespasser's presence. •C. Yes, because even a trespasser may recover for injuries caused by an abnormally dangerous activity. •D. Yes, if the accident occurred at a place which Vintner knew was frequented by intruders.

B. No, unless Vintner could have prevented the injury to Trespasser after becoming aware of Trespasser's presence.

A 10-year-old boy and two other children were caught by the police while breaking the windows of and causing other damage to a woman's automobile one night. The damages totaled $2,000. By statute, the jurisdiction makes parents liable for up to $5,000 for the willful and intentional torts of their minor children. In a suit by the car owner against the boy for the damages to her automobile, the car owner should: •A. Prevail, because the boy, at the age of 10, should have been aware of the consequences of his actions. •B. Prevail, because the boy deliberately damaged her car. •C. Not prevail, because the boy is presumed to be under the care of his parents and, therefore, is not legally responsible for his tortious conduct. •D. Not prevail, because the jurisdiction makes parents liable for the intentional torts of the minor children.

B. Prevail, because the boy deliberately damaged her car.

After leaving ceremonies at which the chief justice of a state supreme court had been named distinguished jurist of the year, an associate justice was interviewed by the press. The associate justice told the reporter that the chief justice "is a senile imbecile who lets his clerks write all of his opinions. He hasn't had a lucid thought in decades, and he became a judge by being on the payroll of the mob." Enraged, the chief justice brought an action for defamation against the associate justice. Which of the following, established by the chief justice in his defamation action, would permit recovery against the associate justice? •A. The associate justice negligently made the statements, which were false, and caused the chief justice actual injury. •B. The associate justice made the statements knowing they were false. •C. The associate justice made the statements because he hated the chief justice and wished to destroy his reputation in the legal community. •D. The associate justice made the statements in order to ensure that the chief justice's political career was nipped in the bud.

B. The associate justice made the statements knowing they were false.

An American tourist was visiting another country when he was warned by United States health authorities to go immediately to a hospital because he had a serious and extremely contagious disease that required him to be quarantined. He decided to ignore the warning and instead traveled on an airline flight back to the United States. Despite the tourist's belief that he would not be discovered and his best efforts to keep a low profile, the news media were tipped off to what he had done and publicized it. When a passenger who had been sitting next to the tourist on the plane learned about it, she became extremely upset, fearing that she would contract the disease. The passenger brought a negligence action to recover for the distress she suffered. If the passenger does not prevail, it will be because: •A. The tourist's conduct was not extreme and outrageous. •B. The passenger did not suffer physical injury from her distress. •C. The passenger did not contract the disease from the tourist. •D. The tourist could not have reasonably foreseen that other passengers would find out about what he had done.

B. The passenger did not suffer physical injury from her distress.

H and W, walking on a country road, were frightened by a large bull running loose on the road. To avoid the bull, they climbed over a fence to get onto the adjacent property, which was owned by Grower. After climbing the fence, H and W damaged some of Grower's plants which were near the fence. The fence was posted with a large sign, "No Trespassing." Grower saw H and W trying to escape from the bull and came toward them with a large watchdog on a long leash. The dog rushed at H and W. Grower had intended only to frighten H and W, but the leash broke, and before Grower could restrain the dog, the dog bit W. If H asserts a claim based on assault against Grower, will H prevail? •A. No, because the landowner could use deadly force to protect his farm land. •B. Yes, if H believed that the dog would bite him. •C. No, because the dog bit W. •D. No, if Grower was trying to protect his property.

B. Yes, if H believed that the dog would bite him.

Plaintiff expressly consents to an operation on his nose. While plaintiff is on the operating table (and unconscious), the defendant decides to perform an unrelated, non-emergency face-lift on plaintiff. Were any torts committed?

Battery. Exceeded the scope of consent.

The day after Seller completed the sale of his house and moved out, one of the slates flew off the roof during a windstorm. The slate struck Pedestrian, who was on the public sidewalk. Pedestrian was seriously injured. The roof is old and has lost several slates in ordinary windstorms on other occasions. If Pedestrian sues Seller to recover damages for his injuries, will Pedestrian prevail? •A. Yes, because the roof was defective when Seller sold the house. •B. Yes, if Seller should have been aware of the condition of the roof and should have realized that it was dangerous to persons outside the premises. •C. No, because Seller was neither the owner nor the occupier of the house when Pedestrian was injured. •D. No, if Pedestrian knew that in the past slates had blown off the roof during windstorms.

C. No, because Seller was neither the owner nor the occupier of the house when Pedestrian was injured.

When Parents were told that their child, Son, should repeat second grade, they sought to have him evaluated by a psychologist. The psychologist, who charged $300, determined that Son had a learning disability. Based upon the report, the school board placed Son in special classes. At an open meeting of the school board, Parents asked that the $300 they had paid to the psychologist be reimbursed by the school district. A reporter attending the meeting wrote a newspaper article about this request, mentioning Son by name. In a privacy action brought by Son's legal representative against the newspaper, the plaintiff will •A. recover, because the story is not newsworthy. •B. recover, because Son is under the age of consent. •C. not recover, if the story is a fair and accurate report of what transpired at the meeting. •D. not recover, if Parents knew that the reporter was present.

C. not recover, if the story is a fair and accurate report of what transpired at the meeting.

D saw his classmate P carrying a pile of books he suspected P had stolen from D's locker a few days ago. The books in fact belonged to P. D said to P "Let me see those books." When P refused, D reached out to grab them, but P who was a black belt in karate and not afraid of D, scowled and dodged away from D without being touched. Based on these facts •A. D has committed no tort against P because he was privileged to use reasonable force to recover chattel he reasonably believed to be his. •B. D has committed no tort against P because P suffered no fear of a harmful or offensive contact. •C. D has committed an assault on P because P experienced anticipation of a harmful or offensive bodily contact. •D. D has committed no tort against P because he attempted only to grab books P was holding, not to harm or offend P himself.

C. D has committed an assault on P because P experienced anticipation of a harmful or offensive bodily contact.

A motorist lapsed into unconsciousness while driving. Her car crossed the centerline, which was marked with a double yellow line. A statute made it illegal for any person operating a motor vehicle on the highways of the state to cross a double yellow line. The motorist's car collided with another vehicle, and the driver of that vehicle was seriously injured. The driver sued the motorist for his injuries. At trial, the parties stipulated to the above facts. The motorist testified that she had not previously lapsed into unconsciousness while driving. At the close of the evidence, the driver moves for a directed verdict in his favor. The court should: •A. Grant the motion, because the motorist's vehicle crossed the driver's lane and caused the driver's injuries. •B. Grant the motion, because the driver has established negligence per se from the violation of an applicable statute that was intended to prevent the type of harm that occurred. •C. Deny the motion, because the jury could find that the motorist had no reason to believe that she would lapse into unconsciousness. •D. Deny the motion, because it was impossible for the motorist to comply with the statute.

C. Deny the motion, because the jury could find that the motorist had no reason to believe that she would lapse into unconsciousness.

Dumont, a real estate developer, was trying to purchase land on which he intended to build a large commercial development. Perkins, an elderly widow, had rejected all of Dumont's offers to buy her ancestral home, where she had lived all her life and which was located in the middle of Dumont's planned development. Finally, Dumont offered her $250,000. He told her that it was his last offer and that if she rejected it, state law authorized him to have her property condemned. Perkins then consulted her nephew, a lawyer, who researched the question and advised her that Dumont had no power of condemnation under state law. Perkins had been badly frightened by Dumont's threat, and was outraged when she learned that Dumont had lied to her. If Perkins sues Dumont for damages for emotional distress, will she prevail? •A. Yes, if Dumont's action was extreme and outrageous. •B. Yes, because Perkins was frightened and outraged. •C. No, if Perkins did not suffer emotional distress that was severe. •D. No, if it was not Dumont's purpose to cause emotional distress. If Perkins asserts a claim based on misrepresentation against Dumont, will she prevail? •A. Yes, if Dumont knew he had no legal power of condemnation. •B. Yes, if Dumont tried to take unfair advantage of a gross difference between himself and Perkins in commercial knowledge and experience. •C. No, if Dumont's offer of $250,000 equaled or exceeded the market value of Perkins's property. •D. No, because Perkins suffered no pecuniary loss.

C. No, if Perkins did not suffer emotional distress that was severe. D. No, because Perkins suffered no pecuniary loss.

Boater owned a power boat that he was operating on Lake, a large body of water, on a clear calm day. He approached Sailer whose sailboat was disabled by a broken rudder. Sailer asked Boater to tow his sailboat to shore but Boater refused because he feared the tow might damage the paint on his power boat. Sailer was unable to bring his sailboat in and became severely ill as a result of exposure before he was rescued. If Sailer asserts a claim against Boater for damages based on Boater's refusal to provide assistance, will Sailer prevail? •A. Yes, if Boater's failure to rescue made a bad situation worse. •B. Yes, if the probability of harm to Sailer outweighed the probability of damage to Boater's property. •C. No, unless there was some special relationship between Sailer and Boater. •D. No, if Boater reasonably believed that towing Sailer's sailboat might damage the paint on Boater's power boat.

C. No, unless there was some special relationship between Sailer and Boater.

At the end of the season, the owner of a private beach stacked up his rental canoes onto a trailer, and arranged for them to be moved the next day into a storage shed for the winter. That evening, two nine-year-old boys came onto the owner's property even though they knew that the lake was closed to the public for the season. Both of them had used the canoes (with an adult) several times during the past summer and had always worn life vests. They unhooked one of the canoes from the rack, lifted it down, and pushed it into the water. Although life vests were sitting in an open bin nearby, neither boy put one on. When they were out in the middle of the lake with the canoe, they tried to switch seats and caused the canoe to capsize. They both tried to swim to shore. One was able to make it, but unfortunately the other boy could not make it and he drowned. Had he been wearing a life vest, he would have survived. The boy's parents bring a wrongful death action against the beach owner. If the beach owner prevails, it will be because: •A. A reasonably prudent adult would not take the canoe out without a life vest. •B. The owner took precautions to make the canoes inaccessible. •C. The boy appreciated the risk of taking the canoe out onto the lake without a life vest. •D. The boy was not lured onto the owner's property by the canoes.

C. The boy appreciated the risk of taking the canoe out onto the lake without a life vest.

A missile company was engaged in research and development of an interplanetary space shuttle, under a contract with the United States government. Over a period of years, it developed a prototype of a huge, solid-fuel rocket engine for use in this program. To evaluate the performance of this engine, it conducted a static test of the engine at a remote desert site. The rocket engine was mounted on a concrete test stand, with the thrust of the engine directed downward into the ground. When the engine was fired up, huge clouds of flame and smoke filled the air, and particles of debris from the rocket fell onto an adjoining farm. If the farmer files an action against the company for trespass, which of the following facts, if proved, would be most helpful to the company in avoiding liability? •A. The farmer bought and operated his farm knowing that the company used the adjoining property for testing its rocket engines. •B. Neither the company nor anyone in its employee set foot upon the farmer's land. •C. The company had no reason to anticipate that the tests would cause any of the results that occurred. •D. The rocket testing program is essential to national security, so the company's conduct was completely privileged as a public necessity.

C. The company had no reason to anticipate that the tests would cause any of the results that occurred.

A hockey player who was playing in the final game of the season before a hostile crowd in the opponent's packed stadium had an opportunity to get his team into the playoffs, but he missed a shot into an open net as the horn sounded, ending the game. As the crowd cheered and jeered, the puck bounced back to him and he shot it in anger toward the stands. A fan who had been looking the other way turned back toward the rink just in time to be struck in the face by the puck. He suffered a broken nose and a severe gash under his eye. After the game, the league commissioner fined the player for violating league rules by intentionally directing the puck out of the playing area. If the fan sues the player for battery, will the fan likely prevail? •A. No, because by attending a hockey game, the fan assumed the risk of pucks being shot into the stands. •B. No, because the player did not have the intent to strike the fan with the puck. •C. Yes, because the player knew that it was substantially certain that a fan would be hit by the puck. •D. Yes, because the player violated league rules by intentionally shooting the puck out of the playing area

C. Yes, because the player knew that it was substantially certain that a fan would be hit by the puck.

Perry suffered a serious injury while participating in an impromptu basketball game at a public park. The injury occurred when Perry and Dever, on opposing teams, each tried to obtain possession of the ball when it rebounded from the backboard after a missed shot at the basket. During that encounter, Perry was struck and injured by Dever's elbow. Perry now seeks compensation from Dever. At the trial, evidence was introduced tending to prove that the game had been rough from the beginning, that elbows and knees had frequently been used to discourage interference by opposing players, and that Perry had been one of those making liberal use of such tactics. In this action, will Perry prevail? •A. Yes, if Dever intended to strike Perry with his elbow. •B. Yes, if Dever intended to cause a harmful or offensive contact with Perry. •C. No, because Perry impliedly consented to rough play. •D. No, unless Dever intentionally used force that exceeded the players' consent.

D. No, unless Dever intentionally used force that exceeded the players' consent.

Leader is a labor leader in Metropolis. Ten years ago he was divorced. Both he and his first wife have since married other persons. Recently, News, a newspaper in another city, ran a feature article on improper influences it claims had been used by labor officials to secure favorable rulings from government officials. The story said that in 1997 Leader's first wife, with Leader's knowledge and concurrence, gave sexual favors to the mayor of Metropolis and then persuaded him to grant concessions to Leader's union, with which Metropolis was then negotiating a labor contract. The story named Leader and identified his first wife by her former and current surnames. The reporter for News believed the story to be true, since it had been related to him by two very reliable sources. Leader's first wife suffered emotional distress and became very depressed. If she asserts a claim based on defamation against News, she will •A. Prevail, because the story concerned her personal, private life. •B. Prevail if the story was false. •C. Not prevail, because News did not print the story with knowledge of its falsity or with reckless disregard for its truth or falsity. •D. Not prevail if News exercised ordinary care in determining whether the story was true or false.

D. Not prevail if News exercised ordinary care in determining whether the story was true or false.

A newspaper printed in a news article that a successful businessman running for the state legislature had attempted suicide and had just been released from the hospital, where he had undergone intensive psychotherapy. Actually, the businessman had been hospitalized because he had contracted hepatitis. The businessman's opponent, the incumbent legislator, read the story into the legislative record the next day. The businessman sued the incumbent for defamation. At trial, the businessman established that the incumbent had serious doubts as to the accuracy of the story when she read it into the record. The businessman will likely: •A. Recover, because he established that the incumbent acted with actual malice. •B. Recover, because the statement was slander per se. •C. Not recover, because the incumbent was relying on the veracity of the newspaper article. •D. Not recover, because the incumbent was privileged to make the defamatory statements.

D. Not recover, because the incumbent was privileged to make the defamatory statements.

A boy was playing softball in a neighborhood park when a ball was hit over the fence and into a neighbor's yard. The boy knocked on the neighbor's door and obtained permission from her to retrieve the ball from her yard. As he bent to retrieve the ball in some bushes, the boy brushed against an exposed electric wire that was partially hidden by the bushes and received a severe electric shock and burns. The neighbor has failed to maintain the bushes, allowing them to become overgrown, and was not aware of the exposed wire. In a suit by the boy against the neighbor for these injuries: •A. The neighbor is liable because the boy entered with her permission. •B. The neighbor is liable because she failed to repair a dangerous condition on her property. •C. The neighbor is liable because she failed to reasonably inspect the property, which would have made her aware of the dangerous condition of the wire. •D. The neighbor is not liable because she did not know of the condition of the wire.

D. The neighbor is not liable because she did not know of the condition of the wire.

A patient sought psychiatric treatment from a psychiatrist. During the treatment, which consisted of hour-long analysis sessions twice a week, the psychiatrist, unbeknownst to the patient, videotaped her. No sound recording was made of the sessions, but the psychiatrist was conducting a study on "body language" and planned to use the videotapes in those experiments. The patient learned that the psychiatrist had been videotaping their analysis sessions and brought an action against him on a theory of invasion of privacy. Which of the following arguments best supports the patient's claims in this action? •A. The psychiatrist has placed the patient in a false light. •B. The psychiatrist has publicly displayed private facts of the patient's life. •C. The psychiatrist has misappropriated the patient's likeness. •D. The psychiatrist has intruded upon the patient's physical seclusion.

D. The psychiatrist has intruded upon the patient's physical seclusion.

A intentionally locks B, a baby, in a room for 12 hours. Because of her age, B was unaware of the fact that she was confined, but she suffered dehydration and hypothermia during the confinement. Were any torts committed?

False imprisonment because B was injured.

A intentionally locks B in a cell. The cell has a secret trap door, but B is unaware of this fact. B is trapped for ten minutes, but suffers no real injuries. Were any torts committed? Would your answer change if B was asleep for the entire 10 minutes?

False imprisonment because B was not aware of the exit and has no duty to search for it. Yes. There is no false imprisonment because B was unaware of the confinement.

A throws a rock at B, intending to scare B. The rock misses B. B never saw the rock. Were any torts committed?

No

A wildfire is approaching the city. If it is not stopped, it will destroy hundreds of homes and businesses. To halt the fire's progress, the defendant creates a "fire break." The fire break is a 100-foot path that is cleared of all vegetation and structures. One of the structures destroyed for the fire break is plaintiff's house. Were any torts committed?

No torts and no damages b/c a public necessity.

B, a free-lance photographer, takes pictures of A while A is nude sunbathing on a public beach. Were any torts committed?

No, a public beach is not A's "seclusion."

A tells B, "If I weren't such a gentleman, I'd punch you in the mouth." Were any torts committed? A tells B, "If you do not give me your wallet, I will punch you in the mouth." Were any torts committed?

No, because A's "condition" negated the reasonable expectation of battery Assault. Although A conditioned the battery, A had no right to force B to make such a choice.

A walks up to B on the street and says, "B, I know you've been embezzling money from your job at the bank." The only people to hear A's statement are B and C. C is a resident of China and does not understand a word of English. Were any torts committed?

No, because there was no publication.

B, a newspaper reporter, publishes an article claiming that a prominent presidential candidate is suffering from prostate cancer. The claim is true, but the candidate has kept the matter private. Were any torts committed?

No, because this is a matter of "public concern."

Plaintiff expressly consents to an operation on his nose. While plaintiff is on the operating table (and unconscious), the defendant performs emergency heart bypass surgery on plaintiff. If the defendant had waited, the plaintiff would have died. Were any torts committed?

No, consent is implied by law.

A statute in Ohio prohibits drivers from crossing double yellow lines in the middle of highways. This statute is designed to prevent head-on collisions. While A is driving her car on the highway, a small child runs into A's path, causing A to cross a double yellow line and hit B's car head-on, injuring B. Is this negligence per se?

No, the violation was "excused."

A writes an unauthorized biography of Jennifer Aniston and sells it to a publisher. The book contains 500 pages of text and 20 photos of Jennifer and her family. Were any torts committed?

No, this tort does not cover "newsworthy" uses of another's name or likeness, such as newspapers, magazines, or books.

Defendant operates a small commuter airline. Due to severe weather conditions, defendant is forced to make an emergency landing in plaintiff's cornfield, destroying two acres of plaintiff's corn. There were eight passengers and two crew members on board. •Were any torts committed? •Is plaintiff entitled to any damages? •Could plaintiff recover punitive damages?

No. The defense of private necessity negates the trespass. Yes, for the actual damage to plaintiff's cornfield. No, because there was no tort.

A buys a used car from John, an accountant. John tells A that, "this car's in mint condition." It turned out to be a lemon, a fact which John knew. Were any torts committed? Would your answer change if John were a used car salesman who knew the car was a lemon?

Probably not because this is "puffing." Possibly intentional fraud.

A borrows B's car without permission and drives it for 15 minutes without any damage. Were any torts committed?

Trespass to chattels

Leaving a restaurant, B takes A's coat, mistaking it for his own. B returns it one hour later. Were any torts committed?

Trespass to chattels

In order to build a garage, A has her land surveyed. A builds the garage on land the survey shows belongs to A. It turns out that the survey was incorrect, and A's garage encroaches six inches on to B's land. Were any torts committed by A?

Trespass to land

A and B were recently divorced. A has begun dating C. In an effort to aggravate A, B intentionally runs over C, seriously injuring C. A was not present to see the battery, but A suffered severe emotional distress. Were any torts committed against A?

Yes, IIED

B, a free-lance photographer, takes pictures of A while A is showering in her new apartment. B took the pictures using a secret spy camera that he had installed in A's apartment before she moved in. Were any torts committed (judged by whether it is highly offensive to an average person)?

Yes, a reasonable person would find such intrusion highly offensive. Thus, A could recover damages for emotional distress and mental anguish.

A pushes B into C. Were any torts committed? By A? By B?

Yes, battery No, because B committed no tortious acts

A is in the business of selling cupcakes. Business has been slow, so A places a photo of Jennifer Aniston (without permission) on the new label of his cupcakes and changes the name to "Jennifer's Cupcakes." Were any torts committed?

Yes, because A is using Aniston's name and likeness to sponsor or endorse a product.

A is employed by ABC Company. Each morning, ABC Company publishes an in-house "Get Well Soon" list for all 20,000 of its employees. On the most recent list, ABC stated, "Let's all hope A gets well soon. A is a valuable member of our accounting department. Fortunately, hemorrhoid removal is not a serious surgery, so A should be back to work in a couple of days, although she may not be sitting for a while." Were any torts committed?

Yes, this is wide-spread publication of very private facts highly offensive to a reasonable person and is not a matter of public concern. Thus, A could recover damages for emotional distress and humiliation.

A swings a gun at B's head hoping to injure B. Before the gun makes contact with B's head, A loses his grip on the gun and it drops to the floor. Upon hitting the floor, the gun discharges, hitting the cable holding a chandelier to the ceiling. The chandelier falls, hitting B on the head. B sues A for battery. Is A the proximate cause of B's injury?

Yes. An actor who intends to cause harm is liable for such harm, even if it occurs in an unlikely fashion.

A grabs a book out of B's hand. Were any torts committed?

Yes. Battery—offensive contact with something connected to B's person

Leaving a restaurant, B takes A's coat, mistaking it for his own. B returns it six months later. Were any torts committed?

conversion

Daniel and a group of his friends are fanatical basketball fans who regularly meet at each other's homes to watch basketball games on television. Some of the group are fans of team A, and others are fans of team B. When the group has watched televised games between these two teams, fights sometimes have broken out among the group. Despite this fact, Daniel invited the group to his home to watch a championship game between teams A and B. During the game, Daniel's guests became rowdy and antagonistic. Fearing that they would begin to fight, and that a fight would damage his possessions, Daniel asked his guests to leave. They refused to go and soon began to fight. Daniel called the police, and Officer was sent to Daniel's home. Officer sustained a broken nose in his efforts to stop the fighting. Officer brought an action against Daniel alleging that Daniel was negligent in inviting the group to his house to watch this championship game. Daniel has moved to dismiss the complaint. The best argument in support of this motion would be that •A. a rescuer injured while attempting to avert a danger cannot recover damages from the endangered person. •B. a police officer is not entitled to a recovery based upon the negligent conduct that created the need for the officer's professional intervention. •C. as a matter of law, Daniel's conduct was not the proximate cause of Officer's injury. •D. Daniel did not owe Officer a duty to use reasonable care, because Officer was a mere licensee on Daniel's property.

•B. a police officer is not entitled to a recovery based upon the negligent conduct that created the need for the officer's professional intervention.