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Question 4 is based on the following fact situation.
Question 5 is based on the following fact situation.
Jimmy Olson owned and operated The Animal Planet, a
pet store selling a wide variety of pet
supplies and animals. One afternoon, Lois Lane and her
nine-year-old son, Kent, went to The Animal Planet to buy
some Science Diet dog food for their pet miniature
Dachshund. While they were shopping, Kent saw a beautiful white rat that was for sale. Kent, who desperately
wanted a pet rodent, asked his mother if they could buy it.
Reluctantly, Lois purchased the pet rat from Jimmy for
$10.95. Unknown to either Jimmy or Lois, the rat was
infected with toxoplasmosis, a disease that invades and
causes damage to the central nervous system in humans.
Darcy Darrow was a first-year law student at the Lake
Tahoe School of Law in Nevada. In preparing for her law
school examinations, Darcy invited a few classmates to
her apartment for a study group. Darcy, who had a fetish
for arachnids, kept a pet tarantula caged in her apartment.
When Darcy purchased the tarantula, she had the poisonous venom removed so that it would be harmless.
Although toxoplasmosis is rarely found in rodents,
a vaccine is available that effectively kills the
parasitic microorganisms that carry the disease. Jimmy
did not vaccinate his rats before offering them for sale.
After buying the rat, the Lanes took the rodent home and
kept it in a cage that was placed inside Kent’s bedroom.
After school, Kent would
frequently come home and play with the rat which he
affectionately named “Snowy”. A short time later, Kent
became violently ill and was diagnosed with toxoplasmosis. It was subsequently determined that Kent contracted the disease from the rat which was purchased at
The Animal Planet.
4.
If Lois, on behalf of her son, asserts a tort action
against The Animal Planet to recover damages
for Kent’s illness, she will most likely
(A)
(B)
(C)
(D)
recover, if the failure to vaccinate the rat
made it unreasonably dangerous
recover, because the rat was diseased at the
time of the sale
recover, because a rat is a wild animal
not recover, unless the store owner knew
that the rat was infected with toxoplasmosis at the time of the sale
During the study group session, Darcy brought out the
cage with the tarantula to show her friends. When she was
placing the cage down on the kitchen counter, Darcy carelessly left the cage door slightly open. Moments later the
tarantula crawled out of the cage and crept toward Mia
Mare, one of Darcy’s study group partners. Mia, who was
deathly afraid of spiders, saw the tarantula and tried to run
away. As she did so, Mia tripped over a chair and fell
down, fracturing her wrist.
5.
If Mia brings suit against Darcy to recover damages for her injury, judgment for whom?
(A)
(B)
(C)
(D)
Mia, because Darcy was negligent in leaving the cage door open.
Mia, because Darcy is strictly liable.
Darcy, because the spider did not directly
cause Mia’s injury.
Darcy, because a spider is not a wild animal.
Question 6 is based on the following fact situation.
Edison was an inventor who developed many interesting
creations. One of his most unique projects was an experimental methanol-powered automobile which took Edison
three years to build. Edison proudly showed the auto to
his friend, Foyt, who immediately fell in love with it. Foyt
offered to buy the car for $25,000. Although Edison initially built the car for his own use, he couldn’t resist
Foyt’s offer and sold him his invention.
Thereafter, Foyt was taking the car for a drive when the
brakes suddenly failed. Foyt, who was driving 70 mph in a
40 mph zone, couldn’t stop the car and it crashed into
another vehicle. Foyt was seriously injured in the accident.
6.
Assuming that the brakes were defective when
the car was sold, will Foyt succeed in a strict
products liability action against Edison?
(A)
(B)
(C)
(D)
TORTS
STRICT LIABILITY
VARIATIONS
Yes, if Edison was in the business of selling his inventions.
Yes, because the car was sold in a defective
condition.
No, because Foyt was operating the car at
an excessive rate of speed at the time of the
accident.
No, because Edison was an inventor who
built the car for his own use.
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Question 7 is based on the following fact situation.
Question 9 is based on the following fact situation.
Peters stole a diamond necklace that he gave his girlfriend, Lucinda, as a birthday present. At the time Peters
gave the necklace to Lucinda she did not know that it was
stolen. Three weeks later, while Peters and Lucinda were
passionately making love, she whispered in his ear, “Gee,
darling, I really love the diamond necklace you gave
me…it must have cost you a fortune.” Peters responded,
“Honey, the necklace didn’t cost me anything…I stole it.”
Startled by Peters’ confession, Lucinda broke down and
started crying. Moments later, however, after regaining
her composure, Lucinda decided to keep the necklace.
Lola Oslo was an executive vice-president in the investment banking department of the Doylestown National
Bank. One afternoon, Lola was having lunch with her
boss, Amy Alcott, at the Riverhorse Restaurant when Amy
excused herself to go to the bathroom. As Amy stood up
to leave the table, her wallet fell out of her pocketbook
onto the floor. Amy was unaware of what occurred and
proceeded to the restroom. Lola, however, saw the wallet
fall. Intending to steal it, Lola picked up the wallet and
placed it in her pocket. Before Amy returned to the table,
Lola had a change of heart and decided to give the wallet
back. Thereupon, Lola told Amy what had happened and
handed her the wallet when she returned from the
bathroom.
7.
Lucinda is guilty of
(A)
(B)
(C)
(D)
Receiving stolen property
Larceny
Larceny by trick
No crime
9.
Lola is guilty of which, if any, crime?
(A)
(B)
(C)
(D)
No crime
Larceny
Embezzlement
False pretenses
Question 8 is based on the following fact situation.
Olaf and Olga lived in Fresno after emigrating from the
nation of Uzbekistan. Olaf contracted with Olga to use
her stud to breed with his Borzoi Russian Wolfhound dog.
After the breeding, Olaf refused to pay Olga the stud fee
because he claimed that she falsely represented the quality
of her dog’s ancestry. Having not received her stud fee,
Olga went to Olaf ’s home and took one of the Borzoi
puppies from the litter.
8.
If Olga is charged with larceny, which of the following would provide her BEST defense?
(A)
(B)
(C)
(D)
Olaf and Olga recently emigrated from
Uzbekistan where self-help in collecting
debts is morally and legally acceptable.
Olga honestly believed it was lawful to
take the puppy in satisfaction of a disputed
stud fee.
Olga relied on incorrect legal advice from
an attorney who falsely advised her that the
theft of an animal did not constitute personal property.
Olga, relying on the advice of her attorney
which later was determined to be erroneous, believed that she was justified in
taking one of the puppies because she had
a lien on the puppy for non-payment under
the contract.
Olga knowingly lied to Olaf and falsely
represented the bloodlines and ancestry of
her Borzoi stud.
Question 10 is based on the following fact situation.
Emily and Emerson had been married for two years. Early
in the marriage Emily learned she was infertile and could
not have children. Desperately wanting to have children,
Emily asked her sister, Millie, if she would act as a surrogate mother. Millie, who was single, was very close to
Emily and agreed to do so.
Emily and Millie entered into the following arrangement.
Emily promised to pay Millie $7,000 to act as a surrogate
mother. The money was to be paid following the birth. In
return, Millie agreed to be implanted with Emily’s embryo
and carry the baby to term.
During the seventh month of the pregnancy, Millie
changed her mind and decided to keep the child herself.
Millie moved out of state and gave birth to the baby
which she refused to turn over to Emily.
10.
THEFT CRIME
VARIATIONS
Millie is guilty of
(A)
(B)
(C)
(D)
no crime
embezzlement
kidnapping
false pretenses
CRIMINAL LAW
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Question 11 is based on the following fact situation.
Question 12 is based on the following fact situation.
Swenson Swine was a flamboyant gigolo who preyed
upon wealthy women. One day Swenson had the good fortune of being introduced to Babs Button, an heiress to a
$900,000,000 family inheritance. Babs was enamored by
Swenson’s charm and accepted his dinner invitation at
L’Heritage, the city’s most expensive restaurant. Hoping to
impress Babs, Swenson went so far as to lease a Rolls
Royce Corniche for the evening. He picked Babs up in his
rented Rolls and drove to L’Heritage, where they had a
delightful dinner. After a dessert featuring cherries
jubilee, Swenson was handed the check which totaled
$749.87. Realizing he didn’t have enough money to pay
the bill, Swenson excused himself and went to the men’s
room. While he pondered his predicament, Swenson
decided to set fire to the wastepaper in a trash container.
He hoped that the fire would serve as a diversion so he
could run out of the restaurant without paying. He set fire
to the wastepaper and then went back to his table. As he
anxiously waited, Wolfgang Puck, the maitre d’, grabbed
Swenson and told him that he had seen what occurred in
the bathroom. Wolfgang, who had been seated in a bathroom stall, saw Swenson set fire through a crack in the
door. Wolfgang extinguished the fire which had charred a
portion of the ceiling. He then detained Swenson until the
police arrived. This jurisdiction defines arson as the malicious burning of any structure.
Swenson Swine was a flamboyant gigolo who preyed
upon wealthy women. One day Swenson had the good fortune of being introduced to Babs Button, an heiress to a
$900,000,000 family inheritance. Babs was enamored by
Swenson’s charm and accepted his dinner invitation at
L’Heritage, the city’s most expensive restaurant. Hoping to
impress Babs, Swenson went so far as to lease a Rolls
Royce Corniche for the evening. He picked Babs up in his
rented Rolls and drove to L’Heritage, where they had a
delightful dinner. After a dessert featuring cherries
jubilee, Swenson was handed the check which totaled
$749.87. Realizing he didn’t have enough money to pay
the bill, Swenson excused himself and went to the men’s
room. While he pondered his predicament, Swenson
decided to set fire to the wastepaper in a trash container.
He hoped that the fire would serve as a diversion so he
could run out of the restaurant without paying. He set fire
to the wastepaper and then went back to his table. As he
anxiously waited, Wolfgang Puck, the maitre d’, grabbed
Swenson and told him that he had seen what occurred in
the bathroom. Wolfgang, who had been seated in a bathroom stall, saw Swenson set fire through a crack in the
door. Wolfgang extinguished the fire which had charred a
portion of the ceiling. He then detained Swenson until the
police arrived. This jurisdiction defines arson as the malicious burning of any structure.
11.
12.
If charged with arson, Swenson should be found
(A)
(B)
(C)
(D)
guilty, if the jury determines that he was
reckless as to the restaurant being damaged
by fire
guilty, because he set the fire for the purpose of committing an unlawful act, i.e.,
larceny by trick for non-payment of the
dinner
not guilty of arson or attempted arson,
unless the jury finds that he intended to
burn the restaurant
not guilty of arson but guilty of attempted
arson
Question 13 is based on the following fact situation.
Speedster was driving his car recklessly at a high rate of
speed through a residential neighborhood. He was traveling at a speed of over 100 miles per hour when he noticed
a scantily clad female jogger. Taking his eyes off the road,
Speedster failed to see Lisa, six years of age, crossing at
the intersection. She was struck by the vehicle and hurled
50 feet in the air. As a result of the collision, Lisa suffered
severe internal injuries and fractured both legs and arms.
She was hospitalized for 11 months and became permanently crippled.
If charged with attempted arson, Swenson should
be found
(A)
(B)
(C)
(D)
13.
guilty, if the jury determines that he was
reckless as to the restaurant being damaged
by fire
guilty, because he set the fire for the purpose of committing an unlawful act, i.e.,
larceny by trick for non-payment of the
dinner
not guilty, unless the jury finds that he
intended to burn the restaurant
not guilty if the fire had not charred the
ceiling
If Speedster is charged with attempted murder,
he should be found
(A)
(B)
(C)
(D)
CRIMINAL LAW
ATTEMPT VARIATIONS
guilty, because a person is presumed to
intend the natural and probable consequences of his or her acts
guilty, because criminal liability is predicated upon defendant’s willful and wanton
disregard for the safety of others
not guilty, because defendant did not intend
to kill Lisa
not guilty, if defendant offered to pay
Lisa’s medical expenses
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15.
Questions 14-16 are based on the following fact
situation.
In the city of Southfield, Morris Avenue is a four-lane
highway that runs north to south. In the center of
Southfield’s business district, Morris Avenue intersects
with King’s Highway, a one-way street
for westbound traffic. Morris Avenue and Kings Highway
intersect at right angles with the
intersection controlled by a traffic signal.
One afternoon Dawn Doucette, a motorist, was
driving her car along Morris Avenue when she struck
Pasqual Pignatano, a bicyclist, who entered the
intersection from Kings Highway. Pignatano was seriously
injured in the accident and sued Doucette to recover damages for personal injuries. There were no witnesses to the
accident. Doucette claims that the traffic light was green
at the time she entered the intersection. Pignatano now
has amnesia and cannot remember how the accident
occurred.
14.
At trial, Pignatano’s attorney calls Toby Templer
to testify. Templer proposes to testify that she
was in the emergency room at the hospital when
Pignatano was brought in following the accident.
Templer
further testifies that while Pignatano was being
treated for his injuries, the nurse asked him,
“How did you get hurt?” Pignatano replied, “The
car ran the red light and struck me as I was riding my bike.” Upon objection, this evidence is
(A)
(B)
(C)
(D)
Assume for the purposes of this question only
that Doucette is called to testify. Doucette proposes to testify that the day after the accident she
met with Officer Oquendo, the police officer
investigating the accident, and told him that she
(Doucette)
drove through a green light and Pignatano went
through a red light at the time of the accident.
Upon objection by Pignatano’s attorney,
Doucette’s proposed testimony is
(A)
(B)
(C)
(D)
16.
admissible, as a statement made for purposes of medical treatment and diagnosis
admissible, as a present sense impression
inadmissible, because Templer was
eavesdropping on a confidential
communication between Pignatano and a
hospital representative
inadmissible, because it is hearsay not
within any recognized exception
Assume for the purposes of this question only
that Pignatano calls Hondo Hypnos, a renowned
hypnotist, to testify. Hondo proposes to testify
that after he placed Pignatano under a hypnotic
spell, Pignatano gave a detailed account of the
accident and told Hypnos that Doucette ran a red
light
and that Doucette concedes that her license plate
number is GIJO-714. Hypnos’ proposed testimony will most likely be held to be
(A)
(B)
(C)
(D)
HEARSAY
VARIATIONS
admissible, because it is the statement of
the witness herself, who is subject to crossexamination
admissible, as a statement based on firsthand knowledge
inadmissible, because Pignatano’s amnesia
prevents him from contradicting Doucette
inadmissible, because it is hearsay not
within any recognized exception
admissible, because the license plate
identification substantiates that the other
information is accurate and trustworthy
admissible, as a statement of past recollection refreshed
inadmissible, because it is hearsay not
within any recognized exception
inadmissible, because statements procured
through hypnosis cannot be authenticated
as truthful
EVIDENCE
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Question 17 is based on the following fact situation.
Question 18 is based on the following fact situation.
Carson is the owner of a parcel of land known as Tall
Acres which is situated upon the top of Candy Rock
Mountain. Located below Tall Acres is Grasslands a forty
acre hillside estate which is owned by DuVall. Crystal
Stream is a non-navigable watercourse that originates at
the top of Candy Rock Mountain and runs all the way
down into the San Vicente Valley. Both Tall Acres and
Grasslands are within the watershed of Crystal Stream.
Carson is the owner of a parcel of land known as Tall
Acres which is situated upon the top of Candy Rock
Mountain. Located below Tall Acres is Grasslands a forty
acre hillside estate which is owned by DuVall. Crystal
Stream is a non-navigable watercourse that originates at
the top of Candy Rock Mountain and runs all the way
down into the San Vicente Valley. Both Tall Acres and
Grasslands are within the watershed of Crystal Stream.
When DuVall purchased Grasslands in 1990, he started
taking water from Crystal Stream and used it to irrigate
the southern half of his property which he has used as a
farm. Prior to 1990, the southern half of Grasslands had
been cleared and placed in cultivation, while the northern
half remained wooded and unused except for an occasional hike or gathering of timber for use as domestic
fuel. DuVall continued this established pattern of use.
Now (January 2002), he is still taking water from Crystal
Stream and using it to irrigate the southern half of
Grasslands.
When DuVall purchased Grasslands in 1990, he started
taking water from Crystal Stream and used it to irrigate
the southern half of his property which he has used as a
farm. Prior to 1990, the southern half of Grasslands had
been cleared and placed in cultivation, while the northern
half remained wooded and unused except for an occasional hike or gathering of timber for use as domestic
fuel. DuVall continued this established pattern of use.
Now (January 2002), he is still taking water from Crystal
Stream and using it to irrigate the southern half of
Grasslands.
In 2000, Carson built a home on Tall Acres and started
taking water from Crystal Stream for domestic purposes.
During that year there was heavy rainfall, and this caused
Crystal Stream to run down the mountain at a high water
level. The next year, however, there was a drought. As a
result, Crystal Stream flowed at a very low level.
Consequently, there was only enough water to irrigate
DuVall’s farmland or, in the alternative, to supply all of
Carson’s domestic water needs and one-quarter of
Duvall’s irrigation requirements. Candy Rock Mountain is
located in a jurisdiction where the period of prescription
is fifteen years.
In 2000, Carson built a home on Tall Acres and started
taking water from Crystal Stream for domestic purposes.
During that year there was heavy rainfall, and this caused
Crystal Stream to run down the mountain at a high water
level. The next year, however, there was a drought. As a
result, Crystal Stream flowed at a very low level.
Consequently, there was only enough water to irrigate
DuVall’s farmland or, in the alternative, to supply all of
Carson’s domestic water needs and one-quarter of
Duvall’s irrigation requirements. Candy Rock Mountain is
located in a jurisdiction where the period of prescription
is fifteen years.
17.
18.
Inasmuch as Crystal Stream is still flowing at a
very low level and Carson is continuing to take
water for his personal needs, there is insufficient
water to irrigate Grasslands. As a consequence,
DuVall brings an appropriate action to declare
that his water rights to the stream are superior to
those of Carson. In addition, DuVall moves to
have the full flow of Crystal Stream passed to
him, notwithstanding the effect it might have on
Carson. If this state follows the common law of
riparian rights but does not follow the doctrine of
prior appropriation, judgment for whom?
(A)
(B)
(C)
(D)
Carson, because as an upstream landowner,
he would have superior rights to the water
than a downstream owner.
Carson, because domestic use is superior to
and is protected against agriculture use.
DuVall, because he had obtained an easement by prescription to remove as much
water as he may need.
DuVall, because he has put the water to a
beneficial use prior to Carson’s use and has
continuously used the water.
PROPERTY
WATER RIGHTS
VARIATIONS
Inasmuch as Crystal Stream is still flowing at a
very low level and Carson is continuing to take
water for his personal needs, there is insufficient
water to irrigate Grasslands. As a consequence,
DuVall brings an appropriate action to declare
that his water rights to the stream are superior to
those of Carson. In addition, DuVall moves to
have the full flow of Crystal Stream passed to
him, notwithstanding the effect it might have on
Carson. If this state follows the doctrine of prior
appropriation, judgment for whom?
(A)
(B)
(C)
(D)
Carson, because as an upstream landowner,
he would have superior rights to the water
than a downstream owner.
Carson, because domestic use is superior to
and is protected against an agriculture use.
DuVall, because he has obtained an easement by prescription to remove as much
water as he may need.
DuVall, because he has put the water to a
beneficial use prior to Carson’s use and has
continuously used the water.
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Question 19 is based on the following fact situation.
Question 20 is based on the following fact situation.
Yocum was the record title owner of a three-acre tract of
land located in Portofino. In order to finance the purchase
of the property in 1998, Yocum borrowed $100,000 from
Home Savings Bank which secured the loan with a mortgage that amortized principal and interest payments over a
15-year period. Home Savings promptly recorded the
mortgage. This jurisdiction has the following recording
statute in effect:
On March 1, 1998, Marcus purchased a large tract of
riverfront property (hereafter referred to as Riverfront) in
downtown Cincinnati for $750,000. According to the
terms of the real estate sales agreement, Marcus was
required to make a 20% down payment of $150,000. To
finance the balance of the purchase price, Marcus borrowed $500,000 from Center City Bank with the loan
being secured by a first mortgage in Riverfront. In addition, Marcus’ father-in-law, Singer, loaned him $100,000
which was secured by a second mortgage on Riverfront.
Both mortgages were properly executed and duly
recorded.
“Any unrecorded conveyance or mortgage is invalid
as against a subsequent bona fide purchaser for
value without notice who records first.”
In 1999 Yocum subdivided the property into three one
acre lots and sold lot 1 to Arcaro for $75,000. The following year Yocum sold lot 2 to Blake for $60,000. Yocum
continued to reside on lot 3. When Yocum sold lots 1 and
2 to Arcaro and Blake, the deeds did not make any reference to the original mortgage between Yocum and Home
Savings Bank.
In 2002 Yocum was laid off from his job and went into
default on his mortgage payments. Home Savings is now
about to institute foreclosure proceedings.
19.
Which of the following most accurately states the
rights and obligations of the parties?
(A)
(B)
(C)
(D)
Home Savings can only foreclose on lot 3
since ownership to that parcel is retained
by Yocum, the original mortgagor.
Home Savings has the option of foreclosing on either parcel 1, parcel 2 or parcel 3
since the mortgage covered the entire three
acre tract.
Home Savings must first foreclose on lot 3
and if the proceeds are insufficient then the
mortgagee may foreclose against lots 1 and
2 in the inverse order of their alienation.
Home Savings can foreclose on lot 3 but
not foreclose on lots 1 and 2 unless Arcaro
and Blake “assumed the mortgage” when
they purchased their land from Yocum.
When Marcus purchased the property, he planned to commercially develop Riverfront with upscale shops and
restaurants. By January, 2001, however, his grandiose
plans had gone bust and the so-called Riverfront project
turned into a financial disaster. Marcus defaulted on both
mortgages by failing to make the required monthly payments. Center City Bank elected to accelerate and brought
an action to foreclose, joining Marcus as defendant, but,
because of the negligence of the bank’s attorney, failed to
join Singer. Thereupon, the court entered a foreclosure
judgment, ordering the sale of Riverfront for satisfaction
of the bank’s claim against Marcus. At the foreclosure
sale, Center City Bank purchased Riverfront for $427,000
which was the amount unpaid on the first mortgage.
Thereinafter, Singer learned about the foreclosure and the
bank’s purchase of Riverfront. He now seeks legal advice
from Covington, his attorney, as to what recourse he has
against Center City Bank in order to protect his interest in
Riverfront. Note: there is no applicable statute significantly altering the common-law right to redemption.
20.
MORTGAGE
VARIATIONS
Attorney Covington should advise Singer that he
can protect his interest
(A)
(B)
(C)
(D)
only by an action to redeem
only by an action to foreclose
either by an action to redeem or by an
action to foreclose
neither by an action to redeem nor by an
action to foreclose
PROPERTY
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Questions 21-22 are based on the following fact
situation.
22.
Polly Parton was a sixth grade teacher at Mule Skinner
Elementary School. In her class was an eleven-year-old
child named Waylon Waggoner. One day Waylon came
home from school with red lipstick stains on his underwear. When Waylon’s mother inquired about the lipstick
stains, Waylon said that Polly had fondled and kissed his
private parts.
Thereupon, Mrs. Waggoner contacted the police who subsequently conducted an investigation and arrested Polly
charging her with two felony counts of child molestation.
In accord with state law, a preliminary hearing was scheduled. After Waylon was subpoenaed to testify at the preliminary hearing, the prosecution filed a motion to
exclude Polly from the courtroom during Waylon’s
appearance. The motion with supporting affidavits from a
child psychologist claimed that having Waylon and Polly
in the same room would cause irreparable emotional and
psychological harm to the alleged victim.
21.
Assume for the purposes of this question only at
trial the prosecution filed a similar motion
requesting exclusion of the defendant from the
courtroom when Waylon testified. The judge
granted the motion but ordered the defendant to
be present in an adjoining room where she could
view Waylon’s testimony by closed-circuit television. Waylon testified for the prosecution and
was then cross-examined by Polly’s attorney.
After the defendant was found guilty, her attorney filed an appeal seeking to have her conviction overturned. The appellate court will likely
(A)
(B)
(C)
(D)
The trial court judge should
(A)
(B)
(C)
(D)
deny the motion, because a pretrial proceeding is an early stage of trial and a
defendant has a constitutional right of confrontation at “every stage of the trial”
deny the motion, because defendant’s
exclusion from the courtroom would have
prejudicial impact on receiving effective
assistance of counsel
grant the motion, because Polly’s attorney
still has an opportunity to cross-examine
the witness despite defendant’s absence
from the courtroom
grant the motion, because cross-examination at a preliminary hearing is not
required by the Confrontation Clause of the
6th Amendment
Question 23 is based on the following fact situation.
23.
Under which of the following situations would
imposition of the death penalty most likely be
justified in light of constitutional considerations?
(A)
(B)
(C)
(D)
TORTS
reverse the conviction, because defendant’s
right to confront witnesses was violated
reverse the conviction, because there was a
violation of defendant’s right to a fair trial
sustain the conviction, because defendant’s
temporary absence at trial constituted
harmless error
sustain the conviction, because Polly’s right
of confrontation was not violated since her
attorney had the opportunity to crossexamine Waylon
CRIMINAL PROCEDURE
VARIATIONS
Defendant, a convict in prison, stabbed a
prison guard to death and by statute is
mandated to receive the death penalty.
Defendant kidnapped and sexually
assaulted a 12-year old girl, who his
friends then gang raped for a week before
Defendant was arrested.
Defendant heinously raped his victim and
then savagely beat her with a baseball
bat, causing her to suffer permanent brain
damage.
Defendant shot and killed a police officer
during an attempted bank robbery.
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Question 24 is based on the following fact situation.
Uncle was very fond of Niece, who was an aspiring
actress.
On Monday, Uncle met Niece who proceeded to tell him
that she wanted to enroll in an acting class but needed
$10,000 as the entrance fee.
On Tuesday, Uncle telephoned Lender and said, “If you
loan $10,000 to my Niece, I will pay you if she doesn’t.”
On Thursday, Lender mailed Uncle a letter accepting his
offer.
On Friday, Uncle died before receiving Lender’s letter.
On Monday, Lender loaned the $10,000 to Niece.
24.
If Niece refuses to pay Lender and Lender sues
Uncle’s estate for the $10,000, is Uncle’s estate
liable?
(A)
(B)
(C)
(D)
Yes, because Lender accepted the offer by
loaning the money to Niece.
Yes, because Lender loaned the money to
Niece and notified Uncle of the acceptance
before he died.
No, because Uncle’s promise was oral and
thus unenforceable under the statute of
frauds.
No, because upon Uncle’s death, Niece is
primarily liable for the loan.
Question 25 is based on the following fact situation.
Hans Barfman was mugged outside Wrigley Field by a
gang of thugs after leaving a Cubs game. Barfman, who
was injured in the mugging, was taken to Northwestern
Hospital where he was treated by Dr. Spack. The next day,
Benjamin Barfman, Hans’ father, telephoned Dr. Spack
and said, “Thank you for treating my son. I shall pay you
$3,500 for the services you rendered yesterday and an
additional $7,000 if you continue to treat him.” Dr. Spack
responded affirmatively and thereafter continued to treat
Hans. Subsequently, Hans died. Benjamin has refused to
make any payment to Dr. Spack.
25.
If Dr. Spack sues Benjamin for breach of contract, he should
(A)
(B)
(C)
(D)
STATUTE OF FRAUDS
SURETYSHIP VARIATIONS
recover nothing, because Benjamin’s
promise was not bargained-for
recover nothing, because Benjamin’s
promise to act as surety was not in writing
$7,000, for the future treatment which the
doctor rendered to Hans
$10,500, because the past treatment was
connected to the future treatment that was
provided
TORTS
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Explanatory Answers
1.
(D)
Most general bar review outlines only review trespass in terms of intentional entries.
The Bar Examiners are “keenly” aware of this omission and thus frequently hone in on trespass. According to Restatement of Torts 2d, Section 166, a person is not liable for trespass
for an “accidental” entry that is unintentional and non-negligent. Here, for example, the
facts state that Fenwick hit a golf ball down the middle of the fairway. The ball struck a tree
limb and then ricocheted onto Virginia’s property. Since this is an “accidental” entry, choice
(D) is correct. The Pavlov dog response is choice (B) because the general outlines advise students that intent to trespass is not required, it is only the intent to do the act that is necessary.
MBE Exam Tip: This definition applies to intentional entries that involve mistake (meaning
that it is simply the intent to enter that is required). This particular question, however, does not
deal with an intentional entry, but an “accidental” entry that was unintentional.
2.
(C)
One is subject to liability for trespass, irrespective of whether he causes harm to any
legally protected interest of the other, if he intentionally enters the land in possession of the
other. Based upon the given facts, Vic did not intentionally drive his vehicle onto Edna’s property. Rather he lost control of his vehicle while trying to negotiate a sharp curve in the highway. In this regard, Vic may be liable for trespass because he was operating his car in a
reckless manner. However, where a person enters the land of another through negligence, recklessness or as a result of an abnormally dangerous activity, in order to be liable for trespass
he must cause damage to the land. Therefore, choice (C) is a better answer than (A) because
even though Vic was reckless, he will not be liable unless he damaged Edna’s property. Note
that choice (B) is not correct because Vic’s entry was not intentional.
Multistate Nuance Chart:
TORTS
TRESPASS
Intentional Entries
1. One is subject to liability, regardless of whether he
thereby causes harm to the land, if he intentionally enters
the land in the possession of another.
Negligent or Reckless Entries
1. One who negligently or recklessly enters the land of
another is subject to liability if, but only if, he causes
harm to the land or to a thing on the land.
2. A trespass covers intrusions upon, beneath and above the
surface of the earth.
3. Mistake is no defense. It is the intent to enter, not the
intent to trespass, that determines liability
3.
(D)
Trespass to land is heavily tested on every bar exam. Trespass questions usually
involve either an intentional entry or a negligent or reckless entry. If the defendant intentionally enters onto the property of another, he or she is liable for trespass regardless of whether
there is any damage to the land. On the other hand, in negligent (or reckless) trespass situations, there must be damage to the land in order to be held liable. In this problem Margo sued
Scottie for trespass. The unanswered question is whether this is an intentional or negligent
trespass action. As a general rule on the MBE, you should assume the action is for intentional
trespass unless the facts indicate otherwise. Thus, choice (D) is the best answer. Note that
Statement I is wrong because mistake is no defense for intentional trespass. Statements II and
III are not applicable because they address defenses to negligent entries. Therefore, choice (D)
is correct.
EXPLANATORY ANSWERS
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4.
(B)
Here’s a truly “classic” Multistate question dealing with products liability. Many students will be misled into choosing choice (C) by thinking that a rat is a wild animal. Although
a rat may be viewed as a wild animal, it is important to recognize that Jimmy’s injury did not
result from the rodent’s dangerous propensities. In other words, the rat did not bite or scratch
Jimmy. Conversely, we have a situation where a pet store owner sells a defective product
(namely, a diseased animal) which injures the consumer. The same products liability issue was
tested on the February, 2006 exam and may be repeated again!
5.
(B)
This same issue dealing with wild animals was tested on the July, 2005 MBE exam.
Whenever confronted with a Torts question involving animals, it is necessary to first determine
whether the animal is domesticated or wild. A possessor of a wild animal is subject to strict
liability for the harm that results even though the possessor has exercised the utmost care to
confine the animal. According to the Second Restatement of Torts, Section 506, the word
“animal” is used in a broad sense to include “not only animals but also birds, fish, reptiles and
insects.” Therefore, choice (D) is incorrect. With respect to choice (C), it is not necessary that
the injury directly result from the animal’s dangerous propensities. Liability also extends to
situations where the plaintiff becomes frightened and injures herself in an effort to escape.
6.
(A)
In order to be held strictly liable for the sale of defective products, the seller must be
engaged in the business of selling products for use or consumption. It therefore applies to
any manufacturer, distributor, or retailer of such a product. This rule, however, does not apply
to an occasional seller of a product. In this regard, if Edison was in the business of selling his
inventions, then he would be held strictly liable. On the other hand, he would not be held liable
if on only one occasion he sold an invention to a buyer or dealer.
7.
(D)
The crime of larceny requires the trespassory taking and carrying away of the personal
property of another with the intent to permanently deprive the owner. The mental state of
intent to steal must concur in time with the act of taking and carrying away. In this question,
Peters, not Lucinda, performed the act of stealing the diamond necklace. Lucinda decided to
keep it three weeks later. Therefore, she cannot be guilty of common law larceny. At most,
Lucinda is an accessory after the fact.
8.
(C)
This Criminal Law question involves a difficult interplay between mistake or ignorance of the law and incorrect legal advice as defenses for the commission of larceny. Choice
(A) is incorrect because Olga’s ignorance of the law in the United States will not provide a
valid defense. Even though self-help may be the applicable law in her foreign country, it is not
a recognizable defense to common law larceny. Choice (B) is wrong because incorrect legal
advice generally will not provide a valid defense for the commission of a crime. Choice (C) is
the best answer despite the fact that it is “cloaked” with the erroneous advice of counsel language. Ignorance or mistake of law may provide a valid defense where it negates the mental
state required for the commission of a crime. For example, LaFave states that “the crime of
larceny is not committed if the defendant, because of a mistaken understanding of the law
of property, believed that the property taken belonged to him.” Criminal Law, pg. 413. In
choice (C), Olga mistakenly believed that the puppy was her property because there was an
enforceable lien. Thus, she lacked the intent to steal which, in turn, would provide a valid
defense for larceny. On the contrary, LaFave admonishes that larceny is committed “if the
defendant believed it was lawful to take certain kinds of property belonging to others
because of the custom in one’s community”. Consequently, in choice (A) the defendant still
had the required mental state (to steal) although she was unaware that such conduct was proscribed by the criminal law. To be sure, this question typifies the fineline hornbook distinctions
commonly tested on the MBE.
EXPLANATORY ANSWERS
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9.
(B)
Commission of the crime of larceny requires a taking (caption) and carrying away
(asportation) of another’s property. A taking occurs when the offender secures dominion over
the property, while a carrying away requires some slight movement away of the property. Once
Lola picked up the wallet (with the intent to steal) and placed it in her pocket (sufficient
asportation), she committed the crime of larceny despite the fact that she later returned the
property. It should be noted that even though Lola later had a “change of heart” and returned
the wallet to Amy, that would not constitute a valid defense. According to LaFave, one who
takes another’s property intending to deprive the owner permanently is nevertheless guilty of
larceny, though he later decides to return it and does so. Criminal Law, p. 639.
10.
(A)
Always remember the best way to answer Multistate questions is by process of elimination, especially when the correct “pick” isn’t obvious (which is usually the case). Choice (B) is
wrong because embezzlement covers the misappropriation of either personal or real property.
Embezzlement is broader than larceny which at common law was limited to the theft of personal
property. Nonetheless, Millie is not guilty of embezzlement because we are dealing with a child,
not personal or real property. Likewise, choice (D) is incorrect because the original English false
pretenses statute covered only “money, goods, wares or merchandise,” and thus was limited to
tangible personal property and money. By the same token, Millie is not guilty of kidnapping
which is the forcible abduction of a person. Since we are not dealing with abduction by force,
choice (C) is incorrect. Therefore, by process of elimination (A) is the best choice.
11.
(A)
At common law, arson was defined as the malicious burning of the dwelling of another.
The mens rea denoted by the term “malicious” includes both intentional conduct and reckless
conduct. Choice (A) is correct. If the jury determines that Swenson was reckless in his act of damaging the restaurant, such conduct will be sufficient for the crime of arson inasmuch as a piece of
the ceiling was charred. The requisite degree of “burning” for arson is charring, i.e., more than
blackening by smoke. Choice (C) is incorrect because reckless burning without additional intent
is sufficient for arson. Choice (D) is incorrect because any attempted arson would have merged
into the completed crime of arson.
12.
(C)
The “key” to this question is recognizing that Swenson is charged with attempted arson.
In order to be guilty of the inchoate crime of attempt, two requirements are necessary: (1) the
defendant must have the specific intent to commit the target offense and (2) the defendant must
perform an act that constitutes a “substantial step” in the commission or attempted commission
of the crime. Since Swenson is charged with attempted arson, he will be found not guilty unless
he intended to burn the restaurant.
13.
(C)
Students should be aware that Speedster is charged with attempted murder. LaFave and
Scott in their Handbook on Criminal Law point out that the crime of attempt consists of: (1) an
intent to do an act or to bring about certain consequences which would in law amount to a crime;
and (2) an act in furtherance of that intent which, as it is most commonly put, goes beyond mere
preparation. As such, attempt is a specific intent crime. Since the defendant in this example did
not have the (specific) intent to kill Lisa, he would be found not guilty of the inchoate crime of
attempted murder.
Multistate Variation:
Assume the Examiners change the facts in two subtle ways. First, Lisa is killed and Speedster is
charged with murder rather than attempted murder. Under these circumstances, he could be found
guilty of “depraved heart” murder because he was driving his auto at 100 miles per hour in a residential area. Clearly, this would constitute extremely negligent conduct which creates not only an
unjustifiable but also a very high degree of risk of death.
EXPLANATORY ANSWERS
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Multistate Nuance Chart:
INCHOATE CRIMES
SOLICITATION
CONSPIRACY
ATTEMPT
1. defendant entices, advises, encourages, orders or requests
another to commit a crime;
1. consists of (a) an agreement
between two or more persons to
commit a crime and (b) an intent
to achieve the criminal objective;
1. consists of (a) an intent to commit
a crime and (b) an act in furtherance or a “substantial step”
toward the commission of the
offense;
2. the crime solicited need not be
committed;
3. the crime requires no agreement or
action by the person solicited;
4. defenses: at common law no
defenses were recognized; under
Model Penal Code, however,
renunciation is an affirmative
defense;
5. merges with the target felony.
2. the agreement is the “essence” or
“gist” of the crime;
3. unlike attempt, the crime does not
require a “substantial step” in the
commission of the crime;
4. solicitation merges into conspiracy;
5. if the conspiracy is successful, a
conspirator may be subject to conviction for both the conspiracy and
the completed crime;
6. defenses: at common law
withdrawal was not a valid
defense; under the Model Penal
Code, however, withdrawal is recognized as an affirmative defense if
the defendant “thwarted the success of the conspiracy.”
2. the act in furtherance of the crime
must go beyond mere preparation;
3. “specific-intent” crime, i.e., the
defendant must have the specific
intent to commit the designated
crime;
4. defenses: at common law legal
impossibility but not factual impossibility was a defense to a charge of
attempt; under the modern view,
however, impossibility is no
defense when the defendant’s
actual intent (not limited by the
true facts unknown to him) was to
do an act proscribed by law.
14.
(D)
Hearsay is defined under F.R.E. 801(c) as a “statement, other than one made by the
declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Templer’s testimony as to declarant Pignatano’s out-of-court reply to the nurse’s
question is hearsay since it is being offered for its truth, namely to prove that defendant Doucette’s
car ran a red light. By process of elimination, choice (D) is correct. Pignatano’s reply is inadmissible as hearsay, since no exceptions apply. First of all, choice (A) is incorrect because under
F.R.E. 803(4) a statement made for purposes of medical diagnosis or treatment must describe
“medical history, or past or present symptoms, pain, or sensations, or the inception or general
character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or
treatment.” However, statements pointing to persons responsible for the conditions are considered
irrelevant to medical diagnosis or treatment and do not fall within the exception. Federal Rules
of Evidence Manual p. 830. Pignatano’s statement implicated Doucette and will therefore be
inadmissible as a statement relating to the cause of the accident. Choice (B) is incorrect because
under F.R.E. 803(1), a present sense impression must describe or explain an event or condition
while the declarant was perceiving the event or condition or immediately thereafter. Here
Pignatano’s statement was made in the emergency room following the accident. Choice (C) is
incorrect because the presence of a non-essential third-person such as Templer would destroy
whatever confidentiality existed between Pignatano and the nurse.
15.
(D)
In this case Doucette is the out-of-court declarant proposing to testify as to the truth of
the matter asserted that she (Doucette) drove through a green light. As in the previous example,
the statement itself is hearsay and will be inadmissible since no exceptions apply. Choice (D) is
therefore correct. Choice (A) is incorrect because Doucette is proposing to testify in-court as to
what she said at another prior time out-of-court. Doucette’s prior statement is therefore hearsay,
despite the fact that she is both the witness as well as the out-of-court declarant. By the same reasoning, choice (B) is incorrect because Doucette is not testifying as to firsthand knowledge but
rather as to an out-of-court statement. Note that Doucette’s testimony is not a prior consistent
statement because Pignatano’s proposed reply in the previous question will not be admissible
EXPLANATORY ANSWERS
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since it is hearsay. Choice (C) is incorrect because amnesia does not per se render Pignatano
incompetent under the federal rules. Furthermore, had Pignatano’s testimony been admissible,
Doucette could have contradicted such testimony. Finally, learn to keep the parties straight no
matter how much the Examiners try to trick you—note that it is Doucette attempting to contradict
Pignatano, not vice versa as answer choice (C) suggests.
16.
(C)
Once again, Hypnos’ testimony as to what Pignatano told him while under the hypnotic
spell is an out-of-court assertion being offered for its truth. The statement will be inadmissible as
hearsay, since no exceptions apply.
MBE Exam Tip: Many students will out-psych themselves and not choose (C) because three consecutive answers are inadmissible hearsay. On the MBE it is important to disregard the sequence
of previous answer choices. You may have four (A) answer choices in a row or four (B) answer
choices in a row as correct. Moreover, there may be two larceny answers in a row or three consecutive hearsay answers as correct. The “key” is don’t out-psych yourself by answering questions
based upon previous answer choices!
17.
(B)
Under the doctrine of riparian rights there are two theories, the “natural flow” theory
and the “reasonable use” theory. The former stresses the right of each owner to have the natural
state of the stream or lake undiminished in both quality and quantity. The latter stresses maximum
use by each owner provided it does not interfere with like use by other owners. Also, under the
riparian doctrine, use of water for natural purposes—domestic use, watering of stock—is superior
to use of water for artificial purposes—irrigation, mining, industry. Smith and Boyer, Survey of
the Law of Property, pp. 186-189. Therefore, based on these rules, Carson will prevail over
DuVall in accordance with answer choice (B). Choice (A) is incorrect because the theory of riparian rights allows a lower riparian (DuVall) to sue an upper riparian (Carson) where the latter’s use
materially affects the quantity or quality of water—the natural flow—or unreasonably causes
damages—reasonable use. Choice (C) is incorrect because DuVall’s use was only “adverse” since
1990, not for the statutory 15 years. Choice (D) is incorrect since it states the rule under the prior
appropriation theory.
18.
(D)
According to the prior appropriation doctrine, “first in time is first in right.” In contradiction, under the riparian rights doctrine the use of water for natural purposes is paramount and takes
precedence over use of water for artificial purposes.
19.
(C)
The “inverse order of alienation” rule applies when a mortgaged tract of land is “sold
off” or conveyed in parcels and the various grantees pay full value to the mortgagor without getting a release from the mortgagee. Upon default, if the mortgagee forecloses, the “inverse order”
rule will require the mortgagee to proceed first against the lands still owned by the mortgagor, and
then proceed against the other parcels in the inverse order in which they were sold until the mortgage is fully satisfied. The rationale is that the buyer of the first parcel sold acquired the most
equity, and likewise down the line until the land still held by the mortgagor has the least. Note that
as between the mortgagor and the grantees, the mortgagor should pay the debt, and his land should
be sold first for that purpose. Law of Property, Boyer, p. 512. If the mortgagee, Home Savings,
forecloses, it must proceed first against Lot 3, the land still owned by Yocum, the mortgagor. If
the proceeds are insufficient to discharge the mortgage debt, then the mortgagee may foreclose
against Lots 1 and 2 in the “inverse order of their alienation” (i.e., Lot 2 first, then Lot 1) until the
mortgage is satisfied. Choice (C) states the correct rule of law.
20.
(C)
Once again, on the July, 2005 MBE mortgages was a highly tested area. There were
approximately seven questions dealing with mortgages. With respect to the foreclosure issue,
Smith and Burby state that “junior encumbrancers must be made parties to a foreclosure action in
order to have their claims eliminated.” Law of Property, pg. 346. Therefore, despite the fact that
Center City Bank obtained a foreclosure decree, Singer’s rights as a junior encumbrancer would
EXPLANATORY ANSWERS
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not be compromised because he was not made a party to the action. Note that the facts clearly state
that the bank “failed to join Singer” in its foreclosure action. Secondly, the bank’s foreclosure
would not bar Singer’s equity of redemption. In an overwhelming majority of states (those following “lien theory”) a foreclosure does not extinguish a mortgagor’s redemption right. Therefore,
choice (C) most correctly states Singer’s available remedies. Note that a minority of states (“title
theory” states) follow strict foreclosure rules whereby a foreclosure action literally forecloses or
bars the equity of redemption.
21.
(D)
All jurisdictions grant the defense a right to cross-examine those witnesses presented by
the prosecution at the preliminary hearing. The right is based on local law (usually by statute or
court rule). However, the Supreme Court has long held that cross-examination at a preliminary
hearing is not required by the confrontation clause of the Sixth Amendment. LaFave, Criminal
Procedure, pg. 677. It is important to note that the purpose of a pretrial hearing is to determine
probable cause not at obtaining discovery. Thus, the magistrate has broad discretion to limit or
cut-off cross-examination of witnesses. Note that choice (C) is wrong because it indicates that
Polly’s attorney can still effectively cross-examine the witness at the preliminary hearing despite
her absence. Though this may be true, nonetheless there is no constitutional right of confrontation
at the preliminary hearing stage. Thus, choice (D) provides the correct rule of law.
22.
(D)
According to the Sixth Amendment Confrontation Clause, “in all criminal prosecutions
the accused shall enjoy the right to be confronted with witnesses against him.” Many students will
be “tempted” to choose choice (A) based upon the decision in Coy v. Iowa, 108 S.Ct. 2798 (1988)
where the placement of a screen between the complaining child witness and a criminal defendant
charged with a child-sex offense was held to violate the defendant’s right to face-to-face confrontation. However, in Craig v. Maryland, 497 U.S. 836 (1990) the Court held that there was no
violation of the right to confrontation where the defendant was placed in an adjoining room
with a closed-circuit television as long as the accused was able to see the witness and the witness
was subject to cross-examination.
23.
(D)
This same issue regarding imposition of the death penalty was tested on last summer’s
Multistate exam. Choices (B) and (C ) are wrong because in Coker v. Georgia, 433 U.S. 584
(1977), the Supreme Court concluded that “death is indeed a disproportionate penalty for the
crime of raping an adult woman.” Coker is, to be sure, a most significant decision because it
“announced a principle of morality in law, namely, society may not take the life of a defendant
who has not taken the life of his victim.” Interestingly, choice (A) is wrong because in Sumner
v. Shuman, 483 U.S.66 (1987), a statute that mandates the death penalty for a particular category of defendants (prison inmates) is unconstitutional because there is no meaningful
opportunity for considering mitigating factors. Thus, by process of elimination, choice (D) is
the only possible correct answer
24.
(C)
With respect to the suretyship provision of the statute of frauds, it is important to
determine which oral promises contravene the statute and which promises are not condemned
by the statute even though they are oral. When a promise contravenes the statute because it is
not in writing, it is said to be collateral; when it does not, it is called original. Usually, one
party has made the promise and now pleads the statute as a defense. We will refer to him as
the promisor, and since he is invariably the defendant in these cases, by the letter D. The person to whom the promise is made we will refer to as the creditor C. Invariably, he will be the
plaintiff in the action. The person for whom the promisor promises we shall refer to as the third
party TP. Now let’s illustrate the likely fact pattern: D says to C, “Deliver these goods to TP
and I will see that you are paid.” D delivers the goods. Is D’s promise enforceable? In situations where there is no prior obligation owing from TP to C, for the promise to be collateral
(and within the statute of frauds), the following requirements must be met: (1) TP must be
under at least a voidable obligation to C; (2) there must be a principal-surety relationship
between TP and D; and (3) C must know or have reason to know of the principal-surety rela-
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tionship. Unless these three conditions are satisfied, then D’s promise is original and outside
the statute of frauds. And thus it may be enforceable even though it is oral. Now let’s apply the
three prong test to this fact pattern. First, does Niece (TP) have a voidable obligation to Lender
(C )? She certainly does given the fact that Lender did, in fact, loan her the $10,000. Next, is
there a principal-surety relationship between Niece and Uncle? This means that TP must be the
principal and D the surety and not vice versa. The answer is yes because Uncle’s promise is
secondary since he is only assuming the debt obligation if Niece fails to pay Lender. Third,
before the promise of D can be collateral, the creditor must know, or have reason to know, that
the defendant D is the surety. Here, clearly Lender knew that Uncle was acting as a surety for
the loan to Niece. Since these three conditions are satisfied, Uncle’s promise of guarantee is
collateral. Therefore, it comes within the statute of frauds and is unenforceable because it is
not in writing. (C ) is thus correct.
25.
(C)
The doctrine of consideration requires that the promisee must suffer legal detriment,
i.e., that is do or promise to do what he is not legally obligated to do. The detriment must
induce the promise. Here, the doctor’s initial treatment of Hans was not induced by his father’s
promise. Since the detriment had already been incurred, it cannot be said to have been bargained-for in exchange for the promise. Hence, it is commonly said that past consideration is
not consideration. Next, it is necessary to determine whether Benjamin’s oral promise to pay
Dr. Spack $7,000 for future treatment is enforceable. Since the future treatment was bargained-for, it clearly was supported by consideration. However, before choosing (C), it is necessary to consider answer choice (B) because Benjamin’s promise involves a surety
arrangement. Where there is no prior obligation on the part of the third party to the creditor,
debtor’s promise will be viewed as original (and outside the statute of frauds) unless the following requirements are satisfied: (1) third party must come under at least a voidable obligation to the creditor-promisee; (2) there must be a principal-surety relationship between the
third party and the debtor-promisor; and (3) the creditor must know or have reason to know of
the principal-surety relationship. Here, it is questionable whether a principal-surety relationship even existed between Benjamin and his son. Also, there is no evidence that Dr. Spack was
even aware that such a relationship existed between the father and his son. Consequently,
Benjamin’s promise was original (not collateral) and, as such, it was outside the statute of
frauds. As a result, choice (C ) is correct because there was an enforceable contract between
Benjamin and Dr. Spack since it was supported by valid consideration.
MULTISTATE PERFORMANCE “INDICATOR”
# Correct
Rating
22–25 . . . . . . . . . . . . . . . . . . . . . . . Excellent
18–21 . . . . . . . . . . . . . . . . . . . . . . Very Good
14–17 . . . . . . . . . . . . . . . . . . . . . . . . . Good
12–13 . . . . . . . . . . . . . . . . . . . . . . . . . Fair
Under 12 . . . . . . . . . . . . . . . . . . . . . . . . Poor
EXPLANATORY ANSWERS
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Page 1
Multistate Diagnostic Exam
MB
QUESTIE
ONS
PMBR
Question 1 is based on the following fact situation.
One morning Drake Dobberman and his friend, Fenwick
Friehofer, were playing golf at the Greenhill Country
Club. Drake and Fenwick were 16-year-old boys who
attended Seton Hall Preparatory School. They were members of the
golf team and were evenly matched players. After
completing the first nine holes, Drake was leading
Fenwick by three strokes 40 to 43. The boys approached
the 10th hole which was a par four
and 467 yards long. Drake shot first and hit a
towering tee shot down the left side of the fairway about
240 yards. Fenwick then hit his tee shot which traveled
down the middle of the fairway.
The ball, however, struck a tree limb that extended over
the fairway and deflected onto Virginia Slim’s property
which was adjacent to the golf course. Virginia, who was
sitting outside on a lounge chair, was struck on the head
by Fenwick’s golf ball. Virginia suffered a bump on her
head but was not otherwise seriously injured.
1.
If Virginia brings suit against Fenwick for trespass, she will
(A)
(B)
(C)
(D)
prevail, because the golf ball intruded onto
Virginia’s property
prevail, because Fenwick intended the act
of hitting the golf ball
prevail, because Virginia did suffer a physical injury
not prevail, because it was an accidental
entry that was unintentional
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MBE!
Question 2 is based on the following fact situation.
Vic Victory was an attorney who had an office in
Greensboro. After winning a big antitrust case, Vic and a
few associates decided to celebrate and have a few drinks
at The Rainbow Room, a popular downtown watering
hole. After having two gimlets (a cocktail containing
vodka and Rose’s lime juice), Vic left his friends and
drove home.
Vic, who was a bit tipsy, began driving in an erratic and
reckless manner. He was traveling at an excessive speed
along a residential section of town when he approached a
sharp curve in the roadway. Trying to negotiate the turn,
Vic lost control of his vehicle and it veered off the road
and landed on the front lawn of Edna Edsell’s property.
2.
If Edna asserts a claim against Vic for trespass,
she will most likely
(A)
(B)
(C)
(D)
prevail, because Vic was operating his car
recklessly
prevail, because Vic entered onto her property
not prevail, unless Vic damaged her land
not prevail, because he did not intentionally enter onto her property
Question 3 is based on the following fact situation.
Scottie entered onto Margo’s property without permission. Margo now sues Scottie for trespass.
3.
Which of the following would provide Scottie
with a valid defense?
I.
|Scottie honestly but mistakenly believed he
had Margo’s consent to enter the property.
II.
Scottie’s entry did not cause any damage to
the land.
III.
Scottie’s entry onto the property was nonnegligent.
(A)
(B)
(C)
(D)
I only
II only
III only
Neither I, II nor III
TRESPASS
VARIATIONS
TORTS