MBE Simulator Exam 2

Several landowners had residential premises in a development called “The Lakes.” One owner’s property contained a small improved beach area that could be used for swimming. That owner gave oral permission to several neighbors to use the beachfront for swimming, as a friendly neighborly gesture. That owner sold her property to a new owner. The new owner erected fences and signs saying, “keep out.” The neighbors sued, claiming that they had an easement by implication through prior usage to use the beachfront. Will the court restore the use of the beachfront to the neighbors?

No, because the use granted was merely a license to go on a neighbor’s land to go swimming, and the users of the free license did not expect that they were obtaining an interest in the land.

Yes, because the easement was created by the implied assent of the owner and her neighbors, and it became a public easement through prescription.

No, because land that abuts a lake or other body of water is not subject to the creation of an easement.

Yes, because the granting of a license to use one’s property to perform a certain activity usually ripens into an easement if the use is regular and continual.

Correct! Wrong!

A woman fell on a sidewalk that was covered with ice and snow. The sidewalk was part of the apartment complex where she resided. Another resident of the complex witnessed the woman falling and violently landing on her neck. The witness immediately said in a loud and agitated voice, “I told them an hour ago to clean this spot up but they did nothing.” At trial, the woman’s boyfriend offered testimony that he saw and heard the witness make the statement about informing the defendants to clean it up, thus proving notice and knowledge by defendants of the condition. The apartment management objected to the statement on the basis of hearsay. Which exception to the hearsay rule applies to allow this statement into evidence?

Present sense impression

Excited utterance

Prior statement by witness.

Statement of present state of mind or emotion.

Correct! Wrong!

A property owner was returning home one evening. When he got into his driveway he beeped open the garage door. As he approached the garage he saw some movement inside but couldn’t tell what it was. He stopped the car, pulled his handgun from the glove compartment, and walked toward the garage. As he began to enter the garage a person jumped out from behind a pile of boxes and tried to run out of the garage, in a direction away from the owner. While heading for the outside area, the owner raised his gun and shot the individual dead. It turned out that the dead person was a 16-year-old unarmed teen from the neighborhood who apparently had been searching the garage for things to steal. Under the prevailing common law rule, will the owner be convicted of a criminal homicide charge?

He will be convicted because under these circumstances the man used unreasonable and excessive force in response to the situation.

He will not be convicted because he used appropriate force to repel a trespasser and thief on his property.

He will be convicted it is never proper to use deadly force upon a person who is illegally on one’s premises.

He will not be convicted because it is always legal to use deadly force on a trespasser who is found on one’s property and who is damaging or taking property.

Correct! Wrong!

The main witness against the defendant in a federal drug prosecution was an individual who was addicted to cocaine, had been hospitalized several times for psychotic experiences, and suffered from several mental illnesses. He arrived in court apparently lucid and ready to testify. The defendant objected to the testimony on the basis that the witness was incompetent to testify due to past mental illnesses. The judge questioned the witness, who stated that he understood the nature of the oath as a witness, that his memory of the events was clear, and he was not under the influence of any chemicals or alcohol. The defense was allowed to cross-examine the witness on his competency. The judge allowed the testimony, which was sufficient to convict the defendant. On appeal, the defendant raised the long mental history of the witness and argued that the judge should have held a detailed fact-finding hearing to determine the competency of the witness. What is the likely decision of the federal appellate court?

The case should be remanded with instructions for the judge to caution the new jury regarding the several hospitalizations and tendency to psychotic episodes of the witness.

The case is remanded because the court should have appointed independent medical experts to examine the witness and report to the court in a formal hearing to determine competency.

The appeal is denied because the judge made appropriate inquiries and she did not abuse her discretion in deciding that the man was capable of testifying.

The appeal is denied because in federal court all witnesses are competent to testify under any circumstances.

Correct! Wrong!

A retail salesperson was driving her car at lunch when a man driving an SUV drove through a red light and struck her. The salesperson resided in State A and the accident occurred in State A. The driver of the SUV was employed by a company that was located in State B. The company allowed the employee to take its SUV, which was used most of the time for business purposes, to go home to State A every night and return to work in State B in the morning. The injured retail salesperson sued both the company and the driver in a State A court. The company filed a motion to dismiss claiming that the State A court did not have personal jurisdiction over the company, despite having over its employee. The trial court dismissed the case against the company for lack of personal jurisdiction. Will that decision likely survive on appeal and why or why not?

Yes, because the company did not benefit from giving the employee a car to commute with, thus it had no minimum contacts with the forum state.

Yes, because the company was not doing busines in State A and therefore it had no contact with the state.

No, the company benefited from having its employee commute from State A to State B and it is responsible for the acts of its agent.

No, the mere act of the company's car being in State A was enough to establish personal jurisdiction over the company.

Correct! Wrong!

A manufacturer of widgets sent a letter to an international widget retailer offering to sell ten truckloads of construction-quality widgets for $1,000 per truck. The retailer emailed a note back saying “Please send 10 truckloads as promised.” No shipment was sent, but four months later when the market demand for widgets skyrocketed, the retailer sued the manufacturer for breach claiming that the retailer suffered damages by not having received the shipment of ten trucks as agreed. Does the retailer have a legal right to collect damages under these facts?

Yes, there is a specific and detailed enough offer, followed by an unequivocal acceptance, indicating an intent to form a contract.

No, the parties do not set a date for delivery, which always invalidates a contract between merchants for the delivery of goods.

No, the retailer never called back and asked for the widgets, which means that the contract was not finally confirmed and legalized.

Yes, the retailer is entitled to collect damages because the manufacturer violated the doctrine of avoidable consequences.

Correct! Wrong!

An elderly married couple were shopping in a large retail super center. The husband fell on a yellow sticky substance resembling floor wax. Wife saw that there was some kind of hazardous condition ahead, but was quickly disoriented by seeing her husband on the floor in pain several yards ahead. She stepped forward onto the substance and immediately fell on her side, breaking her hip. After extensive rehabilitation and complex hip replacement surgery, the wife sued the retailer. The complaint alleged negligence in maintaining the premises. After these and other facts were pinned down in discovery, the store filed a motion for summary judgment, alleging that the wife voluntarily assumed the risk of the dangerous condition by knowing that it was there and voluntarily proceeding into it anyway. Will the store likely win the motion for summary judgment under these facts?

Yes, there is no material fact that is under dispute because the wife proceeded to encounter a known danger voluntarily, thereby assuming the risk of injury.

Yes, even taking the facts in the light most favorable to the non-moving party, i.e., the wife, it is clear that there is no dispute that she voluntarily assumed the risk.

No, because the wife found herself in a sudden emergency and she did not have a reasonable time and opportunity to elect intelligently whether to take another step.

No, the store generally has an absolute duty to keep the floors cleaned and a breach of that duty will result in the imposition of strict liability

Correct! Wrong!

A city park accepted a limited number of privately funded and donated monuments. One of them was a monument displaying the Ten Commandments, which the Kiwanis International donated in a campaign against juvenile delinquency 50 years ago. A non-denominational church organization recently demanded that the city provide space in the park for the church to erect a monument giving the seven precepts of the church. The city rejected the request, and the church sued the city requesting injunctive action to compel the city to provide space for its religious display. The church argued that the city was in violation of the religious establishment clause of the First Amendment by allowing the Ten Commandments. The church said that the monument was an establishment of religion and that all religions should be allowed to display equally or none should be allowed. Based on modern precedent, what will the court decide?

The First Amendment requires that every expression and form of speech be allowed by a government agency and thus the new monument must be allowed.

The city must allow a fair selection of monuments from all religions or be guilty of establishing a religion by appearing to favor one religious heritage only.

The city can accept a monument that also has historical, non-sectarian interest without violating the establishment clause and without having to accept other monuments.

The placing of a monument that has any religious significance at all is always a violation of the establishment clause, and the Ten Commandments must be removed.

Correct! Wrong!

A developer purchased two lots of ocean front property. He intended to build two single-family high-end homes like adjacent homes built in the surrounding areas. Two years later, the state passed a beachfront protection statute that prohibited the developer from building on his lots. The developer filed a claim in state court demanding compensation for a taking of his property under the Fifth and Fourteenth Amendments because the state denied all economic uses of the property. The trial court agreed that the property was now economically useless, and awarded compensation to the developer. However, on appeal the supreme court of the state reversed. The United States Supreme Court granted certiorari. Did the U.S. Supreme Court grant the developer’s plea for compensation based on an unconstitutional taking of his property by the state?

No, the valid exercise of the police powers by the state cannot result in a claim for compensation by a property owner.

No, the statute did not forbid all uses of the property; there were still social and recreational uses that remained.

Yes, any interference with a landowner’s interest in building commercial property is prohibited by the due process clause and requires compensation.

Yes, compensation is payable for a taking of property where a statute or regulation takes away all economic use of the land.

Correct! Wrong!

A businessman files a complaint for defamation against a former customer in a federal district court. The businessman sends an adult friend to serve the complaint and summons to the home of the former customer. The friend leaves the papers with a cleaning person who is the only person home, and who has control of the premises for just the several hours while she is there doing her job. The defendant files a motion to dismiss for insufficiency of service of process under Rule 12(b)(5). Assume that state law regarding service of a complaint is the same as Rule 4 of the Federal Rules of Civil Procedure. What is the court's likely decision and reason?

The court will deny the motion and allow service due to the fact that the person had control of the house for that temporary time.

The court will grant the motion and reject service because the papers must be served only on the defendant herself.

The court will grant the motion and reject service because the person served did not reside there.

The court will deny the motion and allow service because the circumstances point to reliable service of process.

Correct! Wrong!

A state started conducting random vehicle stops at highway roadblocks to look for drugs. A young man was In a civil case in federal court between two pharmaceutical companies involving a dispute over the rights to an anti-HIV drug, one of the litigants exercised some of its peremptory strikes to keep gay persons off of the jury. The other company challenged and appealed the procedure on the basis of a denial of equal protection to the prospective jurors. What was the most likely ruling of a three-judge panel of the United States Court of Appeals?

Substantive due process prohibits discrimination by sexual orientation in the selection of a jury.

Equal protection prohibits peremptory strikes on the basis of sexual orientation alone.

The court may exercise its wide discretion in deciding the propriety of peremptory jury strikes.

The evidence indicates that gay jurors are likely to be biased regarding anti-HIV drug treatment.

Correct! Wrong!

In a murder prosecution, the prosecution offered into evidence numerous photos of the decedent lying in a puddle of her own blood, of the bruises and marks on her body, and other aspects of the death scene. The defense objected to the photos on the basis that its probative value was outweighed by the danger of unfair prejudice in allowing the jury to see them. Will the trial court exclude the photos?

Please select 2 correct answers

Yes, the blood and gory sights will only serve to inflame the passions of the jury and to confuse the jurors.

No, because the photos portray the details of how she was killed and the possible methods used to kill her, which is important information for the jury to consider.

No, because the photos were only background evidence and the judge will simply advise the jury of that fact and to not place much weight on such matters.

Yes, because it is crucial to keep out all evidence that may have the potential of causing prejudice to the defendant.

Correct! Wrong!

The police interrogated a suspect regarding a series of burglaries. The suspect had attention deficit disorder, dyslexia and an IQ of 72. Prior to beginning they read a list of Miranda rights to him on a form that the suspect had in front of him. After the reading, he initialed each paragraph indicating he understood. At the bottom of the form was an express written waiver of the Miranda rights, which he signed. He had been interrogated in the past and was familiar with the procedure. During the four hours of interrogation he was given bathroom breaks, coffee, and a sandwich. At the end of the process, he made a logical and seemingly cogent confession to all of the burglaries in a taped statement. The defendant later moved to suppress the confession, arguing that he was coming down from drugs at the time and was intellectually unable to understand and comprehend the nature of the warnings or the waiver. What is the most likely decision of the court under the totality of the circumstances?

The outward signs all indicate that the suspect understood the procedure and gave a voluntary confession despite his disabilities.

There are too many questionable deficiencies in the suspect’s ability to understand what was going on and the confession must be suppressed.

He was too confused to understand what was going on and the confession was coerced by the persistence of the police.

The signing of a written waiver of Miranda rights is always proof that the suspect gave a voluntary confession.

Correct! Wrong!

A man died in a hospital of a fatal, highly contagious disease. A hospital clerk neglected the set protocol of marking the body with warnings that there was a communicable disease involved. The funeral director embalmed the body without taking extra precautions, which caused him to have a great deal of contact with the corpse’s blood and fluids. When he found out about the disease, he sued the hospital for damages, including severe emotional distress. Which of the following is the most likely tort theory that the plaintiff can successfully assert against the hospital?

The hospital committed a battery of his person by remaining silent and intentionally causing him to suffer an offensive contact from a corpse with a highly contagious disease.

The hospital committed an assault against him by intentionally causing him to suffer an offensive touching from a corpse with a highly contagious disease.

The hospital committed the tort of intentional infliction of emotional distress by recklessly releasing the corpse to an unsuspecting funeral home.

The hospital was negligent and breached its duty to notify those who could suffer harm that the body was infected with a highly contagious disease.

Correct! Wrong!

Plaintiff filed a personal injury action against a trucking company whose truck rear-ended the A prisoner filed a pro se civil rights complaint against the prison, alleging that the authorities had treated him with deliberate indifference. He asserted that he had been beaten and tortured by other prisoners with the knowledge of prison officials, who did nothing to prevent or stop the attacks. The prisoner, however, did not identify any specific prison officials who were involved, nor did he give any details on when and where the beatings took place. The prisoner did not describe his injuries in detail in the complaint, due to the fact that he was waiting for his medical records, which were being held up by the prison. The defendants made a Rule 12 motion to dismiss, which the court granted. The court did not give leave to amend because it felt that plaintiff probably could not obtain all of the facts that he needed to make a well-pleaded complaint. The plaintiff filed an appeal, alleging that he should have been granted leave to amend the complaint. What is the court’s likely decision and why?

The appeal will be denied because the plaintiff had the opportunity to obtain the facts before he filed an indadequate complaint.

The appeal will be denied because the court has the discretion to say whether it believes that the plaintiff could obtain more facts to allege.

The appeal will be granted because the prison was obstructing justice by holding the medical records.

The appeal will be granted because the court must allow parties the liberal right to amend their pleadings where there is a possibility that this will be fruitful.

Correct! Wrong!

Immediately after a shooting incident, the police chased one of the shooters into an apartment where he was apprehended and arrested. While in the apartment, a detective noticed some antique furniture that seemed of collectors’ quality and was out of place in the squalidly furnished quarters. He moved and turned over the pieces to look for markings and insignia. He called headquarters, and was told that items with those markings and descriptions were stolen from a museum six months earlier. He seized the items and arrested another occupant, who claimed he owned the items, on charges of burglary. That suspect filed a motion to suppress based on there being a warrantless search without probable cause. The police relied on the plain view doctrine. Will the court likely suppress the evidence?

Yes, the evidence will be suppressed because the police can never search a personal residence or seize any unrelated items after entering for exigent circumstances dealing with something else.

No, the evidence was properly seized because the officer had a right to investigate it further once he had properly entered the apartment under exigent circumstances.

No, the evidence was subject to further search and seizure because it was in plain view and the officer had a reasonable suspicion that it was contraband.

Yes, the evidence must be suppressed because the plain view doctrine does not apply where the officer had no probable cause to believe that the observed item was contraband.

Correct! Wrong!

A regular patron of a busy coffee shop one day spotted a small billfold on the floor. She picked it up and found that it contained $2,000 in cash and a valuable diamond ring that was taped to inside flap. Instead of turning it over to the restaurant or the police, she took it home and laid it in her nightstand, where it set for two months. During that period, the owner of the billfold placed several ads in the newspaper and had posted a notice for a reward prominently in the coffee shop. A customer who saw the notice remembered seeing the patron pick up a billfold on the floor a few months back, and he reported it to the police. The police got a warrant and found the billfold and its original contents still sitting in the patron’s nightstand. She was arrested for criminal theft. She defended by arguing that she intended to return the money, and that’s why she never spent or moved it. Is this a theft under most modern theft statutes?

Yes, it is a theft because under most criminal statutes he has a duty to take reasonable steps to restore property to its owner under circumstances where he knows it was lost or mislaid.

No, it is not a theft to keep property that is found lying about in a public place with no identification on it; there is no reasonable way to ascertain the identity of the real owner.

No, it is not theft because of the old adage, “finders keepers, losers weepers.”

Yes, it is a criminal theft because a person can never retain possession of unidentified property and must always turn it into the police.

Correct! Wrong!

A man entered into a lease for an apartment with a landlord. The lease stated that the term was month-to-month. After one month, the man went to the city health and licensing department and complained about various sanitary code violations that the landlord failed to correct. The agency made an inspection and found 40 sanitary code violations. It cited the landlord, and ordered him to clear up all of the violations. After the inspection, the landlord brought an eviction action against the man and obtained a judgment against him for eviction. Will the eviction order hold up under the stated facts?

Yes, because the law of landlord-tenant generally favors the landlord and doesn’t require that the landlord make repairs or keep a property up to code.

No, because eviction is not recognized with respect to a month-to-month lease; instead, the tenant must vacate immediately on receiving written notice.

Yes, because the tenant’s act of disloyalty is a breach of the lease that may be enforced by an eviction action.

No, because the landlord’s action is a retaliatory eviction, which cannot be used against a tenant who reports code violations and is a defense that the tenant may raise.

Correct! Wrong!

A retail store runs an advertisement in the local newspaper stating: “Only 3 cashmere sweaters remaining; highest quality; real Polo; one grey, one maroon and one beige; on closeout, starting 9 a.m. Saturday, $5.00 each, first-come, first-served.” A store customer was the first to arrive on Saturday morning. He located the three advertised sweaters, picked them up, handed $15.00 to the clerk, and demanded all three sweaters at $5 each. The clerk stated that the store’s price on each sweater was actually $50 each. The customer demanded the advertised price. Who has the superior legal position?

The customer, because the terms of the advertisement were definite enough to constitute an offer and the offer was duly accepted.

The retail store, because the terms of the advertisement were merely an invitation to make an offer, and the offer made was duly rejected by the store.

The customer, because this was a contract of adhesion favoring one party only, and as such, the store could not enforce it.

The store, in that a contract was made at $50 each, which was the store’s actual intended price for the sweaters.

Correct! Wrong!

A patient calls his doctor and tells him personally on the phone that he is a “butcher” and one of the most incompetent money-grubbing doctors he has ever encountered. He accuses him of having botched up the caller’s recent appendectomy operation because the caller still has the same excruciating pain as before the surgery. He says that everyone knows that the doctor can’t “hold a scalpel steady” anymore, and that everyone knows that his new home is the bar at the Colonial Country Club. The caller hangs up. The doctor brings a slander per se action against the former patient based on the phone call. The defendant eventually moves for a summary judgment dismissal. What is the likely decision based on the foregoing given facts?

The case must be dismissed because there is no defamatory statement when there is no publication to a third person.

There is no defamation because the patient has an absolute privilege to complain about matters within the doctor-patient relationship.

The case will go to the jury to decide the existence and the extent of any defamation.

This is a case of libel per se, and it will go to trial for a final determination.

Correct! Wrong!

A woman asked a male friend to hold her valuable antique jewelry in safe storage for her while she traveled in a foreign country. He owned a jewelry store and graciously offered to store the collection for free. He also volunteered to get the jewelry insured at his own expense. She relied on the promises, and turned over the collection to him without the payment of monetary consideration. He forgot to get the jewelry insured, and the collection was stolen in an armed robbery of the jewelry store. When she returned, he refused to compensate her for the stolen collection. Which one of the following legal principles would be her strongest and most accurate claim for remuneration under these facts?

The principle of unilateral contract.

The principle of equitable trust.

The principle of natural consideration.

The principle of promissory estoppel.

Correct! Wrong!

Two union representatives got in an argument at work. The male rep told the female rep that he was running for president of the local union in the next election. The female rep told him that she had been planning to run. He told her, while pointing a finger in her face, “I could whip you in an election any time, or I could beat you silly right here and now.” The female rep walked away, feeling very apprehensive about the male rep’s threat. The next day, they discussed union politics again, and the male rep once again stated that he could beat her “by votes or by a horse whipping, whichever you prefer.” She became very upset, and a few days later brought a civil action against him for assault. Has the man likely committed an actionable assault?

No, these were mere political arguments and the kind of heated things that might be said in a political context.

No, any apprehension would be of something too far in the future to constitute a true assault.

Yes, the male rep made a movement by pointing his finger, and threatening her with offensive imminent contact which she perceived with apprehension.

Yes, the statements of the male rep violated the Fair Labor Standards Act, which allows for civil actions for damages between union members.

Correct! Wrong!

A man purchased a new car with 8 miles on the odometer. In the first week after the purchase, the gas pedal got stuck when depressed, and the car accelerated uncontrollably, eventually crashing into the front of a strip mall jewelry store and killing the cashier. The cashier’s family filed an estate, and sued not only the driver for negligence, but also the automobile manufacturer in strict liability. The manufacturer tried to defend on the basis of having no privity with the cashier. The jury returned a verdict of $3.5 million against the auto manufacturer. The manufacturer appealed, stating that strict liability for a defective product could not be extended to bystanders. Based on the more generally accepted principles of modern tort law, what will the appellate court decide regarding the right of the decedent’s estate to collect from the manufacturer?

Lack of privity of contract prevents the estate from going against a defendant with whom it had no contractual or business relationship.

Only a consumer or user of the product is able to bring an action for injuries or death against a manufacturer or seller of a defective product that is unreasonably dangerous.

Strict liability in tort sounds exclusively in tort; the victim was in the realm of foreseeability for a runaway vehicle whose pedal was stuck to the floor, and the claim is allowed.

The victim’s estate must prove that the manufacturer breached an implied warranty of merchantability to the buyer of the vehicle before it can try to take advantage of that liability.

Correct! Wrong!

A state program granted tuition assistance to qualified low-income high school students to advance their educations in private schools of their choice. Most of the private schools participating in the program were affiliated with religious institutions. The parents applied the tuition vouchers independently without interference by the state. Choosing a religious school provided for a smaller amount than if a public-related charter or community school was chosen. Some parents sued the superintendent of the state schools to enjoin the program because it was an establishment of religion. What is the most likely decision of the court based on U.S. Supreme Court precedent?

The program was constitutional because it was a neutral program that did not involve the state’s favoring one religion or the favoring of religion over non-religion.

The program was constitutional because it guaranteed freedom of religion to those Catholic students and others who wanted to study in a school supportive of their religious beliefs.

The program was unconstitutional because religious schools were the majority of schools benefitted, which in turn was a de facto creation of a state preference for a religious education.

The program was unconstitutional because it created a discriminatory effect against public schools and made them doubly unable to make progress as educational institutions.

Correct! Wrong!

An owner conveyed residential real estate to a friend for life. The friend conveyed his interest in the same real estate to his brother. When the owner discovered the conveyance to the brother, he brought an eviction action against the brother. The brother refused to vacate the premises and appealed. What is the likely decision of the court regarding the requested eviction of the brother?

The court will rule that the brother has a right to live on the premises until the death of the owner.

The court will rule that the friend’s original interest was extinguished when he conveyed his interest to his brother, and the brother can be evicted.

The court will rule that the brother has a right to live on the premises until the death of his brother who conveyed the property to him.

The court order immediate reversion of fee simple ownership back to owner and will immediately evict the brother.

Correct! Wrong!

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