MBE Simulator Exam 6

A man was injured in an auto accident. He sued the other driver, claiming that the driver was driving in the middle of the road coming toward him. He claimed that he had to swerve into a ditch to avoid a collision. The defendant driver countered that the plaintiff driver was the one who was speeding and driving in the middle of the road prior to losing control of his vehicle and going off the highway. To prove her contention, the defendant driver was allowed to introduce evidence, over strenuous objections, of several prior speeding convictions the plaintiff had in the past. The jury decided in favor of the defendant driver, and the plaintiff appealed due to the prejudicial admission of the speeding convictions. Will the appellate court likely hold that the convictions should have been excluded?

Yes, there is little probative value to the speeding convictions, and it is a violation of Rule 404(a) of the Federal Rules of Evidence to admit evidence of a character trait to try to prove conformity therewith.

Yes, the speeding convictions were inadmissible because they were only relevant to showing recklessness, which was not an issue in the case.

No, the speeding convictions were direct evidence of the intent of the plaintiff to drive recklessly in the subject accident.

No, the speeding convictions proved that the plaintiff was probably speeding just prior to the accident.

Correct! Wrong!

An amateur golfer was playing in an amateur golf tournament. When she arrived at the ninth tee she found a new car with signs on it that said: "HOLE-IN-ONE Wins this 2014 luxury sedan.” The name of the a dealership appeared on the sign. Much to everyone’s amazement she inexplicably shot a hole-in-one. She attempted to claim her prize. The dealer refused, claiming that the car had been there from a charity tournament that was held two days earlier. The company admitted to neglecting to remove the car and posted no signs prior to the golfer’s hole-in-one. The golfer sued the dealership demanding delivery of the car. What is the likely decision of the court?

The promoter of a prize-winning contest is not bound to award the prize to an outside individual who was not registered according to the contest rules.

The golfer performed the act needed to win the prize, which in this case constituted an acceptance of the offer and the formation of an enforceable unilateral contract.

There was a mistake of fact between the parties and thus no contract could have been formed.

The contract failed because there was no consideration for the offer to turn over a car and thus no right to expect performance of a gratuity.

Correct! Wrong!

A dealer ordered “one truckload of western regional first-grade widgets, usual terms and conditions” on a standard order form that he sent to his usual wholesale supplier. The dealer and the supplier had a practice that all shipments would contain standard-sized widgets unless otherwise stated. The truckload arrived and was unloaded but later discovered to contain “extra-large” size widgets, which the dealer could not use. The dealer refused to pay and the manufacturer sued for the ticket price of $223,000. The dealer soon learned that industry standards re-classified the extra-large widgets as “discontinued” and essentially obsolete. At trial, the dealer offered to testify to his standard practices in ordering so as to clarify what he intended to order. The manufacturer objected based on the parol evidence rule. What is the best and most likely decision of the court regarding the objection?

The dealer’s testimony will be disallowed because it is in direct violation of the parol evidence rule’s prohibition of testimony regarding subjects already integrated into the written contract.

The dealer’s testimony will be allowed because course-of-dealing testimony that attempts to explain and interpret what is meant by the writing is allowed.

The testimony will not be allowed because it will serve to confuse the issues and simply cloud up the clear meaning already explained in the order form and shipping documents.

The testimony will be allowed because it is relevant and relevancy always trumps the parol evidence rule.

Correct! Wrong!

A state-funded military institute accepts only male students. The college-level school has a renowned history of producing military and government leaders. It is known for having a uniquely rigorous form of military training that builds strong character forged in the tribulations of adversity and military discipline. A woman with excellent scholastic and athletic achievements applied for admission and was turned down. She brought an injunctive action in federal court claiming a denial of equal protection guaranteed by the Fourteenth Amendment. The state offered to develop a parallel military school for women that would not be as physically demanding or as confrontational. Facilities and faculty would not be equal to the men’s institute because of initial budgetary restraints. In light of U.S. Supreme Court precedent, what should the federal district court rule?

There is no equal protection problem when the state offers a parallel program of education to women.

There is no equal protection problem because the unique attributes of a men-only vigorous military training program is constitutionally justified in not allowing women.

There is a denial of equal protection because the “parallel” program does not provide the same rigorous military training or the full spectrum of benefits.

This may be a violation of the civil rights laws against gender discrimination but it has nothing to do with a denial of equal protection.

Correct! Wrong!

A man was injured when his kitchen oven exploded due to a manufacturing defect. He filed a complaint against the oven manufacturer for personal injury damages. He also added a count for class certification and requested a recall of all similar ovens sold to consumers to stop the danger of physical injury. He created two putative classes: (1) everyone who purchased that model oven who lived in New York, the state where the man resided; and (2) everyone who purchased that model oven who resided in 25 other designated states where the company did business. The manufacturer filed a motion to dismiss the second putative class preliminarily under Rule 12(f) of the Federal Rules of Civil Procedure which allows for the early striking of any immaterial matter from the complaint. Will the federal district court judge likely grant the motion?

Yes, the court will grant it because the plaintiff is not a member of the second class that he set up.

Yes, the court will grant it because the plaintiff has not specifically listed the identity of each member of the second putative class.

No, the court will not grant it because it is too early to decide class certification issues and it can’t be done through Rule 12(f) of the FRCP.

No, the court will not grant it because the plaintiff does not have to be a member of the exact class in order to represent that class.

Correct! Wrong!

A group of high school teenagers attended an all-night rave party at a local dance hall. The driver of the group purchased and took several ecstasy pills while there. When she attempted to drive home the next morning, she fell asleep and crashed into a tree, killing one passenger. She tested positive for ecstasy. The owner had rented the facility for the evening to a private group of college students. The owner kept its employees on the premises for security. The owner took numerous steps to prevent drug use, including searching attendees, confiscating drugs, and evicting drug dealers. The estate of the deceased teen sued the owner of the dance hall. The owner filed a motion to dismiss because it asserted no legal duty owed to the decedent. The plaintiff argued that the owner should not be allowed to use its facility for an all-night party, and that it was highly foreseeable that teen drivers and passengers would be put at risk. Will the court likely grant the motion to dismiss?

No, because the owner did owe a duty to protect the users of its facility from danger.

Yes, because the owner did not actively run the party and did not distribute drugs to the attendees.

Yes, because a property owner is never liable to groups or individuals who rent the property for short periods.

No, because rave parties are inherently dangerous and the foreseeability factor creates a duty owed by the owner to the attendees.

Correct! Wrong!

An elderly man died with a will that had the following clause: “After payment of such debts and funeral expenses, I give and bequeath to my beloved wife the farm on which we now reside and all my personal property, so long as she remains my widow; the remainder on her remarriage or death to go to my son John..” Which one of the following estates in real property most closely reflects the wife’s interest upon her husband’s death?

It is a life estate that ends on her remarriage or death, with a remainder over to the son.

It is a devise of a fee simple absolute.

It is a fee simple with a precedent condition.

It is a vested and contingent remainder;

Correct! Wrong!

A criminal defendant was charged with bank robbery. Prior to trial, he filed a motion in limine, asking the court to exclude from the trial evidence of his prior convictions for assault, forgery and involuntary manslaughter. The defendant wanted to testify on his own behalf but needed an advance ruling to determine whether his prior convictions would be allowed into evidence for purposes of impeaching his credibility. Under Rule 609(a)(2) of the Federal Rules of Evidence, certain kinds of prior convictions are always admissible for impeachment purposes. Under Rule 609(a)(2), the following would be definitely admissible for impeachment purposes if the defendant takes the stand, without further analysis:

The prior convictions of assault, forgery and involuntary manslaughter would all be admissible for impeachment purposes under 609(a)(2).

Only the forgery conviction would be per se admissible for impeachment purposes under Rule 609(a)(2).

Both the forgery and the assault convictions are admissible for impeachment purposes under Rule 609(a)(2).

None of the prior convictions are admissible for impeachment purposes under Rule 609(a)(2).

Correct! Wrong!

A land owner sued a purchaser of the land for breach of contract in not performing on their sales agreeement as of the last day set for closing. The defendant filed a counterclaim, alleging fraud by plaintiff in certain claims about the property, which greatly diminished the value, and requesting certain business loss damages, along with a refund of down payment funds. Six months later, the same defendant-purchaser of the land filed a complaint against the land owner, claiming fraud on two adjoing tracts of land that were allegedly negotiated around the same time as the origninal agreement between the parites. The purchaser included a promissory note to the complaint that allegedly superceded the original note listed in the first lawsuit and was signed a few days later. The purchaser's new, separate lawsuit claimed additional fraud damages against the land owner and return of additional funds being held by him. Can the second action by the purchaser be maintained or should it have been included with the counterclaim filed in the first case?

Yes, it can be maintained because in the earlier lawsuit it was only a permissive counterclaim.

Yes, it can be maintained because in the earlier case it was not mentioned and therefore was not a part of the subject matter of that case.

No, it cannot be maintained independently because it was a compulsory counterclaim that should have been raised as a counterclaim in the original lawsuit.

No, it cannot be maintained because it violates the parol evidence rule in that you can't have two contracts defining the same land.

Correct! Wrong!

A motorist is making a left turn at a traffic light. When the light turns yellow he waits a second and decides to try and rush through the left turn. He is hit broadside by a car traveling through the intersection with the right of way. The investigating police officer points out the sign above the light that informs motorists to make a “left turn on signal only,” meaning that there was a left turn arrow that he was supposed to wait for prior to negotiating the turn. The officer gives him a ticket for “improper left turn.” The motorist pays the ticket. The other driver was severely injured and sues the motorist for negligence. The injured driver asserts in the complaint that the violation of the traffic ordinance is proof of “negligence per se.” Will the court instruct the jury that there was negligence per se?

No, because the violation of the ordinance under these facts did not support the claim that the motorist caused the accident.

No, because a violation of a traffic ordinance never can be used as proof of negligence.

Yes, because the ordinance that was violated was intended to avoid the precise harm that occurred.

Yes, because the violation of a traffic ordinance is always proof that the defendant caused the accident.

Correct! Wrong!

Two teens were hired to assist the custodial staff at a high school over the summer as part of a summer youth program sponsored by the Board of Education. It was known that young children played and congregated on the outside school grounds over the summer. When their supervisors were on coffee break, the two teen assistants went into the unlocked chemistry lab where the confiscated magnesium and potassium nitrate, which they placed in sandwich baggies and hid outside the school in the bushes, where they intended to retrieve it later. An 8-year-old child came along and found the bags, and thinking them to be play dust, he played with the substances and with some matches he had found. The chemicals ignited and caused the boy severe burns over his hands, face and neck. His parents, on behalf of the boy, sued the school district for all proximately caused injuries, and a jury awarded damages to the boy. The school district appealed. Will the appellate court affirm the award based on negligence and negligent supervision of the teens?

No, the school cannot be liable for an uninvited 8-year-old’s rummaging in the bushes.

Yes a duty was owed to the child, who was a foreseeable user of the land, and the chemical labs were supposed to be closed; thus, due care was not taken to prevent a foreseeable danger.

No, the school was out of session and had no duty to the uninvited 8-year-old; nor could it be held responsible for the teens, who were a superseding cause that absolved the school district.

Yes, there was strict liability for the distribution and dissemination of abnormally dangerous chemicals.

Correct! Wrong!

A mother of four children age 3 to 9 left her children alone in their single-family home while she went to the store to get groceries. While she was still out, neighbors heard the children calling for their mother, and saw smoke coming from the windows. One neighbor pulled the three oldest children out of the house. The fire department arrived and a fireman found the fourth child dead inside. The fire was not intentionally started. The police found the mother and arrested her for involuntary manslaughter. Is her negligence sufficient to warrant conviction for involuntary manslaughter?

Yes, it was fully foreseeable that a fire or other hazard could arise without the mother there to supervise and monitor the situation.

Yes, the woman’s negligence was gross and reckless, and such that evidences a callous disregard of human life sufficient to establish involuntary manslaughter.

No, her negligence was stupid and near-sighted but not the kind of heightened awareness of probable danger that is required for involuntary manslaughter.

No, she did not have the depraved heart intent to kill that is required for involuntary manslaughter.

Correct! Wrong!

A young man was arrested for statutory rape involving a fifteen-year-old girl. The girl had identified him as the person with whom she was having sexual relations. He asserted in his defense that the girl was sexually active and that she had intercourse with other men but not with him. He tried to offer into evidence testimony regarding the prior sexual activities of the girl and to identify other men with whom she had sexual encounters. Part of the defendant’s evidence would describe the girl’s need and desire to cover-up her other relationships, which gave her a motive to wrongly accuse the young man. Is the evidence admissible on the defendant’s behalf?

It is admissible to show that one or more others may have raped her instead of the defendant, and that she had a motive to want to blame the young man and to cover-up the other relationships.

It is inadmissible under the rape shield provision of the federal rules because it is trying to cast aspersions that are irrelevant to the charges against the defendant.

It is admissible because an individual’s prior sexual activities are always admissible to show bad character of the victim.

It is inadmissible due to the likelihood that the defendant will merely try to dig up “dirt” regarding the victim’s reputation that has no relevancy to his specific charges.

Correct! Wrong!

A man slipped and fell on a loose step in a set of stairs leading up to the office of an apartment complex. He sued the apartment owners to collect for serious injuries suffered, and claimed that they were negligent in failing to inspect, maintain, and repair the stairs. The defendant apartment owners repaired the stairs and made improvements to its design shortly after the man filed the lawsuit. At trial, the plaintiff attempted to put into evidence proof of the repairs, mainly to show that the prior condition of the stairs was actually dangerous as the plaintiff claimed. The defendants objected to the evidence. What is the most likely decision of the trial court on the admissibility of the post-accident records of repairs?

Evidence of repairs is always admissible to show that the prior condition of the property was likely in need of repairs.

The evidence is admissible to show the guilty conscience and intent of the defendants.

The evidence is not admissible because its prejudicial effect outweighs its probative value.

The evidence is inadmissible because it is public policy to encourage the repairing of dangerous conditions, and it is felt that if such repairs were admissible that no one would make them.

Correct! Wrong!

An owner leased land to a tenant who said that he was going to use the land for farming. The tract contained farmland and dozens of acres of pristine, scenic woodlands that were part of the view from the owner’s adjoining residence. The owner noticed that the tenant was cutting down trees and selling them to companies who manufactured wood and paper products. After a while, 20 acres or so had been cut down and the activity was continuing, leaving a ravaged sight on the land. Does the landlord have a right to stop the activity and recover the value of the lost trees?

Under the doctrine of transfer of leasehold estate, the tenant may change the original use intended and perform any legal use that he wishes.

The landlord cannot interfere with lawful activities conducted by the tenant, and in this case the use of inactive trees that are mere woodlands cannot be prohibited.

This is voluntary waste to the property, which is prohibited by most leases; the tenant may be ordered to pay for the value of the waste, stop further activities, and is subject to being evicted.

This is ameliorative waste, which actually improves the value by having a profitable business on site; the tenant will not be held liable because he has improved the property.

Correct! Wrong!

A seller of computers advertised for sale: “lot number 931, brand new computers, state-of-the-art, deeply discounted in price and with factory warranties.” Some of the buyers of these computers ran into problems in trying to register for the factory warranty. They were rejected without explanation, and several of them reported the problem to local authorities. The authorities eventually discovered that the whole lot of computers advertised by the seller was part of a truckload that was hijacked and emptied of its contents a few months earlier. Under questioning, the seller admitted to being part of a group that committed the hijacking. The police arrested him for theft, receiving stolen property, and criminal fraud. Can he likely be convicted of receiving stolen property?

Yes, because the thief is always guilty of both theft and receiving stolen property.

Yes, because he received the stolen goods with the intent of selling them to unsuspecting consumers.

No, one who steals the property from its owner cannot be convicted of receiving stolen goods when he tries to sell the stolen item.

No, because one who has a retail business can never be guilty of receiving stolen property.

Correct! Wrong!

A woman employed by a federally funded educational institution filed an employment discrimination and retaliation complaint under Title IX of the Education Amendments of 1972, rather than under Title VII of the Civil Rights Act. The defendant moved for dismissal under Fed. Rule 12(b)(6). The plaintiff moved to amend her complaint. The court ignored the request for amendment and dismissed the case outright. Will that decision of the district court survive appeal?

No, the right to amend is to be granted liberally and must be given in this instance.

Yes, because the motion to dismiss was filed prior to the motion to amend.

No, the decision cannot survive because Title IX guarantees the right to amend under similar circumstances.

Yes, the plaintiff cannot eat up the resources of the trial court by not knowing which law to file under.

Correct! Wrong!

An online company has sued a competitor for trademark infringement in federal court. The company has made some broad discovery requests, which are being refused by the competitor. The Court issues a date for a scheduling conference. After the scheduling conference, which of the following appears to be the most appropriate subjects for a scheduling order, considering the mandates of the Federal Rules of Civil Procedure?

The Order will set the schedule for the providing the disclosure items that must be provided in the Rules, which includes detailed information by each party regarding its evidence.

The Order will set sanctions for any party not appearing at pre-trial conferences, determine the form and content of the pretrial order, dispose of pending motions, and set special procedures for managing potentially difficult or protracted actions that may involve complex problems.

The Order will limit the time to join other parties, the time to amend the pleadings, the time to complete discovery, and the time to file motions. It will also set the limits of discovery, and set dates for pre-trial conferences and trial.

The Order will deal primarily with the nature of the evidence and discovery obtained to date, with the goal of setting the summary judgment dates for future resolution.

Correct! Wrong!

A criminal defendant was convicted of robbery and sentenced to ten years in prison, starting on Jan. 1, 2000. Sec. 204 of the state penal code provided for early release for good behavior, and under that provision he would have been granted supervised release as of Jan. 1, 2007. On Feb. 1, 2006, the state legislature repealed Sec. 204 and passed Sec. 205a. It reduced the good time credits for anyone convicted from that date onward, and also for anyone in prison as of the date of the section’s passage. The new release date was calculated to be Jan. 1, 2009. The criminal defendant brought a habeas corpus action arguing that Sec. 205a was an unenforceable ex post facto law as to him. The state courts turned him down saying that good time credit was a privilege and not a vested right. The case ultimately came before the U.S. Supreme Court. Did the Supreme Court invalidate Sec. 205a as an unconstitutional ex post facto law?

No, because good time credits were an act of grace that could be taken away at any time.

Yes, because it retrospectively increased the punishment over what was in effect when the offense was committed.

Yes, because the legislature does not have the authority to pass a law that decreases good time credits for prisoners.

No, the criminal defendant did not have a vested right in the early release date.

Correct! Wrong!

A patient confided to his psychologist that he was having urges to kill his former girlfriend. The psychologist notated those urges in his office notes and called the referring customer, the security department of the patient’s employer, asking them to take care of warning the potential victim and taking any other necessary action. The security department did nothing. The patient continued to repeat the urges in therapy sessions but the psychologist felt assured that his notifying the employer was sufficient protective action. About 30 days after first sharing the homicidal urges, the patient shot and killed his former girlfriend in her parents’ home. The parents sued the psychologist and the security department of the employer for negligence. The psychologist filed a motion to dismiss, alleging no legal duty to the victim and, despite having no duty to her, that he took reasonable steps to warn and protect her. Will the court likely dismiss the case as a matter of law against the psychologist?

Yes, because he was absolved from further responsibility after he did take reasonable steps to have her warned.

No, because the therapist owes a legal duty to those foreseeable third persons who may be in danger from the patient’s illness; it’s up to the jury to decide whether he took reasonable steps or not.

Yes, because a therapist has no duty to a third person to take action to protect or warn the person, and she cannot reveal the secrets of the patient by breaking the doctor-patient privilege.

No, because the therapist is strictly liable to all persons in the foreseeable range of danger revealed by the patient’s expressions.

Correct! Wrong!

A group of college students published a monthly magazine with the purpose of challenging the laws of government and the values of society, and to thus stimulate creative thinking and expression. It criticized all religions, had drawings of public officials in sexual and corrupt activities, and mocked virtually all societal values. There was a flurry of frantic complaints to state legislators, who passed a law permanently enjoining the college from publishing the magazine without first getting the prior approval of designated state authorities for each new edition. The college brought an action to declare the law unconstitutional. Will the court strike down the statute?

Yes, because it’s an illegal prior restraint on free speech.

Yes, because it violates the establishment clause.

No, because the publication fell below the standards required for free speech.

No, because a “gag order” of this kind is sometimes required to stop the defamation of public officials and religious leaders.

Correct! Wrong!

A high school student was running for president of the student council. He was a top scholar who had been selected to be the class valedictorian. Inexplicably, he gave a campaign speech at a school assembly that was filled with graphic stories and anecdotes about the imagined sexual adventures and prowess of certain teachers and students. Several teachers and students complained. The principal suspended him for five days and retracted the valedictorian honors. The student, with his parents, sued in federal court, seeking an injunction and damages based on denial of First Amendment free speech rights. The federal courts ruled for the student but the case came before the U.S. Supreme Court for final decision. Did the Supreme Court uphold the relief granted to the student?

No, the school exercised its appropriate function of trying to restrict the use of vulgarity and offensive discourse in a high school setting where free speech may be limited.

Yes, despite some inconvenience to teachers and students, the immature presentation must be tolerated in deference to the need to provide platforms for free speech to students.

No, the student had no rights to free speech, especially considering the violent disruptions in the schools in recent years.

Yes, in today’s society sexual images and sexual humor is so intertwined into the fabric of society that it is something that has to be tolerated in the interest of free speech.

Correct! Wrong!

A building owner hired a painter to paint 20 office units that were vacant and being refurbished. They agreed to terms in writing, and the painter started on the work. After completing only two units, he received a written message from the owner repudiating their agreement and stating that his services were no longer needed. The painter ignored the message because he believed that his contract guaranteed him the full 20 units of work. He finished all units and sent a bill to the owner, who responded with a check for the first two units only. The painter sued the building owner for the full balance due. The building owner countered that he only owed up to the point that he repudiated the contract. Which of the following most closely states the probable decision of the court?

The painter had a duty to stop work and thus mitigate damages when he received a written repudiation of the contract.

The painter had a right to complete performance because he had already started the work and had a right to perform his part of the valid and enforceable agreement.

The “avoidable consequences” doctrine is applicable to support the right of the painter to finish the job and be paid.

The painter could not receive the full contract price because he would be unjustly enriched under these circumstances.

Correct! Wrong!

A contractor was performing re-modeling work for a nursing home. The written contract called for a 30-day project in which several common social areas would be refurbished, including dry wall, insulation, carpeting, and painted, along with minor plumbing and cosmetic improvements, for $50,000. About a week after work started, the nursing home director asked the foreman on the job to put in natural wood paneling over the dry wall, and to reduce the total area to be painted. The director also told the foreman to upgrade certain bathroom fixtures. At the end of the project, the final bill was $72,000. The nursing home’s board refused to pay that amount and tendered the $50,000 contract price, claiming that a contract could not be modified without another writing. At trial, the nursing home objected to testimony from the foreman and the nursing home director on the basis of the parol evidence rule. Do you think that the court would order the nursing home to pay the additional money?

Yes, because a written contract not for the sale of goods can be modified by subsequent oral modification and the parol evidence rule does not apply to modifications made after the written contract is finalized.

No, because a written contract not for the sale of goods can only be modified by another writing.

No, because oral testimony regarding changes in a written contract not for the sale of goods are in violation of the parol evidence rule.

Yes, because the nursing home director committed fraud when he told the foreman to do work over which the director had no authority.

Correct! Wrong!

A plaintiff in a civil rights action against a municipality offered into evidence a tape recording of a police officer telling another officer to plant incriminating drug evidence on the plaintiff’s property. The plaintiff had received the tape in a large box of material turned over as a result of a discovery request to the municipality. The plaintiff called a city official to authenticate the tape. However, the defense made a motion to exclude the tape based on the prior testimony of the purported two speakers, who both testified that they did not recognize their voices. This raised a factual question regarding the authenticity of the tapes. The court overruled the objections to the tape and allowed it into evidence. The defendants appealed, claiming that the court abused its discretion in approving the authentication of the tape. Will the appellate court rule that the tape should have been excluded?

Yes, because the evidence must be proved to be authentic beyond a reasonable doubt before it can be admitted.

Yes, because the defendants will be severely prejudiced by having the jury listen to a tape that is possibly bogus.

No, because the party offering the evidence must only provide “prima facie” proof that it is what it purports to be; the final question can be decided by the jury.

No, because tapes are self-proving items that don’t have to be authenticated, and are left to the jury to determine the weight to be given to them.

Correct! Wrong!

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