Multistate Bar Flashcards

A contractor agrees to build a garage for $30,000. Midway through, the contractor demands an extra $5,000 due to unexpectedly rocky soil that doubles excavation costs, and the owner agrees. Under the common law, the modification is:

Answer: Enforceable if fair and equitable in view of unanticipated circumstances

Many courts enforce a modification without new consideration when it is fair and equitable in light of circumstances not anticipated when the contract was made.

A hunter fires a rifle in a dense forest without checking his surroundings and wounds a hiker on a marked trail. The hiker's spouse, who witnessed the shooting from beside the hiker, sues for negligent infliction of emotional distress. In a jurisdiction following Dillon/bystander rules, the spouse must show:

Answer: Presence at the scene, close relationship to the victim, and contemporaneous observation causing distress

Bystander NIED recovery generally requires close proximity to the scene, a close family relationship, and contemporaneous perception of the injury.

A state law prohibits non-citizens from serving as public school teachers. A lawful permanent resident challenges the law under equal protection. The law will most likely be:

Answer: Upheld under rational basis review because teaching falls within the political function exception

Under Ambach v. Norwick, public school teaching is a governmental function, so alienage restrictions receive only rational basis review and are typically upheld.

A landowner grants a neighbor an easement to cross her land, and the neighbor later buys the landowner's parcel. Two years afterward, the neighbor sells that parcel back without mentioning the easement. The easement is:

Answer: Extinguished by merger when the neighbor owned both parcels, and not automatically revived

An easement is extinguished by merger when one person acquires both the dominant and servient estates, and it does not automatically revive on later severance.

At trial, a party offers a properly authenticated business record containing an employee's notation of a statement made by a customer, offered to prove the truth of the customer's statement. The customer's statement is:

Answer: Inadmissible unless the customer's statement falls within its own hearsay exception, since it is hearsay within hearsay

The business records exception covers only statements by persons with a business duty to report, so the customer's embedded statement needs its own hearsay exception.

A defendant, intending to kill his rival, shoots at him but misses and kills a bystander. Regarding the bystander's death, the defendant is most likely guilty of:

Answer: Murder, under the doctrine of transferred intent

Under transferred intent, the intent to kill the intended victim transfers to the actual victim, supporting a murder conviction.

A plaintiff sues a defendant in federal court and loses after a full trial on the merits. The plaintiff then sues the same defendant on a different legal theory arising from the same transaction. The second suit is most likely barred by:

Answer: Claim preclusion, because all theories from the same transaction merge into the first judgment

Claim preclusion bars relitigation of all claims arising from the same transaction or occurrence that were or could have been raised in the first action.