Kaplan five-subject multiple-choice test diagnostic assessment

Diagnostic Assessment
2
Question 1
A man and woman had been dating for a few years.
One day, the man decided to murder his father, in order
to obtain the inheritance that was promised him under
the father’s will. The man asked the woman to assist
him in the murder, and the woman agreed. The woman
subsequently purchased a knife for use in the murder.
However, the following day, the woman changed her
mind. She called the man and told him that she would
not participate in the murder. She also returned the
recently purchased knife to the store. She did not call
the police. The man later murdered his father and was
apprehended for the crime. The man’s criminal trial
concluded with a finding of not guilty.
Is the woman guilty of murder as the man’s accomplice?
(A) Yes, because she did not thwart the murder.
(B) Yes, because she did not effectively withdraw.
(C) No, because the man was found not guilty.
(D) No, because she effectively withdrew from
participation in the crime.
Question 2
A woman had lived in Apartment 123 in the same
apartment complex for six years. On many prior
occasions, the woman had hired the same handyman
to perform odd jobs in her apartment. The woman,
who was leaving town on vacation, telephoned the
handyman and said, “If you will replace the tile in
my bathroom while I’m on vacation, I will pay you
$700. You can get the keys from the superintendent.”
The handyman responded, “It’s a deal.” During their
telephone conversation, the woman failed to tell the
handyman she no longer lived in Apartment 123, but
had moved down the hall into Apartment 132.
The handyman came to the apartment complex, got the
key for Apartment 123 from the superintendent, and
re-tiled the bathroom. When the woman returned from
her vacation, she noticed that her bathroom tile had not
been replaced. She contacted the handyman, who then
informed her that he had replaced the tile in Apartment
123. The handyman demanded that the woman pay him
$700, but the woman refused.
If the handyman sues the woman for payment of the
$700 and the woman claims mistake, judgment
should be for whom?
(A) The handyman, because the woman should
have realized that he would replace the tile in
Apartment 123.
(B) The handyman, because even though no
contract existed, he is entitled to quasicontractual
relief under the circumstances.
(C) The woman, because the handyman did not
replace the tile in the woman’s bathroom.
(D) The woman, because no contract existed due
to the mutual mistake of the parties.
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Question 3
A woman and her best friend went out to lunch at a local
restaurant. During their lunch, the friend received several
calls on her cell phone, and the woman grew increasingly
frustrated at the constant interruptions. When the friend
stepped out to use the ladies’ room, leaving her cell phone
on the table, the woman took the phone, turned it off and
put it in her purse, planning to return it at the end of lunch.
However, the woman forgot to return the phone to her
friend and ended up taking it home with her.
If the woman is charged with larceny, should she
be convicted?
(A) No, provided the woman eventually gave the
phone back to her friend.
(B) No, because the woman did not intend to
permanently deprive her friend of the phone.
(C) Yes, because the woman knowingly deprived
the friend of her phone.
(D) Yes, because the woman purposely took and
kept the friend’s phone.
Question 4
At the start of the basketball season, the team’s coach
decided not to start a player who was a long-time fan
favorite. As the team started to lose on a consistent
basis, one season ticket holder became disgusted with
the coach and began wearing a t-shirt suggesting that
people stop attending the team’s games. During the
games, the fan would walk in front of the TV camera
with his t-shirt slogan prominently displayed.
As the season progressed, many other fans joined in
heckling the coach and wearing similar t-shirts. Soon
thereafter, the fan received a notice from the team’s
management revoking his season tickets. The fan was
informed that he would not be allowed to attend any
more games, but would receive full reimbursement for
all remaining games.
If the fan brings an appropriate action against the
team challenging the revocation of his season tickets,
will he prevail?
(A) Yes, because he was entitled to express his
rights of free speech.
(B) Yes, because he had paid for the tickets for the
whole season.
(C) No, because his license to attend games
was revocable.
(D) No, because obscene speech is not
constitutionally protected.
Diagnostic Assessment
4
Question 5
An author sued a production company and a screenwriter
for violating his copyrights by producing an unauthorized
TV adaptation of his book. He filed suit in federal court,
suing both defendants in the Southern District of New
York. The author met with the production company, and
worked out a deal where the author’s name would be on
the show’s credits and he would receive a significant fee
as an advisor. Based on the settlement, the author decided
to dismiss his claim against both parties. Before the
author did so, the screenwriter, filed an answer, claiming
he co-owned the copyright based on a 20-year-old
contract with the author. In his answer, he stated several
times how much he was looking forward to seeing the
author in court and making the author spend a lot of
money in attorneys’ fees.
How can the author correctly dismiss his claim?
(A) By filing a notice of dismissal.
(B) By filing a stipulation.
(C) By making a motion for voluntary dismissal.
(D) By moving for summary judgment.
Question 6
A man was injured when he attempted to rescue his
friend from a lake, which he had fallen into during a
fight with a fisherman. The man sued the fisherman in
the appropriate U.S. District Court, but not his friend.
The fisherman claims that the friend’s conduct was the
exclusive cause of the incident that resulted in injury
to the man and seeks to join the friend in the action.
Under applicable state law, if the friend is not named
as a defendant and the friend and fisherman were joint
and several tortfeasors, the fisherman would have no
right of contribution from the friend if a judgment were
obtained against the fisherman. The man is a citizen
of Idaho, the fisherman is a citizen of Maine, and the
friend is a citizen of Idaho.
How should the Court rule on the fisherman’s motion
to join the friend in the action?
(A) The Court should grant the motion, because
the fisherman’s contention that the friend
was responsible for the incident may (at trial)
prove to be correct.
(B) The Court should grant the motion, because
there is a common nucleus of operative facts.
(C) The Court should deny the motion, because
the friend is not an indispensable party.
(D) The Court should deny the motion, because
joinder of the friend would destroy subject
matter jurisdiction.
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Question 7
A high school sophomore had recently obtained her
driver’s license. One evening, she was driving home from
the library when a heavy rain began to fall. The rainstorm
completely washed out the roadway, and the girl’s car
got stuck in an embankment in a remote area. She exited
the car and began walking, hoping to be rescued by
another motorist. Miraculously, the girl came upon a
hotel. She entered the lobby and told the owner about her
predicament. Realizing that the girl had no place else to
stay, the owner told her that he had a room available and
that the room charge would be $300 per night. The owner
said this knowing that the standard room charge at the
motel was $200 per night. Due to the inclement weather,
the girl was forced to stay for two nights.
How much are the girl’s parents liable to pay the hotel
owner for their daughter’s two-night stay?
(A) Nothing, because parents are not liable for
necessaries furnished to a minor.
(B) Nothing, because contracts of minors are voidable.
(C) $400, which is the reasonable rate of
furnishing necessaries to their daughter.
(D) $600, which is the contract rate of furnishing
necessaries to their daughter.
Question 8
A man purchased a new bike. One day, he rode the new
bike to a local movie theater for the eight o’clock show
and parked his bike out front. As it was a small town,
he felt comfortable leaving his bike on the rack without
locking it. While the man was in the movie theater, the
ticket agent decided to take the bike out for a spin. The
ticket agent rode the bike once around the block and
placed it back in the rack just as the man had left it. As
the ticket agent was placing the bike back in the rack, the
handlebars gently rubbed against the rail. After the movie,
the man retrieved the bike and had no idea that it had been
moved, until he noticed a small scratch on the handlebars.
If the man files suit against the ticket agent, will he prevail?
(A) No, because the man was unaware of the
ticket agent’s use.
(B) No, because there was insufficient damage to
the man’s bike.
(C) Yes, for trespass to a chattel.
(D) Yes, for conversion.
Question 9
A bar manager told one of his bartenders that there
was a new type of home blender on the market that
could handle the ingredients of any drink, as well as the
ingredients to make salsa and other chopped foods. The
bar manager intended to wait in line to buy the blender
at a special sale, and the bartender asked the manager
to pick an additional blender up for the bartender as
well. The bar manager purchased three blenders and
kept one for himself. He sold one to the bartender for
the sale purchase price and gave the second to his sister
as a gift. Two weeks later, the bar manager came across
information on the Internet that the blender manufacturer
was recalling the blenders because the motors could
overheat and could throw sparks, causing a fire. The bar
manager called his sister right away and left a message,
but she didn’t get it in time. Her blender sparked, causing
a fire in her kitchen that burned her right hand and caused
major property damage. The bartender was also burned
by his blender, although he didn’t suffer nearly as much
property damage. The bar manager apologized to the
bartender for not having told him about the recall.
If the sister and the bartender file a strict products
liability action against the bar manager for damages,
what is the likely outcome?
(A) The bartender and the sister will prevail
against the bar manager, because the bar
manager is strictly liable.
(B) The bartender, but not the sister, will prevail
against the bar manager, because the bar manager
failed to warn the bartender about the recall.
(C) Neither the bartender nor the sister will
prevail against the bar manager, because the
bar manager is not a commercial seller.
(D) Neither the bartender nor the sister will
prevail against the bar manager, because the
bar manager did not tamper with the blender.
Diagnostic Assessment
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Question 10
An engineer sued her employer in federal district
court alleging violations of False Claims Act, a federal
statute. The engineer filed her complaint and the
employer timely filed an answer. No other pleadings
were entered in the case. Discovery commenced.
One month after the employer’s answer was filed, the
engineer filed a written demand for a trial by jury.
Which of the following statements is correct?
(A) Because more than 14 days passed between the
filing of the last pleading and demand for trial
by jury, the case will not be tried by a jury.
(B) Upon proper motion, the court has the discretion
to grant relief and order a trial by jury.
(C) The Seventh Amendment requires that the
case be tried by a jury, regardless of the point
at which the demand is filed.
(D) The Sixth and Seventh Amendments require
that the case be tried by a jury, regardless of
the point at which the demand is filed.
Question 11
A married couple was waiting on line for tickets to
a movie. A man waiting ahead of them was quite
overweight. The husband made several comments
to his wife about how fat the man was, and the man
overheard. He confronted the husband and demanded
an apology. The husband refused. The man again
demanded an apology and threatened to punch the wife
if he did not get one. To show he was serious, the man
pushed the wife and waved a closed fist in her face.
Fearing that his wife would suffer a heart attack from
shock, the husband reached down, grabbed a nearby
pipe lying on the ground, and beat the man in the head
with it repeatedly. The man died from head injuries.
If the husband is prosecuted for criminal homicide,
should the court instruct the jury on voluntary
manslaughter in addition to murder?
(A) No, because the husband clearly intended to
kill or at least seriously injure the man.
(B) No, because the husband was the initial
wrongdoer, having provoked the man with
his rude comments.
(C) Yes, because the jury could reasonably
conclude that the husband lacked the intent
to kill or injure and was merely engaged in
reckless conduct.
(D) Yes, because the jury could find that the husband
unreasonably, but honestly, believed that deadly
force was needed to defend his wife.
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Question 12
A woman loved to watch her neighborhood football
games. According to the neighborhood tradition,
whenever a player scored a touchdown, the player would
immediately rush full-speed at one of the fans on the
sidelines and jokingly tackle him or her. One Saturday,
as the woman and her neighbors are enjoying a game,
a player scores a touchdown. He immediately looks for
his little brother on the sidelines, intending to tackle
him. The woman, standing directly behind the player’s
brother, sees the player looking in their direction.
Exhilarated by the play, she jokingly calls out, “Come
on, big boy!” The player charges at her. Realizing that
she has become the player’s target, the woman ducks,
but the player succeeds in tackling her. The woman falls
to the ground and sustains a concussion.
If the woman now brings suit against the player for her
injuries, will she recover?
(A) No, because injuries sustained during sporting
events are foreseeable.
(B) No, because the woman consented to the
player’s contact.
(C) Yes, because the woman did not expressly
consent to the contact.
(D) Yes, because the woman suffered a harmful
and offensive contact.
Question 13
A tenant rented an apartment and entered into a written
lease agreement for a term of six years with a monthly
rental fee of $1,500. The tenant resided in the apartment
for three years. Then, the tenant drafted a written
agreement in which he transferred his entire interest
for two years to a friend. According to the written
instrument, the friend was obligated to directly pay the
tenant $2,000 per month for the term of his occupancy.
For the next six months, the friend paid the tenant
$2,000 each month, of which the tenant paid the
landlord $1,500. During the seventh and eighth
months, the friend continued to make his $2,000
payments to the tenant. However, the tenant did not
make any rental payments to the landlord for those two
months. After not receiving his rental payments, the
landlord went to the apartment and found the friend in
possession. The landlord then sued the friend for the
two months’ rent that had not been paid.
For whom should the court enter a judgment?
(A) The friend, because he made his monthly
rental payments to the tenant.
(B) The friend, because as a subtenant he is not
obligated to the landlord.
(C) The landlord, because the tenant transferred
his entire interest.
(D) The landlord, because there is privity of
contract between the landlord and the friend.
Diagnostic Assessment
8
Question 14
An elderly man’s house was frequently the target of
vandalism by local teenagers. Tired of having to repair
the damage they did to his home, the man decided to
lie in wait for teenagers on the night before Halloween,
when they often vandalized his home. True to form,
teenagers in costume appeared and began spray-painting
the man’s house. Wanting to scare the teenagers, the man
fired a shotgun over their heads. Some of the shotgun
pellets went through the top of a tall hat one of the
teenagers, who was dressed as Abraham Lincoln, but
the pellets did not harm him. The man was subsequently
arrested.
What, if any, crime did the man commit?
(A) Mayhem.
(B) Battery.
(C) Attempted murder, because a shotgun is an
inherently dangerous weapon.
(D) No crime.
Question 15
On Monday, three men agreed to rob a convenience
store that Friday morning. The next day, one of the men,
without notifying the other two, stole a truck to be used
as the getaway vehicle in the robbery. The day after that,
the man was arrested by the police for parole violations
and was placed in jail without bail. Nevertheless, the
other two men proceeded with their plan to rob the
store. One of the other men, however, was a police
informant who notified the police of the impending
robbery. The police waited at the store and arrested the
remaining man as he entered the store. Conspiracy in this
jurisdiction requires proof of an overt act in addition to
an agreement.
Of which of the following crimes may the man who stole
the truck properly be convicted?
(A) Theft of the truck only.
(B) Theft and either conspiracy to commit robbery
or attempted robbery, but not both.
(C) Theft and attempted robbery only.
(D) Theft, conspiracy to commit robbery, and
attempted robbery.
Question 16
An uncle wanted his nephew to quit smoking because
smoking is unhealthy. The uncle attempted to convince the
nephew to quit, but the nephew would not agree. The uncle
then offered to pay the nephew $5,000 if the nephew quit
smoking for one year. It was the uncle’s hope that if he could
get the nephew to stop smoking for one year, he would not
pick up the unhealthy habit again. The nephew agreed and
signed a contract to that effect with the uncle. The nephew
quit smoking for one year, but afterwards began smoking
again. He then asked for the $5,000, but the uncle refused to
pay. The nephew subsequently sues the uncle.
What is the likely outcome of the case?
(A) The uncle is liable, because there was a
bargained-for exchange.
(B) The uncle is liable, because the nephew relied
to his detriment on the uncle’s promise.
(C) The uncle is not liable, because the
consideration was inadequate.
(D) The uncle is not liable, because the uncle did
not receive a benefit and the nephew did not
suffer a detriment.
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Question 17
A chef had equipped his home kitchen with the latest
cutting-edge appliances, including a brand-new
cappuccino machine. One night, when the chef was at
work and the nanny was at the chef’s home with the
chef’s two small children, the nanny decided to use
the cappuccino machine. The nanny knew that the chef
preferred that she not tamper with his equipment other
than to use the microwave oven to reheat the dinners
he prepared every day for his children. However, it was
a chilly night and the nanny was relatively certain that
she knew how to operate the machine. The nanny was
unaware, however, that the machine had been recalled
by the manufacturer for a design defect that caused
overheating of one of the handles and a risk of severe
burn. The chef knew of the recall but had not thought to
warn the nanny. In using the cappuccino machine, the
nanny burned her hand on the overheated handle and
had to seek medical treatment.
If the nanny files a strict products liability action against
the manufacturer of the cappuccino machine, is she
likely to prevail?
(A) Yes, if the nanny demonstrates that the defect was the
result of unreasonable design by the manufacturer.
(B) Yes, because the cappuccino machine was
defective when it left the manufacturer.
(C) No, because the nanny was not supposed to use
the chef’s equipment.
(D) No, because the nanny was not the purchaser of
the cappuccino machine.
Question 18
An Ohio corporation with its principal place of business
in Toledo sells appliances through independent dealers.
Each dealer has a separate agreement, which they
respectively executed with the corporation at the time
they were appointed to be dealers. Their agreements
entitle them to sell all appliances manufactured by the
corporation in their areas. This year, the corporation has
produced a new blender that represents a great advance
in blender technology. The corporation decides that
it will not sell this blender to its existing dealers but,
instead, will enter into agreements with new dealers to
handle the blender line. Twelve dealers in Indiana jointly
file actions for breach of contract, and an injunction
against the corporation in the appropriate U.S. District
Court. The corporation moves to dismiss the case for
lack of subject matter jurisdiction, and alternatively
moves to sever the actions.
How should the court rule on the corporation’s motions?
(A) The court should grant the corporation’s motion
to sever, because the claims arise out of the
same transaction or series of transactions, and
there are common issues of law and fact to all
of the claims.
(B) The court should grant the corporation’s motion
to dismiss, because the plaintiffs are not diverse.
(C) The court should deny the corporation’s motion
to sever, because plaintiffs are compelled to join
their actions if their claims arise out of the same
transaction or series of transactions.
(D) The court should deny the corporation’s motion
to dismiss, because the diversity requirement
has been met in this case.
Diagnostic Assessment
10
Question 19
An artist and a firefighter were neighbors who had been
feuding for some time. One afternoon, the artist found
some trash in her yard next to the fence that separated
her and the firefighter’s properties. Convinced that
the firefighter had deposited the trash on her property,
the artist picked up the trash and threw it onto the
firefighter’s property. The firefighter saw the artist
throw the trash onto her property and immediately
ran up to the artist with a sledgehammer in his hand,
got within inches of the artist’s face, and shouted, “If
you ever do something like that again I’ll break your
leg!” The firefighter then stormed off, leaving the
artist shaken by the encounter. The artist brought an
action against the firefighter for infliction of emotional
distress.
What is the likely outcome of the case?
(A) Judgment for the firefighter, because he did
not threaten any immediate physical harm.
(B) Judgment for the firefighter, as long as the
artist experienced no physical harm as a result
of the firefighter’s actions.
(C) Judgment for the artist, if the firefighter
intended that the artist experience
apprehension of a harmful physical contact.
(D) Judgment for the artist, if she suffered
severe emotional distress as a result of the
firefighter’s actions.
Question 20
A handyman owned a two-story hardware store on the
main street of town. The hardware store was located
on a corner lot, next to a retail building owned by a
lawyer. At the rear of the hardware store was a narrow
alley, wide enough to accommodate a car or small
truck. The handyman gave the lawyer oral permission
to use the alley behind the handyman’s store to access
the narrow space behind the lawyer’s building, where
the lawyer parks his truck every weekday. The lawyer
subsequently sold his building to a dentist, who
insisted on having an off-street parking space. At the
time of the conveyance, the lawyer negotiated with
the handyman and obtained an express easement in
favor of the retail building for a right-of-way through
the alley. The dentist took over the retail building
and parked behind the building on weekdays and
Saturdays. One day, however, the dentist’s vehicle was
vandalized, and he began parking in a secured lot.
Five years later, the dentist sold the building to a
pharmacy conglomerate that simultaneously also
purchased the hardware store from the handyman,
intending to renovate the two buildings into one
large retail space. Almost immediately thereafter,
the pharmacy conglomerate found a more attractive
location at which to carry out its plans, and it sold the
hardware store and retail building to two buyers. The
new owner of the hardware store placed a dumpster
in the alleyway, thereby blocking access to the space
behind the retail building. The new owner of the retail
building now seeks to park his car in this space.
If the new owner of the retail building seeks a court order
requiring the new owner of the hardware store to remove
the dumpster, what is the likely outcome of the case?
(A) The new owner of the retail building will prevail,
because an easement by prescription exists.
(B) The new owner of the retail building will prevail,
because the easement has not been abandoned.
(C) The new owner of the hardware store will
prevail, because the easement merged with
the fee when the pharmacy conglomerate
purchased both properties.
(D) The new owner of the hardware store will
prevail, because the new owner of the retail
building is estopped from asserting rights
under the easement.
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Question 21
While hunting on public grounds, an outdoorsman
crossed over onto an adjoining private property.
The outdoorsman came upon a log cabin, which had
obviously been abandoned some time ago and was in
great disrepair. On inspection, the outdoorsman found
the cabin to be generally well built, except that the lock
on the front door was broken, the windows needed
to be replaced, and shrubs and bushes had nearly
overgrown the front porch. The outdoorsman cleared
out the overgrown bushes from the cabin, replaced the
lock on the front door, and installed new windows.
For the next year, the outdoorsman stayed in the
cabin nearly every weekend. After the first year, the
outdoorsman moved into the cabin. For the next 10
years, he lived in the cabin nine months out of the
year, leaving only during the harsh winter months,
as the cabin had no heating system apart from a
small fireplace, and snow and ice in the area made
it unsuitable for hunting or camping. During the
winter, the outdoorsman locked up the cabin and left
it unattended. No one other than the outdoorsman
ever occupied the cabin during that time period.
The outdoorsman had no word from the owner until
almost 15 years after his initial occupation, when one
Saturday morning, a man claiming to be the owner
showed up, pounding on the door and demanding that
the outdoorsman vacate the premises immediately.
The applicable statutory period for acquiring title by
adverse possession is seven years.
If the outdoorsman files an action to quiet title to the
cabin, will he prevail?
(A) Yes, because the outdoorsman was the only
person to occupy the cabin for a period of
more than ten years, and he held himself out
to be the owner.
(B) Yes, because the outdoorsman made
substantial improvements to the cabin.
(C) No, because the outdoorsman did not
possess the cabin continuously for the
statutory time period.
(D) No, because the outdoorsman took possession
of the cabin in bad faith, knowing that it
belonged to someone else, but intending to
claim it nonetheless.
Question 22
A buyer contracted in writing to purchase 200 Model-Y
widgets from a seller for $100 each. The contract
provided that the seller would deliver the widgets to
the buyer on or before June 1. The buyer and the seller
are both merchants. After entering into the agreement,
the seller discovered that the Model-Y widgets were
sold out. However, the seller did have a large quantity
of Model-Z widgets in storage. The Model-Z widget
was newer and more durable than the older Model-Y
widget. Both parties were aware that the retail price
for Model-Z widgets was $120 per unit. The seller
delivered 200 Model-Z widgets to the buyer and noted
that they were sent as an accommodation. These units
were received by the buyer on June 1.
If the buyer accepts the shipment of Model-Z widgets,
what will he be obligated to pay the seller?
(A) The contract price for the Model-Y widgets.
(B) The retail price for the Model-Z widgets.
(C) The fair market value for the Model-Z widgets.
(D) The reasonable price for the Model-Z widgets.
Diagnostic Assessment
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Question 23
An apparel company ran a wholesale business selling
graphic T-shirts for skateboarders. Most of its products
were inexpensive T-shirts that resembled pricey
T-shirts sold in many specialty skateboard shops,
although they also sold licensed, branded T-shirts
from the popular skateboarding companies. In most
cases, the only way to tell the difference between
the inexpensive T-shirts and the original designs that
inspired them was to launder them to see whether they
maintained their size and bright colors.
A new skateboarding shop, wishing to order the authentic
skateboarding branded T-shirts for its discriminating
teen-aged customers, placed an order for 100 assorted
graphically designed T-shirts in all colors and sizes.
The apparel company mistakenly shipped 100 of the
inexpensive T-shirts, which looked the same, but were
not the licensed, branded T-shirts expected by the
skateboarding shop owner. When the skateboarding shop
discovered the mistake on the day of delivery, it demanded
that the licensed, branded T-shirts it had ordered be sent
instead. The apparel company refused, because it had just
received an order from a high-end skateboarding shop in a
resort town that would pay a premium price for all of the
authentic licensed, branded skateboarding T-shirts that the
apparel company had in stock.
In a breach of contract action by the skateboarding
shop against the apparel company, who will prevail?
(A) The apparel company, because there was no
meeting of the minds to form the contract.
(B) The apparel company, because its shipment
was a mere counteroffer, which the
skateboarding shop rejected upon delivery.
(C) The skateboarding shop, because it is the
master of the offer, not the seller.
(D) The skateboarding shop, because the shipment
of the wrong T-shirts was both an acceptance
and a breach by the seller.
Question 24
A buyer contracted with a seller to purchase Bill’s
SuperSports Bar, a popular establishment in a highvisibility
commercial area. The seller sent the buyer a
document via overnight express mail, which stated: “I,
Seller, agree to sell Bill’s SuperSports Bar to Buyer for
$850,000. Check for 10% down received, in escrow.
Signed, Seller. Date: Nov. 15, 1999.” The document
was also signed by the buyer directly below the seller’s
signature. The buyer responded by letter in which he
outlined the time and place of the closing: Jan. 3, 2000,
at 10 a.m. at the Shield Law Offices located in an office
complex down the street from the SuperSports Bar.
On the appointed day, both parties duly appeared to pass
title to the property. The seller produced a deed conveying
Bill’s SuperSports Bar to the seller from another owner
dated Dec. 28, 1999; the buyer learned that the other
owner, in fact, owned Bill’s SuperSports Bar on Nov. 15,
1999. The buyer refused to perform the contract, arguing
that the seller cannot give good title to the property.
In a suit by the seller for specific performance, what is
the likely outcome?
(A) The buyer will prevail, because he did not
contract with the other owner to buy the
SuperSports Bar.
(B) The buyer will prevail, because the seller did
not hold marketable title on Nov. 15, 1999.
(C) The seller will prevail, because he fulfilled
the terms of the agreement by delivering
marketable title on January 3.
(D) The seller will prevail, because the buyer
knew that another owner owned the
SuperSports Bar at the time the parties
entered the contract.
13
Question 25
After he was turned down for a promotion, a man
decided to murder his boss. The man purchased a gun
for this purpose and then invited his boss to his house
for dinner. However, the day before the boss arrived
at the man’s house, the man changed his mind and left
the gun under his mattress. The man was subsequently
charged with attempted murder.
Should the man be convicted or acquitted?
(A) The man should be acquitted, because the
boss was unaware of the man’s motives.
(B) The man should be acquitted, because his actions
were not sufficient to constitute an attempt.
(C) The man should be convicted, because a
person is presumed to intend the natural and
probable consequences of his acts.
(D) The man should be convicted, because he
purchased the gun with the intent to kill his boss.
Question 26
A landowner conveyed a large estate “to my daughter,
her heirs and assigns, on condition that she produce an
heir with her husband, but if she dies without such an
heir, then to my personal assistant.” Five years after
the landowner conveyed the estate to her daughter, the
personal assistant and the landowner got into a serious
dispute, which resulted in the personal assistant’s
decision to set up her own rival business. At the same
time, the landowner’s daughter and her husband
divorced. Three years later, the husband died of a
stroke brought on by undiagnosed high blood pressure.
The daughter remarried to a new business protege of
her father. The estate was a heavily forested property
with a number of stands of maple trees. The daughter
and her new husband walked the property and marked
stands to be harvested for wood. The daughter then
exploited the timber on the estate for a large profit.
Was the daughter’s act of exploiting the timber for
profit permissible?
(A) No, as affirmative waste, because the daughter
was only a life tenant of the estate.
(B) No, as trespass, because the personal assistant
owns the estate in fee simple absolute.
(C) No, because the daughter has not produced an
heir with her first husband.
(D) Yes, because the daughter holds in fee simple.
Question 27
A safety inspector was injured when the conveyor
belt he was inspecting malfunctioned. The belt was
located in a factory owned by a Utah corporation
with its principle place of business and headquarters
located in Washington. The inspector brought a cause
of action against the corporation in Federal District
Court in Washington. Service of process was sent to
the residence of the corporation’s president. Service
was accepted by the president’s 18 year old son. The
corporation filed two motions. The first motion, made
one week after process was served, was made under
Rule 12(b)(1) for lack of subject matter jurisdiction.
The second motion, filed a day later, was brought under
Rule 12(b)(5) for insufficient service of process. The
court ruled that the corporation had waived its right to
complain about service of process.
Was the court’s action proper?
(A) No, because service of process must be made
to the agent for service of process.
(B) No, because the motion was made within 20
days of service of process.
(C) Yes, because the son was 18 years old and had
the capacity to accept service of process.
(D) Yes, because the corporation waived its right
to object to service of process.
Diagnostic Assessment
14
Question 28
Five years ago, an architect, a citizen of State X, designed
a building for a State Y corporation which had its
principal place of business in State Y. Six months ago, the
building’s mezzanine collapsed in causing damages in
excess of $100,000. The corporation has filed an action
against the architect in the U.S. District Court in State X
alleging that damages resulted from the negligent design
of the building. The architect filed an answer denying
negligence and asserting as an affirmative defense that
the statute of limitations for negligence is two years.
The architect filed a motion for summary judgment
accompanied by an affidavit stating that the building had
been constructed six years ago. Although the statute of
limitations on negligence claims in State X is two years,
the architect’s motion was denied.
Was the architect’s motion for summary judgment
properly denied?
(A) Yes, because the accident occurred within the
past 2 years.
(B) Yes, because the architect has the burden of proof
with respect to its statute of limitations defense.
(C) No, because the corporation failed to file a
responsive affidavit.
(D) No, because the building was constructed six
years ago.
Question 29
The annual month-long wine festival was in full force
in the small coastal community in which a 14-yearold
teenager lived. During the days, celebrants winetasted,
shopped, and ate various delicacies at the small
wineries that lined the community’s ten-block Main
Street. Evenings brought more drinking, along with
dancing and eating until midnight each night. To keep
Main Street clear for maintenance vehicles to prepare
the festival area for the next day’s activities, the coastal
community had enacted a ban on motorized vehicles
between the hours of 2:00 a.m. and 8:00 a.m.
One morning during the festival at 7:30 a.m., two
women had just finished breakfast at a cafe on Main
Street when they walked out onto the street to enjoy the
morning sun. Just at that moment, the teenager rounded
the corner onto Main Street riding a motorized bicycle.
The teenager was running late completing his morning
paper route. The motorized bicycle the teenager was
riding had a top speed of only 15 miles per hour, and the
teenager would have been able to stop in time except
that the bicycle was out of brake fluid. The teenager had
owned the bicycle for two years but had never examined
the brakes. The brakes failed and the teenager hit one of
the women, knocking her unconscious.
If the woman files suit against the teenager, what is the
probable outcome?
(A) The woman will prevail, because the teenager
was negligent per se.
(B) The woman will prevail, if a reasonably
prudent child of the same age and experience
would have known the necessity to service the
brakes of the motorized bicycle.
(C) The teenager will prevail, because the
woman’s injury was not the type of harm the
statute was designed to prevent.
(D) The teenager will prevail, because a
manufacturing defect was the cause of the
woman’s injury.
15
Question 30
An eighty-year-old farmer had a successful cattle farm.
The farmer had little family and wanted to ensure that
the farm would continue to be operated by someone
who appreciated the farm’s history and enjoyed working
with cattle. The farmer had only one son who was 45
years old and had no children yet. One of the farmer’s
employees had started working on the farm during
high school. The employee had shown a great interest
in cattle and was a loyal and hardworking employee.
That employee was in his early twenties. To ensure that
the farm would continue operating after his death, the
farmer included a clause in his will that provided that
upon the farmer’s death, the farm would go to his son
for life, and then upon the son’s death, the farm would
pass to the son’s children. The will further provided that
if the son had no children at the time of his death, then
the farm would pass to the valued employee. The farmer
died two years later, at which time his son still had no
children. The employee was still working on the farm.
Does the employee have a remainder interest in the farm?
(A) No, the employee has a fee simple interest
subject to a condition subsequent.
(B) No, the employee has an executory interest.
(C) Yes, the employee has a contingent
remainder interest.
(D) Yes, the employee has a vested remainder
interest subject to open.
Question 31
A company was engaged in transporting liquids. As is
normal, the company was hired to deliver a container
of highly flammable chemicals to a local plant. The
company required all of its employees to engage in
extensive training. On the day of the delivery, the
driver noticed a stalled car ahead of him in the right
lane. There was no way for the driver to avoid the car.
As the driver tried to maneuver around the car, some
of the chemicals spilled out of the container and ended
up on the car. The driver, who had a cigarette in his
mouth, quickly caught fire and later died. The driver’s
estate brings a strict liability action.
Will the company be liable for the injuries caused
to the driver?
(A) No, because the truck driver and the company
exercised due care.
(B) No, because the car’s driver should have
removed the car from the road.
(C) Yes, because transporting flammable liquid is
an abnormally dangerous activity.
(D) Yes, because transporting flammable liquid
is illegal.
Diagnostic Assessment
16
Question 32
A man went to see a play at the local theater operated by
a local theater company. The man bought a ticket which
assigned him to sit in Seat 24 in Row 30. When the
man handed his ticket to the usher the usher glanced at
the ticket and lead the man to what he believed was the
appropriate seat. However, the usher mistakenly took the
man to Seat 23 in Row 30. The man occupied Seat 23 in
Row 30, failing to notice it was not the seat listed on his
ticket. During the second act of the play the seat which
the man was occupying suddenly collapsed, causing the
man several injuries. A subsequent investigation failed to
determine why the seat collapsed.
If the man brings an action for negligence against the
theater company, which of the following is the most
accurate statement?
(A) In order to prove breach of due care, the man
must show that the usher acted unreasonably
in leading him to the wrong seat.
(B) Under the doctrine of res ipsa loquitur, the fact
that the seat collapsed is sufficient to establish that
the theater company breached its duty of care.
(C) In order to prove that the theater company
breached its duty of care, the man must
demonstrate why the seat collapsed.
(D) Because the investigation failed to determine
why the seat collapsed, the man cannot
prevail in a negligence action against the
theater company.
Question 33
A graphic designer, who was a citizen of New York,
filed an action in the U.S District Court in Brooklyn
against an Oklahoma corporation and a New Jersey
corporation, alleging that they infringed his trademarks
in violation of the Lanham Act, a federal statute,
and that his actual damages from the conduct of the
defendants was $73,000. The designer further alleged
in a second cause of action that the New Jersey
corporation owes him $1,000 for graphic design work.
Which of the following is true?
(A) The action should be dismissed by the
District Court, because the value of the
aggregated claims does not meet the amount
in controversy requirement.
(B) The District Court may exercise pendent
jurisdiction over the second cause of action,
but only if it arises from a common nucleus of
operative facts with the first cause of action.
(C) The federal court has subject matter jurisdiction,
because there is complete diversity of citizenship
between all plaintiffs and defendants.
(D) The federal court lacks subject matter
jurisdiction, because Lanham Act violations
must be tried in the state court where such
violations allegedly occurred.
Question 34
A man conveyed his property via quitclaim deed to his
sister. Two months later, his sister was evicted from
the property by a neighbor with superior title. The
neighbor’s interest was unknown to the man, because
this interest had been concealed by the person who
sold the property to the man. The sister now brings suit
against the man for damages.
Should the sister prevail in her action for damages?
(A) Yes, because the eviction violates the
covenant against encumbrances.
(B) Yes, because the eviction violates the
covenant of quiet enjoyment.
(C) No, because the deed by which the man
conveyed the property to the sister was not a
special warranty deed.
(D) No, because the man conveyed the property to
the sister via quitclaim deed.
17
Question 35
A pedestrian sued a driver in state court in a state that
follows the Federal Rules of Civil Procedure. The pedestrian
seeks to recover for negligence for personal injuries
resulting from being hit by a car driven by the driver. The
driver simply denied the pedestrian’s allegations. The
pedestrian demanded trial by jury. Along with the forms for
a general verdict, the court submitted written interrogatories
to the jury. In answering these interrogatories, the
jury found the following: that the driver had hit the
pedestrian with his car; that the driver negligently hit the
pedestrian; that the driver caused the pedestrian damages
as alleged in the complaint. The jury also returned a
judgment against the pedestrian. The judge then ordered
a new trial. The pedestrian then filed a stipulation of
voluntary dismissal, which was also signed by the driver.
Which of the following statements is correct?
(A) The pedestrian may later bring an action
against the driver on the same facts.
(B) Where the jury’s answers to interrogatories
conflict with a general verdict, the judge must
enter a verdict in conformity with such answers.
(C) Where a jury’s answers to interrogatories conflict
with a general verdict, the judge must either enter
the general verdict or order a new trial.
(D) Because the pedestrian filed a stipulation
of voluntary dismissal, he cannot initiate a
subsequently similar action against the driver
in the future.
Question 36
During trial, the plaintiff demanded that the defendant
produce certain documents regarding transactions that
had occurred at the plaintiff’s brokerage. The defendant
claimed the documents were protected by the attorneyclient
privilege. The court ordered the documents to be
produced. The defendant immediately filed an appeal
in federal appeals court challenging the court’s order
regarding the documents.
May the defendant do so?
(A) No, because this is an interlocutory order.
(B) No, because there is no indication the judge
abused her discretion.
(C) Yes, because without an appeal, the
documents will be revealed and privilege will
be lost forever.
(D) Yes, because this is a final adjudication.
Question 37
On February 1, a woman contracted with a famous
landscaper to drastically change the sprawling front
lawn of her mansion. The woman had long admired
the landscaper’s work. The landscaper promised to
complete the work before April 30, the date of the
woman’s annual spring party.
On March 1, the woman left for a month’s vacation.
After beginning the work on the woman’s lawn,
the landscaper became increasingly anxious about
finishing other prior commitments and assigned the
contract to a local lawn care professional. When the
woman returned, she was horrified to find the lawn care
professional shaping the hedges on the front lawn.
The woman contacted the landscaper, and he informed her
of the assignment to the lawn care professional and told
her that he was no longer obligated under their original
contract. Although the landscaping project was coming
along nicely, the woman fired the landscaper anyway.
If the woman asserts a claim against the landscaper
based on breach of contract, what effect will the fact
that the landscaper assigned the contract to the lawn
care professional have?
(A) It will relieve the landscaper of liability,
because the contract was assignable.
(B) It will relieve the landscaper of liability,
because the landscaping project was
satisfactory to the woman thus far, and she
suffered no damages.
(C) It will not relieve the landscaper of liability,
because a personal services contract of this
nature is non-delegable.
(D) It will not relieve the landscaper of liability,
because the landscaper did not inform the
woman of the assignment in advance.
Diagnostic Assessment
18
Question 38
A grantor held record title to a ten-acre parcel of
land. The grantor conveyed the land to a grantee by
warranty deed, which the grantee failed to record.
The grantee took possession of the land and built a
fence around the property. He also installed a sign at
the entrance to the property which read: “Welcome
to our little piece of heaven.” The sign included the
grantee’s full name, and the purchase date.
The following year, the grantor executed a special
warranty deed purporting to convey the same ten-acre
parcel of land to a developer for valuable consideration.
This deed was promptly recorded by the developer.
Before this transaction was consummated, the developer
inspected the property and was aware of the grantee’s
ownership claim. When the developer inquired about the
grantee, the grantor truthfully told him that the grantee
had never recorded the earlier deed. Thereafter, the
developer conducted his title search and verified that the
deed from the grantor to the grantee was unrecorded.
Two weeks after the developer’s recordation, the grantee
learned of the grantor’s conveyance to the developer and
then recorded his deed.
This jurisdiction has the following recording statute
in effect:
“An unrecorded conveyance or other instrument is
invalid as against a subsequent bona fide purchaser for
value, without notice, and who records first.”
In a suit between the grantee and the developer to quiet
title to the land, who will prevail?
(A) The developer, because in accordance with the
doctrine of first-in-time, first-in-right, his deed
was recorded earlier in time.
(B) The developer, because as a subsequent bona
fide purchaser, he is given priority under the
recording statute.
(C) The grantee, because his physical possession
and fencing of the property provided notice of
his ownership claim.
(D) The grantee, because the grantor’s conveyance
to the grantee preceded the purported property
transfer to the developer.
Question 39
A young woman felt crushed after her boyfriend of
two years broke up with her. Feeling despondent, she
consumed several bottles of wine, and then decided it
would be a good idea to fry up some bacon. Once she
got the bacon frying, however, the woman lost interest
in the food and sat on her couch to watch television.
Within minutes, the woman passed out, leaving her
food burning on the stove. Before long, the fire alarm
went off, and the apartment filled with smoke.
Luckily, the woman’s neighbor called 911. Within a
few minutes of the call, the fire department arrived at
the woman’s house. However, because the smoke was
so thick inside the house, one of the firemen suffered
smoke inhalation and had to be taken to the hospital.
If the fireman asserts a claim against the woman to
recover for his injuries, will he prevail?
(A) No, because the woman did not intend to
harm the fireman.
(B) No, because the firefighter’s rule treats
emergency personnel as licensees.
(C) Yes, because the woman intentionally placed
herself in a position of peril.
(D) Yes, because the fireman succeeded in saving
the woman’s life.
19
Question 40
A woman was hit by a train and injured when she
drove through a railroad crossing. She sued the train
company in federal court, claiming that the company
was negligent because its safety barriers failed to come
down and block passage through the crossing as the
train approached. At the jury trial, the woman produced
only one eyewitness, who said the barriers were not
down when the plaintiff approached the crossing.
During cross examination, the witness admitted that
she had very poor vision and could only see about 10
feet in front of her. At the time of the accident, the
witness was standing 200 feet away at an ATM, and her
view was obstructed by a large stand of pine trees. The
woman then rested her case. The company had several
witnesses from the nearby train station who would
testify that the barriers were in fact down.
What should the defendant do at this point?
(A) Move for summary judgment.
(B) Move for judgment as a matter of law.
(C) Counter the plaintiff’s contentions with its
own witnesses, who were all standing at the
nearby train station and would testify that the
barriers were down.
(D) Request dismissal.
Question 41
A man devised a 50-acre tract of land to his friend for life,
and then to the man’s son. The friend wanted to turn the
weekend cabin on the property into a year-round home.
To do so, he took out a construction mortgage with a bank
to pay for the remodeling. The bank properly recorded the
mortgage. After the cabin had been improved, but before
the mortgage had been paid off, the friend died.
If the bank and the man’s son both claim ownership of
the property, how should the court rule?
(A) In favor of the son, because a mortgage on a
life estate is void after the termination of the
life estate.
(B) In favor of the son, because the friend was
prohibited from mortgaging the property.
(C) In favor of the bank, because it properly
recorded the mortgage.
(D) In favor of the bank, because recording
statutes only affect bona fide purchasers.
Question 42
A disgruntled employee decided to kill his boss. The
employee planned to hide near his boss’s house and
shoot the boss when he arrived home from work. The
employee positioned himself behind a small grove
of trees about 500 yards away from the boss’s home.
Shortly thereafter, the boss pulled into his driveway.
As the boss exited his vehicle, the employee fired a
single shot from his rifle, but the shot did not reach the
boss. A neighbor heard the gunfire, however, and called
the police, who later arrested the employee as he was
fleeing the scene with his rifle. At the employee’s trial
for attempted murder, it was conceded, following the
testimony by a ballistics expert, that it would have been
impossible for the employee to hit his boss from that
distance with the rifle he had used.
Is the employee guilty of attempted murder?
(A) No, because at that distance he lacked the
requisite intent to kill his boss.
(B) No, because it was legally impossible for the
employee to kill the boss from that distance.
(C) Yes, because it was merely factually
impossible for the employee to kill the boss
from that distance.
(D) Yes, because the employee’s actions
were premeditated.
Question 43
An elderly man who lived by himself started
repainting his house. Because the elderly man was
having a difficult time with the project, his son hired a
contractor to do the job. Their contract provided that
the contractor would receive payment after completion
of the work. When the contractor was halfway done
with the job, the elderly man died.
Which of the following is correct?
(A) The contract is discharged, and the contractor
will receive no payments, because he did not
complete the work.
(B) The contract is discharged, but the contractor
will receive payment for work completed.
(C) The contract is not discharged, but the
contractor must receive half of the payment
before continuing work.
(D) The contract is not discharged, and the
contractor must complete the repainting project.
Diagnostic Assessment
20
Question 44
On January 1, a seller received an order in the
mail from a buyer requesting shipment of its latest
computer at the seller’s current catalog price. The
order specified that the seller could accept the offer
either by shipping the goods or promptly notifying
the buyer of acceptance. On January 2, the seller
mailed to the buyer a letter accepting the order and
assuring the buyer that the computer would be shipped
on January 3. On January 3, the seller realized that
he was out of that computer model and shipped to
the buyer a different computer model and a notice of
accommodation. On January 5, the buyer received the
seller’s January 2 letter and the different computer
model, but not the notice of accommodation.
Which of the following best states the parties’ legal
rights and duties?
(A) The buyer can either accept or reject the
different computer model and in either event can
recover damages, if any, for breach of contract.
(B) The buyer can either accept or reject the different
computer model, but if he rejects it, he will
thereby waive any remedy for breach of contract.
(C) The seller’s prompt shipment of nonconforming
goods constituted an acceptance of the buyer’s
offer, thereby creating a contract for sale of the
replacement computer model.
(D) The seller’s notice of accommodation was
timely mailed and his shipment of the different
computer model constituted a counteroffer.
Question 45
A woman was sitting on a bench in the park reading a
book. A father and his six-year-old daughter sat down
on the other end of the park bench. A bee suddenly
stung the little girl, who was very allergic to bees. The
father panicked because he could not find the bee sting
antidote, EpiPen, in the bag the mother had packed. The
woman ran to a nearby playground and asked if anyone
there had an EpiPen. A nanny told him that she did have
one but that she needed it in case the little boy she cared
for was stung by a bee. The woman explained that a
little girl had just been stung and could go into shock
and die without a shot soon. The nanny refused to hand
over the EpiPen, and the woman shoved the nanny to
the ground, grabbed the EpiPen from the nanny’s diaper
bag, and injected the little girl, saving her life.
Should a jury convict the woman of battery?
(A) Yes, because the woman was not related to the
little girl.
(B) Yes, because she intentionally applied
unlawful force to the nanny’s person.
(C) No, because the nanny, as a care-giver, owes
a special duty to others and her inaction
prevents her recovery.
(D) No, because the woman reasonably believed
that shoving the nanny was necessary to save
the little girl’s life.
21
Question 46
A homeowner owned a plot of land that he inherited
from his mother. Both the homeowner and his neighbor
often walked along a ten-foot strip of land on the edge
of the homeowner’s land to get to the nearby lake. The
neighbor frequently took this route to the lake because
otherwise he would have had to walk around the
homeowner’s property. For 23 continuous years, this
strip of land was used by both the homeowner and the
neighbor. The homeowner knew of, but did not consent
to, the neighbor’s use. Recently, the homeowner
decided to build a fence across his property in order
to prevent anyone else from using the strip to get to
the lake. The statutory period for prescription in the
jurisdiction is 20 years. The neighbor filed suit to
enforce his right of access to the easement.
Should the neighbor prevail?
(A) Yes, because the neighbor used the strip of
land without the homeowner’s permission.
(B) Yes, because the neighbor has acquired an
easement by prescription.
(C) No, because the neighbor’s use of the strip of
land was not exclusive.
(D) No, because the neighbor’s use of the strip of
land was not reasonably necessary.
Question 47
On January 10, a merchant seller mailed a letter to a
merchant buyer offering to sell 500 pairs of designer
jeans for $50,000. The buyer received and read the letter
on January 13. On January 14, after having carefully
considered the terms, the buyer dropped into his mailbox
a letter to the seller accepting the offer. That same
evening, the buyer went to retrieve his mail and found
a second letter from the seller. Too tired to read his mail
that evening, the buyer did not read the second letter until
January 15. The second letter, as it turned out, was a letter
revoking the offer, sent by the seller on January 11.
Since that time, the seller has sold the jeans to someone
else, and the buyer files suit for breach of contract.
For whom should the court rule?
(A) The buyer, because he dispatched his letter
before receiving the revocation.
(B) The buyer, because the seller made a firm offer.
(C) The seller, because he sent his revocation
before the buyer sent his acceptance.
(D) The seller, because the buyer’s failure to read
his mail upon receipt operates as a waiver.
Question 48
A day trader made several jokes about a lawyer’s
physical appearance at a bar. In an attempt to put an
end to the insults, the lawyer walked over to the day
trader, picked up a beer bottle and stared down the
day trader. Unaffected by the lawyer’s display, the day
trader laughed and sat back down.
Is the lawyer liable for assault?
(A) Yes, because the lawyer intended to put the
day trader in fear of a harmful touching.
(B) Yes, because the lawyer picked up a beer
bottle and approached the day trader.
(C) No, because the day trader was not in fear of
harmful contact.
(D) No, because the lawyer did not threaten an
immediate contact.
Diagnostic Assessment
22
Question 49
Late one evening, a teenage boy and his 15-year-old
girlfriend were just leaving the library. As they were
walking through a dimly lit parking lot to get to their
bikes, an adult man, who was visibly intoxicated, emerged
from behind a parked car and ran up to them. The man
knocked the boyfriend to the ground and hit him over
the head with a wrench, causing the boyfriend to lose
consciousness. The man then forced the girlfriend into his
car. Moments later the boyfriend regained consciousness,
and the man fled the scene. The man was subsequently
charged with assault with intent to commit rape.
Which of the following would provide the defendant
with his best defense?
(A) The defendant thought the girl had consented.
(B) The defendant did not intend to rape the girlfriend.
(C) The defendant’s intoxication at the time
negated the required general intent.
(D) It is impossible to prove that the defendant
was the perpetrator because the parking lot
was dimly lit.
Question 50
A man owned a ten-acre parcel of land with a farmhouse
and a barn, which he converted into a three-car garage.
The man entered into a three-year written lease agreement
with a tenant. The lease agreement provided that the
tenant would be entitled to possession of the farmhouse,
barn, and ten-acre parcel. The lease also contained an antiassignment
clause and a provision prohibiting subletting
without the landlord’s written consent.
Which of the following would be a permissible use
of the property?
(A) The tenant allowed his cousin to park his antique
car in the garage for the sum of $50 per month.
(B) During the summer months, the tenant
permitted his friends to swim and operate
motor boats on a lake that was situated on the
land leased from the man.
(C) The tenant allows a neighbor to come onto the
property and remove large amounts of topsoil,
which he uses in his landscaping business.
(D) The tenant allows his cousin to stay at the
house while on college break in exchange for
$25 per week.
Question 51
A female horse won the most competitive horse race in
the United States three years ago. Since her retirement,
her owner has not been able to successfully breed her.
A veterinarian who specializes in new techniques for
breeding animals that have not been able to conceive
approaches the horse owner with an offer to purchase
the female horse, explaining that the veterinarian has
always been a devotee of horse racing and has had a
lifetime ambition to own a winning horse. While the
veterinarian’s explanation is truthful, the veterinarian
does not tell the owner that the veterinarian wishes to
try this technique on the female horse.
The owner sells the female horse to the veterinarian
for $50,000, a generous price for a sterile, retired
racehorse, but far less than the value of the horse if
she could bear offspring. Soon after the veterinarian
purchases the female horse, the veterinarian extracts
eggs from her ovary, fertilizes them in a test tube, and
implants the fertilized eggs in her womb.
When the owner learns that the female horse is
pregnant and the sire is another winner of the most
competitive horse race in the United States, the owner
sues the veterinarian to rescind the sale.
In that action, judgment for whom?
(A) The owner will prevail, because his ignorance
of the fact that the female horse was capable
of being bred successfully constitutes a
unilateral mistake.
(B) The owner will prevail, because there was a
mutual mistake.
(C) The veterinarian will prevail, because attempts
to breed the animal by the veterinarian would
be foreseeable to the owner.
(D) The veterinarian will prevail, because the
owner has no legal basis on which to rescind
this valid contract.
23
Question 52
A male and female teenager wanted to go to a movie,
but neither had enough money. They went into a local
coffee shop and saw that there was a tip jar on the
counter. The female teenager said, “I bet there’s enough
money in the tip jar for us to go to a movie and get
some pizza afterwards.” The male teenager agreed and
suggested that the female teenager create a diversion
so that he could take the tip jar. The female teenager
agreed and said she would meet the male teenager a
few blocks away. The female teenager ordered a coffee
and when it came, she purposefully knocked it over
onto the barista. While the female teenager helped
the barista clean up, the male teenager grabbed the tip
jar and ran out of the coffee shop. As defined in this
jurisdiction, the crime of conspiracy requires an overt
act in furtherance of the conspiracy.
If prosecuted, the female teenager should be found
guilty of which of the following?
(A) Conspiracy, but not larceny.
(B) Larceny, but not conspiracy.
(C) Both larceny and conspiracy.
(D) Only larceny, because the conspiracy will
merge into the completed crime.
Question 53
The plaintiff, a citizen of West Virginia, filed suit
against the Bank of Ohio (“Bank”) in the U.S. District
Court for the Northern District of Ohio. Bank has its
only place of business in Ohio. Plaintiff seeks an order
directing Bank to deliver the proceeds of a savings
account in the amount of $105,000 to the plaintiff. She
alleges an agreement between her and McElroy, also
a West Virginian citizen, whereby they each deposited
an equal amount of money in the account to be held
solely in McElroy’s name. She further alleges that
McElroy has asked Bank to split the account equally
and to deliver a passbook to her but that Bank refused
to do this. Bank answers by alleging that it refused to
make the transfer, because McElroy claims that the
plaintiff assigned her interest in the account to him as
repayment for a loan. Bank makes a motion to dismiss
for failure to join McElroy as a party. At a hearing on
this issue, the Court orders joinder of McElroy and
then dismisses for lack of complete diversity.
Which of the following statements is correct?
(A) Plaintiff will not be barred from refiling the
action in a state court, because the dismissal
on the grounds provided in Federal Rule of
Civil Procedure 12(b)(7) does not constitute
an adjudication on the merits.
(B) The Court should not have required the joinder
of McElroy, because it destroyed diversity.
(C) The Court should not have dismissed the
action, because it has pendent jurisdiction
over the plaintiff’s claim against McElroy.
(D) The Court should not have dismissed the
action, because there was diversity between
the plaintiff and Bank.
Diagnostic Assessment
24
Question 54
A young woman obtained used items of clothing from yard
sales, swap meets and similar sources, and then cleaned
and refurbished them before selling them at her small
shop. One day, an extremely well-to-do lawyer came into
the woman’s shop. The lawyer found nothing of interest in
the clothing racks, but she noticed an odd-looking canarycolored
raincoat hanging from a hook on the wall.
Not realizing that the raincoat belonged to the young
woman, the lawyer pointed to the raincoat and said,
“I’ll give you $25 for that hideous thing.” Offended at
the lawyer’s condescending tone, the young woman
replied, “That raincoat isn’t worth a thing. Besides,
you’re far too corporate to wear a coat like that.” The
lawyer, now angry herself, replied, “I must have it.”
The young woman said, “Okay, it’s yours for $550.”
“Done,” said the lawyer.
Does an enforceable contract exist between the woman
and the lawyer?
(A) Yes, because there was a bargained-for
exchange of promises.
(B) Yes, because the raincoat was worth $550 to
the lawyer.
(C) No, because the consideration supporting the
woman’s promise is insufficient.
(D) No, because the agreement between the
parties is unconscionable.
Question 55
A child’s elementary school holds an annual Honeybee
Festival, where all of the children spend the day
learning about bees through hands-on experience.
One of the children’s mothers objected to the festival
because her son was allergic to bee stings and could die
if not treated in time. The mother asked the school to
not hold the festival, but the school refused to cancel it.
The mother sued in a state court of general jurisdiction,
in a state that followed the Federal Rules of Civil
Procedure. Because the festival was scheduled for 10
days later, she asked for a preliminary injunction that
required the school to hold the festival without any live
bees. The court denied the request.
Can the mother appeal this decision?
(A) Yes, because the grant or refusal of an
injunction is immediately appealable.
(B) Yes, because there was a final judgment.
(C) No, because the mother must wait until trial.
(D) No, because this was an interlocutory ruling.
Question 56
A man approached his neighbor, who was seven months
pregnant, and said, “If you name your son after my
father, I will pay you $200 per month for three years.”
The neighbor agreed and named her child after the man’s
father. Afterwards, the man reneged on his promise and
told his neighbor that he had decided not to pay her the
money. The neighbor sued the man for breach of contract.
Judgment should be for whom?
(A) The neighbor, because there was a bargainedfor
exchange.
(B) The neighbor, because the neighbor’s promise
to name the child after the man’s father was
a condition of a gift made in consideration of
carrying out a moral obligation.
(C) The man, because the man’s promise to
pay the neighbor was a mere gift promise
unsupported by consideration.
(D) The man, because the neighbor did not
experience any recognizable detriment in the
naming of her child.
25
Question 57
A manufacturer of single serving coffee makers mailed
to a retailer of various household appliances the
following written offer: “Will sell 50 single serving
coffee makers at our list price of $50 each. Available
for immediate delivery. Please respond by return mail.”
Unaware of the manufacturer’s offer, the retailer, on the
same day, mailed a written letter to the manufacturer
containing the identical terms: “Will purchase 50 single
serving coffee makers at your list price of $50 each.”
Both letters were mailed through the U.S. postal system.
Before either party has received the other’s correspondence,
which of the following accurately states the legal
relationship between the manufacturer and retailer?
(A) Because there was a meeting of the minds,
a contract was formed when the retailer
mailed its letter.
(B) A contract exists between the parties, with
UCC gap-filler provisions controlling for
delivery and payment terms.
(C) A contract was formed when the retailer
deposited its acceptance, because the crossing
communications contained identical terms.
(D) No contract exists.
Question 58
A businessman asked to see an expensive watch in
a jewelry store. In conversation with the clerk, the
businessman falsely claimed to be the son of the city’s
district attorney. When handed the watch, he asked if he
could put it on, walk around a bit so he could see how it
felt on his wrist, and then briefly step outside to observe
it in natural light. The clerk agreed, saying, “I know I
can trust someone like you with the merchandise.” The
businessman walked out of the store wearing the watch
and never returned. A week later, the clerk was at a
gathering when she spotted the businessman wearing the
watch. She told him that he must either pay for the watch
or give it back. The businessman pulled back his jacket
to reveal the handle of a pistol that was tucked inside his
waistband. The clerk immediately walked away.
Of which of the following crimes should the
businessman be convicted?
(A) Robbery.
(B) Larceny.
(C) False pretenses.
(D) Embezzlement.
Question 59
A real estate agent was having an affair with his neighbor’s
wife. The neighbor learned of the affair and decided to
confront the real estate agent. The neighbor stormed over
to the real estate agent’s house carrying a loaded gun. The
real estate agent refused to open the door, instead yelling
at his neighbor through the closed door. Enraged at the real
estate agent’s refusal to open the door, the neighbor fired a
warning shot through the top of the real estate agent’s door.
The neighbor did not intend to injure the real estate agent
but simply to scare him. However, the door shattered and
several long, wooden shards flew off and became lodged
in the real estate agent’s chest and shoulder. The real estate
agent sued the neighbor for battery.
Who should prevail?
(A) The neighbor, because he did not intend for
the shards to strike the real estate agent.
(B) The neighbor, because he did not intend to
injure the real estate agent.
(C) The real estate agent, because the neighbor
failed to act as a reasonably prudent person.
(D) The real estate agent, because the neighbor
intended to shoot the gun.
Diagnostic Assessment
26
Question 60
The defendant, a citizen of Oklahoma, leased an
apartment from the plaintiff, a citizen of Idaho, under
a one-year rental agreement at $800 per month. The
lease stated that the defendant could not sublet the
premises to any person who is not a Christian. With six
months remaining on the lease, the defendant sublet
the apartment to a member of the Buddhist religion.
The plaintiff sued the defendant in the appropriate
U.S. District Court for breach of contract, seeking
to evict the defendant and recover the remaining six
months’ rent. The complaint stated that the defendant
violated the terms of the lease and asserts that the
clause concerning subletting does not violate the U.S.
Constitution. The defendant moves to dismiss the case
for lack of subject matter jurisdiction.
With respect to the defendant’s motion, will he prevail
in court on his motion to dismiss for lack of subject
matter jurisdiction?
(A) The defendant will prevail only with regard
to his assertion that subject matter jurisdiction
based upon a federal claim is lacking.
(B) The defendant will prevail only with regard
to his assertion that subject matter jurisdiction
based upon diversity is lacking.
(C) The defendant will prevail with regard to
his assertion that subject matter jurisdiction
based upon a federal claim is lacking and
with regard to his assertion that subject matter
jurisdiction based upon diversity is lacking.
(D) The defendant will not prevail in either assertion.
Question 61
One night, a woman returned from a long business trip
exhausted and ready to go to bed. However, she could not
find the keys to her house in her purse. The woman saw
that a window on the first floor of her neighbors’ house
was partially open. She did not know her neighbors well,
but she was aware that they were on vacation and did not
believe they would mind her crashing on their couch for
the night. The woman pushed the window open, crawled
through, and fell asleep on the neighbor’s couch. Just
before the neighbors arrived home, the woman awoke
and exited the house. As she was climbing back out the
window, she saw a snow globe that she liked and decided
to take it with her.
If the woman is prosecuted for burglary, how should
the court find?
(A) The woman is not guilty, because she did not
intend to commit a felony when she entered
the neighbor’s house.
(B) The woman is not guilty, because the house
was unoccupied when she entered it.
(C) The woman is guilty, because she broke into
and entered the dwelling of another person
during the night.
(D) The woman is guilty, because she took the snow
globe with the intent to permanently deprive.
Question 62
A buyer and a seller enter into a contract whereby the
seller would deliver to the buyer 300 cases of size
five spark plugs to be used in vehicles that the buyer
was producing at its plant. After the spark plugs were
delivered, the buyer wants to void the contract and
return the spark plugs.
What would be his best argument that he is not
required to pay for the spark plugs?
(A) The buyer lost its main vehicle purchaser
and no longer needs such a large quantity of
spark plugs.
(B) The spark plugs were size seven, instead of
size five.
(C) The contract was not signed by the seller.
(D) There was no price term included in the contract.
27
Question 63
A man was walking home from work late one night
when he was confronted by an acquaintance, who
demanded that the man pay him money owed from a
recent Super Bowl wager. The acquaintance threatened
the man and then proceeded to punch him in the face. As
the man was running away to escape the attack, a $100
dollar bill fell out of his pocket. After the man was gone,
the acquaintance glanced down and noticed the bill. The
acquaintance pocketed the bill and returned home.
For which of the following crimes should the
acquaintance be convicted?
(A) Robbery.
(B) Larceny.
(C) Battery and larceny.
(D) Battery.
Question 64
A man owned an independent grocery store in an
upscale urban area. The grocer prided himself on his
high-end deli meats and cheeses and his large selection
of expensive wines. The grocer had recently noticed,
however, that one of the freezers in the store leaked from
time to time, causing the tile underneath the freezer to
become wet. The grocer had called the freezer company
to repair the freezer, but the freezer company had not yet
sent a technician to repair the freezer.
While the grocer was preparing for the lunchtime rush, a
man came into the store and slipped on a portion of the
floor that was wet due to the freezer leakage. The man
landed awkwardly on his knee, shattering his kneecap.
If the man brings suit against the grocer, how should
the court rule?
(A) Judgment for the grocer, because by calling the
freezer company to fix the freezer, the grocer
took reasonable care to prevent the injury.
(B) Judgment for the man, but only if the grocer
knew that the leakage had expanded to the
area around the freezer.
(C) Judgment for the man, if the grocer could have
discovered the risk posed by the freezer leakage
by a reasonable inspection of his property.
(D) Judgment for the man, because the grocer is
liable for any condition on his premises that
injures a customer.
Question 65
A man leaves work very late one night and walks to his
car, which is parked in a parking garage. As the man nears
his car, he hears noises and what sounds like scuffling.
The man, who is an avid golfer, grabs a golf club from
his trunk and walks toward the area from where the noise
is coming. He sees a teenager with a knife in his hand,
kneeling over an unconscious woman on the ground. The
man recognizes the woman as his long-time secretary.
Believing that the teenager is about to stab the woman, the
man swings the golf club at the teenager, hitting him in
the head. The teenager dies from his injuries. It turns out
that the woman had had a seizure and the teenager was
going to use the knife to cut open the woman’s turtleneck
so she could breathe more easily.
Is the man guilty of murder for the teenager’s death?
(A) Yes, because the man intended to either kill or
seriously injure the teenager.
(B) Yes, because the man did not warn the
teenager before swinging the golf club.
(C) No, because the man reasonably believed
that his action was necessary to prevent the
stabbing of the woman.
(D) No, because the man knew the woman and
therefore had the right to use deadly force to
defend her.
Diagnostic Assessment
28
Question 66
A hiker came across a cat while hiking in the woods.
Not seeing an owner, the hiker decided to take the cat to
the local animal shelter. As she was carrying the cat into
the animal shelter, the hiker heard a man say, “I found
you!” The cat’s owner was so delighted to find his cat
that he promised to pay the hiker $250 for her troubles.
The hiker told him that that would not be necessary; she
had picked up the cat out of her love for animals and
expected no reward. Later, however, the hiker received
a large bill in the mail and realized that she could really
use the reward money. The hiker called the owner, but
the man refused to honor his earlier offer.
If the hiker sues to collect the reward, what will she recover?
(A) Nothing, because there was no consideration
for the reward.
(B) Nothing, because the hiker rejected the
man’s offer.
(C) $250, because the technical defense of the
Statute of Frauds will be overcome by the fact
that the hiker had fully performed.
(D) $250, because moral consideration is
sufficient to support the promise of a reward.
Question 67
A landlord and a tenant signed a lease agreement for
a one-year term. One month into the lease term, the
tenant changed jobs and abandoned the apartment
because his new job was an inconvenient commute
from the apartment. The landlord did not find a
replacement tenant. At the end of the lease term, the
landlord sent the tenant a bill for the unpaid rent.
In determining how much tenant owes, to which of the
following would most courts give the greatest weight?
(A) How burdensome the tenant’s new commute is.
(B) Whether the lease contained a covenant of
quiet enjoyment.
(C) Whether the landlord has met his burden
of showing that he attempted to find a
replacement tenant.
(D) Whether the tenant has met his burden of
showing that the landlord failed to attempt to
find a replacement tenant.
Question 68
A recently laid-off man was updating his resume on his
laptop computer at a local coffee shop. He noticed that
a woman at a nearby table was wearing huge diamond
earrings. When the woman took off her coat to sit
down, it caught on one of the earrings, and the earring
fell to the floor. The man realized that the earring
could probably be sold for the equivalent of several
months’ rent. He bent down as if to tie his shoe, and
then surreptitiously picked up the earring and placed
it in his computer bag. The woman soon realized that
her earring was missing. As she and her companion
searched for it, the man heard the woman mention
that the earrings had been a gift from her late father.
Feeling terrible, the man took the earring from his bag
and gave it to the woman. An elderly man who had
been watching the whole scene flagged down a passing
police officer and reported the incident.
Is the man guilty of larceny?
(A) Yes, because he took the earring and put it in
his bag, intending to keep it.
(B) Yes, because he fraudulently converted the earring.
(C) No, because he never left the coffee shop.
(D) No, because he gave the earring back to
the woman.
29
Question 69
A businesswoman with dual citizenship in the United
States and the United Kingdom decided to transfer her
entire business overseas. She entered into a contract with
a buyer for the sale of her home, which included a large
home office, for $325,000. The contract further provided
that the transfer of the deed, as well as the buyer’s
payment of the purchase price, would occur on May 1,
one month from the date of the contract. After the signing
of the contract, the businesswoman traveled to England to
begin the process of setting up her headquarters there. She
expected to stay four weeks and to return home the day
before the closing date of the contract. However, en route
home to the United States, the businesswoman found
herself stranded in Madrid, Spain, following a layover and
several flight delays and cancellations.
As a result, she did not arrive home until May 2,
the day after the closing date. Upon her return, the
businesswoman contacted the buyer to reschedule the
closing. However, the buyer was highly offended at the
businesswoman’s failure to show upon the promised date
or to contact him about the delay, and he informed her that
he would be canceling the contract due to her breach.
If the businesswoman files an action seeking the buyer’s
specific performance of the contract, will she prevail?
(A) No, because unless otherwise provided in
the terms of the contract, a party’s failure
to render performance on the date promised
constitutes a repudiation of the contract.
(B) No, because specific performance is not an
appropriate remedy for a buyer’s breach of a
contract for the sale of land.
(C) Yes, because the businesswoman’s delay
in performance was justified under the
circumstances.
(D) Yes, because the contract did not provide that
time was of the essence.
Question 70
Sunday was generally family day at the shopping mall.
One Sunday, two parents, like many others, took their
two children, a six-month-old daughter and a sevenyear-old
son, to the mall. At their son’s insistence,
the parents decided to let their son push the courtesy
stroller provided by the mall that was carrying the
daughter, while the father held the handle. The son
proudly pushed the stroller, grinning from ear to ear as
he walked along the main promenade.
The father’s former high school basketball coach smiled
as he passed the family. Ten minutes later, the coach
passed the family again. At that moment, the father let
go of the handle of the stroller to bend down to pick
up the daughter’s pacifier, and the son was temporarily
distracted. In his moment of distraction, the son ran the
stroller into the coach. The collision caused the coach to
fall to the ground, and he sustained a broken elbow.
If the coach sues the son, what is the son’s best defense?
(A) The coach assumed the risk when he saw the
son pushing the stroller.
(B) The son was exercising the care appropriate
for a reasonable child of like age, knowledge,
and experience.
(C) A seven-year-old is presumed incapable
of negligence.
(D) The son did not intend to strike the coach.
Diagnostic Assessment
30
Question 71
A plumber, who was a resident of California, was at a
convention in the State of Franklin. At the end of the
day, the plumber found what he thought was his car
in the hotel parking lot. Unbeknownst to the plumber,
his car key also opened up 10% of the other cars of
the same make and model. The plumber had in fact
taken the car of an off-duty security guard, a resident
of Franklin. The guard saw that the plumber was
driving off with his car, and he yelled at the plumber
hoping he would stop. When he did not, the guard
drew a handgun and shot the tires of his own car. The
plumber lost control of the car and crashed into the
front window of the hotel. The plumber was severely
injured in the crash and sustained over $80,000 in
medical bills. The plumber sued the guard in the
Federal District Court for the State of Franklin. The
plumber wishes to have a jury trial. The District Court,
following federal rules, grants a jury trial in such case
while Franklin state law would not.
Is the plumber entitled to a trial by jury?
(A) No, because the state law is outcome
determinative.
(B) No, because forum shopping is against
public policy.
(C) Yes, because the District Court has
proper jurisdiction.
(D) Yes, because the federal rule must be
followed in this case.
Question 72
One Saturday morning, a father took his ten-year-old
son to a little league game. The son, who played center
field, made several errors during the game. The coach
benched the son and berated him for costing the team
the game, driving the young boy to tears. The father
got into a heated argument with the coach over his
treatment of the boy. Bystanders eventually broke up
the argument, and the father drove his son home. Later
that night, while picking up take-out for the family’s
dinner, the father saw the coach in the restaurant’s
parking lot. Wanting to make the coach cry like the
coach had done to his son, the father grabbed his son’s
baseball bat from the back seat of his car, came up
behind the coach and hit him in the head with the bat.
The coach died from his injuries.
Is the father guilty of murder for the coach’s death?
(A) No, because the father acted in the heat of passion.
(B) No, because the father did not intend to kill
the coach.
(C) Yes, because a baseball bat may be a
dangerous instrumentality depending upon
how it is used.
(D) Yes, because, at a minimum, the father intended
to inflict serious injury upon the coach.
31
Question 73
A young entrepreneur opened a smoothie shop in a
thriving urban center. Wanting to provide plenty of seating
for his customers, the entrepreneur hired an independent
contractor to remodel the small space and build revolving
stools along all of the walls. One morning, shortly after
the grand opening of the shop, the lead cashier noticed
that one of the stools was loose, as if it might come
unbolted from the floor. The cashier immediately posted a
sign stating “Broken—Do Not Sit.”
The cashier then called the contractor and asked that
he come immediately to repair the stool. A few hours
later, a new customer entered the smoothie shop. While
waiting to give his order, the customer failed to notice the
cashier’s sign and sat directly on the loose stool. Under
the customer’s weight, the stool broke away from the
floor, and both the customer and the stool went crashing
to the ground. The customer broke his wrist in the fall.
If the customer sues the smoothie shop, will he recover?
(A) Yes, because the customer is a licensee.
(B) Yes, because the customer is a business invitee.
(C) No, because the contractor’s acts were the
actual and proximate cause of the injuries.
(D) No, because responsibility for construction of the
stool was properly delegated to the contractor.
Question 74
Apex became involved in a labor dispute with the
union that ordinarily supplied workers for Apex’s
plant. Apex commenced an action against the union in
the appropriate U.S. District Court claiming $75,000
in damages as a consequence of the union’s conduct
in harassing and intimidating nonunion workers in
violation of the National Labor Relations Act and
applicable state law. Apex is an Alabama corporation,
and the union (an unincorporated association) has
members who are domiciled in every state except
Washington and Oregon. The union answered by
denying Apex’s allegations and filing a $15,000 counterclaim
(which asserted that Apex had deliberately made
false accusations about the union to the local papers for
the purpose of obtaining favorable press coverage).
If the union moves to dismiss for lack of subject matter
jurisdiction, should the court grant the motion?
(A) Yes, because Apex has not claimed monetary
damages in excess of $75,000.
(B) Yes, because there is no diversity.
(C) No, because subject matter jurisdiction is satisfied.
(D) No, because a state claim has been asserted in
a federal court.
Diagnostic Assessment
32
Question 75
A buyer and seller entered into a written agreement
for the sale of 100 widgets at $1.50 each. The contract
provided that the widgets would be shipped in ten
cartons, each containing ten widgets. Because the
buyer knew that the cartons of widgets would be
moved several times before they were used, it was
important to him that the widgets be individually
wrapped. For this reason, the buyer requested that each
widget be individually packed and shipped in its own
carton. The seller agreed to this modification over the
phone. Shortly thereafter, the seller shipped the widgets
to the buyer in ten cartons, as originally agreed.
The buyer rejected the shipment and demanded new
widgets in individual cartons. The seller refused.
Is the seller in breach of contract?
(A) Yes, because contracts can always be modified.
(B) Yes, because the original contract can be orally
modified without additional consideration.
(C) No, because the modification must be in
writing when the sale of goods is involved.
(D) No, because there was no consideration for the
seller’s agreement to change the mode of shipping.
Question 76
In preparing for her law school examinations, a student
invited a few classmates to her apartment for a study
group. The student, who loved spiders, kept a pet
tarantula caged in her apartment. When the student
purchased the tarantula, she had the poisonous venom
removed so that it would be harmless.
During the study group session, the student brought out
the cage with the tarantula to show her friends. When
she was placing the cage down on the kitchen counter,
the student carelessly left the cage door slightly ajar.
Moments later, the tarantula crawled out of the cage
and crept toward one of the classmates. The classmate,
who was deathly afraid of spiders, saw the tarantula
and tried to run away. As she did so, the classmate
tripped over a chair and fell down, fracturing her wrist.
If the classmate files suit against the student to recover
damages for her injury, who will prevail?
(A) The classmate, because the student was
negligent in leaving the cage door open.
(B) The classmate, because the student is
strictly liable.
(C) The student, because the spider did not
directly cause the classmate’s injury.
(D) The student, because a spider is not a wild animal.
33
Question 77
In a state court of general jurisdiction, Paul sued the
Acme Corporation for personal injuries he received in
an auto collision with a van driven by an Acme driver.
Deborah was the president of Acme when the accident
occurred. Paul personally served Acme Corporation by
handing the summons and complaint to Deborah the day
before she retired. In the excitement of her retirement,
Deborah neglected to deliver the papers to anyone else
at Acme. A default was entered against Acme. Other
than service upon Deborah, Acme never received notice
of the pending lawsuit prior to the entry of a default
judgment. Acme now moves to quash service of process.
Applicable state law pertaining to service of process is
identical to the Federal Rules of Civil Procedure.
Which of the following is true?
(A) Service should be quashed, because the
summons and complaint were served by Paul.
(B) Service should be quashed, because Acme
Corporation did not receive actual notice of
the pending lawsuit.
(C) Service should be quashed, because Deborah
was not an officer of Acme at the time an
answer was due.
(D) Acme’s motion should be denied.
Question 78
A real estate tycoon owned four adjacent, equally sized
properties of undeveloped forest land in the mountains.
Each property consisted of 100 acres, and the properties
were respectively identified by the developer as the
northern property, southern property, eastern property, and
western property. One day, the developer took a buyer
out to view the properties and walked the buyer around
the wooded land, pointing out different aspects of each
property. Because it was high noon, the buyer became
confused about which direction he was facing while
looking at each of the properties. The buyer indicated that
if he decided to purchase any of the properties, he would
prefer the property that had the fewest trees, because it
would be cheaper to develop with fewer trees to clear.
The buyer mistakenly believed that this sparsely covered
property was the western property, and he looked forward
to having a view of the sunset from the living room of the
cabin he planned to build. The developer told the buyer
that the price of the property would be $300,000, payable
in two payments. The first payment of $150,000 would
be due within one month of agreeing to a deal, and the
second payment would be due six months later, when the
deed was to be executed.
A week later, the developer and buyer met for lunch to
confirm which property the buyer had selected, and the
buyer stated that he would like to purchase the western
property. The buyer and the developer shook hands on
the deal, and the developer promised to have a contract
sent to the buyer for signature. One week later, the buyer
received a contract signed by the developer, promising
to sell to the buyer the western property at the agreed
price and payment terms. Later that week, the buyer
went to visit the property with his contractors. Upon
arriving at the property, the buyer realized that he had
been mistaken in believing that the western property was
the property with the fewest trees; in fact, the property
with the fewest trees was the southern property. The
buyer tried to back out of the property contract, and the
developer sued to enforce the contract.
Can the developer enforce the contract to buy the property?
(A) No, because no part of the purchase price has
been paid.
(B) No, because the Statute of Frauds has not
been satisfied.
(C) Yes, because the agreement was put in writing.
(D) Yes, because the contract can be performed
within one year and is excluded from the
Statute of Frauds.
Diagnostic Assessment
34
Question 79
One evening, a fireman went bowling at a local bowling
alley. After he had finished bowling, he picked up and
put on what he believed to be his shoes, and went home.
About one hour later, as the fireman got ready for bed,
he discovered his mistake. Since it was nearly midnight
and the bowling alley was already closed, the fireman
decided to wait until the next day to return the shoes. The
following morning, the fireman was driving back to the
bowling alley with the shoes when he was involved in
a serious automobile accident. The shoes, which turned
out to be quite valuable, were destroyed. The actual
owner of the shoes, a handyman, then asserted a claim for
conversion against the fireman for the value of the shoes.
Who will prevail?
(A) The handyman, because the fireman intended
to take the shoes and they were destroyed
while in his possession.
(B) The handyman, because the fireman
committed a continuing trespass to a chattel
by failing to promptly return the shoes.
(C) The fireman, because he honestly believed the
shoes to be his own.
(D) The fireman, because he tried to return
the shoes within a reasonable time after
discovering his mistake.
Question 80
A father and his daughter bought a beach house as tenants
in common. They stayed in the beach house during their
many weekend trips to the beach to ski and surf. A few
years later, the father and his wife had another daughter.
The father died of a heart attack, leaving all his property
to his wife. Over the next 25 years, the older daughter
regularly used the beach house and declared to her mother
and younger sister that she was the true owner of the
beach house. When the older daughter decided to move
away, she rented the beach house to an avid surfer who
planned to live at the beach house full time. The surfer
paid the older sister $1,000 per month, which the older
sister deposited in her private bank account. The wife
then died, leaving all her property to her two daughters.
The younger daughter wants a share of the rent the older
daughter has been receiving.
If the younger sister sues the older sister for part of the
rent that the older sister is now collecting, what is the
likely outcome of the case?
(A) The younger sister will prevail, because
tenants in common are entitled to rent
received from third parties.
(B) The younger sister will prevail, because the
older sister’s declaration amounted to an ouster.
(C) The younger sister will not prevail, because
the older sister adversely possessed the
beach house.
(D) The younger sister will not prevail, because
the older sister had the right to exclusive use
of the beach house.

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