Its probably Property
Ouster applies to which type of Tenancy?
Joint Tenancy
Restatement 31 says: An offer may invite or require acceptance to be made by an affirmative answer in words, or by performing or refraining from performing a specified act or may empower the offeree to make a selection of terms in his acceptance. Unless otherwise indicated by the language or the circumstances, an offer invites acceptance in any manner and by any medium reasonable in the circumstances.
True.
See the restatement
A plaintiff filed an action against a defendant in federal district court, seeking compensatory damages for negligence after a car accident. The defendant has a policy of automobile liability insurance under which its insurance company will pay for the defendant's defense and all or part of the defendant's liability in the action.
Is the defendant's insurance policy subject to discovery by the plaintiff?
A Yes, because it is relevant to the claims and defenses asserted by the parties.
B Yes, because insurance policies generally are part of the defendant's required disclosures.
C No, because the insurance policy is not relevant to the claim or defense of any party.
D No, because the insurance policy is protected by privilege.
B
The defendant's insurance policy is subject to discovery by the plaintiff. As part of its initial disclosures, a party must provide to other parties copies or allow inspection of insurance agreements under which an insurer might be liable for all or part of any judgment that might be entered. (A) and (C) are incorrect because whether the policy is relevant to the claims and defenses of the parties is not the applicable rule to consider here. Insurance policies must be disclosed if the insurer may be liable for the judgment. (D) is incorrect because insurance policies are not protected by privilege.
Francesca brings her antique gun collection to the public park to show her friend Gina. The guns are not loaded. Gina takes out one of the guns from the case, admiring it. She picks up the gun and holds it out as if she were going to shoot it to get the feel for the gun. When she picks up the gun, she sees no one around. But Henry is riding by on his bicycle and happens to pass right in front of Gina as Gina picks up the gun and holds it out. Henry becomes very afraid and nearly crashes his bike. Henry sues Gina for the tort of assault. Can Henry make out the tortious conduct portion of the prima facie case for assault?
D
When Gina held up the gun, she was certainly committing an act. It was a voluntary muscular contraction; she was not sleepwalking or responding to a reflex. For this reason, Choice C is incorrect. Though it was an act, Gina did not act with the requisite intent. When she held out the gun she did not see anyone around. Therefore she did not have the purpose and did not act with the knowledge that she was substantially certain to make a contact with Henry or a third person. Nor did she have the purpose or act with the knowledge that she would put Henry or a third person in imminent anticipation of a harmful or offensive contact. Thus, Choice D is correct. Choice A is incorrect because, though it states a correct proposition of law (contact is not required for an assault), the assault claim fails because of a lack of intent. Choice B is wrong because whether or not Henry’s bike crashed could be relevant to Henry’s cause of action for battery, not assault.
Brutus and Cassius, circus performers, are carelessly practicing their knife-throwing act outside the Senate Building. Blindfolded, they each throw several knives at once at a target. As they practice, my grandpa walks by. A knife hits him, injuring him seriously. It is impossible to tell whether it was Brutus or Cassius who threw the offending knife, though it's clear that one of them did, and each is equally likely to be the thrower of that knife. Will both Brutus and Cassius escape liability?
No. Where multiple defendants are shown to be negligent, but it's impossible to tell which one injured plaintiff, in most courts the burden shifts to each individual defendant to prove that his action wasn't the cause-in-fact of plaintiff's injury. Then, if no defendant can meet the burden, they will all be liable. This theory is referred to as “double fault and alternative liability.”
Notice, though, that this theory of “double fault and alternative liability” applies only where plaintiff proves that, more likely than not, each defendant behaved tortiously. So if Caesar couldn't prove, as he can here, that both defendants had acted negligently by throwing knives blindfolded (and he could only prove that one of them did, without showing which one it was), the theory wouldn't apply. In that event, Caesar would not be deemed to have met his burden of showing, by a preponderance of the evidence, that either defendant was the cause-in-fact of the accident.
O devised to A for life, then to B and his heirs. Assume B dies, then A dies. Who owns Blackacre upon B's death?
B has an Indefeasible Vested Remainder which is not by B's death, but rather passes to B's estate.
B owes A $5,000 payable in installments over a five-year period. A proposes that B discharge the debt by paying $4,500 cash within one month, but reserves the right to refuse such payment.
True or False: A has made an offer?
False.
A reservation of power to revoke after performance has begun means that as yet there is no promise. See 2, and 24.
Arena sues Shukla for negligence, for injuries suffered in an accident. Shukla's eleventh interrogatory to Arena is as follows:
11. Why do you contend that the defendant is liable for your injury?
11. Answer: The Defendant is liable for the accident because the defendant was negligent in operating his vehicle, leading to the collision which injured the plaintiff.
A. a proper response to the Interrogatory
B. not proper under the rules, because it does not specify the negligent act Shukla committed.
C. inadequate, because it fails to state the fact on which Arena bases his response.
D. unnecessary. Arena's lawyer should object to the interrogatory, because it asks Arena to specify the basis for his legal contentions.
A
D is clearly not right. Rule 33(c)(a)(2) allows parties to ask IROGS that require a party to flesh out their contentions about the case. I think C is wrong too. Rule 33 does not require a party responding to an interrogatory to give all factual details, unless asked. Here, Shukla's general "why do you claim I'm liable" question does not ask for supporting factual evidence. And B fails as well for the same reason: act Arena's question does not clearly call for a specification answer. Of course, it probably isn't what Arena wanted by way of an answer, but since it fairly responds to the question, it is probably sufficient under the rules. If Arena wants hard information about Shukla's case, or about her contentions, he had better ask a more precise, focused question. A is the best answer.
Deborah lives near a small regional airport, the Pacifica Municipal Airport (PMA). The planes fly directly over her house morning and night, and the noise keeps her up at night and wakes her up in the morning. Deborah brings suit against PMA alleging that the airport constitutes a nuisance under the “intentional and unreasonable” prong of the Second Restatement section 822. The jurisdiction follows the approach to nuisance of the Restatement (Second) of Torts. (Assume no state or federal aviation law affects Deborah’s tort claim.)
PMA concedes that the planes from the airport fly regularly over Deborah’s house and acknowledges that Deborah has complained regularly about the noise. But it argues that it cannot be liable for nuisance because it does not intend to interfere with Deborah’s use and enjoyment of her land. How should the court rule on PMA’s argument?
D
This question probes your understanding of the meaning of intent under Restatement (Second) of Torts section 822(a). The standard is one of purpose or knowledge. There is no evidence in this fact pattern of PMA’s purpose to interfere with Deborah’s enjoyment of the use of her land. But PMA has knowledge that interference is substantially certain to occur; it knows, among other reasons, because Deborah has complained about the noise. Choice D correctly explains this knowledge standard.
Choice A is incorrect because there is no requirement of any malicious intent to sustain an action for private nuisance (though such an intent is certainly sufficient). Choice B is incorrect because purpose is not required; knowledge is enough. Choice C incorrectly states that a cause of action for private nuisance always creates strict liability for interfering landowners. This is incorrect.
Monty moves into the grandpa's cabin while he is away, reasonably figuring he won't mind. However, grandpa is madder than a racoon trapped in a barrel of bees when he returns, and he tells him to haul his slimy carcass off the premises. Is Monty's reasonable but mistaken belief that he'd be welcome a valid defense to a trespass to land claim?
No. Trespass to land is the intentional invasion of another's exclusive possessory interest in property. Mistake of fact (even a reasonable mistake) about the owner's consent is no defense. That's because the mental state for trespass is not the intent to enter wrongfully, but the intent to enter the land at all, regardless of one's mental state concerning the surrounding circumstances. Rest. 2d §164.
To A and his heirs so long as the land is used as a farm, but if the premises cease to be used as a farm, then to B and his heirs.
Name all the estates and interests and if would pass the rules of perpetuities.
A has a Fee Simple Subject to an Executory Limitation
B has a Fee Simple Absolute, Executory Interests Shifting.
The grant is an "open-ended" EL with no definite person or time limit for when the shifting EL will come into present possession or be permanently extinguished. Therefore, after the grant is made, 200 years later (more than 21 years after the death of the last living person at the time the grant is made) the current owner could cease to use the land as a farm. At that point the Executory interest would vest far too removed.
Anne writes to her daughter Bee, living in another state, an offer to leave Anne's farm to Bee if Bee gives up her home and cares for Anne during Anne's life, Bee remaining free to terminate the arrangement at any time. Bee gives up her home, moves to Anne's farm, and begins caring for Anne.
True or False, Anne is bound by an option contract.
True.
See Restatement 45. Pages 26-27.
A corporation operated several factories that were emitting toxic chemicals into the air. The Environmental Protection Agency ("EPA") sued the corporation in federal court for violation of several environmental laws, and the jury found in favor of the EPA. One of the corporation's factories was located near a town, and some residents believed that their health had been harmed by the factory's emissions. One resident sued the corporation in federal district court, alleging damages stemming from the factory's violation of the environmental laws. The resident asserts issue preclusion (collateral estoppel) to establish the factory's violation of the environmental laws.
If the court permits the resident to use issue preclusion to establish the violation, what is the likely reason?
A: A nonparty in the first case is always allowed to use issue preclusion (collateral estoppel) offensively or defensively against someone who was a party in the first case.
B: There was a valid, final judgment on the merits in the first case, and the same cause of action is involved in the resident's lawsuit.
C: The court determined that it is fair and equitable to allow the resident to use issue preclusion (collateral estoppel) offensively.
D: A party can use issue preclusion (collateral estoppel) offensively when the defendant has been found to have violated a federal law.
C
If the court permits the resident to use issue preclusion (collateral estoppel) to establish the violation, it is likely because the court determined that it is fair and equitable for the resident to do so. Under the traditional mutuality rule, only someone who was a party in the previous case can use issue preclusion. However, this rule has been modified to allow nonparties to use issue preclusion in certain circumstances. When a nonparty wants to use a previous judgment offensively, the court must consider whether it would be fair and equitable to allow the nonparty to do so. (A) is therefore incorrect because nonparties are not always allowed to use issue preclusion offensively or defensively. (B) is incorrect because the same cause of action need not be involved. The same cause of action is a requirement for claim preclusion (res judicata). (D) is an incorrect statement of the law.
Jeff is an amateur taxidermist and animal skin tanner. He conducts these activities in his front yard, which abuts a public square. The activity produces a strong, unpleasant smell. The smell from the activity makes many people sick, and people have stopped coming to the square, causing a decline in business in the area.
If Jeff is sued for creating a public nuisance:
C
Jeff’s conduct could be a public nuisance, if the court determines that the conduct unreasonably burdens the public’s enjoyment of the public square. Choice A is incorrect because for public (as opposed to private) nuisance, it is not necessary to show that anyone’s land interest has been invaded. Choice B is squarely wrong. If it were right, there would be no need for this chapter. Choice D is incorrect because although a statute may establish the basis for a public nuisance claim, it is not necessary for such a claim. Choice C correctly states the operative standard.
Grandpa says, I convey $50,000 to the first child of Sally who graduates from law school. Because that would make me happier than a camel finding a lake after pulling Santa's sleigh on the 6th of July.
Assume at Sally is alive and has one daughter, Polly, who is a third-year law student at the State University College of Law.
Is there an estate, and if so, what kind?
DO NOT THINK CONTRATCS: THIS CAME FROM PROPERTY REVIEW
There is no estate. There is not because of the Rules Against Perpetuities.
Although Polly is close to graduating law school, there is no guarantee that she will graduate. She dies the next week after the estate is CONVEYED (by deed) Sally is alive and could have another child, X, born after the time the grant is made. The parent Sally dies, of course shortly after X is born. Then 50 years later the afterborn child X finally graduates from a law school and comes into present possession of the $50,000. The EI is void under the RAP.
A grantor executed a valid deed conveying a tract of land to a city "for the purpose of constructing a planetarium thereon." The city held the property for a number of years, but decided on another site for the planetarium. When presented an offer to purchase the property by a privately owned garbage collection company, the city accepted and conveyed the land to the company.
Which of the following statements about the title of the tract of land is true?
C
The garbage collection company owns the tract of land in fee simple absolute because the city had a fee simple absolute, which it conveyed to the company. The language in the deed "for the purpose of constructing a planetarium" merely expresses the grantor's motive for conveying the property; the city received the estate that the grantor had, a fee simple absolute. Because the city held a fee simple absolute, that is what it conveyed to the company. (A) is wrong because the grant does not create a fee simple determinable. A fee simple determinable is an estate that automatically terminates on the happening of a stated event. To create a fee simple determinable, durational language (e.g., "for so long as," "until") must be used. Here, the grant does not contain the durational language necessary to create a fee simple determinable. Because the interest is not a fee simple determinable, the grantor cannot have a possibility of reverter. (B) is wrong for two reasons: (i) as explained above, a fee simple determinable was not created by the grant; and (ii) even if a fee simple determinable had been created, the transfer of the property would not by itself cause it to revert back to the grantor. Determinable estates are alienable; the successor merely takes subject to the condition. The conveyance of a fee simple determinable would not automatically result in the property reverting to the grantor (i.e., the company could build a planetarium on the property and avoid the property reverting back to the grantor). (D) is wrong because the grant did not create a fee simple determinable. (Had the grant contained the proper durational language, rather than "for the purpose of," (D) would have been correct. In that case, the company would own the land subject to the estate being terminated if the land is not used for a planetarium
An insurance company issues a bulletin to its agents, entitled "Extra Earnings Agreement" providing for annual bonus payments to the agents varying according to "monthly premiums in force" and "lapse ratio," but reserving the right to change or discontinue the bonus, individually or collectively, with or without notice, at any time before payment.
True or false: There is no offer or promise.
True.
See page 27 of the Restatement.
A plaintiff filed a negligence action against a defendant in federal district court after a two-car accident. The plaintiff’s attorney created a list of everyone he could identify who observed the accident or otherwise had information relevant to the accident. The list includes one eyewitness whom the plaintiff’s attorney was able to identify only through the expenditure of several thousand dollars in investigation costs. The defendant served the following interrogatory on the plaintiff: “Please state the name of each person of whom you are aware who may know or have information relevant to this action.”
Must the plaintiff provide the defendant with the names of all of the people on the plaintiff’s attorney’s list?
A No, because the names on the list are protected from discovery under the work product doctrine.
B No as to the name of the eyewitness found through the plaintiff’s investigation efforts, but yes as to the other names on the list.
C Yes, because, while the names are subject to qualified immunity from discovery under the work product doctrine, the defendant will be able to show sufficient need to obtain a court order requiring the names’ disclosure. requiring the names’ disclosure. - no response given
D Yes, because the names are relevant to the claims and defenses of the parties, and they do not constitute work product.
D
The plaintiff must provide the defendant with the names of the people on the plaintiff’s attorney’s list. In general, discovery may be had of any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, including the identity of individuals with knowledge of any discoverable matter. Because the Federal Rules of Civil Procedure state that the identities of people with knowledge of discoverable matters are discoverable, the plaintiff’s attorney’s list is not considered work product. Thus, (A) and (C) are incorrect. (B) is incorrect because the identity of the eyewitness is discoverable regardless of the extent of the plaintiff’s investigation efforts.
Clarisse is a passenger on the S.S. Danger, a ship sailing from New York to Florida. Clarisse accidentally falls into the water. The S.S. Danger employees forgot to install life preservers on the ship. The ship owners eventually get a lifeboat out to her and pull her out of the water. Clarisse nearly drowned and suffered serious injuries to her lungs because of the length of time she was in the water. Clarisse could not swim, and experts disagree over whether she could have avoided the lung damage had a life preserver been thrown to her immediately upon going overboard. Clarisse’s expert says the life preserver would have allowed her to avoid her injury. The defendant’s expert disagrees.
Clarisse sues the S.S. Danger for negligence for its failure to have life preservers on board. Assume Clarisse can prove the tortious conduct portion of the prima facie case for negligence. Will Clarisse be able to prove actual causation?
A
Clarisse’s expert says life preservers would have made a difference; unsurprisingly, the defense expert says they would not have mattered because Clarisse did not know how to swim. Assuming both experts are allowed to testify on their causation theories (a question best left to evidence law rather than tort law), a resolution of the causation question will be in the hands of the jury. The jury will have to determine, based upon the preponderance of the evidence, whether it is more likely than not that Clarisse would not have suffered the lung damage “but for” the defendant’s failure to have life preservers.
Choices B and D are wrong for the same reason. A jury need not credit the expert testimony of either the defendant or the plaintiff if it is opposed by the other side. The jury can make an independent judgment. For similar reasons, Choice C is incorrect: The jury can reach a conclusion—indeed it will be told to reach a conclusion, in spite of conflicting expert evidence on causation. Choice A is the correct choice: Clarisse will win the causation point only if she can prove by a preponderance of the evidence that the defendant’s failure to take the precaution of having life preservers was a “but for” cause of her injury.
Name all estates and interests. Don't worry about RAP.
Grandpa devises his land to the Lincoln Public Schools, so long as the land is used for school purposes, then to my daughter Bobby Jo until she dies and then to Cletus after his 10-year jail sentence.
Grandpa: FSA. Term of Years, Reversion.
Lincoln School: Fee Simple Subject to an Executory Interest.
Bobby Jo: Life Estate. Executory Interest Shifting
Cletus: Fee Simple Absolute. Indefeasible Vested Remainder.
Husband and Wife are married and domiciled in Seattle, Washington. While married to H, W used her earnings to purchase 100 shares of stock in in a local company. The stock was titled in W's name alone on the stock certificate of ownership.
H and W later retire and moved to Colorado. W died, leaving 100 shares of company stock in her will to her sister, Alice. (Assume that W left $10 million in other property under the will to her surviving spouse, H).
Who owns the 100 shares of company stock after W's death?
Alice and H each own 50 shares of company stock.
W and H were married in a community property state. Therefore, the shares of stock are presumed to be held by H and W as community property. W's sold ownership indicated on the stock certificate of ownership does not rebut this strong resumption. The stocks remained community property when H and W changed their state of domicile to Colorado, which is a common law state. It does not change with a change of domicile.
Restatement 36:
An offeree's power of acceptance may be terminated by rejection or counteroffer by the offeree, or lapse of time, or revocation by the offeror, or death or incapacity of the offeror or offeree or the nonoccurrence of any condition of acceptance under the terms of the offer.
True.
(1) An offeree's power of acceptance may be terminated by
(a) rejection or counteroffer by the offeree,
(b) lapse of time, or
(c) revocation by the offeror,
(d) death or incapacity of the offeror or offeree,
(2) In addition, an offeree's power of acceptance is terminated by the nonoccurrence of any condition of acceptance under the terms of the offer.
A worker was fired by her employer. The worker filed an action in federal district court, alleging that she was fired on the basis of race. The employer has an internal memo that suggests that race in fact was the impetus for the worker’s firing.
Must the employer provide a copy of the memo to the worker as part of the employer’s required initial disclosures?
A Yes, because the employer must produce all documents in its possession that are relevant to any claim or defense in the action.
B No, but the employer must provide the worker a description of the memo, and the worker may obtain a copy using a request for production of documents.
C No, because the employer must produce in its required initial disclosures only information about witnesses having discoverable information.
D No, because the employer must produce in its required initial disclosures only documents and other information that it may use to support its allegations and defenses in the action.
D
The employer does not have to provide a copy of the memo to the worker as part of the employer’s required initial disclosures. Without waiting for a discovery request, a party must disclose copies or descriptions of documents that the disclosing party may use to support its claims or defenses. (C) is therefore incorrect. Because the employer would not be using the memo to support its defenses, it does not have to provide the memo as part of its initial disclosures. (B) is incorrect. (A) is incorrect because the employer must only produce documents relevant to its own claims or defenses.
Carl is very depressed and decides to kill himself. He goes out of town to the woods in a place he thought was very isolated. He shoots himself in the head but does not die. Carl did not know it, but he had shot himself next to a campsite. A group of campers from a junior high school class come upon him. Carl is rushed to the hospital and survives after surgery. Some of the students have been suffering from severe emotional distress since the incident. If the students sue Carl for IIED, can they prove the tortious conduct portion of the prima facie case?
D
Even assuming that this attempted suicide in a place where Carl could be discovered constitutes extreme and outrageous conduct, the students’ tort claim will fail. The facts tell us that Carl went out of town to a place he thought was isolated. He did not know of the campsite. On these facts, he did not have the purpose of causing emotional distress to others who would happen upon him, nor did he have the knowledge that such emotional distress was substantially certain to occur. Nor, given the facts, was he deliberately disregarding a high probability that he would cause emotional distress to others. So there is no purpose (Choice A is wrong), knowledge (Choice B is wrong), or recklessness (Choice C is wrong). That leaves us with Choice D, a simple “No.
My Grandpa validly conveyed a small office building to the Green Party “as long as they use it for operating quarters until the next presidential election.” After the next presidential election, which was in three years, the building would go to a private organization that monitors and prepares comprehensive listings of gas prices throughout the country. A year after the conveyance, grandpa died, validly devising all of his property to me. Although this jurisdiction is a common law jurisdiction with respect to all real property considerations, the state’s probate laws provide that future interests or estates in real property may be passed by will or descent in the same manner as present or possessory interests. Last week, the Green Party and the gas monitoring organization joined together to sell the office building in fee simple absolute to a developer. I filed suit to prevent the sale of the property to the developer.
In this action, who should prevail?
A The Green Party and the gas monitoring organization, because together they own a fee simple absolute in the building. The Green Party and the gas monitoring organization, because together they own a fee simple absolute in the building.
B The Green Party and the gas monitoring organization, because the attempted restrictions on the use of the property violate the Rule Against Perpetuities.
C The Green Party and the gas monitoring organization, because the dee
D Me, because I did not sign the contract of sale.
D
I may enjoin the sale because he has an interest in the property. A fee simple determinable is an estate that automatically terminates on the happening of a stated event. The Green Party’s interest in the office building is a fee simple determinable because it lasts as long as the Party is using the building for operating quarters. However, the grant does not provide for the contingency of the Green Party ceasing to use the building as operating quarters before the next presidential election. This gap would be filled by a possibility of reverter retained by the landowner. Because grandpa passed that interest to his granddaughter in his will, there can be no contract to sell the property without his signature. Note: Although the gas monitoring organization appears to have an indefeasibly vested remainder (i.e., it is created in an ascertained company, is certain to become possessory, and is not subject to being defeated, divested, or diminished in size), its interest is not capable of taking on the natural termination of the preceding estate and so is characterized as a springing executory interest. (A) is wrong because I also have an interest in the land. (B) is wrong because the interest in the office building will pass to the gas monitoring organization, if at all, within 21 years. (C) is wrong because the Green Party is not prohibited from transferring any interest; it could pass a defeasible fee.