Final Exam - Bar Preview

An 11-year-old boy was driving a full-size motorcycle on a private road, where the boy was a trespasser. The motorcycle hit a tire that had fallen off a truck driven by a delivery company employee who was making a delivery to an address on the private road. The boy was injured when his motorcycle went out of control after striking the tire.

In a negligence action brought on behalf of the boy against the delivery company, the company contends that the boy was contributorily negligent and that his damages, if any, should be reduced in conformance with the jurisdiction’s comparative negligence statute. The boy argues that his conduct should be judged according to the standard of a reasonable child of like age, intelligence, and experience under the circumstances.

Is the boy entitled to be judged according to the standard of care that he has argued for?

• No, because the boy was driving a motorcycle.

• No, because the boy was trespassing on the private road.

• Yes, because comparative negligence applies.

• Yes, because the boy was 11 years old at the time.

Answer explanation

A is correct. Children engaging in a dangerous activity that is characteristically undertaken by adults may be held to an adult standard of care. Because the boy was driving a motorcycle—an adult activity—he will be held to the adult standard of care.

B is incorrect. The boy’s status on the land is not relevant to his negligence. The determination of whether he was a trespasser or guest would be relevant if the landowner’s negligence was at issue.

C is incorrect. Whether comparative negligence applies does not impact the standard of care by which the boy’s conduct will be measured.

D is incorrect. The boy was engaged in an adult activity and was not of “tender years” (the common law rule that a child under 7 years old is incapable of negligence), so he will be held to the adult standard of care.

A bright 12-year-old child attended a day-care center after school. The center was located near a man-made duck pond on the property of a corporation. During the winter, the pond was used for ice-skating when conditions were suitable. At a time when the pond was obviously only partially frozen, the child sneaked away from the center’s property and walked out onto the ice over the pond. The ice gave way, and the child fell into the cold water. He suffered shock and would have drowned had he not been rescued by a passerby. At the time of the incident, the pond was clearly marked with numerous signs that stated, “THIN ICE—KEEP OFF.” When the child sneaked away from the day-care center, the center was staffed with a reasonable number of qualified employees, and the employees were exercising reasonable care to ensure that the children in their charge did not leave the premises. There had not been a previous instance of a child coming onto the corporation’s property from the day-care center. The jurisdiction follows a rule of pure comparative negligence.

In a suit brought on the child’s behalf against the day-care center and based only on the facts above, who is likely to prevail?

• The child, because he left the center while he was under the center’s care.

• The child, because the day-care center is located near a pond.

• The day-care center, because it was not negligent.

• The day-care center, because the child was a trespasser.

Answer explanation

C is correct. Here, the call of the question states the suit is between the day-care center and the child. However, the facts state that the pond in question was the property of the corporation. Thus, the attractive nuisance doctrine would not apply under these facts against the day-care center. Thus, there is no evidence of lack of reasonable care by the day-care center and they would likely prevail.

A is incorrect. Day-care centers are not strictly or absolutely liable for all injuries that occur to children under their care. The center's negligence must be established. Under the facts as described, there is no evidence of lack of reasonable care, and the day-care center will prevail.

B is incorrect. The mere fact that the center is located near a pond is not in itself evidence of negligence. It might mean that reasonable care requires extra-vigilant supervision, but the facts specify that the center staff was in fact exercising reasonable care. Accordingly, the day-care center will prevail.

D is incorrect. This answer correctly concludes that the day-care center will prevail, but it misstates the reasoning for that conclusion. The child’s status as a trespasser would only be relevant in litigation against an owner or possessor of land, such as the corporation. Under the facts as described, there is no evidence of lack of reasonable care, and the day-care center should prevail for that reason.

A patient had been under the care of a cardiologist for three years prior to submitting to an elective operation that was performed by a surgeon. Two days thereafter, the patient suffered a stroke, resulting in a coma, caused by a blood clot which formed after the operation. When it appeared that she had entered a permanent vegetative state, with no hope of recovery, the artificial life-support system that had been provided was withdrawn, and she died a few hours later. The withdrawal of artificial life support had been requested by her family, and duly approved by a court. The surgeon was not involved in that decision, or in its execution. The administrator of the patient's estate thereafter filed a wrongful death action against the surgeon, claiming that the surgeon was negligent in having failed to consult a cardiologist prior to the operation. At the trial the plaintiff offered evidence that accepted medical practice would require examination of the patient by a cardiologist prior to the type of operation that the surgeon performed. In this action, the plaintiff should

• prevail, because the surgeon was negligent in failing to have the patient examined by a cardiologist prior to the operation.
• prevail, because the blood clot that caused the patient's death was caused by the operation which the surgeon performed.
• not prevail, because there is no evidence that a cardiologist would have provided advice that would have changed the outcome if one had examined the patient before the operation.
• not prevail, because the surgeon had nothing to do with the withdrawal of artificial life support, which was the cause of the patient's death.

A man and his friend were charged with conspiracy to dispose of a stolen diamond necklace. The friend jumped bail and cannot be found. Proceeding to trial against the man alone, the prosecutor calls the friend's girlfriend as a witness to testify that the friend confided to her that "[the man] said I still owe him some of the money from selling that necklace." The witness's testimony is

• admissible, as evidence of a statement by party-opponent.
• admissible, as evidence of a statement against interest by the friend.
• inadmissible, because the friend's statement was not in furtherance of the conspiracy.
• inadmissible, because the friend is not shown to have firsthand knowledge that the necklace was stolen.

A defendant was charged with attempted murder of a victim in a sniping incident in which the defendant allegedly shot at the victim from a bush as the victim drove his car along an expressway. The prosecutor offers evidence that seven years earlier the defendant had fired a shotgun into a woman's house and that the defendant had once pointed a handgun at another driver while driving on the street. This evidence should be

• excluded, because such evidence can be elicited only during cross-examination.
• excluded, because it is improper character evidence.
• admitted as evidence of the defendant's propensity toward violence.
• admitted as relevant evidence of the defendant's identity, plan, or motive.

A defendant operates a bank courier service that uses armored trucks to transport money and securities. One of the defendant's armored trucks was parked illegally, too close to a street intersection. The plaintiff, driving his car at an excessive speed, skidded into the armored truck while trying to make a turn. The truck was not damaged, but the plaintiff was injured. The plaintiff has brought an action against the defendant to recover damages for his loss resulting from the accident. The jury determined that both parties were negligent, but that the defendant was less negligent than the plaintiff. The jurisdiction follows a pure comparative negligence rule. In this action, the plaintiff should recover

• nothing, because the defendant was not an active or efficient cause of the plaintiff's loss.
• nothing, because the defendant was less negligent.
• his entire loss, reduced by a percentage that reflects the negligence attributed to the plaintiff.
• his entire loss, because the defendant's truck suffered no damage.

A defendant is on trial in federal court for bank robbery. Before the police had any suspects, a police officer interviewed an eyewitness at the police station and showed her a “mug book” containing dozens of photographs. The eyewitness identified the defendant’s photograph as that of the robber. At trial, the eyewitness surprises the prosecutor by testifying that she is unable to identify the defendant as the robber. The prosecutor calls the officer to testify that the eyewitness identified the defendant from the photograph in the police station. The eyewitness remains present in the courthouse and can be recalled. Is the officer’s testimony admissible?

• No, because the eyewitness was unable to identify the defendant at trial.
• No, because the eyewitness’s testimony has disappointed the prosecutor but has not affirmatively harmed the prosecution’s case.
• Yes, because the eyewitness’s statement of identification as reported by the officer is not excluded by the hearsay rule.
• Yes, because the hearsay rule does not exclude out-of-court statements if a declarant testifies and is available for cross- examination.

At the defendant's trial for burglary, one of the defendant's friends supported the defendant's alibi that they were fishing together at the time of the crime. On cross-examination, the friend was asked whether his statement on a credit card application that he had worked for his present employer for the last five years was false. The friend denied that the statement was false. The prosecutor then calls a witness, the manager of the company for which the friend works, to testify that although the friend had been first employed five years earlier and is now employed by the company, there had been a three- year period during which he had not been so employed. The testimony of the witness is

• admissible, in the judge's discretion, because the friend's credibility is a fact of major consequence to the case.
• admissible, as a matter of right, because the friend "opened the door" by his denial on cross-examination.
• inadmissible, because whether the friend lied in his application is a matter that cannot be proved by extrinsic evidence.
• inadmissible, because the misstatement by the friend could have been caused by a misunderstanding of the application form.

A hiker, although acting with reasonable care, fell while attempting to climb a mountain and lay unconscious and critically injured on a ledge that was difficult to reach. The plaintiff, an experienced mountain climber, was himself seriously injured while trying to rescue the hiker. The plaintiff's rescue attempt failed, and the hiker died of his injuries before he could be reached. The plaintiff brought an action against the hiker's estate for compensation for his injuries. In this jurisdiction, the traditional common-law rules relating to contributory negligence and assumption of risk remain in effect. Will the plaintiff prevail in his action against the hiker's estate?

• Yes, because his rescue attempt was reasonable.
• Yes, because the law should not discourage attempts to assist persons in helpless peril.
• No, because the hiker's peril did not arise from his own failure to exercise reasonable care.
• No, because the plaintiff's rescue attempt failed and therefore did not benefit the hiker.

The beneficiary of a decedent's life insurance policy has sued the life insurance company for the proceeds of the policy. At issue is the date when the decedent first experienced the heart problems that led to his death. The decedent's primary care physician has testified at trial that the decedent had a routine checkup on February 15. The physician then identifies a photocopy of a questionnaire, provided by the physician and completed by the decedent on that date, in which the decedent wrote: "Yesterday afternoon I broke into a big sweat and my chest hurt for a while." The beneficiary now offers the photocopy in evidence. Should the court admit the photocopy?

• No, because the original questionnaire has not been shown to be unavailable.
• No, because the statement related to past rather than present symptoms.
• Yes, as a business record.
• Yes, as a statement for the purpose of obtaining medical treatment.