A mother purchased an expensive television from an appliance store for her adult son.

| March 14, 2016

Question
Question 1

A mother purchased an expensive television from an appliance store for her adult son. Two years after the purchase, a fire started in the son’s living room in the middle of the night. The fire department concluded that the fire had started in the television. No other facts are known.

The son sued the appliance store for negligence. The store has moved for summary judgment. Should the court grant the store’s motion?

1. No, because televisions do not catch fire in the absence of negligence.

2. No, because the store sold the television.
3. Yes, because the son is not in privity with the store.
4. Yes, because there is no evidence of negligence on the part of the store.

Explain:

Question 2

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 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?

1. No, because the original questionnaire has not been shown to be unavailable.

2. No, because the statement related to past rather than present symptoms. 3. Yes, as a business record.
4. Yes, as a statement for the purpose of obtaining medical treatment.

Explain.

Question 3

A plaintiff’s estate sued a defendant store claiming that one of defendant’s security guards wrongfully shot and killed the plaintiff when plaintiff fled after being accused of shoplifting. The guard was convicted of manslaughter for killing the plaintiff. At his criminal trial, the guard, who was no longer working for the defendant, testified that the defendant’s security director had instructed him to stop shoplifters “at all costs.” Because the guard’s criminal conviction is on appeal, he refuses to testify at the civil trial. The plaintiff’s estate then offers an authenticated transcript of the guard’s criminal trial testimony concerning the instructions of the defendant’s security director.

This evidence is

1. admissible as a statement of an agent of a party-opponent.
2. admissible, because the instruction from the security director is not hearsay.

3. admissible, although hearsay, as former testimony.
4. inadmissible, because it is hearsay not within any exception.

Explain.

Question 4

A city ordinance makes it unlawful to park a motor vehicle on a city street within ten feet of a fire hydrant. At 1:55 p.m. a driver, realizing he must be in his bank before it closed at 2:00 p.m., and finding no other space available, parked his automobile in front of a fire hydrant on a city street. The driver then hurried into the bank, leaving his aged neighbor as a passenger in the rear seat of the car. About five minutes later, and while the driver was still in the bank, a trucker was driving his tractor-trailer down the street. The trucker swerved to avoid what he mistakenly thought was a hole in the street and sideswiped the driver’s car. The driver’s car was turned over on top of the hydrant, breaking the hydrant and causing a small flood of water. The driver’s car was severely damaged and the neighbor was badly injured. There is no applicable guest statute.

If the neighbor asserts a claim against the driver, the most likely result is that the neighbor will

1. recover, because the driver’s action was negligence per se.

2. recover, because the driver’s action was a continuing wrong which contributed to the neighbor’s injuries.

3. not recover, because a reasonably prudent person could not foresee injury to the neighbor as a result of the driver’s action.

4. not recover, because a violation of a city ordinance does not give rise to a civil cause of action.

Explain.

Question 5

A cyclist sued a defendant corporation for injuries sustained when she was hit by a truck owned by the defendant and driven by its employee, who was making deliveries for the defendant. The day after the accident, the employee visited the cyclist in the hospital and said, “I’m sorry for what I did.” At trial, the employee testified that he had exercised due care.

Why is the cyclist’s testimony relating what the defendant’s employee said at the hospital admissible to prove negligence?

1. It is a prior inconsistent statement.
2. It is a statement against interest.
3. It is a statement by a party-opponent’s agent.

4. It is a statement of then-existing state of mind.

Explain.

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