Bar Exam — MBE (Multistate Bar Exam) flashcards

Owners of animals known to have dangerous propensities are held strictly liable for injuries caused by those animals, regardless of the precautions taken.

• Applies to wild animals by nature.
• Applies to domestic animals with known dangerous propensities (the 'one-bite rule').
• Liability is imposed even if the owner exercised reasonable care.

Memory trick: Animal's bite: Strict or Negligent?

Both involve intentional interference with personal property, but conversion is a more serious interference, justifying payment of the full value of the chattel, while trespass to chattels is a lesser interference, usually resulting in damages for loss of use or diminished value.

• Conversion: Serious interference, defendant pays full value.
• Trespass to Chattels: Minor interference, defendant pays for actual damages or loss of use.
• Both require intent to interfere with property, not necessarily intent to cause harm.
• Destruction of property is typically conversion.

Memory trick: Land, Chattels, Conversion: Property's Protected Zones.

Under 28 U.S.C. § 1291, federal appellate courts generally have jurisdiction only over 'final decisions' of the district courts. A final decision is one that disposes of all claims against all parties in the lawsuit, leaving nothing for the district court to do but execute the judgment.

• Promotes judicial efficiency by avoiding piecemeal appeals.
• Orders granting partial summary judgment are typically not final.
• Exceptions exist: Rule 54(b) certification, interlocutory appeals, collateral order doctrine.

Memory trick: Appeal Only When It's Final, Unless a Special Rule Says Go.

A contractual provision in real estate agreements making timely performance a material condition, such that failure to perform by the specified date constitutes a material breach.

• Makes strict compliance with deadlines mandatory.
• Failure to meet a deadline is a material breach.
• Often included in real estate contracts.
• Without it, timely performance is generally not a material condition unless circumstances indicate otherwise.

Memory trick: Time is Tough, Essence is Exact.

Governmental entities generally owe a duty of reasonable care to maintain their public premises in a safe condition for public use, particularly when they have notice of a dangerous condition.

• Applies to public areas (sidewalks, parks, roads).
• Standard is reasonable care.
• Duty is heightened with actual or constructive notice of a hazard.
• Immunities may apply but often do not cover operational negligence like failing to repair a known hazard.

Memory trick: Foreseeable Harm, Reasonable Person: The Standard of Care.

A tort that protects a person's reputation from false and damaging statements. It requires a false and defamatory statement of fact concerning the plaintiff, published to a third party, causing harm.

• False and defamatory statement.
• Of or concerning the plaintiff.
• Published to a third party.
• Resulting in harm to reputation.

Memory trick: Reputation's 'Ruin' is caused by 'Rumors' that are 'Untrue' and 'Invasive' 'Nastiness'.

The order in which mortgages and other liens are paid from the proceeds of a foreclosure sale, typically determined by recording date.

• Generally, 'first in time, first in right' (first to record has priority).
• Senior liens are paid in full before junior liens receive any proceeds.
• Foreclosure of a senior mortgage extinguishes junior liens.
• Foreclosure of a junior mortgage does not affect senior liens.

Memory trick: Priority Pays First, Proceeds Pass Down.

A tort of unfair competition where one business misrepresents its goods or services as those of another, leading to consumer confusion and potential economic harm to the original business.

• Plaintiff must have established goodwill/reputation for their goods/services.
• Defendant misrepresents their goods/services as the plaintiff's.
• Misrepresentation causes or is likely to cause consumer confusion.
• Plaintiff suffers damage (e.g., lost sales, damage to reputation).

Memory trick: Unfair Play: Copycat Confusion.

The legal cause of an injury, limiting a defendant's liability to harms that are reasonably foreseeable consequences of their negligent act, and not too remote or attenuated.

• Limits liability for factual cause.
• Based on foreseeability of the type of harm.
• Direct cause vs. indirect cause scenarios.
• Superseding intervening causes can break the chain of proximate causation.

Memory trick: Actual Cause (But-For), Proximate Cause (Foreseeable): Two Links in the Chain.

A standard of fault required for public figures/officials in defamation cases, meaning the defendant knew the statement was false or acted with reckless disregard as to its truth or falsity.

• Required for public figures and public officials.
• Involves a high degree of awareness of probable falsity.
• Mere negligence or ill will is not enough.

Memory trick: Public Figures Need Malice, Private People Need Less.

Federal courts can hear state-law claims and claims involving additional parties over which the court would not otherwise have subject matter jurisdiction, provided they form part of the same case or controversy as claims over which the court does have original jurisdiction.

• Codified in 28 U.S.C. § 1367.
• Requires state and federal claims to derive from a 'common nucleus of operative fact'.
• Courts have discretion to decline supplemental jurisdiction in certain circumstances.

Memory trick: Federal courts 'Supplement' their power with related claims.

A common law doctrine that prevents a grantor from creating a remainder in his own heirs; instead, it is presumed the grantor intended to retain a reversion.

• Applies when a grantor conveys an interest to his own heirs.
• Converts a remainder to the grantor's heirs into a reversion in the grantor.
• Largely abolished or modified in modern law, but relevant for older conveyances or MBE questions.

Memory trick: Future interests are like time travelers, knowing their place in the property's journey.

A motion made during a jury trial, after a party has presented its case, asserting that no reasonable jury could find for that party on a given issue based on the evidence presented.

• Made at the close of the plaintiff's evidence or at the close of all evidence.
• Challenges the legal sufficiency of the evidence.
• If granted, the judge enters judgment without the jury's deliberation.

Memory trick: At 'Trial', 'Motions' challenge the 'Evidence' for a 'Verdict'.

To establish a claim of negligence, the plaintiff must prove that the defendant owed a duty of care, breached that duty, the breach caused the plaintiff's injury, and actual damages resulted.

• Duty: Obligation to conform to a certain standard of conduct.
• Breach: Failure to meet the standard of care.
• Causation: Factual (but-for) and Proximate (foreseeable) cause.
• Damages: Actual injury or loss suffered.

Memory trick: Intentional, Negligent, or Strict: Pick Your Path to Pain.

Activities that, by their nature, present a high risk of serious harm even when reasonable care is exercised, leading to strict liability for any resulting damage.

• Activity creates a foreseeable and highly significant risk of harm.
• Harm cannot be eliminated by the exercise of reasonable care.
• Activity is not a matter of common usage in the community.
• Examples: blasting, keeping wild animals, storing explosives.

Memory trick: Animals, Blasting, Products: Strict Liability's Three Pillars.

A fee simple estate that automatically terminates upon the occurrence of a stated event, with the grantor (or their heirs) retaining a possibility of reverter.

• Created by 'so long as,' 'while,' 'during,' 'until,' 'unless.'
• Title automatically reverts to grantor/heirs upon condition breach.
• Grantor's retained interest is a possibility of reverter.
• Distinguish from Fee Simple Subject to Condition Subsequent (which requires action to re-enter).

Memory trick: Determinable Dies Directly, Condition Subsequent Calls for Claim.

Parties generally have a right to appeal a federal district court's final judgment to the appropriate circuit court of appeals. Appeals typically challenge errors of law or clear errors of fact.

• Appeals are generally taken from 'final decisions' (28 U.S.C. § 1291).
• A notice of appeal must be filed within 30 days of the judgment (or 60 days if the U.S. is a party).
• Errors of law are reviewed de novo; findings of fact are reviewed for clear error.

Memory trick: Final 'Judgment' needs a 'Challenge', often 'Up' to the next court.

An intentional interference with the plaintiff's right of possession of personal property.

• Requires intent to interfere, not necessarily to harm.
• Interference can be dispossession, use, or intermeddling.
• Plaintiff must show actual harm or dispossession.

Memory trick: My Chattel Got Trespassed By a Teenager's Intent.

A defendant may file a motion to dismiss a complaint for 'failure to state a claim upon which relief can be granted' if, assuming all factual allegations in the complaint are true, the plaintiff has not pleaded a plausible claim for relief.

• Filed early in the litigation, before an answer.
• Focuses solely on the allegations in the complaint.
• Court considers if the facts, if true, would entitle the plaintiff to relief.

Memory trick: Pleading Problems? Motion to Dismiss is your first stop.

In commercial leases, the landlord's duty to repair typically arises from express covenants in the lease; breach leads to contractual remedies.

• No implied warranty of habitability in most commercial leases.
• Repair duties are usually specified in the lease agreement.
• Breach of a repair covenant allows tenant to sue for damages.
• Self-help remedies (repair and deduct, rent withholding) are generally not available unless specified by lease or statute.

Memory trick: Breach is Bad, But Remedies are Rules.

Federal courts have subject matter jurisdiction over cases between citizens of different states where the amount in controversy exceeds $75,000.

• Requires complete diversity (no plaintiff shares citizenship with any defendant).
• Amount in controversy must be greater than $75,000.
• Established by 28 U.S.C. § 1332.

Memory trick: Federal courts have a 'Subject' they can 'Matter' about.

Liability without fault for activities that create a foreseeable risk of serious harm even when reasonable care is exercised.

• Activity must involve a high degree of risk of serious harm.
• Risk cannot be eliminated by reasonable care.
• Activity must not be a matter of common usage in the community.

Memory trick: Dangerous Deeds Don't Need Negligence to be Liable.

When a real estate contract fails to specify a closing date, courts generally imply that performance must occur within a 'reasonable time.'

• Does not typically invalidate an otherwise valid contract.
• Other essential terms (parties, property, price) must be present.
• What constitutes 'reasonable time' depends on circumstances.

Memory trick: Reasonable Time Saves the Silent Date

A tort rule where a plaintiff's damages are reduced by the percentage of their own fault, regardless of how great that fault is.

• Plaintiff can recover even if 99% at fault.
• Damages are directly proportional to the defendant's percentage of fault.
• Contrast with modified comparative negligence (50% or 51% bar).

Memory trick: Compare Fault, Reduce Payout.

An intentional act by the defendant that causes a harmful or offensive contact with the plaintiff's person. No intent to harm is required, only intent to make contact.

• Intentional act (desire or substantial certainty of contact).
• Harmful or offensive contact.
• To the plaintiff's person (includes anything connected to them).
• No actual damages required (nominal damages possible).

Memory trick: Intentional contact causes 'ouch', whether a shove or a shout.

For a real estate contract to be enforceable under the Statute of Frauds, the property description must be sufficient to identify the land with reasonable certainty.

• Does not require a formal legal description (e.g., metes and bounds).
• A street address is often sufficient if it allows for unique identification.
• The purpose is to prevent fraud by ensuring the property can be definitively located.

Memory trick: The Statute of Frauds says 'Write it down, or it won't stand ground!'

A failure to conform to the required standard of care.

• Standard of care is typically that of a reasonably prudent person.
• Can be established by direct evidence, circumstantial evidence, or negligence per se.
• Involves comparing defendant's conduct to the standard.

Memory trick: Don't Break Your Cause For Damages.

A property owner may use reasonable force to defend their property, but deadly force or force likely to cause serious bodily harm is generally not permitted solely to protect property.

• Force must be reasonable and proportionate to the threat.
• Deadly force is only justified to prevent serious bodily harm or death to a person.
• Cannot use force that intentionally or recklessly causes death or serious bodily injury to protect property alone.

Memory trick: Property Protector's Power Has Limits.

A landlord owes a duty of reasonable care to maintain common areas of leased premises in a safe condition for tenants and their guests, and to repair or warn of known dangerous conditions.

• Applies to areas under landlord's control (hallways, stairs, lobbies).
• Standard is reasonable care.
• Duty to repair or warn of known or reasonably discoverable dangers.
• Cannot delegate this duty to tenants.

Memory trick: Invitee, Licensee, Trespasser: Each Has a Different Welcome.

When a lease requires the landlord's consent for assignment or subletting, the landlord's refusal may be subject to a reasonableness standard, but an unapproved assignment still transfers the leasehold estate.

• Original tenant remains liable to landlord under privity of contract unless novation occurs.
• Assignee becomes liable to landlord under privity of estate.
• A 'silent consent' clause often implies a reasonableness standard for landlord's refusal.

Memory trick: Lease assignments are like passing the baton, but the first runner is still on the hook!

A doctrine in tort law where a defendant's unexcused violation of a statute or ordinance establishes a breach of duty as a matter of law, if the statute was designed to protect a class of persons which includes the plaintiff from the type of harm which occurred.

• Defendant violated a statute or ordinance.
• Statute designed to protect a specific class of persons.
• Plaintiff is a member of that protected class.
• Harm suffered is of the type the statute was designed to prevent.

Memory trick: Res Ipsa, Per Se: Two Ways to Prove Breach with Ease.

Upon assignment of a lease, the original tenant generally remains liable to the landlord under 'privity of contract' unless the landlord explicitly agrees to a novation.

• Original tenant retains contractual liability.
• Assignee becomes primarily liable to landlord under 'privity of estate'.
• Novation is required to fully release the original tenant.

Memory trick: Original Tenant = Contract Chain

A pre-answer motion requesting a party to clarify a pleading that is so vague or ambiguous that the moving party cannot reasonably prepare a response.

• Must be filed *before* filing a responsive pleading.
• Only appropriate if the vagueness truly prevents preparing a response.
• Not a substitute for discovery to obtain more detailed information.

Memory trick: Pleadings 'Challenge' needs a 'Rule 12' answer.

For a real estate contract to be enforceable, the written agreement must contain a description of the property sufficient to identify it with reasonable certainty.

• Does not require a formal metes and bounds description.
• A street address, common name, or other clear identifier can be sufficient.
• The test is whether a surveyor can locate the property from the description.
• Must avoid ambiguity that makes the property unidentifiable.

Memory trick: Written Warrants What's Wanted, Certainty Confirms Contract.

A land use that lawfully existed prior to the enactment of a zoning ordinance but does not conform to the new zoning requirements.

• Generally permitted to continue, but often subject to restrictions.
• Restrictions typically include limits on expansion, alteration, or reconstruction after destruction.
• Policy aims to gradually eliminate such uses over time.

Memory trick: Old Use, New Rules, No Expand

Liability without fault imposed on commercial sellers for harm caused by defective products. It aims to protect consumers from unsafe products.

• Applies to commercial sellers (manufacturers, distributors, retailers).
• Product must be defective (manufacturing, design, or warning).
• Defect must have existed when it left seller's control.
• Causation and damages must be proven.

Memory trick: Products have no excuses, if they break and cause bruises.

A federal court may decline to exercise supplemental jurisdiction over a state-law claim if it has dismissed all claims over which it has original jurisdiction, or if the state-law claim raises a novel or complex issue of state law, or if it substantially predominates over the federal claims.

• Discretionary, not mandatory.
• Most common when federal claims are dismissed early in the litigation.
• Dismissal is typically without prejudice, allowing refiling in state court.

Memory trick: The 'Supplement' power can be 'Declined' if the main course is gone.

A motion for a new trial may be granted for any reason for which a new trial has heretofore been granted in an action at law in federal court, such as a verdict against the clear weight of the evidence, excessive damages, or serious errors of law or procedure that prejudiced a party.

• Must be filed no later than 28 days after entry of judgment.
• Court has broad discretion to grant if trial was unfair or verdict was seriously flawed.
• Can be based on errors in law, facts, or procedure.

Memory trick: After Trial, Options are New or Judged or Changed.

The Eleventh Amendment generally bars federal courts from hearing lawsuits against state governments by private citizens. However, Congress can abrogate this immunity if it acts pursuant to a valid constitutional power (e.g., Section 5 of the Fourteenth Amendment) and clearly expresses its intent to do so in the statute.

• Protects states from federal court suits by private citizens.
• Exceptions: State consent, congressional abrogation, suits against state officers for injunctive relief.
• Congressional abrogation requires clear intent and a valid constitutional basis (typically 14th Amendment, not Commerce Clause).

Memory trick: Eleven Shield: States are Safe, Unless Congress Breaks the Code.

A tort allowing recovery for severe emotional distress caused by another's negligence, even without direct physical impact, if the plaintiff was in the immediate 'zone of danger' of physical harm.

• Plaintiff must be in the 'zone of danger' of physical impact.
• Plaintiff must suffer severe emotional distress.
• Most jurisdictions require some physical manifestation of the emotional distress.

Memory trick: NIED: Fear in the Danger Zone

Owners are strictly liable for harm caused by wild animals they keep, and for domestic animals if they knew or should have known of the animal's dangerous propensities (the 'one bite rule').

• Wild animals: Strict liability applies automatically.
• Domestic animals: Strict liability if owner knew of dangerous propensity.
• Knowledge can be inferred from prior acts or breed reputation.
• Defenses include trespass, provocation, and assumption of risk.

Memory trick: Animals with an 'attitude' bring strict liability, no 'if's or 'but's.

A motion filed by a defendant asserting that, even if all the factual allegations in the plaintiff's complaint are true, the plaintiff has failed to state a cause of action for which the law provides a remedy.

• Tests the legal sufficiency of the complaint, not the factual merits.
• Court assumes all factual allegations in the complaint are true.
• Often results in dismissal without prejudice, allowing plaintiff to amend the complaint.

Memory trick: Rule 12: 'Prior' to answer, 'Move' to 'Dismiss'.

A method of distributing an estate where the heirs take by right of representation, meaning they take the share their deceased ancestor would have taken.

• Estate divided into shares at the first generation with living heirs.
• Deceased members of that generation who left issue have their share passed to their issue.
• Each branch of the family receives an equal share.
• Commonly used in intestacy laws.

Memory trick: Stirpes Starts from the Stem, Capita Counts Each Child.

A form of negligence where a manufacturer or seller fails to adequately warn consumers about non-obvious dangers associated with their product, leading to injury.

• Duty to warn of known or knowable dangers.
• Danger must be non-obvious to an ordinary user.
• Failure to warn breaches this duty.
• Breach must cause the plaintiff's injury.

Memory trick: Defective product? Negligence, Strict, or Warranty: Pick Your Path.

An appellate court reviews a district court's decision on a renewed motion for judgment as a matter of law (RJML) de novo. This means the appellate court independently assesses whether the evidence, viewed in the light most favorable to the non-moving party, is legally sufficient to support the jury's verdict.

• Applies the same standard as the district court.
• Looks for a 'legally sufficient evidentiary basis' for the jury's verdict.
• Does not defer to the district court's assessment of the evidence.

Memory trick: Appeals: Law is De Novo, Facts are Clearly Wrong, Discretion is Abused.

A doctrine in tort law that allows negligence to be inferred from the circumstances of an injury when the event would not ordinarily occur without negligence, the defendant had exclusive control, and the plaintiff did not contribute.

• Latin for 'the thing speaks for itself'.
• Shifts burden of proof regarding breach of duty.
• Requires event not ordinarily occur without negligence.
• Requires defendant's exclusive control over instrumentality.

Memory trick: Res Ipsa Loquitur: 'Remarkably, it speaks for itself, so the proof just fits itself!'

A product defect where the product is unreasonably dangerous as designed, even if perfectly manufactured.

• Can be proven by the consumer expectation test or the risk-utility test.
• Risk-utility test considers feasibility and cost of safer alternative designs.
• Applies to the entire product line.

Memory trick: Made Defectively, Designed Dangerously, Warned Weakly.

For diversity jurisdiction, the amount in controversy must exceed $75,000. This is generally met if the plaintiff claims damages in good faith exceeding this amount, unless it appears to a legal certainty that the claim is for less.

• Must exceed $75,000, exclusive of interest and costs.
• Plaintiff's good faith assertion is usually sufficient.
• Dismissal only if it appears to a 'legal certainty' that the claim is for less.

Memory trick: Diverse parties, Big Money, Legal Certainty.

A party may move for a more definite statement if a pleading to which a responsive pleading is allowed is so vague or ambiguous that the party cannot reasonably prepare a response. The motion must point out the defects complained of and the details desired.

• Available only if the pleading is truly vague or ambiguous.
• Typically used when an answer cannot be framed.
• Used before filing an answer.

Memory trick: Pleading Problems: Dismiss, Clarify, or Strike.

A key element of battery is intentional harmful or offensive physical contact with the plaintiff's person. Without such contact, the tort of battery is not established.

• Contact must be actual physical contact or contact with something intimately connected to the person.
• Contact must be harmful or offensive.
• Defendant must intend to cause the contact or apprehension of contact.
• Absence of contact is a complete defense to battery.

Memory trick: Battery: Intentional, Harmful, Contact.

A defense in negligence cases stating that a person confronted with a sudden, unforeseen peril not of their own making is not negligent if they act as a reasonably prudent person would under the same emergency conditions.

• The emergency must be sudden and unexpected.
• The emergency must not be of the actor's own making.
• The actor's response must be reasonable under the emergency circumstances.

Memory trick: Emergencies demand SUDDEN, reasonable responses.

The order in which mortgages on a property are satisfied from the proceeds of a foreclosure sale, generally determined by the order of proper recording.

• First in time, first in right (first to record, typically).
• Recording acts (notice, race-notice, race) govern priority.
• Unrecorded mortgages are generally junior to recorded ones.

Memory trick: Record first, get paid first.

A title to real property that is free from reasonable doubt as to its validity and would be accepted by a reasonably prudent buyer.

• Implied in most real estate contracts unless disclaimed.
• Typically conveyed by a general warranty deed.
• Free from encumbrances, defects, and reasonable doubt.

Memory trick: Silent contract, loud marketable title.

A tort for wrongfully initiating criminal proceedings without probable cause and with malice, which terminate in the plaintiff's favor.

• Defendant initiated criminal proceedings.
• Without probable cause.
• With malice (improper purpose).
• Proceedings terminated in plaintiff's favor.

Memory trick: Malice Makes Prosecution a Problem.

A defense in products liability where the plaintiff voluntarily and knowingly encountered a known risk posed by a defective product.

• Plaintiff must have actual knowledge of the defect and the risk.
• Plaintiff must voluntarily encounter the known risk.
• Often related to product misuse or alteration.

Memory trick: Product Liability: Defenses block the defect.

A defense in tort law that bars a plaintiff from recovering damages if their own negligence contributed to their injury, even slightly.

• Plaintiff's conduct fell below the standard of care for their own safety.
• Plaintiff's negligence was a cause of their injury.
• In pure contributory negligence jurisdictions, it's a complete bar to recovery; most states now use comparative negligence.

Memory trick: Don't Contribute to Your Own Catastrophe.

A defense in tort law where the plaintiff voluntarily and knowingly encounters a known risk created by the defendant's negligence.

• Plaintiff must have knowledge of the risk.
• Plaintiff must voluntarily assume the risk.
• Can be express (waiver) or implied (participating in risky activity).

Memory trick: Risk Assumed, Recovery Reduced or Removed.

A covenant concerning the use of land that is enforceable in equity against subsequent purchasers with notice, even if the covenant does not run with the land at law.

• Enforceable in equity (injunction, specific performance).
• Requires intent, notice, and 'touches and concerns' the land.
• Does not require horizontal or vertical privity.
• Can be created by a common scheme of development (e.g., recorded declaration).

Memory trick: Covenants Keep Communities Cohesive, Servitudes Serve with Equity.

A fundamental principle of negligence requiring individuals to act with reasonable care to avoid causing foreseeable harm to others, including those who may be indirectly affected by their actions.

• Applies to all persons in society.
• Standard of care is that of a reasonably prudent person.
• Duty extends to all foreseeable plaintiffs.
• Harm must be foreseeable consequence of the act.

Memory trick: Negligence: 'No Excuse, Gross Error, Causing Harm, Damages Ensure'.

In tort law, there is generally no affirmative duty to act to rescue another person, even if they are in peril, unless a special relationship exists or the defendant created the peril.

• No general duty to rescue.
• Exceptions: Special relationships (parent-child, innkeeper-guest, common carrier-passenger).
• Exception: Defendant created the peril.
• Once rescue is undertaken, rescuer must act reasonably and not worsen the situation.

Memory trick: No Duty to Help, Unless You're Special or the Cause.