Pqs I Got Wrong 2015 Hawaii Bar Exam Mbe

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Fdgfdsds • • In a civil trial arising from a car accident at an intersection, the plaintiff testified on direct that he came to a full stop at the intersection. On cross-examination, the defendant's lawyer asked whether the plaintiff claimed that he was exercising due care at the time, and the plaintiff replied that he was driving carefully. At a sidebar conference, the defendant's lawyer sought permission to ask the plaintiff about two prior intersection accidents in the last 12 months where he received traffic citations for failing to stop at stop signs. The plaintiff's lawyer objected.Should the court allow defense counsel to ask the plaintiff about the two prior incidents?o ANo, because improperly failing to stop on the recent occasions does not bear on the plaintiff's veracity and does not contradict his testimony in this case.CorrectCorrect. Under Federal Rule of Evidence 608(b), a witness can be impeached with prior bad acts that bear upon truthfulness. Failing to stop at a stop sign has no bearing on truthfulness. As a general matter, a witness also can be impeached with evidence that contradicts a part of his testimony that bears on an important issue in dispute. However, in this case, the prior bad acts do not contradict the witness's testimony that he stopped on this occasion. Essentially, the defendant is trying to show that the plaintiff is a careless driver. Carelessness is a character trait, and evidence of a person's character is not admissible in a civil case to prove how that person acted on the occasion in question.• According to a state law, state employees may be fired only "for good cause." A woman who was both a resident and an employee of the state was summarily fired on the sole ground that she had notified federal officials that the state was not following federal rules governing the administration of certain federally funded state programs on which she worked. The state denied the woman's request for a hearing to allow her to contest the charge. There is no record of any other state employee having been terminated for this reason.In a suit to reinstate her employment, which of the following claims provides the LEAST support for the woman?o AThe state's firing of her unconstitutionally abridged her freedom of speech.IncorrectIncorrect. The state fired the woman because of her speech (notifying federal officials that the state was not following federal rules). There is therefore a viable argument that the woman's firing abridged her freedom of speech.o BThe state's firing of her unconstitutionally denied her a privilege or immunity of state citizenship protected by Article IV.CorrectCorrect. The privileges and immunities clause of Article IV, Section 2, Clause 1 of the Constitution does not apply to these facts. The clause reaches only state actions that discriminate against citizens of other states. The woman is a citizen of the state that employed her because she is a resident of that state.o CThe state's firing of her violated the supremacy clause of Article VI, because it interfered with the enforcement of federal rules.IncorrectIncorrect. The supremacy clause (Article VI, Section 1, Clause 2) invalidates any state action that is contrary to federal law. It is reasonable to argue that the firing of an employee for notifying federal officials that the state was not following federal rules was in furtherance of action in violation of federal law and was thus prohibited by the supremacy clause.o DThe state's firing of her without affording her an opportunity for a hearing was an unconstitutional denial of procedural due process.IncorrectIncorrect. The due process clause of the Fourteenth Amendment generally prohibits states from taking property from an individual without notice and opportunity for a hearing. In the context of a government job, where state law provides that state employees can be fired only for good cause, a person has a legitimate claim of entitlement to, and thus a property interest in, his or her job. Here, the state had such a law, and the woman was therefore entitled to notice and the opportunity for a hearing before she was fired.• A car owner washed her car while it was parked on a public street, in violation of a statute that prohibits the washing of vehicles on public streets during rush hours. The statute was enacted only to expedite the flow of automobile traffic. Due to a sudden and unexpected cold snap, the car owner's waste water formed a puddle that froze. A pedestrian slipped on the frozen puddle and broke her leg. The pedestrian sued the car owner to recover for her injury. At trial, the only evidence the pedestrian offered as to negligence was the car owner's admission that she had violated the statute. At the conclusion of the proofs, both parties moved for a directed verdict. How should the trial judge proceed? o ADeny both motions and submit the case to the jury, because, on the facts, the jury may infer that the car owner was negligent. IncorrectIncorrect. Negligence creating the risk of an icy surface cannot be inferred from the mere fact that the car owner allowed the water to accumulate; the cold snap was "sudden and unexpected." Because there is no reasonable inference of negligence and no evidence of negligence (the statute is irrelevant because it does not speak to the risk that materialized in this case), the car owner's motion should be granted. o BDeny both motions and submit the case to the jury, because the jury may consider the statutory violation as evidence that the car owner was negligent. IncorrectIncorrect. The statute was not enacted to reduce the risk of accumulating ice on the public walkways. In fact, complying with the statute by washing the car in a private driveway would not have reduced the risk of accumulating ice on pedestrian walkways and may even have increased that risk. Therefore, violation of the statute says nothing about whether the car owner was negligent. The statute is irrelevant to the cause of action, and because the pedestrian offered no evidence supporting the claim of negligence except the statute, the car owner's motion should be granted. o CGrant the car owner's motion, because the pedestrian has failed to offer adequate evidence that the car owner was negligent. CorrectCorrect. The pedestrian offered no evidence supporting the claim of negligence except the statute, and the statute does not speak to the risk that materialized in this case. Accordingly, the car owner's motion should be granted. o DGrant the pedestrian's motion, because of the car owner's admitted statutory violation. IncorrectIncorrect. In this case, the statute was enacted solely to reduce a particular safety risk (congested traffic lanes) that neither materialized nor caused the pedestrian's injury. In fact, the car owner's motion should be granted, because the pedestrian offered no evidence supporting the claim of negligence except the statute, and the statute does not speak to the risk that materialized in this case. • A grantor executed an instrument in the proper form of a warranty deed purporting to convey a tract of land to his church. The granting clause of the instrument ran to the church "and its successors forever, so long as the premises are used for church purposes." The church took possession of the land and used it as its site of worship for many years. Subsequently, the church wanted to relocate and entered into a valid written contract to sell the land to a buyer for a substantial price. The buyer wanted to use the land as a site for business activities and objected to the church's title. The contract contained no provision relating to the quality of title the church was bound to convey. There is no applicable statute. When the buyer refused to close, the church sued the buyer for specific performance and properly joined the grantor as a party. Is the church likely to prevail? o ANo, because the grantor's interest prevents the church's title from being marketable. CorrectCorrect. The warranty deed conveyed a fee simple determinable title to the church and the grantor retained the future interest which is the possibility of reverter. The future interest becomes possessory immediately upon the occurrence of the limitation. A title is unmarketable when a reasonable person would not purchase it. This buyer plans to use the land as a site for business purposes, which would cause the limitation to occur and the title to be forfeited automatically to the grantor. o BNo, because the quoted provision is a valid restrictive covenant. IncorrectIncorrect. This answer correctly states that the church is unlikely to prevail, but it misstates the legal basis for this conclusion. The quoted provision creates a fee simple determinable title in the church. If the stated limitation occurs, the fee simple estate terminates automatically and title is forfeited to the holder of the future interest (in this case, the grantor). A restrictive covenant involves a promise regarding the use of the land and is not the title itself. Because the title in this case will be forfeited to the grantor if the land is not used for church purposes, no reasonable third party is likely to buy the land, and the church's title is not marketable. • A homeowner sued a plumber for damages resulting from the plumber's allegedly faulty installation of water pipes in her basement, causing flooding. At trial, the homeowner was prepared to testify that when she first detected the flooding, she turned off the water and called the plumber at his emergency number for help. The plumber responded, "I'll come by tomorrow and redo the installation for free." Is the plumber's response admissible? o ANo, because it is an offer in compromise. IncorrectIncorrect. Federal Rule of Evidence 408 protects statements concerning a "claim" that is "disputed as to validity or amount." However, in this case there was no pending dispute at the time the statement was made. The homeowner was simply calling for help and had not complained about the plumber's work or in any other way indicated that there was a dispute between the parties. Accordingly, the statement does not qualify as an offer in compromise. o BNo, because it is hearsay not within any exception. IncorrectIncorrect. Rule 801(d)(2)(A) exempts statements made by a party, used against the party, from the definition of hearsay. In this case, the plumber is a party and the statement is being offered against him. In this context, the statement is not hearsay. o CYes, as a subsequent remedial measure. IncorrectIncorrect. This option correctly states that the statement is admissible, but it misstates the reason why this is so. Federal Rule of Evidence 407 excludes evidence of measures taken that, had they been taken prior to the event that caused the injury, would have made the injury or harm less likely to occur. Here, no "measure" was taken at all. The plaintiff wants to introduce a statement, not any action that would have made the injury less likely to occur. Therefore Rule 407 is inapplicable. o DYes, as evidence of the plumber's fault. CorrectCorrect. This is a party admission, admissible as a hearsay exemption under Rule 801(d)(2)(A). A statement made by a party cannot be excluded as hearsay when offered against him by the opponent. Moreover, the statement is probative. A person who makes a statement like this is likely to think he is at fault, and this is probative evidence that indeed he is at fault. • A seller and a purchaser signed a contract for the sale of a 60-year-old house. The contract required a warranty deed to be given at closing. The contract was silent regarding the condition of the house, and the purchaser did not ask. The purchaser received a warranty deed with all covenants of title at the closing and promptly recorded the deed. Approximately one month after the closing, the furnace in the house stopped working, the basement flooded, and the roof leaked so badly that the second floor could not be occupied. The seller, when told of the house's condition, was genuinely surprised.There is no applicable statute.The purchaser has sued the seller for damages. Will the purchaser likely be successful? o AYes, because with a conveyance of residential real property, a warranty of fitness is implied.IncorrectIncorrect. Any implied warranty of fitness for conveyed real property applies only to newly constructed residential property that is conveyed by a builder or developer.o BYes, based on the covenants of title contained in the deed the purchaser received.IncorrectIncorrect. The covenants in a warranty deed relate to the title of the property, not the physical condition of the property.o CNo, because the seller gave no warranty regarding the condition of the house.CorrectCorrect. The seller made no representations about the condition of the house, and there was no statute in place requiring any disclosure regarding condition. Even when a seller has a duty of disclosure, it is only to disclose known defects.o DNo, because of the doctrine of merger.IncorrectIncorrect. The purchaser will be unsuccessful, but not because of the doctrine of merger. The doctrine of merger relates to title issues having to do with real property, not the physical condition of the property.

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