MBE Rule Statements

The following pages contain the rule statements derived from over 2500 PMBR and MBE practice problems. The key to the MBE is practice, thus, the same rules are repeated over and over. CRIMINAL LAW Murder Murder is premeditation and deliberation. All others are second degree. If D convicted of first degree is it b.c mental state up to and including the moment of attack determines 1st degree (not causal relationship between Ds act and death of victim - may determine murder, but not degree). Premeditation is: commission of killing after reflection (even if short) in cool, dispassionate manner. Murder where D uses crazy neighbor as conduit and spikes her drink (she is not a co-conspirator and she was acquitted by insanity). Self-defense: Use of a deadly weapon = aggravated weapon. D must reasonably believe for self defense Not murder, manslaughter, involuntary manslaughter where D takes what he thinks it s toy gun, play-shoots another, but its a real gun and victim dies. No criminal negligence for involuntary manslaughter. Where husband benevolently administers poison thinking it will help, wife nevertheless dies of cancer, best reason for acquittal is that he didnt kill her (not that he didnt have malice b/c with other elements administration of poison could be malice). Where D holds up P, and P dies, D charged with 1st degree murder, best defense is that he took angel dust and doesnt remember getting gun or holding up dave (I dont know why, but probably b/c doesnt have mental state for the underlying felony). Conscious (reckless) disregard of the risk that drug Alyce places in food could be fatal is second degree murder. Where P has blood disorder, was flying to get treatment, but was poisoned beforehand, D is still guilty of murder (preexisting conditions dont absolve her). Where A & B rob C & Ds store, B rapes C, A ties up D in a storage room that doesnt look cold and D has special lung condition and D dies, C is probably not guilty of felony murder since this looks unforseeable b/c he didnt know he was being put in a cold storage compartment. Pushing a kid into a pool was least likely to be murder in the example (reckless, but not reckless and depraved heart). Private person can use deadly force effectuate an arrest when felon appears to pose a threat to person/others and deadly force is necessary to prevent his escape (so long as the felon is actually guilty) and can also use deadly force to prevent a crime risking human life. Self-defense: a person can use as much force as is reasonably necessary to protect himself against use of unlawful force on himself (e.g., D is shoved realy hard, D tackles and pins the other guy. Duress is not a defense to murder, but it is a defense to underlying felony (and subsequent felony murder charge).
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MBE Rule Statements

Generally felony murder requires that the dead must have been a foreseeable result of commission of the felony. Playing chicken in cars could be abandoned and maligned heart or involyuntary manslaughter under a lawful act without due cause and circumspection. If malice aforethought is an element of murder, the state may not require Defendant to prove prove he comitted the homicide in heat of passion (b/c that negates malice). Insanity is affirmative defense and it is constitutional to place the burden of proof on D If malice aforethought is an element of murder, and voluntary manslaughter is distinguished by adequate provocation, D cannot be required to prove he commited the act in the heat of passion. D can be given some responsibility to go forward on provocation issue, then Prosuection must show it wasnt done in heat of passion. In a game of chicken, Ds best defense is guilty of murder, but not first degree murder, st b/c 1 degree requires actual intent to kill, which D did not have. Being in someones house and refusing to leave immediately doesnt privilege someone to use deadly force against you. The no obligation to retreat rule does not apply if you are the initial aggressor. D acted in self defense when landowner tried to shoot him even though he was a trespasser. Where D puts store clerk with lung condition in a closet thats actually a refrigerator, not criminal homicide b/c: no awareness of unjustifiably high risk to human life. Manslaughter Calling someone is a sissy is not adequate provocation that would turn him into an aggressor. The judge should give a voluntary manslaughter instruction where guy attacks D earlier, then both at Bar, D gets shoved, thinks its guy, and stabs but is victim. Most courts submit to jury re: adequate provocation. D robs A at knifepoint, A gives D $20, D runs and A fires at D, killing her. D isnt charged with manslaughter its because he was apprehending a fleeing wrongdoer (privilege to used force to apprehend a fleeing felon ok if D threatens deadly force and deadly force necessary to prevent escape). If victim of robbery shoots at robber and misses but hits bystander and is charged with murder and Ds counsel wants to argue manslaughter then correct statemetn b/c there was adequate provocation (she could get off, but youre not asked about her criminal liability). Battery Negligent offensive touching probably lacks mental state for battery (intentional or reckless) where D is waving and hits pedestrian.

Conspiracy If one party is insane, cant have intent to make conspiracy If A, B, C, conspire to burglarize. C waits in car. A&B find drugs inside and pocket those Police come and C is charged with unlawful possession of drugs with intent to distribute, she is not guilty
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MBE Rule Statements

b/c conspiracy was not to steal items for resale. C did not know, thus no mental state for an accomplice. Intent to distribute not a reasonably forseeable crime. Under the unilateral approach, conspiracy is shoown by proof that D agreed with another to commit a crime and does not require proof of actual agreement. (E.g., where D is illegal alien, in class meant to be protected, cant be guilty of conspiracy, but the other can). A, B, & C conspire to rob a house. C steals gun. C gets incarcerated on other charges. A& B decide to rob, as theyre about to break down the door, they are arrested. C is guilty of larceny (gun), conspiracy (agreement, never communicated withdrawal), and attempted robbery (vicarious liability through the conspiracy). In most states, withdrawal is not a defense to conspiracy itself, but to subsequent acts of coconspirators. Where D1 & D2 want to go hunting, but the season ended yesterday (they didnt know), they buy equipment and then get pulled over, no conspiracy b/c no conspiracy to commit crime of hunting out of season (even though SL offense) they conspired to hunt in season. Double jeopardy If D commits armed robbery and guy gets hurt, and guy dies before the trial on the robbery charge begins, then he cannot later be charged with felony murder. If after the trial, he can. Larceny Intent to permanently deprive can be satisfied by substantial risk of loss. (.e.g, taking sofa outside and lighting it on fire. (however if D took it in honest belief it was repayment for the debt owed, then it isnt larceny). Where gambling is illegal, but A & B bet on a game, A doesnt pay, B sneaks in to get the money later, Bs best defense is that he thought A owed him the $, thus no intent to deprive the property of another. Remember where D gets possession, that is larceny by trick (and still larceny maybe). Larceny can be committed against a thief (one who got it under false pretenses) False Pretenses: Cheating on timecards is false pretenses (not embezzlement: no possession of the funds). No false pretenses where D fails to correct a known mistaekn impression by victim, so long as he doesnt create mistake or have a fiduciary relationship. larceny by tricks friends cars and it gets destroyed in demolition derby. Not embezzlement b/c larceny was complete upon Ds taking possession with intent to deprive (thus, had misappropriated and at the time of conversion was not in lawful possession of it) Receipt of Stolen Property: Where police continue to permit D to recover stolen autos, thus not recovered, then the buyer can still be liable for receipt of stolen property. Apparently picking up a gun that you friend stole when you go in to get your coat is larceny (even though there were not facts to suggest an intent to permanently deprive). Robbery Where D gives victim drug to knockout so he can steal papers, but gives him too much and victim dies, D can be convicted of murder b/c this is felony murder (robbery force sufficient to overcome resistance).
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MBE Rule Statements

Attempt If D acts in a way he thinks is a crime, but is not, he cant be guilty of the crime or the attempt. However if you have intent to receive stolen property, may be liable for attempt even if its not actually stolen anymore (check this) Where D wants to bomb coach, but accidentally uses stink bomb recipe isntead of incendiary bomb recipe and is charged with attempted murder & attempted arson he is not guilty of attempted murder, but is guilty of attempted arson b/c he thought an incendiary device was involved. Abandonment is not defense to attempted robbery where D has intent and takes act in dangerous proximity. Even in jurisdictions that recognize abandonment, if D abandoned b/c scared by a customer, not motivated by the requisite state of mind. Robbery Where D is a pickpocket, batteryis sufficient (merely slapping her hand so he can get away). To be robbery, there must be the taking of personal property (not just pointing a gun and demanding money). Burglary D is guilty of burglary and arson (not attempted arson) where he dumps gasoline in victim house, goes to buy a lighter, and lightning strikes and the house goes up in flames b/c even though manner was unintentional, it was natural/probable consequence. Dwelling if used for sleeping purposes. You must have intent to commit acts that would constitute a felony (so no long john flashing). Arson be arson, must be px/cz and but-for cause. Not but for cause where D douses basement in gasoline, but the effect is minimal, the real cause is lightning. 4th A The exclusionary rule does not apply to knock and announce. If Defendants are arrested and charged, mirandized, and then interrogated, then let D1 go talk to D2 in a bugged cell, D1s motion to suppress will be granted b/c police created situation likely to induce D to make an incriminating statement. It is unconstitutional for a cop to use deadly force to arrest unarmed escaping felon unless threat of physical harm/injury. Shooting is deemed a necessity situation that motive to enter/search to preserve live of person thought on premises/immediate danger is recognized exception to the warrant requirement. If, after being given Miranda, the accused invokes his right to counsel, all interrogation must stop. But where he is merely taken to booking station and blurts out something after invoked 5th A right to counsel, it is not interrogation, thus subsequent motion to suppress will not be granted.
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MBE Rule Statements

Inventory incident (taking of watch of guy booked into jail, sees inscription re: other guy who filed compaint, D charged with burglary of other guys house, Defes nright snot violated. Blue violates g/fs rights, enters home finds jewels and note from b/f arrests g/f. Then using that information, gets warrant, enters b/fs house finds tools and more jewels and arrest him. At trial, b/fs attorney files a motion to suppress jewels and note and tools and jewels and that will be denied b/c police had valid warrant to search b/fs house (no standing to contest 4th A violation of g/fs house. Absent an emergency, a forcible, warrantless entry into a residence to make felony arrest is unconstitutional (informant sold drugs to guy at house, police were watching, police knocked/announced and entered and found drugs on the table). B/c Defendant lives in a condominium, the warrant must specify which unit of the multidwelling unit must be searched. he fourth amendment is not violated by statute authorizing warrantless searches of probationers home when reasonable grounds to believe contraband is present (special needs). Mother can give consent to search sons room, if parent has general access (a the time Im making his bed) consetn si valid and eliminates need for p.c. and warrant. Ice pick question. Re: consent police need only reasonably believe consent is valid (e.g., where girlfriend gives consent to search mobile home). Mobile homes used as residences are subject to 4th A, mobile homes looking mobile are subject to auto exception (Carney). no ownership interest, no legitimate exceptation of privacy (thief sells stolen goods to store owner, police raid store, search invalid against owner b/c of warrant deficiency, but theif cannot suppress (no standing). Cops can set up roadblocks to stop cars w/o individualized suspicion that the driver has violated some long if (1) neutral, articulable standard, (2) motivted re: problem of autos and mobility (drunk driving). Where G/f consents to search of motor home, but consent turns out to be invalid, she can still contest seizure of marijuana if she is an overnight guest. Even though mom was owner of the house, had authority to consent to search of the house, no right to consent to search of trunk in kids room. Police must reasonably believe. Entry into Ds apartment and warrantless arrest, p.c., or circumstances permitting an exception are illegal. Thus statements she made after are FOPT. Upon valid arrest, police can search wingspan including the glove compartment. A search warrant does not authorize the police to search persons found on premises not named in the warrant (may be detained I think). 5th A If waiver is knowing and intelligent, the judge must honor. Miranda is prereq to admissibility of any statement made by D during custodial interrogation (so if prosecution wants to introduce those statements at tiral most clearly violate Ds 5th A selfincrimination rights Even a voluntary confession is inadmissible if obtained in violation of Miranda.
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MBE Rule Statements

Miranda violations can occur before a formal arrest. Thus, where E is suspected of tax fraud and car stealing ring, and detective re: ring asks him to come in for questioning, an dhe makes incriminating statements re: tax, best argument is that the statement was volunteered. If two cops arrest D, and one cop things the other gave Miranda but didnt, and theres a confession, the confession can come into impeach (the broader one: prosecution may question on x any issue brought out in defense is true, but doesnt go to the issue). A ds refusal to cooperate with investigation of criminal conspiracy of which he was a member can be considered in imposing sentence (not privilege to refuse to incriminate others. 6th Amendment In dual trial f one gives confession implicating the other, 6th A generally prohibits use of statement (b/c cant compel the other defendant). For the purpose of countering 1 Ds claim of coercion, prosecution wants to put co-conspirators confession in. Proper basis to admit if: all references are removed, if Thugg takes stand, or Judge issues limiting instruction indicating the confession considered only with re: Robby. Under the 6th A, a D in criminal prosecution can confront adverse witnesses at trial. If two persons are tried together and one gives a confession that impliacates the other, confrontation generaly prohibits the use of that statement b/c the other cannot compel the confessing co-def to take the stand. A guilty plea is a waiver of 6th A right to jury trial, to be valid, must determine on the record that plea is voluntary and intelligent (and failure to determine if D understood right to trial by jury means not intelligent). Right to speedy trial does not attach until arrest/charge, pre-arrest delays do not violate this standard ro due process unless bad faith and prejudice D. Unless D protests his innocence, judge need not determine if there is enough evidence to indicate D actually committed the crime. Where D is charged with rape and his defense is consent, judges jury instruction that D must prove his defense by preponderance is incorrect b/c denies due process Under R. 801, after a witness has testified, statements of prior ID admissible to prove their truth unless D can show circumstances of ID were unnecessarily suggestive. Double Jeopardy Even if D already convicted of larceny, may subsequently be tried for burglary (doesnt violate double jeopardy) b/c each crime has element the other does not. Statute Ignorance of beer as alcoholic beverage is a mistake of law (no defense) under statute. However, where the statute makes knowing sale to anyone < 18 a crime, Ds best defense is B reasonably believed kid was 25 (negates mental state). Statute says wilful & unlawful possession of a controlled substance - even if paralegal boyfriend tells you its ok, if you decide to keep it, that violates the statute. If bartender reasonably believes kid is > 21 will be not guilty of knowing sale. (The fact that ID says 25 will be a factor, but not dispositive).
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MBE Rule Statements

Selling wine is probably SL. Ds best defense is that he didnt sell where he goes to put in a bag, kid puts money on counter and runs off with it. Donnas best defense is that the statute was not reasonably available b/c she did not get the booklet (generally defendants unawareness of her acts/mistaken belief her acts werent prohibited is not a defense). Mistake of law may be a defense if ignorance is on some aspect other than the existence of the statute making the act criminal. When a culpable state of mind applies to all material elements of the offense unless a contrary purpose appears. So False imprisonment statute say knowing confinement a person w/o valid consent and w/o authority of law requires knowing confinement, knowing that its not valid consent, and knowing its not authority of law. As long as he thought he had authority for the confinement did not violate the law. Any person who appropriate to his own use property owned by state shall be guilty of a crime and shall be punished by a fine. No state of mind stated, but appears to be a larceny-type. Thus if hiker honestly believed it was abandoned, then not guilty. A statute that closely resembles a CL offense is interpreted to have mens rea of CL crime. Generally not a defense to crime that D was unaware that his acts were prohibited by the criminal law (provided statute made reasonably available pruior to the conduct). Accessory Getting the drugs by making up lies re: Rx so that g/f can put poison in sugar makes him an accessory before the fact (PP1 requires commits crime; PP2 actual or constructive presence) Accessory after the fact receives, relievs, comforts or assists another knowing he has committed a felony to help escape arrest, trial, or conviction. Failure to arrest is enough to make cop an accessory after the fact. Accomplice Mere knowledge that a crime would result from aid provided is generally insufficient for accomplice liability (letting friend borrow tools knowing he might hurt/kill someone). Where D gives A a wake up call and knows its so he can go commit a crime, she is not guilty of conspiracy or attempted robbery b/c mere knowledge is not enough, she must have the intent. To be convicted as an accomplice, D must help wuith commission of the crime and intend to see the crime committed (not recklessness) e.g., bigamy example. Mistake An honest and reasonable mistake as to a material element of the offense would negate criminal liability for all crimes except strict liability (bigamy case in state where bigamy is not SL) She did not know he was married thus didnt intent to commit bigamy is not as good an answer. . CON LAW Jurisdiction
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MBE Rule Statements

Federal courts can issue declaratory relief. A real, live controversy must exist at all stages of review, otherwise moot (e.g., ordinance forbidding males between 13-19 from entering dismissed if at time of suit, P is 20). Suit to enjoin state criminal prosecution must show irreparable injury/exceptional circumstances/bad faith (court is reluctant); but if threat of suit by state, then court may address. Independent state grounds - ask: would review of federal ground have any effect? If congress gives a plane to church group instead of Future Flyers of America, FFA has best standing (lost opportunity to purchase + ability for redress). There is taxpayer standing for suits under the Establishment clause. Moot if challenge action under 8th A bail, but has already been convicted. Executive Power President has plenary power in foreign affairs. If president signs a treaty, president can declare the treaty void and order IRS to act. Can remove purely executive officers w/o Congressional limitations, so long as not for unconstitutional reasons. President cant by EO supercede inconsistent provisions of earlier acts of Congress. Intergovernmental Immunities If executive commissioner cited for contempt of Senate, defense: dont pertain to any matter re: Senate or Congress may legislate (investigation power is broad, but not plenary). Congressional Power Congress can legislative to preserve monopoly in foreign affairs Legislature cant retain power to appoint those who will exercise its laws. As part of power over immigration/naturalization enjoys rights to distinguish among aliens not allowed by states. Cant create tort reform caps. Federal tax not analyzed under EP, CC or right to privacy Judicial Power Obligatory USSC review by appeal is obsolete with a few exceptions. Statute eliminating USSC jurisdiction where State Supreme Court decides Ds federal constitutional rights violated unconstitutional, Congress cant limit all avenues of USSC reviews (can limit appellate jurisdiction). Supreme Court has jurisdiction over cases where state is party, but not exclusive. Congress can limit Supreme Courts jurisdiction in maritime cases, but original jurisdiction re: ambassadors, public ministers, state parties. No advisory opinions Aliens can be prohibited from serving as cops, probation officers and public school teachers (direct effect on functioning of government), but not university levels. Corporal punishment may involve liberty interest, but not hearing pre-punishment (tort). If a court cant figure out if federal or state, it wont reverse, it will dismiss/remand. Separation of powers Congressional action requires express/implied power, except MILD If Congress delegates, the only way to change is by legislation (INS v. Chadha).
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MBE Rule Statements

State cannot legislate re: duly authorized federal program. Senate cant force AG to prosecute. Executive agreements are law of land until Congress says its not (superior to state statute) Congress cant commandeer the states, but can attach strings to federal grants if expressly stated and related Congress cannot give itself the appointment power If Congress sets up a federal board but doesnt set strict fee increases, and then a state sets up a board that does, may violate supremacy clause (congress didnt want restrictions). President has no power to decline to spend funds specifically approrpriated by Congress Federal statute v. treaty, last in time (need not be signed by president; treaty can overcome presidential veto by 2/3 vote of each house). Market participant doctrine: a U.S. State which is acting as a producer or supplier of a marketable good or service, it may permissibly discriminate against non-residents. Federal courts can appoint, only cabinet level officers require senate confirmation. Congressional power Indian lands are independent sovereign and cant be taxed by a foreign court. General welfare limits power. State and local govt cant tax/regulate activities of federal govt, thus arrest of federal EE on the job violates this principal. 13th A permits legislation of private parties. Use tax: state in which buyer resides. When goods reach destination, can be subject to local ad valorem tax. Congress property power has never been invalidated, even where disadvantages a competitor. Congress can place 50% excise tax on cigarette mfs. To fund anti-smoking campaign To impose uniform child custody law - under taxing/spending power. Legislative delegations can be vague. A transaction tax, applied to local activities of interstate company is valid so long as nondiscriminatory/non-burden IC, fairly relates to services. Republican form of govt is probably wrong. Necessary and Proper clause does not authorize federal action. Congress criminalization of possession of condors isnt taking b/c not surrender. Congress has federal postal monopoly, require consent for all competitors. Lending of money in texas has substantial effect on traffic in money, trumps state law. Congress can regulate federal lands. States cannot directly tax/regulate federal lands, tax cant unduly burden fed govt. Congress has some Article III power to restrict the jurisdiction of federal courts. State statute requiring merchants of foreign goods to get license/mark goods is unconstitutional (foreign commerce is exclusively federal). Independent Ker who didnt meet 3 year training requirement to install alarms, but did anyway, can be fined b/c Congress can regulate alarm installation & can delegate.

MBE Rule Statements

State law banning use of computerized telephone solicitation devices & requiring all telephone calls to be dialed by humans is valid b/c doesnt conflict w. federal legislative adminsitrative regs. First Amendment Sect preference: CSI + narrowly tailored Speech & Debate clause - immunity exempting speakers from liability for remarks during congressional h earing. Pandering may be obscene. Violation of 1st A where print tax to get back at newspapers endorsement of opposing candidate. Standardized uniform civic professionals can require Jew to remove Yarmulke (rational basis). Prohibition on any device causing sounds other than clock chimes violates 1st A and is vague. Subsidies to qualifying private colleges with criteria (not just sectarian degrees) is valid so long as only for sectarian purposes. But secular activities must be separated out and they alone funded. Mere possession of obscene materials is not a crime. Ordinance prohibiting placement of signs with dimensions and restricting ads only to business of propertys occupant is unconstitutional b/c content regulation. Free exercise of religion allows religious people to hold govt office. City can prohibit commercial solicitations door to door, but not all people. USSC invalidated parential tuition reimbursements/tax bnefits for persons with kids in parochial schools as violative of Establishment. No sect preference: Secular purpose, neither advance/prohibit religion, no excessive entanglement. Govt cant limit contributions to political committees that support/oppose ballot referendum (not sufficiently important interest), but campaign limitations ok under 5th A DPC. Statute making: threat to life/safety of public official for any official act is constitutional. Criminal trespass for leaflets, most helpful is that others get to do it at all hours (inference that content regulation/EP issues). Zoning can regulate adult business to industrial only b/c substantial interest and not unresonably limit alternative avenues of communication. State provision of textbooks to segregated private school - violates EP by supporting racially segregated educational process. Prohibition on protest, education, counselling is probably valid time, place manner restriction (viewpoint neutral, not just re: particular message). Criminalization of threat against any state official for performance of his public duties is constitutional. Govt can punish incitement: substantial likliehood of imminent illegal activity + speech is directed to causing. Profane/indecent speech protect, except on broadcast media.
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MBE Rule Statements

Regardless of merit, all expenditures of Congress are permissible under the Spending power. State requiring door charitable solicitors to have permit and show 75% of proceeds to charitable purposes unconstitutional. If Establishment or EP answer - pick establishment, b/c state need not show compelling interest to invalidate tax class that doesnt discriminate. Sincerity of Ds religious beliefs (not establishment/tradition) may be inequired into as way to determine if D can avail themselves of Free exercise protection. City ordinance prohibiting large organized use of park during evening subject to narrowly tailored for significant interest and no unreasonable burden on alternatives. Loyalty oath: ok if oppose violent overthrow of state/local govt and not knowing member with intent to further unlawful aims ok, but not mere membership that advocates illegal acts, against public officers/employees, but cant be overbroad/vague. Just sending a check to a religious school who lets you borrow their french teacher is not establishment violation. Statute forbidding distribution of unsolicited advertising for contraception violates 1st b/c forbids truthful advertising of lawful product. Media cant be punished for publishing true fact lawfully obtained from the public. State can forbid beign on public building when court is in session carrying signs to influence the proceeding. City can forbid ads re: religion or politics b/c viewpoint neutral and reasonably related to purpose. Challenge to prohibition on gathering/speeches on public building is not reasonably related to legitimate govt purpose b/c non-public, so long as viewpoint neutral. Not sure if atheism is protected by free exercise, so if discrimination - says Establishment. City requirement to use city lasers upheld if reasonably time, place, manner restriction (here, images arent controlled, just manner of showing). Provision prohibiting picketing before/about residence of an individual b/c proper interest for state to protect tranquility/privacy of homes for residents is valid. Due Process 14th A If refuse medical treatment based on personal preference, implicates DP of 14th A. Stripping public official of right to participate in his partys meeting is property interest, requires hearing. Student not normally entitled to trial type hearing if suspension is for just cause, unless may terminates education benefits. Extends to corporation re: loss of K where City grants license to GE for electrical service, then passes measure requiring them to put material in bills and said will revoke if not. Equal Protection Aliens can: public education, welfare, earn livelihood, engage in licensed progressions. If state prohibits sale/ownership of land by aliens, denied EP. Discrimination against illegal aliens is suspect. Sex discrimination cases, must show discriminatory purpose (not just effect). Juveniles are not a suspect class (rationality test only).
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MBE Rule Statements

Print tax on newspapers does not invoke EP. Illegitimate children = quasi-suspect class. There is third party standing where P has suffered injury and injury adversely reflects relationship with 3rd party. Requirement that licensees be residents of state for year prior should be based on EP b/c burdens interstate travel. Not Art. IV P&I or CC. But discrimination between residents and non-residents is not suspect. 14th A EP does not apply to federal government. States can prohibit knowing employment of an alien not lawfully residing in the US if adversely effects lawful residents right to work since States not preempted in economic regulation of illegal aliens *check this. Prohibiting on selling diapers for use in state violates DPC (prohibits arbitrary govt action). Statute denying municipal jobs to people whove been resident aliens 10+ years probably unconstitutional as applied to P under EP - strict scrutiny and no CSI. EP prohibits dilution of the right to vote. Gender classification: exceedingly persuasive jurisdiction based on important govt interest. State taxes to pay tuition at segregated private school sanction discrimination, violate EP. Residency requirements may violate EP (right of interstate travel). P&I does not apply to aliens. School fee $100 for each illegal alien child unconstitutional b/c education not a fundamental right, illegals not suspect class, not substantially related to important govt interest. Due Process DPC does not entitle to pretermination hearing, post hearing probably ok for termination due to 1st A violation. Revocation of license for repeated violations comports with due process, but still requires hearing. EE subject to removal only for cause gets pretermination hearing. No third party standing by Dr. for patients b/c cant give professional advice, but yes if convicted of Rxing, selling, giving away contraceptives. th 10 A State can shut down racetrack if four jockeys killed under police powers. State can prohibit private racetracks of burden on interestate commerce not great. Proposed tax on birth control ok b/c raise revenue. Economic protectionism requires Congressional consent. Licensing requirement that P have insurance with company whose PPB is in MI + 1 year related experience in state or 5 years out of state is probably valid. Housing is within police powers. State housing development corp is subject to federal regulations on building contractors. State laws re: highways/roads generally upheld unless burden CC> P&I only protects citizens.

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MBE Rule Statements

State action can be found if affirmative encouragement/facilitation of discriminatory acts by private groups. States $200/year excise tax on commercial photography studios unconstitutional as nondiscriminatory license tax. State law requiring state chartered insurance, preference for state citizens for jobs, non residents prohibited from state-related activities probably preempted b/c Congress primary authority to regulate immigration/aliens. Article IV P&I Commuters Income tax taxing non residents higher violates P&I. NC commercial license fee on nonresidents probably unconstitutional as violative of P&I. Right to vote Filing fee to be put on ballot is invalid if P is indigent; or unreasonably high fee invalid. Ballot access restriction must be reasonable, nondiscriminatory, promote important state interests. Strongest argument that write in requirement + no stickers = unreasonably discriminates against write in candidates (better than discriminates against Chinese voters). Federal laws dont prevent state from regulating absentee vallots. Can require candidate to post financial statement. State/local govt body reps, variance in number of persons in each district can be greater than congressional districts if for legitimate state interest. 30 days residency requirement for abortion violates right to privacy and travel. 2 parent notification requires judicial bypass. One year requirement violates Ps right to vote and interstate travel, but short ones (30 days) are ok. Challenge to signature to get on ballot req requires narrowly tailored and CSI; 4% voter signature requirement probably violates 1st A. State probably must show CSI to require woman to pay a divorce fee. Minimal scrutiny re: age restrictions to be candidate But where disaffiliation statute (cant be independent if registered with a political party the year prior or voted in that primary, must show CSI) b/c state must adopt reasonable means for independent candidates/minor political parties to get on a ballot. Requiring one year before nonemergency medical treatment is invidious discrimination against the poor. Import/Export No state can levy taxes, except whats required to execute inspection laws absent Congressional consent. Contracts clause No impairment unless law is retroactive. Right to enter Ks is not fundamental right. State can enact legislation requiring person under a K to give 60 days notice before foreclosure, b/c no impairment of underlying K. th 11 A Congress can remove states 11th A when enforcing 14th A (but not CC). th 5 A
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MBE Rule Statements

No P&I or 5th A for corporation

PROPERTY Title

Incapacity of grantor who puts deed in escrow does not affect title, valid delivery and transfer is automatic. If buyer relies to detriment on agency of L to O, L is estopped to deny it was exercised validly. Recording doesnt insulate from attack, SoF would not prevent evidence of Ls instructions from being proved. Recordation is prima facie evidence of delivery, even if grantee doesnt know; rebuttable presumption of nondelivery if grantor retains deed is overcome by recordation. Generally, city accepts dedication when it approves the plans. I grant to city for the purpose of constructing a planetarium. City can transfer, b/c fore the purpose is merely precatory. Covenants If you want to ensure residential character, use covenants. Agreement to pay taxes touches/concerns land, even if not explicitly stated in assignment. Covenant of warranty: agrees to defend grantee against any lawful/unreasonable claims by third party. Covenant of further assurance: whatever acts necessary to protect title. Covenants to seisin, Right to Convey, Against Encumbrances are personal and do not run with the land. Broken on delivery of deed or are not broken. If break covenant against encumbrance and I pay mortgage, I can recover principal and interest. Covenant against encumbrances does not extend to third parties asserting title. Covenant to convey touches and concerns the leasehold and reversion and runs. Statute of Frauds Requires: ID of parties, description, price/manner of payment, signature of the party to be charged (even if prior dealing). Easement Indenture granting cross easements with restrictive covenant best to ensure equal rights of access to A&D, restrict use the owners could use land. (Affirmative covenants best for costs). Improper recording has no effect on the validity of an easement. Express easement requires a writing. Dominant owner can sue servient owner to let her make repairs. An easement in gross is commercial and may always be transferred and permission of holder of servient estate is not needed, but transferee must reasonably restore postexcavation. Assignment Lessee still liable to LL if condemnation, tenant looks to condemnor for apportionment. Trespass A drain is probably easement by implication (reasonably necessary).
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MBE Rule Statements

If Cs land subsides over drainage system due to unknown soil condition, he will probably lose unless A was negligent b/c Cs land was improved by the the drain.

LL/Tenant LL must deliver actual possession of premises to T. Remedy: continue the lease and recover damages until LL delivers possession. Trade fixtures normally removable by tenant if not integral part of premises and T pays damages. If tenant transfer in violation of a lease, transfer isnt void but LL can usually terminate the lease under terms of lease or statute. Tenants duties are independent of landowner duties (independence of covenants) Landowners duty of care to third parties cant be shifted to tenant by terms of lease (duty to warn re: unknown/dangerous conditions). If tenant Ks to keep premises in good repair, liable for all defects, including acts of God. Lessor can recover against tenant (even if tenant assigned) for fire damages, b/c contractual duty to maintain fire insurance didnt terminate after assignment. Rule of Dumpors case: LL consents to one transfer and accepts rent payment, waives right to avoid future transfers. Tenant for years must make ordinary repairs on leased property. Mortgages PMSIs take precedence over all earlier executed mortgages. Mortgagor has no rights against BFP, but does have redemption against mortgagee. If BFP assumes mortgage, mortgagee can prevail against him b/c mortgagee is third party beneficiary under the K. IN a title theory jurisdiction, mortgagee can take possession of apartment before foreclosure, equitable right of redemption doesnt affect mortgagees right to possession before foreclosure. Doctrine of waste governs LE holder and remainder re: mortgage on the property Generally priority of a mortgage is determined by the time it was placed on the property, and the proceeds of a foreclosure sale will be used to pay off the mortgages in order of their priority. However if thelandowner enters into a modification agreement with the senior mortgagee, raising its rate/making it more burdensome, junior mortgage is given priority. Here, Maple & Grant (not original mortgagor) modified the original mortgage by increasing the principal amount. This modification is not given priority over 2nd mortgagee. Cotenants have no duty to improve property and cannot force co-tenants to contribute to the cost of improvements made by him. Tenancy by the entirety death, divorce, mutual agreement, Joint creditor No partition Joint tenancy 15

MBE Rule Statements

The one who stays will get judgment, provided the other gets equitable set off for value fo stayeds occupancy. If one gets sued and lien against property, upon lienors death, lien extinguished and the other takes free and clear. Tenant in common No right of survivorship in tenancy in common, even if orally say survivor takes title. Adverse Poessession Generally govt land cant obtained through AP. Ts statutory period for adverse possession began to run when T subjectively believed he no longer had permission. Trespassers annexations are lost to them (although some courts permit recovery), unless AP. If ouster, possession is not continuous. Facts must indicate disability statute in place for it to be relevant. State can lose RE interests by AP. Cant eliminate cotenancy by taxes or quitclaim, but can by ouster. Construction of unitary tract is ok for AP of whole if reasonable proportion between part possessed and the whole if possessor has title (albeit forged), but not if separated. Title Mistake in description of property, physical description over quantity unless grounds for reformation (conform to the intent of hte parties). Return the deed and give up interest is not the same as a conveyance. Courts assume time is not of the essence in RE contracts, thus closing date is not absolutely binding in equity - even if late, still enforceable if within reasonable time (1-2 months). Doctrine of equitable conversion: is limited by fairness (e.g., not if unjust enrichment). Doctrine of part performance may be used to enforce otherwise invalid K if acts unequivocally prove existence of K (but not if actions explicable as tenant). To M, but if M should ever try to sell, then to Q Q has nothing b/c unlawful restraint on alienation and will be stricken. To F for life, then heirs of my son, S. If G is alive when S dies and S has no heirs, O gets reversionary interest by operation of law (most states have abolished the destructibility doctrine). Rule in Shelleys case Life estate merges with a remainder in LEs heirs, giving LE holder an FSA. (If no Shelleys rule, to sell must have heirs join in the sale).

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MBE Rule Statements

Doctrine of Worthier title: grantor presumes not to create a remainder in his heirs but reversion in himself. Conveyance If you make the deed and deliver it, then that is a conveyance. If A to B for life, but if liquor then C & his heirs, if invalid as to C, then right to reentry. B dies before wheat is harvested, Bs heirs get crop (pp). Dedication for public use at CL does not require a particular form. Mutual mistake can rescind a contract, H forges Os name to convey to A who pays consideration. A sells to S for $125k. S evicted by O. S sues A and recovers. Emblements/fructus industrialis (growing crops generally PP and pass with sale of mortgage and sale). Future interests Remainder cannot follow fee simple/cut short preceding estate. If conveyance to RR so long as used for RR, then the land is condemned but the RR has discontinued operations, RR gets nothing b/c deteriminable fee terminated. Equitable servitude Equitable servitude can be extinguished by a condition that makes purpose/object of servitude impossible of achievement (but not mere zoning). Use of country club in accordance with common plan is an equitable servitude - more than covenant b/c is an interest in land. Reciprocal negative servitudes if common scheme + notice. Right to enforce a covenant in equity. To terminate servitude for abandonment, T should join all landowners. Covenants Original owner can abrogate the deed restriction limiting use to common scheme. Life Estate Remainderman can compel taxes and profits, and LE is liable to remainderman for waste. If Grantor says no commercial purposes, and then timber cut to make a state recreational area, suit to eject would not succeed b/c court will look to ultimate purpose. P1, P2 for joint lives, upon the death of one to the survivor, but if P outlives both of them, then to P3". P1 & P2 have LE, all three have contingent remainders. Gifts Promise to convey by quitclaim deed and pay mortgage when it comes due is a gift b/c no consideration. And not effective gift b/c must be present to be effective. Land Support Building: must show negligence; land: LS

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MBE Rule Statements

Z puts up wall on his property to protect from water on Ys land. Ys land water gets stagnant. Z may leave up the wall without being liable to Y under the common enemy rule. M will prevail against city with gross easement and cracked sewer pipe only if negligent. Riparian doctrine: domestic use is superior to agricultural use. Percolating waters: absolute ownership, landwater is not restricted in withdrawal from beneath surface even if it causes drainage of water from adjoining land to damage of other landowners. Landowner can take as much as he wants. Possessor of real property has exclusive right to use and possession of surface, air above, and land below (including minerals). Natural flow tehory: landowner cant alter rate/manner of natural flow of surface waters if it would injure those below him. If a stream is a boundary, abutting owners each own of the bed. Takings Abrogation of right to enforce a restrictive covenant may not be a compensable taking. If O gives Z a mineral interest, and Z records before M (BFP), in race notice jurisdiction, M takes subject to Zs ownership and Bs mortgage. Profit a prendre is nonpossessory, but even if nonexclusive, still entitles holder to compensation in condemnation proceeding. Recording statute Generally a purchaser is required to know what is in grantor/grantee index, not tract. Title search: look at grantee index under C, then A. Donees arent protected by recording statute. Title search is not complete without examination of possession. To be BFP, must be substantial pecuniary value. Judgment lienors arent protected by recording statute. Recording of subdivision map with designated city parks is an offer of dedication and citys act in naming was acceptance of dedication sufficient to give city good title. Judgment lien runs with the land and is binding on subsequent owners with notice, buyer has notice and take subject to it. Rule against Perpetuities Doesnt require possession, only that interests vests. Applies to rights of first refusal. EVIDENCE Judicial notice: Radar detectors More willing of not on an ultimate fact
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MBE Rule Statements

Blood/paternity test, so long as qualified and no discrepency in testing method Judge Questions Preliminary questions in criminal and civil, by a preponderance of the evidence. If conspiracy existed, before declaration by co-conspirator. Sense of impending death. Records in ordinary course of business. Necessary excited for excited utterance. Whether document/witness is unavailable. Whether jury should be excused during preliminary fact finding for evidence. Not bound by the rule of evidence, and can consider any non-privileged evidence. Parties Parties entitled to some cross examination, subject to judicial discretion. Interpreter must take oath to make a true translation (and work is prosecutors office doesnt make her biased and need not be disclosed to jury). Scope Question re: husbands affair is relevant to loss of society case. Substantive objections may be raised for the first time when deposition is offered at trial, but manner and form must be made at deposition. Ds objection to clients statement from grand jury deposition will be granted, provided it is on hearsay grounds. If witness is equally available for both parties, no inference springs from failure to call no jury instruction. Federal Jurisdiction Federal substantive law (gen. Criminal law), civil actions brought by US, federal question objections resolved under federal privilege law. With re: presumption in a federal diversity case, federal court should apply the law of the court in which it sits. In civil case, effect of presumption re: fact that is an element of a claim as to which state law applies rule of decision is determined in accordance with state law. Non-hearsay: defamation, slander, deceit (verbal acts), utterings/writings to show effect on reader, declaration to show circumstances/state of mind, knowledge. Effect on listener: D says predecessor told him he could raise expense allocation b/c shows lack of criminal intent. Overhearing friend tell D that P was flirting wtih Ps g/f (D claims selfdefense in civil case) is admissible to show provocation for battery. Hearsay: Pay attention to the reason the evidence is being submitted. To be medical, must be relevant to diagnosis. Birth certificates and bible inscriptions family history exceptions to hearsay rule. Apply UCC rules when dealing with merchant, so if P brings in some random coin seller who charges 12%, admissible re: customary business. Translator testimony is inadmissible unless established that was partys translater Habit/routine practice is relevant to prove conduct on a particular occasion was in conformity with habit/routine practice. He felt pain in his back immediately after accident to Dr. is admissible under declaration of present bodily condition.
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MBE Rule Statements

Past bodily condition to a Doctor: statements for medical diagnoses: medical history, symptoms, pain, sensations. I cant compete b/c I have pain in my legs is present bodily condition - can be to anyone; also my back is killing me. The pain is excruciating. Market reports exception: newspaper records, telephone/city directories, mortality/annuity tables used by life insurance company. Business records contemplates both informer who supplies the information and entrant recorder who makes written entry in the course of a regular conducted business activity. Statements in police report attributed to witnesses inadmissible hearsay, unless admission or prior inconsistent statement or other exception. Former testimony if same D, different plaintiff; but not same P and different D. Right to confront witnesses is limited to those who testify him at trial. If Butler is called and says wife told him P was son, testimony is under pedigree exception to hearsay (reputation upon family, associate, community fact re: personal family history). Vicarious admission: Age discrimination case, and testimony re: presidents statement that P was too old (but rank matters here). Statement that D confessed to earlier bank robbery in CA when killing took place in NY is not hearsay (it is an admission). Testimony of death row inmate that he hired someone to shoot victim is not hearsay. Learned treatise exception: admitted statements may be read into evidence but not received as exhibits. Party pleading - whether withdrawn, amended, superseded, is freely usable as admission Unavailability: every reasonable effort to procure existence. Prior identification, so long as witness is available and subject to cross where he cant identify D. Also can bring in jailor to say he had red hair when he came in to clarify discrepancy in witness testimony. Former testimony (unavailability + confrontation) only in the hearsay context, if for nonhearsay (perjury, impeach, refresh) same restrictions dont apply. Statement of suicide hotline operator re: suicide is state of mind exception. Offer to bribe is admission. In contract fraud case, statement that owner said land was valued at $350k, but was going to list at $175 k for tax purposes is not hearsay (not offered for truth) and not PER b/c not trying to prove a K but alleging fraud. Misdemeanor conviction is hearsay not admissible under any exception. Drug store records showing three customers had written complaints against victim in self defense case inadmissible b/c informants with personal knowledge were not under a duty to convey the information. Impeachment Expert witness evidence must be substantiated/based on type reasonably relied upon Generally prior consistent statements are not admissible, unless witness testimony assailed as recent fabrication, can be confirmed by declaration prior to motive to falsify Cannot call another witness to testify that another witness once perpetrated a hoax (specific acts intrinsic only).

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MBE Rule Statements

Need not positively controvert prior testimony, only tend to discredit. Witnesses Persons interested in a lawsuit are not disqualified as witnesses. Unresponsive answers are subject to motion to strike by examining (but not opposing) counsel. Matters re: sense recognition (gas smell) proper for lay, as is unconscious and intoxicated In products liability case, Ps testimony re: date of purchase of leaf blower is collateral to issues and P had independent recollection of the date. Character In slander suit, D can provide Ps reputation for dishonesty - including unconvicted specific acts. If probative of truthfulness, at discretion of court, counsel can inquire into character of witness truthfulness or another witness about whom he is testifying. 9 y/o conviction for misdemeanor battery will be granted as a matter of right, but only to impeach re: dishonesty. In fraud case, honesty (not truthfulness) is at issue. Can inquire into specific conduct on cross. Past crimes come in for anything but propensity, including felony convictions but no nolo contendere. Previous rape convictions come in b/c relevant on issue of self defense in murder case. Ds ex wife cant come in and testify D had temper and hit her frequently b/c limited to R/O. Credibility of a witness can only be attacked by R/O; but not bad acts unless probative of truthfulness. If character is at issue, specific acts are permitted. D may introduce victims bad character to rebut prosecutions testimony re: victims good character. In rape case, prior sexual conduct relevant/admissible to show consent. D may introduce bad character of victim only if relevant and limited to R/O. Unless D testifies, if charged with crime of violence, character for honesty/veracity is not at issue and character towards that end is irrelevant. Party cant call another witness to testify about first witness credibility if such credibility has not been questioned (bolstering). If one party introduces one part of a writing, the other can introduce the other part. Lay witness Can estimate mph of moving vehciel, appearance, emotion, sense/recognition, likeness/ID, must be based on personal K. Can estimate his own, but not others property Can infer former g/f has familiarity with b/fs handwriting. Privilege Maritable privilege is indefinite and can be used to shush spouse - communications claims between while husband and wife, unless crime/fraud.

21

MBE Rule Statements

Marital privilege extends to facts, conditions, transaction/information secured as a result of the marital relationship that would not be known in the absence of that relation (health, intoxication, habit). Wife cant testify that husband was drunk at the time of the accident. Does not exist re: suit between parties. Spousal privilege: one spouse may testify against the other in criminal case w/o consent except re: confidential communication. Physician/patient (not at CL) - must be necessary for physician to act/prescribe for patient. Fed. R. 501 says CL (not state law). Waived if you put physical condition at issue. Statement to Dr. re: origination of gunshot wound (fight with police) not privileged b/c nonmedical. Spousal immunity attaches to conversaions pre-marriage. If lawyer sends client to doctor to examine injuries, those are privileged under attorneyclient. Examination for insurance purposes is not privileged. Clergy privilege does not apply unless in capacity as spiritual advisor. Spousal immunity in criminal cases only; marital privilege applies to civil and criminal cases. Spousal privilege only by testifying spouse. Marital privilege does not apply to facts observed (husband brought gun home, found bank floor plan in husbands drawer).

Offers Offers to compromise/negotiate excluded from subsequent suit (furnish, acceptance, offer, promise to accept disputed claim or amount is not admissible). Evidence re: insurance inadmissible re: negligence, valid for ownership/control. No statement in plea negotiations that fall through is admissible. General Admissibility Evidence of 2 insurance policies admissible to show motive to commit arson (casualty, not liability insruance). To admit report of counter function, must show in good working condition at the time in qusetion. It is relevant without showing there was no other radioactive material in the area. Store witness experiment to measure time necessary for linoleum floor to dry completely is admissible only if conditions of Es experiment are substantially similar to conditions of Stores floor when P slipped. Motion to strike may only be made if earlier objection was made (if possible) Once D has shown hes testified under a grant of immunity re: matters of federal prosecution, federal authorities have burden to show their evidence is not tainted by showing independent legitimate source of disputed evidence. No subsequent remedial measure, unless feasibility (but must be controverted). Witness saying that before accident he had to jump out of the way shows dangerous condition. Who is hearsay declarant re: witness was in juvie on that date - the juvenile authorities since the others (witness, party offering, fonzie are not hearsay).
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MBE Rule Statements

Expert To save time, attorney asks expert in your expert opinion, how much is greenacre worth the objection is overruled b/c opponent can immediately cross examine. A hypothetical question need not be asked. Authentication Duplicate copy of a written K is inadmissible if D contests the authenticity of the written K. Holographic will is not self-authenticating. Letter requires authentication. BER To prove terms of writing where material, original writing must be produced unless unavailable (unless bad faith). Microfilm of 12/3/34 copy of NY times re: price of gold is admissible substantively if no original can be obtained - other secondary evidence of a writing is admissible. A wants to introduce sardin can reading Ps company, court will overrule b/c label is BER (not a writing if introduced to show production by company). D testifies re: telegram ok if originals burned (secondary evidence). Witness statement that man said if she worked for him he would leave his house to her is inadmissible under BER. Notice re: oral testimony is not a prereq for best evidence rule (but must show not bad faith). CONTRACTS

Reply to bias as a matter of right (subject to judicial discretion). If evidence (blood sample) likely to be confused/tampered with, proponent must show evidence of chain of custody (substantially unbroken) Juror can testify re: witness said to impeach at a later trial, admissible both impeachment and substantively, so long as witness given chance to explain/deny. Simply pleading self-defense doesnt put Ds character at issue. Leading questions permitted with hostile witness.

Accord: agreement that existing claim will be discharged in the future by substitute performance. Amount must be disputed, generally payment of smaller sum than due isnt sufficient consideration for promise by creditor to discharge. If disputed obligation, debtor tenders as full satisfaction and it is accepted: total discharge Novcation: substituting party to a contract Divisible K: parties divide performance into separate units, performance of one installment entitles others to performance on that installment. J Ks with W for workout. 1/3 paid at signing (10/7), paid three months later 1/3, six months later. 10/7 payment is condition payment b/c no obligation until payment and W can bar her until she pays. Subsequent duty to pay excused if she gets pregnant by frustration (value of performance destroyed by supervening unforeseeable event).

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MBE Rule Statements

Requirements-output: quantity by output of seller or requirement of buyer. But not as much as X chooses to order - that is illusory. Aleatory contract: duties of performance are not independent even if party is hismelf in breach (only if expressly conditional on payment is duty independent). Is conditioned on event that may never happen (fire insurance). IN bilateral Ks for agreed exchange of performance, even though they are in form absolute, the law regards them as constructive condition to avoid unjust result. On MBE choose enforceable, rather than void Bargain and exchange theory is contract. Accont stated is statement from creditor re: account or conditional gift (wills theory). Unilateral K Part of actual peformance required to make it irrevocable, not mere preparation no matter how detrimental. Part performance is implied acceptance and promise that he would complete so if promisee does part and then takes off to HI, that is breach. B says if you ride my bronco, Ill pay you $500. You saddle and B revokes. You prevail b/c irrevocable prior to Bs attempted revocation. Insolvency/bankruptcy does not discharge the promisor. Conditions Precedent Conditioning event must happen before promisors duty to perform becomes present (if discharges - condition subsequent). Hindrance/failure to cooperate excuses condition (e.g., T doesnt go through with sale procured by RE broker). Duty to cooperate doesnt extend to action for specific performance - if buyer doesnt perform and seller doesnt bring action, broker has no recovery b/c no condition. Parole Evidence Can be offered to show subsequent modifications of a written K for purposes of embracing additional terms. Contract for fish with oral condition of chef approval, Court should let in to show K was subject to oral condition precedent. Key: is contract partially or fully integrated on that subject. K says unless M buys home, no piano sale, Since M didnt buy home, PE admissible to show condition did not occur (exception: not varying terms, but to show no agreement). Ps argument: M breached implied promise to make a reasonable effort to buy home (she chagned her mind). M doesnt get specific performance b/c money damages are adequate. PE contracting writing barred only if complete integration. Offer Offeror may revoke at any time before acceptance, even if he promises to hold open for a stated time (unless consideration). If horseowner executes document giving right of first purchase of foal to buyer, proce to be determined upon birth, then one born and buyer tenders $25k (reasonable value), even if original agreement not a K, enforceable created b/c acceptance in tender.
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MBE Rule Statements

If put up without reserve - cannot be withheld Offer cannot be accepted if no knowledge of it. If offer stating precise same terms cross in the mail, dont give rise to a K despite apparent meeting of the minds Ads are invitations to offer (1 gross doll, 12 each character) Will sell by ry, 20 bushels max, firm for 48 hours is firm offer and offeror must sell all to whom he sends and who accept within the stated time. Your offer is received and under advisement. I would much prefer a straight cash deal. Would you consider an immediate purchase for $180k cash is mere inquiry of additional terms (not rejection/counteroffer). Probably an offer where buyer sends specific inquiries (price and delivery terms) and merchant responds. Acceptance If builder cashes owners check after receiving letter offering check as part of agreement to do additional work, he is considered to have accepted the offer. If prospective offeree hands a mail carrier an acceptance simultaneous as mail carrier delivers offerors rejection, existence of a K will turn on Courts determination as to whether offers letter was received by offeree prior to C had entrusted letter of acceptance (not dependent upon kowledge). If subcontractor submits bid, general K says we cant do it with present bid, but lower it $5k (counteroffer) and subcontractor says no way, general K loses b/c she rejected. Mailbox rule does not apply to exercise of options - acceptance effective when received. If acceptance first, then rejection, mailbox rule applies. Offeree cant enforce K if offeror receives rejection first and detrimentally relies. Ps best argument re: getting an award he didnt know about is that the offer/rewards was in the nature of a bounty, so the elements of a K are not essential to the citys liability. Consideration Motive for consideration is irrelevant. If D finds that the work is harder than anticipated, and then D agrees to perform additional work, that is consideration. Good faith promise to forebear from suit is valid, even if no actual suit ultimately Revocation Takes effect only upon communication to offeree (even if learned through a third party) $25k reward can be revoked in the same manner as made or comparable medium/fequency Rejection Counteroffers terminate power of acceptance Or when offeror takes action inconsistent with intent to enter proposed contract and offeree acquires reliable information to that effect. Under UCC, delivery terms dont affect K, if no statement that K limited to offer terms. Performance Defense of waiver of condition: if condition is broken, the other can terminate liability or continue and waive. No duty to perform if condition precedent has not been made (paint my house subject to my good faith approval)
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MBE Rule Statements

Option Best claim by bidder against supplier: option K was created b/c bidder used suppliers bid in computing the bid (may recover under promissory estoppel). If P suffered irreparable harm cuz she cant rent another partment like the one on which she had the option, and P & D have option to contract to rent, LL should not rent until the day after option ends. Sometimes irrevocable option due to detrimental reliance (If you commit to accept all undergrads who want to be engineer, well give you a machine, then revokes, breach. Rejection of offer in option K doesnt terminate power to accept, but if optioner detrimentally relies (sells the goods), power to accept terminates at the time of reliance. UCC Offer to buy goods normally invites acceptance by prompt promise to ship or shipment (even if offer calls for prompt shipment). Mere sending check for 90% purchase price isnt enough, uCC requires rejector must seasonably notify, if notice doesnt state a defect, buyer cant rely on defect if seller could have cured with supplying conforming goods. If buyer wrongfully rejects/revokes, then may withhold delivery, stop delivery by bailee, resell/recover damages, cancel. If no price term, courts will imply the reasonable one. Date of damages is the date P learns of breach: K price - FMV + incidental damages. Parties can provide in the original agreement that terms only modified in writing, if not, then not enforceable under the UCC. Delivery of 7' 6.25" instead of 7'6 probably does not substantially impair the value of whole K. Nonconformity can be cured by price adjustment. W cannot reject offer to cure b/c not material breach. Rita (who was mistaken for fathers restaurant) wont prevail if $12 was FMV b/c that suggests good faith. Buyer has right to inspect, even after payment and acceptance.
26

In entering an up front insurance policy for $30k, both parties assumed that he could die the next day. Doctrine of substantial performance: if K construction K has provision calling for architects certificate of completion, must be produced unless in bad faith or fraud. If bad faith, builder can sue for value of services under doctrine of substantial performance (but court wont for bad faith order architect to execute, proceed in reformation, or award K damages against architect. Building contracts only. If Wyeth promises D to pay $10k from proceeds of sale, but then refuses to pay, D will recover $10k b/c not expressly conditioned on making repayment from painting. If contract to go to LV and wager $10k at Diamonhead, but he bets at Keno instead, he still gets the money b/c he essentially performed his obligation. H promises to pay Os share of proceeds from the sale of land and O promises not to sue H for improvements made on property - O committed material breach of implied promise to cooperate by making negative comments (knowing prevention/hindering/makes costly others breach) - can discharge duty to perform. If the market changes, the K is still enforceable b/c changing demand is standard risk

MBE Rule Statements

Advance payment for goods neither impairs right to inspect or right to assert remedies. Option to Cure Buyer can reject for minor defect, but must give seller opportunity to cure. If seller has reason to think nonconforming goods will be ok based on past dealings, then has reasonable time to cure even after the date. Shipment Free on Board: seller pays for transportation of goods to port of shipment, plus loading costs. Buyer pays freight, insurance, unloading costs and transportation from port of destination to factory. Passing of risk at port of shipment. Damages K for $700/week, 60 days termination notice, non-compete agreement 2 years and 50 mile radius or $1500, non-compete agreement is unreasonable restraint on trade. Preexisting duty If D hires private detective agency, and then promises detective sent an extra $50k to find, and then refuses to give him the $, shell prevail b/c preexisting duty. B recruited by UELA team, wealthy alum promises him $100k/year to join, B signs, if alum doesnt pay B will win b/c signing K was legally sufficient to support his promise. UELA is third party beneficiary of the B-alum K. Does not apply if duty is owed to someone other than the promisor. Discharge Hotels defense: duty to hold open discharged by failure to give adequate assurances of agreed performance. Contracts with infants are voidable by infant, but if kid says Ill pay you 10K if financial situation improves when hes 18, that is enforceable. Temporary impracticability merely suspends, but does not discharge (personal services K). Implied condition in personal services K requiring both parties to act reasonably. Voluntary waiver of condition by promisor only effective to eliminate condition not material to the agreed upon exchange incident to performance. Novation requires a release Minority alone doesnt avoid, he must actually disaffirm, and discharge of liability if he returns the car. Breach Failure to pay 2 mos rent is not breach Third party beneficiary Rescission until 3rd party with K assents to promise. Guarantors of loans are not intended beneficiaries. They are incidental and have no right to enforce a promise - e.g, Bank gives loan to A, BB agrees to gaurantee, A defaults, A & Bank enter agreement to sell As assets to discharge debt and bank doesnt realize highest possible price - BB cant sue b/c incidental beneficiary. Assents to promise, brings suit to enforce promise, materially changes position in reliance If one neighbor agrees not to sue if other neighbor repairs dock, and repairman does a bad job, first neighbor can sue repairman b/c he is a creditor beneficiary. 3PB has no right against donor/promisee or original promisor (A&B K for anique bedroom set for C, A sends notice to C, C gives away bedroom set to chairty. She is
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MBE Rule Statements

donee b/c gift, not to bring about payment for debt - but maybe promissory estoppel if B expressly promised to her. Assignment Assignment may be irrevocable if reduced to writing or under seal & delivered to assingor Exoneration clauses arent assignment - would change risk. Assignment of future rights is enforceable - its merely promise to assign + power to enforce. But can assign right to existing payment under K. Assignee takes subject to defenses good against assignor. Cannot assign personal services (teacher, student, ERs right to EE). All Ks assignable unless special services/identity is material to K. As a general rule at CL, right to receive goods under a K is not assignable. If assignor assigns requirements K under the UCC, assignment is valid so long as assignee acts in good faith in settling requirements and approximately. assigning his part of the K involves rights and duties. Express consent could be construed as offer of novation. Prohibition of assignment of K bars only delegation of performance, not right to receive payment. If assignment, and obligor not notified, he must pay part with whom he originally dealt. Statute of Frauds Writing itself need not be a writing Memo: in writing by party to be charged and D doesnt object within 10 days. Express promise to pay debt barred by S/L or bankruptcy is legally enforceable wtihout new consideration, but most statutes require promise in a signed writing. Promise to answer for the debt of another must be in writing. Main purpose rule: oral promise by promisor to pay debt of another is enforceable where party making promise does so to further personal economic advantage (e.g., shareholder). Between merchants, satisfies so long as sent by charged party and no objection w/I 10 days Promise to marry must be in writing to be enforceable (even to get married) under SoF. Mere conferring of a gift doesnt fall under SoF. Exception: one party fully performs, unique products Remedies No specific performance if adequate remedy at law. If sign says smokers result in $50 deduction from paycheck, EE best argument is that nonsmoking provision is unenforceable b/c attempts to impose penalty instead of liquidating any sustained damages. If guy sells painting, and buyer knows its worth a lot, best defense is that seller said he painted them himself b/c unilateral mistake. Best grounds for D rescission is that paintings had experimental pigments and colors fade away - mutual mistake of fact. No frustration b/c no facts saying P was aware of Ds purpose. Successful reclamation of goods from insolvent buyer excludes all other remedies with respect to them. Under UCC, seller can reclaim goods upon demand within 10 days after buyer receives if seller discovers buyer received goods on creditor while insolvent.
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MBE Rule Statements

Relief to K price if claimant is breaching party (no more). If builder breaches during construction, can still recover for work performed to date. If subcontractor says I cant do it for less than $2k over bid, and Gen Ker says ok forget it, that is rejection. (Unilateral option can be rescinded by new consideration, promissory estoppel, offerees manifestation of intent to make a gift). If booklet says dismissal only with good cause, ERs best defense is that the booklet was not intended to be a K obligation (better than just ER didnt make promises), and EEs best defense is promissory estoppel. In the rug example, if buyer does not accept but seller doesnt give good instructions and buyer resells for $120, seller gets $108 (reasoable sum not exceeding 10% of resale). But if accepts, gets $100k. Promissory estoppel is only enforceable to the extent to prevent injustice. If wholesaler order X chairs from buyer, buyer sends acceptance + price, wholesaler says thats too high and then buys from another guy, buyer recovers only incidental costs to prepare shipment - no cover (b/c resale same as market), no lost profits (b/c discontinued). If fiddler excused for getting sick and orchestra replaces, orchestras best argument is that it is entitled to find a substitute to perform in fiddlers absence. Specific performance if seller refuses to deliver unique/special goods (e.g., Chipco, if they are actually the best). Real estate agent doesnt get 10% of liquidated damages/down payment unless under terms of agreement. Seller can keep down payment as liquidated damages. If both parties think adapters will work with all three, but dont, rescission for mutual mistake. Deck builder isnt subject to specific performance b/c not unique. If A contracts with B for two hourses $5k, B delivers one, B delivers other to the wife who rejects and B tells A but A doesnt respond for two weeks, B will recover $2k, the FMV of the first horse ($3k) - what B received. TV seller of faulty tv subject to recovery for loss resulting in normal course of events from breach including injuries to persons/property so long as foreseeable. Detrimental reliance on b/c youve been good to me, Ill leave everything to do can recover. Risk of loss If seller is a merchant, risk of loss does not pass to buyer until buyer takes physical possession. Warranties If customer asks seller to pick goods, but then declines advice, no warranty Will probably last for years is not a warranty Disclaimer in owners manual is not effective b/c comes to late in the K. Defenses Best defense against Ker who finds river is that specifications drawn up by him - court more likely to find an assumption of risk.

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MBE Rule Statements

TORTS Torts Minor child liable for consequences of his intentionally tortious conduct whether he is aware of the consequences or not. Take your victim as you find him does not include parents. Strict liability Airlines SL for damage by aircraft during ascent, descent, flight. Not SL if there has been a substantial change Does not extend to defective repairs. English only warnings are adequate Does not extend to occasional seller For nonnatural uses (even if by unexpected operation of nature): explosives, blasting, sewage accumulation, emissions of creosote fumes, pile driving. P will prevail against auto compnay if he can show less dangerous modification or alternative was economically feasible. SL for licensees injuries who used hose to wipe off deck, but powdery substance exploded b/c caused powder to be in a defective product b/c no warnings re: water even though no one had been hurt by water for 15 years. Knowing tvs sometimes mounted on ceilings invokes duty to warn re: ceilings - SL must anticipate adequately foreseeable misuse. No SL in service transactions. Recovery general requires physical harm. Valid assumption of risk where pedestrian walks through construction site even though signs and bullhorns. Mfr. Is liable for use of motorcycle over rough terrain b/c used in advertisements. Owner of wild animals SL for injuries so long as P didnt do anything to voluntarily/consciously bring it about, but not in favor of undiscovered trespassers absent negligence. Intentional Infliction fo Emotional Distress If you draw pistol on Ps husband, P suffers distress and miscarries, then P prevails (but P must be present). D liable for reckelss emotional distress where PMBR seeks P sneaks in and doesnt notify police when they find out she paid. Third party liability requires near (but not immediate) family If D knows of Ps peculiar sensitivity, that supports. Misrepresentation/deceit: intentional misrepresentation, scienter, intent to induce, causationa, reliance. Requires pecuniary loss Requires false representation of fact (omissions dont count, unless principal/agent, executor/beneficiary, bank/investing depositor, majority/minority stockholder). Need not know statements are false, scienter incorporates reckless disregard. Negligent Infliction of Emotional Distress P must create foreseeable risk of physical injury to P.
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MBE Rule Statements

Being across the stress is not zone of danger. In zone of danger jurisdiction: no NIED where P walks into building and around the corner painting collapses on people. False imprisonment 30 minutes detention is unreasonable No false imprisonment if honest belief if probable cause for arrest. P can bring false imprisonment action if delay in releasing luggage had effect of confining him in airport against his will. Requiring him to remain in the area to claim was sufficient confinement. If D runs off with kid (sole custody wtih mom), D is liable b/c deprived access to primary caretaker (not access to legal custodian b/c custodian could be liable if other elements were met). Must show intent to restrain. Reasonable belief is not enough for shopkeepers privilege, must show reasonable restraint and no deadly force. Tortious battery Will recover against defense employer for unlawful force by security guard (even though defense employer had been fired). Self-defense for reasonable msitake or apparent necessity No defense if you have time to correct the mistake If you consent to a fight, but die due to unknown condition, consent is still valid No liability for getting drunk/battery Requires a volitional act (not dropping a gun that goes off) Must intent to cause harmful/offensive contact substantially certain that slamming door Mental incompetency does not preclude a showing that D intended to inflict/cause apprehension of harmful touching. Intentional interference with business relations b/c D used improper means to hire K away from K - interference with prospective economic advance: existence of K, Ds knowledge of K, intentional interference inducing a breach and damages. Assault D liable when he pulls gun on wrong guy thinking he is a man who fits radio description Never can use deadly force to effect a misdemeanor arrest. rd 3 party liability special relationship: inkeeper, common carrier, school, LL, jail, ER Trespasser No duty to undiscovered trespasser Duty to warn known trespasser Undiscovered trespassers cant recover for injuries inflicted by landowners abnormally dangerous activities absent negligence. No intent to trespass Mis-shot of golf ball Runaway lawnmower (unless D could discover defect by reasonable inspection) Lose control of vehicle and wind up on Ps land, unless considered reckless due to being drunk but then there must be property damage 31

MBE Rule Statements

No defense for mistake, but maybe nominal damages. Requires possessory interest. Self defense Right to intervene if reasonably appears one fighter is about inflict serious bodily injury on the other. Recapture of chattel is limited to original taking - if lawfully taken, can only use peaceful means to get it back. Land torts If D interferes by painting car wrong, subject to liability for trespass to chattels upon showing of reduced value of car. Conduct consistent with zoning ordinance highly persuasive its not a nuisance. Conversion Major/serious departure from permission Where D doesnt return the car and it gets stolen from her driveway Can be dominion/control - not giving bike back at required time. Intent to trespass is not required - intent to do act of interference is sufficient (even if accidental taking of surfboard). Nuisance Substantial interference, even if you came to the nuisance Entitled to injunctive relief and damages Subject to a reasonableness test. No recovery for peculiarly sensitive Ps (dog owners) Attractive nuisance: fails to exercise reasonable care, kids dont appreciate due to age, owner has constructive knowledge of trespasses. Under attractive nuisance doctrine, you can be liable even if you take all reasonable precautions (not liable if you show 9 y/o appreciated risk of taking canoes out without a life jacket). Attraction only important re: anticipation of landowner. Negligence Remember the elevator example Negligent where D notices plaster from ceiling, posts notice, calls AAA, but ceiling falls on P b/c D should have taken more adequate precautions, duty to make safe cannot be delegated. Subject to emergency situation - e.g., shimmy in the wheel but must drive pregnant wife to hospital. Best defense to Ps negligence claim against D pharmacist is that she took the pills in the past. Ordinary speed limitations dont normally apply to cops, but can be liable for reckless conduct. Common carriers have duty to take reasonable action to protect passengers from own conduct and that of third persons. Airline stewardess failure to stop serving liquor to patron who hits due means liability under respondeat superior. Airlines may be liable for intentional torts of third persons. No recovery for mental disturbance alone (drinking milk with rat in it). 32

MBE Rule Statements

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No recovery for injury/loss of wallet from robber who picked hotel lock. Collateral source rule: insurance payments dont reduce recovery. Comparative negligence only if negligent parties are suiting each other. Remember to offset damages suffered by each persons liability. Express assumption of risk in haunted house. Unit rule is majority/combined comparison. Contributory: if you have last clear chance, the whole burden shifts to you. Contributory negligence: if you get in a car with a drunk person you assume the risk, bu8t not of third parties. Fire is negligence, not nuisance because not continuing. Not SL for fire that gets out of whack. Gross negligence may be a superceding cause. The fact that one joint tortfeasors act standing alone would not have caused disability is irrelevant to liability. Plaintiff does not show contributory negligence. Justifiable breach of statutory probably excuses for contributory negligence purposes, but would be relevant to judging reasonableness. Where hotel owner advises guests in a storm to go to second floor, one guest freaks out and leaves and drowns outside, hotel prevails because no breach by owner. Ers must warn/instruct EE how to act safely in a storm. Status as partners is not enough to make him liable for torts (must be acting within the scope of the partnership. Misdiagnosis is negligence: liable for continuation of illness/suffering until proper treatment plus emotional distress Store has duty to warn and make reasonable inspections and make them safe. Ds duty as possessor of land makes him liable to neighbor for damage from antenna. Firefighters rule - generally precludes firefighter from recovering for injuries occuring on duty that are caused by anothers negligence. No immunity for children - as long as old enough to intend the act, then liable. In suit against parents for parents negligence, best defense is werent aware of dangerous propensities. Status as trespasser precludes recover agaisnt store who hires independent Ker who releases snakes to prevent theft (undiscovered trespasser). Independent Ker who left out powder will win b/c facts dont indicate he was aware that anyone would be at the house or that the powder would react as it did when exposed to water. Excavators near public road are not SL - reasonableness test - due care tow arn persons of the danger. Owner not liable for overgrown weeds, but are liable for overgrown hedge P will recover b/c D was negligent in trying to do dance move while intoxicated better answer than just that injured b/c of dancer (doesnt address negligence). Rescuer has no claim against radio-transmitting homeowner for electrocution from radio antenna on roof when trying to rescue. Owner only has duty to warn re: conditions licensee isnt likely to discover

MBE Rule Statements

Mutual benefit - driver need only exercise due care of doing owner a favor. General rule is that auto driver isnt liable for torts committed by another person driving the automobile, unless permissive use statute. Res Ipsa Patient must know of injury before S/L runs Citizens best arugment is that negligence is presumed from the fact that the mental patient escape. Causation If D locked a door and P had to use a different door and got hit a car, Court should grant Ds motion for judgment b/c care was unforeseeable force. Crazy person pretending to be a doctor is not intervening cause (but hospital still must show duty). P can recover full amount of damages from ER of negligent EE who caused fire. Where several causes combine to form injury and any alone would be sufficient, actual cause is satisfied. For wrongful pregnancy: can recover pain/suffering from labor, treatment of Cs disease, long term disability from pregnancy but not cost of raising. Violations of Statute Conclusive evidence of duty/breach, but compliance doesnt necessarily establish due care. Ordinance re: vehicles in the park is probably to protect hikers, not vehicle occupants. No imputation - if driver violates statute, passenger isnt barred. Bees are domestic. Wrongful death Cowboy trespasser with pacemaker wont recover against electric fence that posed no injury to humans. Sovereign immunity does not attach to nondelegable duties that are proprietary in nature state liable where P falls in hole dug by municipal water department hired fall tee co. Vicarious liability P will prevail against lift owner, where EE had his friend watch the lift, b/c there was intent to serve masters purpose and within scope of employment. Not normally liable for acts of independent contractors except nondelegable duties or abnormally dangerous activity (e.g., work in public area - negligent construction of wall). Res Ipsa does not apply where doll is on the floor (no exclusive control) or when chair falls out of hotel. Invitees, licensees, known trespassers, unknown trespassers D who lives on top of store he works at invites P to have a dinner party, P climbs faulty stairs and gets hurt - D owes duty to warn of known dangerous conditions. P would recover against both lessor and lessee b/c of exception to no duty: known dangerous conditions, land leased for public purposes, lessors control, negligent repairs. Invasion of Privacy Constitutional privilege extends to invasion of privacy: if in public interest must show actual malice.

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MBE Rule Statements

Libel per se: defamatory on its face: if maker knows the statemetns are false and impair Ps ingrity Not disclosure of public facts Making someone look like theyre arrested or fat is invasion of privacy (false light) Defamation: Generally, requires a showing of special damages (pecuniary loss). Well known bar review editor is a private person: negligence test. Qualified privilege from former ER to prosective ER include good faith false statements of fact re: EE Public interest privilege: communication to public officers. President of university might be a public person. Absolute privilege for defamatory statements in court. An accusation need not be believed to be actionable, but it may reduce damages. Un ad-libbed defamatory material on tv is libel. Impeachment of integrity/skills, dishonesty, incompetence is slander per se. Getting tidbits from reliable neighbor is not reckless disregard re: truth/falsity. Qualified privilege in medical situations.

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