More Gremlins in the “Joint”

This blog examines practice Multi-State Bar Exam questions and hopefully helps prospective takers learn to spot various devices used that can so easily throw anyone off balance in their 1.8 minute race to the next question.

People are often perceived — and laughed at — as being witless ninnies simply because they’re taken by surprise.

Take, for example, the recent report of Justice Scalia’s merciless quip at a lawyer who made the mistake of reading notes during oral arguments in the Supreme Court. The article notes the lawyer just stood there, “didn’t answer, simply standing silent for a lengthy embarrassed moment,” according SCOTUSBlog as reported in the ABAJournal.com.

The “Deer in the Headlights” syndrome.

But we’ve all been there and will be again: being exposed to something out of the context we know, and freezing. It’s a natural human response that takes practice coping with. And even that is no guarantee one will respond with aplomb on every such occasion. Even the most quick-witted occasionally get caught off — even Justice Scalia.

Formulating MBEs with words, phrases and circumstances out of the usual context is a favorite tactic of the MBE and practice test writers. It’s one thing to be exposed to something out of context on one’s home turf without pressure or risk of repercussion, and quite another to be on the spot and under fire when it happens.

Of course it’s different for everyone. Here’s one that caught me:

A mall leased one of its retail units to clothing store for a period of five years. The lease agreement provided that the clothing store would pay to the mall, as additional rent, $1,000 a month in maintenance fees for the upkeep of the common areas of the mall. The agreement also permitted assignments and subleases. For four years, the clothing store timely paid all rent and maintenance fees. At the end of the fourth year, the clothing store properly assigned the lease to a discount shoe outlet. At the time it assigned the lease, the clothing store owed $3,000 in maintenance fees for the last three months of its occupancy. The shoe outlet paid its rent, but did not pay any maintenance fees to the mall for the first six months. The shoe outlet then abandoned the property. The mall made reasonable efforts during the last six months of the term to re-let the unit, but was unable to do so. After applying the security deposit to satisfy the balance of the rent, the mall wishes to collect the unpaid maintenance fees for the last 15 months of the lease, totaling $15,000.

Who is liable for those fees and in what amount?

A. The clothing store and the shoe outlet are jointly and severally liable for the $15,000 in fees.

B. The clothing store is solely liable for $3,000 in fees, and the clothing store and the shoe outlet are jointly and severally liable for $12,000 in fees.

C. The clothing store is solely liable for $3,000 in fees, the shoe outlet is solely liable for $6,000 in fees, and the clothing store and the shoe outlet are jointly and severally liable for $6,000 in fees.

D. The clothing store is solely liable for $3,000 in fees, and the shoe outlet is solely liable for $12,000 in fees.

The correct answer is B: the tenant is still liable for the rent after assignment through privity of contract with the landlord if the party assigned fails to pay.

But “jointly and severally liable”?

Excuse me? This is a real property question after all.

My real property lectures never once mentioned the phrase “joint and several liability” in connection with any type of real property topic. Nor did my bar review course or supplemental reading include such a reference in that area.

Use of the phrase “jointly and serverally liable” in a property question was a sufficient shift in usual context to throw me off-balance. Would it throw you off, sitting cold and exposed on that convention center floor with thousands of fellow victims?

No doubt that was the objective of the authors of this review course practice question: Out of context causing "Deer in the Headlights" syndrome. (I like to call it, "Dilbert Paralysis.")

The MBE relishes catching deer in the headlights.

Of course it’s only reasonable that the concept embodied in the phrase “jointly and severally liable” would have wider applicability, but I just never had considered that possibility. It was that shift in the context I was used to that threw me: just never having encountered it in other areas of law or thought about its other uses.

The entry in Black’s under “joint and several liability” — this was the first occasion I felt I had the need to refer to this entry, not having previously encountered it outside of tort law — succinctly confirmed the acceptable use in creditor contexts.

But some brief mention during law school, perhaps? A 2 minute digression of the wider application of the phrase would probably have been enough to dispel any panic.

There is one other nit in this example, and that is an obvious logical contradiction that would have been remedied with careful copy editing: “For four years, the clothing store timely paid all rent and maintenance fees. At the end of the fourth year, the clothing store properly assigned the lease to a discount shoe outlet. At the time it assigned the lease, the clothing store owed $3,000 in maintenance fees.”

If the clothing store timely paid “all rent” for four years, then logically there’s nothing owing for that time. Granted it’s nitpicker’s nit, but it still bugged me.

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Disclaimer: The examples cited here are either from the National Conference of Bar Examiners or one of the private bar preparation providers, and are used here under the fair use safe harbor for nonprofit educational purposes outlined in 17 USC §107. BE ADVISED these examples are, perforce, outdated and are used only as illustrations of methodology in form and language that may be encountered on the MBE and bar prep courses, and further be advised that the state of current law may not be accurately reflected.

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Another Fine Line

This blog examines practice Multi-State Bar Exam questions and hopefully helps prospective takers learn to spot various devices used that can so easily throw anyone off balance in their 1.8 minute race to the next question.

There is no shortage of fine lines of separation in the law causing no end of hand-wringing for law students, prospective bar exam takers, and novice lawyers, and some that probably still annoy even a veteran here and there. Take some areas of homicide for example: here’s one from a review course’s practice MBE.

A husband decided to kill his wife by poisoning her. He asked his friend, a pharmacist, to obtain some deadly poison, and to give it him without recording the transaction. Because the pharmacist suspected the husband’s motive, she supplied the husband with a small quantity of an antibiotic, instead of the poison. The antibiotic is harmless if administered in small quantities, except for the less than 1 percent of the population who are allergic to the drug. The husband injected his wife with the drug while she slept, and she died from an allergic reaction.

The pharmacist is an accomplice to:

A. Murder.

B. Manslaughter.

C. Criminally negligent homicide.

D. No degree of criminal homicide.

According to the bar review explanation, the correct answer is D.

My problem is with the selection of answer choice D over answer choice C.

True, the facts do not explicitly state any intent to harm on the part of the pharmacist, and further do not explicitly state any other criminal intent. But reasonable people could certainly argue with some conviction that answer choice C is not unreasonable.

There’s no problem in dismissing A because of the lack of any intent to kill on the part of the pharmacist.

Did you notice that answer choice B is simply “Manslaughter,” without specifying either voluntary or involuntary manslaughter? Rather slippery. The answer key explanation for B dismisses voluntary manslaughter as a possibility for the same reason it dismisses murder: lack of intent to kill.

But it also dismisses involuntary manslaughter that might fall under answer choice B. The explanation key dismisses that option by stating that “ ‘unlawful act’ involuntary manslaughter requires a killing in the course of a [non-dangerous ] felony or a malum in se misdemeanor” [“misdemeanor manslaughter”]. But that encapsulation does not go far enough.

Clearly, mala in se misdemeanor crimes fall within this category of “unlawful act” and therefore under misdemeanor manslaughter.

But LaFave, in his concise hornbook, notes that more acts than just those mala in se misdemeanors can fall within the scope of “unlawful act.” He states that unlawful act involuntary manslaughter may apply in cases of acts merely mala prohibita, even those that may only amount to civil wrongs, rather than criminal depending on the jurisdiction.

Among jurisdictions, LaFave states, the modern trend is to depart from “unlawful act manslaughter,” with only about half the states retaining some form.

In those that retain it, the unlawful act must be the cause of someone’s death, as it is in the above example. Further, the death must be foreseeable from the unlawful act, and the risk of death or serious bodily harm must be either merely unreasonable, or both unreasonable and high.

In this case, there’s a pharmacist dispensing medication without a doctor’s prescription, which depending on the medication and the statutes involved may explicitly be malum prohibitum, whether amounting to a crime or merely a civil wrong. In any case, it seems that would qualify as an unlawful act, and a death resulted.

The question is whether that, coupled with the risk of harm that is present, is sufficient to subject the pharmacist to involuntary manslaughter liability?

Generally, for “unlawful act” manslaughter, the risk must be an unreasonable risk of death or serious bodily harm.

Here, the facts indicate the antibiotic is harmful to “less than 1%” of the population, but the facts don’t indicate the scope of “harmful,” whether that’s mere injury or the possibility of death.

So, is there an unreasonable risk of death or serious bodily harm here? Without more, it would not seem so.

OK, I can live with that reasoning.

Now: Criminal Negligence Homicide --- Involuntary Manslaughter

Generally, a key factor in criminal negligence homicide is that the defendant must be aware that it is his conduct that creates a risk of harm. Criminal negligence homicide is conduct that, under circumstances known, involves a risk of death or serious bodily injury that is either unreasonable, or both unreasonable and high, which can also be termed “recklessness.” The concept of recklessness encompasses the conscious disregard of the risk of harm to others.

The review course’s answer key in this case stated that degree of negligence was not reached here, where the pharmacist supplied the husband with the “usually harmless” antibiotic. But here, the pharmacist knows that some people are allergic to the antibiotic, knows that there is some chance of harm if husband administers the drug to someone.

As a matter of logic, any risk of harm is unreasonable where there is no countervailing benefit (Less than 1% risk of harm along with efficacious treatment of illness vs. Less than 1% risk of harm only and without possible benefit).

The pharmacist knows he is not providing the antibiotic for medicinal purposes, and therefore he knows there’s a risk of harm that, perforce, is unreasonable. The result is a death: but for the pharmacist giving the antibiotic to the Husband, a death would not have occurred.

So why is D the correct choice? The line between answers D and C seems pretty thin, given the state of the law. Certainly, it seems these facts could present a case of criminal negligence homicide.

Left unexplored is whether the pharmacist’s professional knowledge factors into — or whether it should factor into — his awareness of the risk and therefore adds to his culpability.

This fact pattern is just too nebulous for a multistate-style multiple choice question: Too many blurred lines and opaque circumstances. This one was better saved as an essay.

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Disclaimer: The examples cited here are either from the National Conference of Bar Examiners or one of the private bar preparation providers, and are used here under the fair use safe harbor for nonprofit educational purposes outlined in 17 USC §107. BE ADVISED these examples are, perforce, outdated and are used only as illustrations of methodology in form and language that may be encountered on the MBE, and further be advised that the state of current law may not be accurately reflected.

A Break from ‘Nits’ With Downton’s Legal Drama

With the coming Season 4 of “Downton Abby,” I've been reviewing the earlier seasons. The show has been characterized by many as a “Legal Drama” based on the first season's underlying legal dilemma concerning England's inheritance and estate law. But as the drama progresses, the series is rife with collateral circumstances that present legal questions.

To me, one of the most compelling in the first season was the miscarriage suffered by Lady Grantham, especially as it turned out that it would have been a boy, and solved the quandary for a male to inherit the title and estate.

Here’s how I see that episode if presented in the form an MBE question:

O’Brien works for Lady Grantham as a lady's maid and personal care assistant. One day, O’Brien eavesdropped on a conversation of Lady Grantham. O’Brien jumped to the erroneous conclusion that Lady Grantham was about to terminate O’Brien’s employment. O’Brien became angry and bitter at the possibility of such callous treatment after O’Brien's 10 years of loyal service to Lady Grantham. The next day, O’Brien was assisting Lady Grantham with Lady Grantham in her bath. Lady Grantham dropped the cake of soap outside the tub. The cake of soap broke in two. O’Brien retrieved one half and handed it to Lady Grantham in the bath, explaining, “The other half is under the tub.” As O’Brien said this, O’Brien intentionally and surreptitiously moved the second half of the soap with her foot to the side of the tub so that Lady Grantham might step on it and slip. O’Brien did this knowing Lady Grantham was four months pregnant. O’Brien left the room for other duties, but then had second thoughts and decided to alert Lady Grantham. However, just at that moment, on exiting the bath tub, Lady Grantham stepped on the soap cake, slipped, injured herself and suffered a miscarriage that killed the unborn fetus. The jurisdiction retains the common law.

What crime or crimes can O’Brien be prosecuted for?

No crime because O’Brian renounced her attempt when she changed her mind and turned to warn Lady Grantham and thus there was no concurrence between actus reus and mens rea.

Murder with Malice Aforethought for causing the death of the unborn fetus, because O’Brien intentionally moved the soap.

Depraved Heart Murder for causing the death of the unborn fetus, because O’Brien acted with wanton indifference to human life and a conscious disregard of the unreasonable risk of serious injury or death by moving the soap and increasing the risk Lady Grantham would slip on it.

Voluntary Manslaughter of the unborn fetus because O’Brien was genuinely outraged and in the heat of passion by the possibility of being fired by Lady Grantham after 10 years of loyal service.

Battery for injuring Lady Grantham; Misdemeanor Manslaughter of the unborn fetus because O’Brien had no intent to kill the fetus.

Battery for injuring Lady Grantham; no crime for causing the death of the fetus because at common law, no homicide was possible until a human being was “born alive.”

Any thoughts?

The fact pattern probably lends itself even better to an essay question either in crime or torts. The potential for O’Brien’s tort liability is considerable: Battery; Wrongful death of the unborn fetus (loss of consortium); negligent infliction of emotional distress; intentional infliction of emotional distress . . . what else?

Legalese: Who’s the -EE, and Who’s the -Or?

This blog examines practice Multi-State Bar Exam questions and hopefully helps prospective takers learn to spot various devices used that can so easily throw anyone off balance in their 1.8 minute race to the next question.

If I had a nickel — or a fraction-lower blood pressure — for every time I re-read a passage to sort out (again) who was the “mortgagor” and who was the “mortgagee” . . . .

Legalese has long proven an unnecessary barrier.

Hornbooks and scholarly law journal articles everywhere still insist on weighing down readers with annoying, often unnecessary legalese. This, in a discipline that pervades and affects the daily life of every person in society, and whose members should be able understand those legal principles by which they’re expected to govern themselves.

And it’s just as true in law school, bar review programs and of course the MBE.

I’m not referring to terms of art developed to communicate explicit legal concepts, but rather the chaff of legal language: The jargon.

As a longtime journalist, I am the first to promote economy of words, but not at the expense of clarity.

There is particular unhelpfulness in the unnecessary confusion that can be generated by words ending in “-ee” and “-or” in the labels referring to participants involved in the matter at hand. No doubt they were generated as a sort of short-hand among lawyers to more easily identify the parties, their relationship to each other and to the matter. But because most are not employed in common use, the more unusual can be confusing.

Here are a few:

Lessor / Lessee

Grantor / Grantee

Assignor / Assignee

Obligor / Obligee

Mortgagor / Mortgagee

Bailor / Bailee

Promisor / Promisee

Offeror / Offeree

These last two — “offeror” and “promisor” — have been common enough in popular use that they, at least, present little problem of clarity. Not so their passive counterparts of “promisee” and “offeree,” which are not so commonly used.

The first six terms, however, are on the opposite end of the use spectrum, having little to no common use and representing the embodiment of unnecessary legalese.

These terms are common in law and on the MBE. On one hand, economy of words is to be applauded in the timed, speed-reading environment of the MBE. On the other, the split seconds added by using common-use terminology to label these participants probably more than make up for the time otherwise wasted by the confusion generated by the legalese labels.

Short fact pattern MBE questions don’t present much of a problem even when they employ these labels. But the longer, half-column to column-long 400-word patterns weaving a complicated story of “mortgagors” and “mortgagees,” “assignors” and assignees” or “obligors” and “obligees” can be torturing. (They can also present pronunciation conundrums: Is that a hard or soft “g” in “obligee”?)

For the MBE taker and law students trying to absorb and recognize these uncommon terms, try to think of them in terms of the active and passive nature of the roles they’re trying to identify.

But even that is no guarantee: an argument could be made that “mortgagor”” and “mortgagee” could easily swap places in terms of their active and passive roles.

More broadly, lawyers everywhere, especially those writing hornbooks, law review articles and law test materials, should be encouraged to make a conscious effort to employ more commonly used terms, even if it generates a few more words.

What’s wrong with using “tenant” for “lessee” and “landlord” for “lessor” when referring to a real property situation? Or using “lender” instead of “mortgagee” once the transaction of a mortgage has been explained. (Oops! Did I mean “mortgagor”?)

When MBE takers read a 400 word contracts fact pattern and it seems like every other word is “assigned,” “assignment,” “assignee” or “assignor” it’s pretty easy to get confused and lose track of who made the assignment and who received the assignment (not to mention remembering at that point who is the “obligor” and “obligee”!)

There is no doubt that more clearly labeling participants — “X, who assigned . . .” and “Y, who received the assignment . . .” will add words to the fact pattern, and therefore take more time to read. But, in the MBE context, if it helps easily identify the participants’ roles in the action, it seems likely to more than make up for it by saving time, aggravation and mistakes in formulating an answer.

The purpose of language is communication, and assuming the purpose is to affirmatively convey information, clarity should be the core, guiding principal. It is for Messrs. Strunk & White: Browse “The Elements of Style” and take note of how often the guide expresses that objective.

But the language of law is often anything but clear, despite that possibly having been the original objective: providing precise descriptions and trying to leave no room for doubt. In its efforts to be painstakingly precise, uncommon words and use might be employed that actually cause confusion.

Every lawyer considers himself an accomplished writer, and yet, the use of legalese, unfortunately, abounds. This, despite attempts by the judiciary at large to promote plain, simple and clear language in memorandums, briefs, motions, instructions and every other document they’re forced to read. It’s disappointing that lawyers in general are not more rapidly embracing that concept in daily practice, let alone in law learning material.

Law is an arena that pervades every aspect of the man’s society, and it is vital that the principles be clearly communicated, easily understandable and accessible to everyone, even MBE takers, and not just to other lawyers.

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Disclaimer: The examples cited here are either from the National Conference of Bar Examiners or one of the private bar preparation providers, and are used here under the fair use safe harbor for nonprofit educational purposes outlined in 17 USC §107. BE ADVISED these examples are, perforce, outdated and are used only as illustrations of methodology in form and language that may be encountered on the MBE, and further be advised that the state of current law may not be accurately reflected.

Gremlins in the Joint

This blog examines practice Multi-State Bar Exam questions and hopefully helps prospective takers learn to spot various devices used that can so easily throw anyone off balance in their 1.8 minute race to the next question.

In the language of law, the term “joint" can play gremlin to the unwary.

Another driver and the defendant were racing along a two-lane road. While the other driver tried to pass in the lane to the left of the center line, the plaintiff’s car came into view, heading directly at the driver’s vehicle. The driver lost control of his vehicle and collided with the plaintiff’s car. The defendant’s car, was not involved in the collision. The plaintiff brings suit against the defendant for damages suffered in the collision.

Which of the following would be the defendant’s best course of action?

A.    Seek dismissal of the claim, because the defendant did not cause the plaintiff’s damage.

B.    Seek indemnification from the other driver, if the plaintiff recovers a judgment against the defendant.

C.    Ask the court to limit his liability to one-half of the plaintiff’s damages.

D.    Seek contribution from the other driver, if the plaintiff recovers a judgment against the defendant.

Contribution or indemnification?

Two terms themselves that can play gremlin with tricky concepts each involving two or more tortfeasors — the notorious “joint tortfeasors” — and the apportionment of liability. The concepts of contribution and indemnification are easily confused and often mistakenly interchanged by the unwary, which is why they’re brought into play in this type of question.

Indemnity totally shifts liability in the interests of justice: where there’s a secondary tortfeasor perceived to be responsible as a matter of law rather being than the primary tortfeasor, who is responsible in fact. The classic illustration is vicarious liability, when an employer is sued for the torts committed by an employee during the course of employment. Though as a matter of law the employer is vicariously liable to the plaintiff for the damages to plaintiff, the employer is entitled to seek indemnification from the employee. The law prefers to ultimately sanction the party who was in fact at fault — the employee — by reimbursing the party that was not at actually fault, the employer.

Contribution, meanwhile, is the applicable concept for this question: two tortfeasors are each causes in fact and justice sees damages as apportionable in equal share, even where one tortfeasor may be more at fault than the other. The one who pays can seek contribution from the other.

Here the plaintiff brings suit against defendant even though it was the other driver’s car that in fact collided with plaintiff, and defendant’s own vehicle wasn’t involved in the collision. Both drivers were negligent by racing, jointly creating the unreasonable risk of harm to a foreseeable plaintiff that no ordinarily prudent person would create. The defendant is wholly liable under the concept of joint and several liability for the plaintiff’s indivisible injury. However, both tortfeasors were at fault. Indeed, it could be argued — not unreasonably — that driver was more at fault than defendant. But under joint and several liability either is liable to plaintiff for the entire injury, and in this case it was defendant who faced the music in court. But defendant, who has been made to compensate defendant for defendant's entire injury, is entitled to make driver face the music as well, by suing driver for contribution: driver, the joint tortfeasor, perceived by law as being liable for an equal share of damages recoverable by plaintiff. If three cars were racing, defendant could seek contribution from the other two racing drivers as joint tortfeasors.

The joints can be like gremlins assailing the unwary.

Meanwhile, on the property side of law, the term “joint” may also play gremlin.

The fact pattern begins: “A mother’s will left her farm to her son and daughter ‘jointly, as tenants in common.’”

You guessed it: The classic distractor — and incorrect — answer choice included reference to “the other joint tenant” and the consequent right of survivorship.

When two or more people receive a devise or conveyance of property together, the presumption is they take as tenants in common, and not as joint tenants. Tenants in common each have a share of ownership coupled with an undivided interest to the right of enjoyment in the whole. That share of each tenant in common is freely alienable — available to be sold or given away, or devised by will.

In order to create that near-magical status of “joint tenant” so that the property interest passes on death of one concurrent owner to another by operation of law, the devise, deed or gift must be explicit by using unequivocal terms on linguistic par with “joint tenants with right of survivorship.”

The language of law is full of terms that can play gremlin and muddle the unwary: they're everywhere, so watch out!

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Disclaimer: The examples cited here are either from the National Conference of Bar Examiners or one of the private bar preparation providers, and are used here under the fair use safe harbor for nonprofit educational purposes outlined in 17 USC §107. BE ADVISED these examples are, perforce, outdated and are used only as illustrations of methodology in form and language that may be encountered on the MBE, and further be advised that the state of current law may not be accurately reflected.

Words Unsaid

This blog examines practice Multi-State Bar Exam questions and hopefully helps prospective takers learn to spot various devices used that can so easily throw anyone off balance in their 1.8 minute race to the next question.

In the following constitutional law question, the key was to spot the words or phrases left unsaid and force test takers to fill in those blanks.

Congress enacted a law requiring all civil service employees to retire at age 75, except when such employees are employed by the armed services. Civil service employees of the armed services are required to retire at age 65. An employee of the armed services just turned 65 years old. He files suit in the federal district court seeking a declaratory judgment that would prevent his employers from requiring him to retire before age 75.

The employee’s strongest argument in support that the statute’s provisions regarding civil service employees of the armed services are invalid is that this provision:

A.   Denies him the privileges and immunities of natural citizenship.

B.   Denies him a property right without just compensation.

C.   Is invidious discrimination on the basis of age in violation of the Fifth Amendment.

D.   Is not within the enumerated powers of Congress under Article I, Section 8.

Granted this is pretty much a no-brainer through process of elimination of A, B, and D.

What’s interesting is the language in the correct response C: “invidious discrimination.”

The 800-pound gorilla not mentioned by name in the fact pattern is “Due Process” and the derivative incorporated concept of “Equal Protection,” both applicable to the federal government through the Fifth Amendment’s Due Process clause.

I reckon that because the question was so easily disposed of by process of elimination, there was no reason to beat test takers over the head by using either of those phrases in the fact pattern or in explaining the basis of the employee’s suit.

On the positive side --- and making a pleasant change from the constant criticism of questions usually found in this blog --- the phrase “invidious discrimination” is so colorful that it’s bound to have resided prominently in students’ memory, even though there is only a case or two from the constitutional classroom that actually uses it.

My thanks to drafters here for throwing an occasional bone.

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Disclaimer: The examples cited here are either from the National Conference of Bar Examiners or one of the private bar preparation providers, and are used here under the fair use safe harbor for nonprofit educational purposes outlined in 17 USC §107. BE ADVISED these examples are, perforce, outdated and are used only as illustrations of methodology in form and language that may be encountered on the MBE, and further be advised that the state of current law may not be accurately reflected.

How Is It Reasonable, Exactly? 
This blog examines practice Multi-State Bar Exam questions and hopefully helps prospective takers learn to spot various devices used that can so easily throw anyone off balance in their 1.8 minute race to the next question.

The slipperiest term of legal language throughout the law, including law school and the MBE, is “reasonable.”

And yet it is the most common, oftenest-used benchmark in almost all areas of the law: “Reasonable person,” “reasonable care,” “unreasonable risk.”

Law students are told from Day 1 that “reasonable people can disagree” on this point or that, and so go to court to help resolve that through the help of a finder of fact and law. And it is that mystical ideal of the “reasonable person” that provides the basis for the standard of care one person owes to another in order to avoid negligence.

Yet, the term is subjective and meanings for “reasonable” are as numerous as there are people and their individual languages: What’s reasonable to CD is unreasonable to MB, and downright senseless (and hateful!) to WJB.

So where is the reason that so many MBE questions require a common understanding of that term “reasonable”?

Perhaps it’s the not-so-subtle psychological component: MBE takers must understand the benchmark of what is “commonly” accepted as “reasonable” either because they are, themselves, “reasonable” within what can be a rather small spectrum of meaning, or at least they have encountered it often enough in society at large to have an understanding of just how the mythical ideal “Reasonable Person” behaves.

But that is a supposition that has no basis in fact, and one that itself may be unreasonable. Consider this fact pattern:

A salesman was employed by a florist, who owned a retail shop adjacent to a large wholesale nursery. The owner of the nursery liked to use a brand-name artificial fertilizer for her plants, although other effective fertilizers were available at comparable prices. She stored a large quantity of the fertilizer in a heap on the nursery’s property, as did many other nursery owners without incident. The fertilizer gave off fumes that caused the salesman to suffer lung irritation. Occasionally, the salesman had to take off from work and seek medical attention. After losing a few hundred dollars in wages and amassing a few hundred dollars in medical expenses, the salesman sued the nursery owner for damages.

My first thought: If he only racked up a few hundred dollars in medical expenses, I sure would like to know the name of his doctor! My second was, what exactly are “ . . . nursery owners without incident?” (Ok, so that’s just a copy-editing “gotcha.”)

But seriously, this example has some issues. I call them problems, but the writers probably don’t.

What exactly is a “large quantity?” A pound or kilogram? 10 pounds? 100 pounds? 1 ton? 10 tons?

That kind of sloppy, vague language in the facts sets MBE takers for a fall right there, requiring a supposition, which they can only solve if their idea of “large quantity” happens to be the same as, or close to, that the of writer’s. Maybe it depends on how a “reasonable” person would define “large quantity.”

The pile of chemical fertilizers (“artificial” = “chemical”) gave off fumes. We are told the fertilizer gave off fumes that caused salesman’s lung condition, so therefore the fertilizer is toxic to humans.

Are we ready? The call of the question for the above fact pattern and answer choices are:

The court is likely to rule in favor of:

A. The salesman, because the nursery owner had equally effective fertilizers available at comparable prices to the fertilizer used.

B. The salesman, because the nursery owner is strictly liable for injuries caused by emissions from her property.

C. The nursery owner, because the selection of the fertilizer was reasonable and it was stored in a reasonable manner.

D. The nursery owner, because the salesman is merely an employee of the florist and does not own the property on which the shop is located.

Throw out A immediately as not being relevant to anything. D is fairly insidious by raising the intangible specter of nuisance. But that would not be the only basis for an action against nursery owner who plays with toxic chemicals in his neighbor’s backyard, so we can throw that one out, too.

So here’s where it gets unreasonable.

In law school, I learned there is strict liability for engaging in ultra-hazardous activities, such as transporting nuclear waste, explosive demolition work, and, yes, storing hazardous chemicals, especially in a residential or commercial area near lots of “foreseeable” victims. Ultra-hazardous “strict liability” activities are those that can’t really be made completely safe no matter what reasonable precautions are taken.

So I liked answer choice B.

Will it surprise to know the correct answer choice for this practice question was C?

“. . . the selection of the fertilizer was reasonable and it was stored in a reasonable manner.”

Excuse me?

Pray, where exactly is the “reasonableness” of storing a “large quantity” of fuming noxious chemicals “in a heap” on property located in a commercial zone crowded with employees and customers alike?

Call me timid, call me overly cautious, call me unreasonable, because that doesn’t really seem very reasonable to me. I think the “reasonable man,” who is the progenitor of the “ordinarily prudent person” that sets the standard for negligent behavior, should find storing a large quantity of fuming noxious chemicals openly in a heap on his commercial property in close proximity to others is inherently unreasonable.

Of course, readers are given the additional fact that other nursery owners also stored large quantities of fuming noxious chemicals openly on their commercial property and they never caused an injury. Lucky them!

Surely, this question did not intend to communicate that because a host of other people do something the same way, that makes it “reasonable.” 
(Go read “Extraordinary Popular Delusions and the Madness of Crowds” by Charles Mackay [http://books.google.com/books/about/Extraordinary_Popular_Delusions_and_the.html?id=tDn1nAEACAAJ])

OK, so what everyone else is doing might be a factor in what regular folks consider reasonable, but only a factor. Human beings and ordinarily prudent people are expected to be somewhat more thoughtful in their behavior than lemmings, even if all too often they are not.

I could go on, but I think the point has been made: I guess I just reasonably disagree with the writers on this one.

And if you do, too, it brings up something else to keep in mind in while completing your practice questions and during the MBE itself: There are going to be “correct” answers with which you have plenty of basis to reasonably disagree. So you are going to get those wrong, and you need to learn to live with that, as frustrating as it is. But don’t worry, because they won’t outnumber the ones you get right!

Another exam tip I’d like to point out is the repetition of the term “reasonable” in the correct answer choice. Be advised this is not a smoking gun or giveaway clue! In fact, it should send up a red flag for the test taker to reread the answer choice carefully in light of the fact pattern. The terms “reasonable” and “unreasonable” get thrown around a lot in MBE questions, and they are often inappropriately paired with other words and concepts to camouflage and distract. One unreasonably misplaced use of the term “reasonable” can often be very tempting, so be careful how you reason.

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Disclaimer: The examples cited here are either from the National Conference of Bar Examiners or one of the private bar preparation providers, and are used here under the fair use safe harbor for nonprofit educational purposes outlined in 17 USC §107. BE ADVISED these examples are, perforce, outdated and are used only as illustrations of methodology in form and language that may be encountered on the MBE, and further be advised that the state of current law may not be accurately reflected.