Adaptibar Explanations!!! Flashcards
what happens when an easement is overused or increased?
easement is NOT terminated by overuse;
the remedy for increased or overuse is to seek damages or an injunction (but owner cannot terminate it)
what happens when there conflict as to which state’s law should be applied in PROPERTY cases?
general rule: the site of where property is located (“situs”) - this state applies
SOF + land conveyancing
SOF mandates that any K w/ regard to sale or conveyance of land must be in writing and signed by the party to be charged
Deed given to 2 unmarried people is considered …
a JOINT TENANCY
Is the covenant for warranty breached where the grantor refuses to defend on behalf of the grantee?
NO. a covenant of warranty is not breached by the covenantor’s refusal to defend title against a wrongful claim or eviction by a third party. Landowner only required to defend or reimburse for VALID claims for title.
covenant is not breached by grantor’s refusal to defend a WRONGFUL claim of title by a third party
What happens when someone has no authority to contract at the time a LSK is excuted, but they acquire good title to the property before the closing date?
unjustly enriched grantee may seek damages and specific performance bc he has a basis for breach of K claim
where is a corporation domiciled?
every state where incorporated + where corporation maintains PPB (look for “nerve center” - it’s usually the headquarters) can be domiciled in 2 states
Supplemental jurisdiction valid??
If anchor claim is based on diversity, ASK:
- Do the claims arise out of the same transaction or occurrence?
If yes, proceed to question two: - Is P bringing the claim in order to bring in a new party pursuant to FRCP 14 (third-party plaintiff), 19 (mandatory joinder), 20 (permissive joinder), or 24 (intervention)?
If yes, proceed to question three: - Will the new party’s presence in the lawsuit defeat diversity jurisdiction?
If yes –> there is no supplemental jurisdiction.
Supplemental jurisdiction valid??
If anchor claim is based on FQ (Federal court has FQ jurisdiction), ASK:
Do the claims arise from the same transaction or occurrence?
If yes → supplemental jurisdiction likely exists
if defendant wants to bring claim against a new party, (defendant 2), what can defendant do?
implead the new defendant, then tack on the new claim.
A private nuisance must ______ with another individual’s ____.
Substantially & unreasonably interfere
Use or enjoyment of their land
[cement dust IS nuisance bc would be offensive & annoying to avg person]
The only requirements that must be met for a conveyance of land to be valid are:
Execution and delivery of the deed
Execution requirement of deed is satisfied:
Delivery of a deed is established by:
Acceptance of the deed will be presumed unless:
- As long as the deed is signed by the party to be charged the seller or transferor
- A proven intent to pass title even if the document was never physically given to the grantee
- The grantee explicitly rejects it
Continuing to advocate a legal position after that is frivolous constitutes
Bad faith.
[A motion for sanctions will be granted If litigation advocates for a position that becomes frivolous in light of a Supreme Court ruling-copyright example]
What is a single indivisible injury in torts?
In relation to multiple Ds
When the facts do not indicate that either action alone would have caused the injury of the plaintiff
Example is a company lets telephone pole get a termite ridden and a drunk driver hits it but it does not fall, but it falls a week later And injures a pedestrian. Faults cannot be apportioned between these two because the fax not indicate that either action alone would have caused the power to fall.Therefore the company and driver are jointly and severally liable for plaintiffs injuries.
Does being pinned down amount to custody for purposes of custodial interrogation?
Yes. Proper Miranda warnings and voluntary waiver are required. If neither of those steps are taken any confession is deemed involuntary and should be suppressed.
Rival weed farmer example where Robbie guessed right answer :)
An incidental beneficiary in contracts is one who…
Fortuitously and incidentally anticipates a benefit resulting from a transaction between others
(Distinguish this from an intended beneficiary)
Discuss the statute of frauds as it relates to the contract for sale of land.
The statute of frauds mandates that any contract for the sale of land must be in writing and signed by the party to be charged. A land sale contract may never be oral.
However part performance that unequivocally indicates that the parties have contracted for the sale of land may remove the contract out of the statute of frauds. What constitutes sufficient park performance varies along jurisdictions.
—- Partial payment but not possession or valuable improvements means statute of frauds still applies and oral contract not allowed.
Under FRCP is notice to all members of the class always required?
No all members will be found by the judgment with a class action six injunctive or declaratory relief for the class as a whole. As a member of the class the violinist (Who did not receive notice of the previous class action but was a member of the class) is bound by the judgment
For class actions that do not concern a common question of fact or law all members of the class will be bound by the judgment rendered in class action lawsuit even when a class member to not receive notice of the suit.
A school policy that classifies on the basis of gender is subject to____.
The_and not the_bears the burden of persuasion and must show that the policy is __________.
Intermediate scrutiny.
Government, not the student ; SUBSTANTIALLY RELATED TO AN IMPORTANT GOV. INTEREST
For purposes of equal protection gender is a _____ Classification
Quasi suspect (subject to intermediate scrutiny)
Burden of persuasion on GOVERNMENT
The GOVERNMENT must demonstrate a regulation is not as NARROWLY drawn as possible to achieve a substantial government interest for:
Content based regulations on commercial speech
What must the government show to meet strict scrutiny standard
Policy is the least restrictive means to achieve a compelling government interest
What must challenger show to meet rational basis test?
THe requirement/policy Is not rationally related to a legitimate government interest
Voluntary intoxication is only a defense to _____ CRIMES?
WHEN DOES IT APPLY?
Specific intent
It applies as a defense if the intoxication negates the requisite mental state for the charge
Example is if defendant did not realize anyone was around when he shot a gun BECAUSE HE WAS INTOXICATED, he could not have intended to assault with intent to kill
If defendant is charged w/ manslaughter from death resulting from automobile accident, is intoxication a defense and why or why not
It is not a defense because intoxication did not negate his intent to drive the car and is not a defense to manslaughter as such.
**Remember that the intent to commit the crime must be negated in order for intoxication to apply. In other words intoxication can only be a defense to specific intent crimes.
Is armed robbery A specific intent crime
Is intoxication a defense to armed robbery if robber doesn’t know if gun is loaded or not?
YES
No, not a defense because the intoxication made him uncertain about the GUN, NOT THE INTENT TO COMMIT ROBBERY
What is a prior inconsistent statement?
What can it be used for?
A statement made by a witness before the witnesses testimony in a current court proceeding such as during pretrial discovery and interview or interrogation that conflicts with the statement made by the witness in the court proceeding in which the witness is subject to cross-examination
There are two ways it can be used
- To impeach the witness
- As non-hearsay substantive evidence of the prior statements truth if the prior statement was given under oath and such a penalty of perjury as part of a formal hearing proceeding trial or deposition.
Prior inconsistent statements given under oath at a deposition are not hearsay under 801 if:
As such these statements may be admitted for:
The witness is testifying in a current court proceeding and is subject to cross-examination
Impeachment as well as substantive value.
What is the general rule regarding employers of independent contractors and when does it not apply
The employer of an independent contractor will not be vicariously liable for the contractors tortious conduct
This does not apply where there is a non-delegable duty such as abnormally dangerous work which will be subject to strict liability
(Example: blasting operations to excavate for a pool,)
A claim for defamation must prove what elements
At the defendant was at fault
That the information was false and Santori communication a fact about the plaintiff
Publish to a third person who understood it was Farrah Tori and as a result
Cause harm to the plaintiff
UNDERSTOOD is key for publication - if statement said in Russian and no one who heard understands Russian, THAT IS NOT PUBLISHED NOR DEFAMATION!!!
In the case of slander (which is defined as …?) The plaintiff must played and prove ________
Verbal defamation
Special (pecuniary) damages
BUT 4 exceptions Which do not require special damages:
- Criminal activity
- Misconduct regarding plaintiffs occupation
- Sexual misconduct
- “Loathsome” disease
What standard are private parties held to for defamation?
What standard applies when concerning public figure (and discuss)?
Private parties = negligence (reasonable belief)
Public = malice
- Where defamation refers to a public figure or involves a matter of public concern the plaintiff needs to prove in addition to the regular four requirements the following two elements:
1. Falsity
2. Fault by defendant
Strict liability can be imposed upon storekeeper for sale of product which is in defective condition or unreasonably dangerous provided that:
[powersaw w/ switched blade example]
- Commercial supplier = storekeeper is engaged in the business of selling that item (reconditioned power saws)
- The item was not substantially changed by anyone else before the consumer used it
D is alcoholic who experiences auditory hallucinations and strangled an elderly woman because he believed he was being unmercifully attacked and heard a hallucinatory voice telling him to do so.
If Charles the second-degree murder how does he get acquitted
Say that he was not criminally responsible for his actions because he was in sane at the time of killing
M’naghten - Qualifies as insane under this rule because his delusions caused him to believe that his actions were not criminal as he was acting properly in self-defense
Durham - Qualifies as insane under this war because his crime was a product of his mental defect
Give example of a foreseeable act in furtherance of a conspiracy
(Hint: rifle and brothers)
2 brothers conspire to operate a distillery (illegal cause Robbie said so) and the criminal acts of one brother would impute liability to the other brother, IF THOSE ACTS WERE FORESEEABLE AND FURTHERED THE CONSPIRATORIAL OBJECTIVE
- if the objective is to sell liquor illegally and violate revenue laws, if 1 brother shoots undercover cop and is charged w/ battery — > the second brother will also be liable for battery EVEN IF HE WAS NOT PRESENT AT TIME BTU CAME BACK LATER AND COPS ARRESTED BC WAITING FOR HIM - liable because committing the battery against the officer was foreseeable and by brother 1 using rifle against official who is trying to stop bros from pursuing crim venture, the criminal objective of the conspiracy was furthered.
Forgery requires that document has:
LEGAL SIGNIFICANCE
(Remember, calligrapher w/ Thomas Jeff. letter did not commit forgery bc letter was only purporting to be a letter and had no legal significance or effect)
Compare/Contrast forgery vs. false pretenses and give example
Forgery requires:
- Creating / altering
- Doc with purported LEGAL SIGNIFICANCE
- To be false
- W/ intent to defraud
False pretenses requires:
- Obtaining title (ownership rather than just possession)
- By false misrepresentations (must be INTENTIONAL false statements)
- Of past or existing fact ( Miss representation of a future event does not count)
- With the intent to defraud me in a victim must be deceived or must act in reliance of defendants full statement and passing title
EXAMPLE OF FALSE PRETENSES BUT NOT FORGERY =
Thomas Jefferson letter. Not forgery because no legal significance. The calligrapher committed false pretenses because she took the buyers money a.k.a. title to property and she had intended to defraud the collector. She did not specifically promise anything about letters authenticity however she misrepresented the nature of the letter by saying it was from a collector rather than created by her herself. By misrepresenting Who owns the letter and how she obtained it she induced the buyer into giving her money
Assault and battery both require a voluntary… ____.
Example of a non-volitional act is ______
[Jurisdictional split over whether _______ is sufficient to negate volition]
ACT.
When D has epileptic seizure and has no control over his movements - the act of striking the victim is not considered voluntary and D will not be guilty of a & B
[HYPNOSIS]
What is the effect of an invalid arrest?
NOT dismissal of indictment or subsequent criminal prosecution
PROPER: ANY EVIDENCE COLLECTED AS FRUIT OF AN UNLAWFUL ARREST MAY BE INADMISSIBLE AT TRIAL
Mental state for conspiracy is:
Intent to commit underlying crime
Elements of conspiracy are:
- agreement
- intent to achieve objective of agent
- overt act (IN PA & 50% of states)
Is saving a man’s wife’s life sufficient consideration for a promise to pay money?
NO, this would be regarded as PAST CONSIDERATION
It was not given in exchange for the promise of $1000 - past consideration is NOT sufficient to count as “bargained for” exchange
Engineer hired as independent contractor to design filter system for processing plant for explosive chemical. She prepared app for permit to build the plant’s filter system (blueprint showed entire facility) anc signed.
If defect present in blueprint signed by engineer, is engineer liable for explosion?
NO, engineer only held to negligence standard (exercise reasonable professional judgment)
Not strict liability because she was retained for specific purpose - she was not required to oversee or design the entire plant
Is there a private right of action when a person alleges a violation of his constitutional rights by a federal official?
NO; best argument in support of motion to dismiss will be FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED
If seller shipment is accompanied by notice that goods are non conforming and offered as an accommodation…
This is a COUNTEROFFER - which retailer can accept or reject
The Court will grant a motion for judgment as a matter of law
If, after non moving party has been fully heard on the matter, the Court finds That a reasonable jury would not have a legally sufficient basis to find for the party on that issue
A motion for a new trial is granted because of:
Verdict against the weight of evidence, juror misconduct, verdict is inadequate
There might be sufficient evidence for a judge to deny a motion for judgment as a matter of law on the ground that a reasonable jury could find for the other party yet a judge could grant in motion for new trial if she thought the jury verdict was deeply flawed
