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
Equitable servitude usual remedy is
What are the requirements to enforce equitable servitude?
INJUNCTION
Intent that restriction be Enforceable by subsequent grantees
Grantees notice of the servitude
The restriction touches and concerns land
PRIVITY NOT REQUIRED!!!
Is a judge required to make specific findings or conclusions when rolling out of parties FRCP 56 motion for summary judgment?
NO, can just say “judgment for _______”
Business owners owe their customers what?
Limited duty to protect customers from harm including harm caused by other customers
Is there normally a duty to act could to control the behavior of third parties
No however an exception to this rule is between a business and its customers
Business owes customers in the military to protect them from harm including harm caused by other customers
Discuss negligence and Child pushing cart in grocery store
Grocery store as a business I was limited your day to protect customers who are business invitees from harm caused by other customers
A child owes no unreasonable risk of harm to other customers who hurts a customer does not suggest that the store after negligently
It is forseeable that a grocery store not stopping a supervise child from pushing a grocery cart could lead to the child causing harm to someone
Teacher acting on behalf of police searching a students backpack is or is not constitutional
It is not constitutional because the principal did not have probable cause or a warrant
Third party acting under the direction of police does not mean you can circumvent the fourth amendment protections against illegal searches
Evidence obtained would be surpressed
If person burglarize is the wrong house but had consent to burglarize the owners house what is best argument for acquittal
Person reasonably believed he was in the homeowners house and there was no intent to commit a felony in the neighbors house
A change in heart after entering with the necessary and talk to burglarize is or is not a defense do a burglary charge
It is not a defense to entry with intent to steal
Best offense to entering the store with intent to steal and being charged with burglary
Store was open to the public so there was no breaking and entering
Strict liability claims for economic loss are…
Generally prohibited unless contracted for because they are beyond the scope of a sellers duty to purchaser
A purchase or make a choir damages for economic loss when there is privity a contract between the purchaser and the seller on the contract between them contemplated economic damages
An equal protection defense for selective prosecution requires
Discriminatory effect
Discriminatory purpose
For a strict products liability claim privity is:
Not required. Users consumers and bystanders can sue
In order for a defendant to say assumption of risk as a defense district products liability the defendant must establish
That the plaintiff voluntarily and unreasonably encountered a known risk
- Plaintiff must have known of the risk
- Plaintiff must have assumed the risk
Congress may _____ and _____ , but not __________ for the general welfare.
SPEND, TAX
REGULATE
Attacks measure will be upheld if _______
OR ____________
It bears some reasonable relationship to revenue production
Congress has the power to regulate the taxed activity
[ex: rational relationship is not negated by adverse consequences of reduced revenue for sporting events such as Super Bowl, major college bowl games, championship sports events]
A witness his prior inconsistent statement is not hearsay if:
It will be allowed in for ….
It was made under penalty of perjury at a prior trial or in a deposition
To impeach credibility AND as substantive proof
An inconsistent statement may be proved by either
Cross examination or extrinsic evidence
To prove by extrinsic:
- proper foundation laid
- statement relevant to some issue in the case (cannot be a collateral matter)
Admissions by party opponent qualify as admissible if:
- offered against the party
- party made the statement in an individual or representative capacity, or adopted it as true
Is statement by defendant telling police officer he was driving a certain speed admissible if police testifies to it?
YES, as an ADMISSION BY A PARTY-OPPONENT
Can a witness’ membership in a defendant church be used?
YES, to show potential bias or motive to lie
CANNOT BE USED TO IMPEACH FOR PURPOSE OF SHOWING THAT BY WAY OF THEIR MEMBERSHIP, THEIR CREDIBILITY IS IMPAIRED/ENHANCED
Experts and hypothetical questions:
Hypothetical questions ARE PERMITTED as long as they on based on the facts and data in the particular case
An expert IS ALLOWED to offer an opinion based on a hypothetical question, even if the expert had no knowledge of the plaintiff’s condition [horseback riding incident question]
A hypotheticals question that does not include all facts at issue in a case would be:
IRRELEVANT when offered by an expert witness
Who Has the right to invoke and wave physician patient privilege?
The patient, NOT THE PHYSICIAN
And the lawyer acting on behalf of the patient
For silence to be an admission the following requirements must be met
- Party must have heard and understood the statement
- Party must have been physically and mentally capable of denying the statement
- Reasonable person would have to know the accusation under the same circumstances
A reasonable person would not feel compelled to deny an accusation by a bartender made in just one seeing a large amount of cash in a customers wallet
Durham Test
D will be acquitted if actions were product of mental defect
Used in limited # of jurisdictions
M’Naghten Test for Insanity
D will be acquitted if :
D did not understand the nature/quality of his actions
OR
D, at the time of the act, knew the nature and quality BUT, he was so deranged he did not know what he was doing was wrong [whether d knew he was MORALLY wrong]
The Past Recollection Recorded exception to hearsay requires:
That a witness be testifying and unable to recall well enough to testify fully and accurately about the event
Business records exception to hearsay; records will NOT be excluded if:
- Record was kept in the course of a regularly conducted activity of a business
- Record was made at or near the time by someone with knowledge
The exception is referred to as business records exception but it extends to any regularly conducted activity of an organization
Intent to commit felony murder is
The intent to commit the underlying felony
defendant must be guilty of the underlying felony or an attempt of the underlying felony
Aside from searching and seizing the contraband described in the warrant , police may:
Conduct a sweep of the residence if they believe accomplices may be present
Does the attorney client privilege apply during grand jury proceedings? Who does it cover?
YES
It covers any communications between a client (or potential client) and the attorney or her representatives (including consultant hired by attorney to interview D)
Withdrawal from conspiracy does not apply once:
One has aided or abetted another w/ the intent the actions be committed
Ex: woman and man plan to hold up a bank; only the man goes in & woman drives away out of fear. SHE HAS STILL AIDED AND ABETTED, SO WITHDRAWAL DOES NOT APPLY.
- her best defense, for the robbery, would be that the bank teller was not placed in fear by the man
Can the mistake of fact defense be ever be used to defend against murder/manslaughter?
YES, if jury believes D’s testimony that gun was toy prop, not a real gun
Remember the mistake of fact may be a defense ONLY IF IT NEGATES
the mental state needed for murder and manslaughter
Manslaughter is a _____ Intent crime
GENERAL
If victim testifies that D threatened her with a knife and ran away with her purse
&
Bystander testifies that D took her purse and ran with it, but he did not see D threaten her with the knife,
the jury could properly return a verdict of guilty of :
EITHER robbery or larceny, but not both .
The crime of larceny is a lesser-included crime of robbery and MERGES INTO ROBBERY. If they jury finds the victim credible, can return verdict of robbery. IF jury finds bystander credible, can return verdict of larceny.
For purposes of double jeopardy, 2 crimes do not constitute the same offense if:
Each crime requires proof of an additional element that the other crime does not require, even though some of the same facts may be necessary to prove both crimes
— armed robbery and murder are separate offenses. They can be tried at separate prosecutions.
There is NO CONSTITUTIONAL REQUREMENT THAT ALL KNOWN CHARGES BE BROUHT AGAINST THE ACCUSED IN THE SAME PROSECUTION
Relationship between armed robbery and premeditated murder arising out of same facts/transaction:
2 separate crimes/offenses Because they require at least 1 additional element that the other does not require,
Robbery is NOT a lesser-included offense, EVEN IF BOTH CRIMES ARE BASED ON THE SAME CONDUCT
These crimes may be tried at separate prosecutions - there is no constitutional violation of double jeopardy
Do burglary and larceny merge?
NO, each is a separate offense requiring distinct elements.
Intoxication defense (voluntary) vs. Intoxication defense (involuntary)
Voluntary is defense to SPECIFIC INTENT crimes if it negates the requisite mental state
Involuntary is defense to ALL crimes is it negates an element of the crime
Intoxicated man on a bus mistakenly thinks briefcase was his own and began struggling with a passenger for it (knocks him on the floor and flees). If arrested and charged with robbery, he will be acquitted because:
MISTAKE OF FACT - his mistake negated the required specific intent because he thought the briefcase was his, so he had no intent to permanently deprive the owner of the property
If information included in A search warrant is incorrect the evidence see is pursuant to the search warrant will not be excluded unless there is evidence:
That the officer knew the information was false
If the officer acted in good faith reliance on the warrant the evidence will not be suppressed
Only ______ impossibility is a defense to an attempt charge.
LEGAL
_______ is NOT a defense to An attempt charge
FACTUAL IMPOSSIBILITY
Best argument for acquittal of strict liability crime is:
Did not have the mental state needed to violate the statute
Ex: clerk almost sells .22 shells to minor who tells clerk he is 20. Statute prohibits sale of ammunition to someone under 18. CLerk asks buyer his age, buyer says 20, clerk believes him. Therefore, clerk did not have the specific intent to sell ammunition to someone under the age 18.
If girlfriend voluntarily comes to boyfriend’s apartment, who had the intent to kidnap girlfriend from ransom, what crime is boyfriend guilty of ?
NEITHER kidnapping nor attempted kidnapping
His actions were never done against GF’s will, which is an element of kidnapping. She was never moved against her will.
Implied malice doctrine
Give example
A defendant who acts knowingly and recklessly (which Includes the intent to commit serious bodily injury and depraved heart intent) And we found to have the requisite mental intent to commit murder
Bank teller tells a man the president of the bank is having an affair with the man’s wife. Bank teller insured the man would enter a guarded bank with a gun since it was for seeable the man would be killed the teller should be found guilty of murder based on his extreme recklessness. (Be careful, this is NOT transferred intent)
Does D have a reasonable expectation of privacy from aerial observation?
NO - Observations made from the public air space are constitutional even if police officer obtained a helicopter to view a yard because the yard could be viewed by the public from airspace
What is the defendants best chance of acquittal for manslaughter charge arising from drunk driving accident, where other motorist died?
The defendant’s act of drunk driving was not a CAUSE IN FACT (but for cause) of the other driver’s death
Even if D was not intoxicated, other driver would have died
(Remember that voluntary intoxication is NOT a defense to this crime because it involves criminal negligence)
What kind of impossibility is a defense to an attempt charge?
Legal impossibility (including thinking something is a crime that actually isn’t)
Factual impossibility (D unsuccessfully takes a criminal action) is NOT A DEFENSE!!!
The underlying felony and a prosecution for felony murder must be
Sufficiently different from the facts and circumstances of the murder so as to not merge with the murder charge;
Manslaughter is a lesser included offense of murder and has many if not all of the same elements as marker and will merge into the murder offense if it is used as the underlying felony (AKA not proper underlying felony for prosecution for felony murder)
If the harm is a foreseeable consequence of breach, even if the way it happened is not foreseeable :
Proximate cause is satisfied
(Ex: woman looks out window on way to vet, crashes, accident/fire ensues, man running away trip over cat and breaks his knee — it is foreseeable that someone would run from an accident, it doesn’t matter that the exact cause was technically the cat tripping him)
To win a negligence case, it is the _____ that must be foreseeable, NOT __________.
The HARM
The WAY IN WHICH IT OCCURS
IF supermarket knows of high probability of crime in the area, what is the duty owed and how does the supermarket avoid liability?
As business owner, must take reasonable steps to make the conditions On its premises indoors and outdoors reasonably safe. It must conduct active operations with reasonable care for the presence of its invitees and under limited circumstances use reasonable care to protect its customers against the forseeable harmful or criminal acts of third persons
Posting signs warning of high crime rate ALONE without more does not constitute reasonable steps to absolve supermarket of liability
Defamation - qualified privilege for former employers
Exists provided that such statements to perspective employers are not made with knowledge of their falsity or with reckless disregard for the truth or falsity
Reasonable believe that a statement is true would protect the employer because of the qualified privilege and an otherwise valid deformation claim will fail (would prevail if able to prove knew statement was false or recklessly disregarded truth or falsity)
A private person may recover for a public nuisance only if:
He has suffered unique damage not suffered by the public
Individual must prove the damage suffered is unique to the individual and not shared by the public at large
(Ex: farmer w/ hay fever has suffered Unique damages due to exacerbation of his hayfever to the point where he would develop a serious lung disease is within the scope of liability imposed on a utility company)
Is an attractive nuisance placing a child on a road an unforeseeable intervening force that caused injury of the child due to break failure, which was result of mechanic’s negligence?
YES, so it will not cut off liability of mechanic.
Injury of child due to brake failure is foreseeable result of mechanic’s negligent inspection of brakes ; that breach is the proximate cause of child’s injuries as well as cause in fact (since commuter saw the child in time and if her brakes worked properly, child would not have been injured)
Contribution is or is not allowed in favor of those who have committed intentional torts when both tortfeasors are culpable?
contribution is NOT allowed, means the other’s party’s negligence is irrelevant.
Negligent party will be able to indemnify friend for entire judgment bc friend is liable for all consequences stemming from his intentional actions
Private necessity applies when an actor:
Benefits a limited number of people and is a qualified defense requiring the actor to pay for any injury caused
Individuals can claim the qualified defense of private necessity in situations where a trespass is reasonable and apparently necessary to avoid a threatened injury which is substantially more serious than the invasion of privacy undertaken to avert it (ex: to avoid/escape bull roaming the road; still liable for damage to plants of neighbors property when they climbed fence onto it)
Are damages resulting from a baby’s genetic problems recoverable in wrongful pregnancy cases?
Undecided area of law; States are not in agreement as to the full scope of damages the parents may recover (Some permit recovery of the medical expenses for a child with a genetic defect while others do not)
Correct answer can be “Is the patient entitled to recover damages for the baby’s extraordinary future medical expenses?)
Does an official publication such as a journal need to be authenticated?
No
Is a journal referenced by defendant when responding to interrogatories admissible?
YES, as an adoptive admission by a party-opponent
A witness qualified to testify as an expert is allowed to give an opinion based on the facts or data in the particular case, which can be made known to the expert when?
EITHER at OR before the hearing/trial
There is no requirement that an expert must hear the facts or evidence prior to trial
Will be allowed to testify if learns facts in the courtroom
plaintiff’s statement to emergency room doctor that D attacked him is:
an out of court statement being offered for the truth of the matter asserted (to prove D attacked P)
this is NOT reasonably pertinent to diagnosis or treatment and is therefore inadmissible hearsay evidence
statements to doctor assigning fault or identifying a perpetrator are generally:
NOT considered pertinent to diagnosis or treatment;
INADMISSIBLE
When a client seeks his attorney’s advice in furtherance of planning to commit an illegal activity…
the attorney-client privilege does NOT apply;
this is the case regardless of whether attorney was aware of the illegal activity
when is extrinsic evidence of a prior inconsistent statement admssible?
- witness is afforded opportunity to explain or deny the statement
- opposing counsel is afforded opportunity to examine the witness about it
when is an inconsistent statement admissible as substantive proof?
can be brought in as NONHEARSAY IF
- prior inconsistent statement made under oath
- declarant must be subject to cross-examnation presently (MEANS CURRENTLY TESTIFYING!!)
what kind of mistake is a defense to specific intent crimes?
reasonable AND unreasonable mistakes that negate the element of intent
is voluntary intoxication a defense to manslaughter?
NO, because manslaughter is general intent
legal impossibility essentially means…
the elements of the crime were not met
is duress a defense to murder?
NO
