Bar MidTerm Flashcards
Res ipsa loquitur - 3 elements
(1) the event is of a kind which ordinarily does not occur in the absence of negligence;
(2) it is more likely than not that defendant’s negligence was responsible for the event; and
(3) plaintiff was not responsible for the event.
If the claim hinges on the presence or lack thereof of Negligence - look for .. ?
Proximate Causation - Was the injury a foreseeable result of the incident?
Both definitions of Criminal Assault.
1) attempting to commit battery; or
2) intentionally causing the victim to fear an immediate battery
- the threatened contact need only be offensive or insulting in this type of criminal assault. The victim does not have to fear actual injury or pain
Ex: Grossed out = enough for offensive too
Boundary / Property Line - not in writing but agreed by both - OK ?
Oral agreements to settle a boundary dispute are enforceable if the parties subsequently accept the line for a sufficient time.
Fee Simple Subj to Exec. Interest (3rd Party - happening / non-happening of event - make sure of when that is - death or death of someone else w/o kid)
- Can they exploit the property resources or waste?
Yes- holder of a fee interest, the Party can permissibly use the property in any manner she chooses.
Can the Plaintiff properly serve the summons and complaint ?
NO - ONLY by
1) Anyone who is NOT a party (plaintiff) and
2) Over the age of 18.
Forum non conveniens and transfer - foreign counrty
Ct cannot transfer to foreign country ct so ….
- court can only dismiss the case and leave the plaintiff to refile elsewhere
Non-white students being discouraged from - whatever - in schools : congress develops something to promote and fix this - can they ?
Yes - Congress is authorized to enact legislation to prohibit violations of Fourteenth Amendment rights.
Defacto segregation in school - b/c of social factors not intentional - can schools correct it ?
- Cannot reassign students based on race to correct to achieve a “racial balance.”
but»_space; can
> carry out VOLUNTARY racial balancing by “structural” measures = redrawing school zones or building new schools, in order to remedy
War Powers Clause - Congress
Very broad authority to initiate whatever measures it deems necessary to provide for the national defense in peacetime as well as in wartime.
- Initiate wage, price, and rent control of the civilian economy during wartime [
Transfer Venue Civil case - request of Def.
Why would they ?
Because witnesses and evidence would be in the District
- If PJ + SMJ and other Dist. would provide easier access to proof and witnesses - then Ct would.
- Def. Consents to PJ +Venue by filing transfer
Sale of Land - Right of first Refusal
Not an unenforceable restraint on alienation - but-
Must be in writing = SOF !!
Dispute in Contracted work - check marked “Payment in Full” - cashed check ..means
Accord and Satisfaction
> obligee accepts a lesser performance
> compromise provides consideration for the accord, and satisfaction extinguished the obligation
- impliedly agreeing to accept less as a compromise of the dispute
- Having so agreed, cannot thereafter seek to enforce the full contract price.
Restoring Property after an easement dug - pipes etc -
what are they entitled to
Reasonable compensation for any damage done in repairing the easement
> not entitled to have the land restored to its previous special condition if such restoration costs more.
KNOWN Risk - is the contract discharged due to it coming true ?
Contract between the promoter and the hall is NOT discharged, because the Promoter bore the risk.
- knew the rush and still entered into it -
X grabs Y’s arm - pushed off + dies - crime?
No - self defense
Forum selection clause - Erie
Enforced by
Motion to Transfer
Under FRCP
Can a BFP rely on the protection of the recording act vs. adverse possession ?
NO - Acquisition via adverse possession is not a “conveyance” within the recording act, and thus that act does NOT benefit a subsequent purchaser
Are parents vicariously liable for their children ?
Parents are generally NOT vicariously liable for the Negligence of their children.
Performance of a personal services contract is excused when?
An obligation becomes an absolute duty to perform, the promisor may still be excused from performance if
- some event that prevents his performance
> illegality, death or disability, and commercial frustration.
> NO Notice = does not operate to create any additional rights for the city opera as to damages.
Employment renewal - after end of term but b/c in a political party …
- Violated her First Amendment rights
> cannot be denied public employment based upon membership in a political organization
Liquidated damages are -
Damages set at an amount that will be paid as damages regardless of what the actual damages are.
Burden of Proof for a Defendant’s claim / defense ?
Preponderance of Evidence
generally
Defendant raises the defense / mitigation by introducing evidence - then -
Prosecution must thereafter prove Beyond a Reasonable Doubt that No Mitigation
(ex: by heat of passion, since this is an element of the charged crime - the absence of mitigating factors is an element of the crime)
Privilege - use of force -
Can threaten more force than privileged to deliver
[privileged to threaten deadly force, because attempting to save a life / impeding her rescue]
False Imprisonment - other exits
Must Know of them + they must lead to an exit, not a fenced yard
Written Contract - Trade usage ..
Evidence of trade usage may be introduced even if the contract is a complete integration.
- a party is bound by trade usage if he is aware or should be aware of it.
Use of a right of way to reach land other than that which was originally to be benefited by the easement
is an automatic “overburdening” and can be enjoined
- the landowner has no easement right to use
Someone pushes someone out of the way to avoid injury from the other person’s behavior
Not at fault
- other Negligent Person Is at Fault !
State discriminates someway against immigrants Allowed to be here (ex: deny school admission) bc Fed hasn’t acted
A state government regulation seeking to retaliate - then it conflicts with the negative implications flowing from the federal government’s authority over foreign relations
Hearsay problem - employee statement offered by witness
Allowed - Not Hearsay - Opposing Party Statement - vicarious statement
Living together - related vs. unrelated
Fundamental right exists for Related NOT Unrelated
Aggravating Factor that raises the presumptive imprisonment term
- Burden is what ? Proven to who?
Beyond a Reasonable Doubt to a Jury.
Legal Malpractice is a ____ law claim
State Law
Domestic Animal for Strict Liability includes?
Bees
Strict Liability Defense that reduces recovery?
Comparative Neg.
Remand when Fed. Question - is it proper to deny
Yes - bc of the fed question
Appeal of Discovery order to compel - can you?
No - within the discretion of the federal district court.
Vicarious Liability - Car Crash - kid driving
Owner liable for the negligent acts of his agents or members of his family when using for “family purposes.” - running an errand for his mother
Who’s problem is it when - seller has properly notified a tenant to vacate before sale and believes the tenant has done so yet the tenant remains ?
Buyer’s problem to remove the holdover
Covenant of Quiet Enjoyment
Will not have any interference in his possession of the land
BUT
breached ONLY where the interference with poss. of the land is by a person with superior title.
UCC Contract modification - reduce price bc no need for all goods
- If Custom goods + started to make = in bad faith and not enforceable
- If regular modification = must likewise satisfy the Statute of Frauds if as modified triggers the Statute of Frauds ($500)
~ unless there is an exception (like custom goods started being made)~
Hearsay Testimony - Present Sense Impression
Describing a condition or event and made
(1) While the declarant is Perceiving the event
~or~
(2) SHORTLY THEREAFTER
Marketable Title - Zoning .. violation vs. restriction
Zoning Violations DO render unmarketable
vs.
Zoning Restrictions do NOT render title unmarketable
When can Ct. order Contract Recession?
When Materially Breached
Discovery of Expert’s Rept.
Only if Testifying !
Opposing Party Statement - to anyone , Dr. , friend, witness, etc - Offered as testimony …
ALWAYS ADMISSABLE !!
- OPPOSING PARTY STATEMENT = Admissible
Attempt - any crime - the required INTENT is ???
Specific - specific intent needed , thus
- specific intent Defenses work
- needs intent to cause the crime
Defamation - Libel / Slander Per Se
- Special Damages
- General Damages
(1) impute a criminal offense
> (a) imprisonment; or (b) involving moral turpitude;
(2) VD / disease;
(3) impute conduct w/ improper conduct of his lawful business
(4) a woman unchastity.
> Special Damages need to be proved if NOT one of these
Gen Damages = Presumed
2 types of defamation
1) libel (written)
2) Slander (spoken)
Defamation elements
- Defamatory statement;
- Concerning P;
- Published to a third party
- That damages P’s reputation
- If matter is of public concern or P is a public figure, must also show →
5. D acted with actual malice
- If matter is of public concern or P is a public figure, must also show →
Character is in Issue and testimony will be ALLOWED in these 4 cases
- Defamation (Plaintiff Char.)
- Child Custody (Parents)
- Neg Entrustment (Entrustee’s Char.)
Neg Hiring (Employee’s char.)
Civ Pro - Affirmative Defenses
- Pleads in Answer or Lost (Waived)
Assumption of Risk , Fraud, Duress, Illegality, Contrib. Neg. , Failure of Consideration, SOF, SOL
Ultrahazardous Activity -
- non-delegable (employer still liable)
- Need Foreseeable Harm -type pf harm expected = hit w/ rock , blown up, etc
- Need Foreseeable Plaintiff - the person w/in the zone of danger is foreseeable P
