Elements for Essays Flashcards
The elements of the prime facie case for negligence are as follows:
(1) D owed a duty to conform to a specific standard of care
(2) D breached that duty
(3) Breach was the actual and proximate cause of P’s injuries
(4) P sustained actual damages or loss
To whom a duty is owed
A duty of care is owed to all foreseeable plaintiffs.
Under the majority view, D is only liable to P’s within foreseeable zone of danger.
When is conduct/statement made in settlement negotiations admissible vs. inadmissible?
Inadmissible to:
- prove validity of claim
- validity of amount
- impeach
Admissible for these reasons if:
- made in civil dispute with government or agency
- offered in subsequent criminal case
Admissible for other reasons:
- prove witness’s bias or prejudice
- prove that witness obstructing justice
False Imprisonment
(1) D intended to constrain the liberty / confine P
(2) Plaintiff had no way to escape
(3) Plaintiff was aware of the confinement and harmed by it
When agency is created
Agency is a fiduciary relationship between the principal and agent.
Agency is created when: (1) the principal and agent manifestly agree (implied or express) to enter into an agency relationship, (2) whereby the agent acts on behalf of the principal for the principal’s benefit, and (3) the agency is subject to the principal’s control
When agency is terminated
Agency is terminated by the parties if:
- there’s notice of termination
- agency relationship expires
- agency purpose is satisfied
Agency is terminated by operation of law if:
- agent or principal dies
- agent or principal becomes mentally incompetent
- agent breaches a fiduciary duty to principal
Actual authority exists when
Actual authority exists when the principal manifests words or conduct that makes agent reasonably believe that they are able to act on the principal’s behalf
Disclosure of principals: disclosed, partially, undisclosed
Disclosed:
Parties to the contract are 3rd party and principal
Partially disclosed:
Parties to the contract are 3rd party, principal and agent
Undisclosed:
Parties to the contract are 3rd party and agent
Intervening Cause vs
Superseding Cause
An intervening cause is a factual cause of the plaintiff’s harm that contributes to her harm after the defendant’s tortious act is completed.
A superseding cause is any intervening cause that breaks the chain of proximate causation between the defendant’s tortious act and the plaintiff’s harm, thereby preventing the original defendant from being liable to the plaintiff.
Unforeseeable intervening causes are considered superseding causes (acts of nature, criminal acts, intentional torts)
Requirements for Respondaet Superior to Apply
(1) Principal has sufficient control over the agent
(2) Agent’s actions are in the scope of employment or within the scope of agency relationship
What’s “scope of relationship”?
- Whether agents actions were to BENEFIT principal
- Whether they were in the job description
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When courts will pierce the corporate veil and find (shareholders, directors, officers, etc) liable:
(1) When the corporation fails to follow corporate formalities
(2) When the corporation was undercapitalized at the time of incorporation
(3) When the corporation is essentially like a shell or mere instrumentality, serving as the shareholder’s alter-go
(4) When there’s fraud/illegality involved
Apparent authority exists when…
Apparent authority exists when the principal through manifestation causes a 3rd party to reasonably believe that the agent is authorized to act on principal’s behalf
When would owner/principal not be liable for agents actions
Because agent did not have actual or apparent authority, principal would not be liable.
Also if the principal was undisclosed, then the contract is between agent and 3rd party and the principal would not be liable.
Principal can ratify an act done by agent on behalf of principal (and thereby be liable for the contract) when….
Principal can ratify an act done by agent on behalf of principal when these requirements are met:
(1) principal ratifies the entire contract – like accepts the whole thing/delivery/product
(2) principal and 3rd party are mentally competent to enter into agreement
(3) the 3rd party hasn’t retracted the contract yet
(4) and principal knows the material facts of the transaction
A PMSI exists when…
when a secured party sold goods to the debtor, and the debtor incurs an obligation to pay the secured party all or part of the purchase price.
What contracts theories do you analyze when talking about possible recovery?
Doctrine of substantial performance
Divisible contract/installment contract
When is there “substantial performance”?
Substantial performance is less likely to be found when a party intentionally furnishes services that are materially different from what he promised. Such a breach is more likely to be treated as a material breach for which contract damages are recoverable.
Minor breach (substantial performance)
And resulting recovery of damages
Under common law, if the breach is minor (i.e., the breaching party has substantially performed), then the non-breaching party must still perform under the contract. This allows a party who substantially performs to recover on the contract even though that party has not rendered full performance.
The substantially performing party can recover the contract price minus the cost to the other party of obtaining the promised full performance.
Material breach
And resulting recovery of damages
a material breach of contract occurs when the non-breaching party does not receive the substantial benefit of the bargain.
The non-breaching party can withhold any promised performance and to pursue remedies for the breach, including damages.
Recovery for breaching party can be restitution. However, not allowed if breach was wilfull
Duty of loyalty and duty of care
in Partnerships
Under the duty of loyalty, a partner is prohibited from using partnership property or business to derive a personal benefit without notifying the partnership.
Under the duty of care, a partner is prohibited from engaging in grossly negligent or reckless conduct, intentional misconduct, or a knowing violation of the law.
When can a partnership pursue legal action against a partner
A partnership may pursue a legal action against a partner for:
- breach of the partnership agreement or
- for violating a duty owed to the partnership that caused the partnership harm.
Liability of a limited partner in an LLP
A limited partner in an LLP cannot be personally liable for the obligations of the partnership, regardless of the type of obligation.
But the limited partner of an LLP can be held personally liable for their personal misconduct.
What kinds of state laws would be unconstitutional under dormant commerce clause?
A state law that discriminates against interstate commerce is subject to strict review and is virtually per se unconstitutional.
A state law that does not discriminate against interstate commerce but unduly burdens interstate commerce will nonetheless be unconstitutional: if the benefits of the state law are grossly outweighed by the burdens on interstate commerce
When Congress uses its spending and taxing powers to encourage state action. Broad powers but what are the 5 limitations?
(1) Congress must spend for the “general welfare,” which amounts to any public purpose
(2) the condition for receiving federal funds must be unambiguous
(3) the condition must relate to “the federal interest in particular national projects or programs.”
(4) condition must not induce the states to act in an unconstitutional manner.
(5) Condition may not exceed the point at which “pressure turns to compulsion.”
What constitutes a state law that discriminates against out-of-state commerce? What would not be discriminatory?
A state or local regulation discriminates against out-of-state commerce if it protects local economic interests at the expense of out-of-state competitors.
Not facially discriminatory when the regulation applies equally to in-state and out-of-state utilities
When is state action found in a private party’s conduct?
When the private party is engaging in activities traditionally exclusively in the realm of state action (e.g. governing a “company town”)
Actions of private parties can also constitute state action when they’re so closely intertwined that the government is funding or benefiting from the actions of the private parties. This would often be seen through a joint venture or joint management authority.
5A privilege against self-incrimination applies when?
When suspect is compelled to make a self-incriminating statement while he/she is in custody or testifying in court.
Released on bail = NOT in custody.
Custody requires some immobility, cannot leave presence of police offices for example
In order to end a lease before the end of its term, by constructive eviction, what must be met?
(1) Landlord breached duty to the tenant by interfering with/causing loss of substantial use and enjoyment
(2) Tenant must give landlord notice of the property and opportunity to cure
(3) Tenant must vacate property within reasonable time
“Temporary or de minimis acts generally do not amount to constructive eviction”
Landlord’s duty to repair in commercial vs. residential
Courts are reluctant to imply a landlord’s duty to repair in commercial leases because implied warranty of habitability does not apply in commercial leases.
Prior use over the servient estate = implied easement?
If owner of two parcels of land previously used one parcel to benefit the other, court may find that upon transfer of one parcel, the parties intended the use to continue if that use was continuous apparent or known, and reasonably necessary to the dominant land’s use and enjoyment.
Tenancy in common
A tenancy in common exists when two or more co-owners have an equal right to possess property, but do not have a right of survivorship.
Each co-tenant holds an undivided interest with unrestricted rights to possess the whole property. Each tenant can unilaterally transfer, devise, mortgage, or lease his interest to a third party, without affecting the interest of the other tenants
Business Judgment Rule (and a typical decision that would fall into this)
Business judgment rule is a rebuttable presumption that the controlling shareholder reasonably believed his actions were in the best interests of the corporation.
Decisions like whether to declare a dividend and the amount are protected by BJR
When does BJR apply vs. not apply
Exercise of managerial powers by a director is generally subject to BJR (declaring dividends, hiring management personnel)
But BJR does NOT apply to a conflict-of-interest transaction
What’s a conflict-of-interest transaction?
Self-dealing is any transaction requiring approval from board of directors that is of such financial significance that it would reasonable be expected to influence the director’s vote on the transaction (director has some stake or benefit)
What’s the safe harbor provision that would revert the standard that a decision is subject to back to BJR?
(1) majority vote of informed and disinterested directors
(2) majority vote of majority of disinterested shareholders
(3) fairness in the transaction: substantive and procedural
–substantive: whether corporation received something of comparable value
–procedural: whether the process followed by directors was appropriate
Can a trust be created for any purpose?
Yes a trust can be created for any purpose, as long as it’s not illegal or contrary to public policy.
Ex: trust provisions that restrain a first marriage have generally been held to violate public policy
– But if trustee’s motive was merely to provide support for beneficiary while beneficiary is single, then the trust provision that the income interest would terminate upon marriage would be fine.
When would a trustee be violating their duty of loyalty?
When truste personally engages in a transaction, buying and selling trust assets for their own personal benefit
Doesn’t matter that the transaction occurred at fair market value. There’s an irrebuttable presumption that trustee breached duty of loyalty (per se breach)
The Uniform Prudent Investor Act (UPIA) requires what of the trustee?
Requires trustee to act as a prudent investor. Part of being prudent is taking care to make informed decisions regarding the investment scheme and/or delegating such decision-making to an expert
Whether trustee has breached this, UPIA considers multiple factors: (1) distribution requirements of trust, (2) general economic conditions, (3) role of the investment in trust’s overall portfolio, (4) trust’s need for liquidity, etc.
How are trust assets allocated (traditional and modern approach)?
All trust assets must be allocated to either income or principal. Distribution of stock considered principal.
Traditional approach: any money generated by trust property = income and money generated in connection with conveyance of property = principal.
Modern approach (UPAIA): trustee is empowered to re-characterize items and reallocate investment returns as deemed necessary to fulfill trust purpose. For example, if the trust purpose is to create as much long-term wealth as possible, then perhaps investment focus would be less on current income generated from trust property.
What happens when income beneficiary of a trust disclaims her interest?
Trust principal becomes immediately distributable to the presumptive remainder beneficiaries
Spendthrift trust does what?
At what point would it NOT apply?
Exceptions to the spendthrift clause?
Spendthrift trust expressly restricts the beneficiary’s power to transfer his equitable interest.
Spendthrift restriction does not apply once it has been paid out to the beneficiary. At that point, creditors could reach it.
Some states recognize an exception for a provider of necessities to the beneficiary (hospital bill, child support)
Duty of trustee?
Duty of trustee to administer the trust in good faith, in accordance with its terms and purposes, in the interest of the benficiaries.
Duty to be impartial and not be influenced by trustee’s personal favoritism or animosity
Implied warranty of merchantability
Warrants that the product being sold is generally acceptable and reasonably fit for the ordinary purposes for which it is being sold
Market Share Liability Doctrine
If P’s injuries are caused by a fungible product and it is impossible to identify which D placed the harmful product into the market, the jury can apportion liability based on each D’s share of the market.
Alternative Causation
If P’s harm was caused by
(1) one of a small number of defendants
(2) each of whose conduct was tortious
(3) and all of whom are present before the court
Then court can shift burden of proof to each individual defendant to prove that his conduct was not the cause in fact of P’s harm
Concert of action doctrine
If two or more tortfeasors were acting pursuant to a common plan, then all defendants will be held jointly and severally liable
When is D’s contact “intentional” (say for purposes of a battery claim)?
If D acts with the purpose of bringing about the contact
OR engages in an action knowing that contact is substantially certain to occur
Landowner duty of care
To invitees includes:
– duty to use reasonable care to conduct reasonable inspections of the property, discover unreasonably dangerous conditions, and protect the invitee from them
What do courts consider when determining whether conduct lacks reasonable care?
Courts consider
(1) reasonable likelihood that person’s conduct will result in harm
(2) foreseeable severity of any harm that might result
(3) and the burden of precautions to eliminate or reduce risk of harm
Compliance with a statutory standard does not insulate an act against liability for negligence
Here, the woman was driving under the speed limit in compliance with the statute. But speed limits are established for ideal road and driving conditions, not hazardous weather conditions. A court COULD find that the woman was negligent despite the fact that she was driving at a speed lower than the posted speed limit
Doctrine of Res Ipsa Loquitur
Plaintiff must prove that:
(1) the accident is of a kind which ordinarily does not occur in the absence of negligence;
(2) the harm was caused by an agent or instrumentality within the exclusive control of defendant
(3) AND the harm was not due to any action on the part of the plaintiff
Accomplice
(Majority and MPC rule same)
Person is generally an accomplice int he commission of an offense if he intentionally assists with the crime and acts with the purpose of promoting or facilitating the commission of the offense.
Economic waste (whereby the court may instead award damages equal to the diminution in market price)
If award of damages based on cost to fix or complete construction would result in economic waste, court may instead award damages equal to the diminution in the market price caused by the breach.
When can offers be properly revoked?
In general, an offer can be revoked by the offeror at any time prior to acceptance.
An offer is revoked when the offeror makes a manifestation of an intention not to enter into the proposed contract before the offeree accepts.
In many states, a premarital agreement is enforceable if…?
If there has been full disclosure, the agreement is fair and reasonable, and it is voluntary.
Full disclosure requires disclosure of all income, assets, and liabilities of both parties
The objective of an equitable-distribution system is to…?
The objective of the equitable-distribution system is to order a fair distribution of all marital property, taking into consideration all of the circumstances between the parties.
Why can support awards be modified subsequent to a divorce decree whereas property division awards cannot be modified?
Unlike support awards which are subject to changing circumstances, the division of marital assets was determined based upon facts and circumstances as they existed at the time of divorce
Uniform Interstate Family Support Act (UIFSA) governs modification child/spousal support orders
Under UIFSA, a state court does not have jurisdiction to modify an order of child support rendered by a court of another state if the original state has continuing, exclusive jurisdiction
This rule applies unless the parties, including the child, no longer reside in that state or the parties expressly agree to another state’s jurisdiction
Does State A court have jurisdiction to modify the marital-residence-sale proceeds of the State B divorce decree?
Divorce related property disputes aren’t governed by UIFSA
State courts have SMJ over domestic relations issues. A petition to modify a property settlement related to divorce is a domestic relations issue.
The court may exercise PJ over an individual if that person is voluntarily present in the state and served with process while there.
When can states modify a child support order?
Generally, a state may prospectively modify a child support order when there is a substantial change in circumstances regarding the child’s needs or the parent’s financial situation.
The parent requesting the modification has the burden of showing a substantial change in circumstances such as a significant decrease in income. However, when the change stems from the parent’s voluntary decision, a reduction in income alone is not sufficient proof of substantial changes to warrant support modification
How do state courts treat property division?
Property division is a one-time award of assets based on equity at the time of divorce. Because this property division is essentially frozen in time at the time of divorce, it cannot be modified post-divorce.
The issue is whether a divorce obtained on grounds of adultery (or other marital misconduct) significantly enhances spouse’s prospects of obtaining a monetary award
In most states, the fact that a divorce is granted on a fault ground is not a factor in the distribution of property.
However, marital misconduct may be taken into account in many states in determining spousal support.
States are permitted, under their police powers, to require vaccinations and refuse admission to public school for students who fail to receive required vaccinations.
A fit parent has a right to raise his child as he sees fit. But this authority is not absolute. State A require that child be vaccinated before attending school. His child Danielle does not have any type of medical exemption
The purpose of the Uniform Custody Jurisdiction and Enforcement Act (UCCJEA) is to prevent jurisdictional disputes with courts in other states on matters of child custody and visitation
Under the UCCJEA, a court has subject matter jurisdiction to preside over custody hearings and either enter or modify custody or visitation orders if the state is the child’s home state.
What is the child’s “home state” for purposes of custody or visitation orders
The home state is the one in which the child has lived with a parent or guardian for at least 6 consecutive months immediately prior to the custody proceeding, or since birth, if the child is less than 6 months old. Or the child is absent from the state but one of the parents/guardians continues to live in the state
Abrogation acting pursuant to Congress to enforce guaranteed protections of the 14th A.
If Congress doesn’t act pursuant to this, but rather to Article I Section 8 (Commerce Clause), that would be an invalid attempt to abrogate state sovereign immunity.
Whether a federal law is within Congress’s commerce powers
Federal law regulating interstate commerce must either regulate (1) the channels of interstate commerce, (2) instrumentalities, or (3) economic activities that have a substantial aggregate effect on interstate commerce
When is the 11th amendment triggered?
Whenever you have a private party suing either (1) a state, (2) a state agency, or (3) a state official in federal court
How do you know whether a law is content-based or content-neutral?
A restriction on speech is content-based if it applies to certain speech because of the subject matter or idea expressed.
A restriction on speech is content-neutral when it is not necessary to hear/read the language in order to apply the regulation. It applies to all subject matter and is not about what is being said but about the manner in which it is being presented.
Any government regulation on speech that is content-based will only be upheld if the regulation is necessary to achieve a compelling governmental interest and is narrowly tailored to meet that interest.
The government must identify an actual problem, and the regulation of speech must be necessary to solve that problem. This standard is incredibly stringent and not often met.
Although there is no precise definition of what constitutes “compelling,” it is generally understood to be something that is necessary or crucial, such as national security or preserving public health or safety.
Depraved heart murder
A killing that results from reckless indifference to an unjustifiably high risk to human risk is a depraved-heart murder
Involuntary manslaughter
An unintentional homicide that is either committed with criminal negligence or committed while D is engaged ina n unlawful act.
Criminal negligence = grossly negligent action that puts another person at significant risk of serious bodily injury or death
Actual Cause and Proximate Case
If a victim would not have died “but for” the defendant’s act, then the defendant’s act is the actual cause (i.e. cause-in-fact) of the killing.
Defendant is a proximate cause of victim’s death if death was foreseeable. That is, natural and probably resutl of defendant’s conduct.
Criminal negligence in “involuntary manslaughter” vs. depraved heart
Criminal negligence is a substantial deviation from “ordinary negligence” (i.e. the standard of care a reasonable person would have used.
But criminal negligence is less than the extremely reckless conduct required for depraved-heart murder.
A warrantless search is valid if it is reasonable in scope and if it is made….
Incident to a lawful arrest. Under the plain view doctrine, if an item is in public view, it may be seized without a warrant.
What is custodial interrogation?
Custodial interrogation is questioning initiated by law enforcement officers after a person has been taken into custody.
A person under arrest is by definition in custody and any police questioning of a person under arrest would be a custodial interrogation. Custodial interrogation must be preceded by Miranda warnings.
Unambiguous request for counsel during interrogation
Interrogation of an arrestee must stop once the arrestee invokes the right to counsel. However, this right is not automatic. The defendant must make a specific, unambiguous statement that he/she wishes to have counsel present.
“Maybe I need a lawyer” does not qualify as an unambiguous request for counsel. Thus, the confession Suspect made should not be suppressed on this basis.
