EMPHASIS Flashcards
L-C Relationship
Scope or Rel–Settlement/Strategy/Assisting C in Crim/Fraudulent Conduct
Settlement–only C has auth to decide to accept settlement. A MUST comm all bona fide offers of settlement to C–agreeing to settlement w/o C consent subj to discipline.
Strategy–A has auth to make decisions about strategy for achieving C’s objectives. A must reasonably consult w/ C on case.
CA–A must notify C about any written settlement offer in civil matter.
Crim/Fraudulent conduct–A MUST NOT counsel/assist C in such conduct, otherwise subj to discipline and crim or civil liability.
*However A may discuss w/ C the legal consequences of any proposed course of conduct that may be crim/fraudulent–but if C’s course of action has already begun and is continuing, then A req to avoid assisting C and MUST withdraw.
L-C Relationship
Termination of Rel–Permissive Withdrawal
MR–A may seek withdrawal from rep at any time w/o materially harming C. A may withdraw even if it will harm C if C engages in crime/fraud using A’s services or insists on action A finds repugnant or has made rep unreasonably difficult; may also withdraw if C fails to pay A’s fee.
CA–A NOT permitted to withdraw merely b/c it may be done w/o material harm to C. Rather A may seek to withdraw when :
(1) C used A services for crime/fraud in the past or seeks to pursue crime/fraud w/o A’s services.
(2) Claim not warranted and no GF arg for changing law; and
(3) C makes it unreasonably difficult for A to carry out rep.
Duty to Supervise
An A w/ direct supervisory auth over another A or non-A must make reasonable efforts to ensure the supervised P’s conduct confirms to all ethical rules.
Duty of Subordinate As
MR/CA–Subordinate A must conform to the ethics rules even if acting under the direction of supervising A. But the subordinate A does NOT violate ethics rules if he acts in accordance w/ supervising A’s reasonable resolution of arguable Q of prof duty.
Fees
MR–A must charge fees reasonable under circumstances.
CA–Fees must NOT be unconscionable; factors include (1) amt of fees in proportion to value of services perf; (2) time req to work on case; (3) difficulty of case; (4) A’s experience in the area of law.
*Informed consent of C can also be considered in determining whether unconscionable fee.
Fees > $1K must be in writing and signed by both Ps stating services; exception if C is corp.
Other CA exceptions:
1) if C waived in writing her right to written fee K;
2) A provided similar services to this C in the past; or
3) A provided services in an emergency
Contingent Fees
MR–not allowed in (1) crim cases or (2) domestic cases
CA–not allowed in crim cases BUT allowed in SOME domestic cases–i.e. post-judgment balances due under child or spousal support .
All CF agreements must be in writing–signed by C, terms of calc fees and expenses C liable for, otherwise agreement voidable and A just entitled to reasonable fee.
CA–must also be signed by A.
Fee Splitting
MR/CA–NO fee splitting w/ Non-As NOT associated w/ firm (i.e. can use fees to comp non-A staff in your firm).
As in same firm=As can split fees
As in diff firm:
MR–Allowed if fee proportional to services provides by each A; C agrees in writing and total fee is reasonable.
CA–Allowed if As enter into written agreement; C has provided written consent after full disclosure; and total fee not unconscionable.
MR/CA–total fees must not be higher b/c mult As working on case.
Referral Fees
MR–Cannot pay someone for rec A’s services unless (1) part of legal services plan or (2) approved A-referral service.
CA–A may give gift/gratuity for referral so long as gift/gratuity not offered in anticipation/as consideration for referral.
Duty of Confidentiality and Exceptions (also applicable to prospective Cs)
A prohibited from disclosing any info relating to rep of C unless disclosure auth by informed consent of C or impliedly authorized in order to carry out rep.
A must take reasonable precautions to safeguard confidential info
Exceptions:
MR–allowed to disclose if reasonably certain sub financial harm will occur to another.
MR–allowed to disclose to prevent “reasonably certain” death/sub bodily harm (applies even if 3P commits act)
CA–allowed to disclose to prevent “crim act” that A reasonably believes will result in death/sub bodily harm (applies even if 3P commits act); BUT in CA need to make GF effort to persuade C NOT to commit crim act before revealing.
A-C Privilege and Exceptions
Confidential comms b/t C & A privileged:
(1) C must intend for comm to be confidential and
(2) Comm must be for purpose of seeking legal advice/rep (privilege also applies to reps of A when rep working at direction of A to obtain info from C).
MR–privilege indefinite and survives C (unless C waives).
CA–privilege terms when C’s estate is settled and personal rep discharged (unless C waives).
Exceptions:
D seeks A’s advice in furtherance of crime/fraud (regardless of whether A knows about illegal activity)–CA applies to act committed by anyone, NOT just C.
Death/sub bodily harm–CA no privilege if A reasonably believes disclosure nec to prevent crim act that A reasonably believes likely to result in death/sub bodily harm.
A dispute b/t co-Cs who are now adverse to each other allows for disclosure of conf. comms relevant to dispute.
DOL
COI b/t A and C
A owes C a DOL–this duty includes duty to refrain from COI.
MR/CA–A must NOT rep C if rep may be materially limited by the A’s own interests, unless:
(1) A reasonably (subj and obj) believes he can provide competent and diligent rep to affected C.
(2) Rep not prohibited by law
(3) One C not suing another C
(4) Affected C gives written informed consent
COI b/t concurrent Cs
A must NOT rep C if:
(1) doing so would be directly adverse to the interests of another current C or;
(2) if there is signif risk that the rep of a C will be materially limited by A’s responsibilities to other C UNLESS:
—A reasonably believes (subj and obj) that she will be able to provide competent and dilligent rep to each affected C;
–Rep not prohibited by law;
–Rep does not involve rep of Ps on both sides of the same litigation; AND
–MR–informed C consent confirmed in writing; CA–informed written consent (i.e. full written disclosure of conflict and potential consequences).
COI b/t current and former Cs
An A who has previously rep a C must not later rep another C in the same or sub similar matter if that C’s interests are materially adverse to the former C’s interests, UNLESS:
MR–former C gives informed consent confirmed in writing
CA–Former C gives informed written consent (gov atty only need informed consent from gov agency).
Same/sub related matter if:
(1) same transaction/dispute as prior C’s (former gov atty reqs higher level of A “participating personally and substantially” in former rep);
(2) Sub risk confidential info from prior rep will advance new C’s position.
Switching firms:
MR–COI NOT imputed to new firm if A screened from participation
CA–Not only reqs screening but also reqs that A did not sub participate in former rep–if so then COI imputed and firm cannot take on client.
COI
Influence by Ps other than C–org as C
A rep org owes DOL/DOC to org and not to its indv officers/directors (can rep both if no conflict).
A must make it clear who he reps when org’s interests adverse to constituent.
Org misconduct–A must proceed as is reasonably nec and in best interest of org.
Report w/in org–A must report to higher auth unless not in org’s best interest (CA–cannot reveal C conf info).
Report outside org:
MR–A may reveal conf info to outside auth if A reported to highest auth w/in org and auth refuses to act in timely manner.
CA–Cannot disclose conf info unless death/sub bodily harm exception applies.
Unauthorized Practice of Law
MR/CA–An A must NOT knowingly assist a P who is not admitted to the Bar in the unauth practice of law.
E.g.–Disbarred A can sit during depo but cannot actively assist other than w/ clerical duties; disbarred A passing notes akin to asking Qs and tantamount to unauth practice of law.
Duty of Candor
A must NOT knowingly make a false statement of fact/law to a tribunal or fail to correct a false statement of material fact/law previously made by A.
False Testimony
A prohibited from knowingly offering false evidence and may refuse to submit evidence she reasonably believes is false.
Learning of false testimony after offered–urge C to correct or seek withdrawal.
Withdrawal denied:
MR–disclose evidence even if protected conf info.
CA–A may not disclose conf info.
Crim D–A reasonably believes testimony is false then MUST offer testimony;
MR– if A knows testimony is false then must urge C not to testify or must seek withdraw (CA optional).
Withdrawal denied:
CA–A can Q D until point of falsehood then allow D narrative w/o follow-up Qs.
MR–A must disclose false evidence to Ct even if it reveals conf info.
Duty of Fairness to Opposing P/Counsel–Evidence
A must not unlawfully obstruct another P’s access to evidence or unlawfully alter, destroy, or hide a doc or counsel/assist another P in doing so.
A must make a reasonably diligent effort to comply w/ a legally proper disco req of an opposing P–if Ct finds disco req proper A will NOT be in breach of DOC by turning over doc.
If there are valid objections (e.g. overbreadth) to turning over doc and not merely to delay case or harass opposing P–No breach of fairness by not complying w/ req.
Duty of Fairness to Opposing Ps–Ws
A may not req that a W refrain from speaking to another P.
A may pay reasonable expenses to non-expert W for testifying; expert W may be paid reasonable rate and compensated for reasonable expenses.
CA–A may NOT pay/offer to pay W contingent on testimony or the outcome of case, but A may advance W expenses and expert W fees.
Advertising
A lawyer must not make false or materially misleading statements about himself or his services.
Advertising Requirements:
–The name and address of the attorney must be included.
–Attorneys can state that they specialize in an area of law.
–A lawyer may not state/imply she is a certified specialist in an area of law unless she is actually certified.
Solicitation
Solicitations are narrower, targeted communications directed at groups identified as requiring a specific service (such as car-accident victims).
CRPC–Solicitation of prospective clients in person, by live telephone, or by real-time electronic contact is prohibited when a significant motive for the lawyer’s action is the lawyer’s pecuniary gain, unless the person contacted is:
–A lawyer;
–A family member;
–A close personal friend; or
–Has a prior professional relationship with the soliciting lawyer.
MR–does NOT prohibit real-time electronic contact.
Duty of Competence
MR–A is obligated to provide competent rep of C and must poss the legal knowledge, skill, thoroughness, and prep reasonably nec for rep.
CA–A must NOT intentionally, recklessly, w/ gross neg, or repeatedly fail to perform legal services w/ competence.
MR/CA–A may accept rep if competence can be achieved by reasonably prep or associate w/ another A who has competence in the field.
MR/CA–NO commingling of funds b/t A and C.
Duty of Diligence
MR–A must act w/ reasonable diligence and promptness in rep C.
CA–A must not intentionally, repeatedly, recklessly or w/ gross neg fail to act w/ reasonable diligence in rep C.
i.e. Must be dedicated and committed to interests of C despite obstruction or inconvenience to A; must control workload to ensure he handles all matters competently; must act w/ reasonable promptness in rep C.
Settlements–A not duty bound to press for every possible advantage that might be realized for C–e.g. not a breach of diligence if A decides against threatening D w/ humiliating info.
Veil Piercing
Gen Rule–Shareholders are NOT personally liable for the debts of a corp, but only liable for the amt invested in the corp, except a ct may “pierce the veil” of limited liability to avoid fraud or unfairness.
Three factors in deciding whether to pierce the veil:
1) Alter Ego–The investor/shareholder has failed to observe any corp formalities b/t the person and the corp–i.e. treating the company just like itself (e.g. personal funds intermingled w/ company funds).
2) Under-capitalization–Failure to maintain funds sufficient to cover foreseeable liabilities; and
3) Fraud–Ps engaged in fraud or fraud-like behavior.
Cts more likely to pierce the veil in tort situations rather than contractual situations; more likely in small, closely held corps.
Director/Officers’ Fiduciary Duties–Duty of Care and Business Judgement Rule
Directors and officers owe a DOC to corp.
Business Judgement Rule–Directors and officers are protected from legal liability under the business judgement rule; i.e. in the absence of fraud, illegality, or self-dealing cts will not disturb GF business decisions.
*A typical devision protected by BJR includes whether to declare a dividend and the amt of any dividend
SOC–act w/ the care that a person in a like position would reasonably believe approp under similar circumstances; special skills expected to be used (i.e. accounting/legal background).
To overcome the BJR it MUST be shown that:
1) the director/officer did NOT act in GF (e.g. consciously allowing conduct that violates the law);
2) the director/officer was NOT informed to the extent that the director/officer reasonably believed was nec before making a decision;
3) the director/officer did NOT show objectivity or indp from the director’s relation to or control by another having material interest in the challenged conduct;
4) there was a sustained failure by the director/officer to devote attention to an ongoing oversight of the business and affairs of corp;
5) the director/officer failed to timely investigate a matter of signif material concern after being alerted in a manner that would have caused a reasonably attentive director to do so; or
6) the director/officer received a financial benefit to which he was not entitled.
Reliance Defense–a director/officer entitled to rely on the expertise of officers and other employees, outside experts, and committees of the board.
Director/Officers Fiduciary Duties–Duty of Loyalty
Director/Officer may NOT receive an unfair benefit to the detriment of the corp w/o effective disclosure and ratification.
DOL usually dealing w/ 1) self-dealing transactions (also applied to family members of D) or 2) corp opportunity doctrine–i.e. usurping or stealing a corp opp thus preventing $ from coming into corp.
Corp Opportunity–need to disclose if: 1) corp has an existing interest or expectancy arising from an existing right (i.e. “interest or expectancy” test); or 2) the opp is w/in the corp’s current/prospective line of business (i.e. broader “line of business” test)
Insulation from Liability:
–Ratification–self-interested transaction may be upheld if it is disclosed and ratified by either a maj of disinterested directors OR a maj of disinterested shareholders;
–Fairness–also if a director/officer can demonstrate that the transaction was fair (e.g. it was a market-rate salary or the corp would never/could not pursue that opp) then ct will approve.
Shareholder Derivative Suit
Shareholder sues on behalf of the corp for a harm suffered by the corp, and any recovery gen goes to corp.
Standing–to bring the suit reqs that P be a shareholder at time action is filed and when the act/omission occurred that caused the harm; P must make a written demand upon BOD 90 days before filing unless it would be futile.
Actual (express/implied)/Apparent Auth/Ratification
Actual express auth–often defines by bylaws or set by BOD.
Actual Implied auth–officers have implied auth to perform tasks that are reasonably nec to carry out the officer’s duties as long as the matter is w/in scope of ord business; based on the manifestations (words/conduct) of the corp/partnership the agent reasonably believes she poss auth.
Apparent auth –officers have apparent auth if the corp/partnership holds the officers/employees out as having auth to bind the corp/partnership as to 3Ps.
Ratification–Where the corp/partnership agrees to the K after it has been entered into, either formally and expressly through a formal decision or impliedly by accepting the benefits of K.
Look for facts showing closely held corp–if so then directors may also be acting as officers so okay since less formal structure; otherwise if there are officers expressly vested
BOD Meetings
For a board of directors’ acts at a meeting to be valid–a quorum of directors must be present at the meeting (absent a higher level specified in the articles of incorp or bylaws); the assent of a maj of the directors present at the time the vote takes place is nec for bd approval.
Dividends–the power to auth a dividend rests w/ BOD; shareholder cannot sue corp to compel dividend unless shareholder can prove:
1) funds legally available for payment of dividend and
2) bad faith on part of BOD in their refusal to pay (usually this is not met, especially if facts show the BOD wanted to expand into a new line of business or invest the $ back into company–protected by BJR).
Failure to provide Notice and Obtain Shareholder Vote for Acquisition of Substantially All of Online’s Assets.
Certain major events in a corporation must be put to a shareholder vote. These include a merger or an acquisition of substantially all of the corporation’s assets. Before disposing of substantially all of a corporation’s assets, there are procedures that must take place:
–First the board must pass a resolution, either during a meeting or by written consent, agreeing to the acquisition. Appropriate notice must then be given to shareholders, informing them of the terms of the transaction and the date of the shareholder’s meeting for purpose of the vote. At the meeting, a quorum of outstanding shares must be present, and a majority of shares voted must be in favor of the acquisition.
General Partnership
A GP is formed when 2 or more ppl associate to carry on a business for profit as co-owners; no written formalities req to form GP; subj intent of Ps to form GP also irrelevant.
General partners–have equal rights to manage the business and control its affairs; each personally and jointly and severally liable for the debts of the GP whether arising in tort or contract; no limited liability for GPs.
Profit sharing=presumption of GP and that ppl sharing the profits are partners.
Other factors that may evidence a partnership (but not presumption)–whether the Ps call themselves “partners” and the extent of business activities i.e. mgmt and control of business.
LLP
A limited liability partnership is a special type of partnership that affords limited liability to all its partners, created by filing a Statement of Qualification with the Secretary of State. In a limited liability partnership, the individual partners are not personally liable for any damages sustained by the partnership itself.
A partnership is liable for its partner’s actions if the partners have authority to act for the partnership.
Concurrent Estates–TIC and JT
TIC–default concurrent interest; sep but undivided interests in the prop; NO ROS–each T can transfer interest during lifetime; each T has right to poss whole–so if one T transfers undivided interest via lease the tenant obtain’s only T’s concurrent right of poss w/ other TIC.
JT–big diff from TIC is ROS; grantor must make clear expression of intent plus have survivorship language; 4 unities req otherwise TIC–1) unity of poss; 2) unity of interest; 3) unity of time; and 4) unity of instrument.
Securing mortgage as JT–most JX lien theory and does not destroy JT; min JX title theory thus would destroy JT.
Devise NOT allowed under JT b/c of ROS
Inter Vivos Transfer allowed –severs ROS but if conveyance by only 1 of more than 2 JTs does NOT destroy JT of remaining JTs.
Rights and Obs of Concurrent Owners
1.) Poss and Use–each Co-T has right to poss all of prop regardless of share (unless agreement to contrary).
2.) Ouster–Co-T in poss denies another Co-T access to prop; remedies include: injunction granting access; or damages for value of use while unable to access prop.
3) Rental income from 3P–divided based on ownership interests.
4.) Op expenses–taxes/mortgages divided based on ownership interest and Co-T can collect from others for excess payments; BUT if 1 co-T in sole poss then can collect only to the extent that those expenses exceed the rental value of prop.
5.) Repairs/improvements–No ROR but co-T can get credit in partition action.
Express vs. Implied Easement
Express–must be in writing and can be created by grant or reservation; subj to recording statutes; easement appurtenant is one that benefits the the dom estate and “runs w/ the land”–i.e. transfers automatically when dom estate transferred; negative easement–i.e. preventing someone from doing something–must be express.
Implied–informal/arise out of circumstances; transferable; NOT subj to SOF; NOT subj to recording statutes thus does not req notice.
Implied Easement by Nec/Implication
Nec–created only when prop is useless w/o it–e.g. prop landlocked after sale; Elements–1) common ownership (dom/servient estates were owned by 1 person); and 2) nec at severance–mere inconvenience not enough.
Implication–1) common ownership: 2) owner used as if easement before severance; 3) after severance owner use continuous; 4) reasonably nec to dom estate’s use.
Implied Easement by Prescription/Estoppel
Prescription–Like acquiring easement by AP; elements same as AP except exclusivity.
Estoppel–starts w/ permissive use (i.e. a revocable license); then creates reliance–i.e. look for 2nd neighbor investing $ in reliance on first neighbor’s promise; and permission withdrawn–if reliance detrimental to 2nd neighbor, 1st neighbor estopped from withdrawing permission.
Real Covenants
A written promise to either do something on the land OR a promise NOT to do something on the land.
1.) Writing–subj to recording acts; 2) Intent to bind successors–e.g. express language such as “and his heirs/assigns.”
3.) Touch and Concern land
4.) Notice–actual or record; to be binding a restrictive covenant must be placed on prop at time it is conveyed.
5.) Horizontal Privity–required to run the burden (i.e. enforce rights against D) but not req to run benefit; ONLY arises in connection with a conveyance of a real property interest, such as in a deed, mortgage, or lease–if not then NO horizontal privity.
6.) Vertical privity–to run burden successor must take original P’s entire interest; to run benefit successor need only take interest out of original P’s interest.
Remedy for breach of real covenant–damages.
Zoning ord does NOT preempt real covenant even if it is a permissible use under the ord.
Equitable Servitude
Easier Reqs than Real Covenant:
1) Writing;
2) Intent to run w/ land
3) Touch and Concern land
4) Notice–actual/record/or inquiry at time prop conveyed.
5) No privity req
Remedy–injunction
Takings
A physical taking occurs when the government (or a third party authorized by the government) permanently and physically occupies private property—regardless of the public interest it may serve. The Fifth Amendment takings clause, which is applicable to the states through the Fourteenth Amendment due process clause, bars the government from taking private property unless:
(1) the taking is for a public use and (2) the owner receives just compensation—i.e., the property’s fair market value.
*The government may also be liable for losses resulting from reliance on the assumption that there would be no taking–e.g. recent improvements.
*But gov NOT liable for relocation costs.
Gov reg can amount to a taking–i.e. regulatory taking. Two types:
Per Se Taking–occurs when a regulation results in a permanent total loss of the property’s economic value (high bar to meet).
*E.g. Commercial developer has not suffered per se taking since he may still use or sell the lot for residential dev.
Partial Taking–analyze following factors:
(1) the economic impact of the regulation on the property owner;
(2) the extent to which the regulation interferes with the owner’s reasonable, investment-backed expectations regarding use of the property; and
(3) the character of the regulation, including the degree to which it will benefit society, how the regulation distributes the burdens and benefits among property owners, and whether the regulation violates any of the owner’s essential attributes of property ownership, such as the right to exclude others from the property.
Zoning–Non-conforming uses
Existing Nonconforming Properties–zoning changed and structure does not satisfy zone’s reqs, zoning ord must make provision for prop w/ an existing nonconforming use–i.e. get nonconforming use grandfathered in; owner cannot expand nonconforming use (i.e. the nature and character of use cannot sub change) and may abandon right to use prop in manner that does not conform to zoning ord; owner of the right to use property in a manner that is not in keeping with the zoning ordinance may transfer that right to another person.
*Vested Right–In determining whether a property owner has acquired a vested right in the nonconforming use, most courts require that, at the time that the zoning ordinance takes effect, the property owner must, in good faith, have secured any necessary permit from the proper local authority (e.g.,a building permit) and also have made substantial progress toward achieving the nonconforming use. In a few states, securing a permit by itself is sufficient.
*Invol Term of Nonconformity–a prop owner whose nonconforming use has been grandfathered may suffer term of nonconforming use due to natural forces (but NOT due to D’s neg in collapsing building).
Zoning Variance / Post-ordinance non-conforming use–reserved for unusual/exceptional situations particular to owner’s prop; prop owner req change after zoning ord in place; P applying for variance must show:
1) compliance would create unnec hardship;
2) hardship from circumstances unique to prop (not financial circumstances of owner);
3) owner did not create hardship;
*e.g. prop owner selling a portion of prop so that remaining portion cannot satisfy zoning ord NOT okay b/c owner created hardship.
4) variance in keeping w/ overall purpose of ord; and
5) variance will not cause sub harm to gen welfare.
Two types of variances:
1) Use variance–sought to obtain right to use prop in manner not permitted by zoning ord; e.g. operating business in residential neighborhood–the absence of any reasonable permitted use sometimes req before use variance granted; and
2) Area variance–focus on restrictions on the manner in which prop developed; e.g. a structure may not be built w/in 20 ft of boundary of prop or be more than 2 stories high–gen more likely to be granted than a use variance b/c often arises due to odd shape of prop.
Intentional Torts–Battery
(1) D causes harmful or offensive contact w/ person of another; and
(2) acts w/ intent to cause that contact or apprehension of that contact.
Causation–must result in contact
Offensive–to a person of ord sensibilities (lack of express/implied consent indicates offensive).
Contact–does not need to be direct; contact w/ anything connected to P’s person qualifies as contact w/ the P’s person for purposes of battery.
Intent–only reqs intent to contact, not offense.
Transferred intent applies–i.e. the defendant’s intent to commit a battery against one person may be transferred to a different person.
Damages–eggshell-P rule applies so D liable for all harm that flows even if much worse than D expected (but no proof of damages req to prevail).
Intentional Torts–Assault
(1) D causes reasonable apprehension of imminent harmful or offensive bodily contact; and
(2) D intends to cause apprehension of such contact or to cause such contact itself.
Apprehension–must be reasonable and P must be aware of D’s action (unlike battery).
IIED
D intentionally or recklessly engages in extreme and outrageous conduct that causes P severe emotional distress. Public figures must also prove publication of a false statement made w/ actual malice to recover for IIED.
Extreme and outrageous–conduct exceeds possible limits of human decency, so as to be intolerable in civilized society (more likely if D in position of auth over P or P is young child/elderly).
Severe ED–if P is hypersensitive and experiences severe ED unreasonably, then there is no liability unless D knew of P’s heightened sensitivity.
Intent–to cause ED or act w/ reckless disregard as to risk of causing ED.
Damages–P must prove severe ED beyond what reasonable P should endure:
General damages–naturally flow from injury; e.g. medical bills and pain and suffering.
Special damages–need to be proven and include damages such as lost wages due to the tort.
3P–A defendant whose extreme and outrageous conduct has harmed a third party may be liable for intentional infliction of emotional distress if:
(1) the plaintiff contemporaneously perceived that conduct;
(2) the plaintiff was closely related to the third party, and
(3) the defendant knew of the plaintiff’s presence and that relationship.
False Imprisonment
(1) D intends to confine or constrain another w/in fixed boundaries.
(2) the actions/inactions directly/indirectly result in confinement; and
(3) P is conscious of confinement or harmed by it.
Methods–use of physical barriers, physical force, threats (NOT future threats), invalid invocation of legal auth, duress, or refusing to provide safe means of escape (omission).
Intent–D must act w/ purpose of confining P or knowing P’s confinement sub certain to result.
Damages–nominal and actual available, just like other intentional torts.
Shopkeeper’s Privilege–Store must have reasonable grounds to believe that the customer was stealing, the detention must be for a reasonable period of time, and it must be conducted in a reasonable manner. If all of these elements met then no FI claim.
Trespass to Land
D intentionally causes physical invasion of someone’s land w/o prop owner’s permission.
Intent–only reqs intent to enter land, NOT intent to commit wrongful trespass.
Can include:
Physical invasion–includes causing objects to invade land; OR
Intangible invasion–i.e. smoke or vibration–but only if it causes physical harm/damage.
Rightful P–anyone in poss of land
Damages–no proof of actual req
Trespass to Chattels
Intentional interference w/ P’s right to poss personal prop by:
–dispossessing P of chattel;
–using or intermeddling w/ P’s chattel;
–or damaging chattel
Intent–only reqs intent to do act, not intent to interfere.
Mistake about legality NOT a defense.
Damages–actual/nominal/loss of use and/or cost of repair.
Conversion
Intentionally committing an act depriving P of poss of his chattel or interfering w/ P’s chattel in a manner so serious as to deprive P entirely of use of chattel.
Intent–only reqs intent to commit act that interferes.
Mistake–of law/fact not a defense.
Damages–full value at time of conversion.
Conversion also occurs even when D originally has permission from P but EXCEEDS the scope of that permission.
Defenses to Intentional Torts–Self-defense
Use of reasonable force (i.e. proportional/not excessive) to defend against offensive contact/bodily harm.
Duty to retreat–modern maj rule no duty to retreat before using self D.
Can’t be initial aggressor to claim self-D; injury to bystander ok as long as D not neg toward bystander.
Defenses to Intentional Torts–Defense of Others
One is justified in using reasonable force in defense of others upon a reasonable belief that the defended party would be entitled to use self-defense, i.e., that the person was in danger of the imminent use of force. The amount of force exercised must be proportionate to the anticipated harm. Additionally, the defendant is not liable for acting on a mistaken belief that the third party is in danger as long as his belief is reasonable
Defenses to Intentional Torts–Defense of Property
Reasonable force may be used if the person reasonably believes it is nec to prevent tortious harm to prop.
NO deadly force allowed in defense of prop, including deadly mechanical devices.
Defenses to Intentional Torts–Recapture of Chattels
Reasonable force may be used to reclaim personal prop that has been wrongfully taken, but only if D first reqs its return, unless that would be futile.
Never permitted to regain poss of land.
Defenses to Trespass–Necessity (private/public)
Gen available to someone who enters someones’s land to prevent injury or other severe harm.
Private nec–D not liable for nom damages but still liable for actual damages if entered land for D’s benefit (this defense supersedes defense of prop defense to intentional torts)
Public nec–nec to protect large # ppl from public calamity; not liable for any damages.
Defamation
Can be spoken (slander) or written (libel) in which P must prove:
Private P / NOT a matter of public concern:
1) defamatory (i.e. false) language that diminishes respect/esteem
*NOT statements of opinion unless factual basis–e.g. “In my opinion P is thief” is actionable b/c implies P stole something vs “P is a lousy artist” NOT actionable b/c ppl can disagree regarding quality of P’s paintings;
2) of or concerning P;
3) negligently/recklessly/intentionally published to a 3P (not strict liability);
4) which caused damage to P’s reputation.
*Only causes damage to P’s reputation if a 3P’s reasonable interpretation of that statement would tend to do so–i.e. does NOT req 3P to actually believe defamatory statement; merely req’s 3P to understand defamatory nature of statement.
If defamatory statement is about a matter of PUBLIC CONCERN P must also prove Fault–i.e. negligence as to falsity of statement for private figure and actual malice for public figure–i.e. knowledge statement was false or reckless disregard as to whether it was false.
Slander typically reqs proof of special damages–most often econ damages– unless the statement falls into one of four categories of exceptions for slander per se:
1) crim activity;
2) misconduct or incompetence in P’s trade/occupation;
3) sexual misconduct;
4) P having a “loathsome” disease
Things Making Offer Irrevocable
1) Promissory Estoppel (substitute for consideration)–must be reasonably foreseeable detrimental reliance would occur.
2) Partial Perf–unilateral then offeror cannot revoke once offeree begins perf–i.e. offeree will have reasonable time to complete perf.
*But offeror may revoke general offer even after offeree begins perf–assuming revocation is equally public offeree need not know about it.
3) Option K–but needs to be supported by consideration.
4) Firm Offer under UCC–offer to buy/sell goods irrevocable if:
– offeror=merchant;
– assurance that offer remains open (no time period then “reasonable term” but cannot exceed 3 months unless there is consideration); and
–assurance in signed writing (lenient, initialing next to letterhead or e-sig counts)
Accommodation
UCC–an offer to buy goods for prompt shipping shall be construed as inviting acceptance either by a prompt shipment of conforming OR non-conforming goods, OR a prompt promise to ship.
S sends a prompt shipment of non-conforming goods–accepting offer AND breaching K simultaneously; B can accept or reject and sue for breach.
OR S can notify B that shipment of non-conforming goods being offered ONLY as an accommodation to B–i.e. S’s shipment will NOT result in breach in this case b/c considered a counter-offer; B can choose to accept accommodation shipment thus forming K; or reject accommodation thus no K will be formed at all.
