Essay Structures Flashcards
Strict Liabilities Claim
The issue is whether claimant can establish the elements of a strict products liability claim
A commercial supplier may be liable for the production or sale of a product that was defective when it left the defendant’s control and that actually and proximately causes injury to the plaintiff even absent any negligence
A product is defective if it is in a condition unreasonably dangerous to users
A product may be defective because of a mistake in the manufacturing process
application
Battery Claim
to establish a prima facie case of battery, the plaintiff must prove:
1. an act by the defendant that brings about harmful or offensive contact to the plaintiff’s person; 2. intent on the part of the defendant to bring about such harmful or offensive contact; and 3. causation
the defendant need not intend to cause injury, only to cause the contact
intent is established if the defendant knows with substantial certainty that the contact will occur
application
Breach of Contract
Common Law or UCC
At common law, formation of a contract requires an offer, an acceptance, and consideration on both sides of the contract
an offer is an expression of a promise, undertaking, or commitment to enter into a contract
the terms of the offer must be certain and definite, and it must be communicated to the offeree
once an offer is made, it may be accepted or rejected until and unless it is terminated
if by the terms of the offer it can be accepted only through performance, it is an offer to enter into a unilateral contract
consideration exists if there is a “bargained-for exchange”
for acceptance to be valid at common law, it must come before the offer has terminated
an offer terminates at the time specified in the offer, but can terminate sooner, by operation of law or on the offeror’s death
Respondent Superior
Were they acting as an employee and if so, did the tort occur within the scope of employment?
as a general rule, a principal is not liable for an agent’s torts
an employer can be held vicariously liable for an employees negligent acts that occur within the scope of employment
an employment relationship exists where a principal has the right to control the manner and method of an agent’s acts
an agency relationship is created when an agent consents to act for the principal’s benefit and subject to his control
In determining whether a tort arose within the scope of the employment, a court will generally look to three factors: (i) whether the conduct was of the same general nature as, or incident to, that which the employee was employed to perform; (ii) whether the conduct was actuated, at least in part, by a purpose to serve the employer, and (iii) whether the conduct was substantially removed from the authorized time and space limits
when an employee substantially departs from his assigned task on his own personal affairs, the departure is deemed a “frolic”
if an accident occurs during a frolic, it will not be considered to have occurred within the scope of employment
if the accident occurs after a frolic and the employee has returned to serving the employers purpose, the accident will be considered to have occurred within the scope of employment
subject matter jurisdiction
diversity jurisdiction, federal jurisdiction, supplemental jurisdiction
diversity jurisdiction requires the amount in controversy to be greater than 75,000 and all plaintiffs must be of diverse citizenship from all defendants
claims by a single defendant against a single plaintiff may be aggregated to satisfy the amount in controversy requirement
in the alternative, if a second claim arises out of the same operative fact as the primary claim over which the court does have subject matter jurisdiction, the court will have supplemental jurisdiction
citizenship is determined when the suit is filed
an individual’s state citizenship is determined by his domicile
a domicile is changed by being physically present in the new place and having the intent to remain there permanently
Venue
for a civil action in federal court venue is proper (i) in a judicial district in which any defendant resides, if all defendants reside in the same state (ii) in a judicial district in which a substantial part of the events of the lawsuit occurred or in which a substantial part of the property that is the subject matter of the lawsuit is situated (iii) if neither (i) nor (ii) can be satisfied, venue is proper in a district in which any defendant is subject to the court’s personal jurisdiction with respect to such action
if venue is properly laid in an action, venue may be transferred to another more convenient forum in which the action might have been brought or to which the parties have consented
disposal of collateral
did creditor’s means of disposal comply with the UCC requirements?
after default, the secured party may sell, lease, or license repossessed collateral by either public sale (auction) or private sale
all aspects of the sale must be commercially reasonable
the secured party must give the debtor and any sureties on the debt reasonable notice of the sale in writing, unless the debtor or surety, after default, waives the right to notice of the sale
notice need not be given if the collateral is perishable or threatens to decline rapidly in value or is of a kind ordinarily sold in a recognized market
notice must be sent within a reasonable time before the sale
generally, the secured party may purchase the collateral at a private sale if the collateral is of a type customarily sold in a recognized market and was not subject to widely distributed price quotations
debtor remedies following improper sale of repossessed collateral
when a secured party violates the UCC default rules with respect to collateral that is a consumer good, the debtor is entitled to either actual damages or , at minimum, 10% of the cash price of the goods plus an amount equal to all of the interest charges to be paid over the life of the loan
actual damages usually are measured by the difference between he price obtained for the collateral and the price the collateral would have fetched at the proper sale
consumer good?
when the UCC foreclosure rules are not followed, the secured party may also lose the right to a deficiency judgment
a court will generally follow one of three approaches when the collateral is a consumer good (i) the rebuttable presumption rule, which states that the value of the collateral is presumed to equal the amount of the debt unless the secured party proves otherwise (ii) the absolute bar rule, which denies the secured party deficiency regardless of whether the secured party can prove that the collateral is worth less than the debt; or (iii) the setoff rule, which allows the secured party to recover the deficiency minus any actual damages that the debtor can prove
after default and repossession, a debtor may redeem the collateral by paying off the secured obligation along with reasonable expenses incurred by the secured party in relation to the repossession
the right to redeem is cut off by the sale of the collateral
4th amendment - Seizure
evidence obtained in violation of a person’s 4th amendment rights must be suppressed
the 4th amendment is applicable to the states through the due process clause of the 14th amendment and prohibits unreasonable searches and seizures
a person is seized if a reasonable person under the circumstances would not feel free to leave
whether a seizure is reasonable under the 4th amendment depends on the scope of the seizure (arrest vs investigatory detention) and the strength of the suspicion (arrest requires probable cause; investigatory detention can be based on reasonable suspicion)
without a warrant, police may arrest a person for a felony only if they have information sufficient to make a reasonable person believe that a felony was committed and the person before them committed it
Under Terry, if the police have reasonable suspicion of a criminal activity based on articulable facts, they may stop a person without a warrant to conduct a brief investigation
Miranda
the police must give detainees miranda warnings before conducting any custodial interrogation
interrogation is any police conduct designed to elicit an incriminating response
whether a person is in custody depends on whether the persons freedom of action is denied in a significant way
the more the situation resembles a formal arrest, the more likely a court will find the person to have been in custody
shareholders meeting
generally, the directors of a corporation have the power to run its affairs
before undertaking a fundamental change in the corporation, directors must seek approval from the shareholders
dissolution of a corporation is a fundamental corporate change
each shareholder, even those not entitled to vote, must be given at least 10 days written notice of the meeting at which a vote will be taken on the fundamental corporate change
the notice must state the date, time, place, and purpose of the meeting
defects in notice may be waived if a shareholder attends a meeting and votes, despite the defective notice, unless he attends solely for the purpose of objecting to the improper notice
a proxy can be appointed only by a writing or an authorized electronic transmission
Secured Transaction
Attachment
First, value must be given.
Second, the debtor must have rights in the collateral.
Third, either the secured party must take possession of the collateral or the debtor must authenticate a security agreement containing a description of the collateral.
Perfection
-A security interest is perfected when it has attached and when any additional steps required for perfection have occurred
-Generally speaking, the additional steps will either be possession of the collateral by the secured party or the filing of a financing statement with respect to the collateral.
Priority
-As between two perfected security interests, the general rule is that the security interest that was the earlier to be either perfected or the subject of a filed financing statement has priority
Sale of collateral
-As a general rule, a security interest in collateral continues notwithstanding the fact that the debtor has sold the collateral to another person.
-A buyer of goods will take free of an unperfected security interest in those goods.
-A buyer can take free even of a perfected security interest in goods if the buyer is a “buyer in ordinary course of business.”
-A buyer in the ordinary course of business is an ordinary purchaser who acts in good faith, meaning honesty and fair dealing in the transaction and with no knowledge that the deal impairs the ownership or security rights of another, to buy goods from a seller who normally sells that kind of goods.
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