July 2016 Bar Exam Flashcards
The Requirements in a Negligence Claim
Duty, Breach of that Duty, Causation, and Damages
What duty does a landowner owe to any passerbys?
**In regard to natural conditions, a landowner owes no duty to any passerbys to warn, inspect or repair any dangerous natural conditions on the land.
**
This includes any trees that are naturally damaged and have the possiblity of falling down on someone nearby
**However, there is a duty to any unknown or known passerbys to warn, inspect, and repair any dangerous artificial conditions on the land
**
There is a duty owed to refrain from engaging in any act that makes the highway more dangerous then in is natural state or in the state in which it has been left.
What duty does a landowner owe to passerbys if she engages in cutting down a tree and leaves it in that condition.
she altered a natural condition on her land into an artificial dangerus condition on her property.
In regard to dangerous artificial conditions on the land, the Landowner has a duty to warn and make safe such conditions for any passerbys. In regard to a highway.
Causation
Proximate and Actual Cause
Actual Cause
The but-for test is a test commonly used in both tort law and criminal law to determine actual causation. The test asks, “but for the existence of X, would Y have occurred?”
In tort law, but-for causation is a prerequisite to liability in combination with proximate cause. In the absence of either of these, a party cannot be held liable.
Proximate Cause
the act or omission that immediately caused or fails to prevent the injury to the defendant
An act or omission without which, the injury would not have occurred.
An injury that would have been reasonably anticipated by a reasonably prudent person.
What is an Intervening Cause
An event that occurs after a party’s improper or dangerous action and before the damage that could otherwise have been caused by the dangerous act, thereby breaking the chain of causation between the original act and the harm to the injured person, is known as an “intervening cause.”
The presence of an intervening cause can mean that the person who started the chain of events may no longer be considered responsible for damages to the injured person since the original action is no longer the proximate cause.
For example, in the Ohio state case State v. Smith, the defendant punched the victim in the head, and the victim hit head on a nearby car and then the pavement. On being rushed to the hospital for his head injuries, the victim refused to get a CAT scan, but his head injuries persisted. On returning home, he continued to feel sick and confused, and failed to take his insulin. The victim died days after the punch. The court did not, however, find that the victim’s failure to take his insulin was an intervening cause, since the punch caused the victim to fail to take his medicine through the mental injuries. The defendant was thus guilty of homicide.
What is an Intervening Cause
An intervening cause is an event between the Defendant’s original improper act and the harm to the defendant that may or may not have been the result of the defendant’s original improper act.
Thus, it is an act that could break the chain of causation between the original act and the harm.
Thus the presence of an intervening cause means that the defendant may not be liable for the damages to the plaintiff since his action is no longer the proximate cause of the damages to the plaintiff.
An intervening cause may break the change of casuation because it occurrs between the defendant’s original improper conduct and the harm that occurred to the plaintiff.
Intervening causes that break the chain of causation due to the events not being reasonably forseeable
Superceding vs Intervening causes.
Superceding causes break the chain of causation between the defendant’s original action and the harm to the defendant.
An intervening cause is an event betweent the defendant’s original improper act and the harm to the defendant.
With the potential to break the chain of causation.
The different is that a intervening cause could be anticipated by reasonably prudent person. while a superceding cause can’t be, thus it breaks the causation and the defendant’s actions isn’t considered the cause of the harm to Plaintiff.
How is proximate cause evaluated?
Proximate Cause isn’t evaluated by what the defendant expects to unfold, but by what a reasonably prudent person would expect based on the defendant’s actions.
For instnace, what a RPP could have expected would have happened after altering the natural conditions, and leaving a tree half cut by the road. Where it could have fallen on someone.
Could have defendant reasonably forseen the basic problem of the tree falling father then the specific way it did so here.
VA Good Samaritan Law.
§ 8.01-225. Persons rendering emergency care, obstetrical services exempt from liability.
A. Any person who:
- In good faith, renders emergency care or assistance, without compensation, to any ill or injured person (i) at the scene of an accident, fire, or any life-threatening emergency; (ii) at a location for screening or stabilization of an emergency medical condition arising from an accident, fire, or any life-threatening emergency; or (iii) en route to any hospital, medical clinic, or doctor’s office, shall not be liable for any civil damages for acts or omissions resulting from the rendering of such care or assistance. For purposes of this subdivision, emergency care or assistance includes the forcible entry of a motor vehicle in order to remove an unattended minor at risk of serious bodily injury or death, provided the person has attempted to contact a law-enforcement officer, as defined in § 9.1-101, a firefighter, as defined in § 65.2-102, emergency medical services personnel, as defined in § 32.1-111.1, or an emergency 911 system, if feasible under the circumstances.
VA Good Samaritan Law
Shorten for Memorization
Acts of a good faith rescuer, who renders emergency care without any compensation to any ill or injured person at the scene of the accident SHALL NOT BE LIABLE FOR ANY CIVIL DAMAGES FOR ACTS OR OMISSIONS RESULTING FROM THE RENDERING OF SUCH CARE.
How to succeed in a defense against a rescuer?
they will need to show that the rescuer failed to exercise reasonable care that a reasonably prudent person would have exercised in the same situation.
However, VA samaritan statute will not punish someone for taking a reasonable risk in aid of someone in trouble.
Partnership
limited Partnership
A limited partnership is a business entity comprised of two or more persons, with one or more general partners and one or more limited partners. A limited partnership differs from a general partnership in the amount of control and liability each partner has.
To form a limited partnership in Virginia, a certificate of limited partnership must be filed with the Virginia State Corporation Commission. This is different from general partnerships which require no formal recording with the Commonwealth. The certificate must state the name of the partnership,2 and, the name must contain the designation “limited partnership,” “a limited partnership,” “L.P.,” or “LP;” which puts third parties on notice of the limited liability of one or more partners. 3 Additionally, the certificate must name a registered agent for service of process, state the Post Office mailing address of the company, and state the name and address of every general partner. The limited partnership is formed on the date of filing of the certificate unless a later date is specified in the certificate
chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://law.richmond.edu/academics/clinics-skills/in-house/ip-clinic/pdf_archive/business-limited-partnership.pdf
Go over this link.
General Partners in a Limited Partnership
General partners run the company’s day-to-day operations and hold management control. The scope of individual general partner responsibilities should be outlined in the partnership agreement.
General partners have the power to bind the partnership and the other partners in contracts that are made in the ordinary course of partnership business.
General partners take on the legal debts and obligations of the business for which they are jointly and severally liable.
They must be named in the certificate of limited partnership as a “general partner.”5 General partners may be an individual, a partnership, a limited partnership (domestic or foreign), a trust, an estate, an association, a corporation, or any other legal or commercial entity.6 A general partner may leave the partnership at any time, however, if the partnership agreement contains exit provisions, a failure to adhere to them may result in damages or other legal remedies.
Limited Partners in a Limited Partnership
Limited partners contribute investment capital in the form of cash, property, services rendered, or a promissory note or other obligation to contribute the same.7
They generally do not participate in the daily operations of the company. Limited partners are shielded from personal liability for company debts and actions, except to the extent of their contribution.8
Limited partners may be granted voting rights in a partnership agreement.9 Additionally, they have rights to inspection and information regarding the partnership and the financial condition of the business.10
**Limited partners may be more involved in a partnership’s daily operations; however, too much involvement will cause them to be treated legally as general partners with full personal liability. Limited partners may only leave the limited partnership at times or upon events specified in the partnership agreement. **
When is a guarantor of the loan liable?
When the borrow defaults on the loan.
what is the liability of the General Partners for the debts and obligations of the Limited Partnership?
General partners has unlimited personal liability for the debts of the limited partnership
Thus a general partner would be personally liable for the debts of the partnership.
When do agents have the power to bind their employer or the partnership or incorporation to a contract?
If they have actual or apparent authority
What is actual authority?
If the agent, based on his interactions with the principal, has a reasonable belief that he has the authority to bind the partnership.
It is based on the agent’s reasonable belief from the principal’s words and conduct.
It can either be expressed as in the employer told the employee or agent he had the authority or implied based on employer’s conduct and words.
Was it done in the ordinary course of business?
What is apparent authority?
the act of any partner or agent for apparently carrying out the ordinary course of business or business of the kind by the partnership.
binds the partnership unless
the partner had not authority to act for the partnership in the particular matter AND
the person whom the partner is dealing with knew that the partner had no authority had received notice that the partner had no authority.
the Liability of limited partners in a Limited Partnership
In general limited partners are not liable for the debts of the partnership unless they participate in the business and the other party reasonably believes that the limited partner is a general partner.
If the other party knows that the limited partner is a limited partner, then the limited partner isn’t liable for the debts of the partnership.
the duties of a general partner to the partner
hthey owe a duty of loyalty and care to the partnership .
They can’t engage in self dealing, which breachs their duty of loyalty.
When a fiduciary breaches their duty, disgorgement of profits is generally a fair remedy.
Duty of care requires them to refrain from conduct that is negligent or reckless or unlawful.
Professional Responsibilty
Duty of Confidentalitiy
attorney shall not reveal information obtained in the attorney client relationship that the client requested to remind confidential or the disclosure of which would embarrass the client or likely be detriment to the client without the client consent.
However, there are exceptions to the Attorney’s duty of confidentiality.
* to comply with law
* a dispute between attorney and client
* to establish claim or defense between attorney and client
* that the client committed fraud on third party
* protect client interest after death
Also, the attorney is required to reveal communications with the client if it is the intention of the client to commit a crime and the information concerning the crime.
However, the attorney should advise the client of the legal consequences.
https://casetext.com/rule/virginia-court-rules/virginia-rules-of-supreme-court/part-six-integration-of-the-state-bar/section-ii-virginia-rules-of-professional-conduct/client-lawyer-relationship/rule-16-confidentiality-of-information
Example of a breach of attorney’s duty of confidentiality
When the attorney represents another client and reveals information obtained during the representation of that client to another.
That is a violation of his duty of confidentiality.
Rule 1.4 - Communication
Va. R. Sup. Ct. 1.4
(a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.
(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
(c) A lawyer shall inform the client of facts pertinent to the matter and of communications from another party that may significantly affect settlement or resolution of the matter.
Attorney’s duty in regard to communication with their client.
The lawyer is obligated to keep his clients fully informed of the facts relevant to the representation so that they can make informed decisions regarding the representation.
A lawyer shall explain a matter to the extent reasonably necessary to permit the client to informed decisions regarding the representation.
The lawyer shall inform the client of pertinent facts to the matter and communications with the party that may affect the settlement of the matter.
Conflict of Interest
Rule 1.7 - Conflict of Interest: General Rule
(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:
(1) the representation of one client will be directly adverse to another client; or
(2) there is significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.
(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph(a), a lawyer may represent a client if each affected client consents after consultation, and:
(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;
(2) the representation is not prohibited by law;
(3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and
(4) the consent from the client is memorialized in writing.
Concurrent Conflict of Interest
A lawyer shall not represent a client if there is a risk of a concurrent conflict of interest.
A concurrent conflict of interest is when the representation of a client would be directly adverse to the representation of another client or the representation of a client would be materially limited by the attorney’s responsiblities to a current client, former client, and the attorney’s personal interests.
However, a concurrent conflict of interest may be waived if the representation is not prohibited by law,
That the attorney believes that he can provide competent and diligent representation despite the conflict of interest.
It does not involve the assertion of a claim by one client against another client in the same litigation.
And the client gave informed written consent.
Conflict of Interest: Former Client
Rule 1.9 - Conflict of Interest: Former Client
(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless both the present and former client consent after consultation.
(b) A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client:
(1) whose interests are materially adverse to that person; and
(2) about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter;
unless both the present and former client consent after consultation.
(c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:
(1) use information relating to or gained in the course of the representation to the disadvantage of the former client except as Rule 1.6 or Rule 3.3 would permit or require with respect to a client, or when the information has become generally known; or
(2) reveal information relating to the representation except as Rule 1.6 or Rule 3.3 would permit or require with respect to a client.
Conflict of Interest: Former Client
A lawyer who represented a now former client shall not represent another client in the same or substantially similar matter, in which that person’s interest is materially adverse to the interests of the former clietn unless both give informed written consent.
This situation also applies to the forms where the lawyer was previously assoicated with that had previously represented a client.
A lawyer who has formerly represented a client in matter or those present or former form has formerly represented a client in the matter shall not thereafter use the information to the disadvantage of the former client
Example of a conflict of interest concerning a former client
Where the attorney had represented a former client whose interests were materially adverse to that of a former client.
And didn’t obtain waviers.
Viriginia Rule 8.4 - Misconduct
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;
(b) commit a criminal or deliberately wrongful act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness to practice law;
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation which reflects adversely on the lawyer’s fitness to practice law;
(d) state or imply an ability to influence improperly or upon irrelevant grounds any tribunal, legislative body, or public official;
(e) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law; or
(f) enter into an agreement with a client or former client limiting or purporting to limit the right of the client or former client to file or pursue any complaint before a lawyer regulatory or disciplinary authority.
