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Bar Exam > MEE Other Subjects > Flashcards

MEE Other Subjects Flashcards

1
Q

What is personal jurisdiction?

A

The power of a court to exercise authority over a defendant

Personal jurisdiction can be general or specific and relates to fairness to the defendant.

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2
Q

How often is personal jurisdiction tested on the MEE?

A

Approximately once every five years

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3
Q

What are the two types of personal jurisdiction?

A
  • General
  • Specific
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4
Q

What must you state when discussing federal personal jurisdiction?

A

Federal district courts may exercise personal jurisdiction to the same extent as the courts of general jurisdiction of the state in which the district court sits.

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5
Q

What must you state when discussing specific personal jurisdiction?

A

State courts of general jurisdiction may exercise personal jurisdiction over nonresident defendants to the extent authorized by both the state’s long-arm statute and the Due Process Clause of the Fourteenth Amendment.

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6
Q

What does the Due Process Clause of the Fourteenth Amendment permit?

A

States to assert personal jurisdiction over nonresident defendants who have established minimum contacts with the state

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7
Q

What is subject-matter jurisdiction (SMJ)?

A

The power of a court to hear a certain type of case.

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8
Q

What kind of jurisdiction do federal courts have?

A

Limited jurisdiction

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9
Q

What are the three categories of SMJ that are tested?

A
  • Federal-question jurisdiction
  • Diversity jurisdiction
  • Supplemental jurisdiction
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10
Q

What is required for federal-question jurisdiction?

A

The federal question must appear on the face of the plaintiff’s well-pleaded complaint.

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11
Q

What are the two requirements for diversity jurisdiction?

A
  • Complete diversity of citizenship between the plaintiffs and defendants
  • Amount in controversy must be over $75,000
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12
Q

Is complete diversity required for class actions?

A

No, minimal diversity suffices.

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13
Q

Where is a person domiciled?

A

Where it is her permanent home, a place where the person intends to remain indefinitely.

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14
Q

What is supplemental jurisdiction?

A

An issue when there is a jurisdictional basis for one claim but not the other.

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15
Q

What is the rule regarding removal under 28 U.S. Code § 1441?

A

Defendants may remove an action from state court to federal court if the plaintiff could have initially brought the case in federal court.

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16
Q

Can a defendant remove a case if sued in his home state?

A

No, if the only basis for removal is diversity.

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17
Q

What is the general rule for venue?

A

Venue is proper in a district where any defendant resides if all defendants reside in the same state.

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18
Q

What does 28 U.S.C. § 1404 authorize?

A

The federal court has authority to transfer a case to another federal district for the convenience of the parties and witnesses.

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19
Q

What must a court apply when transferring a case to a more appropriate forum?

A

The law of the transferor forum.

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20
Q

What is a summary judgment?

A

A case or part of a case decided in favor of the plaintiff or defendant without a trial.

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21
Q

What standard must be met to grant a summary judgment motion?

A

There is no genuine issue as to any material fact.

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22
Q

What types of evidence can support a motion for summary judgment?

A
  • Depositions
  • Documents
  • Affidavits
  • Declarations
  • Stipulations
  • Admissions
  • Interrogatory answers
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23
Q

What is a temporary restraining order (TRO)?

A

A court order that can be issued without notice to the adverse party in limited circumstances.

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24
Q

How long does a TRO last?

A

Only long enough for the court to consider and resolve a request, but not longer than 14 days.

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25
Q

What must a plaintiff show to secure a TRO without notice?

A

A risk of immediate and irreparable injury.

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26
Q

What is the purpose of a TRO?

A

To act as a stopgap measure until the court decides whether to grant a preliminary injunction.

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27
Q

What is a Temporary Restraining Order (TRO)?

A

A TRO is a stopgap measure that lasts up to 14 days to allow the court to consider a request for a preliminary injunction.

A TRO can be extended for good cause or with consent from the adverse party.

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28
Q

What is the purpose of a preliminary injunction?

A

To preserve the status quo until the matter can be tried within six months unless parties stipulate otherwise.

The court must notify the adverse party before granting a preliminary injunction.

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29
Q

What does the mnemonic HELP stand for in relation to preliminary injunctions?

A
  • Harm: Significance of irreparable harm to the plaintiff
  • Evaluation of injuries: Balance of harm to plaintiff vs. injury to defendant
  • Likelihood of prevailing: Probability of plaintiff succeeding on merits
  • Public interest: Consideration of public interest in the case
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30
Q

What is the definition of work product?

A

Work product is any material prepared in anticipation of litigation.

Statements not prepared in anticipation of litigation do not qualify as work product.

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31
Q

Under what circumstances can written statements by witnesses be discoverable?

A

If the other party shows substantial need and undue hardship, even if they are considered work product.

However, an attorney’s mental impressions are never discoverable.

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32
Q

What is the general rule about appealability of judgments?

A

Final judgments are generally appealable, while nonfinal judgments are generally not appealable.

The MEE tests the exceptions to this rule.

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33
Q

What is issue preclusion?

A

Issues that were actually litigated and decided in a previous case cannot be litigated again.

This is essential to the final judgment in that previous case.

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34
Q

What is claim preclusion?

A

A claim that has been litigated to a final judgment on the merits cannot be relitigated by the parties or their privies.

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35
Q

What power does Congress have regarding interstate commerce?

A

Congress has the power to regulate interstate commerce.

This includes channels, instrumentalities, and anything that has a substantial effect on interstate commerce.

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36
Q

What is the Dormant Commerce Clause?

A

States lack the power to discriminate against or unreasonably burden interstate commerce.

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37
Q

Under what conditions is a state law that discriminates against interstate commerce considered valid?

A

If the state can show that the law serves a compelling state interest and there is no reasonable nondiscriminatory alternative.

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38
Q

What is the market-participant doctrine?

A

A state can favor its own residents when it is acting as a market participant rather than a regulator.

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39
Q

What limits does Congress have on its powers?

A

Congress’s powers are limited to those given to it by the Constitution, including enforcing constitutional rights under certain amendments.

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40
Q

What is required to sue under the First, Fourteenth, or Fifteenth Amendment?

A

State action is required to sue under these amendments.

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41
Q

What are the three standards under the Equal Protection Clause?

A
  • Strict scrutiny: Government must prove law is necessary for a compelling interest
  • Intermediate scrutiny: Government must prove classification is substantially related to an important interest
  • Rational basis: Plaintiff must prove law is not rationally related to a legitimate interest
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42
Q

What must the government show under strict scrutiny?

A

The law is narrowly tailored to achieve a compelling interest.

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43
Q

What is symbolic speech and its constitutional status?

A

Symbolic speech is conduct that places an incidental burden on speech, which is constitutional if the regulation is narrowly tailored to an important governmental interest.

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44
Q

What categories of speech are not protected under the First Amendment?

A
  • Speech inciting immediate lawless behavior
  • Fighting words
  • True threats or words as conduct
  • Obscene speech
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45
Q

What are the three criteria used to test for obscenity?

A
  1. Appeals to a prurient interest in sex
  2. Depicts sexual conduct in a patently offensive way
  3. Lacks serious literary, artistic, political, or scientific value

The test for obscenity is not usually applied.

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46
Q

What is the Central Hudson test related to?

A

Commercial speech

The test states that the speech must be lawful and not misleading, serve a substantial governmental interest, directly advance that interest, and be narrowly tailored.

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47
Q

What must a time-place-or-manner restriction in a public forum be?

A
  1. Content neutral
  2. Narrowly tailored to serve an important governmental interest
  3. Leave open alternative channels of communication

This applies to forums historically associated with free speech rights.

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48
Q

True or False: Students have free speech rights in public schools.

A

True

However, these rights may be regulated if the regulations are reasonably related to legitimate educational concerns.

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49
Q

What does the Eleventh Amendment preclude?

A

A federal court from exercising jurisdiction over a suit by a private party seeking to recover damages from the state

There are exceptions, such as if a federal statute properly abrogates immunity.

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50
Q

Define consideration in the context of contract law.

A

A legal detriment or bargained-for exchange

A promise to make a gift does not constitute consideration.

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51
Q

What is a counteroffer?

A

A statement that changes the terms of the initial offer, thus not constituting acceptance

This is based on the mirror-image rule.

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52
Q

Fill in the blank: A promise to hold an offer open requires _______ to be binding.

A

consideration

Unless the UCC firm offer exception applies.

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53
Q

What is the difference between rejection and acceptance in contract law?

A

Rejection terminates the offeree’s power to accept an offer; acceptance is effective upon dispatch

If a rejection is sent followed by an acceptance, the first received by the offeror is effective.

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54
Q

What is the preexisting-duty rule?

A

Promising to perform a legal duty already owed to a promisor is not valid consideration

Exceptions exist for changed duties or unforeseen circumstances.

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55
Q

What does ‘promissory estoppel’ substitute for?

A

Consideration

It requires a promise, foreseeable reliance, and enforcement to avoid injustice.

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56
Q

What is meant by ‘gap fillers’ in contract law?

A

Terms that help fill in missing items in a contract for the sale of goods if the parties intended to form a contract

Examples include course of performance, course of dealing, and trade usage.

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57
Q

Under common law, what must a party do to demand performance from another party?

A

Substantially perform its contractual obligations

Courts will look at several factors to determine substantial performance.

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58
Q

What is the perfect tender rule?

A

A buyer can reject goods for any reason if they do not conform perfectly to the contract

There are exceptions, such as in installment contracts.

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59
Q

What are the conditions under which a buyer can revoke acceptance of goods?

A
  1. Nonconformity substantially impairs value
  2. Accepted due to reasonable belief nonconformity would be cured
  3. Revokes within a reasonable time after discovering nonconformity
  4. Revokes before substantial change occurs

This applies after the buyer has initially accepted the goods.

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60
Q

What must a buyer do to revoke acceptance of goods?

A

A buyer must:
* Discover the nonconformity
* Revokes within a reasonable time
* Revokes before substantial change in condition

A buyer may recover the purchase price paid.

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61
Q

Define anticipatory repudiation.

A

Anticipatory repudiation occurs when one party unequivocally indicates they cannot or will not perform their contractual obligations before performance is due.

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62
Q

What is the difference between anticipatory repudiation and prospective inability to perform?

A

Anticipatory repudiation involves an unequivocal statement of non-performance, while prospective inability is merely doubt regarding the other party’s ability to perform.

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63
Q

What can a party do if they have reasonable grounds for insecurity regarding performance?

A

They may demand adequate assurance of performance in writing and suspend their performance until assurance is received.

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64
Q

What is required for a contract to satisfy the Statute of Frauds?

A

A contract must be evidenced by a writing signed by the party to be charged, identifying the subject matter, indicating a contract has been made, and stating essential terms with reasonable certainty.

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65
Q

List the types of contracts that fall under the Statute of Frauds using the mnemonic MYLEGS.

A
  • Marriage
  • Year (cannot be performed in one year)
  • Land (sale of interest in land)
  • Executor promises to pay estate debt
  • Goods (sale of goods for $500 or more)
  • Suretyship contracts
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66
Q

What is the enforceability requirement for contracts involving the sale of goods for $500 or more under the UCC?

A

The contract is enforceable only if there is a writing signed by the party against whom enforcement is sought indicating a contract for sale.

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67
Q

What are the exceptions to the UCC’s writing requirement?

A
  • Merchant confirmatory memo
  • Part performance
  • Specially manufactured goods
  • Judicial admissions
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68
Q

Define duress in the context of contracts.

A

A contract is voidable if a party’s assent is induced by an improper threat that leaves no reasonable alternative.

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69
Q

What creates an express warranty under Article 2?

A

Affirmations of fact relating to the goods that are part of the basis of the bargain create express warranties.

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70
Q

What is the normal measure of damages for breach of contract?

A

Expectation damages aim to give the nonbreaching party the benefit of their bargain.

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71
Q

True or False: Punitive damages are generally recoverable in breach of contract actions.

A

False

Punitive damages are recoverable only if the breach also constitutes a tort.

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72
Q

What is restitution in contract law?

A

Restitution allows a party to recover benefits conferred by way of part performance in excess of the loss caused by their breach.

73
Q

Define mitigation in the context of damages.

A

A party cannot recover damages for a loss that could have been avoided by reasonable efforts.

74
Q

What are the basic elements of a crime?

A
  • Act
  • Intent
  • Causation
  • Concurrence
75
Q

What is required to establish causation in a crime?

A

Causation requires showing that the defendant’s acts were both the actual and proximate cause of the outcome.

76
Q

Define accomplice liability.

A

A person is guilty as an accomplice if they assist or encourage the principal with dual intents: intent to assist and intent for the principal to commit the offense.

77
Q

What is first-degree murder?

A

First-degree murder involves the intent to kill with premeditation and deliberation.

78
Q

What constitutes second-degree murder?

A

Second-degree murder is satisfied by intent to inflict great bodily harm or acting with reckless disregard for human life.

79
Q

What is felony murder?

A

Felony murder applies to any killing occurring during the commission of a felony or an attempt to commit a felony.

80
Q

Define voluntary manslaughter.

A

Voluntary manslaughter is an intentional killing without malice aforethought, committed in the heat of passion due to adequate provocation.

81
Q

What is involuntary manslaughter?

A

Involuntary manslaughter occurs when the defendant causes a death by engaging in conduct that creates an unreasonable risk of death or serious bodily injury.

82
Q

What are the two elements required to prove attempt as an inchoate crime?

A
  • Intent to commit the crime
  • Acts beyond mere preparation
83
Q

What two elements must the prosecution prove to establish an attempt?

A
  1. The defendant intended to commit the crime
  2. The defendant’s acts went sufficiently beyond mere preparation

The common law uses the term ‘dangerously close,’ while the Model Penal Code refers to a ‘substantial step’ toward the crime.

84
Q

True or False: Abandonment is a defense to an attempt in most states.

A

False

In most states, abandonment is not a defense to attempt.

85
Q

Define duress in the context of criminal defense.

A

The defendant commits a crime due to a threat or use of force that causes reasonable fear of imminent death or serious bodily injury

Duress cannot be used as a defense for intentional homicide.

86
Q

What test do most states use to determine insanity?

A

M’Naghten test

The defendant must prove a disease of the mind that caused a defect of reason, leading to inability to know the wrongfulness of actions.

87
Q

What is the general rule regarding the Fourth Amendment?

A

The Fourth Amendment applies to searches or seizures conducted by government agents in areas where there is a reasonable expectation of privacy

An agent typically needs a warrant, but there are exceptions.

88
Q

What is required for a person to have standing to raise a Fourth Amendment challenge?

A

A reasonable expectation of privacy in the thing searched or seized

This principle is critical when assessing Fourth Amendment rights.

89
Q

List some exceptions to the requirement for a warrant under the Fourth Amendment.

A
  • Exigent circumstances
  • Search incident to arrest
  • Consent
  • Automobile exception
  • Plain view
  • Inventory searches
  • Special needs
  • Terry stops/frisks
90
Q

What does the plain view exception allow law enforcement to do?

A

Seize an object without a warrant if its incriminating character is immediately apparent and the officers have lawful access to it

Officers must be lawfully in position to view the object.

91
Q

What is required for a Terry stop?

A

Reasonable, articulable suspicion that the individual has been involved in criminal activity

This allows police to detain an individual briefly.

92
Q

What is the standard for excluding a confession under the Fourteenth Amendment?

A
  1. Whether the police subjected the suspect to coercive conduct
  2. Whether the conduct was sufficient to overcome the suspect’s will

If violated, neither the confession nor its fruits can be admitted.

93
Q

When does the Sixth Amendment right to counsel attach?

A

When judicial proceedings have begun, such as upon indictment or arraignment

It does not attach upon arrest.

94
Q

What must a valid Miranda waiver entail?

A

The waiver must be knowing, intelligent, and voluntary

This is a low bar for the prosecution to meet.

95
Q

What is the definition of hearsay?

A

A statement, other than one made by the declarant while testifying, offered in evidence to prove the truth of the matter asserted

Hearsay is generally inadmissible unless it falls under an exception.

96
Q

What is an excited utterance?

A

A statement relating to a startling event made while the declarant was under stress or excitement caused by that event

This is a commonly accepted hearsay exception.

97
Q

What qualifies as a present sense impression?

A

A statement describing or explaining an event made while or immediately after the declarant perceived it

This is another hearsay exception.

98
Q

What are business records under hearsay exceptions?

A

Records of acts, events, conditions, or opinions admissible if made at or near the time by a person with knowledge, and it is the regular practice of the business to make such records

This exception ensures reliability in business documentation.

99
Q

What is the then-existing state of mind exception to hearsay?

A

A statement showing a declarant’s mental, emotional, or physical condition is not considered hearsay

This includes motive, intent, or plan.

100
Q

True or False: A witness’s prior identification is considered hearsay.

A

False

A prior statement of identification is not considered hearsay.

101
Q

What is the hearsay exclusion related to prior statements of identification?

A

A witness’s prior identification is not considered hearsay.

This applies when the identification is made in a legal context.

102
Q

What constitutes an opposing party’s statement?

A

A statement made by an opposing party offered against that party is not hearsay.

This principle is recognized in multiple legal references.

103
Q

Define ‘statement against interest’.

A

A statement that a reasonable person in the declarant’s position would have made only if they believed it to be true and that exposes them to liability.

The declarant must be unavailable for this to apply.

104
Q

Under what circumstances may public records be admitted?

A

Public records may be admitted unless they pertain to matters observed by law enforcement when offered against a defendant in a criminal case.

This is subject to specific legal standards.

105
Q

What is the definition of relevancy in legal terms?

A

Evidence is relevant if it has any tendency to make a fact more or less probable than it would be without the evidence.

The fact must also be of consequence in determining the action.

106
Q

What are the conditions under which relevant evidence may be excluded?

A

Relevant evidence may be excluded if its probative value is substantially outweighed by dangers like unfair prejudice or misleading the jury.

This is part of the 403-balancing test.

107
Q

What is required for lay witnesses to testify?

A

Lay witnesses must have personal knowledge about the matter they testify about.

Their opinion must be rationally based on their perception.

108
Q

What distinguishes expert witnesses from lay witnesses?

A

Expert witnesses do not need personal knowledge and can testify based on facts they are made aware of, even if those facts are not on the record.

This allows experts to rely on professional knowledge or experience.

109
Q

What are the seven ways to impeach a witness?

A
  1. Prior inconsistent statements
  2. Bias and interest
  3. Conviction of a crime
  4. Bad acts
  5. Reputation or opinion for untruthfulness
  6. Sensory deficiencies
  7. Contradiction

Each method has specific rules governing its use.

110
Q

What are the conditions for using prior inconsistent statements as evidence?

A

They can be used as substantive evidence if they fall within a hearsay exception or exclusion, and the witness must be given the opportunity to explain or deny the statement.

This is unless the witness is the opposing party.

111
Q

What factors determine the admissibility of a witness’s prior conviction?

A
  1. Nature of the crime
  2. Amount of time passed since conviction
  3. Whether the witness is a defendant

The acronym ‘NAD’ summarizes these factors.

112
Q

True or False: Character evidence is generally admissible to prove conformity.

A

False.

It is rarely admissible in civil cases and only in specific circumstances in criminal cases.

113
Q

In what situations is character evidence admissible in civil cases?

A

Character evidence is admissible when character is an essential element of the case, such as in negligent entrustment or defamation.

Reputation, opinion, and specific acts can be used to prove character.

114
Q

What is the significance of the Sixth Amendment Confrontation Clause?

A

If a statement is testimonial, the declarant is unavailable, and the defendant did not have the opportunity to cross-examine the declarant, admitting the statement violates the defendant’s right to confrontation.

Statements addressing ongoing emergencies are not considered testimonial.

115
Q

What are privileges in legal evidence, and provide examples?

A

Privileges can prevent otherwise admissible evidence from being admitted, such as:
* Attorney-client privilege
* Spousal privilege
* Physician-patient privilege
* Psychotherapist-patient privilege

These privileges are recognized in various jurisdictions.

116
Q

Fill in the blank: An offer to ______ is not admissible to prove liability or the existence of an injury.

A

pay medical expenses

This rule is intended to encourage settlements.

117
Q

What does the principle of equitable conversion entail?

A

Under equitable conversion, once a contract of sale is signed, the buyer’s interest is real property, while the seller’s interest is personal property.

The risk of loss remains with the buyer even if the seller retains possession.

118
Q

What are the requirements for a deed to be valid?

A

A deed must:
* Identify the buyer and seller
* Describe the land
* Contain words denoting present intent to convey
* Be signed by the grantor
* Be delivered

Delivery involves intent to pass title presently.

119
Q

What is a quitclaim deed?

A

A quitclaim deed is when the grantor gives no covenants and the grantee receives whatever the grantor has, subject to defects in the title.

This type of deed offers the least protection to the grantee.

120
Q

What is a quitclaim deed?

A

The grantor gives no covenants and the grantee gets whatever the grantor has.

The grantee takes the land subject to defects in the title and has no recourse.

121
Q

What are the six covenants provided in a warranty deed?

A

Three present covenants and three future covenants.

Present covenants include the right to convey, the covenant of seisen, and the covenant against encumbrances.

122
Q

What are the present covenants in a warranty deed?

A
  • Right to convey
  • Covenant of seisen
  • Covenant against encumbrances

These guarantee that the seller owns the land and that there are no undisclosed encumbrances.

123
Q

What are the future covenants in a warranty deed?

A
  • Further assurances
  • Quiet enjoyment
  • Warranty

Under common law, remote grantees can sue only under future covenants.

124
Q

What happens to the contract for sale on the closing date?

A

It merges into the deed, so the buyer can only sue on the deed.

This means all prior agreements are superseded by the deed.

125
Q

What does the implied warranty of fitness and habitability cover?

A

It warrants that the home is habitable and fit for its intended purposes.

This applies to defects discovered within a reasonable time due to the builder’s negligence.

126
Q

What principle governs the rights of a grantor under common law?

A

The first-in-time first-in-right principle.

A grantor can only convey rights they had at the time of the conveyance.

127
Q

What are the three kinds of recording statutes?

A
  • Notice statutes
  • Race-notice statutes
  • Pure race statutes

Each type of statute governs the validity of property interests based on recording.

128
Q

What is actual notice in the context of property law?

A

The grantee actually knows about the conveyance.

This type of notice ensures that the grantee is aware of prior interests.

129
Q

What is a wild deed?

A

A deed that is recorded too late or too early, which does not give notice.

Wild deeds cannot affect the rights of subsequent purchasers.

130
Q

What is the general rule regarding liability on a mortgage when title is transferred?

A

The mortgagor can transfer title, but remains personally liable on the note.

A new transferee who takes the land ‘subject to’ the mortgage is not personally liable.

131
Q

What is a novation in the context of mortgages?

A

An agreement where the initial mortgagor is no longer liable and the transferee assumes all duties.

This requires agreement from the mortgagor, transferee, and mortgagee.

132
Q

What is a term for years lease?

A

A lease that specifies both a beginning date and an end date.

This type of lease has a definite duration.

133
Q

What is a periodic tenancy?

A

A tenancy that has no fixed end date and repeats until one party gives valid notice.

Examples include month-to-month leases.

134
Q

What is required to terminate a periodic tenancy?

A

Valid notice equal to the rent payment term.

This means proper notice must be given according to the lease terms.

135
Q

What is constructive eviction?

A

A tenant can sue if the landlord breaches a duty causing loss of substantial use and enjoyment of the premises.

This differs from the implied warranty of habitability.

136
Q

What is the duty to mitigate in landlord-tenant law?

A

The landlord must make reasonable efforts to mitigate damages.

Many states have moved away from the common law rule that imposed no duty to mitigate.

137
Q

What does the Fair Housing Act prohibit?

A

Discrimination in housing sales or rentals based on race, color, religion, sex, familial status, or national origin.

It does not apply if the owner occupies one of the units in a small dwelling.

138
Q

How can easements be created?

A
  • Expressly
  • Impliedly (by prior use or necessity)
  • By prescription

These methods define how easements come into existence.

139
Q

What are ways easements may be terminated?

A
  • By their express terms
  • Written release
  • Merger of tenements
  • Prescription
  • Estoppel
  • Condemnation
  • Abandonment

Mere nonuse of an easement is not enough for abandonment.

140
Q

What are the four unities required to create a joint tenancy?

A
  • Time
  • Title
  • Interest
  • Possession

Most states also require express reference to survivorship in the deed.

141
Q

What are the four ways to sever a joint tenancy?

A
  • Giving it away during life
  • Signing a contract for sale
  • Actual judicial sale
  • Granting a mortgage in a title theory state

These actions change the nature of ownership in a joint tenancy.

142
Q

What are the requirements for adverse possession?

A
  • Continuous
  • Hostile and under a claim of right
  • Actual

Additional requirements may include open and notorious possession.

143
Q

What are the requirements for adverse possession?

A

The requirements include possession that’s:
* continuous
* hostile and under a claim of right
* actual
* open and notorious
* goes on for the statutory period
* exclusive

Mnemonic: CHANGE

144
Q

What does ‘tacking’ refer to in the context of adverse possession?

A

Tacking refers to the ability of an adverse possessor to add the time possessed by a prior adverse possessor to their own time to meet the statutory period.

145
Q

True or False: An adverse possessor will prevail over a subsequent bona fide purchaser who complies with the recording act.

A

True

This is because there is no document that the interest holder could record.

146
Q

What is the general standard of care in negligence cases?

A

To act as a reasonable person would.

147
Q

In any negligence action, what must a plaintiff show?

A

The plaintiff must show that:
* the defendant owed a duty
* the defendant’s conduct fell below the standard of care
* the defendant’s conduct was the cause in fact and proximate cause of the plaintiff’s injuries.

148
Q

How is the duty of care defined for children in negligence cases?

A

A child owes the duty of care of a hypothetical child of similar age, intelligence, and experience, acting under similar circumstances.

149
Q

What is the exception to the duty of care for children engaged in adult activities?

A

If the child is engaged in adult activity, they will be held to the same standard of care as a reasonably prudent adult.

150
Q

What is the tender-years doctrine?

A

Some states recognize that a child less than seven years of age cannot be found negligent.

151
Q

What is an undiscovered trespasser?

A

A person who comes onto the land without permission or privilege and whom the premises possessor does not know about.

152
Q

What is the duty owed to discovered trespassers?

A

The possessor must warn or make safe any unreasonably dangerous concealed artificial conditions that the landowner knows of.

153
Q

What are the five elements that establish liability under the attractive nuisance doctrine?

A

The premises possessor is liable if:
* they know children are likely to trespass
* the condition involves an unreasonable risk of harm
* children do not realize the risk
* the burden of eliminating the danger is slight compared to the risk
* the possessor fails to exercise reasonable care.

154
Q

What is the definition of a licensee?

A

A social guest who has permission to enter the land but does not confer an economic benefit on the possessor.

155
Q

What is the duty owed to an invitee?

A

The premises possessor must warn or make safe all dangers that the landowner knows or should know of, and they have a duty to inspect.

156
Q

What is negligence per se?

A

Negligence per se refers to a doctrine where a plaintiff can sue if they can show that the defendant violated a statute intended to protect them.

157
Q

What are the three elements a plaintiff must establish for negligence per se?

A

The plaintiff must show:
* the defendant violated a statute without excuse
* the plaintiff was in the class of people the statute was protecting
* the plaintiff received the injury the statute was trying to prevent.

158
Q

What does the doctrine of res ipsa loquitur allow?

A

It allows the jury to infer negligence when the event ordinarily does not occur in the absence of negligence.

159
Q

What is the eggshell-skull rule?

A

A defendant takes their victim as they find them, meaning they are liable for the full extent of injuries, even if they are greater than what a normal victim would suffer.

160
Q

What is negligent infliction of emotional distress?

A

This applies when the defendant is negligent, and the plaintiff has not sustained any physical trauma but may have a physical manifestation of emotional distress.

161
Q

What is comparative negligence?

A

A doctrine where the trier of fact apportions fault among parties, reducing the plaintiff’s damages by their percentage of fault.

162
Q

What is the difference between pure and modified comparative negligence?

A

In pure comparative negligence, the plaintiff can recover damages regardless of their fault percentage, while in modified comparative negligence, they cannot recover if they are 50% or more at fault.

163
Q

What are the two intentional torts tested on the MEE?

A

Battery and false imprisonment.

164
Q

Define battery.

A

An act with intent to cause harmful or offensive contact, which results in that contact.

165
Q

What is the primary difference between an assault and a battery?

A

An assault involves imminent apprehension while a battery involves harmful or offensive contact.

166
Q

Define false imprisonment.

A

An act with intent to confine or restrain a person.

167
Q

What is the primary difference between an assault and a battery?

A

The harm suffered; assault involves imminent apprehension.

168
Q

Define false imprisonment.

A

An act with intent to confine or restrain a person to a bounded area, actual confinement occurs, and the plaintiff knows of the confinement.

169
Q

What is consent in the context of intentional torts?

A

A defense that can be either express or implied.

170
Q

What is vicarious liability?

A

Employers are liable for torts of their employees if committed within the scope of employment.

171
Q

What is respondeat superior?

A

A legal doctrine holding employers liable for employees’ torts committed within the scope of employment.

172
Q

When are employers directly liable?

A

When they fail to supervise employees or act negligently in hiring, firing, or entrustment.

173
Q

What is indemnification?

A

Full reimbursement for damages paid to the plaintiff by one defendant from another.

174
Q

Under what condition can an employer seek indemnification from an employee?

A

When the employer is liable based on respondeat superior and the employee was negligent.

175
Q

Who must the defendant be for strict products liability to be tested?

A

A merchant, not a casual seller of goods.

176
Q

What must be true under a manufacturing defect theory?

A

The product must be defective from the time it left the manufacturer’s hands.

177
Q

Are all commercial sellers liable for manufacturing defects?

A

Yes, including the store that sold the product.

178
Q

Fill in the blank: Employers are vicariously liable for _____ of their employees if committed within the scope of employment.

A

torts

179
Q

True or False: Consent can only be express.

A

False

Bar Exam (14 decks)

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