one sheet rules Flashcards
In any negligence action, a plaintiff must show that the defendant owed the plaintiff a duty to conform his conduct to a standard necessary to avoid an unreasonable risk of harm to others, the defendant’s conduct fell below the applicable standard of care, and that the defendant’s conduct was both the cause in fact and proximate cause of the plaintiff’s injuries
duty of care owed by children
A child owes the duty of care of a hypothetical child of similar age, intelligence, and experience, acting under similar circumstances
children engaged in adult activities
If the child is engaged in adult activity, i.e., one which is normally undertaken only by adults and for which adult qualifications are required, then the child will be held to the same standard of care as a reasonably prudent adult engaged in such activity
Kids who can’t be held negligent bc of age
Some states will not hold children under a certain age liable for negligent.
Undiscovered trespasser
An undiscovered trespasser is one who comes onto land without permission or privilege who the preimses possessor does not know about
Duty of care to unknown trespassers
Undiscovered trespassers are not owed a duty of care
Discovered trespasser
A discovered trespasser is one that the premises possesor knows or should know of.
Duty to discovered trespasser
The possessor must warn or make safe any unreasonably dangerous concealed artificial conditions that they know of
Attractive nuisance doctrine
The premises possesor is liable if (i) they know or have reason to know that children are likely to trespass; (ii) the condition is one which they know or should know poses an unreasonable risk of deathor serious bodily harm, (iii) children, because of their youth, do not discover the condition or appreciate the risk involved, (iv) the burden of eliminating the condition is slight compared with the risk involved and the benefit to the possessor; and (v) the possesor fails to exercise reasonable care to protect children.
licensee
A licensee is a social guest who has permission to enter land but. does not confer an economic benefit on the possessor.
Duty owed to licensees
A landowner must warn or make safe all concealed dangers that the landowner knows of
Invitee
Invitees are those that either enter to confer an economic benefit, or enter land that is open to the public at large
Duty to invitees
The landowner must warn or make safe all dangers that they know or should know of. They also have a duty to inspect the property.
Negligence per se
A plaintiff can sue under a theory of negligence per se when they can show three elements
1. the defendant violated a statute without excuse
2. the plaintiff was in the class of people the statute was trying to prevent
3. the plaintiff suffered the harm the statute was trying to prevent
Effect of showing all elements of negligence per se
If a plaintiff can establish the negligence per se elements, they will have offered conclusive proof of duty and breach. However, they still must prove cause and harm
eggshell skull rule
- A defendant takes their victim as they find them
- A plaintiff with a preexisting condition who suffers in exccess of what a typical victim would suffer is entitled to recover fully for their injuries
comparative negligence
The trier of fact apportions fault among the parties. The amount of damages apportioned to the plaintiff because of the plaintiff’s negligence is subtracted from the total damages awarded by the jury. This is called pure comparative negligence
Contributory negligence
This is a common law doctrine that states if the jury finds that the plaintiff’s negligence contributed to his injuries in any degree, the plaintiff cannot recover. Most states have abandoned this doctrine
Battery
An act with intent to cause a harmful or offensive contact or imminent apprehension thereof, and a harmful or offensive contact results.
False imprisonment
An act with intent to confine or restrain a person to a bounded area, actual confinement occurs, and the plaintiff knows of their confinement or is harmed by it
Respondeat superior
Under this doctrine, employers are vicariously liable for the torts of their employees if the torts are committed within the scope of their employment.
employer liability for intentional torts
Intentional torts are usually outside the scope of employment unless they were done for the purpose of serving the employer or they were foreseeable
Indemnification
- Indemnification is full reimbursement for damages paid to the plaintiff
- This is when one D can seek 100% of damages from theother D
Intro for questions involving article 2
- Article 2 of the UCC applies to transactions in goods
- goods are things moveable at the time of identification to the contract
- a contract under UCC may be made in any manner sufficient to show agreement, including conduct by both parties which recognizes the existence of such a contract
Buyer’s rejection of goods
Generally, a buyer can reject goods for any reason under the perfect tender rule
Buyer’s revocation of goods
- If a buyer accepts goods, he can no longer reject them
- However, in some circumstances, he can revoke his acceptance. The buyer can revoke acceptance when (1) nonconformity of the goods substantially impairs their value to him; (2) he accetped the goods because he had a reasonable belief nonconformity would be cured (and it was not) or he did not discover the nonconformity because it was difficult to discover or because of the seller’s assurances; (3) he revokes within a reasonable time after discovering the nonconformity; and (4) he revokes before any substantial change in the condition of the goods which is not caused by their defect
Hearsay
Hearsay is a statement other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted
Admissibility of hearsay
Hearsay is not admissible unless it comes within an exception
Excited utterance
An excited utterance is a statement relating to a startling event or condition made while the declarant is under the stress or excitement that it caused
present sense impression
A present sense impression is a statement describing or explaining an event or condition made while or immediately after the declarant perceived it
statement for purpose of medical treatment/diagnosis
These statements must be made for and reasonably pertinent to medical diagnosis or treatment and describe medical history, past or present symptoms or sensations, their inception, or their general cause
Business record exception
- A record of acts, events, conditions, opinions, or diagnoses is admissible if it is made at or near the time of the event, recorded by a person with knowledge of the event
- further the act of making the record must occur in the course of a regularly conducted business activity, and it must be the regular practice of the business to make such a record
Recollection recorded
A record that is on a matter the witness once knew about, but now cannot recall well enough to testify fully and accurately, which was made while it was fresh in their memory, may be read into evidence (but not offered as an an exhibit by the proponent)
State of mind exception
If a statement is offered to show a state of mind and not truth of the matter asserted, it is not hearsay
Prior statement of identification
A witness’s prior identification is not considered hearsay
Opposing party’s statement
A statement made by an opposing party that is offered against that party is not hearsay
test for relevancy of evidence
Evidence is relevant if it has any tendency to make a fact more or less probable than it would be without the evidence, and the fact is of consequence in determining the action
admissibility of relevant evidence
all relevant evidence is admissible unless a statute or rule says otherwise, or the probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence
personal knowledge requirement for a lay witness
A witness must have knowledge of the matter they testify about. A lay witness must have personal knowledge. Her knowledge must be rationally based upon her perception, helpful, and not based on scientific, technical, or specialized knowledge
knowledge requirement for expert witness
An expert witness does not need personal knowledge, but can instead testify based on facts he has been made aware of at trial or through some other means (e.g., facts not on the record if other experts would rely on those facts)
General rule on impeachment
Generally, any party may impeach a witness, even the party that called that witness
Prior inconsistent statements
- a witness may be impeached with prior inconsistent statements
- these can be used as substantive evidence as well if they fall within a hearsay exception or exclusion
- witness must be given the opportunity to explain or deny the statement if extrinsic evidence is used, unless the witness is the opposing party, not in court, or the interests of justice so require
impeachment through bias
The witness may be impeached with bias. The witness must be confronted on the stand. Extrinsic evidence can only be used if the witness is asked about the bias first
Impeachment through a past cnoviction
- whether the conviction can be used depends on the nature of the crime, the amount of time that has passed, and (in criminal cases) whether the witness is a defendant.
nature of crime witness is being impeached with
Felonies and misdemeanors of dishonesty are automatically admissible. Felonies are admissible if they pass the rule 403 balancing test if the witness admitted against is not a criminal defendant.
balancing test to admit past convictions against criminal D
Past convictions must be admitted in a criminal case in which the witness is a defendant if the probative value of the evidence outweighs its prejudicial effect
Impeachment by bad acts
Questioning about acts that are probative of truthfulness or untruthfulness is permitted. Extrinsic evidence, however, is not permitted
Impeachment by R/O for untruthfulness
Impeachment may be done through reputation or opinion evidence, but the witness cannot testify as to specific facts of bad conduct
Impeachment for sensory deficiency
Extrinsic evidence is permitted to show the witness did not have the ability to observe, remember, or relate information accurately
Impeachment by contradiction
If the witness made a mistake in their testimony, or lied during direct examination, they may be contradicted. Extrinsic evidence is permitted if the witness does not admit their mistake
General rule on character evidence
Character evidence is inadmissible to prove someone acted in accordance with their character at the time the event occurred
Character evidence in civil cases
Character evidence is only permitted in a civil case when it is an essential element of a case. Character is usually an essential element in cases involving negligent entrustment, negligent hiring, defamation, or child custody.
How may character evidence be proven in a civil case.
Reputation, opinion, and specific acts may be used to prove character
Character in a criminal case during prosecutor’s case
Generally, character evidence is inadmissible in the prosecutor’s case in chief to show the defendant acted in conformity with their own character.
defendant opening the door
The defendant in a criminal case may introduce evidence of a pertinent character trait to prove that he acted in conformance with his character at the time in question. This can be proven by reputation or opinion evidence. Then the prosecution may rebut by using reputation, opnion, or specific acts
6th amendment and evidence
If a statement is testimonial, the declarant is unavailable, and the defendant did not have the opportunity to cross examine the declarant, then admission of the statement will violate the defendant’s right to confrontation.
When is a statement not testimonial
A statement is not testimonial if the primary purpose of the statement is to aid law enforcement in addressing an ongoing emergency
PJ in a federal court
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
Specific jurisdiction
State courts of general jursidcition 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 14th Amendment of the constitution
What do the DPC and 14A require for PJ
The due process clause permits states to assert personal jurisdiction over nonresident defendants who have established minimum contacts with the state such that the exercise of personal jurisdiction would not offend traditional notiong sof fair play and substantial justice.
Domicile
A person is domiciled where it is their permanent home, the place where they intend to remain indefinitely, and the place to which they intend to return when temporarily absent. Domicile is determined at the time the lawsuit is filed.
where is venue proper
venue is proper in a district where
1. any defendant resides, if all reside in the same state
2. in a district where a substantial part of the acts or omissions giving rise to the claim occurred or a substantial part of property that is subject to the action is situated;
3. a district in which any D would be subject to personal JDX
Where does a corporate D reside for venue purposes
A corporate D is deemed to reside in any judicial district in which it is subject to personal JDX at the time the action is commenced.
Transfer to a more appropriate forum
A federal court has the authority to transfer a case to another federal district for the convenience of parties and in the interest of justice. The new forum must have subject matter JDX and personal JDX. When this happens, the court will apply the law of the transferor forum.
Transfer to a proper venue
This occurs when a caes is filed in the wrong venue, and then transferred. The law of the transferee court then applies.
MSJ rule statement
FRCP 56 allows a summary judgment motion to be granted only if there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law.
TROs
- A TRO can be issued without notice to the adverse party (in limited circumstances and for a limited time)
- to secure a TRO without notice, P needs to show a risk of immediate and irreparable injury.
Filing AOI
Articles of incorporation must be filed with the state
Conflict between AOI and bylaws
In a conflict between the AOI and bylaws, the AOI controls
Corp’s preincorporation liability for a K
A corp is generally not liable for a K entered into prior to incorporation unless it expressly or impliedly adopts (ratifies) the contract
Promoter liability
Promoters are liable for preincorporation contracts unless there has been a novation
SH basics
SHs are only owners of the corp, and thus, do not manage the corp
Notice of SH meetings
Written notice of meetings is required 10-60 days prior and must state the time, place, and purpose of meeting
SH proxy vote
SHs can vote by proxy (have someone vote their shares for them) or by voting agreement.
Quorum required for SHs
Generally, a quorum (majority of all outstanding shares required to vote) must be present for SHs to vote
Director basics
Directors manage the corp and act as a body by voting
Who hires/fires directors
SHs hire and fire directors
Can directors vote by proxy/agreement?
Directors may not vote by proxy or by vote agreement
BJR
The BJR is a presumption that in making a business decision, the directors acted on an informed basis, in good faith, and in the honest belief that the action taken was in the best interests of the company
