rule statements

Question 1

Summary Judgment

Answer 1

Summary judgment must be granted if, from the pleadings, affidavits, and discovery materials, it appears that there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law.

Question 2

Summary Judgment–Affidavits

Answer 2

if the moving party submits an affidavit in support of the motion for summary judgment, the nonmoving party must counter that affidavit with his own evidence from affidavits, discovery, etc., on the matter.

Question 3

Claim Preclusion

Answer 3

For claim preclusion to apply, (i) there must have been a valid, final judgment on the merits, (ii) both parties must be the same (or be in privity with a party in the prior suit), and (iii) the new action must involve the same cause of action (i.e., must arise out of the same transaction or occurrence)

Question 4

Issue Preclusion

Answer 4

For issue preclusion to apply, (i) the issues in both actions must be the same, (ii) there must have been a final judgment as to that issue, (iii) the party against whom collateral estoppel is asserted must have had a fair opportunity to be heard on the matter, and (iv) the posture of the case must be such that it would not be unfair or inequitable to apply collateral estoppel.

Question 5

Involuntary Manslaughter

Answer 5

A person commits involuntary manslaughter when he causes a death by criminal negligence.

Question 6

Criminal Negligence (mens rea)

Answer 6

a person has a mens rea of criminal negligence when he: (i) fails to be aware of a substantial and unjustifiable risk, and (ii) this failure constitutes a gross deviation from the standard of care that a reasonable person would have exercised in the same situation.

Question 7

Causation (Homicide)

Answer 7

A defendant must be both the cause-in-fact and the proximate cause of death.

Question 8

Cause-in-fact (criminal)

Answer 8

A defendant’s conduct is the cause-in-fact of the death if the death would not have occurred “but for” the defendant’s conduct.

Question 9

Proximate Cause (criminal)

Answer 9

A defendant is the proximate cause of a death if the death was the natural and probable consequence of his conduct, even if he did not anticipate the precise manner in which it would occur.

Question 10

Intervening Act (Criminal Law Causation)

Answer 10

An intervening act can shield the defendant from liability if the act is a mere coincidence or is outside the foreseeable sphere of risk created by the defendant’s act.

Question 11

Accomplice

Answer 11

An accomplice is a person who (i) with the intent to assist the principal and the intent that the principal commit the crime (ii) actually aids, counsels, or encourages the principal before or during the commission of the crime. .

Question 12

Accomplice Liability Mens Rea

Answer 12

When the substantive offense has recklessness or negligence as its mens rea, most jurisdictions hold that the intent element is satisfied if the accomplice (i) intended to facilitate the commission of the crime, and (ii) acted with recklessness or negligence (whichever is required).

Question 13

Negligence–Prima Facie Case

Answer 13

In an action for negligence, the plaintiff must prove that (i) the defendant owed the plaintiff a duty of care, (ii) the defendant breached that duty, (iii) the breach was the actual and proximate cause of the plaintiff’s injury, and (iv) the plaintiff suffered damages.

Question 14

Child’s Standard for Duty of Care (negligence)

Answer 14

Children have a duty of care to act like a reasonable person; however, children are held to the standard of a child of like age, education, intelligence, and experience. A child under the age of four is usually without the capacity to be negligent.

Question 15

Pure Comparative Negligence (Majority Rule)

Answer 15

Under modern comparative negligence rules, plaintiff’s negligence would reduce his recovery from defendant. While under common law a party could not recover if he was found to be negligent in any way, under the modern comparative negligence approach, fault is apportioned between the parties. The plaintiff’s percentage share of fault reduces his total damages award by that percentage.

Question 16

“Partial” Comparative Negligence (Minority Rule)

Answer 16

Unlike under a pure comparative negligence approach, jurisdictions applying a “partial” comparative negligence approach bar recovery for plaintiffs who are 50% or more at fault.

Question 17

Statutory Standard of Care (Negligence Per Se)

Answer 17

A statute providing for criminal penalties may establish a specific duty that will replace the more general duty of care in negligence cases. The statute will apply if (i) it was designed to prevent the type of harm suffered by the plaintiff, and (ii) the plaintiff is within the protected class. In most jurisdiction, an unexcused violation of a statutory standard of care is negligence per se, which means that it establishes the first two prima facie elements of negligence (duty and breach of duty).

Question 18

Proximate Cause in Indirect Cause Cases

Answer 18

In indirect cause cases, an intervening force combines with the defendant’s conduct to cause the plaintiff’s injury. Proximate Cause exists in indirect cause cases only if the defendant’s negligence caused a foreseeable harm or caused a foreseeable reaction from an intervening force.

Question 19

Intervening Events (Proximate Cause)

Answer 19

Intervening events that produce a harm outside of the scope of what one would normally anticipate from the defendant’s negligence are generally deemed unforeseeable and superseding. Such a superseding event will break the chain of causation and relieve the defendant of liability.

Question 20

Content Restriction (First Amendment)

Answer 20

The First Amendment generally prohibits the government from restricting the content of speech unless the government can prove the restriction is necessary to achieve a compelling government interest.

Question 21

Unprotected Speech

Answer 21

Certain categories of speech are not protected by the First Amendment, including speech that incites imminent lawless action and “fighting words.”

Question 22

Overbreadth (First Amendment)

Answer 22

Generally, a regulation of speech will not be upheld if it is overbroad. That is, it prohibits substantially more speech than is necessary. If a regulation punishes a substantial amount of protected speech judged in relation to its legitimate sweep, it is facially invalid and cannot be enforced against anyone, including a person engage in constitutionally unprotected speech, unless a court has limited construction of the restriction so as to remove the threat to constitutionally protected speech.

Question 23

Fighting Words

Answer 23

Fighting words are not protected speech. The term is defined as personally abusive epithets that, when adressed to an ordinary person, are likely to incite immediate physical retaliation.