SLEEPERS Flashcards
Implied employer in workers comp. action:
Implead employer into injured employees negligence or wrongful death by a third party to share contribution for “grave injury” ONLY, including:
DEBTS PAID
- Death thats grave
- Ear or a nose lost
- Brain damage rendering the injured worker permanently employable in any capacity
- Multiple toes or fingers
- Severe facial scarring permanently disfiguring the employee
- Paralysis
- Amputation of a limb
- Loss of an index finger
- Permanent deafness or blindness
Substantial Performance:
Substantial performance is the opposite of a material breach, thus if a party has substantially performed then any breach is immaterial
If a breach is “IMMATERIAL” (trivial or minor) then this type of minor breach will not relieve the other contracting party from the obligation to pay for the performance rendered
HAIL
- Hardship on breaching party if a total material breach is declared
- Amount of benefit bestowed on non-breaching party, the greater the benefit bestowed the less likely the court is to find a material breach
- Whether the breach was Innocent, inadvertent, and unintentional, and;
- Likelihood (ease) of full performance being achieved
The breaching party has the burden of proving SP and the cost of completing the contract, a party who has substantially performed can recover =
contract price — cost to complete the contract
Minority Shareholder “locked in” from marketability of shares but “locked out” from management, salary or dividends:
BCL allows only 20% or more of the shares to petition the NY Supreme Court by showing the majority has engaged in ID FLOW either:
a. Illegal conduct
b. Diversion of corp. assets to those in control
c. Fraudulent conduct toward the minority
d. Looting of corporate assets
e. Oppressive actions
- Defeat a minimum shareholders reasonable expectations when she first joined the corporate venture such as a salary, a voice in management, dividends or bonuses
f. Waste including excessive compensation to those in control
ID FLOW dissolution is not automatic because within 90 days another shareholder or the corporation may irrevocably agree to buy out the shareholders share at fair value in one lump sum payment but the court may excuse the irrevocability of the offer based on unforeseen events
Trust Litigation
Arises when a trust beneficiary attempts to TIP a NY trust:
Terminate the trust (strong public policy against terminating trusts thus when the settlor of the trust has died)
Invade trust income (where the income beneficiary prematurely seeks distribution of a cumulated trust income she must petition the surrogates court for permission)
Invade trust Principle (courts allow the income beneficiary to invade trust principle (trust corpus) if the trust instrument expressly created a standard for this purpose, for example, I give discretion to my trustee to invade the corpus for the beneficiaries “support, education, and welfare”)
Buyer’s breach of real property contract:
Seller’s remedies:
Seller may keep the ENTIRE deposit, and the defaulting buyer may not, in law or in equity, recover any part of the down payment even if the seller resells the realty for an amount equal to or greater than the original contract price
Landlord’s tort liability
An out of possession landlord is not liable in tort for injuries occurring on the premises except for POLICE:
- Where the lease is for a PUBLIC PURPOSE for example, a store or a shopping mall then the landlord must inspect or repair any dangerous conditions before surrendering the leasehold to the tenant
- For injuries arise OUTSIDE the LEASEHOLD but PROXIMATELY CAUSED by a dangerous defect on the leasehold which the landlord knew of or should have known existed at the time the leasehold was surrendered
- Injuries caused by LATENT DEFECTS which the landlord knew or should have known existed and where the tenant did not have a reasonable time to discover and repair it
- Where the TENANTS INTENDED USE CREATES UNREASONABLE RISK of harm to others and the landlord was aware of this danger when the property was surrendered to the tenant
- Is where the landlord has MULTIPLE LEASES in the same building then the landlord is liable for injuries arising on Common passageways such as halls, lobbies, stairs or elevators
- Where the landlord EXPRESSLY CONTRACTED in the lease to make repairs and the disrepair proximately caused personal injury, however to hold the landlord liable for breach of this duty the landlord must have had actual notice of the defect or constructive notice where the condition was visible and had existed long enough that a reasonable landlord should have known of its existence
Hearsay Exceptions:
ARIES DWARFS
ADMISSIONS of an opposing party (opposing party out of court statement when offered AGAINST that opposing party)
Business or public RECORDS (recorded entries that are regularly and systematically made of business facts, activities, conditions or events)
Present sense IMPRESSIONS (unexcited statement made contemporaneously with a speakers observation, it describes what was seen or being done and is made while the declarant is perceiving it)
EXCITED utterances (under the excitement of a startling event)
STATEMENTS of the declarants State of mind (speakers existing mental feelings)
DYING declarations (declarant must have believed the death was imminent and certain)
Intimidated WITNESS Rule (threats, bribes, violence, or intimidation)
Declarations AGAINST the Speakers Interest (The out of court declarant knowingly made a statement that was contrary to her Penal, Pecuniary, or Proprietary interest, Motive, Unavailability, Personal knowledge)
RESIDUAL hearsay exception (NOT NY)
FORMER testimony (testimony from an earlier hearing, trial, or deposition given by an unavailable witness)
STATEMENTS of pedigree (out of court written or spoken declarations of kinship to prove family descent and family relationships)
Judge has discretion to exclude relevant evidence:
Misleading or confusing to the jury
Cumulative to prove facts already established
Evidence to cause undue delay
Probative value is substantially outweighed by its unfair prejudice effect on the jury
Using a D’s convictions in convicted in convicted and uncharged crimes or VIC acts (vicious, immoral, and criminal)
MOLINEAUX RULE
Evidence of a crime or prior uncharged Vicious, Immoral and Criminal act
NOT admissible to prove a D’s CHARACTER in order to show the D’s GUILT or PREDISPOSITION to commit the crime,
ADMISSIBLE when they are RELEVANT FOR A PURPOSE OTHER than to show a criminal DISPOSITION and there probative value outweighs their prejudicial effect
Three instances:
- Entrapment
- Sexual or child molestation
- MIMIC
- Motive
- Intent or guilt knowledge (specific)
- Identify the defendant as the perpetrator
- Common plan, scheme, or modus operandi
Events that effect T’s prior will:
DAMN CAR LAW
Divorce After born children Marriage of the testator No contest clause breach CY Pres of charitable bequests Advancement of a bequest Renunciation by a beneficiary Lapsed legacies (always consider NY's anti lapse statute) Ademption or abatement Wrongfully killing the testator
Slip and Fall Accidents
A plaintiff who slips and falls on defendant’s property must prove that a latent dangerous condition existed and that defendant:
i. Created the dangerous condition,
ii. Had actual notice of it, or;
iii. Had constructive notice of it because it had existed for a sufficient length of time prior to the accident such that D had time to discover and correct it
Labor Law 240/241
Impose strict liability and a non delegable duty upon both an owner of the realty and a general contractor of a construction site to provide adequate safety in the method and manner in which activity is performed:
240: intended to prevent gravity related accidents involving activity on buildings and structures (failed to provide adequate safety)
241: Allege that injury was proximately caused by a violation of a specific safety regulation set forth in the NY industrial code
Strict Products Liability
A manufacturer, regular seller, or commercial lesser of a product that’s DEFECTIVE and UNREASONABLY DANGEROUS is strictly liable for physical harm proximately caused by a product’s dangerously defective, DESIGN, INADEQUATE WARNING and MISTAKE in MANUFACTURING PROCESS
3 year SOL (breach of SOG contract = 4 years)
Design Defect
P is injured as a result of a defectively designed product, the product manufacturer or others in the chain of distribution may be held strictly liable for those injuries
At the time it leaves the sellers hands is unreasonably dangerous for its intended use and whose utility does not outweigh the danger inherent in its introduction into the stream of commerce
MUST SHOW: manufacturer could’ve adopted a reasonable alternative design, that would not sacrifice the products functionality or significantly increase its cost
Inadequate Warning
Sellers inadequate warning because of the products potential latent hazards in its foreseeable intended and unintended uses
- The warning must clearly describe the nature and degree of the products specific risks
- The adequacy of the warning is usually a jury question
- An injured plaintiff must show the manufacturer had a duty to warn, the duty was breached, and that the P injury proximately resulted from the failure to warn
** Open and obvious will defeat an inadequate warning claim
