TEst 1 Flashcards
Jurisdiction
STATE OR FED? 1 - Fed issue? Can choose 2 - Diversity of Citizen and $75k WHICH STATE? Plaintiff - No matter Defend - min contact (consent to juris. by contract, prop in state)
Stare Decisis
“To stand by the decision”
Adhering or readopting precedent from SUPERIOR courts
Maintains consistency and stable
Civil vs. Criminal
Parties: Plaintiff Indiv / State
Proof: Prep of Evid / Beyond Reasonable Doubt
Purpose: Compensate / Punish or Sanction
Torts / Crimes
Source: Statutes and Common Law / Statutes
Jury Decision: Fed Unan/Unan
State: Varies from Unan to Maj / Unan
Summary Judgment
“So What” motion, usually during discovery. Undisputed facts, plus any disputed facts in other party’s favor, So what, they’ll still lose.
Arbitration vs. Litigation
Neutral 3rd person renders decision - less formal, fewer rules. MORE SPECIALIZED, PRIVATE, costly, common in commercial contracts and labor mgmt disputes
Intent
Did you intend the actions that then constitute a tort NOT did you intend the tort!
Battery Elements
Intentional infliction of
harmful
OR offensive bodily contact.
Offensive:
“Reasonable person’s sense of dignity.” Objective Test!
Indirect (canes, setting traps) Still a Battery
Assault Elements
-Intentional conduct of one person directed to another that places the other in APPREHENSION of IMMINENT bodily harm or offensive conduct
Apprehension
Plaintiff must have “knowledge of danger” at the TIME
Self Defense
Use when assault (threat of immediate bodily harm)
Match level of force - if you elevate, you’ll batter.
You can you deadly force if you think it matches
Initial aggressor cannot use privilege
Self Defense if you can avoid the attack?
Attacker in house?
If it’s reasonable to safely avoid, generally you must try unless Stand your Ground State.
Typically don’t have to avoid, Castle State Statutes
False Imp / False arrest
Intentionally and unlawfully confining a person against his/her will within fixed boundaries, and
the person is conscious of the confinement or harmed by it. - Person does NOT reasonably believe they are free to leave or Property hostage
Shoplifting Statutes: reasonable grounds, manner, and time
IIED Elements
When a person by extreme and outrageous conduct
intentionally or recklessly causes severe emotional distress to another.
IIED More Details
Extreme and Outrageous
“Beyond the bounds of human decency”
“Intolerable in a civilized community”
Intentional OR RECKLESS:
Reckless: Know there is a risk for ED and fail to take precautions to eliminate risk where precautious were slight.
Severe Emotional Distress: Objective and Subjective
Plaintiff suffered severe Severe ED AND
Reasonable person would have suffered Severe ED
Defamation Elements
- Factual
- Untrue
- Published (tell someone)
Defamation Per Se
so bad that even if 3rd party doesn’t believe it, plaintiff can sue for damages.
1-Crime of Moral Turptude (Dishonesty/deceit)
2 - Could affect bus or prof.
Invasion of Privacy Torts
- Appropriation - use ID to make a profit (adverts)
- Intrusion - SNOOPING, looking into any private matter without the right
- Pub Discl of Private Facts - publicizing (10). can be true, but private and offensive to be shared
- False light - take out of context, photo under misleading headline - publicized
Real Property Torts
Trespass - intentional physical invasion of a person’s prop. You, or thing enters or remains, failure to remove thing that you’re under duty to remove
Nuisance - SUBSTANTIAL (obj test) and UNREASONABLE (balance int test) interference or disturbance w/ another’s real prop - Noise, fumes
Personal Prop torts
Trespass to Pers Prop (Chattels) -1) Intentional disposing or unauth use of
2)Pers prop of another
Conversion - Bad Trespass to Chattels - Take control of prop as if it’s your own to a point you should buy it -Damages are FMV at time of conversion
Trespass Defenses
- Legal Privilege
- Consent (Express and implied, revocable)
- Necessity - Emergency or to protect from threatened injury to person
Negligence
Def. didn’t intend a certain act, but didn’t act with correct care
-Also includes lack of actions where a duty to act exists
Elements of Negligence
-Duty of Care (Law)
-Breach of Duty (Fact): Failure to act as Reasonable Person
-Cause (Fact): Factual - Actual Cause or Proximate - foreseeable cause
Harm - Injury to pers or prop
Duty of Care Breach - RP Modifications
Phys Dis: Yes, modified
Mental Dis: No
Superior Knowledge or Skill: Yes when negligent act pertains to skill. “Reasonable Pro Std” (Pro Malprac)
General Rule of Duty to Act
You do not have a duty to exercise reasonable care when a person or prop is at risk for reasons OTHER than you
Colee’s Basic: Innocent act creates harm…duty to act
Duty to Act - Exceptions
Common carrier with its passengers
A business open to the public with its customers
An innkeeper with its guest
An employer with its employees
A school with its students
A landlord with its tenants
Custodian while minor is under the custody, including parents with heir children.
Good Samaritan Statutes
Exc. to Duty to Act
Generally cannot leave a person in a worse condition, but with this Statute, you’re only liable if grossly negligent or not acting in good faith
Duty as a Possessor of Land
Balance of right to use your land for your own benefit and enjoyment vs DUTY to keep land free of use that creates unreasonable harm to 3rd parties
Trespasser - NO DUTY, refrain from traps
Licensee - Limited license to private prop (houseguests) - DUTY to warn of known issues
Invitee - Open invite to public business DUTY to protect know or should have discovered (Hardee’s)
Duties to Licensee vs Invitee
Warn / Protect
(Should) Know / (Should) Discover
Causation - Factual Cause
But For Test OR
If Colee had not committed the negligent act, would class still have been harmed?
Yes - Not factual cause
No - Factual cause
Can be difficult to determine with multiple causes - sue all parties with causes
Causation – Proximate Cause
FORESEEABILITY - danger zone
Liable if general harm and plaintiff was reasonably foreseeable at time of actq
Eggshell plaintiff
If harm is covered, Defendent must pay for all damages ( or the allotted percent)
Harm
Must have INJURY to person to prop - One exc. is NIED
Defenses to Negligence
Analyze P and D
- Contributory - if P contributed to any of damage (was at all neg.), gets nothing from D
- Comparative, Pure - Straight percentage of fault
- Comparative, Mod. - if P more than 50% at fault, none, but if less, straight %
Negligence - Assumption of risk
Express - Verbal or written assumption of risk, typically a contract - Validity LIMITED
Implied - Not valid, just use contributory neg theories
Product Liability Negligence - Who’s liable?
The person who created the defect, incorrectly test, etc. Have to show fault - difficult.
Product Liability Misrepresentation
P - those who relied on the misrep
Not often used, disclaimers and warnings on products
Product Strict Liability
Where: Cal, most have adopted the theory Differs from neg b/c it doesn't require fault Limits: -D has to be a Merchant -Products, not services MUST SHOW -Defect -Defect had to exist when it left def's cuustodianship
Product Strict Liability - Chain of Dist
Who’s liable? Everyone in CoD that passed defective product on to the next party
Who can sue? Purchaser, lesse, user. ANYONE HARMED BY PRODUCT
Product Strict Liability Defects
- Defect in Manufacture (Assembly and testing)
- Defect in Design (Test - Risk-Utility Analysis and cost of Safer Alternative, Consumer expectation test)
- Failure to Warn - Inherent danger that’s NOT commonly known AND no safer alternative - so WARN
- Defect in Packaging
Defenses to Product Strict Liability
- Generally known danger
- Abnormal misuse of product
- Supervening event (altered)
- Statute of Limitations (starts when injured by product)
- Statute of Repose (start when product sold to buyer)
Corporate Criminal Law
- Fined if charged
- Failure to perform specific duty imposed by law
- Authorized, request, commanded, by supervisors (failure to supervise appropriately, even if did not know(
White collar crime:
A person threatens to expose a corporate executive’s past evidence of infidelity unless paid money.
Extortion/Blackmail
White Collar crime:
A corporate accountant sets up a “dummy corporation,”issues invoices from the dummy corporation to her employer and then issues payment checks from her employer to the dummy corporation.
Embezzlement
White Collar Crime:
I start a restaurant and use the restaurant’s books to hide the money I’m really generating from an illegal gambling ring.
Money Laundering
