ube_bar_exam_flashcards_copy_20190711104533
1
Q
Proximate Cause
A
Legal Cause, deals with limitations of liability for unforeseeable/unusual consequences
2
Q
Negligence
A
Breach of duty which causes damages
3
Q
Professionals
A
Required to possess the knowledge or skill of a good standing member of the profession
4
Q
Negligent Infliction of Emotional Distress (NIED)
A
(1) P in zone of danger and (2) must suffer physical symptoms of distress
5
Q
Vicarious Liability - Parent for child
A
not liable for forts of child unless acting as agent of parent
6
Q
Standard of Care - common carriers and innkeepers
A
high degree of care, liable for slight negligence, P must be guest
7
Q
Products Liability - Express warranty
A
an affirmation or promise concerning goods that is not met
8
Q
Bystander Negligent Infliction of Emotional Distress
A
(1) P and injured are closely related (2) P was present at scene of injury and (3) P personally witnessed event
9
Q
Vicarious Liability - Bailor for Bailee
A
generally not liable
10
Q
Duties of Bailor
A
must inform bailee of dangerous defects, if for hire then must notify of defects which bailor is aware
11
Q
Wrongful Prosecution
A
initiating a criminal proceeding against P w/o PC for an improper purpose which causes damages
12
Q
Products Liability - Intent Theory
A
liability imposed of D intended the consequences or know they were substantially certain to occur
13
Q
Negligent Misrepresentation
A
misrepresentation in a business capacity which breaches a professional duty that the P relied on that caused damages
14
Q
Standard of Care - automobile driver to gues
A
ordinary care
15
Q
Nuisance - Injunctive Relief
A
will be rewarded if legal remedy is inadequate or unavailable
16
Q
Scope of Foreseeable Risk
A
proximate cause is limited only to foreseeable risks. not liable for unforeseeable harmful results
17
Q
Actual Cause
A
causation in fact to injury.1. But-For – injury would not have occurred but for the act of X, applies with multiple acts2. Joint Causes – several causes bring injury but only 1 alone is enough to cause injury3. Alternative Causes – 2 simultaneous acts and any 1 alone is enough to cause, burden shifts to D to say it wasn’t him
18
Q
Duties owed by bailee
A
a. Benefit of bailor – low standard of care (person giving chattel)b. Benefit for bailee – high standard of care (person receiving chattel)c. Mutual benefit – ordinary standard of care
19
Q
Comparative Neglience
A
not a complete bar to recovery
20
Q
Wild Animals Strict Liability
A
strict liability
21
Q
Assault
A
intentionally causing reasonable fear of imminent harm or incomplete battery
22
Q
Privilege
A
invasion of land to arrest 3rd party
23
Q
Personal injury Damages
A
compensation for past, present, and prospective damages, economic & noneconomic
24
Q
Negligence Per Se
A
Statutory Standards of Care – imposed by the law if (1) P is within the protected class and (2) the statute was designed to prevent the type of harm suffered by P, creates presumptive breach of duty. Excuse – may be excused if compliance with statute would cause more harm than violation
25
Indemnity
shifting the entire loss among tortfeasors. Available by (1) contract (2) vicarious liability situations (3) strict products liability (4) unknown degree of fault
26
Duty
Owed to all foreseeable Ps to conform to a specific standard of conduct
27
Duty to Licensees
enter for benefit of owner. (1) Duty to warn/make safe and (2) exercise reasonable care in conduct of operations
28
Assumptive of Risk
P may be denied recovery if P knew the risk and proceeded in face of the risk
29
Dramshop Acts
imposes liability based on ordinary negligence principles, also creates cause of action for 3rd person injured by intoxicated vendee
30
Proving a Defect - Scientifically Unknowable Risks
D is not held liable is dangers are not foreseeable at time of marketing
31
Vicarious Liability - Frolic and detour
minor deviation is still under scope of employment, if deviate is substantial then not liable
32
Breach - Custom or Usage
may be used to establish standard but does not control if negligent
33
Proving a Defect - Design Defect
D could have made the product safer w/o impact on price
34
Damages
not presumed and nominal damages are not available
35
Duties to People off Premises
no duty for natural conditions, only artificial if unreasonable dangerous
36
Bystander IIED
P is present during injury, P is closely related to injured person, D should have known that
37
Absolute Privilege
(1) remarks made during judicial processing, (2) legislators during proceedings, (3) federal executive in compelled broadcasts, and (4) between spouses
38
Shoplifting detention
may keep D if there is (1) reasonable belief to theft, (3) reasonable manner and nondeadly force, and (3) for a reasonable period of time for purpose of making an investigation
39
Discipline
parent or teacher may use reasonable force to discipline a child
40
Conversion
signification interference of possession of personal property
41
Last clear Chance Doctrine
person with last clear chance who fails to do so is negligent
42
Duties to Trespassers
no duty to undiscovered trespassers. If discovered duty to (1) warn/make safe, artificial conditions involving risk of death or bodily harm (2) reasonable care for active operations
43
Self Defense of Others
If intended target is allowed to use the D can use
44
Products Liability Theories
5 Theories: (1) Intent (2) Negligence (3) Strict (4) Warranties and (5) Representation
45
Intrusion upon Seclusion & Disclosure
prying into business that is highly offense to a reasonable person
46
Manufacturing Defects
comes from manufacturing more dangerous than if properly made
47
Proving a Defect - Gov. Safety Standards
noncompliance with gov. standard shows product is defective, compliance is not conclusive
48
Defense to Defamation: Truth
Truth
49
Duty to Invitees
land held open to public. Duty to (1) warn/make safe, (2) exercise reasonable care in operation, and (3) reasonable inspection
50
Qualified Privilege
can be lost through abuse (1) if not within scope of privilege or (2) actual malice
51
Standard Of Care for Medical Specialist
National standard of Care, also duty to disclose risk of treatment
52
Punitive Damages
not available unless D’s actions are wanton & willful, reckless or w/malice
53
Intentional Torts
voluntary action by plaintiff
54
Partial comparative neglience
bars P’s recovery if P is more that 50% negligence
55
Battery
intentional offensive touch or strike against another
56
Vicarious Liability - Intentional Torts
generally not liable unless force or friction is generated by nature of the job or furthering business of employer
57
Vicarious Liability - Automobiles
1. Family use doctrine – is liable for household members driving with express or implied permission2. Permissive use – liability imposed on anyone driving with owner’s consent3. Negligent Entrustment – owner liable for own negligence in entrusting car to driver
58
Self Defense
D reasonably believed he or she is about to be attacked and uses force to protect oneself
59
Vicarious Liability
employer is liable for torts under employee if within scope of employment
60
Slander
spoken defamation, special damages required unless about a. Conduct in one’s professionb. STDc. Chastityd. Crime of moral turpitude (common law crimes)
61
Public Nuisance
act that unreasonably interferes with the health, safety, or property rights of the community
62
Trespass to Chattel
interference of possession of personal property
63
Inadequate warnings
manufacturer fails to give correct warnings
64
Domestic Animals
no strict liability unless D has knowledge of propensity, not duty for trespassers but strict liability for injuries inflicted by watchdogs
65
Self Defense of Property
may be used to prevent tort against property or in hot pursuit to recapture, D must request to leave/desist
66
Public Nuisance - Recovery by private party
only allowed if unique damages not suffered to public at large
67
Consent
allowing the tort to occur, may be expressed or implied
68
Duty to Act
no duty to act1. Good Samaritan Statues – exempt medical staff for ordinary but not gross negligence2. Peril – duty to assist if one negligently or innocently placed in peril3. Special Relationship – common carriers, innkeepers, and shopkeepers, reasonable care
69
Intention Infliction of Emotional Distress (IIED)
intentional or reckless extreme or outrageous conduct causing severe emotional distress
70
Actual malice
(1) knowledge that the statement was false or (2) reckless disregard
71
Contribution
D who pays more than his share under joint and several liability now has a claim to other liable parties for excess damages paid
72
Products Liability - Misrepresentation of fact
statement was material concerning quality of goods and seller intended to induce reliance
73
Products Liability - Strict Theory
(1) commercial supplier (2) produced/sold a defective product (3) that caused (4) damages
74
Intentional Interference with Business Relations
(1) contract exists (2) that D knew about (3) and intentionally interfered (4) which caused damages.
75
Duty to mitigate
P must take all reasonable steps to mitigate damages
76
Proving a Defect - Manufacturing Defect
P must show that product failed to be safe under ordinary circumstances
77
Pure Comparative Negligence
bars P’s recovery if negligence was more serious than defendant’s negligence
78
Products Liability - Breach of Warranty Theory
product fails to live up to standards and causes damages
79
Products Liability Negligence Theory
Commercial supplies were negligent in selling a defective product. Can be rebutted by cursory insoection
80
Extreme & Dangerous Activity
must create a foreseeable risk of serious harm when reasonable care is exercised and not a common activity
81
Release
release of 1 tortfeasor does not discharge others unless provided for
82
Collateral Source Rule
damages are not reduced by insurance
83
Proving a Defect - Unavoidably Unsafe Products
D not liable is danger is apparent by nature of product & no way to make safer
84
Design Defect
all products are the same but have dangerous propensities
85
Standard of Care bailment duties
bailee transfers possession of chattel but not title,
86
Nuisance
invasion of private property rights or public rights
87
Private Nuisance
substantial unreasonable interference with one’s use or enjoyment of land
88
Defamation of Public Concern
add (1) falsity of statement and (2) actual malice
89
Property Damages
reasonable cost of repair or fair market value at time of incident
90
Appropriation
using P’s image w/o consent for monetary gain
91
Trespass to Land
physical invasion of real property
92
Res Ipsa Loquitur
occurrence of event establishes a breach if (1) accident would not normally occur absent negligence and (2) negligence is attributed to D
93
Misrepresentation
making a false statement of material fact with for the intent of P to rely on statement which causes damages.
94
Warranty of Merchantability Theory
whether goods are of average quality and fit for ordinary purpose for which goods are used
95
Standard of Negligence
Objective. Reasonably Prudent Person
96
Rescuers
Are always foreseeable Ps
97
Libel
written defamation, general damages presumed
98
Satisfaction
recovery of full payment, only 1 allowed
99
Joint and Several Liability
2 or more negligent acts combined to cause an indivisible injury, each D is jointly and severally liable. If injury is divisible then each D is liable for their portion of injury
100
Vicarious Liability - Independent Contractor
not liable unless engaged in inherently dangerous activity or duty is nondelegable for public policy considerations
101
Necessity
may interfere with real or personal property when necessary to avoid threatened injury and threatened injury or substantially more serious than invasion. Public and private (actor must pay for an injury caused).
102
Contributory Negligence
attributing P’s action which bar recovery
103
Nonrecoverable Damages
cannot get back attorney’s fees or interest
104
False Light
(1) attributing highly offensive characteristics to P and publishing it or (2) publishing private info about P
105
Defamation
(1) defamatory language (2) about P that was (3) publicized to a 3rd person and (4) damaged P’s reputation
106
Defense to Defamation: Consent
complete defense
107
Duty of Lessor and Lesee
Lesee has duty to maintain, Lessor has duty to warn of existing defects
108
Warranty of Fitness for a Particular Purpose
seller knows purpose of what goods are used for and P relied on seller’s skill in selection
109
Standard of Care - Children
standard of a child of like age, education, intelligence, and experience. Subjective
110
Strict Liability
(1) absolute duty to make safe (2) the danger of the activity is the actual and proximate cause of P’s injury (3) damages.
111
Attractive Nuisance Doctrine
(1) owner knows of condition (2) owner knows kids are there (3) condition is likely to cause injury (4) expense of remedying situation is cheaper than risk
112
Supremacy Clause
Fed and State Law Conflict = federal ALWAYS wins
113
10th Amendment Police Power
ONLY states have this. Fed gov has NO police power
114
10th Amendment General Welfare Power
States can make laws for General welfare. Fed gov CANNOT do this
115
Commandeering
fed gov cannot require state to act.
116
Dormant Commerce Clause
state is passing law regulating a business, cannot discriminate against out of state business
117
Dormant Commerce Clause - On its Face Discrimination
SS applies, gov shows compelling interest
118
Incidental Discrimination
mid level scrutiny, must have and important gov interest and must not have an excessive burden on commerce
119
when can states discriminate against out of state business?
1. when Congress lets them. 2. when state acts as a market participant AKA monopolizes industry
120
Full faith and credit
judgment on merits in one state are valid in another state
121
Original Jurisdiction
Congress may not enlarge or restrict the Original Jurisdiction of SCOTUS
122
Appellate Jurisdiction
Congress may enlarge or restrict
123
SCOTUS & Congress
Congress CANNOT tell SCOTUS what to do
124
Lower federal courts & Congress
Congress can create and direct new federal courts
125
What will stop case from going to federal court?
(1) Mootness(2) Ripeness(3) Standing(4) Independent and Adequate State Ground(5) Political Question/Justiciability
126
Federal Immunity
states CANNOT sue fed gov1. States CANNOT tax fed gov, but may tax people who work with fed gov2. States can tax private businesses3. Individuals cannot sue fed gov, except when fed gov consents via statute
127
State Immunity
fed gov and other states may sue individual state1. Fed gov CANNOT tax a state if a gov function2. Fed gov can tax a private business
128
11th Ammendment
citizens of one state cannot sue its own state or another statei. Gov official may be suedii. Municipality may be suediii. If statute allows citizens to sue, may sue
129
Interstate Commerce - Balancing Test
Burden on interstate commerce outweighed by legitimate state interest
130
State Action
Government must be the one doing the discrimination
131
13th Amendment
Allows suit against private individuals for racial discrimination
132
Privileges and Immunities Clause
Discrimination based on RESIDENCY
133
15th Amendment
Racial discrimination on basis of voting
134
Equal Protection
Discrimination based on classes of people
135
Strict scrutiny
Race, alienage, and national origin. Gov has burden to show necessary to achieve COMPELLING state interest
136
Intermediate Scrutiny
gender, and illegitimacy; gov has burden to show it is substantially related to an important gov interest
137
Rational Basis
everyone else; P has burden to show not rationally related to a LEGITIMATE gov interest
138
Procedural Due Process
no person shall be deprived of life, liberty, or property w/o due process of law
139
Procedural Due Process Rights
Notice and Hearing if gov tries to take away jobs, license, benefits, and public education
140
Substantive Due Process
liberty rights/freedoms of EVERYONE
141
Fundamental Right
a. Travel Interstateb. Votec. Privacy Rights – Strict Scrutinyvi. Raise Familyd. Free Speech
142
Privacy Rights - Fundamental
i. Contraceptionii. Abortion – cannot place undue burdeniii. Marriageiv. Procreationv. Education (Private)
143
Abortion
cannot place undue burden
144
Non-Fundamental Rights
Rational Basis, everything that isn't rational basis
145
State Due Process
14th Amendment
146
Federal Due Process
5th Amendment
147
Taking
Gov can take private property for public use as long as just compensation
148
Just Compensation
fair market value
149
Public purpose
private person can take property for public purpose
150
i. Diminished value of property
Also a taking
151
Establishment Clause
separation of church and state
152
Lemon Test
(1) secular purpose (2) cannot advance or inhibit religion (3) shall be no excessive entanglement
153
Free Exercise Clause
(1) Gov must be neutral (2) cannot break law in name of religion (3) look for gov INTENT vs affects practice of religion
154
Speech
Fundamental Right cannot ban, but can regulate
155
Content Based Regulation
gov says NO = strict scrutiny applies
156
Content Neutral Regulation
regulating time, place, and manner, okay if (1) Significant OR IMPORTANT gov interest and (2) leave alternative means of communication
157
Public Forum
significant or important gov interest w/ alt means
158
nonpublic forum
ads, reasonable related to legitimate gov interest
159
Obscenity
– (1) object person applying LOCAL COMMUNITY STANDARDS appeals prurient issues of sex (2) work depicts sex in a patently offensive manner (3) work acts serious literally, artistic, political, or scientific value
160
Clear and Present Danger
not protected, fighting words, harsh actions, to incite violence
161
Commercial Speech
if reasonable fit to a substantial gov interest and narrowly tailored
162
False/Misleading advertisements
not protected
163
Prior Restraint
gag orders, injunctions, before speech is published, unprotected
164
Unfettered Discretion
gov official choosing one form of speech over another
165
Overbreadth and vagueness
statute cannot be overbroad
166
Bill of attainder
fed or state gove passes a law punishing a named individual or group
167
Ex post facto
retroactively making something criminal, unconstitutional
168
Contracts Clause
only when a STATE impairs the right to enter into contract
169
Offer
an outward manifestation to enter into a contract (1) Intent + (2) specific terms
170
Advertisements
not an offer, invitation to offer
171
Termination of Offer
(1) Death(2) Lapse of Time(3) Rejection(4) Counter Offer(5) Revocation
172
Indirect Reovcation
person receiving offer LEARNS another deal was made
173
Option Contract
additional consideration to have option contract to make irrevocable
174
Firm Offer
UCC K (1) between merchant (2) signed writing by merchant1. If no time states 3 months is MAX time valid
175
Unilateral Contract
a promise for an act1. Offer is Irrevocable when performance begins
176
Bilateral Contract
a promise for a promise – words enough for K
177
Acceptance
agree to offer
178
Mirror Image Rule
acceptance has to mirror offer, Common Law
179
Acceptance by Silence
effective if offeror know silence is okay
180
Acceptance by Performance
words or performance to accept
181
Mailbox Rule
Acceptance is effective when sentException – Rejection 1st, then Acceptance, 1st in time wins
182
UCC Acceptance
sale of goods1. Can accept even if there is difference
183
Consideration
bargained for exchange
184
Ways to be tested on Consideration
(1) Illusory Promise(2) Promise to give a gift(3) Past or Moral Consideration(4) Promise to Pay(5) Forbearance for Lawsuit(6) Promissory Estoppel(7) Accord and Satisfaction
185
Illusory Promise
not valid consideration
186
Promise to give a gift
invalid consideration
187
Past or moral consideration
not enforceable
188
Promise to Pay a Debt barred by SoL
Valid
189
Forbearance for Lawsuit
Valid
190
Promissory Estoppel
promise that induces on to rely to their detriment
191
Accord and Satisfaction
occurs when there is a debt. Settlement – cannot come after rest of ita. Part payment even though paid in full, still owe remainingb. Debt, can’t pay, settlement, can’t go after remainingc. Not sure if there is debt, make payment, amount is final
192
Defenses to Enforceability
(1) Age(2) Mental Illness(3) Duress(4) Undue Influence(5) Unconscionability(6) Illegal(7) Mistake(8) Misrepresentation(9) Non-Compete Clause(10) Statute of Frauds
193
Age
Voidable at option of Minor
194
Mental Illness
Void
195
Duress
Wrongful Threat
196
Undue Influence
Unfair Bargaining Position
197
Unconscionability
result of enforcing K is unfair
198
Illegal Contract
not enforceable
199
Unilateral Mistake
1 party is mistaken about term in K, not a defense, UNLESS (1) other party knew it was a mistake, OR (2) clerical error
200
Mutual Mistake
defense, no meeting of the minds. Remedy? Rescission
201
Intentional Misrepresentation
(1) intentionally say with scienter (2) w/intent to induce reliance
202
Negligent Misrepresentation
(1) special relationship (2) omission (3) reliance (4) injury
203
Non-Compete Clauses
MUST be reasonable to be enforceable
204
Statute of Frauds
(1) Marriage(2) Ks over a Year(3) Land(4) Executor Contracts(5) Guarantor Contracts(6) Sale of Good over $500
205
Land Contracts - Part Performance Exception
pay or take possession or make improvements on the land, does not be in writing if part performance
206
Guarantor/Surety Contracts
promising to pay for debt of another1. Exception: if purpose is to benefit me, not other person, then no need for writing
207
Sale of Goods over $500
Exception: part-performance also applies
208
Merchant Confirmation
if one merchant sends another a (1) written confirmation signed by sender (2) includes the quantity (3) no objection w/10 days of receipt (4) acts as a writing for SoF
209
What is included in a Legal writing?
1. Parties Subject Matter2. Material Terms3. Signed by Party to be Charged
210
Parol Evidence and Interpretation
Applies to things prior to or at the time entered into the contract
211
Final/Complete Integration Contract
Parol Evidence is NOT admissible
212
Merger Clause
final agreement between parties
213
Ambiguous term
parol evidence allowed to clear up an ambiguity
214
Partial Integration
parol evidence is admission, anything that supplements original terms with contract that are CONSISTENTi. Anything that contradicts or materially alters contract is NOT admissible
215
Always Admissible Parol Evidence
i. Fraudii. Mistakeiii. Duressiv. Condition Precedentv. Course of Dealingvi. Trade Custom
216
Risk of Loss - NO Carrier
if seller is merchant, risk is on seller until buyer takes possession1. If seller is not merchant, risk of loss is on seller until seller makes item available to buyer
217
Shipment Contract
default rule, risk of loss shifts to buyer when goods are delivered to carrier
218
Destination Contract
risk of loss shifts to buyer when goods are delivered to destination
219
F.O.B. Seller
shipment contract, risk until good delivered
220
F.O.B. “anything else”
destination contract, risk on buyer
221
Requirements Contract
desire to buy all the widgets
222
Good faith
as long as good faith okay
223
Modification - Common Law
needs new consideration
224
Modification - UCC
good faith, no new consideration
225
Oral or Written Consideration - Common Law
Both are valid
226
UCC Oral or Written Modification
clause prohibiting oral modification in K valid
227
Mutual Modification
as long as terms are fair and reasonable
228
Condition Precedent
event before contract
229
Condition Concurrent
event during contract
230
Condition Subsequent
event after contract
231
Waiver of condition
saying forget about condition, you may perform regularly
232
Bad Faith
if one party acts in bad faith then that party still has to perform
233
Avoiding Forfeiture
condition excused if big loss
234
Non-conforming goods
(1) may reject, (2) may accept, (3) may reject part and accept part
235
Installment contract & non-conforming goods
if one shipment is nonconforming then not total breach of contract if it affects the installment and it cannot be cured1. If the 1 nonconforming shipment will ruin entire value of contract then contract is breached
236
Impracticability
unforeseen event makes performance too difficult or expensive
237
Impossibility
nobody can perform, i. Exception- (1) temporary impossibility or (2) preparation of impossibility
238
Frustrations of Purpose
reason you entered contract is no longer present
239
Anticipatory Repudiation
before contract performance, unequivocal refusal to perform = total breach
240
Demand Assurances
when doubtful about performance, need to respond to demand in a reasonable amount of time. In UCC, demand must be in writing and within 30 days
241
Expectation Damages
default, value of contract if performed; (1) foreseeable and (2) reasonably certainty1. Contract price (–) minus what you already would have received (+) plus any costs
242
Reliance Damages
(1) unreimbursed costs prior to contract (2) cannot get expectation damages
243
Restitution Damages
market value of the services, option of the non-breach party instead of expectation damages. (1) getting back value already given and (2) contract partially performed
244
Consequential Damages
because of breach foreseeable costs
245
Liquidated Damages
determined at time of contract enforceable if (1) reasonable and (2) not a penalty
246
Quantum Meruit
BREACH PARTY is seeking damages, reasonable value of services, even breaching can recover value of work done minus whatever damages
247
Seller Damages
contract price if goods delivered and accepteda. Some or none delivered and not resold – contract price minus market priceb. None delivered and resold – contract price minus resell pricec. Incidental Damages – seller can always getd. Lost Volume Profits – measure by profit seller would have made plus any costs minus payment of resale
248
Buyer Damages
depends if buy replaceda. If replaced, Contract price minus new goodsb. If not, contract price minus the market price of goods at the time you learn of the breach
249
Equitable Damages
when remedy at law is inadequate
250
Specific Performance
subject matter is unique, land is always unique
251
Injunction
to prevent irreparable harm
252
Recession
no meeting of the minds, if K never happeneda. Mistakeb. Misrepresentationc. Duressd. Lack of Capacity
253
Filing of a NOTICE OF APPEAL
30 days of judgement, must make obj. during trial or else waived
254
Harmless Error Rule
if errors do not make a difference then no appeal
255
Final Judgement Rule
cannot have an appeal unless final Judgement was made, all issued were finally determined by the court
256
Collateral Order Exception
issue may be decided ifa. It resolves the issue that is completely separate from the merits of the actionb. Any delay would cause too much damage
257
Injunctions
can be appeal the granted or denying an injunction before all issues decided
258
Standard of Review - Issue of Fact
Clearly erroneous standard
259
Standard of Review - Issue of Law
De Novo Review
260
Standard of Review - Relevancy, Prejudice, Court Orders
abuse of discretion
261
Federal Court Diversity
state substantive, federal procedural
262
Choice of Laws - Statute of Limitations
State substantive
263
Choice of Law - Venue Issue
federal procedure applies
264
Choice of Law - 2 state conflicting laws
Apply law where federal court sits
265
Erroneous Jury Verdicts
(1) to approve an appropriate judgment according to the answers; notwithstanding the verdict; (2) direct the jury to further consider its answers and verdict; or (3) order a new trial.
266
Default Judgement
one party fails to plead
267
Voluntary Dismissal
P voluntary dismisses his or her own actioni. Once w/o prejudiceii. Before D answers/Summary Judgementiii. After D answers, need court approval
268
Involuntary Dismissal
court will dismiss by orderi. Failure to prosecuteii. Failure to obey a court orderiii. Lack of venue/jurisdiction
269
Prejudice exceptions of involuntary dismissal
a. Lack of Jurisdictionb. Venuec. Insufficient service of processd. Failure to join a party
270
Grounds to Dismiss a Judge
(1) Appearance of Bias (2) Actual Bias
271
Appearance of Bias
parties MAY waive
272
Actual Judicial Bias
Parties MAY NOT waive1. Judge has personal knowledge – recused2. Judge was a lawyer – recused3. Judge or family has financial issues - recused4. Expressed opinion on merits – recused
273
Red Judicata/Claim Preclusion
can claim or cause of action be relitigated1. Generally no if same parties, same claim, decided on the MERITS, based on same transaction
274
Claim Preclusion - Merger Doctrine
P wins, claim is merged into the judgment and cannot sue same cause of action againi. If P loses = P is Barred from bringing it up again, cannot split via damages
275
Collateral Estoppel/Issue Preclusion
(1) must have SAME issues, (2) actually litigated and DECIDED, (3) necessary to judgment
276
Collateral Estoppel - Not Litigated Issues
resolved in settlement or Default Judgement
277
Collateral Estoppel - Mutuality in Issue Preclusion
original parties no longer applies, now look to privity
278
Collateral Estoppel - Defense Use of Collateral Estoppel
allowed generally, nonparty in 1st case is not D in 2nd case
279
Collateral Estoppel - Offense Use of Collateral Estoppel
not allowed generally
280
Full Faith and Credit
one state must give full legal effect in another state
281
12b Motion to Dismiss SMJ
pre-answer motion - lack of SMJ – can be raised ANYTIME,
282
Waived Motion to Dismiss
Pre-answer motion - waived if not in Motion or Answer1. Personal Jurisdiction2. Improper Venue3. Insufficient Process
283
Motion to Dismiss for Failure to Join a PArty
pre-answer motion - raise BEFORE or AT TRIAL
284
12b6 Motion to Dismiss Based on Failure to State Claim Upon Relief
even if stacks true, no recovery, dismissed with prejudice, raised BEFORE or AT TRIAL
285
Motion to Strike
pre-answer motion - made w/21 days of service, strike Redundant, Immaterial info
286
Motion for More Definitive Statement
pre-answer motion, pleading is vague or ambiguous
287
Summary Judgement
no genuine dispute of material fact, can be made up to 30 days after discovery, if denied NOT appealable
288
Partial Summary Judgment
on a particular issue
289
Judgement as a Matter of Law/Directed Verdict
D makes motion after D=P’s case or either party after evidence
290
Judgement as a Matter of Law/Directed Verdict - Standard
whether a reasonable jury would have a legally sufficient evidence to find for the party
291
Renewed Judgement as a Matter of Law
(1) make 1st motion so you can bring the RENEWED motion (2) 28 days after verdict (3) same standard as JMOL
292
Motion for relief of judgement
clerical error or mistake, judge may correct mistake
293
Motion for new trial
1. granted if error would change result of trial2. judge acted erroneous3. jury, party, witness, or lawyer misconduct 4. verdict is against the clear weight of the evidence
294
Remitter
too much money, new trial ordered unless party accepts reduction of damages, no appeal
295
Additur
to add more money, NOT allowed in federal court
296
Motion for partially new trial
OK
297
Motion for new trial when new info
(1) if evidence discovered after trial, (2) couldn’t find during or before trial but tried, (3) material
298
7th Amendment
right to a jury trial
299
Amount of Jurors
Must have at least 6 not more than 12 jurors
300
Verdict
must be unanimous
301
Demand for Jury trial
must be made within 14 days of last pleading
302
Equitable Relief
no right to a jury trial
303
Voire Dire
juror can be dismissed for cause
304
For Cause Dismissal
(1) actual bias (2) possible bias (3) felony conviction (4) no limit to amount of strikes
305
Peemptory Challenge
3 strikes
306
Jury Instructions
must object before jury retires or will be lost on appealh. Jury make take anything into evidence to the jury room, no science experiments
307
Grounds for new Trial
(1) outside information brought into jury room (2) juror lies in questioning in voir dire
308
Complaint
filing of complaint with the court commences statute of limitations1. Service – w/90 days2. Elements: (1) Short and plain statement with grounds of jurisdiction (2) Statement of the claim (3) Demand for Relief3. Demand for Special Relief – (1) Fraud (2) Special Damages, must be pled with specificity
309
Answer
signed by Lawyer, whatever is not denied is admitted, 21 days
310
Affirmative Defenses
(1) contributory negligence (2) SoF, (3) SoL (4) illegality, (5) duress
311
Amendment of Complaint
a right as long as within 21 days after service of original pleading1. Leave of Court Amendment – allowed when justice so requires
312
Relation Back Doctrine
related back if claim or defense arose out of the same conduct, transaction or occurrence of original pleading
313
Relation Back Regardings Parties
(1) arose from same T/O (2) w/90 days of filing complaint (3) new party knew or should have been brought but for mistake of ID
314
Rule 11
when a lawyer signs a pleading, the lawyer says basis for claim;i. Ensures legal arguments are warranted by existing lawii. Allegations have evidentiary supportiii. Not presented for improper purpose
315
Compulsory Counterclaim
(1) same T/O (2) Assert it or lose it
316
Permissive Counterclaim
(1) D may bring claim not T/O (2) needs independent JD
317
Permissive Joinder
multiple Ps can join together if claim (1) same T/O and (2) question of law or fact is in common
318
Compulsory Joinder
party must be joined if it is unfair to litigate w/o them
319
Compulsory Joinder - Necessary Party
impaired interest by not includinga. If joining would destroy diversity, then case can still go forward
320
Compulsory Joinder - Indispensable Party
won’t join will prejudicea. If joining would destroy diversity, case will be dismissed
321
Adding Claims
may add as many claims as long as new claims have SMJ
322
Class Actions
(1) size (2) common question of law or fact (3) typical of class (4) fair representation
323
B1 Class Action
impairment of interests of class members, members may not opt out, notice is discretion of court
324
B2 Class Action
injunctive relief is sought, members may not opt out, notice is discretion of court
325
B3 Class Action
common question of all class members, may opt out, all members must give notice
326
Diversity Class Action
(1) citizenship of representative is the one that counts, (2) ok as long as 1 named member has claim over $75,000, (3) if entire claim is over $5 million then okay if not one person have over $75
327
Intervention
someone not in suit wants to come in
328
Intervention as of Right
(1) interest in property of litigation (2) would impair protection of interest if not involved (3) NO court permission needed
329
Permissive Intervention
(1) claim/defense is common question of law or fact to the suit (2) court permission is required
330
Interpleader
1 party owes money to 2 or more people, make then fight over damages
331
Statutory Interpleader
(1) nationwide service of process is allowed (2) as long as any two claims are diverse (3) min of $500 claim (3) person deposits money/property in Court or Bond
332
Rule Interpleader
(1) complete diversity (2) no nationwide service (3) over $75,000 (4) NOT required to deposit money/property
333
3rd Party Interpleader
D who believes 3P is liable for part or all of claim, D can implead them into claim AKA contribution/indemnity
334
Cross Claims
one party sues co-party (1) same T/O (2) actual damages
335
What is discoverable?
(1) not privileges (2) relevant (3) proportional to Needs of the Case
336
Work Product
Immune from discovery, anything prepared by counsel for trial, also people working for lawyer
337
When is work product discoverable?
(1) Substantial need (2) cannot obtain w/o UNDUE HARDSHIP
338
Experts for trial
must give a list IDing expert, expert must provide a report with data and compensation
339
Experts not testifying
discoverable only in EXCEPTIONAL CIRCUMSTANCES when impractical
340
Deposition
(1) party of non-party (2) written or oral (3) limit 10 depos, cannot depo same person more than once w/o court permission
341
Deposition of Non-party
subpoena
342
Deposition of Party
NO subpoena, can get sanctions
343
Interrogatory
(1) only to a PARTY (2) written/answered in writing (3) limit – 25
344
Request for Admission
written request, conclusively established
345
Request to Produce
documents in the other side’s possession, control custody
346
Physical/Mental Exam
if condition is subject of controversy (10 court order (2) good cause
347
Objection to Request
Info not relevant
348
Protective Order to Stop Discovery
for embarrassment, harassment, undue burdenxv. Motion to Compel – one party not complying
349
Conference of Parties
(1) court MUST have conference (2) parties MUST submit Discovery plan
350
Scheduling Conference
(1) court MUST have conference (2) issue order w/ 90 days of filing (3) CANNOT be modified unless GOOD CAUSE
351
Final Pre-trial Conference
(1) MAY hold it (2) if exists, court MUST issue Pre-trial orders (2) ONLY modified to prevent MANIFEST INJUSTICE
352
Temporary Restraining Order
(1) no notice (2) IMMEDIATE IRREPARABLE HARM (3) expires in no more than 14 days
353
Preliminary Injunction
(1) notice and hearing (2) irreparable injury (3) more than 14 days
354
Subject Matter Jurisdiction
(1) diversity or (2) federal question
355
Diversity
(1) parties are citizens of different states AND (2) over $75,000
356
Domicile
permanent home and intent to stay there
357
Corporations
(1)domicile in principal place of business and (2) state where incorporated
358
Well-pleaded complaint rule
federal law must be obvious in complaint, federal defense =/= good enough for federal question
359
Supplemental Jurisdiction/SJ
normally won’t be fed court, but court let you add claims and parties MUST arise from common nucleus of operative fact
360
If FQ SJ
common nucleus of facts
361
If Diversity SJ
common nucleus of facts (1) compulsory counterclaim (2) joinder of parties in compulsory counterclaim (3) cross claims (4) impleader of 3rd party Ds
362
IF D trying to add SJ claim/party
allowed
363
If P trying to add SJ claim/party
not allowed
364
SJ not allowed
(1) original P vs. 3rd party D (2) compulsory joinder (3) joinder of Ds (4) intervention, P’s trying to intervene
365
In personam Jurisdiction
domicile, living, present
366
Long Arm Statute
law allowing nonresident to be brought into state to be sued
367
Minimum Contacts
enough contacts so D could REASONABLY anticipate to be brought into court w/p offending traditional notions of fair play and substantial justice
368
Service of Process
(1) limited to state where court sits or (2) long arm statute
369
100 miles budge system
okay if w/100 miles of fed courthouse where suit is sitting for additional parties for current case, 3PD and indispensable parties
370
Who can serve process?
(1) anyone not a party (2) over 18 years old
371
Indirect service
yes can leave with (1) over 18 (2) likely to give to D
372
In-Rem jurisdiction
getting PJ over property itself
373
Quasi-in Rem Jurisdiction
trying to get JD to satisfy judgement against individual
374
Removal
proper if could have been brought in fed court
375
Who may remove?
ONLY DEFENDANT can remove, if multiple D All must join to remove
376
Timing of Removal
30 days of service of complaint
377
Diversity Removal
(1) no removal is allowed if D is a citizen of forum state (2) not allowed over 1 year after beginning of action
378
Venue
(1) any D resides, and all D reside in that state (2) substantial part of events took place (3) D is reachable – has PJ
379
Corporation Venue
any district where principal place of business or state of incorporation
380
Forum Non Convensce
yes can be transferred if venue in 1st place but law of original state applies
381
fee simple absolute
own property, 100%, forever
382
life estate
conveyance for life, has rights while alive, but NO WASTE
383
grantor
reversion
384
life tenant responsibilities
MUST pay interest and taxes
385
remainder
comes after life estate
386
vested remainder
you just get it, automatically get it, nothing stops you
387
Contingent Remainder
something must happen to get it
388
Vested Remainder Subject to Open (partial divestment
classes of people
389
Vested Remainder Subject to Total Divestment
then to but something can happen that will wipe out interest
390
Fee Simple Determination
SO LONG AS// AS LONG AS
391
Possibility of Reverter
grantor gets it back automatically
392
Fee Simple Subject to Condition Subsequent
“BUT IF” condition
393
Right of Re-entry
Grantor must do something to re-enter
394
Rule Against Perpetuities
interest must vest within 21 years in the life in being
395
Questions to ask if RAPs?
Could you get it within 21 years? Maybe? Not RAP. Not sure, NO. DON’T DO THE MATH
396
Executory Interest
violated RAPS, If property goes to someone else not grantor, violates RAPS, VOID interest
397
Joint Tenancy
right of survivorship
398
Conveying interest in Joint Tenancy
severs joint-tenancy into tenancy in Common, present conveyance
399
Joint-Tenancy vs Will
Right of survivorship wins over the will
400
One Joint Tenant Has a Debt
dies with persona, debt not with other Joint-Tenant
401
Tenancy in Common
no right of survivorship
402
Tenancy by the Entirety
joint-tenancy between married people, right of survivorship, ones spouse may not convey w/o other spouses’ consent. Severed by DIVORCE
403
Right of a Tenant
i. Each tenant has right to whole property unless ouster
404
Ouster
someone got kicked off
405
Partition
gets land divided, awarded unless it’s not practical
406
Contribution
Co-tenant who is paying the mortgage and the taxes may seek contribution from co-tenant, but if co-tenant is in sole possession, may only get extent that it exceeds the market value of the property
407
Rent
out of possession co-tenant may share in the rent and profits from property but cannot demand rent from tenant who is living on the land unless they are damaging the property
408
Repairs
co-tenant may not seek contribution for repairs on property, however if repairs necessary and requested but refused, co-tenant can get repairs
409
Improvements
one co-tenant may not seek contribution unless improvements increase rent or profits
410
Periodic Tenancy
has a start date, then period of time, generally renews unless there is a set end date, notice is required to terminate
411
Month to month Tenancy
1 month notice
412
Year to year Tenancy
6 months notice to vacate
413
Tenancy for Years
start date and a particular end date, no notice required.
414
Tenancy at will
no specific term until either party terminates, tenant needs reasonable amount of time
415
Tenancy at Sufferance
holdover tenant, parties will be bound by original terms of lease, tenancy ends with tenant leaves or gets kicked out
416
Landlord Duties
1. Give actual possession on the 1st day of lease term, if not, lease is done2. Basic Repairs3. Warranty of Habitability4. Warranty of Quiet Enjoyment
417
Warranty of Habitability
if breach, tenant can refuse to pay rent, violation of codes, so oppressive that person cannot live on land
418
Warranty of Quiet Enjoyment
stopping other nuisance to disturb you so you can live on land, if not tenant can refuse to pay rent
419
Tenant Duties
1. Pay rent, unless Landlord breaches warranties or property is destroyed2. No waste does not allow property to be destroyed, must give notice3. Ordinary repairs -make themselves
420
Assignment
new tenant primarily liable for rent, original tenant secondarily liable unless ovation
421
Sublease
original tenant stays liable to original landlord
422
Fair Housing Act
prevents discrimination in sale or rental of property in a home based on race, color, religion, sex, disability, family status, or being pregnant
423
Fixture
property that if removed would cause damage
424
Conflict of Laws in states
law of state where the property is located WINS, unless deed says otherwise
425
Easement
allowing not or not allowing someone on property
426
Express Easement
in writing
427
Easement By Prescription
looks like adverse possession, open, notorious, hostile, no need for exclusivity
428
Easement by implication
applied by prior use, land divided into 2
429
Easement by necessity
no other way out
430
Ways to end easement
1. Agreement 2. Time expired 3. Merger 4. Abandonment
431
Merger of Easement
one owner buys and now owns both pieces of land
432
Abandonment
(1) nonuse and (2) show intent not to return
433
Covenant
grants right to do, or restricts right. Contract. Promise for promise. Governed by contract principals. ALWAYS A WRITING
434
Covenant Creation
always created by a writing
435
How do you know covenant runs with the land?
(1) writing (2) intent between parties (3) notice (4) privity (5) touch and concern the land
436
When will covenant not touch and concern land?
(1) Personal characteristic of individual, (2) a lease – it’s a contract
437
Equitable Servitude
looks like a restrictive covenant, this is actually an injunction
438
Implied reciprocal servitude
(other equitable servitude)– (1) common scheme + (2) notice , restrictions to all (gated community). ii. Restrictions keep on going as long as profile of community continues
439
License
freely revocable by grantori. Exception – if coupled with interest then not revocable
440
Profit
take stuff from the ground
441
Taking
gov can take private property for public use and just compensation
442
Water Rights Reasonable Use
water can be used reasonably
443
Water Rights Crops
except in tenancy, runs with land
444
Excavation - undeveloped property
strict liability
445
Excavation - developed property
strict if damages would have happened anyway. if you let them then negligence standard
446
Nuisance
interference with reasonable person’s use of land and property
447
Public Nuisance
private plaintiff must prove special damages (otherwise gov makes it)
448
Common Interest Owned Community
lot owners must pay dues
449
Property Owners Association
owners required to belong and pay the dues
450
Condominium Association
created by statute, file a declaration, and plat (describing physical boundaries and common areas)
451
Condo Owners
own inside of unit, pay taxes, insurance, mortgage their own unit, own common areas as tenants in common with other owners
452
Condo Association Rules
reasonably related to further legitimate purpose of Association
453
Real Estate Contract
(1) intent to sell (2) basic contract terms (3) must be in writing (SoF)
454
Equitable Conversion
(1) equitable title + (2) risk of loss on buyer1. day of signing, transfer of equitable interest, seller still has legal title. RISK OF LOSS shifts to buyer
455
Marketable Title
implied in EVERY real estate contract, free of encumbrances and liens
456
Real Estate Contract Merger
contents of real estate contract merge into the deed, after merger must sue on deed
457
Real Estate Contract Duty to Disclose
seller has duty to disclose defects that cannot be seen by buyer
458
Purchase Money Mortgage
the loan used to buy the property, land is collaterali. Always gets paid back 1st
459
Redemption
trying to get property back after foreclosure,
460
Equitable Redemption
(1) period of time from notice until foreclosure sale (2) NEVER WAIVED
461
Statutory Redemption
after foreclosure sale, not automatically gotten.
462
Lien Theory
resident has equitable interest, bank owns title, cannot sell
463
Joint-Tenancy in Lien Thoery
mortgage does NOT sever tenancy
464
Title Theory
resident has equitable interest, bank owns title, cannot sell
465
Joint-Tenancy in Title Theory
mortgage severs the joint tenancy into a tenancy in common
466
Subject to Mortgage
new buyer NOT liable for payments, old buyer owes no money but bank may still foreclose on old buyer
467
Assumption of Mortgage
new buyer takes over payment, old buyer as secondary still liable unless novation
468
Deed in Lieu of Foreclosure
giving deed to bank immediately instead of waiting for foreclosure
469
Effect on Foreclosure sale
any junior mortgage will be wiped out as long as (1) notice given and (2) junior interests joined the suit
470
Deficiency Sale
amount money not recovered from sale may be recovered from original buyer, amount recovered is what was owed after foreclosure sale
471
Installment Contract
title only transfers after the entire contract balance is paid, if buyer defaults, seller may retake unless foreclosure proceeding rules that supersedes. Seller does not have to give marketable title until final payment
472
Deed
legal title
473
Warranty Deeds
6 warranties, 3 present, 3 future
474
3 present warranties
breached on day of closing1. Right to Seisin – own2. Right to Convey3. Right - Covenant against encumbrances
475
3 future warranties
will last forever1. Quiet enjoyment – no problem2. Warranty – defend3. Further assurances – fix defects
476
General Warranty Deed
title good since forever
477
Special Warranty Deed
all good since current owner had title
478
Quitclaim Deed
no promises
479
Valid Deed Requirements
i. Writing ii. Delivery iii. Acceptance iv. Merger v. Legal Description of propertyvi. Identifiable grantees
480
Deed Delivery
from seller to buyer (1) intent, give up all control
481
Deed Acceptance
is presumed, unless facts say otherwise
482
Deed Merger
contract merges with deed
483
Ademption
land left in will but during life, sold to someone else. Get nothing at death
484
Lapse
if left something in will but you die before me, the your part goes back to residuary estate
485
Adverse Possession
if elements met you get title, squatter (1) continuous for statutory period of time(2) actual, open, and notorious (3) hostile (4) exclusive.
486
Tacking
when squatter intentionally gives right to someone else
487
Executing a Deed - signatures
agent for the grantor may sign a deed on behalf of a grantor, but the authority granting the ability to do it has to be in writing
488
Notice Statute
last BFP wins "SUBSEQUENT PURCHASER FOR VALUE WITH NO NOTICE"
489
BFP
(1) pays value (2) no notice // bank/mortgagee is a BFP
490
Not a BFP
(1) gift (2) will (3) adverse possession (4) creditor
491
Race Statute
1st to record wins
492
Race-Notce Statutes
1st BFP who recorded
493
Shelter Rule
someone who would normally lose will win because the previous grantor will prevail, sheltered by the BFP
494
Wild Deed
out of the chain of title, no double dealing.
495
After-Acquired Title
(1) when grantor intends to convey but doesn’t have full title, (2) title automatically goes to end grantee when title is fixed.
496
Dedication of land for public use
(i) dedication, and (ii) acceptance
497
Offer of dedication
i) a written or oral statement, (ii) the submission of a map or plat showing the dedication, or (iii) the opening of the land to public use
498
Offer of acceptance
(i) a formal resolution, (ii) the approval of the map or plat, or (iii) the actual assumption of maintenance or construction of improvements.
499
Negligence Per Se
Negligence Per Se
500
Intentional Infliction of Emotional Distress
intentional or reckless (2) extreme or outrageous conduct (3) causing severe emotional distress
