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Flashcards in All Deck (333)
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IT - Defenses and Privileges - Types (9)

  1. Consent
  2. Defense of self
  3. Defense of others
  4. Defense of property
  5. Recapture of chattels
  6. Necessity
  7. Under Color of Law
  8. Discipline
  9. Justification - court created "catch-all"


IT - Defenses and Privileges - Necessity - Types (2)+ effects

  1. Public: Gral public interest
    • Absolute privilege - not liable for any injuries or dx (i.e. firefighter breaking door)
  2. Private: for self-interest
    •  has to pay for dx caused


Torts - Remedies - Types (6)

  1. Actual dx
  2. Future dx
  3. Interest award
  4. Attorney Fees
  5. Punitive dx
  6. Duty to mitigate
  7. Injunctive relief


Torts - Remedies - Dx - Prove Requirements - Nominal Dx BAFTD

  • No need of prove for prima facie case - Jury  PRESUMPTION of injury and nominal dx can be awarded
    • battery
    • assault
    • false imprisonment
    • Tresspass of land
    • Defamation (per se)


Negligence - Legal Duty - General Duty Standard / foreseable risk-P

"Reasonable prudent person under similar circumstances"

N = failure to meet standard when there is a foreseable risk for a foreseable P



Negligence - Legal Duty - Agency Vicarious Liability - Independent Contractor Rules

  • Torts by independent contractor usually not generate vicarious liaiblity UNLESS:
    • Ppal with control in the means and objectives of the work
    • Inherently dangerous activities


Negligence - Legal Duty - Land Owner/Possessor - On the Premises - Adult Tresspasser / gral rule, exception

Gral Rule: Tresspass at own peril

  • No duty to warn and not liable for dx from dangerous conditions


  • Knowledge of constant tresspass over a limited area - it creates limited duty to warn or correct
  • No wilfull N or excessive use of force




Negligence - Breach of Duty - "Res Ipsa Loquitur" / what, necessary showing (2), effect

- Even w/out evidence jury instructed to infer Negligence from DX - even w/out knowledge of D's action

  • As a rebuttable presumption of N

- Necessary to show (3)

  1. Injury wouldnt ordinarily happen w/out someone influence
  2. Operative instrumentality was under D's exclusive control
  3. No competing plausible guest

i.e. patient wakes up from surgery with instrument inside


Negligence - Defenses - Types (3)

As related to P's own fault for the tort

  1. Contributory N
  2. Comparative Fault
  3. Assumption of RIsk


Fraud - Elements - Damages / req, amount for recovery

  • Foreseable
  • P entitled to "Benefit of the bargain" - put P in same position as if statement was true
    • or reescind transaction and recovermoney paid


Negligent Mispresentation - D's status and Particular P

  • D: Usually required to be a professional or business related actor that can make such an statement
  • P: must have suffered dx from justifiable reliance and D to be aware of it - ie.e. professional or fiducairy relation


Torts - Strict Products Liaiblity-  Defenses (5) SCAAM

  1.  State of the Art: industry standards + no knowledge of danger at time of production
  2. Comparative Fault -unless is failure to discover hidden/latent defect (no contributory N)
  3. Assumption of risk: i.e. reduction of price
  4. Alteration: as break in chain of causation
  5. Misuse or overuse: unforeseable use or abuse not originally intended - malfunction wouldnt happened under normal usage


Torts - Product Liability - Negligence - Legal Duty / what, by who, to who

  • Duty of reasonable care
  • To: All Ps wihtin danger zone as in stream of commerce
  • From: Everyone in chain of commerce - manufacturer, wholesaler, retailer.
    • HOWEVER: reatiiler usually w/out duty to inspect, and N ffrom manufacturer not usually imputed to retailer


Products Liability - Breach of Warranty - Types of warranties (4)

  1. Express: reasonable and as part of bargain.
  2. Implied of merchantibility: average quality/fit fro ordinary purposes and pass w/out objection in the trade
  3. Implied of Fitness for Particular Purpose: when buyer relie on advice by seller - even if exceeds industry standard
  4. Title and against infringement - GUT
    • ​​G: good title
    • U: Free from undisclosed SI, liens, encumprances, claims
    • T: Seller with full transfer rights and/or no infringement of trademark/copyright


Defamation - Elements FPID (4)

  1. Unprivileged False statements of fact about P
  2. Publicized to 3rd person
  3. With wrongful intention or N in exposure of P to hatred/contempt/ridicule/disgrace
  4. Creates DX to P's reputation and good name


Defamation - Standard of Proof and degree of fault required (3) (public/private)

- Burden: On P to show falsity and degree of care

- Proof: Clear and Convincing E (exception to gral rule of preponderance of E) 

  • No SL - unconstitutional

- Degree of fault to show + Falsity of statement:

  1. Private person/private matter: ordinary N
  2. Public Figure/private matter: Recklesness
  3. Public/Public: Actual Malice or Knowingly falsehood


Defamation - Defenses TEMPR (5)

  1. Truthfulness of statement
  2. Express or implied consent of P with the publication or content of statement
  3. Mere Subjective Opinion: differs from objective statement of truth on the language used - ridicule/abuse usually opinion BUT when reference to underlying facts is deemd statement
  4. Privilege: absolut or qualified
  5. Retraction: some states require publication within X time


Mootness exceptions (2)

1) Capable of repetition but evading review (harm duration shorter than court cycle OR D's voluntary cessation but resumable)

2) Class Actions


Standing reqs (3) ICR + prudential standards

Have "PERSONAL STAKE" on case/result

  1. Injury: personal and sirect 
  2. Causation: cuasal relation action/harm
  3. Redressability: legal remedie avaialble for harm


  • no generalized grievance - no "citizen standing"
  • Victim in "zone of danger"


State Sovereign Immunity (11th Am) exceptions (5)

Gral Rule: No suing of State UNLESS:

1) Local Govts/agencies

2) State officers (personal action under color of law)

3) Express Consent - or after removing to fed court and use of 11th am as defense

4)Federal tax - for propietary activity

5) Congress Abrogation


Congress Abrogation (State Sovereign Immunity (11th Am) exceptions)

By use of Enforcement Clause (14th am section 5)

  • never under commerce power


Cx - Judicial Restrain - "Abstention to hear cases"

Prudential for court when:

  • When question of state law is unsettled or uncertain
  • Claim is still pending of relief from below 
    • no final decision or no exhaustion of tools


CX - Judicial Restrain - Adequate and Independent State Grounds

  • For violation of state statute
  • When decision by state court is (2)
  1. clealry independent from federal grounds
  2. adequate to decide cases


Enumerated Powers of Congress (CAMP/FTC/BD-C) + (TPI)

- Commerce - Admiralty + Maritime Affair - Military + War - Postal - Foreign Affairs - Tax + Spending - Citizenship + Naturalization - Bankruptcy - D.C. laws + - Takings clause - Property Clause - Investigation


Commerce Power - 3 prong (Lopez)

- Channels, Instrumentalities, Substantial Relationship


14th Am Section 5 Enforcement Power of Congress judicial limit

1) Congress cant depart from SupCourt interpretation of C 2) Not create new rights


Federal Executive Powers (8)

  1. Take Care clause - exec of laws or veto - discretion
  2. Political Appointment
  3. Removal of appointed officials
  4. Impeachment (removal of elected officials)
  5. Pardon of federal crimes
  6. Commander in Chief
  7. Foreign Policy
  8. Executive Privilege and Immunity


Inm AND priv (IAP) vs Inm OR priv (IOP)

- IAP: 4th Am - no discrimination by state against citizen/resident of other state .

- IOP: 14th Am - protect against state/fed action on fundamental rights of nationals


Federalism - Inmunities and Privileges (IAP): 4th Am - Scope of protection

Protection against STATE action vs:

1) Fundamental civil state rights

2) Essential economic activities (livelihood)