Bar Exam: Big Points Flashcards
Torts: What is the age cutoff for tort liability?
Michigan: anyone under the age of 7 can’t be for any tort. MBE: Age doesn’t matter as to intentional torts, but it’s highly unlikely that a court would view a child below the age of 4 as having the capacity to be negligent.
Torts: How is Michigan different from the MBE as to interplay between defamation and damages?
Under the MBE, damages are presumed for libel and “slander per se.” Slander per se includes only statements about (1) Π’s business/profession, (2) a crime of moral turpitude, (3) imputing unchastity to a woman, or (4) that Π suffers a loathsome disease. If it is slander not per se, the Π must prove economic harm. In Michigan, slander and libel are treated the same. To have damages presumed for libel or slander, the defamation must involve one of the four mentioned topics. Further, ALL Π’s must prove fault (simple negligence or malice), and if your mistake is reasonable, NO COA!
Torts: In a medical malpractice claim, what are the important procedural considerations?
Procedurally, a Π must give Dr. a notice of intent to sue 6-months before bringing the claim. If the ∆ informs upon receipt of notice that ∆ is not settling, Π can file action right away; Π can’t file if ∆ is “thinking about it.” When the Π files her complaint, Π must file an “affidavit of merit,” a sworn statement by a doctor in the same specialty indicating the claim is viable/plausible. When the Dr. files her answer, Dr. must file an “affidavit of meritorious defense,” a sworn statement by a doctor in the same specialty indicating that his defense is viable/plausible.
Torts: How is Michigan different as to premises liability?
In Michigan, to be an invitee, the entrant must have a commercial purpose only (i.e., churchgoer is excluded, such is a licensee situation. If an entrant requests permission to come upon the land recreationally, entrant is treated as a discovered trespasser. (This protects landowner. Rationale: encourage opening of land to others.)
Torts: How does Michigan apply its “open and obvious” standard to premises liability?
Generally, you can’t recover for danger that is open and obvious. Michigan exception: If a condition is open and obvious, but effectively unavoidable, you can still recover. *Note: This is a narrowly construed exception. Hypo: There was ice outside Π’s gym. Π slipped and sued. This was the only gym door implicating the “effectively unavoidable” exception. MI Sup. Ct. held Π could have effectively avoided the danger by not going to the gym that day. No recovery.
Torts: How is Michigan different as to the doctrine of negligence per se?
In Michigan, effectively borrowing from a criminal statute to impute civil negligence on the ∆ creates a rebuttable presumption of negligence unlike the MBE, which finds conclusive presumption of negligence.
Torts: Does Michigan have a Good Samaritan Statute, and if so, how is it applied?
Michigan has a Good Samaritan statute, but it’s narrow. It only applies to ∆’s who are healthcare providers who act in life threatening situations, and it immunizes against ordinary negligence, but not greater negligence.
Torts: In a bystander case for negligent IIED, what is the Michigan standard for the element of contemporaneous perception?
Scenario: ∆ injures X severly or killing them, & Π is sad b/c X got hurt. MBE Elements are: (1) Π & x are close family members, (2) Π sees event contemporaneously as it happens, and (3) ∆ knew of Π and X’s relationship. Michigan has a relaxed standard as to element (2) in that Π must suffer emotional shock “fairly contemporaneously” with the physical injury to X.
Torts: What is the duty of care a formal athletic player owes to another?
In Michigan, such a player owes no duty of reasonable care, but rather only a duty to refrain from reckless conduct. Rationale: RPP wouldn’t be a high functioning athlete, so we need a higher standard.
Torts: In a medical malpractice claim, what are the important damages considerations?
The Michigan Legislature has put caps on noneconomic damages.
Torts: In a products liability claim, what are the important procedural considerations?
The Michigan Legislature has put caps on noneconomic damages.
Torts: What is the Michigan scheme for comparative negligence?
Michigan divides this scheme between economic and noneconomic damages. For economic damages, a pure comparative recovery is employed; for noneconomic damages, a “greater fault bar” exists where if the Π is greater than 50% at-fault, Π recovers no noneconomic damages. *Note: Michigan has a special rule as to intoxication: if a Π is greater than 50% at-fault & fault is due to intoxication, Π gets zero recovery on all components of recovery.
Torts: In a products liability case for design defect, Michigan case law has developed certain presumptions based on compliance/noncompliance w/govt. standards. What are they?
If a product conforms with a govt. standard, there is a presumption that the product was not defective. If a product does not conform to a govt. standard there NO PRESUMPTION that the product was defective. This is based on Michigan case law, and is a minority approach among the states.
Torts: Does an owner of a vehicle have vicarious liability for the driver?
MBE: Generally no unless driver was doing an errand for owner (Rationale: principal-agent) Michigan: MI has the Owner’s Liability Statute. If there was permission or knowledge. Family presumption of permission.
Torts: What is the status of joint and several liability for multiple ∆’s in Michigan?
The doctrine has been abolished, and each ∆ is only liable for her percentage of fault. Exception: Joint liability exists in med mal cases where the Π has no fault at all (e.g., Π undergoes surgery and comes out paralyzed. Π sues the surgeon and anesthesiologist and wins. Exception applies.)
Contracts/Sales: In a sale of goods transaction, what is the required value of the goods to trigger UCC Art. 2?
Michigan requires a value of $1000 unlike the MBE amount: $500.
Contracts/Sales: In Michigan, can promissory estoppel defeat a valid statute of frauds defense?
MBE: The modern trend is that a court may enforce a promise despite a valid SOF ∆ under the promissory estoppel doctrine to avoid injustice. Michigan follows this trend: an SOF ∆ does not bar a promissory estoppel argument. Exception: PE can’t work against a financial institution. Rationale: strong bank lobby
Contracts/Sales: Does consideration actually have to be given to create a valid contract under Michigan law?
Majority: have to actually give the consideration. Minority: merely saying it was given will be sufficient b/c a party could demand performance. Michigan follows a third approach: there is a rebuttable presumption that consideration was given if you say that it was given.
Contracts/Sales: The performance of a preexisting legal duty does not constitute consideration. How can a party avoid this result under Michigan law?
If you have a written modification that is signed, it’s enforceable even in the absence of consideration as against the party that signed.
Constitutional Law: What protections does Michigan’s equal protection provision provide, and how is it analyzed?
Michigan’s equal protection provision are provide similar protections like the federal equal protection clause, and it’s applied similarly to the federal EPC.
Criminal Law/Procedure: What is a “premises warrant,” and what does Michigan include in it?
Defined—warrant authorizing a search of the entire premises. Michigan includes autos found on the premises. Jurisdictions vary on the auto rule.
Criminal Law/Procedure: In addition to the SCOTUS-recognized exceptions to the warrant requirement, Michigan recognizes an additional exigent circumstances exception. What is it?
In Michigan, no warrant is required if: (1) Police have PC that an immediate search will produce specific evidence of a crime, and (2) an immediate search w/o a warrant is necessary in order to protect officers or others, prevent the loss/destruction of evidence, or prevent the accused’s escape. This Exception exists in addition to the SCOTUS-recognized exigent exceptions: (1) evanescent evidence, hot pursuit of a fleeing felon, and emergency aid.
Criminal Law/Procedure: What is a protective sweep, and what evidentiary burden does Michigan put on them?
Defined—when making an in-home arrest, the police may “sweep” the residence to look for criminal confederates of the arrestee whose presence may threaten officer safety. This ability is implicated by the rationale of the Terry Stop & Frisk doctrine—officer safety. In Michigan, the prosecutor has the burden of establishing one of the exceptions to the warrant requirement existed when the protective sweep occurred. (This would only come up if the police found inculpatory evidence during the sweep, and the prosecutor sought to enter it in evidence.)
Criminal Law/Procedure: How does Michigan construe the exclusionary rule?
In Michigan, the rule applies to violations of either the U.S. Constitution or Michigan constitution, but not Michigan statutes unless the Legislature provided for such.
Criminal Law/Procedure: In Michigan, is an otherwise valid confession admissible in evidence without more?
No. Only admissible if there is direct or circumstantial evidence independent of the confession establishing: (1) the occurrence of the specific injury, and (2) some criminal agency as the source of the injury. Rationale: guards against convictions for crimes that were never committed. Note: the prosecution need not prove all the elements of the crime charged before a confession comes in, and the independent evidence only need meet the preponderance of the evidence standard.
Criminal Law/Procedure: Does a ∆ have a right to a pretrial detention hearing?
In Michigan, a ∆ always has the right to such a hearing, which is known as, “an arraignment.” The hearing is designed to determine whether the there is PC for detention. It must occur w/o unnecessary delay. MBE: Such a hearing is not required if a grand jury has issued an indictment or an arrest warrant was issued.
Criminal Law/Procedure: Soon after arrest, a ∆ must be brought before a magistrate who will do what?
Advise him of his rights, set bail, appoint counsel if necessary. Michigan calls this a “preliminary examination.” *Note: bail decisions are immediately appealable.
Criminal Law/Procedure: What are the evidentiary disclosure rules between parties in a criminal trial?
(1) Federally, the prosecutor must disclose to the ∆ all material, exculpatory evidence. (2) Michigan adds: parties must provide upon request: (a) any statements pertaining to the case by a lay witness whom the party may call at trial, (b) Π must disclose any statements by a ∆, co-∆, or accomplice even if they aren’t a prospective witness at trial. *Note: Π need not disclose his work product.
Criminal Law/Procedure: When is a jury required in Michigan criminal trial? How many jurors are necessary? Can it be an majority decision?
The right to a jury trial exists in every criminal prosecution where jail time is possible. 12-person juries are mandatory unless (1) prosecution is for a misdemeanor punishable by imprisonment for not more than 1 year, or (2) by parties stipulation. Michigan requires a unanimous jury.
Criminal Law/Procedure: When is a ∆’s right to a jury trial frustrated?
In Michigan, prejudice is presumed if the delay is 18 months or more.
Criminal Law/Procedure: When can a guilty plea be admitted by the Court?
In open court and on the record, the Judge must establish that the plea is both knowing and voluntary by engaging in a “plea-taking colloquy,” wherein the Judge addresses the (1) nature of the charges and (2) consequences of the plea. Furthermore, Michigan requires that a judge establish a factual basis for the ∆’s plea.
Criminal Law/Procedure: How is Michigan’s definition of criminal battery different from the MBE?
Battery is the unlawful application of force to another resulting in harmful or offensive contract. Mental State-MBE: general intent / Michigan: willfulness
Criminal Law/Procedure: Has the “year and a day” doctrine been abandoned by Michigan as to when a death must occur to trigger murder?
Yes! Doesn’t matter when death occurs. This is the majority rule too.
Criminal Law/Procedure: What is Michigan’s felony murder rule?
To be guilty of felony murder in Michigan, the Π must show (1) malice and (2) the commission of any of the felonies: Kidnapping, CSC (1,2,3), Larceny, Vulnerable Adult Abuse (1,2), Child Abuse (1), Home Invasion (1,2), Torture, Arson, Substance Offenses (major controlled), Robbery, Aggravated Stocking, Car Jacking, Extortion, Breaking and Entering a Dwelling The 14 Felonies. Mnemonic: “Kevin Caters Lavish Victory Celebrations Honoring Totally Awesome Soldiers Returning After Capturing Enemy Bases.”
Criminal Law/Procedure: For a principal, co-felon, accomplice, or co-conspirator to be liable of felony murder, proof of that party’s malice is also required. How do you define malice here?
Intent to kill, Intent to do great bodily harm, and intentional creation of a high risk of death or great bodily harm. *Note: You need not show that the co-felon was the proximate cause. Just need malice.
Criminal Law/Procedure: Michigan has a specific statutory scheme on murder. What is the scheme?
There are four categories: 1st Degree, 2nd Degree, Vol. Manslaughter, and Invol. Manslaughter. 1st Degree murder involve that which is perpetrated by means of poison, lying in wait, or any other willful, deliberate, and premeditated killing. Murder of a peace officer is a killing of a peace/corrections officer engaged in the performance of his duties. Need: malice + knowledge victim was officer. ~Need: specific intent to kill. Felony murder is always 1st degree. Under 2nd Degree, we have all forms of murder that don’t fit into 1st Degree classifications. Under Vol. Man., we have an intentional killing committed in the heat of passion upon adequate provocation. Under Invol. Man., a killing is committed with gross negligence, or as the result of unlawful acts committed w/(i) intent to injure or (ii) in a grossly negligent manner.
In Michigan, are insulting words sufficient provocation to get a vol. manslaughter charge over murder?
Insulting words are usually insufficient provocation but they may be enough if they describe an event that, if witnessed first hand, would constitute objectively adequate provocation.
Criminal Law/Procedure: What is Michigan’s definition of kidnapping?
A person knowingly and w/o consent, confines or restricts the movement of a victim with the intent to collect ransom, use the victim as a hostage, commit CSC against that hostage, take the victim out of Michigan, or hold them in invol. servitude.
