Essay Rule Statements

Question 1

Robbery

Answer 1

A person who, in the course of committing a larceny, uses force or violence against any person who is present, or who assaults or puts the person in fear, is guilty of robbery.

Michigan, unlike the common law, does not require a completed larceny.

Question 2

Armed Robbery

Answer 2

A person who, in the course of committing a larceny, is armed with a dangerous weapon or one that could be used as one or reasonably appeared to be one, or who verbally expressed that he has one, is guilty of armed robbery. This is punishable by up to life in prison.

Question 3

4th Amendment Search and Seizure

Answer 3

the 4th Amendment protects against unreasonable searches and seizures. Generally, a search without a warrant is per se unreasonable unless justified by an exception to the warrant requirement.

Question 4

Miranda

Answer 4

The Fifth Amendment to the Constitution provides that a ∆ cannot be compelled to incriminate himself. Miranda safeguards this right. Miranda warnings are required in cases involving custodial interrogations.

Miranda rights may be waived, but such waiver must be voluntary, knowing and intelligent.

Suppression is warranted when the police fails to advise an accused of his Miranda right or if a waiver of those rights is invalid.

Question 5

Consideration

Answer 5

Consideration is a legal detriment that has been bargained for in exchange for a promise or performance. If there is no mutuality of consideration, the offer is merely a legally unenforceable, gratuitous undertaking.

Question 6

Promissory Estoppel

Answer 6

The elements for promissory estoppel are: (1) a promise (2) which the promisor should reasonably expect to induce action or forbearance on the part of the promisee and (3) which does induce such action or forbearance and (4) injustice can be avoided only by enforcement of the promise.

The appropriate measure of damages is to ensure that the promisee is compensated for the loss suffered to the extent of the promisee’s reliance.

Question 7

Modification under UCC

Answer 7

A modification need not be supported by consideration if it is made in good faith. This requires “observance of reasonable commercial standards of fair dealing in the trade.”

A market shift which makes performance come to involve a loss may provide objectively demonstrable proof of good faith between merchants.

Assent to a modification not made in good faith will not waive the right to enforce the original contract unless the other party has detrimentally relied on the assent to the new terms by materially changing its position.

Question 8

Parol Evidence Rule

Answer 8

Parol evidence of K negotiations, or of prior or contemporaneous agreements that contradict or vary the written K, is not admissible to vary the terms of a K which is clear and unambiguous.

If a written document is an integration, i.e. when it declares it contains the entire agreement of the parties, all antecedent agreements are nullified.

Question 9

Severability

Answer 9

Nonperformance of a K provision may not result in a total breach of the K if the provision is severable.

The primary consideration in determining whether a K provision is severable is the intent of the parties and whether the nature of the K lends itself to divisibility.

The court considers (1) whether the K embraces one or more subject matters, (2) whether the obligation is due at the same time to the same person, and (3) whether the consideration is entire or apportioned.

Question 10

Excuse by Impossibility

Answer 10

The key inquiry is whether an unanticipated circumstance has made performance of the promise vitally different from what should reasonably have been within the contemplation of the parties when they entered into the K.

The promisor’s liability is extinguished if his duties become objectively impossible due to an unforeseeable supervening event.

Question 11

Third Party Beneficiary Rights

Answer 11

Under Michigan statute, any person for whose benefit a promise is made by way of K has the same right to enforce said promise as he would have had if the promise had been made directly to him as the promisee. As such, an intended third-party beneficiary’s rights vest as soon as a promise becomes legally binding on the promisor.

A promisee may divest a third-party beneficiary of his interest whether he is a donee or a creditor, but a creditor beneficiary’s interest may not be divested if done with intent to delay or defraud or if the creditor has taken steps to enforce the promise.

Question 12

UCC Sale of Goods (Intro)

Answer 12

This transaction falls under Article 2 of the UCC, which governs contracts, whether oral or written, that involve the sale of goods.

Goods are defined as all things which are movable at the time of the contract.

This contract involves the purchase of ____, an item movable at the time identified in the contract for sale.

Question 13

Perfect Tender Rule

Answer 13

In a single delivery contract, if the goods or the tender fail in any respect to conform to the contract, the buyer may reject all, accept all, or accept any of the commercial units and reject the rest.

Question 14

Seller’s Right to Cure

Answer 14

If tender is rejected due to the seller’s nonconformity before the time for performance has expired, the seller may seasonably notify the buyer of his intention to cure and may then make a conforming delivery within the contract time.

Question 15

Delegability of Duties

Answer 15

Generally, duties can be delegated unless otherwise agreed or unless the party has a substantial interest in having his original promisor perform.

A substantial interest exists when the delegation materially changes 1) the duty of the other party, 2) the risks imposed on the other party, or 3) the other party’s chance of obtaining return performance.

Question 16

Remedy for Seller when Buyer Breaches and Seller has the Goods

Answer 16

Where buyer breaches and seller has the goods, damages are measured by incidental damages minus expenses saved from buyer’s breach, plus either (1) the difference b/w the market price at the time and place for tender and the unpaid K price, or (2) the difference between the resale price and the K price

Question 17

Duty to Invitees

Answer 17

An invitee is one who is on the premises for a reason directly related to the landowner’s commercial interest.

The landowner has a duty to invitees to exercise reasonable care to protect the invitee from an unreasonable risk of harm cause by a dangerous condition on the land.

Question 18

Government Tort Immunity (Intro)

Answer 18

A government agency (e.g. police department) is immune from tort liability if it is engaged in the exercise or discharge of a governmental function. However, this is subject to 3 key exceptions.

Question 19

Highway Exception to Government Tort Immunity

Answer 19

A gov agency that has JX over a highway has a duty to keep that highway reasonably safe. It is liable for damages caused by unreasonably dangerous defects in the highway if agency knew or should’ve known of the defect. Constructive knowledge exists if defect is “readily apparent to an ordinarily observant person” at least 30 days prior to injury.

This exception is limited: applies only to portions of the highway improved for vehicle travel and not to failure to remove natural accumulation of ice and snow or negligently failing to erect guardrail.

Π must give notice to agency within 120 days of injury.

Question 20

Public Building Exception to Government Tort Immunity

Answer 20

A gov agency has an obligation to repair and maintain public buildings under the agency’s control.

Liability attaches only when 1) the building is open to the public, 2) the injury or damages results from a dangerous or defective condition, 3) agency had actual or constructive knowledge, and 4) agency failed to take action reasonably necessary within reasonable time from acquiring knowledge.

This exception is limited to defects inherent in the actual building; it does not extend to transitory conditions (e.g. oil spilled on floor) or design defects.

Question 21

Assault (Tort)

Answer 21

An intentional threat of injury to another person by force, or a force unlawfully directed toward the person of another, under circumstances which create a reasonable apprehension of imminent contact, with the apparent present ability to accomplish the contact.

π must show that ∆ acted with intent to cause a harmful or offensive touching of another person or knew with substantial certainty that such contact would result.

Question 22

Battery (Tort)

Answer 22

The willful and harmful or offensive touching of another person which results from an act intended to cause such contact.

π must show that ∆ acted with intent to cause a harmful or offensive touching of another person or knew with substantial certainty that such contact would result.

Question 23

Relevance

Answer 23

Evidence is relevant if it tends to make the existence of a fact of consequence in the case more or less probable than it would be without the evidence.

Otherwise relevant evidence may be excluded if the judge finds that the danger of UP substantially outweighs the PV in view of the availability of other means of proof and other facts.

Question 24

Hearsay

Answer 24

Hearsay is an out-of-court statement offered to prove the truth of the matter asserted.

A hearsay statement is not substantively admissible unless it falls into one of the hearsay exceptions.

A statement that is inadmissible as hearsay may nonetheless be admitted for impeachment.

Question 25

"Other Act" Evidence

Answer 25

Evidence of a crime or other act is generally not admissible to show a person has bad character and acted in accordance with that character. However, evidence relevant to a non-character purpose is admissible even if it also reflects on a defendant’s character or criminal propensity. For "other acts" evidence to be admissible, the proponent has the burden of showing: 1) Identified non-propensity purpose, 2) Relevant to an issue or fact of consequence at trial, and 3) UP \>\> PV balancing, considering availability of other means of proof and other facts.

Question 26

Expert Testimony

Answer 26

An expert is qualified to testify when he has “scientific, technical, or other specialized knowledge that will assist the trier of fact to understand the evidence or determine a fact in issue.” His opinion must be based on reliable principles and methods that have been reliably applied to sufficient facts and data in this case.

Question 27

1A Intro

Answer 27

The First Amendment states that Congress shall make no law abridging the freedom of speech. The First Amendment is applicable to the states through the Due Process Clause of the 14th Amendment.

Question 28

Free Exercise Clause

Answer 28

FEC is not violated where a law that is facially neutral and of general applicability and has an incidental burden on religious practice. However, strict scrutiny applies if the law is not neutral or not of general application, and it must be narrowly tailored to advance a compelling state interest.

Question 29

Equal Protection Clause

Answer 29

EPC is meant to guarantee every person against intentional and arbitrary discrimination. It requires that persons under similar circumstances be treated alike; not necessarily that all persons be treated alike. There are three levels of scrutiny under the equal protection clause. The applicable standard of review to be applied depends on the type of classification.

Question 30

Dormant Commerce Clause

Answer 30

Congress has the power to regulate interstate commerce. States may regulate commerce pursuant to their general police powers in the absence of congressional legislation. The courts follow a “2-tiered approach” for determining whether a state law violates the commerce clause. 1. When a state statute discriminates against interstate commerce (i.e. when it enacts measures to protect in-state economic interests at the expense of out-of-state competitors) without express permission from Congress, the statute is generally struck down. 2. On the other hand, where a state statute imposes the same burden both in-state and out-of-state, it will be upheld unless the burden on IC is clearly excessive in relation to the benefit.

Question 31

Recording Statute

Answer 31

MI is a race-notice state. Owners of an interest in land can protect their interests by properly recording them. When a purchaser fails to record their interest in property, that interest is void against any subsequent purchaser so long as the subsequent purchaser is a bona fide purchaser for value without notice of the prior interest.

Question 32

Fixtures and Trade Fixtures

Answer 32

Personal property is a fixture if it meets MI’s 3-part test: (1) it is annexed to the realty, actually or constructively (2) its adaptation or application to the realty being used is appropriate and (3) there is an intention to make the property a permanent accession to the realty. Generally, fixtures remain with the real property unless expressly agreed otherwise. Trade fixtures (made specifically for the purpose of conducting business) can automatically be removed upon termination of the lease. This doctrine applies only to leasehold estates.

Question 33

Landlord Termination of At-Will Lease

Answer 33

A landlord must follow the procedures set out in the *_Michigan Summary Proceedings Act_* in order to remove a tenant. * The landlord must give the tenant written notice (1 month if the tenancy is at-will; 7 days if the tenant fails to pay rent). If the tenant does not vacate by 1 month or 7 days, the landlord may initiate _summary proceedings_ to receive a _judgment of possession_. * The tenant must leave in the time stated in the judgment (at least 10 days), but if judgment is due to nonpayment of rent, the tenant may alternatively opt to repay the amount due. * If the tenant fails to vacate by this time, the landlord is entitled to receive an order of eviction from the court, in which case a sheriff will remove the tenant from the property. * If the person came into possession of the premises unlawfully to begin with, the landlord can use self-help to remove them, or initiate proceedings without notice Under the Michigan Anti-Lockout Statute, a landlord may not use self-help to remove a tenant in lawful possession of the premises or retain/remove personal property of the tenant as collateral. If he does so, the tenant is entitled to $200 or 3x actual damages, whichever is greater.

Question 34

Subject Matter Jurisdiction

Answer 34

MI circuit courts are courts of general and original JX. They, unlike fed courts, have SMJX over all kinds of civil actions, unless there is exclusive JX in some other forum. The _exceptions_ are that district courts have exclusive JX over actions \<$25K, courts of claims have exclusive JX over claims against state or state agencies, and fed courts have exclusive JX over matters like ambassadors and admiralty.

Question 35

Personal Jurisdiction Step 1

Answer 35

Do ∆’s acts fall w/in the applicable general or long-arm statute? General JX: is established by (i) incorporation under laws of the state (ii) consent and (iii) carrying a continuous and systematic part of general business within state Specific (long-arm) JX: LAS authorizes jurisdiction in cases deriving from the following contacts: (i) ownership or use of land in MI (ii) injury in MI from ∆’s tort (iii) matrimonial relationship w/ any ties to MI (iv) insurance K for something insured in MI (v) txn entered into or to be performed in MI

Question 36

Personal Jurisdiction Step 2

Answer 36

Does the exercise of JX over ∆ comport with the requirements of due process? ∆ must have “minimum contacts” with the forum such that maintenance of the suit does not offend “traditional notions of fair play and substantial justice.” Use _3-prong test_: 1. Whether ∆ purposefully availed himself of the privilege of conducting activities in MI 2. The cause of action arises from ∆’s activities in the state 3. ∆’s activities must be substantially connected with MI such that JX over ∆ is reasonable (a single txn will suffice as long as ∆ can reasonably anticipate being hailed into MI court as a result)

Question 37

Collateral Estoppel

Answer 37

To apply CE/issue preclusion, a party must show that (1) the issue was actually litigated and determined by a valid and final judgment, (2) a determination of the issue was necessary to the outcome of the proceeding, and (3) the parties in the prior proceeding are the same as in the present proceeding.

Question 38

Tort Venue

Answer 38

In a tort action, venue lies in the county in which the original injury occurred if the defendant resides, has a place of business, conducts business, or has a corporate registered office in that county.

Question 39

Amending Pleadings (Generally)

Answer 39

A party may amend his pleading once as a matter of course, as long as it is done within 14 says of serving the pleading. Outside of the 14 days, leave to amend a pleading shall be freely given when justice so requires. A motion to amend should be denied only for particularized reasons, such as when amendment would be futile.

Question 40

Relation Back Doctrine

Answer 40

An amendment that adds a claim or defense “relates back” to the date of the original pleading (for SOL purposes) if it arose out of the same transaction or occurrence. The relation-back doctrine does not extend to the addition of new parties, although the misnomer doctrine will allow for correction of scrivener’s errors and inconsequential deficiencies or technicalities in naming the parties.

Question 41

Summary Disposition

Answer 41

The court considers the affidavits, pleadings, depositions, admissions, and other evidence submitted by the parties, in light most favorable to the party opposing the motion. If the proffered evidence fails to establish a genuine issue of material fact, the moving party is entitled to JMOL. The court may only consider _substantively admissible_ evidence that has been submitted at the time of its decision in its ruling. Mere allegations in the pleading are insufficient. If the moving party does not properly support the motion, the nonmoving party has no duty to respond and the motion must be denied. If it is properly supported, the nonmoving party must come forward with substantively admissible evidence that establishes a genuine issue of material fact. If the nonmoving party fails to do so, the motion will be granted.

Question 42

Timing for Motion for Summary Disposition

Answer 42

MSD may be filed at _any time_ and may be filed in lieu of answer to complaint if w/in 21 (or 28) days. May be filed at any time, even if scheduling order places limits on timing of motions. Require at least _21 days’ notice_, so if filing less than 21 days from trial, need _motion to adjourn_ (court has discretion; should show good cause).

Question 43

Case Evaluation

Answer 43

If a _party has rejected_ an evaluation and the action proceeds to verdict, that party must pay the opposing party’s actual costs unless the verdict is 10% more favorable to the rejecting party than the case evaluation. However, if the _opposing party has also rejected_ the evaluation, a party is entitled to costs only if the verdict is higher by at least 10% than the case evaluation. An acceptance must take place within 28 days of being notified of the evaluation panel’s award. Attorney fees include whatever is required to file subsequent motions; sanctions only against the party, not the attorney; court may “in the interest of justice” refuse to award actual costs

Question 44

Discovery (Intro)

Answer 44

MI follows an open, broad discovery policy that permits liberal discovery of any matter, not privileged, that is relevant to the case. Any request properly made must be complied with within 28 days of receipt.

Question 45

Work Product Privilege

Answer 45

Documents and reports prepared in anticipation of litigation are subject to the work product privilege and are not discoverable absent a showing of substantial need and undue hardship, at the court’s discretion. Attorney mental impressions, legal analyses, and direct communications are absolutely privileged under the attorney-client privilege.

Question 46

Class Action Certification

Answer 46

In Michigan, the prerequisites for certifying a class are numerosity, commonality, typicality, adequacy, and superiority. The plaintiffs are required to provide the court with “information sufficient to establish that each prerequisite for class certification is, in fact, satisfied. The pleadings alone may be sufficient, but the court is permitted to consider additional information.

Question 47

Class Action Notice

Answer 47

If the class is certified, all of the requirements of notice must be satisfied. Notice must be given to persons who are included in the class. The plaintiff must make a proposal regarding notification in the motion for certification, and the court makes a determination about how, when, by whom, and to whom the notice shall be given. The plaintiff bears the costs of giving notice to class members.

Question 48

Marital Property

Answer 48

Michigan takes an equitable division of marital property approach. The goal is not to punish for fault. Marital property is property accumulated as a result of one or both of the parties’ contributions or efforts during the marriage. Separate property, on the other hand, is pre-marital property and property acquired during the marriage by gift, bequest, or descent.

Question 49

Spousal Support

Answer 49

The standard for determining what is to be granted to the dependent spouse is “what is just and reasonable under the circumstances of the case.” The objective of alimony is to balance the incomes and needs of the parties in a way that will not impoverish either one. _{Factors: Fault, length of marriage, abilities to work, source and amount of property awarded to the parties, age, ability to pay support, present situations, needs, health, prior standard of living, whether either is responsible for support of others (e.g. minor children), contributions to the joint estate, fault in causing divorce, effect of cohabitation, general principles of equity} Modification is permissible only upon the party seeking modification’s showing of a change in circumstances which (1) occurred after the divorce and (2) was not foreseeable.

Question 50

Prenups

Answer 50

Prenups are enforceable in MI. To be valid, the agreement must be fair, equitable, and reasonable under the circumstances, and must be entered into voluntarily, with full disclosure, and with the rights of each party and the extent of waiver of those rights understood. The agreement should be free from fraud, lack of consent, mental incapacity, or undue influence. Prenups may be voided 1) when obtained with fraud, duress, mistake, or misrepresentation / nondisclosure of material fact; 2) if unconscionable when executed; or 3) when the facts and circumstances are so changed that enforcement would be unfair and unreasonable

Question 51

Modification of Child Support Order

Answer 51

Under Michigan law, to modify a child custody order, the parent must first establish by a preponderance of the evidence (i) proper cause shown or (ii) a change in circumstances. This should consider at least ONE of the best interest factors. If threshold requirement met, moving party must prove that it is in the child’s best interest to change the custody order. The court MUST consider ALL 12 factors. The burden of proof that the parent will be held to depends on whether an **established custodial environment** exists between the child and the non-moving party. If there is an ECE, the moving party must show the best interests of the child by C&CE. If not, he must show by POTE.

Question 52

Best Interest of the Child Factors

Answer 52

(1) emotional connections (2) capacities to give affection, education, religious guidance (3) capacity and disposition to provide with food, clothing, etc. (4) length of time child has lived in stable environment + interest in maintaining continuity (5) permanence, as family unit, of existing/proposed home(s) (6) moral fitness (7) mental and physical health (8) home, school, community record of child (9) reasonable preference of child if sufficient age (10) willingness of each to facilitate close relationship w/ other (11) DV, regardless of directed at or witnessed by child (12) any other relevant factor [tiebreaker: primary caregiver]

Question 53

100-Mile Rule

Answer 53

Legal residence of minor may not be changed by more than 100 miles without the court’s permission. If parent has _sole legal custody_, court will approve automatically once notified. If parents share _joint legal custody_, court considers 5 factors (statute): 1. Whether move tends to improve quality of life of both custodial parent and child 2. Whether move is inspired by custodial parent’s desire to defeat/frustrate visitation and whether custodial parent is likely to comply w/ modified visitation orders 3. Extent to which objecting non-custodial parent is motivated by desire to secure financial advantage w/r/t continuing support obligation 4. Degree to which court is satisfied there will be realistic opportunity for visitation

Question 54

Gifts Inter Vivos

Answer 54

GIV requires that (1) the donor possess the intent to pass title gratuitously to the donee, (2) actual or constructive delivery be made, and (3) the donee accept the gift.

Question 55

Bailments (Intro)

Answer 55

A bailment is formed by the delivery of personal property by one person to another in trust for a specific purpose, with a K, express or implied, that the trust shall be faithfully executed, and the property returned or duly accounted for, when the special purpose is accomplished.

Question 56

Negligence in Bailment

Answer 56

There are 3 classifications of bailments. The characterization of the relationship determines the SOC owed by the bailee toward the bailor’s property. (1) For the sole benefit of the bailor (liable only for gross negligence) (2) For the sole benefit of the bailee (responsible for even slight negligence) (3) For the mutual benefit of both parties (must exercise ordinary care) _Prima facie case for negligence_: Bailor shows that the property was lost, damaged, or destroyed while in possession of bailee. Bailee now has burden to rebut the claim of negligence by showing he acted w/ due care.

Question 57

Proxy Voting

Answer 57

MI law expressly permits SHs to authorize others to vote for them by proxy. A proxy is generally valid for three years, unless otherwise stated in the authorization. Originally, a signed writing was required for effectuating a valid proxy, but the amended MBCA specifically declines to limit the manner in which authorization may be given (electronic authorization possible).

Question 58

Duty of Care

Answer 58

Directors must discharge their duties to the corporation (1) in good faith, (2) with the care that an _ordinarily prudent person_ in a like position would exercise under similar circumstances, and (3) in a manner he or she reasonably believes to be in the best interests of the corporation. Articles may limit liability. _Business Judgment Rule_: directors will not be held liable for innocent mistakes of business judgment; they may rely on information, reports, etc. which the director reasonably believes are within the maker’s professional or expert competence

Question 59

Duty of Loyalty

Answer 59

A director may not receive an _unfair benefit to the detriment of the corporation_ or its SHs unless there has been a material disclosure and independent ratification. Self-dealing and usurping corporate opportunities are breaches of the duty of loyalty.

Question 60

SH Actions

Answer 60

SH may file an action to establish that the acts of the directors or officers are illegal, fraudulent, or willfully unfair and oppressive to the corporation or to the shareholder. * _Direct action_: brought by SH if harm is directly to the SH (e.g. denied preemptive rights) * _Derivative action_: brought by SH if the harm is to the corp

Question 61

Agency (Intro)

Answer 61

An “agency” is a fiduciary relationship created by express or implied K by law, in which one party may act on behalf of another party and bind that other party by words or actions.

Question 62

Ostensible Agency / Agency by Estoppel

Answer 62

A principal is estopped from denying an agency when the principal causes a third person to believe another to be his or her agent where no agency actually exists. The _three elements_ that are necessary to establish agency by estoppel are 1) the person dealing with the agent must do reasonably believe in the agent’s authority, 2) the belief must be generated by some act or neglect on the part of the principal to be charged, and 3) the person relying on the agent’s authority must not be guilty of negligence.

Question 63

Implied Authority (Agency)

Answer 63

Implied authority is the authority that an agent believes the agent possesses. An agent has the implied power to carry out all acts necessary to execute the principal’s expressly conferred authority.

Question 64

Formation of Partnership

Answer 64

A partnership exists where the parties agree and intend to enter into a relationship in which the elements of partnership may be found. The elements of partnership are generally considered to include: 1) a voluntary association of two or more people 2) with legal capacity 3) to carry on, via co-ownership, a business for profit. The sharing of profits and losses is *_prima facie evidence_* of the existence of a partnership. BOP is on the person alleging the existence of a partnership. The standard is POTE usually and C&CE if the alleged partners are related.

Question 65

Partnership Fiduciary Duties

Answer 65

A fiduciary relationship arises when an individual puts faith, confidence, and trust in another and relies upon their judgment and advice. Partners stand in a fiduciary relationship to one another, and are charged with the duty of honesty, good faith, and full and frank disclosure of all relevant information. Every partner must account to the partnership any benefit and hold as trustee for it any profits derived by him without the consent of the other partners from any transaction connected with the partnership.

Question 66

Partnership Liability

Answer 66

All partners are jointly liable for contractual obligations of the partnership. Unless a statute provides otherwise, in an action to enforce such obligations, all partners must be named as defendants.

Question 67

Scope of Workers Comp Act

Answer 67

Workers comp benefits are available for injuries “arising out of an in the course of employment.” Employee is presumed to be in the course of employment if on the premises and within a reasonable time before after working hours. Generally, injuries sustained going to and coming from work are not covered. _Exception_: when employee is injured crossing street on way to work when coming directly from work-owned parking lot

Question 68

Collateral Source Rule (Workers Comp)

Answer 68

Any recovery against a TP, after deducting litigation expenses, shall first reimburse the employer for workers’ comp benefits paid and any unused balance from TP recovery creates an advance payment by the employer against future WC benefits

Question 69

Pre-Existing Conditions (Workers Comp)

Answer 69

If an employee has a pre-existing condition, the work-related injury must be “_medically distinguishable”_ from his prior condition. Must show change in pathology, not just aggravation of symptoms If the pre-existing condition is a heart condition or degenerative arthritis, the workplace must have made a “_significant contribution_” to the condition.

Question 70

Horseplay (Workers Comp)

Answer 70

An injury must be traceable to an employment risk. Horseplay and disagreements at the workplace are risks of employment, even if they aren’t about work-related matters and even if the subject matter isn’t furthering the employer’s business. This doesn't apply to willful or intentional conduct by the employee.

Question 71

Weekly Wage Loss Benefits

Answer 71

An employee only receives weekly wage loss benefits if he is disabled. Disability is defined as a loss of wage earning capacity. Merely showing an inability to return to one’s previous job does not mean that an employee is disabled. Employee has burden of showing he is “unable to perform all jobs paying the max wage in work suitable to that employee’s qualifications and training, which includes work that may be performed using the employee’s transferable work skills.” * If employee makes unsuccessful good faith effort to obtain work for lesser paying positions suitable for his qualifications and training, then still entitled to _total disability_ benefits. * He is entitled to _partial disability_ benefits (offset by % of typical wage) if able to secure lower-paying work and doesn’t do so.

Question 72

Conflicts of Law - Torts

Answer 72

In tort cases, Michigan courts use a choice-of-law analysis called “interest analysis” to determine which state’s law governs a suit in which more than one state’s law may be implicated. Michigan courts will apply Michigan law unless there is a “rational reason” to apply the other state’s law. Whether a “rational reason” exists follows a 2-step approach: 1. First, we must determine if another state has an interest in having its law applied (underlying policies behind case + whether application in this case serves those interests). If no, then Michigan law applies. 2. If another state does have an interest, we must determine whether Michigan’s interest is minimal while the other state’s is significant. If so, then the other state’s law should apply. If not, then Michigan’s interest mandates that its own law should apply.

Question 73

Conflicts of Law - Contracts

Answer 73

In contracts cases, Michigan courts traditionally used the “vested rights” approach, which applies the law where the contract was entered into. However, this approach has been criticized by the Michigan courts, and there has been a trend toward the 2nd restatement’s “most significant relationship” approach.

Question 74

Ademption

Answer 74

The issue of ademption is raised when specifically bequeathed property in the will no longer part of the estate at the testator’s death. The doctrine of ademption operates to void such a gift. However, Michigan has a ***presumption of non-ademption***. The devisee is entitled to the value of the property unless the facts and circumstances show that ademption was intended by the testator or within the testator’s manifested plan of distribution. Devisee is entitled to (i) _insurance proceeds_ from the property *unpaid* at testator’s death (ii) property procured as a _replacement_ or (iii) the _cash value_ of the property at the *time of the disposition* (i.e. FMV)

Question 75

Steps for Will Formation Analysis

Answer 75

* _Formal Will_: in Michigan, a will is valid only if it is (1) in writing, (2) signed by the testator, and (3) signed by at least 2 individuals who witnessed the testator’s signature or his acknowledgement of the will or his signature. * _Holographic Will_: in Michigan, a holographic will does not need to be witnessed, but it must be signed and dated by the testator and material portions of the will must be in the testator’s handwriting. * _Dispensing Power Statute_ (UPC): the will may be probated despite its noncompliance with the precise formalities if the proponent shows by C&CE that the decedent intended the document to constitute his will.

Question 76

Lapse Gifts

Answer 76

_Rule of convenience_: class in **class gift** closes when testator dies; only surviving class members take and take equally (subject to anti-lapse statute if class members are close relatives) _Anti-lapse statute_: if predeceasing beneficiary is grandparent or descendant of a grandparent or a stepchild, and the descendants are alive for 120 hours after T’s death, then the gift will pass to the descendants of the beneficiary

Question 77

Methods of Trust Formation

Answer 77

Under Michigan law, there are 4 methods for creating a trust: (1) transfer of property to a trustee during settlor’s life or by disposition taking effect upon settler’s death (2) declaration by owner of property that owner holds identifiable property as trustee (3) exercise of a power of appointment in favor of a trustee (4) promise by one person to another whose rights under the promise are to be held in trust for a third person

Question 78

Valid Trust Formation

Answer 78

Under Michigan law, for a trust to be valid, there needs to be (1) capacity of the settlor, (2) intention to create a trust, (3) an ascertainable beneficiary or charitable purpose, (4) the trustee has to have duties, and (5) there can be no merger (sole trustee can’t be sole beneficiary).

Question 79

Cy Pres Doctrine

Answer 79

Application of the cy pres doctrine enables a court to substitute another charity or modify a trust in a manner which is believed to further the settlor’s original purpose. If no alternate charity is named and the settlor had a _general, rather than specific, charitable intent_, then the court may apply cy pres to modify or terminate the trust by directing that the trust property be distributed in a manner consistent with the settlor’s general intent. However, if _only a specific intent_ is found and adhering to the trust’s terms would result in distribution to a noncharitable beneficiary, the court may still apply cy pres unless the trust property reverts to the still-living settlor or less than 50 years have elapsed since the trust was created.

Question 80

Reformation of Trust

Answer 80

If the settlor’s intent and the trust’s terms were affected by a mistake of fact or a mistake of law, MI law allows reformation of the terms, even if they are otherwise clear and unambiguous. The party seeking reformation must prove the mistake of fact by C&CE.

Question 81

Termination/Modification of Trust by Court

Answer 81

A court may modify or terminate a trust with the consent of the trustee and qualified beneficiaries. Absent such consent, the court still do so if: 1. The trust was modifiable/terminable had the interested parties consented and the interests of nonconsenting qualified beneficiaries would be **adequately protected**. 2. **Unanticipated circumstances** threaten the purpose of the trust 3. Continuation of the trust on existing terms is **impracticable or wasteful** 4. The **value** of the trust is insufficient to justify the **cost of administration** 5. To achieve the settlor’s **tax objectives**

Question 82

First-Party Recovery for NFI (Priority)

Answer 82

Under the Michigan no-fault system, a person suffering an injury arising out of an automobile accident must look to her insurer first for first-party no-fault benefits. If she doesn’t have insurance, she must look to the insurer of a relative with whom she resides. If she has no such relative, she can look to the insurer of the owner of the vehicle which caused the injury. If the owner has no insurance, she looks to the assigned claims plan.

Question 83

Non-Economic Damages for NFI Step 1

Answer 83

The No-Fault Act generally bars tort actions for non-economic damages unless the injured person suffered death, a permanent serious disfigurement, or a serious impairment of an important bodily function. _Step 1_: The issues of whether the injured person has suffered serious impairment of body function or permanent serious disfigurement are _questions of law for the court_ if the court finds that (1) there is no dispute concerning the nature and extent of injuries or (2) any factual dispute regarding the nature and extent of injuries is not material to this determination.

Question 84

Non-Economic Damages for NFI Step 2

Answer 84

_Serious impairment of important bodily function_: If the court decides this issue is a matter of law, it should next determine whether the serious impairment threshold has been crossed. This inquiry has _3 prongs_ and focuses more on the effects of the injuries than the injuries themselves. 1. Objectively manifested impairment (perceivable by actual symptoms or conditions) 2. Of an important body function 3. That affects the person’s general ability to lead his or her normal life (considering what π did for work and for fun – relief not precluded just because impairment is temporary) _Permanent and serious disfigurement_: The seriousness of a scar is a matter of common knowledge and experience for the courts unless there is a question regarding the nature and extent of the scar. The seriousness depends on its physical characteristics rather than its impact on π’s ability to lead her normal life.

Question 85

Dram Shop Act

Answer 85

Provides a cause of action for plaintiffs injured by a visibly intoxicated person against a retail establishment that unlawfully sells alcohol to the visibly intoxicated person if the unlawful sale is a proximate cause of the injury. This is not SL – drunk driving alone is not enough to hold the bar liable.

Question 86

Creation of Security Interest

Answer 86

For a security interest to exist there must be a secured party (a lender of credit) and a debtor (the borrower). There must also be collateral, which is property in which the debtor has an interest, and which is subject to the security interest of the secured party.

Question 87

Attachment of Security Interest

Answer 87

A security interest is not enforceable unless it has attached. There are 3 requirements that must all exist at the same time in order for attachment to occur. 1) The parties must have an agreement that is written, signed by the debtor, and contains a description of the property. 2) There must be value given. 3) The debtor must have rights in the collateral.

Question 88

Perfection of Security Interest

Answer 88

In order to have maximum priority over other parties who have rights in the collateral, the secured party must also perfect its security interest. Generally, this involves filing a financing statement in the appropriate government office.

Question 89

Secured Transactions - Remedies

Answer 89

Under Article 9, the secured party with priority in collateral has statutory authority to repossess the collateral pursuant to judicial process or via self-help as long as they do not breach the peace. The secured party may then sell or otherwise dispose of it in a commercially reasonable manner and apply the proceeds to the satisfaction of its obligations and any subordinate security interests.