Practice Exam4 Flashcards
(25 cards)
automobile exception
although the automobile exception permits a police officer to search a car without a warrant, the exception only applies when the police officer has probable cause to conduct the search.
compar neg JX-assumpt of risk
In a comparative negligence jurisdiction, assumption of the risk is not recognized as a separate defense—it has been merged into the comparative-fault analysis and merely reduces recovery.
-The plaintiff’s awareness of the risk of her conduct is generally taken into account in determining the degree to which she is at fault, but it can also be considered in determining the reasonableness of the plaintiff’s or the defendant’s actions
accept by performancw
Unless a contract specifies that it can be accepted only by performance (i.e., a unilateral contract), it can be accepted either by the offeree’s promise to perform or by the offeree’s beginning performance of the contract
DPC- long arm
The Due Process Clause requires that the defendant have sufficient minimum contacts with the forum state in order for a court to exercise personal jurisdiction over the defendant.
defense- strict liabl
by engaging in an abnormally dangerous activity, P is strictly liable for harm that results from the conduct of that activity, assumption of the risk is a defense to strict liability
privileges and immunities clause
The Article IV Privileges and Immunities Clause prohibits a state from discriminating against nonresidents with respect to the exercise of a fundamental right or engagement in an essential activity, such as earning a living, unless there is substantial justification for the discrimination.
impremissibly suggestive photo array
In order for a witness to be prevented from identifying the defendant in court due to a previous impermissibly suggestive photo array, the defendant must demonstrate that there was a substantial likelihood of misidentification, which is not the case here.
impracticability
The defense of impracticability may be raised if performance has become illegal after the formation of the contract. However, the defense is unavailable to a party who has assumed the risk of an event happening that makes performance impracticable.
PJX- in rem
In an in rem action, the forum court generally has personal jurisdiction over a defendant when the dispute centers on ownership of property located in the forum state.
deceased- defamation
A deceased person cannot legally be defamed. The estate of the deceased official cannot maintain an action for defamation because the defamatory statement was made after the official’s death
solicitation
The man can be convicted of solicitation because he asked his friend to commit the crime of arson with the intent that the friend would do so.
- While solicitation to commit a crime is a completed crime in itself, it merges into the completed crime being solicited.
- However, the completed crime here was a different crime from the crime solicited because it involved the burning of a different structure, so the solicitation conviction stands.
intended B- rights vest
An intended beneficiary may sue a promisor to enforce the contract once her rights have vested. The rights of an intended beneficiary vest when the beneficiary (i) detrimentally or materially relies on the rights created; (ii) manifests assent to the contract at one of the party’s request; or (iii) files a lawsuit to enforce the contract.
current party- HS exemption
A prior out-of-court statement by a party to the current litigation that is used against that party is not hearsay; such statements are specifically excluded from the definition of hearsay.
Goods K- accomodation
Normally a shipment of goods by a seller made in response to an order placed by the buyer constitutes acceptance of the buyer’s offer. Such a shipment does not constitute acceptance, however, if the seller indicates that the shipped goods are made as accommodation. Since the supply company so designated the blades that it sent, the shipment did not constitute acceptance.
workplace safety
- A company’s duty to ensure the safety of its workforce is a critical function, and, therefore, a non-delegable duty
- will not relieve it of liability associated with the negligence
drawing blood
Drawing blood is not considered a major medical procedure; little intrusion or pain is involved. Consequently, the procedure is reasonable in light of the Fourth Amendment.
defamation-truth as a defense
In a defamation action involving a private person and a matter that is not of public concern, as is the case here, truth is a defense.
EX: Evidence that the plaintiff has engaged in prostitution would support the truthfulness of the defendant’s statement.
political question doctrine applies to…
The political question doctrine applies only to the federal government, not the states
6 person jury/ judge deciding punishment
With respect to the conviction, a six-person jury may render a verdict in a criminal trial without violating the defendant’s right to a jury trial. With respect to the sentence, generally only a jury is permitted to find a fact that serves to increase the maximum penalty that can be imposed for a crime. However, an exception exists if that fact is a prior conviction of the defendant.
First Amend- Porn
Under the First Amendment, a city can regulate adult entertainment establishments (e.g., by localizing them in a particular area), but cannot impose a blanket ban on all pornography
PITT- joint tenancy
(unity of possession), with each interest equal to the others (unity of interest), at the same time (unity of time), and in the same instrument (unity of title)
order of payment after foreclosure
The money from a foreclosure sale is applied first to the costs associated with the foreclosure sale itself (which would include attorney’s fees), second to the balance and interest of the mortgage obligation being foreclosed, and finally to the mortgage obligations owed to all junior interest holders. When multiple interests must be paid out of the proceeds, generally, the earliest mortgage placed on the property has priority over the other interests
J&S/ pur compar neg/ contribution
In a jurisdiction that retains traditional joint and several liability rules and applies pure comparative negligence principles, a plaintiff may recover his total damages—reduced by the proportion of his own fault—from any defendant. If the jurisdiction also permits contribution, the paying defendant may then seek contribution from the other defendant(s) and recover anything paid in excess of his fair share.
removing a fixture
In determining whether an object is a fixture that can be removed by a seller of real property, the seller’s subjective intent is not controlling. Instead, various factors are examined to ascertain the seller’s objective intent.
