- Factual - Untrue - Published (tell someone)

TEst 1 Flashcards by Eli Smith

Jurisdiction

STATE OR FED?
1 - Fed issue? Can choose
2 - Diversity of Citizen and $75k
WHICH STATE?
Plaintiff - No matter
Defend - min contact (consent to juris. by contract, prop in state)

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Stare Decisis

“To stand by the decision”
Adhering or readopting precedent from SUPERIOR courts
Maintains consistency and stable

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Civil vs. Criminal

Parties: Plaintiff Indiv / State
Proof: Prep of Evid / Beyond Reasonable Doubt
Purpose: Compensate / Punish or Sanction
Torts / Crimes
Source: Statutes and Common Law / Statutes
Jury Decision: Fed Unan/Unan
State: Varies from Unan to Maj / Unan

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Summary Judgment

“So What” motion, usually during discovery. Undisputed facts, plus any disputed facts in other party’s favor, So what, they’ll still lose.

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Arbitration vs. Litigation

Neutral 3rd person renders decision - less formal, fewer rules. MORE SPECIALIZED, PRIVATE, costly, common in commercial contracts and labor mgmt disputes

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Intent

Did you intend the actions that then constitute a tort NOT did you intend the tort!

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Battery Elements

Intentional infliction of
harmful
OR offensive bodily contact.

Offensive:
“Reasonable person’s sense of dignity.” Objective Test!

Indirect (canes, setting traps) Still a Battery

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Assault Elements

-Intentional conduct of one person directed to another that places the other in APPREHENSION of IMMINENT bodily harm or offensive conduct

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Apprehension

Plaintiff must have “knowledge of danger” at the TIME

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Self Defense

Use when assault (threat of immediate bodily harm)
Match level of force - if you elevate, you’ll batter.
You can you deadly force if you think it matches

Initial aggressor cannot use privilege

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Self Defense if you can avoid the attack?

Attacker in house?

If it’s reasonable to safely avoid, generally you must try unless Stand your Ground State.

Typically don’t have to avoid, Castle State Statutes

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False Imp / False arrest

Intentionally and unlawfully confining a person against his/her will within fixed boundaries, and
the person is conscious of the confinement or harmed by it. - Person does NOT reasonably believe they are free to leave or Property hostage
Shoplifting Statutes: reasonable grounds, manner, and time

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IIED Elements

When a person by extreme and outrageous conduct

intentionally or recklessly causes severe emotional distress to another.

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IIED More Details

Extreme and Outrageous
“Beyond the bounds of human decency”
“Intolerable in a civilized community”

Intentional OR RECKLESS:
Reckless: Know there is a risk for ED and fail to take precautions to eliminate risk where precautious were slight.

Severe Emotional Distress: Objective and Subjective
Plaintiff suffered severe Severe ED AND
Reasonable person would have suffered Severe ED

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Defamation Elements

Factual
Untrue
Published (tell someone)

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Defamation Per Se

so bad that even if 3rd party doesn’t believe it, plaintiff can sue for damages.
1-Crime of Moral Turptude (Dishonesty/deceit)
2 - Could affect bus or prof.

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Invasion of Privacy Torts

Appropriation - use ID to make a profit (adverts)
Intrusion - SNOOPING, looking into any private matter without the right
Pub Discl of Private Facts - publicizing (10). can be true, but private and offensive to be shared
False light - take out of context, photo under misleading headline - publicized

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Real Property Torts

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Trespass - intentional physical invasion of a person’s prop. You, or thing enters or remains, failure to remove thing that you’re under duty to remove
Nuisance - SUBSTANTIAL (obj test) and UNREASONABLE (balance int test) interference or disturbance w/ another’s real prop - Noise, fumes

Personal Prop torts

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Trespass to Pers Prop (Chattels) -1) Intentional disposing or unauth use of
2)Pers prop of another
Conversion - Bad Trespass to Chattels - Take control of prop as if it’s your own to a point you should buy it -Damages are FMV at time of conversion

Trespass Defenses

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Legal Privilege
Consent (Express and implied, revocable)
Necessity - Emergency or to protect from threatened injury to person

Negligence

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Def. didn’t intend a certain act, but didn’t act with correct care
-Also includes lack of actions where a duty to act exists

Elements of Negligence

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-Duty of Care (Law)
-Breach of Duty (Fact): Failure to act as Reasonable Person
-Cause (Fact): Factual - Actual Cause or Proximate - foreseeable cause
Harm - Injury to pers or prop

Duty of Care Breach - RP Modifications

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Phys Dis: Yes, modified
Mental Dis: No
Superior Knowledge or Skill: Yes when negligent act pertains to skill. “Reasonable Pro Std” (Pro Malprac)

General Rule of Duty to Act

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You do not have a duty to exercise reasonable care when a person or prop is at risk for reasons OTHER than you

Colee’s Basic: Innocent act creates harm…duty to act

Duty to Act - Exceptions

Common carrier with its passengers A business open to the public with its customers An innkeeper with its guest An employer with its employees A school with its students A landlord with its tenants Custodian while minor is under the custody, including parents with heir children.

Good Samaritan Statutes

Exc. to Duty to Act Generally cannot leave a person in a worse condition, but with this Statute, you're only liable if grossly negligent or not acting in good faith

Duty as a Possessor of Land

Balance of right to use your land for your own benefit and enjoyment vs DUTY to keep land free of use that creates unreasonable harm to 3rd parties Trespasser - NO DUTY, refrain from traps Licensee - Limited license to private prop (houseguests) - DUTY to warn of known issues Invitee - Open invite to public business DUTY to protect know or should have discovered (Hardee's)

Duties to Licensee vs Invitee

Warn / Protect | (Should) Know / (Should) Discover

Causation - Factual Cause

But For Test OR If Colee had not committed the negligent act, would class still have been harmed? Yes - Not factual cause No - Factual cause Can be difficult to determine with multiple causes - sue all parties with causes

Causation – Proximate Cause

FORESEEABILITY - danger zone | Liable if general harm and plaintiff was reasonably foreseeable at time of actq

Eggshell plaintiff

If harm is covered, Defendent must pay for all damages ( or the allotted percent)

Harm

Must have INJURY to person to prop - One exc. is NIED

Defenses to Negligence

Analyze P and D - Contributory - if P contributed to any of damage (was at all neg.), gets nothing from D - Comparative, Pure - Straight percentage of fault - Comparative, Mod. - if P more than 50% at fault, none, but if less, straight %

Negligence - Assumption of risk

Express - Verbal or written assumption of risk, typically a contract - Validity LIMITED Implied - Not valid, just use contributory neg theories

Product Liability Negligence - Who's liable?

The person who created the defect, incorrectly test, etc. Have to show fault - difficult.

Product Liability Misrepresentation

P - those who relied on the misrep | Not often used, disclaimers and warnings on products

Product Strict Liability

``` Where: Cal, most have adopted the theory Differs from neg b/c it doesn't require fault Limits: -D has to be a Merchant -Products, not services MUST SHOW -Defect -Defect had to exist when it left def's cuustodianship ```

Product Strict Liability - Chain of Dist

Who's liable? Everyone in CoD that passed defective product on to the next party Who can sue? Purchaser, lesse, user. ANYONE HARMED BY PRODUCT

Product Strict Liability Defects

- Defect in Manufacture (Assembly and testing) - Defect in Design (Test - Risk-Utility Analysis and cost of Safer Alternative, Consumer expectation test) - Failure to Warn - Inherent danger that's NOT commonly known AND no safer alternative - so WARN - Defect in Packaging

Defenses to Product Strict Liability

- Generally known danger - Abnormal misuse of product - Supervening event (altered) - Statute of Limitations (starts when injured by product) - Statute of Repose (start when product sold to buyer)

Corporate Criminal Law

- Fined if charged - Failure to perform specific duty imposed by law - Authorized, request, commanded, by supervisors (failure to supervise appropriately, even if did not know(

White collar crime: | A person threatens to expose a corporate executive’s past evidence of infidelity unless paid money.

Extortion/Blackmail

White Collar crime: A corporate accountant sets up a “dummy corporation,”issues invoices from the dummy corporation to her employer and then issues payment checks from her employer to the dummy corporation.

Embezzlement

White Collar Crime: I start a restaurant and use the restaurant’s books to hide the money I’m really generating from an illegal gambling ring.

Money Laundering

TEst 1 Flashcards

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