Intro to law test 2

ch 7, 10, 11

Assault (intentional tort)

__Book:__ The placing of another in apprehension or fear of an imminent battery; both a crime and a tort.

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Making someone scared that you will hurt them

Battery (intentional tort)

__Book:__ A reckless or intentional, harmful, or offensive touching of another; both crime and tort

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the actual physical attack of hurting someone (goes along with assault)

False imprisonment (intentional tort)

__Book:__ the intentional interference with another persons liberty through force or threat without authority

Invasion of privacy (intentional tort)

__Book__: Intentional and offensive intrusion upon the solitude of another or upon their private affairs or concerns

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intrusive or unwanted actions

Intentional infliction of emotional distress (intentional tort)

__Book:__ Intentional and outrageous conduct that causes mental suffering forms the basis of the tort of intentional infliction of emotional distress

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occurs when one acts in a manner that intentionally or recklessly causes another to suffer severe emotional distress

conversion (intentional tort)

__Book:__ tort against personal property (property that is not real property aka not fixed on the land)

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__Elements:__


1. wrongful and intentional act
2. exercising control over personal property of another

trespass (intentional tort)

__Book:__ tort against real property (land and anything permanently fixed to the land)

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__Elements:__


1. intentional interference or encroachment
2. on land of another
3. interference or encroachment is unauthorized

fraud (intentional tort)

Book: a misrepresentation of fact, knowing it is false, made to persuade a party to consent to a contract, upon which the defrauded party relied and without which the party would not have entered into the contract

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Elements:


1. false statement of a material fact
2. statement made with knowledge of its falsity or with reckless disregard
3. false statement made with intent to deceive

Consent (intentional tort)

pressure or lies to negate contract

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Consent means that a person voluntarily and willfully agrees in response to another person's proposition

privilege (intentional tort)

protects all communications between a professional legal adviser and his or her clients from being disclosed without the permission of the client

Duty of care (negligence & defenses)

We are all under a duty to act in such a way as to not injure those around us

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Premises liability/landowner duties


1. attractive nuisance - attracts kids __ex:__ pool without fence, trampoline
2. licensee - social guests - warn of danger that owner is aware of but are not easily discoverable
3. business invitee - must actively look for danger and fix it

breach of duty (negligence & defenses)

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occurs when a duty of care exists and was not followed

causation (negligence & defenses)

proof of negligence - negligence must have caused the injury


1. factual or actual cause - requires that the negligent act, the breach of duty, is the cause of the injury
2. legal or proximate cause - negligent acts can cause an injury that is so remote or so unforeseeable that the law refuses to impose liability so the breach must be sufficiently related to injuries


1. Foreseeability - asks if the defendant could have or should have predicted that

the proximate cause could have resulted in injury

malpractice (negligence & defenses)

__book:__ professional negligence

professionals are required to exercise care consistent with the standards of the professional community

attractive nuisance (negligence & defenses)

__Book:__ A condition on land that appeals to children; a doctrine that requires homeowners to use reasonable care to avoid injury to trespassing children

strict liability (negligence & defenses)

__Book__: liability without fault

based on public policy - individuals who engage in certain types of activities or conduct that cause an injury must compensate the injured party


1. maintaining a dangerous animal
2. engaging in abnormally dangerous activities (ex: explosives)
3. manufacturing or distributing a defective product (products liability)

products liability (negligence & defenses)

__Book:__ Liability of manufacturers and distributors for defective products that cause injury

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have to prove product is defective, must have been using it in a foreseeable manner and assumption of risk-warning label

dangerous animals (negligence & defenses)

wild or inherently dangerous v. domesticated

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liability for a dangerous animal is absolute

liability for dangerous domestic animals may not arise until owner learns about danger

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typically follow one bite rule

assumption of the risk (negligence & defenses)

people who knowingly and voluntarily agree to assume a particular risk cannot later sue for injuries' that occurred because of the risk __ex:__ rollercoaster

contributory negligence

negligence of a plaintiff that contributes to the injury; a doctrine that is a defense to negligence

comparative negligence

A doctrine that compares the negligence of the plaintiff and the defendant and allows recovery based on apportionment of fault

damages (negligence & defenses)

1. special damages - out of pocket losses
2. General damages - damages not based on a monetary loss; include items such as pain and suffering
3. punitive damages - damages meant to punish

Review Ch 7

Figure 7-1 p 184, figure 7-2 p 201,

Palsgraf v. Long Island Railroad Co., p 188-189 (majority opinion)

(7-1) Personal torts

1. assault
2. battery
3. false arrest
4. defamation (libel & slander)
5. Invasion of Privacy
6. intentional infliction of emotional distress
7. malicious prosecution
8. abuse of process

(7-1) economic torts

1. disparagement (slander of title and trade libel)
2. inducing a breach of contract
3. interference with prospective economic advantage

(7-1) property torts

1. trespass
2. conversion
3. intellectual property infringement
4. fraud

(7-2) Intentional tort

__Definition:__ a willful act done with the knowledge or reckless disregard that the act will cause harm

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__Common defenses:__


1. privilege
2. consent
3. self-defense
4. immunity
5. statute of limitations

(7-2) Negligence

__Definition:__ Failing to act as a reasonable prudent person would act in the same or similar circumstances

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__Common defenses:__


1. contributory negligence
2. comparative negligence
3. assumption of the risk
4. immunity
5. statute of limitations

(7-2) strict liability

__Definition__: Liability for injury even though the injury was not caused by an intentional or negligent act; liability without fault

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__Common defenses:__


1. Assumption of the risk
2. comparative negligence (in some jurisdictions)

tort

lawsuit for personal injury

(ch 7 q) negligence per se

negligence that is presumed because the tortfeasor has violated a statute

(ch 7 q) res ipsa loquitur

“the thing speaks for itself”; negligence is implied from the fact that the incident happened

(ch 7 q) respondent superior

the responsibility of an employer for torts of employees that are committed in the course and scope of employment

(ch 7 q) vicarious liability

liability for the acts of another

(ch 7 q) peculiar risk doctrine

A doctrine that makes an employer liable for the acts of an independent contractor when the independent contractor has been engaged to perform a nondelegable duty

(ch 7 q) loss of consortium

Deprivation of the benefits of a family relationship (including affection and sexual relations) due to injuries caused by a tortfeasor

ch 7 questions for review #3, 4, 5

3. Kasey would win the case against Harry because a person has to be there on the property to protect the property from burglary
4. possible torts


1. man 1 unaware of man 2. man 2 shoots man 1
2. consented to blood from designated donor doctor uses general blood no injury
3. runs led light collides with vehicle not seen other person injured


6. woman had weight injure her when other woman in front of her bailed on the lift

CHAPTER

TEN

offer

communication to another of current intent to enter into a contract with that person

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1. offeror must intent to enter into a contract
2. offer must be communicated to the offeree
3. the essential terms must be certain and definite

acceptance

the offeree must accept the offer before the offer terminates

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acceptance must:


1. comply with method designated by the offeror
2. do so in a timely manner
3. not vary the terms of the offer

mutual consideration

__offeror:__ gives up ability to offer to someone else

__offeree:__ gives up ability to give someone else time

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Mutual consideration must exist for valid contract (you cant tell someone to do something they were already going to do)

bilateral contract v. unilateral contract

__Bilateral:__ both people make a promise ex: “i promise to sell you my car, if you agree to pay me $5,000”

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__Unilateral:__ one party makes a promise and the other side actually performs rather than just promising to perform

option

a promise to keep an offer open for a period of time

promissor

one who makes a promise

promisee

The person to whom a promise is made

void v. voidable contract

void - __Book:__ having no binding effect or legal force, such as a marriage or a contract

contract with someone who cannot make a contract ex: mentally unstable

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voidable - __Book:__ Having a defect that can be cured; often said of a marriage or a contract. if the defect is not cured, the marriage or contract can be nullified

contract with someone under age that someone can void the contract

rescind

to undo a contract, usually when the contract is voidable

public policy

__Book:__ a standard based on the public good or a sense of public mortality

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the principles, often unwritten, on which social laws are based.

statute of frauds

__Book:__ A law based on English common law requiring certain types of contracts to be evidenced by a writing

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ex: selling a house

undue influence

pressure brought about by one in a position of trust or confidence who takes advantage of the position to coerce a person into entering a contract

fraud

A misinterpretation of fact, knowing it is false, made to persuade a party to consent to a contract, upon which the defrauded party relied and without which the party would not have entered into the contract

parol evidence rule

A rule of contract law stating that when parties have put their agreement in writing, evidence of prior or contemporaneous statements regarding the agreement is not admissible if a dispute arises and the parties go to trial

breach of contract

The failure of one party to a contract to perform his or her obligations under the contract

specific performance

A court order requiring one party to fulfill his or her obligations under a contract

detrimental reliance

school was going to receive 1 mill only got 100,000 but they already started construction -they had reliance on the person who donated

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refers to a promise being made

typically used when a promise or obligation is not kept and relying on the promise was a reasonable decision on the part of the reliant person

conditions

events or acts that must happen in order for a party to have a duty to perform the promises made

covenants

in contract law, promises

assignment

the transfer of ones rights under a contract

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a legal term whereby an individual, the “assignor,” transfers rights, property, or other benefits to another known as the “assignee.”

delegation

__Book:__ the transfer of obligations under a contract

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giving someone else the responsibility of carrying out the performance agreed to in a contract

material v. minor breach

__Material breaches__ are considered more serious and make completing the contract difficult or even impossible.

ex: room is too small for the thing i wanted to put in there to fit

__Minor breaches__ are insignificant enough that the remainder of the contract can still be completed in a satisfactory manner

ex: room is slightly too small but I dont need anything specific to fit

anticipatory breach

occurs when a party repudiates prior to the date that the performance is due

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Anticipatory repudiation occurs in contracts where one party to a contract thinks the other side is going to breach the contract. For example, the seller of real estate may say that they are refusing to go through with the sale before the actual closing date

rescission (rescind)

to undo a contract, usually when the contract is voidable

restitution

__Book:__ to return consideration that was given

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When the court orders an offender to pay restitution, it is ordering them to pay back the damage caused, both to the state and to the victim

UCC (uniform commercial code)

__Book:__ regulates contracts for the sale of goods

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a comprehensive set of laws governing all commercial transactions in the United States

Application 10.1 p 275 (creating an enforceable contract)

mulcahy agrees to sell house to gates for $100,000 a contract is created, both agree both made promise - constitutes consideration - assumed both adults no mental impairment. valid contract is created. However, must be in writing since it is selling of real estate, currently it falls under the statute of frauds

application 10.4 p 278 (detrimental reliance)

byers promises to donate 1 mill for lab. he sends 100,000 promises the rest later. school starts construction, byers goes back on promise.

review

Alabama Football, inc. v. Wright, pages 280-281

review 10-1

p 289

questions for review

p 293 #3, 4, 7, 8

quasi contract

a contract imposed by law; a transaction that will be treated as a valid contract even though one or more elements may be missing, because it is the equitable thing to do

breach of contract remedies

__arbitration:__ an out of court hearing before a neutral party who listens to two or more disputing parties and renders a decision resolving the dispute

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award of damages, specific performance, rescission, and restitution

review p 293-294

\#2, 3, 4 look up case cited at the end of the question

CHAPTER

ELEVEN

real property

land, including anything affixed to the land or growing upon the land

personal property

goods and money; in general, property is either real or personal (car clothes etc)

fixtures

items affixed to real property and are treated like real property

ex: chandelier

fee simple

ownership of land with the right to freely transfer the property - holds the title

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__Fee simple absolute__: owns the whole property (bundle of sticks own the whole bundle)

joint tenancy

co-ownership of property characterized by a right of survivorship

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__right of survivorship:__ if one joint tenant dies, the remaining joint tenant(s) inherit the property by operation of law

tenancy in common

a term that describes co ownership of property carrying no right of survivorship

property goes to tenants heirs

tenancy for years

an estate lease agreement that lasts a specific amount of time, with opportunities for renewal at the end of each lease

life estate

the right to use real property for the term of someones life

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gives holder the right to use the property during the lifetime of the holder

remainder

a future interest in land. It is the right to own and possess the land after the fixed interest of current holder expires

deed

Tells you what you own and how you own it

Deed: a document that evidences title for real property; it is also used to convey property

adverse possession

Squatters rights - acquiring property through possession

__common elements:__


1. exclusive possession by the person claiming adverse possession
2. open and notorious possession
3. adverse to the owner and under a claim of right (the owner didn’t want it to happen)
4. continuous uninterrupted possession
5. in some states, payment of property taxes

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A party claiming land by adverse possession must prove that he or his predecessors had exclusive, continuous possession of the disputed land for at least 21 years and that the possession was open, notorious and adverse to the legal title holder

easement

__Book:__ the right to a limited use of a portion of anothers property

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a right to cross or otherwise use someone else's land for a specified purpose

Ex: using road to leave

mortgage

an encumbrance against real property

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a debt owed to a person by a landowner. as long as the property owner pays the debt, the creditor has no claim to the property. however, if the debtor/landowner fails to pay debt, creditor can eventually have the property foreclosed

foreclosure

a legal preceding involving the sale of encumbered or mortgaged property when the owner fails to pay the debt

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if the debtor/landowner fails to pay debt the creditor can eventually have property sold and debt paid from the sale

deed of trust

a document that evidences a debt secured by real property - legal title is placed in care of third party until loan is paid to secure payment of loan

lease

an agreement between awn owner of property and another in which the owner of the property gives the other person the right to use the property for a set period of time (rental agreement)

warranty of habitability

landlords have a legal responsibility to tenants to keep their units livable

gifts

__inter vivos gift:__ A gift inter vivos, a gift between the living in Latin, is the legal term that refers to a transfer or gift made during the grantor's life

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__conditional gift:__ one that is dependent upon some future event or action taking place

application 11.2 p 300

easement - assuming Morgan owns property that can only be accessed by passing over property owned by Sanchez, Morgan probably has the right to travel across his property. Morgan has a limited right to his property

other ex: power lines running across property (company has a right to use someone elses property)

tenency by the entirety

co ownership by a married couple in a non community property state

review

clippard v Pfefferkorn, p 303-305

questions p 321

#3 and 6

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& 322 #5

warranty deed

the grantor guarantees title to the property and promises to defend the grantee against third-party claims (they basically own it, bundle of sticks, and can sell it to you fully)

Quitclaim deed

Grantor makes no representation regarding title

They can only give you what they already own

Easement by necessity

Can have if you have to use their property like if you need to cross theirs to leave yours

Tenants in common

Two people own property if one dies property goes to their heir instead of the other person

Joint tenants

If one dies it is passed to the other