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100 Cards in this Set

  • Front
  • Back
Failure to conform your behavior to the standard of care and thereby causing another to suffer injury, You must establish
1. A duty of care existed
2. There was a breach of that duty
3. Damages resulted as a result of the breach
4. The breach caused the damage
Defense to negligence
Superseding Cause
Assumption of risk
Duty to Rescue
Generally not, unless you are obligated... I.E. you try and help him and then decide to leave him
Duty To landowners
Landowners are held to a reasonable standard regarding dangerous situations on their property... even if trespassing
The Reasonable Person Standard
This means the standard is how a reasonable person would have acted under the same or similar circumstances
Strict Liability
Abnormally dangerous activities

Extreme risk, Risk/Harm, Dangerous animals
Product Liability
May be based on negligence, misrepresentation, or strict liability
Negligence based liability
The failure to exercise reasonable care in the making or marketing of a product that causes injury
Manufacturing duty of care
Due care must be exercised in the manufacture or a product

The manufacturer has a duty to warn the consumer about dangers that an ordinary person might not be aware of.

There are usually state laws that set forth what kind of warnings
Wrongfully hurting another's good reputation through false statements.

Publication required (communication to a third party)
Defamation per se (no damages required)
Loathsome communicable disease

Professional improprieties

Crime or been imprisoned

Unmarried woman is unchaste
Defenses to Defamation
The truth, the whole truth, not just part.
Privileged speech (heavy confidence
Defamation of Public Figures
The statement is about a public figure, made in a public medium, and related to a matter of general public interest. To recover damages, a public figure must prove a statement was made with actual malice. (Knowledge of falsity or with reckless disregard of the truth)
Trespass to Land
Entering onto real property of another;
Without permission;
On, above, or below the surface;
Or cause anything to enter the land
Or cause anything to remain on the land;
Or permits anything to remain on it.

Trespassers are liable for any damage they do.
Defenses to Trespass
Trespass was warranted (emergency/accident)

Possessor of the land had no right.
The wrongful conduct by one person that causes injury to another. Typically the remedy for such an act is money
Intentional Torts
Acts that were intended, or could be expected to bring about consequences that are the basis of the tort.
One who commits a tort. In order to be liable of an intentional tort, the tortfeasor MUST intend to commit the tort, the consequences of which interfere with the personal or business interests of another in a way not permitted by law.
The Reasonable apprehension of fear of immediate harmful contact, or immediate offensive contact.
An intentional and harmful or offensive physical contact.
A plaintiff may be compensated for emotional harm or loss of reputation resulting from a battery, as well as from physical harm.
Defenses to assault and battery
Consent (sports or medicine)

Self-defense (life threatening)

Defense of others (reasonable)

Defense of Property (reasonable, but not deadly)
False imprisoment
The intentional and wrongful deprivation of the freedom to leave a particular place. (shoplifting/public school)
Intentional Infliction of Emotional Distress
An intentional act that amounts to extreme and outrageous conduct resulting in severe emotional distress to another. (some states require proof of physical harm) Repeated annoyance, with threats (such as extreme methods of debt collection[example from class with big man and old woman] is one way to commit this tort
Police Power
As part of their sovereign powers, states possess the power to regulate private activities in order to protect or promote public order, health, safety, morals, and general welfare.
Balancing the Commerce clause with States Police Powers:
When state regulations impinge on interstate commerce, courts must have balance the state's interest in the merits and purposes of the regulation against the burden the regulation places on interstate commerce. Generally speaking State laws enacted to persuant to the state's police powers are presumed to be valid notwithstanding their effect on interstate commerce; however, if the state law substancially interferes with interstate commerce, it will most likely be held to violate the commerce clause (ie. to be unconstitutional.. the wheat farmer [this is very braud]
**Federal Government**
A form of government where states form a union and the sovereign power is divided between the national government and the various states.
**Tri-Partite Government**
The national government of the United States of America is composed of three separate branches, each of which acts as a check on the others' power.
**Executive Branch**
ie. The president; which has the power to veto legislation passed by congress and to appoint the members of the judiciary;
**Legislative Branch**
ie. Congress; which may override the president's veto and which may define the jurisdiction of the judiciary and must confirm judiciary appointees;
**Judicial Branch**
ie. The Supreme Court and the federal court system; which has the power to void the acts of the Executive and Legislative branches because they are unconstitutional.
Commerce Clause
Empowers Congress "[t]o regulate Commerce with foreign nations, and among several states, and with the Indian Tribes"
Interstate Commerce
commerce between two or more states

Supreme Court has interpreted the Commerce clause to permit Congress to regulate both
Intrastate Commerce
commerce in one state

Supreme Court has interpreted the Commerce clause to permit Congress to regulate both as long as the intrastate commerce issue "SUBSTANTIALLY AFFECTS" interstate commerce. (wheat example)
Appellate Review
appellate court after all briefs on file, will schedule an ""oral argument"" at which counsel for the parties may briefly outline their positions and at which the court may ask council pointed questions to aid the court's disposition of the appeal
From arguments raised in briefs and/or oral argument the appellate court can
1. Affirm the trial court's judgment and or ruling

2. reverse the trial court's judgment and or ruling and REMAND the case for further proceedings in the trial court

3. reverse the trial's court judgment and or ruling and RENDER a new judgment without further proceedings

If the party that loses before the appellate court chooses it may appeal that appellate court's ruling to the jurisdictions supreme court or equivalent
Dispositive Motions
Motions asking the trial court to dispose of a party's claims for affirmative relief, to alter or disregard the jury's verdict or to order a new trial
Motion for Directed Verdict
In a jury Trial, a motion for the judge to take the decision out of the jury's hands and direct a verdict for the moving party because the non-moving party has failed to provide sufficient evidence to prevail on its claim
Motion for judgment notwithstanding the verdict
In a jury trial, a motion asking the court to enter judgment in favor of the moving party. despite the jury's verdict in favor of the nonmoving party. This motion a.k.a. (motion for judgment NOV) and the motion for directed verdict have been merged under the federal rules into a motion for judgment as a matter of law.
Motion for a new trial
A motion asserting that the trial, whether by jury trial or a bench trial, was so fundamentally flawed- because of error by the trial judge, newly discovered evidence, prejudice, or other reasons-that a new trial is required to prevent a miscarriage of justice
Losing party, Asking a court with appellate jurisdiction over the trial court to review and set-aside the judgment..
Notice of appeal
evidencing the party's intent to appeal the judgment and/or one or more ruling of the trial court
Record or Transcript
of the pleadings, motions, hearings, and trial before the trial court, and particularly the judgment and any other ruling by the trial court that is being challanged
outlining the LEGAL arguments supporting the appellant's request to set-aside judgment
Courts of Law
empowered only to award wronged parties money or other valuable compensation for their injuries or losses
Courts of Equity
empowered to award any manner of non monetary relief, such as ordering a person to do something or to stop doing something
Specific Performance (courts of equity)
Ordering a person to do something
Injunction (courts of equity)
Ordering a person to stop doing something
Remedy at Law
Money Damaged
Remedy at Equity
Injunctive relief (non monetary)
Civil Law
Protects us from each other
Stare Decisis
The doctrine by which judges are obligated to follow precedents established within a particular jurisdicion
Prior judicial decision by judges deciding subsequent disputes involving the same or similar facts and the same jurisdiction's law
Binding Authority
Any primary sources of law a court MUST follow when deciding a dispute.
Persuasive Authority
Any primary or secondary source of law which a court MAY, but which the court is not bound to rely upon for guidance in resolving a dispute
Legal Reasoning

Issue-damaged, injuries
Analysis- why rule fits our facts
Conclusion- conclude why?
Four primary source of domestic law
-Administrative Rules and
-Common Law
set forth the fundamental rights of the people living in the US, or a given state, describing and empowering the various branches of government, and setting forth limitations on that power.
enacted by Congress or the legislature or a given state and ORDINANCES adopted by a given locality
Uniform law, or Model Act
A given state MAY be based on a uniform law, or a Model act. Each state can depart from the uniform law or model as they see fit
Administrative Rules and Regulations
promulgated by federal, state, and local regulatory agencies.
Common Law
which is the body of judicial decisions(cases) that interpret and enforce any of the foregoing as well as those relationships among individuals or between individuals and their society which are not subject to constitutional, statutory, or administrative law.
Hierarchy among sources of American Law
1. The United states constitution
2.federal statutory law
3.state constitution
4.state statutory law
5.local ordinance
6.administrative rules and rulings
7.common law
Substantive Law
consists of all laws that define, describe, regulate, and create legal rights and obligations
(claim is based on)
Procedural Law
Consists of all laws that established and regulate the manner of enforcing or vindicating the rights established by substantive law
(invoking procedure)
Criminal Law
defines and enforces the obligations of persons to society as a whole
Informal (between the two parties with or without counsel) maybe assisted by use of, Mini-trial, Neutral Case Evaluation, Summary Jury Trial, and Conciliation
a short-form trial presented to a "judge" whose decision is not legally binding, but may assist the parties in evaluating their claims and or defenses
Neutral Case Evaluation
A third party agreed to by the parties evaluates each side's position and inform the parties of their strengths and weaknesses.
Summary Jury Trial
A short-form trial presented to a "jury" whose decision is not legally binding, but may assist the parties in evaluating their claims and or defences
Settlement discussions moderated by a neutral third party
Non-binding procedure utilizing the services of a neutral third party to assist negotiations and recommend a resolution of the parties' dispute
A BINDING form of mediation utilizing either one person or a panel of three persons chosen by the court or agreed to by the parties (or both) GOT TO DO IT
The authority of a court to hear and decide a specific action. Jurisdiction has many dimensions.
Personal Jurisdiction
The authority of a court to hear and decide a dispute involving THE PARTICULAR PARTY before it
Subject Matter Jurisdiction
The authority of a court to hear and decide the particular dispute before it
Original Jurisdiction
The authority of a court to hear and decide a dispute in the first instance. Generally Speaking, TRIAL COURTS are courts of original jurisdiction
Appellate Jurisdiction
The authority of a court to review a prior decision in the same case made by another court
Personal (or IN PERSONAM)jurisdiction
in general is a geographic concept. Courts have personal jurisdiction over persons residing and or doing business within a particular country, district, state and sometimes anywhere in the US
Long-arm statutes
All states and US have these, they dictate under what terms a nonresident person or entity, who would otherwise not be subject to the court's jurisdiction, may be nonetheless be required to appear before the court
The key to whehter a nonresident will be subject to a court's jurisdiction is the quantity and nature of the nonresident's contact with the state within which the court sits.
Jurisdiction over Property (or IN REM)
pursuant to which a court's jurisdiction depends on whether the property in question resides within the county, district, or state.
If it is relative, competent, material, and isn't excluded for procedural reasons, It goes in.
Subject Matter Jurisdiction
A court's subject matter jurisdiction is usually defined in the statute or constitution creating the court.. Can be limited by
1. The amount in controversy
2. The basis for the relief sought
3.In a criminal case whether the crime is alleged is a misdemeanor or felony
Amount in Controversy
The amount we ask for in compliant
Relief Sought
either equity relief, or monetary relief
limited jurisdiction
a court whose jurisdiction is limited by one or more of these factors
General Jurisdiction
if a court whose jurisdiction is not limited by any factors
concurrent jurisdiction
when more than one court has jurisdiction
exclusive jurisdiction
when only one court has jurisdiction
Federal Question Jurisdiction
arises if a case involves an alleged violation of the U.S. Constitution, federal statute or regulation, or a treaty between the U.s> and one or more foreign countries
Diversity Jurisdiction
arises if
1. the amount in controversy exceeds $75,000
2. the lawsuit is between/
a. citizens of different states
b. a foreign country and citizens of one or more states
c.citizens of a state and citizens or subject of a foreign country
Within a particular jurisdiction, the most appropriate location for a trial to be held and from which a jury will be selected
Standing to Sue
An individual or entity must have a SUFFICIENT STAKE in the controversy before he, she or it may bring suit
Justiciable controversy
whether standing exists depends on this.

that is, a real and substantial controversy, not one that is moot, hypothetical, or academic.
US district Courts
Trial Courts of general jurisdiction. Each state has at least one some up to 4
US Courts of Appeals
Appellate courts to which litigants in the US district courts have a right to appeal
US Supreme Courts
The "Supreme Court of the land"