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36 Cards in this Set
- Front
- Back
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How can you win a negligence case? |
Prove defendant failed in 5 areas:
duty of due care-duty owed to plaintiff breach- duty must be breached factual cause- injury caused by defendants action foreseeable harm injury- plaintiff must have been hurt |
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What famous court case demonstrates foreseeable harm? |
PALSGRAF V LONG ISLAND RAILROAD |
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What is negligence per se? |
An act is considered negligent because it violates a statute or regulation |
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What is the definition of Res Ipsa Loquitor and its significance? |
Latin for "thing speaks for itself"
Elements of duty of due care and breach can be inferred from the very nature of the accident, even w/o direct evidence of how any defendant behaves.
Think accidents that wouldn't have occurred but from someone's negligence. |
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What is contributory negligence? |
In a few states, if plaintiff is AT ALL negligent, he cannot recover damages from the defendant. |
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What is comparative negligence? |
In most states, if plaintiff is negligent, % of negligence is applied to defendant and plaintiff.
Plaintiff can recover from defendant to % that defendant is negligent
In some cases, plaintiff over 50% negligent cannot recover |
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What is the significance of strict liability? |
keeps people accountable for activities so dangerous that the law imposes a high burden on them.
ex: Defective products, ultra-hazardous activities (chemicals, explosives, keeping wild animals) |
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Premises liability does what? |
Holds owners and occupiers of land responsible for accidents and injuries that occur on that property. |
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What is the role of a prosecutor in a criminal case? |
To prove defendant was responsible for alleged damages |
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Why is bail necessary? |
To ensure that the defendant goes to trial |
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What is mens rea? |
"guilty state of mind"
intent to commit |
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What is actus rea? |
"the guilty act"
act committed |
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What are the miranda rights and their significance? |
Explanation of rights that must be explained before custodial interrogation.
Stems from 5th amendment privilege against self incrimination. |
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What does the 4th amendment cover? |
It gives you protection from unreasonable search/ seizure |
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What is larceny? |
Wrongful taking of anothers property |
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What is robbery? |
Taking property by use of fear or force |
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What is burglary? |
Unauthorized entry with intent to commit a felony |
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What is embezzlement? |
Theft or misappropriation of funds placed in one's trustD |
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What defenses can be used to help the defendants case? |
Entrapment- leading someone to commit a crime that the person would have been unlikely to commit
Intoxication |
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What is burden of proof? |
Beyond reasonable doubt |
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Whats the difference between a bilateral and unilateral contract? |
Bilateral- exchange of promises
Unilateral- one promise |
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What is the difference between an executed and executory contract? |
Executed- contract fulfilled
Executory- contract is being fulfilled |
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What is the difference between an express and implied contract? |
Express- everything in contract explicitly stated
Implied- words and conduct of parties that they intend to make an agreement |
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What are the different ways an offer can be terminated? |
Revocation
Rejection
Counter offerer
Destruction |
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What is consideration? |
Means there must be bargaining that leads to an exchange between the parties |
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What is legal detriment? |
Must do something you're not legally obligated to do, or refrain from doing something you are legally privileged to do. |
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What is the significance of legality regarding contracts? |
A contract that is illegal is void and unenforceable |
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What is restraint of trade? |
To be valid, an agreement not to compete must be ancillary to a legitimate bargain. |
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Explain capacity to contract |
Cannot agree to contract if you're a minor, mentally handicapped, or intoxicated |
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Know situations where a mistake can be made with bilateral contracts |
A bilateral mistake can occur when both parties negotiate on same mistaken fact |
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Know what a unilateral mistake is |
Sometimes only one party enters a contract under a mistaken assumption |
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When can you use promissory estoppel? |
To enforce defendants promise, even when there is no contract.
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What is a quasi contract? |
Compensation given to plain fill who can show that:
He gave some benefit to defendant He reasonably expected to be paid for the benefit Defendant would be unjustly enriched if she did not pay |
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What is quantum meruit? |
Damages awarded. Means plaintiff gets "as much as he deserved" |
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What is an option contract? |
An offered can prevent offeror from revoking offer by paying offeror compensation to keep the offer open for an agreed upon period of time.
Ex: Paying $300 up front so someone doesn't seek their car while you get the rest of the money |
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Statute of frauds |
Many agreements are unenforceable, unless it, or some memorandum of it, is in writing and signed.
Includes: Interest in land Duty that can't be performed in a year Paying the debt of another Made by an executor of an estate Made in consideration of marriage For sale of goods over $500 |
