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83 Cards in this Set

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Duty...
All people have a duty to prevent an unreasonable risk of harm to others. Under the majority view (Cardozo) a duty is owed to only those πs that are foreseeable and in the zone of danger [Insert Facts]. Under the minority view (Andrews) a duty is owed to all [Insert Facts].
Standard of Care...
Absent a special relationship, the standard of care for this duty is one of reasonableness. All people are entrusted to act as the reasonable and prudent person would in the same or similar circumstances. Whether a person has acted reasonably is judged objectively. [Insert Facts].
Heightened Standard of Care...
[Landowners / professionals / common carriers] are entrusted with a heightened standard of care and are liable for even slight negligence. [Insert Facts]
Breach...
A breach occurs when a ∆ fails to conform to the standard of care. As noted, here the standard of care is one of [reasonableness / etc.]. [Insert Facts].
Factual Causation...
Actual causation is "but for" causation, wherein the ∆ is only liable if the injury would not have occurred but for his negligence. [Insert Facts].
Proximate Causation...
Proximate causation exists when the act and resulting injuries were a foreseeable result of ∆'s conduct or the ∆'s conduct was a substantial factor in causing the injury. [Insert Facts].
Damages...
A π must prove damages in the form of physical injury or property damages. Economic harm alone is insufficient for a claim of negligence. [Insert Facts].
Deeds...
A deed is the document that transfers title of real property from one party to another. It must comply with the formality requirements, be delivered and accepted/acknowledged to be effective.
[Deed] Formality Requirements...
In order to satisfy the formalities, a deed must be in writing, signed by the grantor and specify the parties and land to a reasonable certainty. [Insert Facts].
[Deed] Delivery...
Delivery occurs when the grantor's intent to make the deed presently effective is ascertained. Intent can be inferred even if actual possession of the document itself is postponed. [Insert Facts].
[Deed] Acceptance...
Acceptance is generally presumed in most jurisdictions. It occurs on the date the deed was delivered (see above) into escrow unless the parties expressly stated otherwise. [Insert Facts].
Defamation...
Common Law defamation requires a showing of: (1) a defamatory statement; (2) of or concerning π; (3) publication; (4) damages.
Defamatory Statement...
A defamatory statement is one that injuries a π's reputation and tends to subject π to hatred, contempt and ridicule or financial injury. [Insert Facts].
[Defamation] Of or Concerning π...
The π must establish that a reasonable recipient of the information would understand that the statement referred to π. [Insert Facts].
[Defamation] Publication...
Publication requires that the statement be communicated to a third party who understands the defamatory meaning and its application to π. [Insert Facts].
[Defamation] Damages...
The type of damages the π must prove depends on the type of defamation.
[Defamation Damages] Libel...
Libel is defamation that is written. When libel occurs, general damages are presumed. However, the π may offer actual evidence of damages to increase his/her award. [Insert Facts].
[Defamation Damages] Libel Per Se and Libel Per Quod...
In a minority of jurisdictions, courts distinguish between libel per se (libel that is defamatory on its face) and libel per quod (libel that is not defamatory on its face). [Insert Facts].
[Defamation Damages] Slander...
Slander is defamation that is spoken. In cases of slander, π must prove damages unless defamation is slander per se.
[Defamation Damages] Slander Per Se...
Slander per se exist when the defamatory statement: (1) adversely reflects one's conduct in a business or profession; (2) accuses one of having a loathsome disease; (3) accuses one of a guilt involving a crime of moral turpitude; or (4) suggests a women is unchaste. [Insert Facts].
Constitutional Defamation (regarding a matter of public concern)...
When the defamation involves a matter of public concern, the π must prove two additional elements: (1) falsity; and (2) fault. [Insert Facts Re. Matter of Public Concern][Insert Facts Re. Falsity].
[Defamation; Matters of Public Concern] Fault...
The type of fault π must prove depends on whether the π is a public or private figure. If the plaintiff is a private figure, negligence must be shown. If the π is a public figure, malice must be shown.
[Defamation;Matters of Public Concern;Fault] Malice...
Malice is defined as knowledge that the defamatory statement was false or reckless disregard as to the statement's truth. [Insert Facts].
[Defenses to Defamation] Absolute Privilege...
∆ may assert an absolute privilege for remarks made: (1) during judicial proceedings; (2) by legislators in debate; (3) by federal executive officials; (2) in compelled broadcasts; and (5) between spouses. [Insert Facts].
[Defenses to Defamation] Qualified Privilege...
∆ may assert a qualified privilege for: (1) reports of official proceedings; (2) statements in the interest of publisher; (3) statements in the interest of the recipient; and (4) statements in the common interest of the publisher and recipient. [Insert Facts].
Invasion of Privacy...
There are four different torts that comprise the tort of invasion of privacy. To sue successfully for invasion of privacy, the π only has to prove one of the four torts. They are... [Insert Independent Rules Statements For All 4].
Intrusion Upon seclusion or Private Affairs...
A π has a claim for intrusion upon seclusion or private affairs when a ∆ intrudes upon the solitude or seclusion of another OR his private affairs in a way that is objectionable to a reasonable person. Affairs and areas are private when a π has a reasonable expectation of privacy in them.
Misappropriation of Name or Likeness...
Misappropriation occurs when a ∆ engages in an unauthorized use of π's name or likeness for commercial benefit. Liability is limited to commercial advertisements or promotions.
[Insert Facts].
False Light...
False light occurs where a ∆ gives publicity to π concerning views he does not hold or actions he did not take. The false light must be highly offensive to a reasonable person and the information must be made public.
[Insert Facts].
Publication of Private Facts...
This tort is committed when a ∆ publicly discloses private information about π that is highly offensive to a reasonable person and not of legitimate concern to the public.
[Insert Facts].
Products Liability-Manufacturer...
There are 5 theories upon which to base a products liability claim: (1) strict liability; (2) negligence; (3) implied warranties; (4) representation/express warranties: and (5) intent.
Strict Products Liability...
The prima facie case for strict products liability is: (1) strict duty; (2) breach of that duty (supply of a defective product); (3) causation; and (4) damages.
[Products] Strict Duty...
Commercial suppliers have a strict duty to supply safe products that are free from defects.
[Products] Breach...
Under a strict liability theory, a breach occurs if the ∆ supplies a defective product and that product was defective when it left ∆'s control.
Product Defect...
There are 3 types of defects: design defects, manufacturing defects, and inadequate warnings. A product can only be defective if it is unreasonably dangerous.
Product Design Defect...
A design defect occurs when every product on an assembly line has the same dangerous propensities. To prove the existence of a design defect, the π must show either that: (1) the product would fail to perform as safely as the ordinary consumer would expect, anticipating reasonable misuse (the consumer expectations test); or (2) that the ∆ could have made the product safer without serious impact on the product's price or utility (the feasibility or risk-utility test).
[Insert Facts].
Product Manufacturing Defect...
A manufacturing defect occurs when one of the products on an assembly line is more defective than the rest. To prove a manufacturing defect, the π must prove either: (1) the product would fail to perform as safely as the ordinary consumer would expect, anticipating reasonable misuse (the consumer expectations test); or (2) that the ∆ could have made the product safer without serious impact on the product's price or utility (the feasibility or risk-utility test).
[Insert Facts].
Product Inadequate Warning...
Inadequate warnings are a type of design defect that result from the manufacture's failure to give adequate warnings as to the risks involved in the product. For liability to attach, the danger must not be apparent to users and use of the warning must not have a serious impact on the product's price or utility.
[Insert Facts].
[Products Liability] Actual Causation...
This element is inferred if the defect was present when it left ∆'s control.
[Insert Facts].
Implied Warranty...
There are two warranties implied in every sale of goods that can serve as the basis for a products liability suit. Any buyer, family member or houseguest can sue under these theories and the p does not have to prove fault on the part of the ∆.
[Insert Facts].
Warranty of Merchantability...
This warranty is breached when the goods are not of average acceptable quality or are not fit for the general purpose for which they were intended.
[Insert Facts].
Warranty of Fitness for a Particular Purpose...
The warranty of fitness for a particular purpose is breached when the ∆ has reason to know the particular purpose for which the consumer goods are required, and that the buyer is relying on the skill and judgment of the seller to select and furnish suitable goods that conform to that purpose.
[Insert Facts].
Express Warranty/Representation Theories...
Breach of an express warranty arises when a product does not conform to the affirmative representations made by the ∆. The representation must have been part of the bargain at the time the purchase was made. Any consumer, user or bystander can sue under this theory.
[Insert Facts].
Vicarious Liability...
The questions is whether ER is liable for the tort of EE even though ER was not the direct cause of π's injuries. Vicarious liability is the liability of one party for the torts committed by another party.
Respondeat Superior...
Respondeat superior is a type of vicarious liability wherein the ER is liable for the torts committed by its EEs who are acting in the course and scope of their employment.

Therefore, in order to determine the liability of ER, it is necessary to determine whether EE committed a tort within the course and scope of employment.
[Insert Facts].
Easements...
An easement is a non-possessory interest in land that permits the holder to make limited use of another's land for a specified purpose.
Type of Easement...
Easements are either appurtenant or in gross.
Appurtenant Easement...
An appurtenant easement is one that is created to benefit and does benefit the holder in his use of another tract of land and burdens the OWNER of the land. Appurtenant easements have both a d dominant estate (the property benefiting from the easement) and a servient estate (the property burdened by the easement).
[Insert Facts].
Easement in Gross...
An easement in gross is a mere personal interest in the real estate of another. It exist when the holder of the easement has the benefit of the servient estate regardless of whether a dominant estate exists. It is NOT personal property.
[Insert Facts].
Creation of Easement...
Easements can be created though express grant, implication, necessity, prescription and estoppel.
Express Easements...
Express easements occur either through grant or reservation.

An express grant of an easement must: (1) be in writing; (2) identify the parties and affected land; (3) be signed by the grantor; and (4) indicate intent on the part of the grantor.
[Insert Facts].

An express reservation occurs when the holder of the servient estate grants the easement holder TITLE to the land but reserves the right to continue to use the land for a specific purpose.
[Insert Facts].
Easement by Implication...
An easement by implication arises out of operation of law and need not be in writing. Most easements by implication arise out of a prior-existing use.
[Easement by Implication] Prior-existing Use...
An implied easement can arise out of pre-existing use if: (1) prior to the division of title of a single tract; (2) an apparent and continuous use of the "easement" existed when severance occurred; (3) that was reasonably necessary for use at the time of severance.
[Insert Facts].
Easement by Necessity...
An easement by necessity exists when a landowner severs title to his land by selling only a portion, which results in strict necessity to the "easement" at the time of severance. Under the majority view, strict necessity exists when the severed parcel has not legal right of access to a public road.
[Insert Facts].
Easement by Prescription...
A prescriptive easement arises when someone uses or otherwise occupies another's land without permission. To acquire prescriptive easement, one must demonstrate that the use or occupation was open, notorious, hostile, exclusive and continuous for the statutory period.
[Insert Facts].
Easement by Estoppel (License)...
Easement by estoppel are irrevocable easements that require: (1) a license; (2) the licensee's expenditure of substantial money or labor in good faith reliance on the continued use of the easement; and (3) knowledge by the licensor or reasonable expectation that reliance will occur.
[Insert Facts].
Termination of Easements...
Traditionally, an easement was presumed to be of perpetual duration unless specifically stated otherwise. Modernly, whether this particular easement has been terminated or passes on to [the new owner] depends on its type and means of creation. Since this easement is [type] and was created by [method of creation], it does/does not pass on to [the new landowner].
Real Covenant...
A real covenant is a written promise concerning the use of real property. Real covenants are either affirmative (a promise to do something) or negative/restrictive (a promise not to do something). Every real covenant has two sides - the burden side and the benefit side. The burden is the duty to perform and the benefit is the privilege of forcing another party to perform.

Real covenants may run with the land, which means that subsequent owners of land may be able to enforce them or be burdened by them, so long as certain requirements are met. These requirements change, depending on whether the burden is being enforced, or the benefit.
Requirements for Burden to Run...
In order for the burden of a covenant to run with the land, certain elements must be satisfied. Those are: notice, intent, touch and concern, vertical privity, and horizontal privity.
[Burden to Run] Notice...
Under the common law, a subsequent purchaser of land was subject to the burden of a covenant regardless of whether he or she had notice. Modernly, however, recording statutes have modified the requirements so that a bona fide purchaser who has no notice of the covenant, and who records his or her own deed will not be bound by it. There are three types of notice: actual notice, constructive notice, and inquiry notice.
[Covenant] Actual Notice...
Actual notice refers to direct knowledge of the covenant.
[Insert Facts].
[Covenant] Constructive Notice...
Constructive notice is notice given to the public at large by virtue of the covenant being recorded with a public official. Constructive notice is often called record notice.
[Insert Facts].
[Covenant] Inquiry Notice...
A party is said to have inquiry notice when a reasonable inspection of the land would have revealed the covenant.
[Insert Facts].
[Covenant] Intent...
The original covenanting parties must have intended that the successors in interest be able to enforce the covenant. The intent is usually found in the language of the original agreement.
[Insert Facts].
[Covenant] Touch and Concern...
A covenant touches and concerns the land when it directly relates to the use and enjoyment of the land (in either a negative or positive way).
[Insert Facts].
[Covenant] Vertical Privity...
Vertical privity exists between the original parties to the covenant and the subsequent owner. In order to be bound by the covenant, the successor must hold the entire estate in land held by the original party.
[Insert Facts].
[Covenant] Horizontal Privity...
Horizontal privity requires that at the time the origial parties entered into the agreement, they shared some interest in land, independent of the covenant (e.g. landlord and tenant, mortgagee and mortgagor, dominant estate and servient estate in an easement, etc.).
[Insert Facts].
Requirement for the Benefit to Run...
In order for the benefit of a covenant to run with the land, certain elements must be satisfied. Those are: intent, touch and concern, and vertical privity.
Remedies for Breach of Real Covenants...
A breach of a real covenant warrants only an award of monetary damages. If an equitable remedy is sought, the promise is no longer enforced as a covenant, but instead is enforced as an equitable servitude.
[Insert Facts].
Termination of a Real Covenant...
A covenant may be terminated by: (1) written release (2) the merger of the benefited estate with the burdened estate; or (3) the condemnation of the burdened property.
[Insert Facts].
Equitable Servitudes...
An equitable servitude is essentially a real covenant but is enforced in equity. An equitable servitude must be in writing, unless it is an implied equitable servitude.
Implied Equitable Servitude...
An implied equitable servitude is one that may be implied from a common plan or scheme for the development of a residential subdivision, so long as the landowners have notice of the agreement.
[Implied Equitable Servitude] Common Plan or Scheme...
A common plan or scheme means that the developer intended that all parcels would be bound by the restrictive covenant. This may be evidenced by, among other things: (1) a recorded plat; a general plat of restrictions; or (3) oral representations to early buyers.
[Insert Facts].
[Implied Equitable Servitude] Notice...
To be bound by an implied equitable servitude (or covenant not contained in a deed), a grantee must have had notice of the covenant generally, which means that the covenant was contained in the deeds of others. Notice can be actual, constructive, or inquiry.

In this context, actual notice means the grantee was directly informed of the existence of the covenants, Record notice means that a deed in the grantee's chain of title contained the covenant or promise (even though the grantee's deed did not). Inquiry notice means that the neighborhood obviously and clearly conforms to the specifications and restrictions of the covenant.

[Insert Facts].
Requirements for the Burden of an Equitable Servitude to Run...
In order for the burden of an equitable servitude to run with the land, the elements of intent, notice, and touch and concern must be met.
Requirements for the Benefit of an Equitable Servitude to Run...
In order for the benefit of an equitable servitude to run with the land, the elements of intent and touch and concern must be met.
Remedies for Breaches of Equitable Servitudes...
Because equitable servitudes are covenants enforced "in equity," only equitable remedies are available. The usual remedy for an equitable servitude is injunctive relief.
[Insert Facts].
[Breaches of Equitable Servitudes] Defenses...
Because an equitable servitude is a creation of equity, all of the common equity defenses apply.
[Defenses to Breach of Equitable Servitudes] Unclean Hands...
The defenses of unclean hands can be asserted against any π-landowner who has engaged in the same prohibited activity as the ∆.
[Insert Facts].
[Defenses to Breach of Equitable Servitudes] Acquiescence...
The defense of acquiescence can be asserted if the π-landowner failed to complain or object when another 3rd party landowner (not named in the action) engaged in the same prohibited activity as the ∆.
[Insert Facts].
[Defenses to Breach of Equitable Servitudes] Estoppel...
The defense of estoppel can be asserted against any π-landowner who acted in a way that led his or her neighbors to rely on the belief that he would not complain of the prohibited activity.
[Insert Facts].
[Defenses to Breach of Equitable Servitudes] Laches...
The defense of laches can be asserted against any landowner who does not bring suit within a reasonable time.
[Insert Facts].
Termination of an Equitable Servitude...
An equitable servitude may be terminated by: (1) written release from the benefit holder or holders; (2) merger of the benefited estate with the burdened estate; or (3) condemnation of the burdened property...
[Insert Facts].